Law of Tort - Duty of Care and Wrongful Birth

Law of Tort - Duty of Care and Wrongful Birth

1. Protected interests

   • Bodily integrity
   • Mental security
   • Personal freedom
   • Economic interests
   • Privacy
     • Campbell v MGN
       •    -Tort action for breach of confidence subject to the ECHR provisions upholding the right to private and family life (section 6) Up until this point the English courts did not recognise a tort as invasion of privacy   
     • Mosley v News Group Newspapers
       •   Mosley was caught with prostitutes engaging in S&M and relied upon an action based upon breach of confidence or the unauthorised disclosure of personal information rather than defamation Justice David Eady:"The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence
     • Douglas v Hello
       • Hello magazine tried to use photos of their wedding, they had an exclusivity contract with OK   Successful claims for breach of confidence (privacy) and for the breach of the Data Protection Act  
   • Reputation
   • Intellectual property

2. Negligence

   • Must establish:
     • A legal duty to take care
       • A breach of that duty
         • Damage caused by the breach
           • Damage which is not too remote
       • Established in the neighbours test in Donoghue vs Stevenson
         • The neighbour test for establishing a duty of care can be broken down in to two requirements:
           • Reasonable proximity
             • Bourhill v Young
               • Pregnant woman heard the collision but did not see it, defendant died in the crash. Claimant walked past the site of the crash and saw blood which shocked her and sent her into labour. Brought a claim against D's estate.  No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.
           • Reasonable foresight of harm
             • Topp v London Country Bus
               • Defendant company left a minibus in their lay by overnight which got stolen and the thieves ran over a woman. Her husband brought an action for damages. Held that the company did not owe a duty of care for the acts of the third party. It was not foreseeable that thieves would steal the bus and run a woman off her bicycle. 
             • Home Office v Dorset Yacht Co Ltd
               • Young offenders left alone, stole a boat and crashed it into a yacht. The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.
         • Other tests
           • Anns
           • Caparo

3. Wrongful birth/conception

   • McFarlane v Tayside Heatlh Board (healthy child)
     • General damages but no child maintanenance
       • Society must regard the birth of a healthy child as beneficial
         • But why should a parent who went out of their way to avoid such a 'blessing'?
   • Parkinsons v St James (disabled child)
     • Could not claim the whole cost of bringing up the child but that she could recover the additional costs resulting from the child’s disability
       • Treats a disabled child as having exactly the same worth as a non-disabled child. It affords him the same dignity and status. It simply acknowledges that he costs more (Hale LJ).
   • Rees v Darlington (disabled parent)
     • A conventional award of £15,000 would be ordered to reflect the fact Mrs Rees had been the victim of a legal wrong, in addition to general damages for the pregnancy and birth
       • Lord Bingham of Cornhill: The real loss was that the parent, particularly the mother, had been denied by negligence the opportunity to live her life in the way that she wished and planned. There should be a conventional award to mark the plaintiff’s injury and lost autonomy. This sum, fixed at £15,000, would not be the product of calculation but would be some measure of recognition for the wrong done.
   • AUSTRALIAN CASE OF CATTANACH V MELCHIOR
     • This decision has been reversed by statute, potentially to bring Australian law more in line with English
     • McHugh and Gummow JJ thought the term 'wrongful birth' was misleading because what was wrongful was not the birth but the negligence of the doctor
       • Kirby J maintained that in the real world cases of this kind were about money, not love or the preservation of a family unit

4. Omissions liability

   • Stovin v Wise
     • Issue of Mrs Wise being 70% responsible for her actions and the council 30% Council appealed on the basis that they were not liable as it was an omission to act
   • Undertaking
     • Where the defendant agrees to act or voluntarily accepts a responsibility, his later failure to do so will render him liable
     • Barrett v MOD
       • Naval officer who died after getting drunk, once the senior officer had assumed responsibilty he was liable 
     • If a special relationship exists eg parent and child, employer and employee, school and pupil, doctor and patient, between the parties there is a legal duty to act.
     • Hawkins V Clayton
       • High Court of Australia held that a solicitor who had assumed actual custody of a will was obliged to take reasonable steps to locate the executor named in the will