Sorry for biting again:

Charlie wrote

"To say that A owes to B a duty (not) to do X is to say that B has a right

that A (not) do X."

The duty is owed to the class of people that might reasonably foreseeably be

injured as a result of the defendant's negligence. In the case of the

bridge/babyfood, the members of that class are determined by events

(conception/birth) which have not occurred yet. There is a single legal

relationship between claimant and defendant, but this is not refuted by

showing that the duty and the right never co-exist at the same moment in

time.

So, we cannot say, on any view, that the babyfood manufacturer owed a duty

to baby specific X (Wendy) at the time of manufacture. He owes a duty to the

class of people that might reasonably foreseeably be injured. That class may

or may not include Wendy, we don't know at that time. The statement you wish

to make cannot be made. The duty is not, and logically cannot be, owed to a

particular person. This does not mean, as some rather hopeless critics of

Hohfed have argued, that the right and duty do not correlate. They can

correlate even though not existing in the same moment in time.

It may also be noted that the manufacturer has not breached his duty at the

time of manufacture. A breach of duty is a wrong. There is no wrong until

someone's rights have been infringed. Only once the child is poisoned is

there a breach/right infringed. Negligently manufacturing babyfood is not,

alone, a tort vis a vis anyone.

Charlie also wrote:

"The relationship between rights and duties (or at least of the relations

each describes) is one of unity.  One doesn't follow from or give rise to

the other."

Actually, I think the rights chicken is prior top the duty egg in our

context. You can have duties without rights, I think, but not rights without

duties. So, my duty not to be cruel to animals, or the duty of the secretary

of state for health to promote a comprehensive health service don't give

rise to correlative rights in anyone. It is the rights of the (future) child

which warrant the current duty of the manufacturer. Paradoxically, the

future determines the present.

Nick wrote

"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."

The trouble with this is that it seems to me, as presently advised, to

replicate the error made in Anns v Merton where the HL think they were

dealing with a straightforward property damage case. If D negligently

damages X' car, and then X gives the car to C, we don't think the relevant

question is "What state of car would C have enjoyed had D not done or failed

to do what he did."

Ben wrote

"The changes upon the body of the person who is now claiming injury occurred

prior to birth, but injury did not occur until after birth.   I believe this

is the way many jurisdictions treat negligence cases alleging wrongful

exposure to toxins that lead to cancer; the injury does not occur until the

cancer develops, even though the changes to the body of the plaintiff

flowing out of defendant's wrongful conduct occurred earlier."

I think there is an "injury", as I said at the start, but we cannot get

there by this sort of reasoning. This sort of reasoning in the cancer cases

is a fiction, and is usually adopted because the injury is latent and is

only discoverable later. That the symptoms only become apparent after the

cancer develops does not logically mean that the injury does not occur at

the earlier point where the patient is already doomed because of the

(undiscoverable) physical changes which have occurred. If I am made ill by

your negligence I don't suffer a fresh injury each moment I get sicker. Your

reasoning is, I think, that employed by our civilian/Scottish friends, which

they acknowledge as a fiction to get to the 'right' result.

My view remains that is a duty not to make the child have an unhealthy birth

when she or he would otherwise be born healthy, but this is not the same as

the Donoghue v S duty not to physically injure. Unless you are prepared to

accept rights from conception, which I don't want to get into.

Angela wrote

"Robert says that one can justify imposing liability on the defendant "where

the defendant won't end up bearing the cost in any event"."

I don't think that.

R