Bowditch v McEwan

[2001] QSC 448

SUPREME COURT OF QUEENSLAND

CITATION:

Bowditch v McEwan & Ors [2001] QSC 448

PARTIES:

JOHN LUKE BOWDITCH (by his Next Friend JOHN STANLEY BOWDITCH)
(plaintiff)
v
JOYCE ANNE McEWAN
(first defendant)
and
DANIEL TIMOTHY STUTT
(second defendant)
and
DIGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD ACN 000 446 800
(third defendant)

FILE NO/S:

S1008 of 1995

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

30 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

White J

ORDER:

The answer to the question “Did the first defendant, as the admitted driver of the Datsun sedan referred to in paragraph 3(a)(i) of the statement of claim, owe to the plaintiff a duty of care, breach of which would afford the plaintiff a cause of action in negligence for his injuries, if any, sustained as a result of the collision admitted in paragraph 2 of the amended defence?” is “Yes”.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – PARTICULAR CASES – OTHER CASES – duty of mother to unborn child – whether a mother can be liable to her child who was born with disabilities in respect of injury caused to that child while in utero due to the mother’s negligent driving - the doctrine of parental or intra-familial immunity not recognised in Australia

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – PARTICULAR PERSONS AND SITUATIONS – MOTOR VEHICLE CASES - determination of judicial standard of conduct for pregnant women – development of standard with respect to negligent driving as opposed to general pre-natal negligence and maternal risk-taking – policy considerations arising from a claim based on negligent driving compared with a claim based on a mother taking other unjustified risks to the foetus during pregnancy

INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – relevance of this insurance and the public policy behind it to a claim based on negligent driving – availability of a fund and a comprehensive liability insurance scheme imposed on all drivers by the legislature will be a proper factor to take into account – presence ought not dictate whether a duty of care should be imposed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – MATTERS BEFORE TRIAL – pre-trial issue on the papers pursuant to rule 486 – answer to pleaded question

Uniform Civil Procedure Rules (Qld), r 172, 483(1), 484(1), 486
Motor Vehicles (Third Party) Insurance Act 1942 (New South Wales)
Congenital Disabilities (Civil Liability) Act 1976 (United Kingdom), s 2
Motor Accident Insurance Act 1994 (Qld), s 5, 52

Anns v Merton London Borough Council [1978] AC
728, cons
Burton v Islington Health Authority [1993] QB 204, cons
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529, cons
Caparo Industries Plc v Dickman [1990] 2 AC 605, cons
De Martell v Merton and Sutton Health Authority [1993]
QB 204, cons
Dobson v Dobson (1999) 174 DLR (4^th) 1, dist
Gala v Preston (1990-1991) 172 CLR 243, cons
Hahn v Conley (1971) 126 CLR 276, foll
Hogan v Hogan (1982) 435 NE 2d 770, cons
Kamloops City v Nielsen [1984] 2 SCR 2, 10 DLR (4^th)
641, cons
Kars v Kars (1996) 187 CLR 354, cons
Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, cons
Lynch v Lynch [1991] 25 NSWLR 411, foll
McFarlane v Tayside Health Board [2000] 2 AC 59, cons
Melchior v Cattanach [2001] QCA 246, cons
Nova Mink Ltd v Trans-Canada Airlines (1951) 2 DLR 241, cons
Perre v Apand Pty Ltd (1999) 73 ALJR 190, cons
Progress and Properties Ltd v Craft (1976) 135 CLR 651, cons
Robertson v Swincer (1989) 52 SASR 356, cons
Watt v Rama [1972] VR 353, cons
William v Luff (1978) 122 Sol Jo 164, cons
X and Y v Pal (1991) 23 NSWLR 26, cons

COUNSEL:

M. Grant-Taylor SC and D. Bates for the applicant
S. Williams QC and J. Kimmins for the respondents

SOLICITORS:

Garrahy & Associates for the applicant
Eardley Motteram for the respondents

1. The plaintiff is an infant who sues through his father as his litigation guardian in respect of injury allegedly suffered by him in a motor vehicle accident between his conception and birth.

1. The plaintiff seeks the resolution of an important issue prior to trial either pursuant to r 172 of the Uniform Civil Procedure Rules (UCPR) (striking out a pleading disclosing no reasonable defence) or r 484(1) (decision on a separate question). The present application relates to a matter more appropriately dealt with pursuant to r 483(1).

1. Counsel for the parties were unable to reach a mutually convenient date to argue the application before the end of the year and agreed that the matter might be resolved by written submissions which has occurred.

1. The facts upon which the issue is to be determined are straight forward and not in dispute.

1. On the morning of 7 May 1987 the first defendant who was then about three months pregnant with the plaintiff was driving her Datsun motor vehicle in a southerly direction along the Bruce Highway.  The second defendant was driving a Toyota motor vehicle owned by the third defendant in a northerly direction along the same highway.  A collision occurred between the two vehicles in which the first defendant sustained personal injury.  The plaintiff alleges that those injuries caused damage to him as an unborn foetus.  The plaintiff alleges that as a consequence of the injury to the first defendant and/or to the foetus who became the plaintiff, he was born with serious injury.  That injury is alleged to be cerebral palsy in the form of spastic quadriplegia caused by the negligent driving of the first and/or second defendant.

1. Both motor vehicles were insured by Suncorp.  In their joint defence the defendants admit the collision was caused by the first defendant, deny that it was caused or contributed to by the second defendant and deny that the first defendant owed the plaintiff a duty of care.

1. The defendants further deny that any injury suffered by the plaintiff as a result of the collision caused him to suffer cerebral palsy although they admit that he developed that condition.  That issue is for the trial if it is found that the first defendant owed a duty of care to the plaintiff.

1. The question for decision posed pursuant to r 486 of the UCPR is

“Did the first defendant, as the admitted driver of the Datsun sedan referred to in paragraph 3(a)(i) of the statement of claim, owe to the defendant a duty of care, breach of which would afford the plaintiff a cause of action in negligence for his injuries, if any, sustained as a result of the collision admitted in paragraph 2 of the amended defence?’

1. The competing answers to this question to a large extent reflect the different approaches of the New South Wales Court of Appeal in Lynch v Lynch [1991] 25 NSWLR 411 and the majority in the Supreme Court of Canada in Dobson v Dobson (1999) 174 DLR (4^th) 1, respectively. The former held that a child, when born, is entitled to maintain an action in negligence against its mother for pre-natal injuries suffered as a consequence of the mother’s negligent driving of a motor vehicle. In the Canadian case the Supreme Court held that such a child could not.

1. Policy issues governed the Canadian decision not to allow recovery.  Those considerations related primarily to privacy and autonomy rights of women.  An aspect of this issue concerned the difficulty inherent in articulating a judicial standard of conduct for pregnant women.  The majority were not prepared to draw a distinction between injuries arising out of the negligent driving of a motor vehicle and injuries arising out of what might be described as “life-style” choices.  The court in Lynch did so. Curiously, the Supreme Court of Canada, having decided on policy grounds that no action could lie against the mother, at the same time recommended that the legislature might create an exception to maternal tort immunity in respect of pre-natal negligence in the context of negligent driving similar to the Congenital Disabilities (Civil Liability) Act 1976 (United Kingdom), s 2.

1. There is no argument advanced by the defendants on this application that the plaintiff has no standing to sue because the alleged injury was inflicted in utero.  Once a child is born, it is now well accepted, that child may sue in respect of damage resulting from injuries so inflicted by the negligent conduct by a third party, Watt v Rama [1972] VR 353; Williams v Luff (1978) 122 Sol Jo 164;  X and Y v Pal (1991) 23 NSWLR 26; Burton v Islington Health Authority and De Martell v Merton and Sutton Health Authority [1993] QB 204, even though the basis for the imposition of the duty is not always the same.

1. In Lynch, Clarke JA, with whom Gleeson CJ and Hope AJA agreed, avoided the broader and more difficult question embraced by the majority of the Supreme Court in Dobson by confining the issue to the facts before the court, namely, whether a mother can be liable to her child who was born with disabilities in respect of injury caused to that child while in utero due to the mother’s negligent driving.  Such “category-based restrictions” were said by McLachlin J in Dobson at [90] to be “antithetical to the common law method”. It remains to be seen if that is so.

1. Clarke JA did not resile from the fact

“that very difficult questions of policy may well arise in the event that a child seeks to sue his or her mother in respect of disabilities with which he or she was born and which are said to result from certain types of conduct of the mother during pregnancy,” p 415.

But his Honour identified two threshold propositions, namely, that there is, in Australia, no doctrine of intra-familial tort immunity, Hahn v Conley (1971) 126 CLR 276 per Barwick CJ at 283-4, and that a third party may be liable in damages to a child who was born with disabilities which resulted from injuries received before birth as a consequence of a third party’s negligent driving (as in Watt v Rama), before turning to the issue in question.  He posed it as one calling for justification for non-recovery, that is, on what basis would a mother not be liable for injuries sustained by her child, simply because the child was a foetus at the time of the conduct giving rise to the injury?  Since the undemanding test of foreseeability could be easily satisfied and there could be no difficulty in establishing an appropriate standard of care as to whether the mother drove the vehicle negligently, since it was a straight forward question of fact dealt with by courts everyday, his Honour identified public policy as the primary reason for arguing for exclusion of liability.  He concluded that the policy considerations which would arise in the context of a claim based on negligent driving were different from those which may arise in a claim based on a mother taking other unjustified risks to the foetus during pregnancy. 

1. Third party liability insurance and the social policy underlying it were seen to be of particular relevance to a claim based on negligent driving, at 416.  It was this compulsory scheme of insurance operating in New South Wales which provided cover for the driver of a vehicle, whether driving with or without the permission of the insured owner of the vehicle, subject to any reduction for contributory negligence, which his Honour found compelling.  In the context of the provisions of the Motor Vehicles (Third Party) Insurance Act 1942 (New South Wales) there were no policy considerations identified in favour of denying compensation to a child whose disabilities flowed from pre-natal injuries received in a motor vehicle which was negligently driven by the mother. 

1. Expressed more broadly, his Honour concluded that no consideration of justice operated in favour of singling out children whose injuries were inflicted prior to birth as the one class of individuals who were to be denied access to the insurance fund.  This was underlined by changes to the motor vehicle insurance legislation after 1984 when the insurer became a party to the action. 

1. The contrast between this pragmatic approach and outcome in Lynch and those in Dobson could not be greater.  The Dobson approach is exemplified by the opening paragraph of Cory J’s judgment (with whom Lamer CJC, L’Heureux-Dubé, Gonthier, Iacobucci and Binnie JJ concurred; McLachlin J delivered a separate concurring judgment with which L’Heureux-Dubé also concurred; Major J with whom Bastarache J agreed dissented).

“Pregnancy speaks of the mystery of birth and life; of the continuation and renewal of the species.  The relationship between a pregnant woman and her foetus is unique and innately recognised as one of great and special importance to society.  In the vast majority of cases, the expectant woman makes every effort to ensure the good health and welfare of her future child.  In addition, the sacrifices made by the mother for her newborn child are considerable.  Yet what if hopes for the future are dashed by an injury caused to the foetus as a result of a prenatal negligent act of the mother-to-be?  Should a mother be held liable for the damage occasioned to her born alive child?  That is the question to be resolved in this appeal.”

1. A significant distinction between the majority in Dobson and the court in Lynch was the identification of the issue for decision.  Dobson expressed it as the liability of a mother

“in tort for damages to her child arising from a prenatal negligent act which allegedly injured the foetus in her womb” [11].

In Lynch the issue was articulated as concerning liability for the negligent driving of a motor vehicle by a pregnant woman in respect of her unborn child. 

1. Whether a duty of care was to be imposed was governed in Dobson, so the court found, by the two-stage test enunciated in Kamloops (City) v Nielsen [1984] 2 SCR, 10 DLR (4^th) 641.  In Kamloops the Supreme Court of Canada held that before imposing a duty of care the court must be satisfied:

“(1)that there is a sufficiently close relationship between the parties to give rise to the duty of care and

(2)that there are no public policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which a breach of it may give rise.” [19]

1. This test is similar to the pre-Caparo (Caparo Industries Plc v Dickman [1990] 2 AC 605) test formulated in Anns v Merton London Borough Council [1978] AC 728. Neither the two-stage Kamloops test nor the three-stage Caparo test of reasonable foreseeability, proximity and that it is “fair, just and reasonable to impose a duty of care”, command the support of all of the justices of the High Court.  Neither, indeed, does the incremental categories approach, Perre v Apand Pty Ltd (1999) 73 ALJR 190 per McHugh J at [75]. But what does emerge, whichever test is applied, is that in an area perceived to be difficult it will tend to be policy issues which determine the outcome.

1. Cory J assumed, without deciding, that a pregnant woman and her foetus can be treated as separate legal entities, at least for the purpose of foreseeability.  Granting, then, that the first stage of the test would be satisfied, he concluded that

“[s]ignificant policy concerns militate against the imposition of  maternal tort liability for prenatal negligence … [which] relate primarily to (1) the privacy and autonomy rights of women and (2) the difficulties inherent in  articulating a judicial standard of conduct for pregnant women.” [21]

1. In lengthy passages which, with the greatest respect, contain more emotional rhetoric than legal analysis, Cory J emphasised

“[t]he unique and special relationship between a mother-to-be and her foetus” [25]

as determining the outcome of the appeal.  It was this special  relationship which caused him to reject the analogy with third party liability for injury inflicted in utero such as in Watt v Rama.

1. In some passages Cory J seems to have undervalued the requirement that the mother’s conduct be judged negligent before liability could be imposed.

“[27] Everything the pregnant woman eats or drinks, and every physical action she takes, may affect the foetus.  Indeed, the foetus is entirely dependent upon its mother-to-be.  Although the imposition of tort liability on a third party for pre-natal negligence advances the interest of both mother and child, it does not significantly impair the right of the third parties to control their own lives.  In contrast to the third-party defendant, a pregnant woman’s every waking and sleeping moment, in essence, her entire existence, is connected to the foetus she may potentially harm.  If a mother were to be held liable for prenatal negligence, this could render the most mundane decision  taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts.

[28] Is she to be liable in tort for failing to regulate her diet to provide the best nutrients for the foetus?  Is she to be required to abstain from smoking and/or alcoholic beverages?  Should she be found liable for failing to abstain from strenuous exercise or unprotected sexual activity to protect her foetus?  Must she undertake frequent safety checks of her premises in order to avoid falling and causing injury to the foetus?  There is no rational and principled limit to the types of claims which may be brought if such a tortious duty of care were imposed upon pregnant women.”

1. It has not hitherto been suggested that a mother of born children might be liable in negligence at their suit for their overweight or dental problems due to an inappropriate diet (although such claims may come to be recognised).  So, while recognising the personal autonomy/privacy distinction which separates the mother/child in utero relationship from that of the mother and her born children extreme examples do not assist in identifying an appropriately principled approach to this issue.

1. Cory J strongly opposed the imposition of tort liability on mothers for pre-natal negligence because it would carry

“psychological and emotional repercussions for a mother who is sued in tort by her new born child.” [46]

It was suggested that the imposition of tort liability in such circumstances could have devastating consequences for the future relationship between the mother and her child and also between the child and the rest of the family. He rejected any role for the common law but suggested that a compensation fund for children born with special needs or by amendment to the relevant motor vehicle insurance would be  appropriate.  The majority do not suggest that suing a negligent father or other close family member might lead to disharmony. [48]  The reason why an injured child would sue, usually by a close family member, is to have access to a fund to ease the burden of its disability not only for him or herself but on the family.  That is why the Dobsons sued, see I Malkin, A Mother’s Duty of Care to her Foetus While Driving; A Comment on Dobson v Dobson (and Lynch v Lynch), (2001) 9 Torts Law Journal 109 at 126 and M McGuiness, Pre-Natal Injuries in the Supreme Court of Canada, [2000] 116 LQR 26 at 28.  Where there is no fund it would be a rare case which would proceed to action. 

1. One of the flaws in the approach of the decision in Dobson is a reference to and reliance upon sociological concepts and perceived community expectations which appear not to have been the subject of evidence and, it would seem, derive from the personal views of the members of the court who made up the majority.  The weakness in applying “current ideas of justice or morality” in substitution for legal reasoning has been censured by the highest courts.  McHugh J commented in Perre v Apand

“But attractive as concepts of fairness and justice may be in appellate courts, in law reform commissions, in the academy and among legislators, in many cases they are of little use, if they are of any use at all, to the practitioners and trial judges who must apply the law to concrete facts arising from real life activities.  While the training and background of judges may lead them to agree as to what is fair or just in many cases, there are just as many cases where using such concepts as the criteria for duty would mean that “each judge would have a distinct tribunal in his own breast, the decisions of which would be as irregular and uncertain and various as the minds and tempers of mankind”. [Donaldson v Beckett (1774) 2 Brown 129, per Lord Camden cited in “The Judge and Case Law” in Devlin, The Judge (1979) at p 180] Lord Devlin was surely right when he said:

“For a judge to decide fairly and convincingly every case that comes before him in the light only of his own sense of justice, he would have to be a superman.  I doubt if there have ever been more than a handful of men on the Bench who could do it, though doubtless there are slightly more who think that they could.”

… if negligence doctrine is to escape the charge of being riddled with indeterminacy, ideas of justice and morality should be invoked only as criteria of last resort when more concrete reasons, rules or principles fail to provide a persuasive answer to the problem.”
[80] [82].

1. As an example, in an area not so far removed from the present question in its emotional reach, is that posed by Lord Steyn in McFarlane v Tayside Health Board [2000] 2 AC 59 at 82. His Lordship considering whether the parents of a child born after a negligently performed sterilisation operation could recover damages for the cost of caring for a healthy child from the perspective of distributive and corrective justice, said

“It requires a focus on the just distribution of burdens and losses among members of a society.  If the matter is approached in this way, it may become relevant to ask of the commuters on the Underground the following question: “Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority, i.e. until about 18 years?”  My Lords, I have not consulted my fellow travellers on the London Underground but I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic “No”.  And the reason for such a response would be an inarticulate premise as to what is morally acceptable and what is not.”

1. Davies JA in Melchior v Cattanach [2001] QCA 246 responded

“Perhaps his Lordship is right.  But would that be a fair question?  Should they not also know, before the answer, that the parents had chosen not to have another child; that they had engaged the doctor who had undertaken to exercised reasonable care to secure that end permanently by sterilisation; and that his negligence had resulted in the conception of that child?  I am inclined to think that, if those facts were added, the answer would be “Yes”.  That is because they would accept the moral justifiability of the choice of the parents to limit the size of their family; they would think that those parents would be reasonably entitled to rely on the care and skill of the doctor to secure that result; and they would think that his negligent failure to secure that result should result in his bearing the cost which they unexpectedly have to bear.” [91]

1. The quite different outcomes, resting as they do on matters of policy and perceptions of what the community expects from its legal system demonstrate that ideas of justice and morality emanating from the personal perception of judges, without more, in a pluralist society, are an unsteady foundation upon which to erect legal principle and “should only be invoked as criteria of last resort”.  This is not to be blind to the fact that there is a “large element of judgment policy and social expediency involved in the determination of the duty/problem”, Legoe J in Robertson v Swincer (1989) 52 SASR 356 at 365 quoting Nova Mink Ltd v
   Trans-Canada Airlines (1951) 2 DLR 241 at 256.

1. The other restraint on imposing a duty of care discussed by Cory J, was the difficulty of articulating a judicial standard of conduct for pregnant women.  The case was made more difficult by defining the issue so widely.  Any concept of the reasonable pregnant woman was rejected because it involved

“far reaching implications and extensive intrusion into the rights of bodily integrity, privacy and autonomy of pregnant women”. [51]

1. Also rejected was distinction between “lifestyle choices peculiar to parenthood” and other activities undertaken generally in the community.  But in any event driving was included as “an integral part of parenting in a great many families”.  This approach seems to have been influenced by the doctrine of parental immunity not recognised in Australia, Hahn v Conley.  It has not been suggested in this country that a mother who causes injury to her born child due to her negligent driving would not be liable in damages whether on the way to piano lessons or not, cf Hogan v Hogan (1982) 435 NE 2d 770; and see Robertson v Swincer.

1. Cory J rejected erecting a motor vehicle insurance exception. Whilst generally the existence or not of insurance is not an appropriate basis for the determination of tort liability, particularly in the case of loss protection insurance, Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 per Viscount Simonds at 576-7; Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 per Stephen J at 580; Perre v Apand per McHugh J at [130]; and see Stapleton Tort, Insurance and Ideology in [1995] 58 Mod L Rev 820 at 841, nonetheless where policy issues do dictate the outcome, the availability of a fund and a comprehensive scheme imposed on all drivers by the legislature will be a proper factor to take into account, Kars v Kars (1996) 187 CLR 354 at 382.

1. This is particularly so where the existence of liability insurance is exposed in the pleadings as, for example, s 52 of the Motor Accident Insurance Act 1994 (Qld), where the insurer is required to be joined as a defendant or, in certain circumstances, be the sole defendant. But the presence of such a scheme ought not dictate the answer to the question whether a duty of care should be imposed, particularly as it may not be truly comprehensive. To take the Queensland Act as an example, it imposes a scheme of compulsory insurance for the wrongful infliction of personal injury caused by, through or in connection with a motor vehicle but will not apply to injuries caused by an uninsured motor vehicle unless the event happens on a public road or place.

1. But, the existence of a reasonably comprehensive compulsory legislative scheme is a clear social policy decision by the legislature that those injured by careless driving should be compensated and if the dispute does not settle after a claim is made on the compulsory third party insurer it may, in accordance with the provisions of the Motor Accident Insurance Act 1994 (Qld), proceed to be litigated in the courts. No class of persons is expressly excluded from the ambit of the Act, see s 5. There is nothing to imply that a child in the position of the plaintiff is to be excluded. Accordingly, if policy reasons are to be the basis for a refusal to impose a duty of care, then in Queensland is a clearly discernable policy which does not depend for its content on what any particular court might judge to be fair, just or reasonable.

1. McLachlin J in Dobson endorsed Cory J’s analysis of the issues. She opposed any attempt to apply common law liability for negligence to pregnant women in relation to the unborn child on the ground that it intruded unacceptably on their liberty and equality interests [84]. She was unable to accept that the common law could achieve a limited intrusion within acceptable limits

“without distortion of the very methodology by which it operates and introduces new difficulties”. [89]

She rejected the three restraints on recoverability which had been proposed.  The first, that only children born alive could sue, she accepted would eliminate liability for abortion but “leaves vast scope for curtailment of the pregnant woman’s autonomy”. [89]  Of the second restraint - that liability would follow only where the mother had an insurance policy to cover the damage - that “flies in the face of the maxim that tort liability cannot be predicated on the means of defendant”. [89]  Of the third restraint proposed which had been adopted in the court below that “liability be restricted to situations where the pregnant woman already owes a duty to other people “generally” (a general duty to “drive carefully”), McLachlin J said it violated

“the precept that a common law duty of care arises from the relationship of the parties before the court, not from their relationship between the defendant and a hypothetical plaintiff.” [89]

1. McLachlin J rejected the further elaboration on this restraint advanced by Major J in his dissenting judgment that the additional duty must be owed to an actual third party because such an agreement violated the principle that the duty of care in tort must be founded on the relationship between the actual parties to the dispute before the court

“and makes recovery conditional on the serendipitous coincidence that another person stood to be injured by the pregnant woman’s act or omission.” [89]

1. Major J accepted the policy considerations of respect for the autonomy and privacy of a pregnant woman which informed the majority judges but concluded that neither a woman’s freedom of action nor her privacy were restricted on the facts of the case before the court.  A pregnant woman was not legally free to operate a motor vehicle without due care so that the imposition of a duty of care to her born alive child could not take from her a freedom she did not have.  Thus

“[w]here a pregnant woman already owes a duty of care to a third party in respect of the same behaviour for which her born alive child seeks to find her liable, policy considerations pertinent to the pregnant woman’s freedom of action cannot operate so as to negative the child’s prima facie right to sue.  The duty of care imposed on the pregnant woman is not more onerous because of her potential liability to her born alive child.” [116]

1. He disagreed with McLachlin J’s criticism that a duty of care in tort must be founded on the relationship between the actual parties to the dispute.  Major J pointed out that where a duty of care is owed to a third party, the child’s prima facie right to sue cannot be negatived on policy grounds flowing from the pregnant woman’s freedom of action because

“nothing in the relationship between the actual parties to the dispute can possibly support the proposition that the imposition of liability to her born alive child would infringe her freedom of action.” [118]

1. To borrow an idea from Rosamund Scott in her thoughtful article Maternal Duties Towards the Unborn in [2000] Med L Rev 1 at 4, the difficulties in imposing a duty of care on a woman in respect of injuries negligently caused by her to her born alive child whilst in utero lie at the interface between the subjective domain of rights and the objective arena of duties.  There was no reliance on the Charter of Rights by the Supreme Court of Canada in Dobson in recognising a pregnant woman’s rights to autonomy and privacy (perhaps with McLachlin J as an exception).  What, if any, those rights might be in the absence of legislation would depend on current community expectations informed by previous authority. Attitudes will clearly change and what would be an unthinkable interference in individual liberty of action today may be proscribed by the development of the law in the future.  An example is the attitude to wearing seat-belts and crash helmets once thought to be an unwarranted interference in an individual’s freedom of action but which now may be taken into account in a civil action for damages.  By refusing to countenance liability in pregnant women at all the court in Dobson has left no room for development of the law.

1. It is clear that a foetus may sustain injuries from the negligent act of its mother that may not directly implicate the unique relationship between the mother and foetus and accordingly  no rights of autonomy or privacy would be disregarded if a duty of care were imposed.  It may be instructive to look at another area of tort law where courts have identified difficulties in setting a standard of care and therefore imposing a duty of care, not for the analogy, but for the methodology.  Courts in Australia have grappled with and found some resolution to the question of whether to impose a duty of care when the plaintiff and the defendant are engaged in a joint illegal enterprise.  To have offered a blanket exclusion of liability would have failed to take account of situations such as that in Progress and Properties Ltd v Craft (1976) 135 CLR 651 where the operator and another worker jointly embarked on the illegal conveyance of the worker on a hoist and in the course of the lift the worker was seriously injured due to the operator’s negligence.

1. In Gala v Preston (1990-1991) 172 CLR 243 Mason CJ, Deane, Gaudron and McHugh JJ at 252 noted that in cases involving a joint illegal enterprise it is necessary to examine the relation of the illegality to the negligence complained of

“with a view to ascertaining whether it is possible or feasible for the court to determine the appropriate standard of care.  If it is impossible or not feasible to do so, no duty of care arises”.

Dawson J explained a refusal to set a standard of care and thus impose the duty of care in some cases when the plaintiff is engaged in a joint illegal enterprise with the defendant as an unwillingness to condone the commission of a criminal offence by granting a civil remedy.  But in certain cases setting an appropriate standard of care would not involve any dependence upon the nature of the criminal activity in which the parties were engaged and for that reason the imposition of the duty of care involved no condonation of their breach of the criminal law, at 276, 280.

1. There are, of course, numerous examples which would demonstrate anomalous situations which would arise if no duty of care was held to be owed where a pregnant woman negligently drives a car and injures the child in utero.  A pregnant woman whose careless driving causes injuries to two of her children who are passengers in the motor vehicle as well as injuries to the child in utero would be liable to the passenger children but not to the injured baby when born. Equally unsatisfactory would be the situation where a pregnant woman driving her pregnant friend negligently causes a motor vehicle accident in which injuries are sustained by both children in utero.  The child born to the passenger would have standing to sue, the child born to the careless driver would not.

1. Where, as here, a woman has no rights of autonomy or privacy, whatever their content, which would be disregarded if a duty of care were imposed in circumstances where the special relationship with the foetus does not of itself subsist then there is no basis for declining to impose a duty of care.  The common law is able, in my view, to approach this issue in a principled way.

1. Accordingly I would answer the question “yes”.

1. I will hear submissions as to costs.