Dear Jason et al;
I should go and read the case in detail first, but is this on its own a reason not to find a duty? I have a vague idea we may have discussed this before on this list, but is there really something incoherent about saying that I owe a duty of care to someone whom I can reasonably foresee will later be harmed by the direct consequences of what I do now, even if the harm doesn't occur for a while? Take the builder of a house. In Australia at least he or she owes a duty of care not to so build it that it will cause foreseeable physical injury to later users of the premises- see Voli v Inglewood Shire Council (1963) 110 CLR 74. If weak floorboards collapsed two years after construction injuring a newly-born child in an upper room it does not seem to me to be a good answer to say that the child had not been conceived at the time of the negligent construction. Nor would it seem to be a good defence in an action like Grant v Australian Knitting Mills Ltd [1936] AC 85 to say that chemical contamination in a batch of cloth nappies had occurred before a child who was harmed had been born.
In X v Pal (1991) 23 NSWLR 26 a medical practitioner whose negligence pre-dated a child's conception was held to owe a duty of care to a child subsequently born with disabilities. (See the latest edition of Luntz & Hambly et al para [7.2.10]). One way of justifying the decision theoretically is to note the traditional view that the "gist" of negligence is damage, and that until damage is complete there is no action, and hence the issue of duty of care only needs to be addressed at that stage- see LH6 [5.1.1].
Now having had a quick browse through the decision in Paxton I wonder whether or not the court got itself confused by referring too quickly to the "wrongful life" cases, which are not really analogous. I notice in a footnote that Watt v Rama [1972] VR 353 is referred to, which holds that a child who is injured in the womb can recover if later born alive. I would have thought that the later X decision in NSW in 1991 is only a logical extension of that to a child not yet conceived, and that Bill is right to say that any "balancing" of dangers to the mother etc can be dealt with as a matter of breach, rather than by cutting off the issue at the duty stage.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Jason Neyers <jneyers@uwo.ca> 14/01/09 12:44 >>>
Bill:
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 childs 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,
> >
>
--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435