Can a child sue her mother in English Law of Tort for injuries suffered in utero as a result of a car crash caused by the negligent driving of the mother?
Law of negligence is an essential part of English Law of Tort where the claimant can sue the defendant for not providing duty of care as a result of for instance negligence or “careless behaviour” causing harm to the claimant. The question at hand is whether a child can sue her mother for injuries suffered in utero as a result of a car crash caused by the negligent driving of the mother. According to s.2 of the Congenital Disabilities (Civil Liability) Act 1976; “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[…]”. If the child is born with disabilities she may be able to sue her mother, “[…] 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” s.2. Hence, my stance on this issue is the same as the law imposes; that yes, the child may sue her mother, which will be provided evidence for in this essay.
Failure to provide duty of care as a result of negligence in modern law of negligence has derived from the case of Donoghue v Stevenson (1932). The plaintiff, Mrs Donoghue fell sick after drinking ginger beer from an opaque bottle containing a decomposed snail brought by her friend in a coffee shop owned by Stevenson, the defendant. The neighbour test was the outcome of the judgement which led; ”You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act […]” Basically, two principles can be derived from the decision that; there ought to be reasonable foresight of harm and a relationship of proximity between the parties in order to establish breach of duty of care. The Caparo from the case of Caparo Industries Plc v Dickman (1990) test imposes another principle that the courts utilize in their decision and it is whether it is fair, just and reasonable to impose a duty of care in such a case. The purpose of establishing breach of duty of care resulting from negligence is to somehow compensate the claimant to recover the harm or damage caused by the tortfeasor. There are five elements that are required in order for the claimant to generate an action against the defendant. Firstly, the defendant must have owed the claimant duty of care and then breached it, which the mother does to her unborn baby. As a result there must be loss caused to the claimant and it may not be too remote i.e. relatively foreseeable by the defendant. Since the mother was driving negligently and even if the harm caused to the foetus was unintentional the child has the right to sue her own mother. The defendant may not have the opportunity to defend herself against the plaintiff.
In order for a defendant to plead guilty of negligence, he or she must not have even caused the harm intentionally, but merely have failed to provide the claimant with the duty of care that a reasonable person would have given in such a situation. This was proven in Burton v Islington Health Authority (1993) where Ms. Burton was born disabled as a result of breach of duty of care by the surgeon who failed to remove the tissue in the lining of the womb of the mother. The court held that the surgeon owed duty of care to the foetus despite of the fact that she was not a legal personality up until her birth. If the doctors had carried out the surgical procedure correctly prior to the claimant’s birth then she would have been born healthy. However, persons who were caused harm as a foetus prior to 1976 when the Act was passed may not sue the defendant according to s.4(5) of the Act even if they are still suffering from the consequences, such as in this case. Prior to the passing of the Act, it was held in Dietrich v. Northampton (1884) that a mother carrying a baby in her womb did not owe duty of care to her unborn as he was not yet in being. Justice Holmes concluded that "the unborn child was a part of [its] mother" . However, courts now believe that the mother, knowing that she is pregnant can foresee that damage caused to herself¨, though caused unintentionally and negligently, it will also affect her unborn baby. Justice Carroll C. Boggs of the Illinois Supreme Court in his Allaire dissent had another view than Justice Holmes stating that “It is but to deny a palpable fact to argue there is but one life, and that [it is] the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body.“
In R v Senior (1832) an incompetent male midwife caused damage to the unborn child’s skull leading to the child’s death and the midwife’s conviction of manslaughter though not yet born. The same grounds for conviction of the mother ought to apply since there is no defence on the midwife’s behalf for causing death of another person.In Watt v Rama the judge Gillard J concluded the “crystallising duty “ which is based on the proximity of mother and child after the child’s birth. It states that in the tort of negligence mothers should exercise a duty not to injure by want of reasonable care and not just the sake of providing reasonable care to the foetus. Furthermore, that “damage” in the legal sense must be applied to legal persons i.e. not the ones who are not yet born. However, this way of thought, found in common law was bound to change to one of civil law, which is practiced now as evident by s.2 of the Congenital Disabilities (Civil Liability) Act 1976. The mother’s negligent driving is the cause to the plaintiff’s disability and therefore she is liable for the legal consequences. However, the Courts must prove a causal connection between the defendant's conduct and the eventual harm to the child. In McKay v. Essex H.A (1982) the plaintiff, who was born with disabilities sued the defendant, a doctor who did not warn the mother that the child would be born with disabilities. There is a distinction of such a case from the current situation being dealt with. Here the cause of the child’s disability is in no manner associated with the mother’s negligence to provide duty of care, but the doctor’s. However, the doctor in this case failed to inform the mother that the child would be born with disabilities which he can be held guilty for.
In conclusion, a child can sue her mother in English Law of Tort for injuries suffered in utero as a result of a car crash caused by the negligent driving of the mother, as provided evidence for in the essay and s. 2 of the Act. The defendant must have owed the claimant duty of care and then breached it, which the mother does to her unborn baby. As a result there must be loss caused to the claimant and it may not be too remote i.e. relatively foreseeable by the defendant. Since the mother was driving negligently and even if the harm caused to the foetus was unintentional the child has the right to sue her mother. The defendant, in this case the mother may not have the opportunity to defend herself against the plaintiff which she does not because she has breached s.2 of the Act. The mother’s negligence is the cause of the child’s disability and if it was not for her negligence the child would have been born healthy, hence the child has the right to sue.
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