COURT OF APPEAL (CIVIL DIVISION)
B e f o r e :
LORD JUSTICE LEGGATT
|ISLINGTON HEALTH AUTHORITY
|CHRISTOPHER DE MARTELL
|MERTON AND SUTTON HEALTH AUTHORITY
MR DANIEL BRENNAN Q.C. and MR ALISTAIR FORREST, instructed by Messrs Pannone Blackburn (Manchester), appeared for Miss Tina Burton.
MR HARVEY McGREGOR Q.C. and MISS JEAN RITCHIE, instructed by Messrs Capsticks, appeared for Merton and Sutton Health Authority.
MR ADRIAN WHITFIELD Q.C. and MR PETER LATHAM, instructed by Messrs Pannone March Pearson, appeared for Mr Christopher De Martell.
Crown Copyright ©
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 cases 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 Mr Justice Potts in Burton v. Islington Health Authority decided on 25th September 1990 and, secondly, that of Mr Justice Phillips in De Martell v. Merton and Sutton Health Authority, decided on 3rd May 1991.
Technically the appeal against the decision of Mr Justice Potts 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 Mr Justice Phillips 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.
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 & 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 enquiry. 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 22nd July 1976: see section 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 26th April 1967 and Christopher De Martell was born disabled an 5th February 1967. These actions have therefore to be decided according to the law in force before the passing of the 1976 Act - essentially the common law.
It is sufficient, in order to dispose of these appeals, to say merely that all the points which have been put to us by Mr Ashworth and Mr Harvey McGregor, for the appellants, were put to Mr Justice Phillips by Mr Harvey McGregor in De Martell. In his careful and extremely clear judgment, which I would gladly adopt as my own, Mr Justice Phillips dealt with all those points. Nothing that has been submitted to us has raised any doubt in my mind but that Mr Justice Phillips dealt with all those points entirely correctly. Nevertheless, in deference to the arguments of counsel, I will add further comments of my own.
It is now elementary that the tort of negligence involves three factors: a duty of care, a breach of that duty and consequent damage. Without damage there is no cause of action. Reference can be made to the decision of the House of Lords in Watson v. Fram Reinforced Concrete Company (Scotland), Limited.  S.C.(H.L) page 92. The facts of that case can be taken from the head note:
"A workman, who had been injured through the breaking of a defective part in the machine with which he was working, brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had supplied it to his employers, on averments to the effect that the accident had been caused by the fault of the manufacturers in that they failed to supply his employers with a machine which was safe for use by their servants. The machine had been supplied on 7th July 1955 and the accident had happened on 9th August 1956, but the manufacturers were not convened in the action until 25th March 1959."
"No action of damages where the damages claimed consist of or include damages...in respect of personal injury to any person shall be brought in Scotland against any person unless it is commenced before the expiration of three years from the date of the act, neglect or default giving rise to the action.."
It was nonetheless held by the majority of the House of Lords that the three year period ran from the date when the workman suffered the injury and not from the earlier date when the manufacturers manufactured the defective machine. Accordingly, the action against the manufacturers was not time barred. The position is explained by Lord Reid at 109:
"The reason why I lay stress on this matter is this: the basis of the respondents' argument was that there was a single 'act, neglect or default', videlicet, the supply of the defective machine, from which the three years' limitation is directed by the Act to run. It may be true that there was a single 'act' or 'neglect' but, if so, that was the negligent manufacture and not the subsequent sale of the machine. And you cannot stop there, because I find it impossible to interpret the Act as meaning that the three years are to run from that date. The defective article might still be in the manufacturer's possession three years after the date of manufacture, and he might sell it later, but no one would have the hardihood to suggest that the three years' limitation had already cut off all right of action before he had sold it. Yet if the 'act,' 'neglect' and 'default' mentioned in the Act all refer to a similar act or omission, that must be so.
It appears to me that default in the sense of breach of duty must persist after the act or neglect until the damage is suffered. The ground of any action based on negligence is the concurrence of breach of duty and damage, and I cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs."
"Whatever be the true view with regard to the act or neglect, I think that the appellant is entitled to say that the respondents' 'default giving rise to the action' existed at the time when he suffered his injuries."
"So here the wisdom of the common law lies in this, that it holds the breach of duty to be, not the carelessness in manufacture, nor the putting into circulation of a faulty machine, but the wrongful infliction of damage: and the time accordingly only runs from that date."
"I am prepared to hold, therefore, that the 'act, neglect or default giving rise to the action' was the doing of damage to the plaintiff by the negligence of the defendants: and inasmuch as the action was commenced within three years from the date when the damage was done, it is not barred by the statute."
Thus it is common ground in the present case that if a manufacturer negligently makes and markets defective goods, for instance a car with defective brakes, or a soothing syrup for babies which is negligently contaminated with corrosive acid, and the defective goods are put on the market and sold to a member of the public, and the predictable accident follows and a young baby is injured, for instance if the baby is a passenger in the car when the brakes fail and the car crashes, or is given the syrup, it is no defence to an action for damages, by or on behalf of the baby, for the manufacturer to prove that the baby was only born after the defective goods had left the manufacturer's premises or even had passed to the member of the public by purchase from the retailer. Accepting that, the appellants say that the damage in the present case was suffered by the plaintiff whilst still en ventre and therefore while not a person in the eyes of English law. Therefore, it is said, each plaintiff, though subsequently born alive and still now surviving, cannot sue.
There are cases not in any way in doubt on this appeal which establish the general proposition that a foetus enjoys, while still a foetus, no independent legal personality - a foetus cannot, while a foetus, sue and cannot be made a ward of court. See Paton v. British Pregnancy Advisory Service Trustees  Q.B. 276; in Re F (In Utero)  Fam 122; C v.S  Q.B. 135.
There are other contexts however, to which I shall come, in which the English courts have adopted as part of English law the maxim of the civil law that an unborn child shall be deemed to be born whenever its interests require it - or as put by Lord Westbury in Blasson v. Blasson 2 De G.J.& S. 665:
"Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partus quaeritur..."
On that basis of the civil law, the majority of the Supreme Court of Canada held in Montreal Tramways v. Leveille  4 D.L.R. 337, that when a child not actually born at the time of an accident was subsequently born alive and viable, it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident to the mother. That was a case of an accident when, by reason of the negligence of the tramway company's motor man, the infant's mother fell from a tram to the street and was injured. Two months later she gave birth to a female child who was born with club feet.
The leading judgment, expressing the majority view, was given by Mr Justice Lamont. The maxim, which I have already quoted, led to the conclusion that as the child en ventre was born alive it was to be treated as having being alive while en ventre and so could claim damages for an injury at that time. The civil law applied because the case was a Quebec case and the civil code of Quebec is founded on the civil law. Mr Justice Cannon, who delivered his judgment in French, seems to have taken a wider view since he reached the same conclusion without reliance on the maxims of the civil law or the Quebec civil code: "On peut dire que son droit est ne en meme temps qu'elle". Certain comments in relation to the problem in the judgment of Mr Justice Lamont at page 345 are cited by Mr Justice Phillips in his judgment in De Martell and have been cited in other common law jurisdiction decisions since 1933:-
"If a child after birth has no right of action for pre-natal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the Courts for injuries wrongfully committed upon its person while in the womb of its mother."
The main contexts in which the maxim of the civil law above quoted has been adopted as part of English law are set out in the speech of Lord Atkinson in Villar v. Gilbey  A.C. 139 at 149 and 150. The best known is that, where there is a gift to a class of children living at a particular date, a child en ventre sa mere at that date but later born alive will be treated as having been living at the date and thus included in the class. A child in its mother's womb is considered as absolutely born to all intents and purposes for the child's benefit. Incidentally, and irrelevantly for present purposes, that reasoning has led to the well-established conclusion that a child en ventre at a testator's death but later born alive may rank as a life in being for the purposes of the rule against perpetuities, which is a rule of public policy under English law. See Long v. Blackhall (1797) 7 D.& E. Term.Rep. at 100.
More significantly the same civil law principle led Sir Robert Phillimore, in the Admiralty Court in The George and Richard (1871) L.R. 3 Ad & Ec. Courts 466, 480, to hold that a posthumous child, later born alive, ranks as a child of its father - in that case a ship's carpenter who lost his life when his ship was blown on to the rocks and wrecked following disablement in a collision - for the purposes of Lord Campbell's Act, the Fatal Accidents Act 1846.
For my part, I think it would be open to the English courts to apply the civil law maxim directly to the situations we have in these two appeals, and treat the two plaintiffs as lives in being at the times of the events which injured them as they were later born alive, but it is not necessary to do so directly in view of the effect which the Montreal Tramways case has already had in the development of the common law in this field in other common law jurisdictions.
Mr Ashworth helpfully referred us to a substantial number of United States decisions. His general thesis was that the decisions from 1884 to 1945, which held that the child when born cannot recover damages for pre-natal injury, represent the pure doctrine of the common law, while all the decisions from 1946 onwards, which all took the opposite view, are to be rejected as heretical and wrong. The effect of the post-1945 decisions is that the courts of every American state have now held, as a development of the common law and despite previous decisions to the contrary, that a child can recover damages for a pre-natal injury, and even that damages can be recovered by the estate of a still-born child.
It is wholly unnecessary to go that far in the present case and I would not for a moment suggest that the common law of England is bound or even likely to follow every twist of the development of the common law in the United States. None the less, I would be most reluctant to hold that the common law, though capable of development in this field in every other jurisdiction, has crystallised in England at a date long past -1891 was Mr Ashworth's preferred date. It may be added that the Montreal Tramways case was cited and relied on in the earliest United States case of 1946 where the changed view, that the child could sue, was adopted.
The main Commonwealth case from a country with a common law jurisdiction is Watt v. Rama  V.R. 353, a decision of the Supreme Court of Victoria in an appellate capacity which has since been accepted by other appellate courts in Australia as a correct statement of the law, that is to say the common law of Australia. That was a case which arose out of injuries in a motor accident. The leading judgment is that of Chief Justice Winneke and Mr Justice Pape. It is founded on an analysis - in my judgment, correct - of the tort of negligence by reference to decisions of the House of Lords and the Privy Council and certain Australian decisions, and it is founded also on the Montreal Tramways decision. I can take up that judgment at the foot of page 358:
"The real question posed for our decision is not whether an action lies in respect of pre-natal injuries but whether a plaintiff born with injuries caused by the pre-natal neglect of the defendant has a cause of action in negligence against him in respect of such injuries. To this question the defendant answers 'No', because at the time of his neglect the plaintiff was not in existence as a living person, had no separate existence apart from her mother, was not capable of suing to assert a legal right, and was not a legal person to whom he could be under a duty."
There is then reference to well-known authorities like Donoqhue v. Stevenson, Dorset Yacht Co.Ltd. v. Home Office, Hay (or Bourhill) v. Young, Watson v. Fram Reinforced Concrete Co.Ltd. & Winqet Ltd. and Grant v. Australian Knitting Mills, and then to a South African decision which followed the Montreal Tramways case and to the Montreal Tramways case itself. After the citations the judgment continues at page 360:
"Those circumstances, accordingly, constituted a potential relationship capable of imposing a duty on the defendant in relation to the child if and when born. On the birth the relationship crystallized and out of it arose a duty on the defendant in relation to the child. On the facts which for present purposes must be assumed, the child was born with injuries caused by the act or neglect of the defendant in the driving of his car. But as the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the relationship was attached to the defendant, and it was at that stage that the defendant was, on the assumption that his act or omission in the driving of the car constituted a failure to take reasonable care, in breach of the duty to take reasonable care to avoid injury to the child."
"Whether, as a matter of expression, you say, as was said in the case of Watson v. Fram Reinforced Concrete Co. Ltd., that this is to be explained by postulating a continuing duty, or merely projecting the relationship of duty into the future, or whether you regard it as possible to establish a breach of duty as at birth by reference to an act antecedent to the accrual of the cause of action, may be open to debate, but it has no bearing on the precise question we are called upon to answer, namely, whether the defendant owed a duty of care to the infant plaintiff."
The other judgment in the court is that of Mr Justice Gillard who reached the same conclusion. His reasoning is lengthy and perhaps not quite the same as that of the leading judgment. I can turn to page 363 where he has again referred to the principal English authorities and also to The Wagon Mound. He says:
"Having emphasised these three points, it would appear that the vital matter for determination is whether at the time that the infant plaintiff avers that she suffered the damnum, i.e. at the date of her birth, had the defendant committed a breach of any and what duty to the infant plaintiff causing such damnum? In seeking an answer to this question one cannot but be influenced by a thought expressed by Lamont, J., speaking for the majority of the Supreme Court of Canada in Montreal Tramways ... where, for the first time, it was accepted in a superior court that an infant plaintiff should be able after birth to recover damages for pre-natal injuries."
"I now return to consider the arguments of the defendant. Each of them really turns around the theory that prior to birth the unborn child is not a persona juridica and, therefore, no duty of care can be or is owed to it... In my view, there are two answers to this assertion. The first depends on the views I have already expressed. The cause of action for negligence only comes into existence when the damage is suffered. The infant plaintiff at that period on the facts assumed is, I repeat, a persona juridica, with capacity to institute proceedings and to whom a duty might be owed. The injury whilst en ventre sa mere was but an evidentiary incident in the causation of damage suffered at birth by the fault of the defendant. If, in Australian Knitting Mills Ltd. v. Grant,  AC 85 the plaintiff had been a babe in arms less than 12 months old, who had worn the defective singlet instead of Dr.Grant, could the action have been defeated by the knitting mills proving that the mills negligently manufactured the goods before the infant plaintiff was born? It becomes clear from the expressions used by Lord Wright speaking for the Privy Council to describe the duty and its breach, the important and significant date in relation thereto was not the date of manufacture but when the damage occurred: see also Watson v.Fram Reinforced Concrete Co.Ltd... "
Then a bit further he refers to Villar v. Gilbey, which I have mentioned, and other English or Scottish authorities in that field, including a statement of Lord Hardwicke in Wallis v. Hodson (1724), 2 Atk.117:
"The plaintiff was en ventre sa mere at the time of her brother's death, and consequently a person in rerum natura so that both by the rules of the common law and civil law she was to all intents and purposes a child."
That is of course a child for the purpose of claiming a benefit. So he comes to the conclusion at the end of the further citation from the Montreal Tramways case that the plaintiff was entitled to maintain the action. Mr Justice Phillips in De Martell was inclined to prefer the approach of Mr Justice Gillard to the approach of the Chief Justice and Mr Justice Pape. But both, to my mind, lead to the same conclusion and the differences between them are not, in my judgment, significant in the context of the present appeal.
The next significant decision is the decision of Mr Justice Fraser at first instance in the High Court of Ontario in Duval v. Sequin  26 D.L.R. (3rd) 418. That case also arose out of a motor accident at the time when the infant's mother was carrying the unborn child. Mr Justice Fraser had the advantage of the citation of Watt v. Rama even though it had not then been reported. The infant was called Ann. At page 433 the judge said, after referring in passing to one of the Distillers Co. (Biochemicals), Ltd. cases:
"Ann's mother was plainly one of a class within the area of foreseeable risk and one to whom the defendants therefore owed a duty. Was Ann any the less so? I think not. Procreation is normal and necessary for the preservation of the race. If a driver drives on a highway without due care for other users it is foreseeable that some of the other users of the highway will be pregnant women and that a child en ventre sa mere may be injured. Such a child therefore falls well within the area of potential danger which the driver is required to foresee and take reasonable care to avoid.
In my opinion it is not necessary in the present case to consider whether the unborn child was a person in law or at which stage she became a person. For negligence to be a tort there must be damages. While it was the foetus or child en ventre sa mere who was injured, the damages sued for are the damages suffered by the plaintiff Ann since birth and which she will continue to suffer as a result of that injury."
"The reasons given in this case contain a comprehensive analysis of all the relevant cases and literature. The members of the Court held that the cause of action was not complete until after the birth of the plaintiff when the damages were suffered.
Some of the older cases suggest that there should be no recovery by a person who has suffered prenatal injuries because of the difficulties of proof and of the opening it gives for perjury and speculation. Since those cases were decided there have been many scientific advances and it would seem that chances of establishing whether or not there are causal relationships between the act alleged to be negligent and the damage alleged to have been suffered as a consequence are better now than formerly. In any event the Courts now have to consider many similar problems and plaintiffs should not be denied relief in proper cases because of possible difficulties of proof.
To refuse to recognize such a right would be manifestly unjust and unreasonable. In my opinion, and for the reasons I have tried to formulate, such a refusal would not be consonant with relevant legal principles as they have developed and have been applied in the last 50 years. Under the doctrine of M'Alister (or Donoghue) v. Stevenson, and the cases cited, an unborn child is within the foreseeable risk incurred by a negligent motorist. When the unborn child becomes a living person and suffers damages as a result of prenatal injuries caused by the fault of the negligent motorist the cause of action is completed."
Mr Ashworth and Mr Harvey McGregor none the less submit that, so far as the common law of England is concerned, the position crystallised with the latest actual decision in the United Kingdom before the enactment of the 1976 Act, that is the decision in 1891 of a Divisional Court of the Queen's Bench Division in Ireland in the case of Walker v. Great Northern Railway Company of Ireland reported in Volume 28 of the Law Reports (Ireland) Q.B & Ex. Divisions at page 69.
That was a case in which the mother of the infant, then pregnant with the infant, was being carried as a passenger in a train of the Railway Company in County Down when she fell by the negligence, it was said, of the Railway Company and the infant was thereby permanently injured and born crippled and deformed. The court held on demurrer that the statement of claim disclosed no cause of action. The decision is however profoundly unsatisfactory, not least in that two, if not three, of the members of the court attached weight to the fact that the Railway Company as a common carrier had sold the pregnant mother one ticket and not two - a conclusion which, if valid today, would carry the consequence that a child under three who can travel without a ticket on British Railways would have no remedy against British Railways if injured by the negligence of the British Rail employees.
Mr Justice Potts in Burton's case said that he derived no assistance from Walker v. Great Northern Railway Company. Mr Justice Phillips in De Martell, having read the judgments in Walker, said he was not surprised at Mr Justice Potts' view. I agree with Mr Justice Potts that the case is of no assistance today. Had a case of a claim by a child for damages for pre-natal injury come before the English courts in the period from 1972 to the enactment of the 1976 Act, and had it been as well argued as the present cases have been in this court, I have no doubt that the English court would have been referred to Watt v. Rama and Duval v. Seguin and would have preferred the views there expressed to the case of Walker v. Great Northern Railway.
Mr Ashworth and Mr McGregor none the less submit either that, so far as the English common law is concerned, Walker's case is to be preferred to any inconsistent later decision in any other jurisdiction, or that, as an action by a child for damages for pre-natal injuries had not been recognised as valid in the English courts before 1976 - the enactment of the 1976 Act - such an action could not now be allowed to develop and the English common law should be taken as being what the latest United Kingdom cases available might have indicated before 1976. It is further submitted that, as Parliament has intervened by the 1976 Act in the matter of pre-natal injuries to unborn children, it should be left to Parliament to effect any further change in the law that may be thought necessary or to develop the law from where it was left by the Divisional Court in Ireland in Walker's case.
I do not agree. Parliament, by the 1976 Act deliberately left these cases, where the children were born before the enactment of the 1976 Act, to be decided by the law in force before the passing of that Act, that is to say the common law. But that does not simply mean Walker's case but the law, whatever it might be, that the English court would apply in the absence of the 1976 Act in the light of all relevant authorities including decisions, so far as helpful, of other Commonwealth jurisdictions. Moreover, the fact that Parliament by the 1976 Act deliberately refrained from legislating for cases such as these, where the child was born before the enactment of the 1976 Act, does not in any way support the view that these cases should be left for future legislation. They were left to the existing law whatever it might be held to be.
Mr Ashworth and Mr McGregor point also to the extravagant lengths, as they would put it, to which some of the United States decisions have gone and to the dangers of conflict between the mother and her child, with the child suing for damages for injuries allegedly caused by the negligence of the mother before the child's birth. If the floodgates prove to be open too wide no doubt Parliament can intervene. But I doubt very much whether there are any claims now outstanding which are not statute-barred, in respect of children still-born before 22nd July 1976 or any children born before that date, who are locked in litigation with their mothers over whether the mother tasted alcohol or followed a diet other than that recommended by the current phase of medical opinion during pregnancy.
LORD JUSTICE BALCOMBE: I agree that these appeals should be dismissed for the reasons given by Lord Justice Dillon. In my judgment, both Mr Justice Potts and Mr Justice Phillips came to the right conclusions for the right reasons. Despite the careful arguments of Mr Ashworth and Mr Harvey McGregor, there is nothing I can usefully add to what my Lord and the judges below have said. LORD JUSTICE LEGGATT: Whether or not the law of negligence was correctly applied a hundred years ago in Walker v. Great Northern Railway Company 1891 XXVIII L.R.(Ireland) 69, it has since then been evolving. At least by 1960 it had been recognised in this jurisdiction that it connotes a duty not to injure one's neighbour by want of reasonable care. Now Mr Justice Potts has illuminated the way for the definitive judgment of Mr Justice Phillips. As they have shown, the plaintiffs claim that each was injured when at birth he or she became a legal person damaged by the prior act of the respective defendants, and that when each such act was done it was reasonably foreseeable that it might result in the plaintiff being born damaged. If the plaintiffs' allegations are proved, the defendants would have been liable to them in negligence before the passing of the Congenital Disabilities (Civil Liability) Act 1976.
Order: Appeals dismissed with costs; legal aid taxations for both respondents; application for leave to appeal to the House of Lords refused.