Skip to main content Accessibility help
Internet Explorer 11 is being discontinued by Microsoft in August 2021. If you have difficulties viewing the site on Internet Explorer 11 we recommend using a different browser such as Microsoft Edge, Google Chrome, Apple Safari or Mozilla Firefox.

Update 13th September 2024: Our systems are now restored following recent technical disruption, and we’re working hard to catch up on publishing. We apologise for the inconvenience caused. Find out more 

Home
> Duty II – Particular…

Chapter 3: Duty II – Particular duty scenarios

Chapter 3: Duty II – Particular duty scenarios

pp. 125-169

Authors

, Queen Mary University of London
  • Add bookmark
  • Cite
  • Share

Summary

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).

  • About the book

    Access options

    Review the options below to login to check your access.

    Purchase options

    There are no purchase options available for this title.

    Have an access code?

    To redeem an access code, please log in with your personal login.

    If you believe you should have access to this content, please contact your institutional librarian or consult our FAQ page for further information about accessing our content.

    Also available to purchase from these educational ebook suppliers