I'm afraid that I'm going to be rude and say that the discussion reminds me of medieval scholasticism. It was an argument such as the ones being advanced on both sides here that was put forward, among others, to seek to deny a remedy to the children of the mothers who ingested thalidomide. That tragedy led directly to the passing of the English legislation and the Paxton court argues that a solution should be devised by the legislature if necessary.  However, if one gets away from these issues of "rights" of the unborn, the problem is not really a difficult one for the common law, as Patrick Atiyah showed in a note on Watt v Rama in (1972) 10 U of WA L Rev 159. Of course, proof of breach and causation remain.

Harold Luntz.

Robert H Stevens wrote:

I don't agree I am afraid. Rights do indeed correlate with duties (as
Charlie says). But there is no logical, linguistic or legal reason why the
right which the duty correlates with must coexist at the same moment in
time with it. So in my hypothetical the right of the child does indeed
correlate with the duty of the manufacturer, even though the right and the
duty do not exist at the same time.

To take another example, say we accepted that we are under a duty to our
great, great, great grandchildren not to despoil the environment. Once
born, those persons will have a correlative right that we did not so
despoil. We however, will not be under any duty at that moment. We'll be
dead. the right and the duty never exist at the same moment in time.

I cannot be under a duty after I am dead. I cannot be a right-holder
before I am born/conceived.

So, in Lionel's example of the hole digger, there is a duty not to dig the
hole so as to endanger the person even before they come into existence.
This is the same as the manufacturer of the baby food: they owe the duty
not to manufacture poisoned baby food even though the child is not yet
conceived. The correlative right arises only once the child is
born/conceived. The breach of duty occurs if the child is poisoned/once
they fall in the hole.

Rob

  

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