In England this issue is now settled by the Congenital Disabilities (Civil

Liability) Act 1976. Whilst I personally disapprove of some of the

provisions of that Act, I approve of the issue being settled by the

legislature.

The moment at which we should and do acquire legal personality, and become

the holder of rights is, of course, controversial. John Finnis has argued

that the older authorities support the proposition that we acquire

personality from conception. When I looked at the cases myself I was not

convinced that the authorities supported this (Paton v British Pregnancy

Advisory Services [1979] 1 QB 276; C v S [1988] 1 QB 135, CA; Re F (in

utero) [1988] Fam 122, CA; St George’s Healthcare NHS Trust v S [1999] Fam

26, CA. But see Villar v Gilbey [1907] AC 139, HL, 144 per Lord Loreburn

LC). I have a view on this, but I don't want to discuss that.

If we start from the assumption that we only acquire legal personality,

and our rights, upon birth should a claim be possible? It is not

problematic that the act of negligence pre-dates the acquisition of the

right and the subsequent injury. If a babyfood manufacturer carelessly

poisons his product he will be liable towards the babies he poisons even

if they were born after the product was made.

The difficulty in the case of the unborn is not that the negligence of the

defendant pre-dates the child's birth, but that the injury does so as

well. The subject matter of the child's right, her or his bodily

integrity, was harmed before birth. If the disability occurs before the

acquisition of the right, there is no fresh injury. An analogy, which I

apologise for if some find distasteful, is with damage to property. If D

negligently damages X's car, which X then sells to C, C has no claim

against D as the subject matter of his right, the car, was already damaged

at the time he acquired it.

How then can successful claims such as that in Burton v Islington (

http://www.bailii.org/ew/cases/EWCA/Civ/1992/2.html ) or in Canada in

Duval v. Seguin (1973), 1 O.R. (2d) 482 (C.A.) be explained? I think we

have to say that upon birth we acquire a different right, a right that

others take care that we have a healthy birth. Again, it shouldn't matter

that the negligence precedes the acquisition of this right.

If that is right, the conflict of duty argument is a difficult one.

Sometimes the potential for a duty D owes to X to conflict with a duty D

owes to Y means that one should arguably override the other. Whether the

(primary) duty of a barrister to the court should override the (secondary)

duty to his client is a (controversial) example. For myself I can see that

a case can be made that the duty to the mother takes priority to the duty

to the still unborn child, and that where they genuinely conflict the

doctor may be justified in prioritising the mother, so that no duty is in

that situation owed to the child. However I'd have to be convinced that

there was a genuine conflict in this case for that to be arguable.

In England, under the Act, where a person (other than the mother) commits

a tort against a parent (or what would have been a tort if the parent had

been injured) whilst a child is still unborn, the child, if born disabled

as a result, has an action for compensation. Defences which are capable of

being invoked against the parent (eg contributory fault) can be invoked

against the child. The sins of the father (or mother) are visited upon the

child. In this case, if there was no negligence with respect to the

mother, there would have been no claim by the child.

Robert Stevens

> 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

>

>

>

--

Robert Stevens

Professor of Commercial Law

University College London