De Martell v Merton & Sutton Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 1991 |
| Year | 1991 |
| Date | 1991 |
| Court | Queen's Bench Division |
PHILLIPS, J
Negligence – child injured in utero – born with disability – whether child had a cause of action for the injury caused before birth.
The plaintiff was born on 5 February 1967 suffering from disabilities. He issued a writ against the health authority claiming that his disabilities were attributable to the negligence of the medical staff who attended his mother's confinement and his birth. The question of whether the defendants were liable in tort to the plaintiff for actions or omissions committed before his birth was tried as a preliminary issue.
Held – If a child was born suffering from disabilities resulting from injury caused to him enventre sa mere, and that injury was caused by negligence towards the pregnant mother, the duty of care to thee child crystallized on birth. From that stage the child had a right of action for injury caused before his birth.
Cases referred to:Burton v Islington Health Authority [1991] 1 QB 638; [1991] 1 All ER 825.
C v S [1988] QB 135; [1987] 1 All ER 1230.
Dietrich v Inhabitants of Northampton (1884) 138 Mass 14.
Donoghue (or M'Alister) v Stevenson [1932] AC 562.
F (In Utero), Re[1988] Fam 122; [1988] FCR 529; [1988] 2 All ER 193.
Grant v Australian Knitting Mills Ltd [1936] AC 85.
Heaven v Pender (1883) 11 QBD 503.
Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294.
Le Lievre v Gould [1893] 1 QB 491.
McKay v Essex Area Health Authority [1982] QB 1166; [1982] 2 All ER 771.
Montreal Tramways v Leveille [1933] DLR 337.
Paton v Trustees of BPAS [1979] QB 276; [1978] 2 All ER 987.
President of India v La Pinta Cia Navegacion SA [1985] AC 104; [1984] 2 All ER 773.
Walker v Great Northern Railway Company of Ireland (1891) 28 LR Ir 69.
Watson v Fram Reinforced Concrete Co (Scotland) Ltd [1960] SC 92.
Watt v Rama [1972] VR 353.
Whitehouse v Jordan [1981] 1 WLR 246; [1981] 1 All BR 267.
Williams v Luff (1978) The Times, 13 February.
Adrian Whitfield, QC and Peter Latham for the plaintiff.
Harvey McGregor QC and Jean Ritchie for the defendants.
MR JUSTICE PHILLIPS.In 1889 a baby girl was born in Ireland, which was then part of the United Kingdom. The infant had defects that were alleged to have been caused as a result of injuries, when in the womb, sustained when an accident occurred to her mother as a consequence of the negligence of a railway company. An action was commenced in the name of the child against the railway company.
The company demurred, contending that the child had no cause of action in respect of injuries sustained while in her mother's womb. The Court of Queen's Bench in Ireland, a court of four presided over by O'Brien, CJ, unanimously held that the child had no cause of action: see Walker v Great Northern Railway Company (1891) 28 LR Ir 69. Thereafter no court in the United Kingdom was called upon to consider whether a child could sue in negligence for injuries sustained while in its mother's womb until last year.
In respect of children born since 1976 the position is governed by statute. The Congenital Disabilities (Civil Liability) Act 1976 provides:
"1. Civil liability to a child born disabled (1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subs (2) below, and a person (other than the child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.
(2) An occurrence to which this section applies is one which – (a) affected either parent of the child in his or her ability to have a normal, healthy child; or (b) affected the mother during her pregnancy, or affected her or her child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.
(3) Subject to the following subsections, a person (here referred to as `the defendant') is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such a liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability ...
4. Interpretation and other supplementary provisions ... (5) 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; but in s 1(3) of this Act the expression `liable in tort' does not include any reference to liability by virtue of this Act, or liability by virtue of any such law."
In April 1967, a baby girl was born in England suffering from numerous abnormalities. In April 1988, when she reached the age of 21, she issued a writ
claiming that these abnormalities were the result of the negligence of medical staff who had in September 1966 carried out a gynaecological operation on her mother, then pregnant with the plaintiff. The defendants sought to have the claim struck out on the ground that it disclosed no cause of action. Potts, J held that the plaintiff had a good cause of action in negligence: see Burton v Islington Health Authority [1991] 1 QB 638.
The plaintiff in the present case was born on 5 February 1967 at St Helier Hospital, Carshalton. From birth he has suffered severe physical disabilities. On 15 November 1988 he issued a writ claiming that his disabilities are attributable to negligence on the part of the medical staff who attended his mother's confinement and his birth. I am not concerned with any issue of limitation that may exist in relation to this claim. I have to determine a preliminary issue ordered by Judge Diamond, QC on 9 October 1990, which I have slightly amended with the leave of the parties to read as follows:
"Assuming the allegations set out in the statement of claim to be true, whether the defendant is liable in tort to the plaintiff for such of those acts and/or omissions as were committed before the plaintiff's birth."
In the course of argument it became apparent that there was a potential issue as to the precise causal nexus between the acts and omissions alleged in the statement of claim and the physical consequences of those acts and omissions. This issue involves mixed questions of fact and law which cannot satisfactorily be resolved at this stage. If the plaintiff's submissions of law are correct they may well never have to be resolved. I propose, as I believe Judge Diamond intended, to consider the preliminary issue on the premise that the effect of the relevant allegations in the statement of claim is as follows. (1) The defendants' treatment of the delivery of the plaintiff and the confinement of his mother lacked proper skill and care in respects which were foreseeably likely to result in the plaintiff being born with disabilities. (2) As a consequence of these defects in treatment the plaintiff was born with those disabilities.
The issue is whether the defendants are, in the premises, liable to the plaintiff in negligence. If Potts, J reached the correct conclusion in Burton v Islington Health Authority the answer must be, "Yes".
Mr McGregor, QC who appeared for the defendants submitted that Burton v Islington Health Authority was wrongly decided. I can summarize his submissions as follows. (i) Walker v Great Northern Railway Company of Ireland correctly stated the position at English law up to 1976. (2) As the legislature has intervened in this field it is neither necessary nor appropriate for the judiciary to alter the position at common law. (3) The reasoning in Burton v Islington Health Authority is unsatisfactory in that it involves a legal fiction.
I shall consider each point in turn.
Walker v Great Northern Railway Company of IrelandMr McGregor relied heavily on this decision. He submitted that it was reached at a time when the essential principles of the law of negligence were established and
properly represented the result of the application of those principles. In support of this submission he referred to Heaven v Pender (1883) 11 QBD 503; and Le Lievre v Gould [1893] 1 QB 491.
Having considered the four judgments in Walker's case, I have concluded that they do not demonstrate the application to the facts of that case of the principles of the law of negligence. O'Brien, CJ stated ((1891) 28 LR Ir 69 at 79):
"I decide the present case upon a single ground, namely, that there are no facts set out in the statement of claim which fix the defendants with liability for breach of duty as carriers of passengers. This is not a case of trespass. It is now settled law that railway companies do not warrant the absolute safety of passengers: all they undertake with regard to passengers is a duty to carry with due and reasonable care...
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