Dear Jason, Neil & others,

Jason asked, "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?"

The analysis here in Australia starts with /Watts v Rama/ as Neil has

mentioned. In /Watt v Rama/ [1972] VR 353 the plaintiff suffered injury

before birth, when his mother was seriously injured in a motor vehicle

accident. The contention in that case, that the infant did not have a

cause of action because the defendant owed no duty of care to an unborn

child was rejected. It was held unanimously that the defendant did owe a

duty of care not to cause injury to the child then unborn although

damage for the purpose of tortious negligence and the cause of

action in tort for a minor crystallised when he was born.

Unfortunately the case predates our free access online database

www.austlii.edu.au but it is on Lexis Nexis. Copying from there:

    WINNEKE(1), CJ PAPE(1) and GILLARD(2), JJ

    17-19 November, 14 December 1971

    Tort — Negligence — Duty of care — Plaintiff en ventre sa mere at

    time of negligent conduct — Claim for injuries at and after birth

    caused by such conduct — Whether duty of care owed to plaintiff not

    to injure plaintiff while en ventre sa mere — "Person" — Remoteness

    of damage.

    A plaintiff who at and after birth suffers injuries caused by the

    neglect of the defendant in driving his motor vehicle, such neglect

    preceding the birth of the plaintiff in point of time, has a cause

    of action in negligence against the defendant in respect of those

    injuries -

    Per Winneke, CJ, and Pape, J: because at the time of the collision,

    it being reasonably foreseeable that the neglect of the defendant

    might cause injury to a pregnant woman in the car with which his car

    collided and might cause the child she was carrying to be born in an

    injured condition, there arose between the plaintiff and the

    defendant a potential relationship which upon the birth of the

    plaintiff as a living person crystallized so as to impose on the

    defendant a duty to take care not by his act or neglect to injure

    the plaintiff;

    Per Gillard, J: because, on the assumed facts, the plaintiff was a

    member of a class which was likely to be injured as a consequence of

    the defendant's act of carelessness, and the defendant as a

    reasonable man should reasonably have anticipated at the material

    time that the then unborn plaintiff would be within the area of

    potential danger and might suffer the injuries complained of.

    Per curiam: the damage to the foetus is merely an evidentiary fact

    relevant to the issue of causation of injuries at and after the

    birth of the plaintiff.

    Per Gillard, J: semble, if it be necessary for the plaintiff to

    establish an existence as a person in law in order for a duty of

    care to be owed to the plaintiff at the time of the careless act,

    the unborn plaintiff would be deemed to be a person in being at the

    time of that act and entitled on birth to recover compensation for

    damage caused whilst en ventre sa mere by a breach of duty by the

    defendant.

Understandably the case gained attention over time and so has been

considered widely within Australia but more importantly for your

interest seems to have been applied in /Burton v Islington Health

Authority/ [1992] 3 All ER 833. You can locate that online at Bailii

under /Burton v Islington Health Authority/ [1992] EWCA Civ 2 (18 March

1992). The judgment is a bit confusing but it does refer to /Watt v

Rama/ and to the then existing Canadian cases.

Neil has referred to one of the later decisions apart from /Kosky/,

being /X v Pal/. There was also /Lynch v Lynch/ (1991) 25 NSWLR 411,

where a child was held entitled to claim for injuries suffered in the

course of a car accident while in utero. See also /Hughes v Sydney Day

Nursery/ [2000] NSWSC 462, where the duty was conceded (at [23]) but the

plaintiff’s claim failed by reason of causation issues. The first

plaintiff was a child care worker employed by the defendant at the time

of becoming pregnant. Three months after his birth the second plaintiff

was diagnosed as suffering from CMV infection "acquired

transplacentally" and became seriously disabled. It was the plaintiffs'

case, disputed by the defendant, that the first plaintiff acquired

primary CMV infection during her pregnancy as a consequence of the

defendant's negligence and that this infection was passed on to the

second plaintiff /in utero/.

The fact scenario suggested by Neil regarding collapse of a house is not

dissimilar to /Hawkins v Clayton/ [1988] HCA 15 at para 25 per Deane

J:‘The duty of care is owed to each member of the class. If, by reason

of the negligence of architect or builder, the building subsequently

collapsed and a particular baby was injured, that baby would have a

cause of action for the damage sustained by reason of the breach of the

duty of care which may have been owed to him, and broken, by a person

who has died before he was born’. The entire passage read:

    25. The identity and relative importance of the factors which are

    determinative of the existence of a relevant relationship of

    proximity vary in different categories of case (see, e.g., Jaensch

    v. Coffey, at p 585; Heyman, at pp 497-498). It is so with respect

    to the factor of physical nearness, in the sense of space and time.

    In the case of an activity which involves a foreseeable risk of

    causing direct physical injury to those nearby, physical nearness

    will ordinarily suffice to create a relevant relationship of

    proximity (see per Lord Esher M.R., Le Lievre v. Gould (1893) 1 QB

    491, at p 497). On the other hand, it is not necessary for the

    existence of a relationship of proximity in some other categories of

    case for there to have been any physical proximity between the

    parties concerned. Indeed, a relationship of proximity can exist

    with, and a duty of care can be owed to, a class of persons which

    includes members who are not yet born or who are identified by some

    future characteristic or capacity which they do not yet have. Cases

    involving damage by reason of a latent defect in property

    demonstrate the point. Thus, a relationship of proximity ordinarily

    exists between the architect or builder of a residential building

    (e.g. a maternity hospital) and the members of the class of persons

    who will in future years be born or housed in it. That relationship

    of proximity is such as to give rise to a duty of care to avoid a

    real risk of injury by reason of faulty design of the building. The

    duty of care is owed to each member of the class. If, by reason of

    the negligence of architect or builder, the building subsequently

    collapsed and a particular baby was injured, that baby would have a

    cause of action for the damage sustained by reason of the breach of

    the duty of care which may have been owed to him, and broken, by a

    person who has died before he was born. Cases, such as the present,

    involving economic damage which is, and was likely to be, sustained

    by the estate of an immediate party to the relationship provide

    examples where a relationship of proximity can exist with a person

    (perhaps unborn) by reason of some future characteristic or capacity

    which he does not yet have. If, for example, a professional man is

    in a relationship of proximity with a client which gives rise to a

    present duty of care to avoid future economic loss of a kind which

    obviously might be sustained either by the client or by his estate

    after his death, the relationship of proximity will ordinarily exist

    with a class which includes both the client, in respect of loss

    sustained during his life, and his legal personal representative in

    respect of injury sustained after his death. In such a case, the

    resultant duty of care will be presently owed both to the client and

    to the future legal personal representative (in his capacity as such).

Trindade, Cane & Lunney 'The Law of Torts in Australia' 4th Edn discuss

these cases at page 534 ff, observing that there remain unanswered

questions - can the child once born claim against the mother? What would

happen if the mother had indemnified the later defendant?

Regards

Bill Madden

Neil Foster wrote:

> 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 <mailto: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

> <mailto: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 <mailto:jneyers@uwo.ca>>

> Cc: "obligations@uwo.ca <mailto:obligations@uwo.ca>"

> <obligations@uwo.ca <mailto: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