| From: | Andrew.Dickinson@CliffordChance.com |
| To: | robert.stevens@ucl.ac.uk |
| bill_madden@optusnet.com.au | |
| obligations@uwo.ca | |
| Date: | 14/01/2009 11:18:36 UTC |
| Subject: | RE: ODG: Duties to the unborn |
This topic also raises interesting questions in a choice of law context, in particular for rules of applicable law (such as Art. 4(1) of the Rome II Regulation) which select the country of "damage". My strong inclination when writing on the Regulation was that, here, it is appropriate to recognise the child as being capable of being damaged between conception and birth (The Law Applicable to Non-Contractual Obligations (OUP, 2008), paras. 4.59-4.61) and to identify the country of damage as the place of physical impact (in the case, for example, of a car accident) or the place of conception (in the case of an event giving rise to damage, e.g. negligent medical treatment, before conception).
Kind regards
Andrew
> -----Original Message-----
> From: Robert H Stevens [mailto:robert.stevens@ucl.ac.uk]
> Sent: 14 January 2009 10:33
> To: Bill Madden
> Cc: obligations@uwo.ca
> Subject: Re: ODG: Duties to the unborn
>
> 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
>
>
>
>
>
> [CC]Personal[/CC]
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