158 / 462
GAZETTE
JUNE 1992
Glidewell LJ in
Grady
-v-
Pollard
[1988] RTR 316, 323 had said: "Such
evidence will normally be the
evidence of a medical practitioner,
but it need not be, and one can
envisage situations in which there is
other evidence; indeed in some
circumstances, the evidence of the
defendant himself, would
suffice. . .
It was true that since
Grady
the
attitude of the court had hardened
but his Lordship was not prepared to
say that the dictum of Glidewell LJ
was wrong. In the instant case there
was evidence, albeit of the defendant
herself rather than a doctor, which
justified a conclusion of physical
inability to provide a specimen.
That was not to say, (stated Lloyd
LJ) that justices should be gullible.
The fact that a defendant was
drunk, under stress or trying his
hardest was not sufficient to found a
reasonable excuse. Here the facts
went further. The defendant's state
of shock was the major factor in the
justices' decision. They had been
impressed by the quality of her
evidence in court. It was not for the
Divisional Court to interfere.
Waterhouse J agreed.
Rights of the Unbo rn
In the case of
Attorney General
-v-
X and others,
(Supreme Court
March 5, 1992, published in book
form by the Law Reporting Council,
March, 1992) O'Flaherty J referred,
inter alia, to section 58 of the
Civil
Liability Act, 1961.
Section 58 of the
1961 Act provides as follows:
"For the avoidance of doubt it is hereby
declared that the law relating to wrongs
shall apply to an unborn child for his
protection in like manner as if the chid
were born, provided the child is
subsequently born alive."
O'Flaherty J gave an example of a
pregnant woman who was involved
in a car accident and the child in the
womb sustained injuries through
someone's negligence. The judge
stated that the child, on birth, would
be entitled to have proceedings
brought on his behalf to recover
damages for such injuries. The judge
stated that there were many in other
jurisdictions who in times past
would have wished to have such
enlightened legislation in force
putting beyond doubt the
entitlements of the unborn child. He
believed that we could have pride in
the measures taken in our statute
and case law to affirm and protect
the rights of the child in the womb.
Thirteen days after O'Flaherty J
delivered his judgment, the issue of
the right to sue for pre-birth harm
was considered by the Court of
Appeal (England and Wales) in
B
-v-
Islington Health Authority
and
De
Martell
-v-
Merton and Sutton
Health Authority.
Judgment was
given by the Court of Appeal on
March 18, 1992. (See
The Times,
Law Report, March 25, 1992.) The
Court of Appeal held that children
with disabilities caused by alleged
negligent medical treatment
before
they were born had a cause of action
against the health authorities.
In
B,
the alleged negligence was the
carrying out of a dilation and
curettage when the plaintiff was an
embryo in her mother's womb,
which operation it was alleged
should not'have been performed on
a pregnant woman.
Dillon LJ said that the question was
whether a child born alive and who
suffered disabilities as a result of
alleged medical negligence while he
was en ventre sa mére could
maintain an action for negligence.
The defendants submitted that a
child en ventre sa mére was not a
person in the eyes of the law. Dillon
LJ said that there was no doubt that
there were authorities which
supported the general proposition
that a foetus enjoyed no independent
legal personality. See for example
Paton
-v-
British Pregnancy
Advisory Service TYustees
[1979] QB
276),
In re F (in utero)
[1988] Fam
122 and C -v-
S
[1988] QB 135.
Dillon LJ stated that there were
other contexts in which the English
courts adopted as part of the
common law the maxim Qui in utero
est, pro jam habetur, quotis de ejus
commodo quaeritur (2 Bla Com)
that an unborn child was deemed to
be b om whenever its interests
required it. The Court of Appeal
considered it that it was open to the
English courts to apply the maxim
directly to the present cases.
Counsel for the health authorities
referred to an Irish case and
submitted that the common law had
crystallised in the case of
Walker
-v-
Great Northern Railway Co. of
Ireland
(1890) 28 LR Ir 69, in which
a pregnant mother fell in a train as a
result of the negligence of the railway
company and the child was born
deformed. The court held that the
statement of claim disclosed no cause
of action. Dillon LJ in his judgment
said that the decision in
Walker
was
profoundly unsatisfactory not least
because two if not all three members
of the court attached weight to the
fact that the railway company sold
one ticket and not two. If valid today,
stated the judge, a child under three
who travelled free on the railways
would have no cause of action for
negligence.
Balcombe LJ agreed with Dillon LJ
and Legatt LJ delivered a concurring
judgment.
Note:
While
Walker
was decided on
the contractual basis stated, Palles
CB acknowledged the right of the
unborn to judicial protection.
Eamonn G. Hall.
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