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Published online by Cambridge University Press: 29 February 2024
1. See S v. Distillers Co. (Biochemicals) Ltd [1969] 3 All England Law Reports; Distillers Co. (Biochemicals) Ltd. v. Thompson [1971] Appeal Cases 458.
2. Dietrich v. Northampton (1884) 138 Massachusetts Reports 14, at page 16.
3. See Bonbrest v. Kotz (1946) 65 Federal Supplement Reports 138 (D.C.)
4. [1972] Victorian Reports 353.
5. White v Yup (1960) 458 Pacific Reports (2nd) 617
6. This means that if a man is killed in a road accident, and his wife is pregnant, the posthumously born child is entitled to a share in his late father’s property as if he had been born before his father’s death. It is, of course, an entirely just rule.
7. See Villar v. Gilbey [1907] Appeal Cases 133, at page 144. The rule against perpetuities is a device which renders a gift void if it may vest in the very distant future. Its purpose is to prevent property being tied up. Incidentally, the practice of freezing embryos, which may then be implanted into women after the death of the donor of the sperm, may give rise to great problems with respect to this rule. For, of course, a child may be born years after the death of the donor. See C. Sappideen, Life After Death – Sperm Banks, Wills and Perpetuities, (1979) 53 Australian Law Journal 311.
8. Congenital Disabilities (Civil Liability) Act 1976 (Eng.) There is great need for some similar legislation in Victoria.
9. Law Commission Report No. 60: Injuries to Unborn Children (1974). This fascinating report was instrumental in persuading the English Parliament to pass the legislation referred to in Note 8, although the legislation differs in several ways from the report’s recommendations.
10. [1964] Appeal Cases 465. The principle in this most important House of Lords case, that it is possible to bring an action for a negligent misstatement, regardless of whether there is a contractual relationship between the giver and receiver of the advice, has been recently approved by the High Court of Australia: Shaddock v. Paramatta City Council (1981) 55 Australian Law Journal Reports 713
It has important consequences for psychiatrists, psychologists, doctors, social workers and others who give gratuitous advice or information.
11. (1979] 3 Weekly Law Reports 605 (England). In this case, a solicitor who gave wrong advice to a witness to a will, was held liable to a beneficiary of the will, who was named in the will, but could not take his share because his wife had witnessed it. The beneficiary was not the solicitor’s client, and so there was no contractual relationship. It was a case in tort, not contract.
12. Crimes Act 1958, Section 65.
13. Regina v Davidson [1969] Victorian Reports 667. (This is sometimes known as the “Menhennitt” ruling, after the judge who delivered the judgement of the court).
14. C.R. Williams, Abortion, in Law and the Citizen, Lectures at the Faculty of Law, Monash University, 1977, at page 5/4. (A few copies of this series are still available from the author of this article).
15. The law says, in effect, that a reasonable man should foresee that there are, statistically, a relatively large number of both handicapped and pregnant people in the community. Accordingly, a person who leaves a dangerous object on the pavement may be liable to a blind man who runs into it, even though the object would not have constituted a danger to a person with sight. See Haley v. London Electricity Board [1965] Appeal Cases 778.
16. Family Law Act 1975, section 119.
17. Law Reform (Husband and Wife) Act 1962, section 1 (2)
18. See above, note 1.
19. See note 9, above.
20. Congenital Disabilities Act 1976, Section 2.
21. (1948) 77 Commonwealth Law Reports 39. In this case, a passenger accepted a lift in a car, when he knew that the driver was drunk. He was unable to recover damages, for he, in effect, had consented to the risk of injury.
22. “There can be no claim by a person who consents to injury”.
23. Contributory negligence does not completely bar a claim. It reduces the damages. Accordingly, in a motor-car case, the plaintiff may be found, say, 40% to blame. He would accordingly be awarded only 60% of the damages.
24. The law of torts generally provides that owners of houses owe to their visitors different duties, depending on the capacity of the visitor. The highest duty is owed to an invitee, the lowest to a trespasser. For a full explanation, see J.G. Fleming, the Law of Torts, Chapter 21 (Law Book Company, Sydney, 5th edition, 1977).
25. “A new, intervening act” which breaks the chain of causation. Thus the original wrong-doer in not responsible for the ultimate damage.
26. Grant v. Australian Knitting Mills [1936] Appeal Cases 85.
27. I.e. a period in which claims must be brought. After this period (which varies according to the type of claim), the claim lapses.
28. See Anns v. Merton London Borough Council [1978] Appeal Cases 728.
29. Congenital Disabilities Act 1976. And see Nuclear Installations Act 1965.
30. (1921) 58 Dominion Law Reports 251.
31. Roberts v. Roberts [1971] Victoria Reports 160. Interestingly, the child in that case was called, “Miranda”, the name of Shakespeare’s heroine who first coined the term, “Brave New World”.
32. This is the view of Marilyn Mayo (Legitimacy for the A.I.D. child, 7 family Law 19 (1977). See also M. Mayo, The Legal Status of the A.I.D. child in Australia, 50 Australian Law Journal 562 (1976).
33. Doodeward v. Spence (1908) 6 Commonwealth Law Reports 406.
34. Roe v. Wade (1973) 410 United States Reports 113.
35. C.M. v. C.C. (1977) 377 Atlantic Reporter (2nd) 82 (New Jersey).
36. See, e.g. C. Picton, Persons in Question: Adoptees in search of Origins (1980).
37. This is required by Status of Children Act 1974, section 7, before ex-nuptial children can inherit from their fathers.
38. Roberts v. Roberts, supra. It has recently been proposed that they be so regarded (Family Law Amendment Bill 1981, section 5), but there is no certainty that this Bill will pass.
39. (1971) 281 Atlantic Reporter (2nd) 616.
40. (1967) 227 Atlantic Reporter 689 (New Jersey)
41. Custodio v. Bauer (1967) 251 California Appeals (2nd) 303. This, and several other cases on “wrongful life” are discussed in M.J. Mullen, Wrongful Life: Birth Control Spawns a Tort, 13 John Marshall Law Review 401 (1980).
42. The American decisions are considered in a most valuable book, B.M. Dickins, Medico-Legal Aspects of Family Law (Butterworths, Canada, 1979). And see W. Walters and P. Singer eds.. Test Tube Babies (Oxford University Press, Melbourne, 1982).
43. Zepeda v. Zepeda, 190 North Eastern Reporter (2nd) 849 (1963) (Illinois).
44. See J. Goldstein, A. Freud and A. Solnit Beyond the Best Interests of a Child (Free Press Paperback, New York,
45. Ibid., page 17
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