Dear Jason & others,

Similar issues have been looked at in Australia. In /Kosky v Trustees of

the Sisters of Charity /[1982] VR 961, an Rh-negative woman who suffered

injuries in a car accident was negligently given Rh-positive blood. Some

eight years later she fell pregnant and gave birth to a child who

suffered complications flowing from the child’s Rh iso-immunisation. In

proceedings subsequently commenced by the child, the hospital asserted

no duty had been owed to him because the incompatible blood transfusion

had occurred eight years before his conception. Tadgell J expressed the

view (at 969) that a duty was owed to the child.

Australian courts are no longer fond of the proximity analysis used in

/Paxton v Ramji/, but leaving that aside I wonder if I am the only one

to have some unhappiness with the assertion at [66]: '/The prospect of

conflicting duties is similarly present here. If a doctor owes a duty of

care to a future child of a female patient, the doctor could be put in

an impossible conflict of interest between the best interests of the

future child and the best interests of the patient in deciding whether

to prescribe a teratogenic drug or to give the patient the opportunity

to choose to take such a drug/.'

The simple assertion of an 'impossible conflict of interest' may be

taking things one step too far - perhaps there was scope here for an

analysis under 'breach' rather than whether there was a duty at all.

Perhaps to that extent, the outcome here may be distinguishable in a

factual scenario where there is no 'impossible conflict of interest',

such as in Kosky above?

There is a thread in some recent Australian decisions recently, whereby

some judges appear to prefer an analysis based on duty (or content of

duty) whereas others prefer breach. But perhaps that is an entirely

different topic.

Regards

Bill Madden

Jason Neyers wrote:

> Dear Colleagues:

>

> Some of you might be interested in the Ontario Court of Appeal's

> decision in Paxton v. Ramji, 2008 ONCA 697

> (http://www.ontariocourts.on.ca/decisions/2008/october/2008ONCA0697.htm).

> In that case the court decided that doctors do not owe a duty of care

> to a future child of a female patient when prescribing drugs that are

> known to cause fetal malformation since to do so would undermine the

> doctor's duty to the mother and undermine the principle that legal

> personality is ascribed at birth.

>

> Sincerely,

>