Dear All,

Sorry if this email just repeats points that people have already made - I'm

finding it hard to keep track of all the e-mails flying back and forth on

this subject.

To address the issue that I think is bothering Jason, I don't think there's

a problem with establishing that a baby - let's call the baby, Wendy - that

is born disabled as a result of someone's negligence has suffered an injury

that can be sued for in tort. While you could try to argue that Wendy has

not suffered an injury because she has never not been disabled (assuming

for legal purposes that her life begins at birth, not conception), I don't

think Wendy's state of health when she was born is the relevant baseline

for determining whether Wendy has suffered an injury. I think the relevant

baseline is given by asking - What state of health would Wendy have enjoyed

had the defendant not done or failed to do what he did? If Wendy would have

been born healthy had the defendant not done or failed to do what he did,

but has instead been born disabled, it seems to me that we can say that

Wendy has suffered an injury as a result of the defendant's acts or

omissions.

So, now trying to resolve the issue that is at the heart of these

discussions, suppose that Wendy was born disabled in April 2007 because in

January 2007 the defendant carelessly exposed Wendy's mother - while she

was pregnant with Wendy - to some dangerous chemicals. Let's call Wendy as

she was at that moment, when her mother was exposed to the dangerous

chemicals: 'January Wendy'. And let's call Wendy as she was when she was

born, 'April Wendy'.

At the time the defendant exposed Wendy's mother to the dangerous

chemicals, he did not owe January Wendy a duty of care not to expose her

mother to those chemicals because January Wendy did not enjoy sufficient

legal status to be owed a duty of care. But that's not the end of the

story. It was reasonably foreseeable in January 2007 that exposing Wendy's

mother to the dangerous chemicals would result in April Wendy being born

with a disability that she would not otherwise have had. So it was

reasonably foreseeable in January 2007 that April Wendy would suffer an

injury as a result of the defendant's carelessness. So April Wendy fell

within the class of (legally recognised) people who might reasonably

foreseeably be injured as a result of the defendant's carelessness.

It follows that once April Wendy is born, she could say to the defendant -

I fell within the class of people that might reasonably foreseeably be

injured as a result of what you did to my mother in January 2007, and

because your carelessness consisted in a positive act, and because the

injury that it was foreseeable I would suffer as a result of that positive

act was physical in nature, it follows from straightforward Donoghue v

Stevenson principles that in January 2007, you owed me a duty to take care

not to expose my mother to dangerous chemicals.

The fact that April Wendy did not actually exist in January 2007 is

irrelevant, as has already been observed with the bridge example. The

defendant's duty of care was owed to the class of (legally recognised)

people who foreseeably might suffer an injury as a result of the

defendant's negligence, and that class can include people who do not yet

exist.

Best wishes,

Nick McBride