I hesitate to express a view on this topic which clearly
generates powerful emotions but I must say that my
sympathies are strongly with Harold.
There are clearly tort situations where liabilty is undoubted
but it is not possible to say to whom the duty is owed
. except  in the most general terms.The driver who goes recklessly
down the motorway is an obvious example as is the manufacturer of the ginger beer.
In the case of the manufacturer of baby food  it is clear that if the process is
 carelessly carried out(as in the recent Chinese example) babies are likely to be injured.
Babies enter the class of those to whom a duty is owed when the food is fed to them
but they may or may not have been alive when the food was manufactured.
Why should this matter?
Michael

> Date: Thu, 15 Jan 2009 10:10:13 +0000
> From: robert.stevens@ucl.ac.uk
> Subject: Re: ODG: Duties to the unborn
> To: haroldjen@netspace.net.au
> CC: obligations@uwo.ca
> 
> 
> 
> (1) Thanks to Harold for the Patrick Atiyah reference. I hadn't read that
> note.
> 
> It is a classic example of 'duty scepticism.' He maintains, as so many
> others have, that the duty of care is not really a 'duty' (with a
> correlative right) at all. Rather, it is "a shorthand method of referring
> to those situations in which the law imposes liability for negligence". He
> states as a truism that "the duty of care question in a negligence action
> is a policy question." As there was no policy against giving the child a
> claim, the result was obvious.
> 
> That is what I was also taught when I first studied the law of torts
> twenty years ago. The very first quotation from a judge that I was (with
> approval) given when I studied was that of Lord Denning from Spartan Steel
> v Martin [1973] 1 QB 27, 36-37 where he says the same as Professor Atiyah.
> I was taught, and believed, that this was an example of refreshing honesty
> from the judge.
> 
> I now think that this duty scepticism is a pernicious falsehood, and that
> the duty of care is, as its name implies, a real duty with a correlative
> right.
> 
> Atiyah simply starts with the assumption that this is a straightforward
> example of personal injury caused by negligence. If that premise were
> correct his robust dismissal of the "legalistic" approach of the judges
> would be appropriate. It isn't correct.
> 
> (2) When we are faced with a plaintiff child born with terrible
> disabilities, and a defendant corporation covered by liability insurance,
> there are different possible approaches to determining who should bear the
> costs of the child's future care and his or her other losses. One is to
> try to work out who as a matter of policy should bear the loss.
> 
> My strong preference is that we should be governed by law rather than men
> (the judges are mostly men). This is especially true in a case such as
> this, where the plight of the child is so obvious and where the defendant
> won't end up bearing the cost in any event. This means that, in hard cases
> on the margin, the result should turn on resolving technical issues which
> resemble 'medieval scholasticism.' Good. It is important for the law, here
> above all, to be as dreary and boring as possible.
> 
> The Thalidomide tragedy did indeed lead to a special rule for products
> enacted by legislation. However, I have never heard any convincing
> explanation as to why products are deserving of special treatment. Why
> should there be strict liability for products but not for services? None
> of the arguments in favour of the reform were specific to products. These
> are the sorts of problems created by trying to ex post create a remedy for
> an intuitively deserving plaintiff.
> 
> (3) All of the arguments that I gave favoured giving the child a claim.
> Conversely, it is perfectly possible to construct policy arguments which
> seek to deny the children a remedy. Neither one form of reasoning nor the
> other necessarily favours the plaintiff.
> 
> Rob
> 
> > 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
> >>>
> >>>
> >>>
> >>>
> >>>
> >>
> >>
> >>
> >
> 
> 
> --
> Robert Stevens
> Professor of Commercial Law
> University College London
> 

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