Bowditch v McEwan

Case [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

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Bowditch v McEwan [2001] QSC 448
Case
[2001] QSC 448
Decision Date

CaseChat Overview and Summary

In Bowditch v McEwan, the plaintiff sought to hold the defendant, his mother, liable for injuries he sustained while in utero after the defendant negligently drove her car into a stationary vehicle. The case came before the Queensland Supreme Court, which was required to determine whether the defendant owed the plaintiff a duty of care under negligence principles, and if so, whether such a duty could give rise to a cause of action for the plaintiff. The central issue before the court was whether a mother could be held liable for injuries to her child caused by negligent driving while the child was in utero. The court considered whether the established principle of parental immunity applied, and whether the doctrine of intra-familial immunity could extend to this scenario. Ultimately, the court held that the doctrine of parental immunity was not recognised in Australia and did not apply to this case.

The court also examined the standard of care that should apply to pregnant women who negligently drive, distinguishing between general prenatal negligence and negligent driving. The court considered the appropriate judicial standard of conduct for pregnant women, taking into account the specific context of negligent driving. The court noted that policy considerations arising from a claim based on negligent driving might differ from those based on a mother taking other unjustified risks to the foetus during pregnancy. The court concluded that the presence of a comprehensive liability insurance scheme imposed on all drivers by the legislature, which provides a fund and comprehensive insurance coverage, would be a relevant factor in determining whether a duty of care should be imposed.

The court determined that the defendant did owe the plaintiff a duty of care, breach of which would afford the plaintiff a cause of action in negligence for any injuries sustained as a result of the collision. The court answered the pre-trial question on the papers in the affirmative, finding that the defendant's negligent driving could give rise to a cause of action for the plaintiff. This decision clarifies the extent of a mother's duty of care to her unborn child in the context of negligent driving, and highlights the importance of considering policy implications and the availability of insurance in such cases.

Orders

Orders of the court

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”.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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