how to turn black into white, white into black, according as he is paid (1 Viewer)

[Frigid]

stupid legal hurdle.

trying to argue a question of causation. trying to say that the plaintiff severed the causal link between the contraceptive company's negligence and the damage of having to care for a disabled kid by willingly not aborting the pregnancy... but damn >.< stupid high court ratios

any ideas to get over this and turn black into white, white into black?

220. At various points in the debate about whether damages should be allowed for the cost of bringing up a child, reference is made to the parents having made a choice to keep the child rather than offer it for adoption, or to their having made a choice not to terminate the pregnancy by abortion. As mentioned earlier, this "choice" has been said to reveal that for the parent the benefits of having the child outweigh the burdens[339]. Sometimes, it has been advanced (as it was in McFarlane) as an argument about causation - the parents' choice is said to break the causal nexus between negligent conduct and expenditure on bringing up the child.

221. Inevitably, references to "choice" invite attention to the fact that for the individual the decision the parent makes, or refrains from making, is necessarily determined by the application of a combination of reason, emotion and beliefs that is unique to that individual. Whatever the decision, so long as the decision is to pursue a lawful course, it would be wrong for the law to characterise that course as unreasonable. To do so would deny the individual's autonomy to choose the lawful course of action which, to that individual, seems best.

 

[neo o]

You're going to have a very hard time Frigid. Think of Haber v Walker, a suicide caused by depression from injuries caused by a drivers negligence was involuntary and consequently not a novus actus because the resulting depression (and suicide) was forced upon Haber by the driver's negligence.

In the problem is the woman suing the contaceptive company or a doctor who recommended the products of the company? If it's the latter, you could argue that the gross negligence of the contraceptive company was a novus actus Mahoney v J Kruschich (Demolitions) Pty Ltd.

One thing though, is the childs condition primarily conditioned by the defendants negligence? I'd argue that the disability and thus the costs of that disability was a subsequent event that is not predominantly conditioned or shaped by the situation created by the first event Haber v Walker. The disability itself may fit the bill of being a novus actus...

Oh, and I don't really rate shang girls. They always have those damned annoying cutesy expressions.

 

[Frigid]

You're going to have a very hard time Frigid. Think of Haber v Walker, a suicide caused by depression from injuries caused by a drivers negligence was involuntary and consequently not a novus actus because the resulting depression (and suicide) was forced upon Haber by the driver's negligence.

In the problem is the woman suing the contaceptive company or a doctor who recommended the products of the company? If it's the latter, you could argue that the gross negligence of the contraceptive company was a novus actus Mahoney v J Kruschich (Demolitions) Pty Ltd.

One thing though, is the childs condition primarily conditioned by the defendants negligence? I'd argue that the disability and thus the costs of that disability was a subsequent event that is not predominantly conditioned or shaped by the situation created by the first event Haber v Walker. The disability itself may fit the bill of being a novus actus...

it's directly between the contraceptive company and the woman. i'm on the contraceptive company's side but i cannot not concede to causation and remoteness due to this HCA ratio. btw, this is a matter of 'wrongful birth', as opposed to 'wrongful life', so it's purely economic loss.

i really dunno abt ur last paragraph. re-explain?

 

[neo o]

it's directly between the contraceptive company and the woman. i'm on the contraceptive company's side but i cannot not concede to causation and remoteness due to this HCA ratio. btw, this is a matter of 'wrongful birth', as opposed to 'wrongful life', so it's purely economic loss.

i really dunno abt ur last paragraph. re-explain?

So you can't defend shang girls eh!

What I mean is that, the disability itself wasn't caused by the contraceptive company - only the birth! If anything, the disability was caused by the woman's dodgy genes!

 

[Frigid]

What I mean is that, the disability itself wasn't caused by the contraceptive company - only the birth! If anything, the disability was caused by the woman's dodgy genes!

wouldn't the egg shell skull rule affect this?

 

[neo o]

wouldn't the egg shell skull rule affect this?

Yeah I just thought of that too, give me a second to get some bread and butter. Thinking food!

 

[neo o]

Ok, work with me here my learned collegue.

Only the initial injury has to be foreseeable and in an application of the “egg shell skull rule” defendant's must take the plaintiff as they find them. Similarly, this should be applied to cases where a foreseeable kind of physical injury gives rise to some new risk or susceptibility in the victim Stephenson v Waite Tileman Ltd.
Furthermore, taking the plaintiff as you find him does not just mean his physical characteristics but also all of his beliefs, reactions, weaknesses and attributes be they physical, social or economic Nader v Urban Transit Authority of New South Wales.

The child isn't the plaintiff. It isn't the birth of the child that is wrongful.

The damage suffered in a case of wrongful birth is not the creation or existence of the parent-child relationship but the costs and obligations incurred as a result of the birth. It is the defendant's negligent conduct that is wrongful, not the birth of the child Cattanach & Anor v Melchior.

Whatever you do, your argument will fall down somewhere i.e.:

If the series of events leading to injury is reasonably foreseeable, the defendant is liable even if the final event is extraordinary Versic v Conners.

 

[stamos]

i'm not having any problems with my moot because i'm clever eh

edit: could be wrong here, but are you just missing the issue? if you've dredged up some conclusive case law then you may be following up the wrong thing

and if the law seems to weigh heavily against you, remember that you're in the HCA (are you?) so you can argue for a development of the law in a new direction

 

[Frigid]

With respect to the claim of ‘wrongful life’, the Respondent respectfully submits:

1. Australian courts have not, to date, recognised a cause of action for wrongful life:

1.1 Such an action would be against the well-established compensatory principle
of torts;

1.2 Such an action fails to show harm or damage as the gist of negligence;

1.3 If such a duty of care was to be imposed, it would be complete departure
from the incremental development of torts;
Harriton v Stephens; Waller v James & Anor; Waller v Hoolahan [2004]
NSWCA 93 (unreported)

1.4 The imposition of such a duty of care calls for a formidable exercise of
legislative power that ought to remain a function of Parliament.


With respect to the claim of ‘wrongful birth’, the Respondent respectfully submits:

2. The Court should distinguish the current case from Cattanach:

2.1 The question decided in Cattanach was: “whether damages for professional
advice… negligently omitted to be given can be awarded to cover the cost of the
healthy product of an unwanted pregnancy” (per Callinan J at para 300).
Cattanach v Melchior [2003] HCA 38 (unreported)

2.2 The issue that arises in this case concerns product liability and the question
of duty of care should be decided in accordance with the category established by
Grant v Australian Knitting Mills [1936] AC 85.

2.3 In the alternative, even if the Court considers creating a novel category
within pure economic loss, a duty of care should not be imposed because:

2.3.1 The level of liability is indeterminate;

2.3.2 The level of liability would be an unreasonable burden on the
defendants;

2.3.3 The appellant was in a reasonable position to take steps to protect
herself.
Perre v Apand (1999) 198 CLR 180

3. If the Court finds a duty of care, the Respondent did not breach this duty because:

3.1 A reasonable manufacturer would have considered the probability of the risk
as too low;

3.2 A reasonable manufacturer would not have been able to take alleviating
action without enormous expense, difficulty and inconvenience in the
manufacturing process;

3.3 A social utility of contraception far outweighs the possibility of conception.
Wyong Shire Council v Shirt (1980) 146 CLR 40
E v Red Cross Society (1991) 31 FCR 299

4. The Respondent concedes that the failure to terminate the pregnancy does not amount
to a novus actus interveniens that severes the causal link.
Cattanach v Melchior [2003] HCA 38 (unreported)

5. The Respondent concedes that the damage suffered is not too remote as it is
reasonably foreseeable.
Cattanach v Melchior [2003] HCA 38 (unreported)

List of References
· Harriton v Stephens; Waller v James & Anor; Waller v Hoolahan [2004]
NSWCA 93 (unreported)
· Cattanach v Melchior [2003] HCA 38 (unreported)
· Grant v Australian Knitting Mills [1936] AC 85
· Perre v Apand (1999) 198 CLR 180
· Wyong Shire Council v Shirt (1980) 146 CLR 40
· E v Red Cross Society (1991) 31 FCR 299

 

[stamos]

why on earth are you posting your mooting shit on the internet

there will be teams that do this topic after you, won't there

 

[Rorix]

He's going hard.


Edit: sup Svobo

 

[neo o]

He's going hard.


Edit: sup Svobo

homo. Peace.

 

[Frigid]

why on earth are you posting your mooting shit on the internet

there will be teams that do this topic after you, won't there

not everybody goes on BoS - the fucking appellants haven't sent me their subs yet =\

 

[AsyLum]

Ctrl + I in photoshop inverts the colours, turning black > white *nods*

 

[Frigid]

i won, because the appellants pulled out last minute

dissatisfied victory #2.

 

[transcendent]

it's called paint.

 

[Demandred]

I remember that it is a voluntary decision in terms of a wrongful birth. I can't remember the case (I will dig it up if anyone asks), but the Judge mentioned that there was always an option for the parent to put their child up for adoption.

Edit - while I am here, quick question on criminal law, is possession of drugs and firearms an indictable offence?

 

[Frigid]

I remember that it is a voluntary decision in terms of a wrongful birth. I can't remember the case (I will dig it up if anyone asks), but the Judge mentioned that there was always an option for the parent to put their child up for adoption.

that was in McFarlane, a UK House of Lords case, but the majority in Cattanach overruled it by virtue of the paragraphs i posted.

 

[Demandred]

When was this case?

 

[Frigid]

Cattanach v Melchior was 2003. another case on the point of 'wrongful birth' was Harriton v Stephens [2004] NSWCA 93