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Dobson (Litigation Guardian of) v. Dobson
Encyclopedia
Dobson v. Dobson, [1999] 2 S.C.R. 753 was a landmark decision by the Supreme Court of Canada
on a pregnant
woman's legal duties in tort law
. It was the first time the Supreme Court of Canada had to consider this issue. The majority of the Court found that tort claims cannot be brought against women for negligence
toward the fetus
during pregnancy.
in bad weather. Her fetus was supposedly damaged in the accident, and was delivered by Caesarean section
on the day of the crash, before the expected due date. The child had cerebral palsy
. On behalf of the child, his grandfather brought a tort claim against the mother for negligence in driving.
Cory noted that the only issue before the Supreme Court was whether such a tort claim could be made; is a pregnant woman liable for negligence? He then turned to cases in which children actually did make successful tort claims for fetal injuries. These included Montreal Tramways Co. v. Léveillé (1933), in which a child successfully sued for club feet, and the Court had said that otherwise there would be no way to achieve justice for the child. However, in 1999 Cory noted that the action in the earlier case was not against the mother, which was a more "sensitive issue."
The Court then cited City of Kamloops v. Nielsen (1984) to say the "duty of care
" that a mother has for a child is not forced on the mother by courts through public policy. Only a legislature can consider such an issue. Following Kamloops, the Court said a duty of care is recognized if the involved people are closely related, and if the issue does not raise questions about public policy. While fetuses and their mothers have often legally been seen as one person, for the purposes of this case the Court addressed the issue as if they were two people. This satisfied the requirement that the involved people, namely Cynthia Dobson and her fetus, were closely related. As the Court noted, "almost any careless act or omission by a pregnant woman could be expected to have a detrimental impact on foetal development." However, the issue raised questions of public policy; it implicated privacy rights of a pregnant woman and her bodily control. In this sense, it involved consideration that pregnancy may be the "human condition" most "important to society" as it preserves the human race. Moreover, pregnancy symbolizes "fertility
and hope
." Cory cautioned, however, that despite all this, a woman remains a person with rights. The issue of a pregnant woman's responsibilities ran deep, deeper than that of another person who could be sued for causing damage to someone else's fetus. The pregnant woman's relevant activities would include what "the pregnant woman eats or drinks, and every physical action she takes" and this involves "every waking and sleeping moment, in essence, her entire existence." Whereas a mother has emotional responsibilities for a fetus, adding a tort dimension to this would seriously alter it.
Turning to other countries, Cory found that in the United Kingdom
the Parliament
had enacted a law granting tort immunity to pregnant women for fetal damages. The only responsibilities were minor ones concerning negligence in driving. Any responsibilities, some in the UK noted, were private and not legal. In the United States
, the judges seemed to be split on whether a woman can be held liable for her fetus' injuries. However, the Supreme Court of Illinois
in 1988 had noted there were the woman's privacy rights to consider.
Returning to this case, the Court found a woman may negligently cause fetal injuries in many ways, car accidents representing 28% of these cases. Moreover, if a place of work is dangerous, tort responsibilities may affect a woman's right to work
, or she might be forced to work for the money. It could also have psychological consequences for the woman, and would lead to poor mother-child relations as the child matures.
Another reason why the issue raised concerns of public policy was that the judicial system would have to define the proper behaviour of a pregnant woman, a so-called "reasonable pregnant woman" test. However, Cory responded that courts should not do this. It raised questions as to whether objective expectations can be made, as some people will have subjective beliefs regarding the pregnant woman. This went back to concerns about privacy rights. Moreover, leaving it to the individual to determine what is reasonable makes sense since the individual is more aware of her economic status and ability to obtain health care, and given the educational and ethnic differences of individual women.
Regarding driving, the New Brunswick Court of Appeal had argued that one could separate responsible driving from personal autonomy. This is what had been done with the 1976 UK law that generally exempted the woman from legal responsibilities, except for driving. However, Cory replied that "With respect, the UK legislative solution to the issue at bar cannot be interpreted as support for the test suggested by the Court of Appeal. To do so presumes that it is appropriate for courts to resolve an extremely sensitive and complex issue of public policy and insurance law
." Moreover, just because this was a British law did not mean it was a principle of common law
. Additionally, the British law was designed this way so that the tort would be covered by insurance
, thus easing a driving pregnant woman's stress
in knowing her insurance would help.
, Professor Rand Dyck
in a discussion on security of person
notes the decision bears some parallels with Tremblay v. Daigle
(1989). In that case, the Court found a man cannot acquire an injunction
to stop his partner from having an abortion. Here, a woman was not legally responsible for fetal injuries.
While the Canadian Charter of Rights and Freedoms
applies only to government actions, one scholar cites Dobson as an example of how "the courts have undoubtedly promoted flexible Charter values in private law
cases since 1982." Conversely, the Human Rights Program under the Department of Canadian Heritage
once suggested that Dobson partly illustrates how the International Covenant on Economic, Social and Cultural Rights
influences Canadian law. Specifically, Dobson reflects article 10 of the Covenant, "Protection of the Family, Mother and Child." Other cases said to reflect that article include Augustus v. Gosset (1996), Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) (1997), and New Brunswick (Minister of Health and Community Services) v. G.(J.)
(1999).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on a pregnant
Pregnancy
Pregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
woman's legal duties in tort law
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. It was the first time the Supreme Court of Canada had to consider this issue. The majority of the Court found that tort claims cannot be brought against women for negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
toward the fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
during pregnancy.
Background
The case involved one Cynthia Dobson, who in 1993 was driving and got into a car accidentCar accident
A traffic collision, also known as a traffic accident, motor vehicle collision, motor vehicle accident, car accident, automobile accident, Road Traffic Collision or car crash, occurs when a vehicle collides with another vehicle, pedestrian, animal, road debris, or other stationary obstruction,...
in bad weather. Her fetus was supposedly damaged in the accident, and was delivered by Caesarean section
Caesarean section
A Caesarean section, is a surgical procedure in which one or more incisions are made through a mother's abdomen and uterus to deliver one or more babies, or, rarely, to remove a dead fetus...
on the day of the crash, before the expected due date. The child had cerebral palsy
Cerebral palsy
Cerebral palsy is an umbrella term encompassing a group of non-progressive, non-contagious motor conditions that cause physical disability in human development, chiefly in the various areas of body movement....
. On behalf of the child, his grandfather brought a tort claim against the mother for negligence in driving.
Decision
The majority decision was written by Peter Cory, who began by emphasizing the uniqueness and importance of pregnancy, saying it "speaks of the mystery of birth and life" and that "The relationship between a pregnant woman and her foetus is unique and innately recognized as one of great and special importance to society." He noted it was usually the case that women care for their fetus, before he turned to address negligence.Cory noted that the only issue before the Supreme Court was whether such a tort claim could be made; is a pregnant woman liable for negligence? He then turned to cases in which children actually did make successful tort claims for fetal injuries. These included Montreal Tramways Co. v. Léveillé (1933), in which a child successfully sued for club feet, and the Court had said that otherwise there would be no way to achieve justice for the child. However, in 1999 Cory noted that the action in the earlier case was not against the mother, which was a more "sensitive issue."
The Court then cited City of Kamloops v. Nielsen (1984) to say the "duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
" that a mother has for a child is not forced on the mother by courts through public policy. Only a legislature can consider such an issue. Following Kamloops, the Court said a duty of care is recognized if the involved people are closely related, and if the issue does not raise questions about public policy. While fetuses and their mothers have often legally been seen as one person, for the purposes of this case the Court addressed the issue as if they were two people. This satisfied the requirement that the involved people, namely Cynthia Dobson and her fetus, were closely related. As the Court noted, "almost any careless act or omission by a pregnant woman could be expected to have a detrimental impact on foetal development." However, the issue raised questions of public policy; it implicated privacy rights of a pregnant woman and her bodily control. In this sense, it involved consideration that pregnancy may be the "human condition" most "important to society" as it preserves the human race. Moreover, pregnancy symbolizes "fertility
Fertility
Fertility is the natural capability of producing offsprings. As a measure, "fertility rate" is the number of children born per couple, person or population. Fertility differs from fecundity, which is defined as the potential for reproduction...
and hope
Hope
Hope is the emotional state which promotes the belief in a positive outcome related to events and circumstances in one's life. It is the "feeling that what is wanted can be had or that events will turn out for the best" or the act of "look[ing] forward to with desire and reasonable confidence" or...
." Cory cautioned, however, that despite all this, a woman remains a person with rights. The issue of a pregnant woman's responsibilities ran deep, deeper than that of another person who could be sued for causing damage to someone else's fetus. The pregnant woman's relevant activities would include what "the pregnant woman eats or drinks, and every physical action she takes" and this involves "every waking and sleeping moment, in essence, her entire existence." Whereas a mother has emotional responsibilities for a fetus, adding a tort dimension to this would seriously alter it.
Turning to other countries, Cory found that in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
the Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
had enacted a law granting tort immunity to pregnant women for fetal damages. The only responsibilities were minor ones concerning negligence in driving. Any responsibilities, some in the UK noted, were private and not legal. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the judges seemed to be split on whether a woman can be held liable for her fetus' injuries. However, the Supreme Court of Illinois
Supreme Court of Illinois
The Supreme Court of Illinois is the state supreme court of Illinois. The court's authority is granted in Article VI of the current Illinois Constitution, which provides for seven justices elected from the five appellate judicial districts of the state: Three justices from the First District and...
in 1988 had noted there were the woman's privacy rights to consider.
Returning to this case, the Court found a woman may negligently cause fetal injuries in many ways, car accidents representing 28% of these cases. Moreover, if a place of work is dangerous, tort responsibilities may affect a woman's right to work
Right to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
, or she might be forced to work for the money. It could also have psychological consequences for the woman, and would lead to poor mother-child relations as the child matures.
Another reason why the issue raised concerns of public policy was that the judicial system would have to define the proper behaviour of a pregnant woman, a so-called "reasonable pregnant woman" test. However, Cory responded that courts should not do this. It raised questions as to whether objective expectations can be made, as some people will have subjective beliefs regarding the pregnant woman. This went back to concerns about privacy rights. Moreover, leaving it to the individual to determine what is reasonable makes sense since the individual is more aware of her economic status and ability to obtain health care, and given the educational and ethnic differences of individual women.
Regarding driving, the New Brunswick Court of Appeal had argued that one could separate responsible driving from personal autonomy. This is what had been done with the 1976 UK law that generally exempted the woman from legal responsibilities, except for driving. However, Cory replied that "With respect, the UK legislative solution to the issue at bar cannot be interpreted as support for the test suggested by the Court of Appeal. To do so presumes that it is appropriate for courts to resolve an extremely sensitive and complex issue of public policy and insurance law
Insurance law
Insurance law is the name given to practices of law surrounding insurance, including insurance policies and claims. It can be broadly broken into three categories - regulation of the business of insurance; regulation of the content of insurance policies, especially with regard to consumer...
." Moreover, just because this was a British law did not mean it was a principle of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Additionally, the British law was designed this way so that the tort would be covered by insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
, thus easing a driving pregnant woman's stress
Stress (medicine)
Stress is a term in psychology and biology, borrowed from physics and engineering and first used in the biological context in the 1930s, which has in more recent decades become commonly used in popular parlance...
in knowing her insurance would help.
Commentary
Although this case did not address abortion in CanadaAbortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
, Professor Rand Dyck
Rand Dyck
Dr. Perry Rand Dyck, B.A., M.A., Ph.D. Professor Emeritus, Laurentian University is the author of the Canadian Politics: Critical Approaches textbook which is used in many Canadian Universities, and taught to students studying Political Science, Law, Economics, Women's Studies, Philosophy,...
in a discussion on security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
notes the decision bears some parallels with Tremblay v. Daigle
Tremblay v. Daigle
Tremblay v. Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law...
(1989). In that case, the Court found a man cannot acquire an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
to stop his partner from having an abortion. Here, a woman was not legally responsible for fetal injuries.
While the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
applies only to government actions, one scholar cites Dobson as an example of how "the courts have undoubtedly promoted flexible Charter values in private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
cases since 1982." Conversely, the Human Rights Program under the Department of Canadian Heritage
Department of Canadian Heritage
The Department of Canadian Heritage, or simply Canadian Heritage |department]] of the Government of Canada with responsibility for policies and programs regarding the arts, culture, media, communications networks, official languages , status of women, sports , and multiculturalism...
once suggested that Dobson partly illustrates how the International Covenant on Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
influences Canadian law. Specifically, Dobson reflects article 10 of the Covenant, "Protection of the Family, Mother and Child." Other cases said to reflect that article include Augustus v. Gosset (1996), Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) (1997), and New Brunswick (Minister of Health and Community Services) v. G.(J.)
New Brunswick (Minister of Health and Community Services) v. G.(J.)
New Brunswick v. G., [1999] 3 S.C.R. 46 is a leading Supreme Court of Canada decision on right to legal aid services...
(1999).