Standard of Care

Outline Miscellaneous categories of duty of care: Standard of Care finish duties to the unborn nervous shock duty of care owed by barristers Standard of Care

Duties to the unborn: pre-conception wrongs wrongful birth and wrongful life wrongful pregnancy pre-natal injuries

Pre-natal injuries Foetus cannot sue – it is not a legal person. A child who is “born alive” may sue with respect to prenatal injuries caused by a third party’s negligence. However, there is no duty of care owed by a mother to her unborn child.

Court’s concerns in Dobson potential to intrude on mother’s fundamental rights conflict between autonomy of mother and foetus how to distinguish between tortious and non-tortious behaviour in the daily life of expectant women weak deterrent effect of sanction of “life-style” choices increased level of scrutiny of expectant women

Alberta Maternal Tort Liability Act exception to common law immunity born-alive children may sue their mothers for prenatal injuries if: injuries were due to mother’s operation of an automobile mother was covered by insurance award cannot exceed the insurance limit

Winnipeg Child and Family Services mother is addicted to glue sniffing may damage the nervous system of a developing foetus 2 of previous children were born permanently disabled Winnipeg Child and Family Services sought an order that the mother be detained in a health centre for treatment until the child was born

To succeed, the Court would have to ... overturn the “live-birth” rule recognize a foetal right to sue the mother recognize a cause of action for lifestyle choices that may adversely affect others recognize an injunctive remedy that deprives a defendant of liberties, including involuntary confinement

Nervous shock no liability for psychiatric injury unless it qualifies as “nervous shock” physical disorder or recognized psychiatric illness the act would foreseeably cause nervous shock in a person of “ordinary fortitude” proximity test: relational proximity locational proximity temporal proximity other factors possible for Anns analysis

Policy reasons for barristers’ immunity duty to client may conflict with (higher) duty to the court prolonged proceedings to prevent complaints against public interest to permit re-litigation of the original issue through a negligence suit obligation of barristers to accept clients contrary to general immunity from civil liability in a trial

Negligence duty of care standard of care (and its breach) causation remoteness of damage actual loss defences

Duty of care – asks whether the defendant should consider the plaintiff when acting. Standard of care – asks in what way the defendant should consider the plaintiff when acting.

Ryan v. Victoria (City) creates an objectively unreasonable risk of harm considerations of reasonableness: likelihood of a known or foreseeable harm gravity of the harm burden or cost to prevent harm social utility of conduct external indicators custom industry practice statutory/regulatory standards