I think perhaps I agree with both Charlie and Robert.

If I carelessly create a hazard (make it a hole in the ground) and no one is

ever hurt, I don't think I have breached a duty.

If however someone falls in the hole, I have breached a duty.

But the whole of my relevant actions took place before any of the

plaintiff's relevant actions, and but for the falling in the hole, my

actions would not have been a breach.

All along I owed that person a duty to be careful in relation to their

bodily integrity; that is, a duty to take reasonable care not to cause harm

(not risk) to that integrity (I am not clever enough to understand

/Barker/). Until I harmed their bodily integrity, there was no breach of the

duty. Digging the hole that will (later) harm the right-holder is not a

breach of the right-holder's right. It is only the beginning of what will

later be revealed to be the breach.

Now if we change it so that the person did not come into existence until

after I dug the hole, I am still liable. The only thing that changes is that

the right is not held and the duty not owed until the person comes into

existence.

But since the digging of the hole, being merely the beginning of a breach,

is not itself the breach, it doesn't seem to matter that the duty was not

owed at that time.

In other words, if the only persons in the jurisdiction were me and the

person who came into existence after I dug the hole, then only after that

person came into existence would it be legally prudent for me to rush back

and fill in the hole. Before that, my act has no juridical content and can't

be a breach of duty.

It seems to me that the solution used by both the common law and the law of

Quebec is this, that if the person is born alive, their life is understood

to have begun at conception. You could call this 'relation back' I suppose.

The civilians call it a fiction but I'm not sure. It's just the resolution

of a very difficult set of interlocking interests. For one set of reasons,

we say that the person needed to be born alive to become a person holding

rights. But on the other hand, in order to be born alive you need to be

conceived and to exist in utero and to be at risk of harm.

Lionel