Does a Mother owe a Duty of Care to her unborn child?

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ASSIGNMENT 1: TOPIC 2 OVERVIEW Traditionally, legal protection was rarely granted to unborn child and in the event they were granted such protection, it was strictly dependent on their live birth.[1] Since then, the law governing a mother’s liability for prenatal injury has evolved and varies drastically across many jurisdictions. For example, in Canada, the courts generally take into account several policy factors to grant them immunity from liability. It is to be expected that a large majority of society would accept the proposition that a mother is required to care for and protect her child for many reasons such as emotional and moral reasons. However, it is unclear whether such a percentage would agree with the fact that a mother would be liable for causing prenatal injuries to her unborn child. Perhaps the most important issue of granting mothers full immunity is that the child would not be compensated for their prenatal injuries from their mother and also from third parties like insurers. This article will examine the current law across various jurisdictions like Canada and the United Kingdom (particularly the various policy considerations adopted) in order to ascertain the most suitable approach to be implemented in Australia, since the question whether a mother owes a duty of care towards her unborn child is still unsettled in this jurisdiction. This article will also consider arguments for and against imposing a duty of care. Lastly, it concludes with a suggestion that a mother should not be liable for causing prenatal injury to her unborn child other than in motor vehicle accidents[2] and why this will be the most appropriate approach.
  1. INTRODUCTION
Essentially, a duty of care is ‘an obligation imposed on a person to take reasonable care to ensure that they do not cause another person to suffer harm’.[3] The relationship between a parent and a child is one such circumstance that draws such a duty of care to be imposed in some jurisdictions. It has been accepted by many that the duty of care outlined above will only accrue when a child is born and possesses legal rights.[4] Having said that, some commentators are of the view that since a fetus is completely dependent upon his mother for nourishment and life, a pregnant woman should owe a similar duty of care to her unborn child.[5] It is without a doubt that the right of an unborn child to sue its mother will bring about several ethical and moral issues that will put a strain on family ties. In Australia, when a child is born it is automatically entitled to sue for breach of rights.[6] The courts have extended this view to include situations where the unborn child sustains injuries prior to being born.[7] It is well established that the courts have held third parties like negligent road users[8] and doctors[9], liable for injuries inflicted onto an unborn child. Although the child possessed no legal rights when the damage was inflicted, it materializes when it is born and hence, reflects the laws of negligence which states that a cause of action does not accrue until damage or harm is suffered. Conversely, the courts are reluctant to apply such standards of care when it concerns prenatal injuries inflicted upon an unborn child by its mother resulting in ‘maternal immunity’ for such injuries. Currently in Australia, a mother owes no such duty of care towards her child except in the event of road accidents.[10] It should be noted at this stage that whilst Australia has not applied such a duty of care in such circumstances, the courts have neither rejected it completely[11], unlike the approaches adopted in Canada and United Kingdom.
  1. CURRENT LAW
  1. CANADA
In Canada, policy factors have to be taken into account before reaching a decision as to whether a mother owes a duty of care to her unborn child. This issue was dealt with in the landmark cases of Winnipeg Child and Family Services (Northwest Area) v G (DF) [1997] 3 SCR 925 (Winnipeg Child and Family Services) and Dobson (Litigation Guardian of) v. Dobson [1999] 2 S.C.R. 753 (Dobson), where the Supreme Court of Canada had first tackled this issue. Dobson involved a claim against a pregnant mother for causing injuries to her unborn child due to her negligent driving. Her fetus was apparently damaged in this and had to be delivered prematurely via caesarean section on the day of the accident. As a result, the child was born with cerebral palsy. A tort claim was brought by the maternal grandfather on behalf of the child in order to claim from his father’s insurance policy so as to cover the damages caused by negligent driving. The majority in this case found that a pregnant woman should not be held liable in the situation as a claim for negligent driving should be treated no differently to any other negligent acts of the mother.[12] McLachlin JJ goes on to add that imposing such a liability would restrict a woman’s rights. Specifically ‘they would lose their liberty and not be treated equally with other women in society’[13]. The majority then went on to cite the test laid out in Kamloops[14]. Following Kamloops, the Court said a duty of care is recognized if the involved parties are closely related and if the issue raises questions about public policy. One might argue that although a fetus and its mothers are usually seen as one person, the Court in this case addressed the issue as if they were two separate people. It is also vital to note that the ‘reasonable pregnant woman’ standard of care is an objective test. The majority in this case deemed it to take into account in this case[15] as it will raise many issues regarding a pregnant woman’s personal lifestyle choices which will have a negative impact on her privacy and way of life. Eventually, the majority came to a conclusion that public policy factors associated with imposing a duty of care on mothers towards their unborn child ‘are of such a nature and magnitude that they clearly indicate that a legal duty of care cannot and should not be imposed by Courts’.[16] Hence, the Court held that the public policy considerations were paramount and outweighed any sufficiently close relationship between the parties that gave rise to the duty of care and that the mother did not owe a duty of care her unborn child even in circumstances where it involved motor vehicle accidents. It should be noted that Australian courts reach a different decisions as times due to the fact that emphasis is not placed on applying the public policy considerations in such cases. Also, when it concerns motor vehicle accidents in Australia, the mother is held liable for prenatal injuries caused to her unborn child if she was negligent without weighing the public policy considerations. In Winnipeg, the Supreme Court of Canada held that a pregnant woman who was addicted to glue sniffing could not be taken away against her will in trying to protect the interest of her unborn child. The Court concluded that they had no jurisdiction to interfere in such matters and that it was beyond the scope of the Court’s power to detain a pregnant woman against her will. As such, the Court stated that, ‘To extend the law of tort to permit an order for the detention and treatment of a pregnant woman for the purpose of preventing harm to the unborn child would require major changes to the existing law … these are the sort of changes which should be left to the legislature’.[17]
  1. UNITED KINGDOM
The current law in the United Kingdom surrounding this issue is very similar to that adopted in Australia.[18] The Congenital Disabilities (Civil Liability) Act 1976 (UK) grants mothers a legal immunity from liability for causing prenatal injuries to her unborn child. However, the court cited that a legal duty should be imposed where it is the result of a motor vehicle accident.[19] Section 2 of the Congenital Disabilities Act states: A woman driving a motor vehicle when she knows (or ought reasonably to know) herself to be pregnant is to be regarded as being under the same duty to take care for the safety of her unborn child as the law imposes on her with respect to the safety of other people; and if in consequence of her breach of that duty her child is born with disabilities which would not otherwise have been present, those disabilities are to be regarded as damage resulting from her wrongful act and actionable accordingly at the suit of the child. In enacting this legislation, the United Kingdom Law Commission also took into consideration public policy factors that was applied in other jurisdictions.[20]
  1. AUSTRALIA
As discussed above, only a third party, who is not the mother of the unborn child, can be found to have owed a duty of care to the child.[21] In Lynch v Lynch (by her tutor Lynch) (1991) 25 NSWLR 411 (Lynch v Lynch), a mother was found guilty of negligent driving, causing an accident which resulted in cerebral palsy in her unborn child. Public policy factors were not applied in this case as Clarke JA held that the question before the court was ‘very narrow and related specifically to road accidents.’[22] The court also took into account whether there was a presence of a compulsory motor vehicle insurance in concluding whether the mother owed a duty of care to her unborn child.[23] The majority decision in Lynch v Lynch was affirmed and cited in Bowditch v McEwan [2002] QCA 172 (Bowditch v McEwan). It has been long established that a duty of care is owed to pedestrians and other road users.[24] However, Watt v Rama extended this duty of care to incorporate fetuses injured in road accidents. In this case, a mother who was pregnant caused injuries to her unborn child as a result of her negligent driving. The child subsequently suffered from epilepsy and brain damage. The mother denied that she owed her unborn child a duty of care whilst it was still in her womb. However, the Victorian Supreme court held that since the child was born handicapped as a result of the injuries sustained while it was still in its mother’s womb, attracts a duty of care. As a result, it was immaterial whether the child was born or not when the injury was sustained, so as long as the victim fell into a category of people that would be affected by a negligent act caused by someone else. Although the Australian courts are required to specifically apply public policy considerations in ascertaining whether a duty of care exists, it is not as rigid and explicit as the approach adopted in Canadian courts.
  1. ARGUMENTS FOR IMPOSING A DUTY OF CARE
There are many factors that needs consideration when a jurisdiction imposes a duty of care that will attract an ethical and legal difficulties. The pivotal argument put forth in cases in imposing a duty of care is that a fetus is solely dependent upon its mother for nutrition in order for it to develop healthily.[25] Hence, it is reasonable foreseeable that any negligent acts would have a undesirable impact on the unborn child. Unquestionably, the proximity test would satisfy the neighborhood principle established in Donoghue v Stevenson.[26] In addition, by imposing a duty of care, a mother will most likely act in the best interests of her unborn child. For example, a pregnant woman might refuse to attend medical checkups or follow medical advice that would benefit the unborn child. Also, she might refrain from harmful activities like smoking and drinking that will negatively impact upon an unborn child.
  1. ARGUMENTS AGAINST IMPOSING A DUTY OF CARE.
Some factors would prevent such a duty from being imposed due to the repercussions it might have on the society as well as in their personal lives. This mainly revolves around preserving the autonomy and privacy of a pregnant woman.[27] As discussed in this article, Cory J in Dobson v Dobson, made it clear that a pregnant woman’s rights must be upheld as first and foremost, she is a human being and should be afforded the same rights as others. The courts are also reluctant on imposing a general duty of care as this would encourage children to sue their parents in negligence. If this trend continues, it could have adverse effects on the relationship between the mother and the child as well as the rest of its family.[28] However, this reason on its own is not sufficient to complete eradicate the duty of care owed to an unborn child.
  1. SUGGESTED APPROACH FOR AUSTRALIA?
On one hand, it is very important for a mother to consider how her actions might have an impact on her unborn child, however, it is not in the hands of the judiciary to dictate how she should live her personal life as that would interfere with her right to privacy. While Australian courts have not imposed a general duty of care in such cases, it has not been rejected as well. 1
[1] Lenow, The Fetus as Patient: Emerging Rights as a Person?, 9 AM. J. L. & MED. 1, 3 (1983). [2] Watt v Rama [1972] VR 353. [3] LexisNexis, Encyclopaedic Australian Legal Dictionary, LexisNexis <http://www.lexisnexis.com.au>. [4] X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26, 30 (Mahoney JA). [5] Beal, "Can I Sue Mommy?" An Analysis of a Woman's Tort Liability for Prenatal Injuries to Her Child Born Alive, 21 San Diego L. Rev. 325, 326 (1984). [6] X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26, 30 (Mahoney JA). [7] X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26, 41 (Clarke JA) stated that: ‘In principle it should be accepted that a person may be subjected to a duty of care to a child who was neither born nor conceived at the time of his careless acts or omissions such that he may be found liable in damages to that child.’ [8] Watt v Rama [1972] VR 353; Road Accident Fund v Mtati (332/2004) [2005] ZASCA 65; [2005] 3 All SA 340 [9] Yvonne Joyce McLennan v McCallum [2007] WADC 67. [10] Lynch v Lynch (1991) 25 NSWLR 411 affirmed in Bowditch v McEwan [2002] QCA 172. [11] Kate Wellington, ‘Maternal Liability for Prenatal Injury: The Preferable Approach for Australian Law?’ (2010) 18 Tort Law Review 89, 90. [12] Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753 (Lamer CJ, L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Binnie JJ; Major, and Bastarache JJ dissenting). [13] Dobson (Litigation Guardian of) v Dobson [1999] 2 SCR 753, [19] (Cory J). [14] City of Kamloops v. Nielsen (1984) 2 SCR 2. [15] Do, Christina and Mapulanga-Hulston, Jackie. The ethical and legal conundrum: Should a mother owe a duty of care to her unborn child? [online]. Journal of Applied Law and Policy, 2013: 5. [16] Dobson (Litigation Guardian of) v Dobson [1999] 2 SCR 753, [76] (Cory J). [17] Winnipeg Child and Family Services (Northwest Area) v G (DF) [1997] 3 SCR 925. [18] Do, Christina and Mapulanga-Hulston, Jackie. The ethical and legal conundrum: Should a mother owe a duty of care to her unborn child? [online]. Journal of Applied Law and Policy, 2013: 9. [19] Congenital Disabilities (Civil Liability) Act 1976 (UK), s 2. [20] United Kingdom, Law Commission, Injuries to Unborn Children, Report No 60 (1974) Cmnd 5709, pp 53-64. [21] Watt v Rama [1972] VR 353 affirmed in X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26. [22] Lynch v Lynch(by her tutor Lynch)(1991) 25 NSLR 411, 415 (Clarke JA). [23] Do, Christina and Mapulanga-Hulston, Jackie. The ethical and legal conundrum: Should a mother owe a duty of care to her unborn child? [online]. Journal of Applied Law and Policy, 2013: 8. [24] Manley v Alexander [2005] HCA 79. [25] Do, Christina and Mapulanga-Hulston, Jackie. The ethical and legal conundrum: Should a mother owe a duty of care to her unborn child? [online]. Journal of Applied Law and Policy, 2013: 3. [26] Donoghue v Stevenson [1932] AC 562. [27] Bowditch (by his next friend Bowditch) v McEwan [2001] QSC 448, [10]. [28] Dobson (Litigation Guardian of) v Dobson [1999] 2 SCR 753, [46] (Cory J).
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