Date: Tue, 22 Nov 2005 13:39:25 -0500

From: Jennifer Chandler

Subject: More on maternal torts in Alberta

Hello all - and thank you for this very interesting discussion!

I think that liability for prenatal injury would inevitably fall differently on the mother, and to focus solely on the standard traffic accident that is probably the focus of the statute's drafters might miss some unintended consequences. Rather than just removing a preferential immunity from mothers, it could expose mothers (or their insurers, in the case of the Maternal Tort Liability Act) to liability in a greater range of circumstances than a father or stranger (male or female).

I can only come up with a couple of situations off the top of my head.

First, a pregnant woman injures her fetus while driving an ATV reasonably carefully. I haven't researched the definition of "automobile" under Alberta's Insurance Act in order to determine whether an ATV is covered. But, if it is not, another inherently risky mode of locomotion could be substituted. (Section 1(d) of the Alberta Insurance Act defines states that an automobile "includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include watercraft, aircraft or railway rolling stock that runs on rails.") Could a court decide that it was negligent for a woman to adopt a risky mode of locomotion while pregnant? Since it is the mode of locomotion itself that is risky rather than the way it is operated vis-à-vis third parties, this is not a matter of imposing the same duties toward third parties on pregnant woman as apply more generally. Non-pregnant persons would not be exposed to the same liability.

Second, a pregnant woman injures her fetus as a result of doing stunts on her ATV. This carelessness endangers the driver only, as well as the fetus if the driver is pregnant. As in the above example, duties toward third parties that are owed by everyone are not applicable. Once again non-pregnant persons would not be exposed to this liability.

Third, the MTLA removes a mother's immunity wherever injuries were caused by the mother's use or operation of an automobile. What does "use" mean? Could a court decide that being a passenger is "use"? If a woman accepts a ride in a car from someone who is drunk, is this actionable negligence in "use" of an automobile?

Fourth, an admittedly extreme hypothetical - a depressed and pregnant woman who seeks (unsuccessfully) to end her life by driving off a bridge would be liable where others would have no liability to third parties.

Are any of these examples incorrect? Are there other hypotheticals to illustrate this point?

Some may be willing to tolerate (a) legislation that exposes pregnant women (or their insurers) to liability for a greater range of activities than other people and (b) the possibility that this well-meant legislation might operate as a precedent for expansion into such things as involuntary hospitalization à la crystal meth example. Indeed, it may seem heartless to object to maternal liability in these situations, particularly where there is no other insurance policy to access. Nevertheless, I feel a lot of disquiet about it, although I certainly sympathize with the desire to ensure compensation for injured children.

The suggestion that liability would operate as a deterrent to careless behaviour by pregnant women is attenuated by the restriction in the act to situations in which an insurance policy exists. I suppose the premium sanction might still exist.

I naively ask ... should legal policy be driven by how to access insurance policies? (On a related note, the Childs v. Desormeaux hearing has been shifted to January 18 - and we shall soon see whether we can access a party host's homeowner's insurance policy when a drunken guest drives uninsured.).

Jennifer Chandler
Assistant Professor
Faculty of Law
University of Ottawa

Ken Cooper-Stephenson wrote:

Jason,

The degree of additional intrusion is always a balance, and if it were thought intrusive (which almost no-one thinks it is). there is always s. 1 of the Charter. The judgments in Dobson anticipate and even suggest this exception; they deny it for other reasons than that it would be intrusive as a matter of social policy. Taking care while driving, since so many other persons are at risk, including the mother herself, imposes almost no extra onus on the woman because she is pregnant. There is really no extra care required by imposing liability to the fetus.

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