From: Angela Swan <>
To: Robert H Stevens <>
CC: Obligations list <>
Date: 15/01/2009 14:26:09 UTC
Subject: RE: ODG: Duties to the unborn

Robert says that one can justify imposing liability on the defendant "where the defendant won't end up bearing the cost in any event".

This argument is bad and the statement about the incidence of the loss is false.

The argument is bad because it would justify imposing liability on any defendant who has insurance, as, for example, no-fault automobile insurance schemes do (though with a substantial allocation of the loss to the plaintiff who gets far less compensation than he or she might get were the regime fault-based).  If one wants to have a no-fault insurance regime covering all the vicissitudes of life—a clear policy choice we could make—then we don’t need a law of torts.

The statement is false because the defendant will bear the costs in one of three ways: (i) the cost will be borne (as in automobile insurance) by all those in the industry or participating in the activity; (ii) the defendant itself may have its premiums increased as in workers' compensation schemes; or (iii) the defendant's insurer may either cancel the defendant's insurance or refuse to renew the policy.

The risk to a defendant of the last event is, particularly with a small business, very serious because without insurance the business almost certainly can't continue.  (This is a very real risk as some of my clients can confirm.)  The savage exemption clauses that one finds in many standard-form contracts are a reflection of this fact and the failure of courts to understand this leads to many of the absurd decisions on "fundamental breach", etc.

Angela Swan

-----Original Message-----
From: Robert H Stevens []
Sent: January 15, 2009 5:10 AM
Cc: Obligations list
Subject: Re: ODG: Duties to the unborn




(1) Thanks to Harold for the Patrick Atiyah reference. I hadn't read that



It is a classic example of 'duty scepticism.' He maintains, as so many

others have, that the duty of care is not really a 'duty' (with a

correlative right) at all. Rather, it is "a shorthand method of referring

to those situations in which the law imposes liability for negligence". He

states as a truism that "the duty of care question in a negligence action

is a policy question." As there was no policy against giving the child a

claim, the result was obvious.


That is what I was also taught when I first studied the law of torts

twenty years ago. The very first quotation from a judge that I was (with

approval) given when I studied was that of Lord Denning from Spartan Steel

v Martin [1973] 1 QB 27, 36-37 where he says the same as Professor Atiyah.

I was taught, and believed, that this was an example of refreshing honesty

from the judge.


I now think that this duty scepticism is a pernicious falsehood, and that

the duty of care is, as its name implies, a real duty with a correlative



Atiyah simply starts with the assumption that this is a straightforward

example of personal injury caused by negligence. If that premise were

correct his robust dismissal of the "legalistic" approach of the judges

would be appropriate. It isn't correct.


(2) When we are faced with a plaintiff child born with terrible

disabilities, and a defendant corporation covered by liability insurance,

there are different possible approaches to determining who should bear the

costs of the child's future care and his or her other losses. One is to

try to work out who as a matter of policy should bear the loss.


My strong preference is that we should be governed by law rather than men

(the judges are mostly men). This is especially true in a case such as

this, where the plight of the child is so obvious and where the defendant

won't end up bearing the cost in any event. This means that, in hard cases

on the margin, the result should turn on resolving technical issues which

resemble 'medieval scholasticism.' Good. It is important for the law, here

above all, to be as dreary and boring as possible.


The Thalidomide tragedy did indeed lead to a special rule for products

enacted by legislation. However, I have never heard any convincing

explanation as to why products are deserving of special treatment. Why

should there be strict liability for products but not for services? None

of the arguments in favour of the reform were specific to products. These

are the sorts of problems created by trying to ex post create a remedy for

an intuitively deserving plaintiff.


(3) All of the arguments that I gave favoured giving the child a claim.

Conversely, it is perfectly possible to construct policy arguments which

seek to deny the children a remedy. Neither one form of reasoning nor the

other necessarily favours the plaintiff.




> I'm afraid that I'm going to be rude and say that the discussion reminds

> me of medieval scholasticism. It was an argument such as the ones being

> advanced on both sides here that was put forward, among others, to seek

> to deny a remedy to the children of the mothers who ingested

> thalidomide. That tragedy led directly to the passing of the English

> legislation and the /Paxton/ court argues that a solution should be

> devised by the legislature if necessary.  However, if one gets away from

> these issues of "rights" of the unborn, the problem is not really a

> difficult one for the common law, as Patrick Atiyah showed in a note on

> /Watt v Rama/ in (1972) 10 /U of WA L Rev /159. Of course, proof of

> breach and causation remain.


> Harold Luntz.


> Robert H Stevens wrote:

>> I don't agree I am afraid. Rights do indeed correlate with duties (as

>> Charlie says). But there is no logical, linguistic or legal reason why

>> the

>> right which the duty correlates with must coexist at the same moment in

>> time with it. So in my hypothetical the right of the child does indeed

>> correlate with the duty of the manufacturer, even though the right and

>> the

>> duty do not exist at the same time.


>> To take another example, say we accepted that we are under a duty to our

>> great, great, great grandchildren not to despoil the environment. Once

>> born, those persons will have a correlative right that we did not so

>> despoil. We however, will not be under any duty at that moment. We'll be

>> dead. the right and the duty never exist at the same moment in time.


>> I cannot be under a duty after I am dead. I cannot be a right-holder

>> before I am born/conceived.


>> So, in Lionel's example of the hole digger, there is a duty not to dig

>> the

>> hole so as to endanger the person even before they come into existence.

>> This is the same as the manufacturer of the baby food: they owe the duty

>> not to manufacture poisoned baby food even though the child is not yet

>> conceived. The correlative right arises only once the child is

>> born/conceived. The breach of duty occurs if the child is poisoned/once

>> they fall in the hole.


>> Rob



>>> I think perhaps I agree with both Charlie and Robert.

>>> If I carelessly create a hazard (make it a hole in the ground) and no

>>> one

>>> is

>>> ever hurt, I don't think I have breached a duty.

>>> If however someone falls in the hole, I have breached a duty.

>>> But the whole of my relevant actions took place before any of the

>>> plaintiff's relevant actions, and but for the falling in the hole, my

>>> actions would not have been a breach.

>>> All along I owed that person a duty to be careful in relation to their

>>> bodily integrity; that is, a duty to take reasonable care not to cause

>>> harm

>>> (not risk) to that integrity (I am not clever enough to understand

>>> /Barker/). Until I harmed their bodily integrity, there was no breach

>>> of

>>> the

>>> duty. Digging the hole that will (later) harm the right-holder is not a

>>> breach of the right-holder's right. It is only the beginning of what

>>> will

>>> later be revealed to be the breach.

>>> Now if we change it so that the person did not come into existence

>>> until

>>> after I dug the hole, I am still liable. The only thing that changes is

>>> that

>>> the right is not held and the duty not owed until the person comes into

>>> existence.

>>> But since the digging of the hole, being merely the beginning of a

>>> breach,

>>> is not itself the breach, it doesn't seem to matter that the duty was

>>> not

>>> owed at that time.

>>> In other words, if the only persons in the jurisdiction were me and the

>>> person who came into existence after I dug the hole, then only after

>>> that

>>> person came into existence would it be legally prudent for me to rush

>>> back

>>> and fill in the hole. Before that, my act has no juridical content and

>>> can't

>>> be a breach of duty.


>>> It seems to me that the solution used by both the common law and the

>>> law

>>> of

>>> Quebec is this, that if the person is born alive, their life is

>>> understood

>>> to have begun at conception. You could call this 'relation back' I

>>> suppose.

>>> The civilians call it a fiction but I'm not sure. It's just the

>>> resolution

>>> of a very difficult set of interlocking interests. For one set of

>>> reasons,

>>> we say that the person needed to be born alive to become a person

>>> holding

>>> rights. But on the other hand, in order to be born alive you need to be

>>> conceived and to exist in utero and to be at risk of harm.


>>> Lionel













Robert Stevens

Professor of Commercial Law

University College London