Bowditch v McEwan - [2002] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

Bowditch v McEwan and Ors [2002] QCA 172

PARTIES:

JOHN LUKE BOWDITCH (by his litigation guardian) JOHN STANLEY BOWDITCH
(plaintiff/respondent)
v
JOYCE ANNE McEWAN
(first defendant/appellant)
DANIEL TIMOTHY STUTT
(second defendant/not a party to appeal)
DIGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD ACN 000 446 800
(third defendant/not a party to appeal)

FILE NO/S:

Appeal No 11576 of 2001
SC No 1008 of 1995

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2002

JUDGES:

de Jersey CJ, McPherson JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Dismiss the appeal, with costs to be assessed.

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

Uniform Civil Procedure Rules, r 483(1)

Body Corporate Strata Plan No 4303 v Albion Insurance Co Ltd (1982) VR 699, distinguished
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529, referred to
Dobson v Dobson (1999) 174 DLR (4^th) 1, considered
Donoghue v Stevenson (1932) AC 562, applied
Hahn v Conley (1971) 126 CLR 276, 283-4, referred to
Kars v Kars (1996) 187 CLR 354, referred to
Lister v Romford Ice and Cold Storage Co Ltd (1957) AC 555, referred to
Lynch v Lynch (1991) 25 NSWLR 411, applied
McColl v Bright (1939) VR 204, 211, distinguished
Perre v Apand Pty Ltd (1999) 198 CLR 180, applied
Watt v Rama (1972) VR 353, referred to

COUNSEL:

S C Williams QC, with K P Kimmons, for the appellant
M Grant-Taylor SC, with D Bates, for the respondent

SOLICITORS:

Eardley Motteram for the appellant
Garrahy & Associates for the respondent

de JERSEY CJ: On 7 May 1987 the appellant, then pregnant with the respondent, was driving a motor vehicle on the Bruce Highway when it collided with another vehicle driven by the second defendant and owned by the third defendant. The same company was the licensed insurer of both vehicles. When born on 17 November 1987…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bowditch v McEwan

Details

AGLC: Bowditch v McEwan [2002] QCA 172
Case: [2002] QCA 172
Decision Date: 17 May 2002

CaseChat Overview and Summary

The case of Bowditch v McEwan involved the plaintiff, Bowditch, who sought to hold the defendant, McEwan, liable for injuries sustained by her child during pregnancy due to the defendant's negligent driving. The child was born with disabilities, and the plaintiff alleged that the defendant's actions while driving were the cause of these disabilities. The case was heard in the highest court of Australia, where the primary issue was whether a mother could be held liable for injuries to her unborn child resulting from negligent driving during pregnancy.

The legal issues at hand were two-fold: first, whether a duty of care existed between a mother and her unborn child in the context of negligent driving, and second, what standard of care should be applied to pregnant women in such situations. The court had to determine if the doctrine of parental or intra-familial immunity, which is not recognised in Australia, could apply to bar the claim. Additionally, the court needed to establish the appropriate judicial standard of conduct for pregnant women when it came to driving, differentiating between general pre-natal negligence and specific instances of negligent driving.

The court held that the doctrine of parental immunity did not apply in this context and that a duty of care could indeed exist between a mother and her unborn child in cases of negligent driving. The court also determined that the standard of care expected of pregnant women while driving should be the same as that expected of any other driver. The court emphasised the importance of policy considerations, particularly the potential for broadening liability to cover all maternal risk-taking activities, which could lead to an overly broad and potentially unjust imposition of liability. In light of these considerations, the court dismissed the appeal and ordered that costs be assessed.

Orders

Orders of the court

Dismiss the appeal, with costs to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bowditch v McEwan and Ors [2002] QCA 172
PARTIES:	JOHN LUKE BOWDITCH (by his litigation guardian) JOHN STANLEY BOWDITCH (plaintiff/respondent) v JOYCE ANNE McEWAN (first defendant/appellant) DANIEL TIMOTHY STUTT (second defendant/not a party to appeal) DIGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD ACN 000 446 800 (third defendant/not a party to appeal)
FILE NO/S:	Appeal No 11576 of 2001 SC No 1008 of 1995
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 May 2002
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2002
JUDGES:	de Jersey CJ, McPherson JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Dismiss the appeal, with costs to be assessed.
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 Uniform Civil Procedure Rules, r 483(1) Body Corporate Strata Plan No 4303 v Albion Insurance Co Ltd (1982) VR 699, distinguished Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529, referred to Dobson v Dobson (1999) 174 DLR (4^th) 1, considered Donoghue v Stevenson (1932) AC 562, applied Hahn v Conley (1971) 126 CLR 276, 283-4, referred to Kars v Kars (1996) 187 CLR 354, referred to Lister v Romford Ice and Cold Storage Co Ltd (1957) AC 555, referred to Lynch v Lynch (1991) 25 NSWLR 411, applied McColl v Bright (1939) VR 204, 211, distinguished Perre v Apand Pty Ltd (1999) 198 CLR 180, applied Watt v Rama (1972) VR 353, referred to
COUNSEL:	S C Williams QC, with K P Kimmons, for the appellant M Grant-Taylor SC, with D Bates, for the respondent
SOLICITORS:	Eardley Motteram for the appellant Garrahy & Associates for the respondent