Swincer v Robertson

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.