Tag Archives: GOOD LAWYERS

Children – Intellectual disability – Sterilisation – Family Law

Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992).

“Children – Intellectual disability – Sterilization – Power of parents to consent – Assault – Parens patriae jurisdiction of court – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188.

Family Law (Cth) – Family Court – Jurisdiction – Welfare – Parens patriae – Intellectually disabled child – Sterilization – Power of Court to authorize operation – Effect of authorization on criminal law – Family Law Act 1975 (Cth), ss. 63, 64, 64E – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.”

The court held that the parents of a 14 year old mentally retarded girl from the Northern Territory could not lawfully authorize a sterilization procedure on their child without an order of a court.

The court held that the Family Court of Australia has the jurisdiction  to authorize the carrying out of a sterilization procedure but could not approve consent being given to the parents unless the court authorizes the procedure.

Whilst parents or guardians may authorize or consent to the carrying out of a therapeutic treatment of their child, they have no such power regarding non-therapeutic treatment.

Sterilization of an intellectuallly disabled minor falls outside of the ordinary scope of parenal powers if the procedure is not obviously necessary.

Children have the right to personal integrity under domestic and international law. Procedures, such as sterilization, are “invasive, irreversible and major surgery”. It is up to the court, not the parents or guardians, to decide the appropriate circumstances that are in the best interests of the child.

http://www.austlii.edu.au/au/cases/cth/HCA/1992/15.html

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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962″

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Tabet v Gett [2010] HCA 12 | 21 April 2010

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.

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Sydney, Australia

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Nagle v Rottnest Island Authority [1993] HCA 76 | 21 April 1993

ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).

Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock.  It was known to Rottnest that visitors engaged in this activity.

Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.

The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”

The accident was cased by a failure on the part of Rottnest to erect a sign.

The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.

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Sydney, Australia

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Harris v Caladine [1991] HCA 9 | 17 April 1991

ON THIS DAY in 1991, the High Court of Australia delivered Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991).

Parts of the Family Law Act 1975 (Cth) allowing Judges of the court to make rules delegating judicial powers to registrars and non-judical officers were held to be valid and not in breach of the doctrine of separation of powers found in s71 and Chapters II and III of the Australian Constitution.

Family Court Judges may make rules and delegate their powers as long as they continue to bear the major responsibility for the exercise of judicial power.  The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions must be subject to review or appeal by a Judge.

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Sydney, Australia

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Statute of Frauds 1677 | 16 April 1677

ON THIS DAY in 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.

 

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Sydney, Australia

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Inc Pty Ltd v Commonwealth (“Fraser Island case”) [1976] HCA 20 | 14 April 1976

ON THIS DAY in 1976, the High Court of Australia delivered Murphyores Inc Pty Ltd v Commonwealth (“Fraser Island case”) [1976] HCA 20; (1976) 136 CLR 1 (14 April 1976).

The court held that the Commonwealth could validly legislate over the environment through its trade and commerce powers under the Constitution.  As a result, sand mining licensed by the Queensland Government was prohibited on the Fraser Island – the largest sand island in the world.

Fraser Island later became part of the Register of the National Estate, National Heritage List and the World Heritage List.

http://www.austlii.edu.au/au/cases/cth/HCA/1976/20.html

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Sydney, Australia

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