Date: Tue, 4 May 2004 00:33:11 +1000

From: Harold Luntz

Subject: Two NSW CA decisions on duty of care

Members may find of interest two recent decisions of the New South Wales Court of Appeal on the duty of care in negligence. In Harriton (by Her Tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan [2004] NSWCA 93 (29 April 2004), by majority, the court denied claims for 'wrongful life' or, as the appellants preferred to call them, claims for 'wrongful suffering'. The two members of the majority were not uniform in their reasons for denying the claims. See http://www.austlii.edu.au/au/ cases/nsw/NSWCA/2004/93.html

A few weeks earlier, in State of New South Wales v Godfrey [2004] NSWCA 113 (7 April 2004), in a single judgment delivered by Spigelman CJ, the court held that a prison authority did not owe a duty of care to a woman terrorised by an escaped prisoner during a hold-up more than two months after the escape. Clearly this decision is likely to be less controversial. The surprise was that the judge at first instance had upheld the claim: see Godfrey v New South Wales [No 2] [2003] NSWSC 275; (2003) Aust Torts Reps 81-700, The appeal court's judgment is found at http://www.austlii.edu.au/au/ cases/nsw/NSWCA/2004/113.html

Harold Luntz.

Professorial Fellow,
Law School,
The University of Melbourne,
Victoria, 3010,
AUSTRALIA.

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