grant of special leave arises out of the question of the
parents' liability for an injury to a child. The facts
which bring the matter before the Court are set out in
paragraph 3 of the affidavit in support of the
application, page 66.

MASON CJ: Yes.

MR McCARTHY:

And the findings of the learned trial judge, if I

can take the Court to them at page 20, line 23:
There is no doubt, as Mr. McCarthy pointed
out, that Mr. and Mrs. Robertson had assumed
complete control over Anthony whilst they
were at the home of their friends -

and further, at pages 22 and 23 of the application book,
where His Honour, after having found that the test of
reasonable foreseeability was the critical issue in
the trial, about line 28, 30, then made these findings
at the top of page 23:
But that is not the end of the matter; was it
reasonably foreseeable that Anthony would
leave the front garden and go out onto the
footpath, leave his little friends on the
footpath and cross Hardys Road, and having
crossed the road, turn around and attempt to
return? They are the findings of fact that

I have made - were all those facts reasonably

foreseeable? I think not.
Now, the problem has arisen, if the Court pleases,

because there was no discussion in the reasons of the
learned trial judge as to whether there was, in the
circumstances, the requisite degree of proximity between
parent and child required for determining if this type
of case was in the category of cases in which the
common law of negligence recognizes the existence of
a duty to take care, to avoid reasonably foreseeable
harm or real risk of injury to another. And that was
so because of the position taken by the respondents,
as outlined at page 20 in the learned trial judge's
reasons. His Honour said, at line 10:

MlTl0/2/RB	2	17/11/89
Swincer

Fortunately, the difficulties inherent in
any discussion of extended liability have been
avoided in this case. Mr. McCarthy Q.C. was
content to argue that the facts and circumstances
immediately preceding the accident disclosed
that Mr. and Mrs.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Swincer v Robertson

Details

AGLC: Swincer v Robertson [1989] HCATrans 278
Case: [1989] HCATrans 278
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicants, Mr and Mrs Robertson, sought leave to appeal against a decision of the Full Court concerning their liability for an injury sustained by their infant son, Anthony. The core of the dispute revolved around whether the parents owed a duty of care to their child in the circumstances preceding the accident.

The legal issues before the High Court included whether the Full Court erred in finding that there was no duty of care owed by the parents to their infant son at the stage of the events immediately preceding the accident. Specifically, the question arose as to whether the common law of negligence recognizes a duty for parents to take care to avoid reasonably foreseeable harm to their child, and if so, whether such a duty existed in this particular case. The parties had, at trial, accepted the existence of a duty of care, focusing instead on whether that duty had been breached.

The High Court was informed that the trial judge had found that while the parents had assumed complete control over their child, it was not reasonably foreseeable that the child would leave the front garden, go onto the footpath, leave his friends, cross the road, and then attempt to return. The problem arose because the trial judge's reasons did not discuss the requisite degree of proximity between parent and child for establishing a duty of care in negligence. The Full Court, however, had determined that the issue was not one of reasonable care, but rather that no duty of care existed upon the parents in the circumstances at that stage, distinguishing between a positive duty and a negative duty on policy grounds.

Orders