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:
STATUTORY PRECLUSIONS OF A DUTY OF CARE
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).