From: Jason Neyers [mailto:jneyers@uwo.ca]
Sent: 14 January 2009 12:59
To: Martin Hogg
Cc: obligations@uwo.ca; Jones, Michael
Subject: Re: RE: ODG: Duties to the unborn

Dear Martin and all:

The fact that there is a limitation on the fetus's/child's rights in that they can't sue unless they are born alive seems to indicate that this is not the ordinary application of D v S principles.

Rob really focuses on the problem with these cases: it is that at the moment the child is said to become a bearer of rights it has already suffered the harm. So there is no injury to the child when it is born, it just exists as it exists. It appears that the Australian cases have not really dealt with the issue at all.

The tension in the Canadian cases is that the courts want to protect the mother's right to deal with her own body in the way she sees fit (even if this means aborting the fetus) yet simultaneously protecting the fetus/child from interference from others. On first impression, I do not find Rob's solution convincing since it seems to create a right in everyone to assist the fetus/child, make it better off, yet one that is limited to pre-birth activities and needs. I can't see why would this right to basic assistance would be limited to pre-birth needs?

Perhaps another way to interpret the cases is to say that the right to bodily integrity exists from conception but that the mother (and those acting on her behalf) have some sort of privilege/immunity vis-a-vis the child/fetus that is generated by the unique relationship between mother and fetus (as discussed in Dobson). In that way the mother is entitled to do things she considers in her best interest (including aborting the child or taking risky drugs) but the fetus/child is protected from outside interference. IIRC, Ernest Weinrib made a somewhat similar argument (though not using the concept of privilege in Human Rights and Private Law) relying on the notions of special susceptibility and the case of Rogers v Elliot.

Does that seem like an adequate explanation/interpretation of the cases?

----- Original Message -----
From: Martin Hogg <Martin.Hogg@ed.ac.uk>
Date: Wednesday, January 14, 2009 6:43 am
Subject: RE: ODG: Duties to the unborn
To: "obligations@uwo.ca" <obligations@uwo.ca>
Cc: "Jones, Michael" <M.A.Jones@liverpool.ac.uk>

> 
> 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
> 
> 
> --
> The University of Edinburgh is a charitable body, registered in
> Scotland, with registration number SC005336.
>