MEMORANDUM OF ARGUMENT AND LIST OF AUTHORITIES

IN THE HIGH COURT OF AUSTRALIA

MOOT 3 of 2011BETWEEN

SERAH ARDGENTAppellant

and

JOANNA ARDGENTRespondent

APPELLANT’S OUTLINE OF SUBMISSIONS

Speaking Time: Senior Counsel – 10 minutes, Junior Counsel – 10 minutes

(A)SUMMARY OF THE FACTS

1. The Respondent was undertaking a strict dietary program.2. The Respondent became pregnant with the Appellant whilst undertaking this program.3. The Respondent continued with the program upon discovery of pregnancy.4. The Respondent’s Medical Practitioner did not raise any concerns about the pregnancy

and the dietary program.5. Upon birth, the Appellant suffered from facial deformities, spastic quadriplegia and

encephalocele.6. These conditions were most likely caused by the lack of folic acid in the Respondent’s

diet.7. The Appellant commenced proceedings in the Supreme Court of Queensland where the

trial judge found in favour of the Appellant.8. This decision was reversed by the Queensland Court of Appeal.

(B) APPELLANT’S SUBMISSIONS

1. Mrs Joanna Ardgent owed a duty of care to Miss Serah Ardgent not to cause harm during pregnancy.

2. Mrs Joanna Ardgent breached this duty owed to Miss Serah Ardgent.3. The disabilities suffered by Miss Serah Ardgent are a form of harm.

THE ABOVE SUBMISSIONS ARE SUPPORTED AS FOLLOWS:

Submission One1. Negligence should be extended to encompass a duty of care in respect of the nourishment

of unborn children.

1.1 Expansion of a duty of care in negligence is incremental and based on reasonable foreseeability however no unifying test exists.

Donoghue v Stevenson [1932] UKHL 100,

Neindorf v Junkovic [2005] HCA 75,

Sullivan v Moody [2001] HCA 59,

Civil Liability Act 2003 (Qld)

1.2 An incremental application of the current approach to the recognition of a new category of duty of care in negligence should recognize the liability of a mother in respect of harm caused to a foetus.

Lynch v Lynch (1991) 25 NSWLR 411,

Hahn v Conley [1971] HCA 56,

Bowditch v McEwan [2003] 2 Qd R 615,

St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185,

Hogan v Gill [1992] Aust Tort Reports 61

1.3 Policy considerations such as a child’s right to life support the recognition of such a duty of care.

Universal Declaration of Human Rights (1948),

Convention on the rights of the child (1990),

Mabo v Queensland (No 2) (1992) 175 CLR 1

1.4 In the alternative, as a matter of policy mothers should owe a universal duty of care in respect of their unborn children.

Universal Declaration of Human Rights (1948),

Convention on the rights of the child (1990)

Submission Two2. Mrs Joanna Ardgent breached this duty owed to Miss Serah Ardgent.

2.1 Mrs Joanna Ardgent breached the duty of care owed to Miss Serah Ardgent as the risk was reasonably foreseeable, not insignificant, and a reasonable person would have taken precautions to prevent against such a risk of harm.

Civil Liability Act 2003 (Qld).

Wyong Shire Council v Shirt (1980) 146 CLR 40.

Submission Three

3. The disabilities suffered by Miss Serah Ardgent are a form of harm.

3.1 The disabilities suffered by Miss Serah Ardgent are consistent with the definition of harm suffered under the law of negligence.

Harriton v Stephens (2006) 226 CLR 52.

Cattanach v Melchior (2003) 215 CLR 1.

On the basis of the above submissions, counsel for the Appellant respectfully requests an Order of the Court allowing the appeal.

DATED this 29 TH day of May 2011

Theo Denovan and Isuru DevendraCounsel for the Appellant

IN THE HIGH COURT OF AUSTRALIA

MOOT 3 of 2011BETWEEN

SERAH ARDGENT Appellant

and

JOANNA ARDGENT Respondent

APPELLANT’S LIST OF AUTHORITIES

1. Donoghue v Stevenson [1932] UKHL 100

2. Neindorf v Junkovic [2005] HCA 75

3. Sullivan v Moody [2001] HCA 59

4. Civil Liability Act 2003 (Qld)

5. Mabo v Queensland (No 2) (1992) 175 CLR 1

6. Lynch v Lynch (1991) 25 NSWLR 411

7. Hahn v Conley [1971] HCA 56

8. Bowditch v McEwan [2003] 2 Qd R 615

9. Universal Declaration of Human Rights (1948)

10. Convention on the rights of the child (1990)

11.Harriton v Stephens (2006) 226 CLR 52

12.Cattanach v Melchior (2003) 215 CLR 1

13.Wyong Shire Council v Shirt (1980) 146 CLR 40

14. St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185

15. Hogan v Gill [1992] Aust Tort Reports 61

Submitted on behalf of Counsel for the Appellant.

DATED this 29 th day of May 2011

Theo Denovan and Isuru DevendraCounsel for the Appellant