B v Islington Health Authority

JurisdictionEngland & Wales
Judgment Date18 March 1992
Judgment citation (vLex)[1992] EWCA Civ J0318-5
Docket Number92/0265
CourtCourt of Appeal (Civil Division)
Date18 March 1992

[1992] EWCA Civ J0318-5



Royal Courts of Justice









Lord Justice Dillon

Lord Justice Balcombe

Lord Justice Leggatt


Tina Burton
Islington Health Authority
Christopher De Martell
Merton and Sutton Health Authority

MR PIERS ASHWORTH Q.C. and MR JOHN GRACE, instructed by Messrs Beachcroft Stanleys, appeared for Islington Health Authority.

MR DANIEL BRENNAN Q.C. and MR ALISTAIR FORREST, instructed by Messrs Pannone Blackburn (Manchester), appeared for Miss Tina Burton.

MR HARVEY McGREGOR Q.C. and MISS JEAN RITCHIE, instructed by Messrs Capsticks, appeared for Merton and Sutton Health Authority.

MR ADRIAN WHITFIELD Q.C. and MR PETER LATHAM, instructed by Messrs Pannone March Pearson, appeared for Mr Christopher De Martell.


The court has before it two appeals which raise the same point of law, that is to say, can a child who is born alive, but suffering from disabilities occasioned by negligence on the part of the proposed defendant at a time when the child was en ventre and unborn, maintain an action for damages for negligence against the defendant.


In both these cases the alleged negligence was that of the medical staff at a hospital, but, as the decided cases show, it could have arisen from a range of other contexts, for instance from negligent driving of a motor vehicle or negligence on the part of a railway company or tramway company in respect of a train or tram in which the mother of the child was travelling as a passenger while pregnant.


The two decisions appealed from are, firstly, that of Mr Justice Potts in Burton v. Islington Health Authority decided on 25th September 1990 and, secondly, that of Mr Justice Phillips in De Martell v. Merton and Sutton Health Authority, decided on 3rd May 1991.


Technically the appeal against the decision of Mr Justice Potts is interlocutory because decided on an application by the defendants to strike out the claim as disclosing no reasonable cause of action, while the appeal against the decision of Mr Justice Phillips is a final appeal because his decision was on a question directed by consent to be tried as a preliminary issue. That is one of the quirks of the system and it does not affect the outcome of the appeals. Both judges decided in favour of the child having a possible cause of action so that each action will proceed to trial.


Since we are only concerned with a point of law, the precise facts do not matter but I should indicate them briefly to show the limited scope of this decision.


In De Martell, the plaintiff's complaint is of negligence by medical staff when the plaintiff's mother was in labour at the time of her delivery and his birth.


In Burton, the plaintiff's complaint is of negligence by medical staff at a much earlier period—they carried out a dilation and curettage procedure at a time when the plaintiff's mother was about five weeks pregnant with the plaintiff but did not know it, and they failed to carry out any pregnancy test before the D & C procedure. It is said that they should have done so, especially as there were circumstances which might have put and should, it is said, have put experienced medical staff on enquiry. Neither case is concerned at all with the position where a child has been still-born as a result of a third party's negligence or has, as a result of such negligence, survived birth for only a minimal period.


There are statutory provisions as to civil liability in the case of children born disabled, in consequence of some person's fault, in the Congenital Disabilities (Civil Liability) Act 1976. But that Act only applies in respect of births after (but not before) its passing, that is to say 22nd July 1976: see section 4(5) of the Act:

"This Act applies in respect of births after (but not before) its passing, and in respect of any such birth it replaces any law in force before its passing, whereby a person could be liable to a child in respect of disabilities with which it might be born."


The 1976 Act does not apply in the present case as Tina Burton was born disabled on 26th April 1967 and Christopher De Martell was born disabled an 5th February 1967. These actions have therefore to be decided according to the law in force before the passing of the 1976 Act—essentially the common law.


It is sufficient, in order to dispose of these appeals, to say merely that all the points which have been put to us by Mr Ashworth and Mr Harvey McGregor, for the appellants, were put to Mr Justice Phillips by Mr Harvey McGregor in De Martell. In his careful and extremely clear judgment, which I would gladly adopt as my own, Mr Justice Phillips dealt with all those points. Nothing that has been submitted to us has raised any doubt in my mind but that Mr Justice Phillips dealt with all those points entirely correctly. Nevertheless, in deference to the arguments of counsel, I will add further comments of my own.


It is now elementary that the tort of negligence involves three factors: a duty of care, a breach of that duty and consequent damage. Without damage there is no cause of action. Reference can be made to the decision of the House of Lords in Watson v. Fram Reinforced Concrete Company (Scotland), Limited. [1960] S.C.(H.L.) page 92. The facts of that case can be taken from the head note:

"A workman, who had been injured through the breaking of a defective part in the machine with which he was working, brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had supplied it to his employers, on averments to the effect that the accident had been caused by the fault of the manufacturers in that they failed to supply his employers with a machine which was safe for use by their servants. The machine had been supplied on 7th July 1955 and the accident had happened on 9th August 1956, but the manufacturers were not convened in the action until 25th March 1959."


The Law Reform (Limitation of Actions) Act 1954 for Scotland provided in the relevant section that:

"No action of damages where the damages claimed consist of or include damages…in respect of personal injury to any person shall be brought in Scotland against any person unless it is commenced before the expiration of three years from the date of the act, neglect or default giving rise to the action.."


It was nonetheless held by the majority of the House of Lords that the three year period ran from the date when the workman suffered the injury and not from the earlier date when the manufacturers manufactured the defective machine. Accordingly, the action against the manufacturers was not time barred. The position is explained by Lord Reid at 109:

"The reason why I lay stress on this matter is this: the basis of the respondents' argument was that there was a single 'act, neglect or default', videlicet, the supply of the defective machine, from which the three years' limitation is directed by the Act to run. It may be true that there was a single 'act' or 'neglect' but, if so, that was the negligent manufacture and not the subsequent sale of the machine. And you cannot stop there, because I find it impossible to interpret the Act as meaning that the three years are to run from that date. The defective article might still be in the manufacturer's possession three years after the date of manufacture, and he might sell it later, but no one would have the hardihood to suggest that the three years limitation had already cut off all right of action before he had sold it. Yet if the 'act,' 'neglect' and 'default' mentioned in the Act all refer to a similar act or omission, that must be so.

It appears to me that default in the sense of breach of duty must persist after the act or neglect until the damage is suffered. The ground of any action based on negligence is the concurrence of breach of duty and damage, and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs."


A few lines later:

"Whatever be the true view with regard to the act or neglect, I think that the appellant is entitled to say that the respondents' 'default giving rise to the action' existed at the time when he suffered his injuries."


There are further passages to the same effect in the speech of Lord Denning at pages 115 and 119 and Lord Denning concluded at page 119:

"So here the wisdom of the common law lies in this, that it holds the breach of duty to be, not the carelessness in manufacture, nor the putting into circulation of a faulty machine, but the wrongful infliction of damage: and the time accordingly only runs from that date."


And a bit later:

"I am prepared to hold, therefore, that the 'act, neglect or default giving rise to the action' was the doing of damage to the plaintiff by the negligence of the defendants: and inasmuch as the action was commenced within three years from the date when the damage was done, it is not barred by the statute."


Thus it is common ground in the present case that if a manufacturer negligently makes and markets defective goods, for instance a car with defective brakes, or a soothing syrup for babies which is negligently contaminated with corrosive acid, and the defective goods are put on the market and sold to a member of the public, and the predictable accident follows and a young baby is injured, for...

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