Date: Tue, 22 Nov 2005 15:00:46

From: Ken Oliphant

Subject: SCC comments re legislation in Dobson

I've recently written on this issue for a forthcoming volume on Children in Tort Law. It focuses on the English common law position (or non-position), but has a brief look at other common law jurisdictions. For those who are interested, here's the relevant passage:

Whether the mother has any immunity at common law, however, is uncertain. The matter has not yet fallen for decision by an English court, and it now appears unlikely that it ever will (because the common law only applies to births before the passage of the 1976 Act), though it was suggested in the leading case that it was for Parliament, not the courts, to provide for such immunity if it should be deemed necessary [Burton v Islington Health Authority [1993] QB 204, 232 per Dillon LJ.]. This conforms with the position previously adopted in Australia [Watt v Rama [1972] Victorian Reports (VR) 353 (Supreme Court of Victoria); Lynch v Lynch (1991) 25 New South Wales Law Reports (NSWLR) 411 (New South Wales Court of Appeal).], but the Supreme Court of Canada has recently affirmed the contrary, primarily because it viewed the imposition of a duty of care as an undue interference with the pregnant woman's privacy and autonomy that could have a devastating effect on the family unit [Dobson v Dobson [1999] 2 SCR 753].

In the United States, some states recognise the immunity [Stallman v Youngquist (1988) 531 North Eastern Reporter, Second Series (NE 2d) 355 (Supreme Court of Illinois); Chenault v Huie (1999) 989 South Western Reporter, Second Series (SW 2d) 474 (Texas Court of Appeals); Remy v MacDonald (2004) 801 NE 2d 260 (Supreme Judicial Court of Massachusetts)] while others do not [Grodin v Grodin (1980) North Western Reporter, Second Series (NW 2d) 869 (Court of Appeals of Michigan) (mother's drug use in pregnancy); Bonte v Bonte (1992) 616 A 2d 464 (Supreme Court of New Hampshire) (mother's lack of care in crossing street)], and an intermediate position has also emerged whereby the mother can be held liable for negligence in her use of a motor vehicle, but only up to the limit of her liability insurance [National Casualty Co v Northern Trust Bank (2002) 807 Southern Reporter, Second Series (So 2d) 86 (District Court of Appeal of Florida).].

Ken Oliphant, Cardiff Law School, Law Building, Museum Avenue, Cardiff CF10 3XJ

Tel: 029 2087 5365. Web page: http://www.cf.ac.uk/claws/staff/oliphant.html

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