The Gazette 1992

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. 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 Waterhouse J agreed. Rights of the Unbo rn

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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