Burton v Islington Health Authority

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date1992
Date1992

DILLON, BALCOMBE AND LEGGATT, L JJ

Negligence – unborn child – duty of care – alleged breach of that duty to plaintiffs' mothers while pregnant – plaintiffs born with abnormalities – whether plaintiffs had a cause of action.

In both cases the plaintiffs were bond suffering from disabilities. They alleged those disabilities had resulted from negligence by the staff at the defendant health authorities' hospitals.

In Burton's case, the plaintiff was born on 26 April 1967. She alleged that her abnormalities had been caused by a gynaecological operation performed on her mother when she was five weeks pregnant with the plaintiff. That operation should not have been carried out on a pregnant woman and it was alleged that the medical staff had been negligent in failing to carry out a pregnancy test. The health authority applied to strike out the claim as disclosing no reasonable cause of action because at the time when the alleged negligence occurred and the injury was caused to the plaintiff she was no more than an embryo and had no legal status. Therefore, she was not then a legal person to whom a duty of care was owed and had no right to sue.

In De Martell's case, the plaintiff was born on 7 February 1967. He claimed that his abnormalities were caused by negligence of the hospital staff when his mother was in labour at the time of her delivery and his birth.

In each case the child was born before the coming into force of the Congenital Disabilities (Civil Liability) Act 1976. In both cases the Judges at first instance held that the defendants could be liable at common law to the plaintiffs for injuries inflicted upon them before their birth.

The health authorities appealed.

Held – dismissing the appeals: A child who was born suffering from disabilities caused by negligence before birth could bring an action for damages for negligence in respect of a breach of duty of care. A foetus enjoyed, while still a foetus, no independent legal personality. But an

unborn child was deemed to be born whenever its interests required it. Therefore, when the negligence occurred before birth, when the child was born it was clothed with all the rights of action which it would have had if actually in existence at the date of the negligence. Consequently, if the plaintiff's allegations were proved, the defendants would be liable to them in negligence.

Montreal Tramways v Leville [1933] DLR 337; Watt v Rama [1972] VR 353; and Duval v Sequin (1972) 26 DLR (3d) 418 followed.

Walker v Great Northern Railway Company of Ireland (1989) LR Ir 69 doubted.

Decision of Potts, J in Burton v Islington Health Authority [1991] 1 QB 638 affirmed.

Decision of Phillips, J in De Martell v Merton and Sutton Health Authority[1992] 2 FCR 832 affirmed.

Cases referred to:

Blasson v Blasson (1864) 2 De GJ & S 665.

Bonbrest v Kotz (1946) 65 F Supp 138.

C v S [1988] QB 135; [1987] 1 All ER 1230.

Donoghue (or M'Allister) v Stevenson [1932] AC 562.

Duval v Seguin (1972) 26 DLR 418.

F (In Utero), Re [1988] Fam 122; [1988] FCR 529; [1988] 2 All ER 193.

George and Richard, The (1871) LR 3 A & E 466.

Grant v Australian Knitting Mills Ltd [1936] AC 85.

Hay (or Bourhill) v Young [1943] AC 92; [1942] 2 All ER 396.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294.

Long v Blackwell (1797) D & E 100.

Montreal Tramways v Leveille [1933] 4 DLR 337.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No 1) [1961] AC 388; [1961] 1 All ER 404.

Paton v Trustees of BPAS [1979] QB 276; [1978] 2 All ER 978.

Pinchin v Santam Insurance Co Ltd [1963] 2 SA 254.

S v Distilled Co (Biochemicals) Ltd [1970] 1 WLR 114; [1969] 3 All ER 1412.

Villar v Gilbey [1907] AC 139.

Walker v Great Northern Railway Company of Ireland (1891) 28 LR Ir 69.

Wallis v Hodson (1740) 2 Atk 114.

Watson v Fram Reinforced Concrete Co (Scotland) Ltd [1960] SC 92.

Watt v Rama [1972] VR 353.

Cases also cited:

Amann v Faidy (1953) 111 422.

Baker v Bolton 1808) 1 Camp 493.

Borowsky v A-G of Canada (1983) 4 DLR (4th) 112.

Cherry v Borsman [1991] 2 Med LR 396.

Cohen v Shaw (1991) The Times, 17 September.

Dietrich v Inhabitants of Northampton (1884) 138 Mass 14.

Distillers Co (Biochemicals Ltd v Thompson [1971] AC 458; [1971] 1 All ER 694.

Drobner v Peters (1921) 232 NY 220.

Dulieu v White & Sons [1901] 2 KB 669.

Gorke v Le Clerk (1962) Conn Supp 256.

Hamilton v Fife Health Board (1992) The Times, 28 January.

Heaven v Pender (1883) 11 QBD 503.

Huskey v Smith (1972) 289 Ala 52.

Keyes v Construction Service Inc (1960) 340 Mass 633.

McKay v Essex Area Health Authority [1982] QB 1166; [1982] 2 All ER 771.

Magnolia Coca Cola Bottling Co v Jordan (1935) 124 Tex 347.

Mone v Greyhound Lines Inc (1975) 368 Mass 354.

Palsgraf v Long Island Railway (1928) 248 NY 339.

Smith v Brennan (1960) 31 NJ 353.

Smith v Luckhardt (1939) I11 App 100.

Torigan v Watertown News Co Inc (1967) 352 Mass 446.

Verkennes v Corniea (1949) 229 Minn 365.

White v Yupp (1969) 85 Nev 527.

Woods v Lancet (1951) NY 349.

X and Y v PAL (1991) 23 NSWLR 26.

Zepeda v Zepeda (1963) 41 I11 App 2d 240.

Piers Ashworth, QC and John Grace for Islington Health Authority.

Daniel Brennan, QC and Alistair Forrest for Miss Burton.

Harvey McGregor, QC and Jean Ritchie for Merton and Sutton Health Authority.

Adrian Whitfield, QC and Peter Latham for Mr De Martell.

LORD JUSTICE DILLON.

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 casts 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 Potts, J in Burton v Islington Health Authority [1991] 1 QB 638 and, secondly, that of Phillips, J in De Martell v Merton and Sutton Health Authority[1992] 2 FCR 832.

Technically the appeal against the decision of Potts, J 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 Phillips, J 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 and 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 inquiry. 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 22 July 1976: see s 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 26 April 1967 and Christopher De Martell was born disabled on 5 February 1967. These...

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