Even if we discount the conflicting duty analysis, how do the Australian courts deal with the concern that at the time of injury the child/fetus is not a bearer of rights and as such cannot be owed a duty--a point that underlines much of the Ont CA's reasoning?
Cheers,
----- Original Message -----
From: Bill Madden <bill_madden@optusnet.com.au>
Date: Tuesday, January 13, 2009 4:39 pm
Subject: Re: ODG: Duties to the unborn
To: Jason Neyers <jneyers@uwo.ca>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
> 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,
> >
>