Academic journal article Defense Counsel Journal

Canadian Mother Dodges Liability to Son as Fetus

Academic journal article Defense Counsel Journal

Canadian Mother Dodges Liability to Son as Fetus

Article excerpt

In a decision driven by public policy considerations, and with two justices dissenting, the Supreme Court of Canada ruled that a mother should not be liable in tort for damages to her child caused by her negligent act that allegedly injured the fetus in her womb. Dobson (Litigation Guardian of) v. Dobson, No. 26152, July 9, 1999.

The plaintiff suffered from permanent mental and physical impairments claimed to have been caused by his mother's negligent driving while he was in utero. The New Brunswick Court of Queen's Bench denied the right to sue on the ground that legal personality does not begin until birth, so that at the time of alleged negligence, he was not a person in law. 186 N.B.R.2d 81 (1997). But the New Brunswick Court of Appeal reversed. 189 N.B.R.2d 208 (1997).

The supreme court disagreed with the court of appeal, holding that the son had no cause of action. Although a duty of care to the born alive child may exist, the supreme court held that for reasons of public policy, that duty should not be imposed on a pregnant woman. "Matters of public policy are concerned with sensitive issues that involve far-reaching and unpredictable implications for Canadian society," Justice Cory wrote for the court. "It follows that the legislature is the more appropriate forum for the consideration of such problems and the implementation of legislative solutions to them. …

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