1. Standard of Care

2. 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

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

4. 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.

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

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

12. 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.

13. 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