How about Wellbridge v Greater Winnipeg (1970) 12 DLR (3d) 124 (Man CA); 22 DLR (3d) 470 (SCC) where the issue of whether a duty could be owed to an entity not yet in existence was at issue. IIRC, the Man CA said no duty and the SCC (in obiter) said that a duty was possible if the plaintiff was part of a class of persons even if they were not in existence at the time of the wrong.

 

Sincerely,

----- Original Message -----
From: David Wingfield <WINGFIELD@WEIRFOULDS.COM>
Date: Wednesday, January 14, 2009 6:05 pm
Subject: RE: ODG: Duties to the unborn
To: Robert H Stevens <robert.stevens@ucl.ac.uk>, Lionel Smith <lionel.smith@mcgill.ca>
Cc: c.e.webb@lse.ac.uk, Jason Neyers <jneyers@uwo.ca>, ODG <obligations@uwo.ca>

> Robert, since I find it difficult to accept a theoretical
> point that is supported only by a hypothetical example, can you
> find a
> real example of a court's recognising a right that
> does not correlate in time with a duty?   I have spent
> at least
> a minute or two trying to think of any examples of rights and duties
> that do not correlate in time.  But I was not successful.
> How would such beasts ever be enforced?  
> 
> David
> 
> 
> -----Original Message-----
> From: Robert H Stevens [mailto:robert.stevens@ucl.ac.uk]
> Sent: Wednesday, January 14, 2009 4:23 PM
> To: Lionel Smith
> Cc: c.e.webb@lse.ac.uk; Robert Stevens; Jason Neyers; ODG
> Subject: Re: ODG: Duties to the unborn
> 
> 
> 
> 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/oncethey 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
> breachof
> > 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
> >
> >
> >
> >
> 
> 
> --
> Robert Stevens
> Professor of Commercial Law
> University College London
> 
> 

 

 

--
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