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  • Print publication year: 2016
  • Online publication date: May 2018

3 - Duty II – Particular duty scenarios

from Part I - Negligence


This chapter applies many of the principles discussed in Chapter 2, but considers four controversial and problematical scenarios involving a duty of care, viz, where:

  • • statute has precluded a duty of care, primarily for reasons of policy;
  • • D has failed to warn of material risks associated with a medical operation or treatment;
  • • D has committed a so-called ‘pure omission’; and
  • • D has failed to manage, control or supervise third parties who injure or kill C.
  • Dealing with the four conundrums in turn:


    There are two specific scenarios, arising under the Congenital Disabilities (Civil Liability) Act 1976 (‘the 1976 Act’), in which a duty of care has been barred by statute. Both are entirely policy-driven.

    A mother's immunity

    The 1976 Act confers an immunity upon C's mother, D, in respect of any of D's acts or omissions which occurred during D's pregnancy (i.e., in utero) or pre-conception which affected her ability to have a healthy child (per s 1(1)). However, D loses that immunity if her child, C, is injured in utero due to D's negligent driving (per s 2).

    No negligence action is possible by a child, C, against his or her mother, D, for acts or omissions which cause damage to that child, such as the following, committed during or prior to the pregnancy:

  • i. if D participates voluntarily in sporting activity, and suffers an injury during that activity because of her own carelessness or lack of reasonable attention;
  • ii. if D smokes, drinks, takes drugs, or ingests something else, which affects the foetus adversely in some way and results in C's being born injured, disabled, drug-dependent or otherwise afflicted (in the recent case of CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation), where a child was born with Foetal Alcohol Spectrum Disorder as a direct consequence of her mother's excessive drinking while pregnant, the Court of Appeal confirmed, in dicta, that s 1 would preclude that child from being able to sue her mother in these circumstances);
  • iii. if D refuses medical intervention, and delivers a handicapped child (a hypothetical example suggested in Re MB, where D refused blood samples, surgical procedures, etc, during her pregnancy, as she was frightened of needles).
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