Date: Tue, 22 Nov 2005 10:43:56 -0400

From: Jennifer Kate Bankier

Subject: SCC comments re legislation in Dobson

For everyone's convenience, here are excerpts from the majority SCC decision in Dobson discussing both the British legislation and the potential for legislation in Canada:

Dobson SCC majority comments:

(b) Position in the United Kingdom

A similar concern with the privacy and autonomy rights of women led the Parliament of the United Kingdom to fashion a rule of maternal tort immunity for prenatal negligence, with a limited exception for negligent driving. This legislative solution is set out in the Congenital Disabilities (Civil Liability) Act 1976 (U.K.), s. 1(1), and will be discussed in greater detail below. ...

Although the law of torts has traditionally been the province of the courts, to impose tort liability on mothers for prenatal negligence would have consequences which are impossible for the courts to assess adequately. This development would involve extensive intrusions and frequently unpredictable effects on the rights of bodily integrity, privacy and autonomous decision-making of pregnant women. The resolution of such fundamental policy issues is a matter best left to the legislature. In the United Kingdom, it was Parliament that provided a carefully tailored and minimally intrusive legislative scheme of motor vehicle insurance coverage. It was designed to provide a measure of compensation for a child who sustains prenatal injuries as a result of the negligent driving of his or her mother. Yet, it provides protection for mothers by prohibiting claims against them beyond the limits of their insurance policies. ...

(c) Motor Vehicle Exception

In articulating a distinction between lifestyle choices and the general duty to drive carefully, the Court of Appeal relied on the Congenital Disabilities (Civil Liability) Act 1976.

However, it must be remembered that, under this statute, the Parliament of the United Kingdom exempted mothers from tort liability for injuries caused to their children while in utero, with the exception of injuries sustained as a result of motor vehicle accidents. With respect, the U.K. legislative solution to the issue at bar cannot be interpreted as support for the test suggested by the Court of Appeal. To do so presumes that it is appropriate for courts to resolve an extremely sensitive and complex issue of public policy and insurance law. The Court of Appeal failed to appreciate the significance of the fact that maternal liability for motor vehicle negligence is provided for in the United Kingdom in legislation rather than the common law.

Thus, it must be emphasized that the general rule for mothers in the United Kingdom is one of immunity for prenatal negligence with the limited exception of injuries caused by negligent driving. The Act provides that a mother cannot be held liable for any amount of damages which exceeds the limit fixed by statute. This will benefit both the mother and the rest of the family. The legislation renders it impossible to argue by analogy that the duty of care should be extended to other tortious situations. ...

Moreover, it is noteworthy that the U.K. regime is a direct result of the compulsory liability insurance mandated for motor vehicle negligence. See Law Com. No. 60, "Report on Injuries to Unborn Children", supra, at paras. 59-60. ...

The legislative record in the United Kingdom clearly demonstrates that the motor vehicle exception to maternal tort immunity for prenatal negligence was designed as a measure to decrease the anxiety of women who continue to drive during their pregnancies. It does so by providing recourse to insurance if there is a motor vehicle accident. The distinction in the Act between driving negligence and all other types of negligence stems from pragmatic and logistical considerations. It reduces the driving-associated worries of pregnant women with the mandatory requirement of motor vehicle insurance. These are precisely the types of "common-sense" criteria that legislators may consider in the course of their studies. Courts, if they are going to create exceptions or distinctions, must do so in a more legally principled manner. As a matter of tort law, a motor vehicle exception to maternal immunity for prenatal negligence is "legally weak and untidy": B. Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (1992), at p. 98. However, it may well be appropriate for a legislative body to create such an exception.

It may well be that a legislative exception to maternal tort immunity can be created for damages, caused to a child upon birth, as a result of the negligent driving of a pregnant woman. For example, the statute might specify that this constituted an exception to the general rule of tort immunity, fix the limits of liability, and prohibit the recovery of damages above the limit fixed in the insurance policy.

Legislation of this type could be socially rewarding for it could benefit the injured child, the mother and the rest of the family. Yet, if it were carefully drafted, such legislation would not constitute an undue intrusion into the privacy and autonomy rights of pregnant women in Canada. ...

VI. Summary

... The public policy concerns raised in this case are of such a nature and magnitude that they clearly indicate that a legal duty of care cannot, and should not, be imposed by the courts upon a pregnant woman towards her foetus or subsequently born child. However, unlike the courts, the legislature may, as did the Parliament of the United Kingdom, enact legislation in this field, subject to the limits imposed by the Canadian Charter of Rights and Freedoms. ...

<<<< Previous Message  ~  Index  ~  Next Message >>>>>