Cynthia Dobson was a pregnant woman. While in the 27th week of pregnancy she was driving her car when her negligent actions caused a car accident. The foetus was permanently injured, and was born prematurely that day. Her son, Ryan Dobson, suffered physical and mental injuries, including cerebral palsy. His grandfather launched a tort claim for damages against his mother. Ryan was successful at the Court of Appeal, which his mother appealed.
- Should a mother be liable in tort for damages to her child arising from a prenatal negligent act that allegedly injured the fetus in her womb?
Cory, writing for the majority, finds that the mother should not be held liable in the situation because of the policy implications. They employ the Kamloops test to determine if a duty of care should be owed. It has two parts:
- Is the relationship between the two parties close enough to create a reasonable duty?
- Are there any public policy implications that should negate or limit the scope of the duty?
They find that the first part is satisfied; however the public policy implications negate the duty. They state that there are two main reasons for this: it would violate the privacy and autonomy of women, and it is impossible to judicially define a reasonable standard of conduct for pregnant women.
McLachlin, in a concurring judgment, states that another main reason why this duty cannot be imposed is that it would violate pregnant women's rights under the Charter – specifically liberty and equality. They would lose their liberty, and not be treated equally with other women in society.
Major, in the dissent, states that in order for the public policy implications to negate the duty they must add new restrictions on what the woman can do. He says that this is not the case, because she had a duty of care to everyone else on the road, and extending that to the foetus would not change the reasonable standard of her conduct. He says that this case deals specifically with pregnant women driving automobiles, and if the creation of duty imposed a limitation on her actions that was not there previously then the outcome would be different. He uses the example with another pregnant woman in the car – if the same outcome occurred, then there is no question that the other woman's foetus could sue her for negligence. He agrees that the Kamloops test applies, but says that the policy implications here do not negate the duty.
- Pregnant women do not owe a duty of care to the foetus in their womb.
- The test to determine if a duty of care is owed has two parts:
- Is the relationship close enough to create a reasonable duty?
- Are there public policy grounds to negate or limit the scope of the duty?