If I may add a few words to Michael's earlier comments (although I profess no great expertise in this field, so forgive me if I am missing something crucial in my remarks).

The Congenital Disabilities (Civil Liability) Act 1976 also applies in Scotland, and was enacted partly as a result of work done by the Scottish Law Commission leading up to the publication of its Report 'Liability for Ante-Natal Injury' (1973, Command Paper Cmnd. 5371). In line with Michael's comments on a dearth of English cases discussing the duty aspect of the 1976 Act, I can find no reported Scottish cases looking specifically at that issue. Most reported cases about ante-natal injuries in Scotland have been about the claims of relatives of deceased infants raised under the Damages (Scotland) Act 1976.

However, even prior to the passage of the Act, the SLC had suggested in its 1973 report that:

"although there is no express Scottish decision on the point, a right to reparation would, on existing principles, be accorded by Scots law to a child for harm wrongfully occasioned to it while in its mother's womb, provided it was born alive."

This suggested, I think, the possibility of a free standing duty of care owed to the child, one not derived (as in s1(3) of the 1976 Act) from any duty owed to the parent. That also seems to me to be consistent with what was said in a post-1976 Act case, Hamilton v Fife Health Board (1993 SC 369), which concerned injuries sustained by a child, which subsequently died, during its delivery and a claim for damages by its parents. In the Appeal Court, Lord McCluskey asserts (if I read him correctly in the following passage) that there is a freestanding duty owed to the child, and not just to the parents, in respect of ante-natal injury, but that any cause of action in the child does not arise until the child is born:-

"There is no difficulty whatsoever in Scots law in holding that doctors engaged in the delivery of a foetus owe a duty of care to avoid injury to that foetus: that is trite. But once the foetus ceases on birth to be a foetus and becomes a person there is a concurrence of injuria and damnum and the newly born child has a right to sue the person whose breach of duty has resulted in the child's loss. The coming into existence of that right to sue does not depend upon the application of any fiction. It depends upon the neighbourhood doctrine of Donoghue v. Stevenson. The doctors engaged in the medical work of assisting in the delivery of a child can obviously foresee that a failure to exercise due care and skill by them may result in injuries to the foetus, being injuries which will cause the child to suffer loss: if the loss to the living child is the foreseeable, direct and probable consequence of the failure to exercise due care and skill at an earlier stage there is a breach of duty owed, in the law of negligence, to the child and that breach occurs when the child is born. If the injuries with which he is born are injuries to his organs or skeleton or tissues then they are properly and sensibly described as "personal injuries" even although when they were inflicted he did not enjoy legal personality; they are injuries to his person although not to his legal persona. They are to him an impairment of his physical condition." (at p382)

So, these comments do give a little definition to the duty of care owed to a child in respect of ante-natal injuries, but the law seems to me to be still quite underdeveloped. What the Appeal Court is asserting however is that the child need not rely on the civilian principle 'nasciturus pro iam nato habetur quotiens de eius agitur' (in a matter affecting its interests, an unborn child in utero is deemed to be born) in order to bring its claim: such a claim arises from ordinary Donoghue v Stevenson principles.

Martin Hogg

Edinburgh Law School

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