Liebig v. Guelph General Hospital, 2010 ONCA 450, just released, considers the principle that an infant, once born alive, may sue for damages sustained as a result of the negligence of health care providers during labour and delivery. The defendants argued that this principle has been overtaken by caselaw and ought not to continue to apply. The Court, while acknowledging that caselaw develops and changes, declined to make such a finding:
[6] In our view, this appeal may be properly decided on the basis of the very long and well-established line of cases, duly cited by the motion judge, holding that an infant, once born alive, may sue for damages sustained as a result of the negligence of health care providers during labour and delivery: see Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60 (ON S.C.) at para. 210, aff'd (2004), 26 C.C.L.T. (3d) 246 (
[7] These cases follow from the general principle that "a child may sue in tort for injury caused before birth", although the legal status to sue arises "only when the child is born" and "damages are assessed only as at the date of birth": see Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 at para. 21; Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; Duval v.
[8] As the facts alleged in the present case clearly fall within an established category where a duty of care exists, it is not necessary to engage in a Cooper-Anns analysis: see Mustapha v. Culligan, [2008] 2 S.C.R. 114 at para. 5; Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 at para. 25; Childs v. Desormeaux, [2006] 1 S.C.R. 643 at para. 15.
[9] The central point of contention before both the motion judge and this court arises from the defendants' contention that two recent decisions of this court – Bovingdon v. Hergott (2008), 88 O.R. (3d) 641 and Paxton v. Ramji (2008), 299 D.L.R. (4th) 614 – introduced a fundamental change to the law that requires us to depart from this established line of authority and to hold that Kevin Liebig has no cause of action against them. The plaintiffs dispute this proposition and add that if Bovingdon and Paxton do go that far, they should be overruled.
[10] Both Bovingdon and Paxton dealt with the situation of a doctor prescribing drugs to a woman who was not pregnant at the time. In Bovingdon, the drug was a fertility drug that increased the likelihood of bearing twins and, by extension, the risk of complications associated with the birth of twins. In Paxton, the drug was intended to treat the woman's acne, but could harm a foetus if conception were to occur while it was being taken. Both the doctor and the woman believed that the woman could not become pregnant because her husband had undergone a vasectomy years earlier.
[11] Cases in the vein of Bovingdon and Paxton, which involve claims made by infants yet to be conceived at the time the alleged negligence occurred, have been characterized as and rejected by other courts as claims for "wrongful life": see Lacroix (Litigation guardian of) v. Dominique (2001), 202 D.L.R. (4th) 121 (Man. C.A) leave to appeal denied [2001] S.C.C.A. No. 477; McKay v. Essex Area Health Authority, [1982] 1 Q.B. 1166 (Eng. C.A.). In Bovingdon and Paxton, however, this court held that the "wrongful life" approach ought not to be used. The court proceeded not by determining whether to recognize a claim for "wrongful life", but by conducting an analysis of whether a doctor owed a separate duty of care to a future child. Both Bovingdon and Paxton hold that there is no duty of care to a future child if the alleged negligence by a health care provider took place prior to conception.
[12] At various points in the Paxton judgment, the court cast the issue in terms of a duty of care to a child "not yet conceived or born" or "conceived or not yet conceived" [emphasis added]: see paras. 53 and 76. The defendants adopt a strictly literal reading of those passages and submit that Paxton governs the present case and precludes recovery for the damages arising from the alleged negligence in the delivery of Kevin Liebig.
[13] We do not read those passages as governing the issue raised on this appeal. In accordance with the tradition of the common law and the doctrine of precedent, Paxton and Bovingdon must be read in the light of their precise facts, the issues they addressed, and in a proper legal context: see Rupert Cross, Precedent in English Law, 2nd ed. (Oxford: OUP, 1968) at pp. 39-43. In our view, the authority of the labour and delivery cases remains intact and is unaffected by Bovingdon and Paxton.
[14] We recognize that, in the future, the reasoning in Bovingdon and Paxton may be brought to bear in other cases involving post-conception negligence. Indeed, in written and oral argument, counsel ventured opinions on a wide range of issues and possible scenarios extending well beyond the narrow compass of the facts of this case.
3 comments:
Wow. Not a person until birth but then retroactively a person for the purposes of suing for being born. What a system of law we have in Canada.
Rat, It is odd -- it arose historically when infant mortality was very high. But, when you have medical science able to keep a six month after conception alive, there is curious inconsistency.
Actually it's curious because under Canadian law it was legal for the doctor to kill the non-person so long as "it" had not exited the birth canal but the second "it" did exit he became a person retroactively and is able to sue the same doctor for not acting in the now-person's best interest before birth. I am not commenting on ancient history I am pointing out that our non-law on abortion makes a mockery of the definition of "person", what makes one human and deserving of rights. How can we say that this person had rights that can be a cause of legal action if that same person was not a person at the time and could legally have been killed? It's either human and has rights or it's not and has none, it cannot be both.
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