Dear David;
I hope you'll forgive me if this is too obvious, but the primary example would be the one we started with- a doctor who negligently treats a woman giving rise to an injury suffered by a future child, not yet conceived at the time of the treatment. The decision of the NSW CA in X v Pal (1991) 23 NSWLR 26 is a specific example- Dr Pal had treated the mother X on the occasion of one pregnancy which had resulted in a severely deformed child; this as it later emerged was related to the fact that X was suffering from syphilis but no tests were done; she later got pregnant again with a second child who also suffered deformities alleged to be due to the syphilis. The Court of Appeal held that Dr Pal did owe a duty of care to the second child, who had not been conceived when he failed to conduct the appropriate tests. Now that I have gone back and read the decision I encourage others who are interested in this area, and can get access to the NSWLR, to also do so- the decisions of both Mahoney and Clarke JJA are very well thought out (and I was interested to see that they both use the sort of example we have been using here, of baby-food and houses falling down.) Sadly I don't think AUSTLII goes back that far but some of the commercial services do.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> David Wingfield <WINGFIELD@WEIRFOULDS.COM> 15/01/09 10:01 >>>
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/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