Tortious liability for 'in utero' injuries

• Author: Lystra Kodilinye
• Position: LL.B.(U.W.I), LL.M.(Lond.), of the Inner Temple, Barrister, Attorneyat-Law
• Pages: 122-129

TORTIOUS LIABILITY FOR "IN UTERO" INJURIES

Burton v. Islington Health Authority

De Martell v. Merton and Sutton Health Authority

[1992] 2 F.C.R. 845; [1992] 3 W.L.R. 637

LYSTRA KODILINYE*

In two recent cases, Burton v. Islington Health Authority1 and De

Martell v. Merton and Sutton Health Authority,2 the issue before the

English Court of Appeal was whether on a point of law a child who

was born alive, but suffering from disabilities occasioned by negligence

on the part of the defendant at a time when the child was en ventre sa

mère, could maintain an action for negligence against the defendant.

In De Martell's case, the plaintiff's complaint was based on the

negligence of medical staff when the plaintiff's mother was in labour

and at the time of delivery. In Burton's case the plaintiff's complaint

was based on the alleged negligence of medical staff at a much earlier

period than in De Martell's case. The plaintiff in Burton's case based

his claim on the fact that a dilation and curettage procedure was carried

out at a time when the plaintiffs mother was about five weeks

pregnant with the plaintiff but was not aware of it. The medical staff

involved failed to carry out any pregnancy test before the 'D and C

procedure. It was claimed that they should have done so, especially as

there were circumstances which should have put experienced medical

staff on inquiry.

It may be noted that neither of these cases are concerned with the

position where the child has been still-born as a result of

a

third party's

negligence or has, as a result of such negligence, survived birth for a

minimum period of

time.

Nor is the cause of action for pre-natal injury

limited to medically induced harm. The decided cases3 have shown

that the alleged negligence could have arisen in a range of other

contexts, for example from the negligent driving of a motor vehicle,

LL.B.(U.W.I), LL.M.(Lond.), of the Inner Temple, Barrister, Attorney-

at-Law.

1 [1992] 2 F.C.R. 845; [1992] 3 W.L.R. 637.

2

Ibid.

3 See, e.g., Walker v. Great Northern Railway Company of

Ireland

(1891)

28 L.R.Ir. 69.