A grandparent or family member who takes physical custody and control of an infant may owe a duty of care to the infant, arising not from the familial relationship but from the circumstances of undertaking responsibility for the child's safety. However, the social utility of gratuitous domestic care under s 5B(2)(d) of the Civil Liability Act 2002 (NSW) is a factor of particular importance in assessing breach, and a family carer who takes sensible precautions in a difficult domestic situation will not be found negligent merely because, in retrospect, different precautions might have avoided the accident. The duty of care question in the domestic family setting remains unresolved, with the three judges reaching different conclusions.
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