Date: Wed, 23 Nov 2005 11:10:17 -0500

From: David Cheifetz

Subject: More on maternal torts in Alberta

At least in Ontario and BC, we've probably reached the stage where being a passenger in a vehicle which is being driven from point A to point B - one of the purposes for which vehicles exist - may well be sufficient use in most cases to satisfy that prerequisite to the application of standard Canadian automobile insurance policies.

As to how far will some members of the Canadian judiciary will extend the meaning of "use", see two cases where use was found.

Herbison v. Lumbermens Mutual Casualty Company

Vytlingam v. Farmer

I suspect leave to appeal will be sought in both Ont. cases. Bear in mind, if and when you look at the cases if you've not already, that there's a bit more than just the blanket statement "it was use" behind the conclusion that it was "use" under the policy. That's because, in both cases, the policy phrase was "directly or indirectly from the use or operation of an automobile. The cases can be explained on the basis of the "directly or indirectly" qualifier - particularly "indirectly" - permitting a far more expansive meaning of use than might otherwise have occurred.

Then there's Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 in which the driver of a car was shot in an attempted robbery. P was driving away from an intersection when the van was surrounded by a gang. P was shot by one of the gang as they tried to enter the car. The SCC held that P's injuries "clearly resulted" the use of the van: from "ordinary and well-known activities to which automobiles are put". That use was using the vehicle to get from point A to point B.

According to Amos [para 17], we are to use a two-part test to determine if some loss arises "arises out of the ownership, use or operation of a vehicle"

1. Did the accident result from the ordinary and well-known activities to which automobiles are put?

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the [tort victim’s] injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

What all of the analyses amount to is some form of a but-for analysis using the 2-part test as a policy [floodgates?] control on how far back along the chain of cause and effect the court will go. How far back is too far? Well .... in a recent case whose cite I can't recall as I type this, an Ont judge wasn't prepared to say that frostbite suffered by a couple who abandoned their vehicle after it broke down, and who wandered in the bush for a number of days before they were discovered, was caused by the use of the vehicle.

I think that all of your examples are correct. All amount to conduct which would be causative fault if the mother owes an actionable duty of care to the foetus.

It is already causative fault relating to one's own injuries if one knowingly accepts a ride with a drunk, and then one is injured in the accident when the drunk loses control on account of the impairment.

I doubt very much that the sponsors of the bill have considered the underwriting issues and coverage issues. They're legion.

Insurers may will want to charge more for any policy which normal insures a women who is or could become pregnant during the policy term. The price may be high, simply because of the enormous damage awards associated with significant injuries to infants. Are the provincial gov'ts going to allow insurers to exclude coverage? Or at least provide separate and lower limits for MTLA type claims. The UK experience is probably relevant here.

Imagine the stink if an insurer asked to include fertile women in the excluded driver class for its standard policies? Or that all polices covering fertile women carried warranties that would be breached if the woman became pregnant?

I don't think I'm being too Cassandra-like by suggesting that the effect of MTLA type legislation will be claims against the mother for contribution in a very large percentage of the medical malpractice claims where the infant is born with some sort of disability that is anything other than obviously genetic. Again, the UK experience might be relevant. There will be the same potential in many claims by the infant after birth arising out of some post birth incident.

What's the limitation period for the maternal tort claim? Does it start to run on discoverability? Discoverability by whom? Not until the infant's majority? As of the date of the mva?

Imagine this situation. A 12 year old child C is injured by D's actionable misconduct. C suffers a concussion, bruising, but no skull fracture. The family begins an action alleging psychological injury, intellectual impairment etc against the D. D's investigation determines that the mother was in a serious mva while pregnant. She sustained physical injuries of the sort which could injure a foetus. Does D third party the mother? Assuming D does, what if, at that point, the limitation period for C's claim against the mother has prescribed - whether the normal limitation period or the ultimate limitation period?

What if the mother or father or guardian etc refuse to commence the action. Can the state step in on behalf of the child and prosecute the action over the family's objections? Assuming it can, should it if there's a meaningful amount of financial recovery available? After all, if the parents don't pursue the action, the state may end up paying for some expense the insurer might have paid.

The Alta MTLA is tied to the existence of motor vehicle liability insurance which will pay the claim. Assume the child's injury is also caused by others and the infant sues only the others. If contribution is available from the mother, what happens if the mother does something "wrong" which results in the insurance not applying - assuming that's possible? Would there be deduction from the child's award of the amount the mother's insurance would otherwise have paid?

There are procedural and substantive issues everyone one turns.

I assume (from its title) that the English Congenital Disabilities (Civil Liability) Act 1976 that the legislation has existed for long enough for one or more of these problems to surface.

David Cheifetz
Bennett Best Burn LLP

----- Original Message -----
From: Jennifer Chandler
Cc: Ken Cooper-Stephenson
Sent: Tuesday, November 22, 2005 1:39 PM
Subject: Re: ODG: 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.)

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