MEMORANDUM OF ARGUMENT AND LIST OF AUTHORITIES IN THE HIGH COURT OF AUSTRALIA MOOT 3 of 2011 BETWEEN SERAH ARDGENT Appellant

and JOANNA ARDGENT Respondent

APPELLANTS OUTLINE OF SUBMISSIONS Speaking Time: Senior Counsel 10 minutes, Junior Counsel 10 minutes (A) SUMMARY OF THE FACTS 1. 2. 3. 4. 5. 6. 7. 8. The Respondent was undertaking a strict dietary program. The Respondent became pregnant with the Appellant whilst undertaking this program. The Respondent continued with the program upon discovery of pregnancy. The Respondents Medical Practitioner did not raise any concerns about the pregnancy and the dietary program. Upon birth, the Appellant suffered from facial deformities, spastic quadriplegia and encephalocele. These conditions were most likely caused by the lack of folic acid in the Respondents diet. The Appellant commenced proceedings in the Supreme Court of Queensland where the trial judge found in favour of the Appellant. This decision was reversed by the Queensland Court of Appeal.

(B) APPELLANTS SUBMISSIONS 1. Mrs Joanna Ardgentowed a duty of care to Miss SerahArdgent not to cause harm during pregnancy. 2. Mrs Joanna Ardgent breached this duty owed to Miss SerahArdgent. 3. The disabilities suffered by Miss SerahArdgent are a form of harm.

THE ABOVE SUBMISSIONS ARE SUPPORTED AS FOLLOWS: Submission One 1. 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 Marks Orthodox Coptic College v Abraham [2007] NSWCA 185, Hogan v Gill [1992] Aust Tort Reports 61 1.3 Policy considerations such as a childs 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 Two 2. Mrs Joanna Ardgent breached this duty owed to Miss SerahArdgent. 2.1 Mrs Joanna Ardgent breached the duty of care owed to Miss SerahArdgent 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 SerahArdgent are a form of harm. 3.1 The disabilities suffered by Miss SerahArdgent 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 Appellantrespectfully requests an Order of the Court allowing the appeal. DATED this 29TH day of May 2011 Theo Denovan and Isuru Devendra Counsel for the Appellant

IN THE HIGH COURT OF AUSTRALIA MOOT 3 of 2011 BETWEEN SERAH ARDGENT and JOANNA ARDGENT Respondent Appellant

APPELLANTS 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 Marks 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. DATEDthis 29th day of May 2011 Theo Denovanand Isuru Devendra Counsel for the Appellant