Watt v Rama [1972] VR 353

Watt v Rama¹ is a landmark Australian authority in negligence establishing that a duty of care can be owed to an unborn child (en ventre sa mère), with the cause of action ‘crystallising’ upon live birth.

COURT: Supreme Court of Victoria (Full Court) (Winneke CJ, Pape and Gillard JJ).

PARTIES: Watt (Plaintiff); Rama (Defendant).

FACTS:

1. In 1967, Mrs Watt, a pregnant woman, was involved in a car accident caused by Rama’s negligent driving. She sustained severe injuries that left her quadriplegic.²
2. Seven and a half months later, Mrs Watt’s daughter (Plaintiff) was born with brain damage and epilepsy, attributed to the accident. The plaintiff (via next friend) claimed that Rama’s negligent driving caused her prenatal injuries.³
3. Rama contended that he owed no duty of care to an unborn child (en ventre sa mère) because, at the time of the negligence, the plaintiff was not a legal person.⁴

ISSUES:

1. Whether the defendant owed a duty of care to the plaintiff who was en ventre sa mère at the time of the negligent act.
2. Whether a living plaintiff could bring a cause of action for prenatal injuries—an issue previously undecided in Australia.

LEGAL PRINCIPLES:

Tort of Negligence: Duty of Care

The plaintiff relied on the neighbour principle in Donoghue v Stevenson,⁵ asserting that a duty of care was owed to her as a member of the class of persons foreseeably at risk, which vested and became actionable upon birth.⁶ The unborn fall within the class whom a reasonable person would foresee as at risk of harm from negligent driving, akin to a newborn in a bassinet.⁷

COURT’S REASONING:

Winneke CJ and Pape J:

Their Honours framed the key question (at 358):

The real question posed for our decision is not whether an action lies in respect of pre-natal injuries but whether a plaintiff born with injuries caused by pre-natal neglect of the defendant has a cause of action in negligence against him in respect of such injuries.⁸

They emphasised foreseeability (at 359):

[T]hat the duty is not simply one to take reasonable care in the abstract, but to take reasonable care not to injure a person whom it should reasonably have been foreseen may be injured by the act or neglect if such care is not taken.⁹

Their Honours reasoned that negligent driving foreseeably injures a pregnant woman and, consequently, her unborn child.¹⁰ This creates a ‘potential’ relationship.¹¹ Upon live birth as a ‘legal person’, it crystallises into an actual duty, breach, and damage.¹² Winneke CJ and Pape J stated (at 360):

Because at the time of the collision, it being reasonably foreseeable that the neglect of the defendant might cause injury to a pregnant woman in the car with which his car collided and might cause the child she was carrying to be born in an injured condition, there arose between the plaintiff and the defendant a potential relationship which upon the birth of the plaintiff as a living person crystallized so as to impose on the defendant a duty to take care not by his act or neglect to injure the plaintiff.¹³

Gillard J:

Gillard J adopted an approach starting from damage and remoteness, relying on Home Office v Dorset Yacht Co Ltd.¹⁴ Gillard J said (at 370):¹⁵

… [T]he question is really one of remoteness of damage.¹⁶ Thus, if the damage suffered here is in the range of potential damage which was foreseeable, and if causation can be established, then a duty can normally be inferred. Foreseeability as to the likelihood of the infant plaintiff being injured is the vital matter to be determined, and to resolve this, the test as enunciated by Lord Atkin in Donoghue v. Stevenson was, in essence, employed by the judge.

Gillard J asks ‘[w]as it foreseeable by the defendant, as a reasonable man, that the child “was a person likely to suffer a disability, when born, by his careless driving?”’¹⁷ If so, Gillard J took the proposition that it was immaterial whether the plaintiff was en ventre sa mère at the time of the negligent act or not, following the ‘Atkinian’ test, analogous to the ginger beer in Donoghue’s case could be consumed by a person born or unborn at the time of its manufacture.¹⁸

Gillard J observed (at 374) that the damage to the infant plaintiff ought reasonably to have been in the defendant’s contemplation at the earlier time of his negligent driving:¹⁹

The unborn should be included in the class of persons likely to be affected by his carelessness since the regeneration of the human species implies the presence on the highway of many pregnant women.²⁰

Gillard J stated (at 368):

Because, on the assumed facts, the plaintiff was a member of a class which was likely to be injured as a consequence of the defendant’s act of carelessness, and the defendant as a reasonable man should reasonably have anticipated at the material time that the then unborn plaintiff would be within the aria of potential danger and might suffer the injuries complained of.²¹

DECISION:

The Supreme Court of Victoria unanimously held that Rama owed a duty of care to the unborn child based on foreseeability (Winneke CJ, Pape and Gillard JJ). The potential duty crystallised upon the child’s live birth, allowing a valid claim in negligence for prenatal injuries. The Court rejected the defendant’s argument that no duty existed because the plaintiff was not a legal person at the time of the negligence.

RATIO:

A defendant owes a duty of care to a child injured in utero if it was reasonably foreseeable that the negligent act might harm an unborn child (en ventre sa mère) carried by a pregnant woman foreseeably at risk. This duty exists in potential form at the time of the negligence and crystallises into an actual duty—completing the cause of action in negligence—upon the child’s live birth, when the child becomes a legal person and suffers actionable damage.

LEGAL IMPACT:

Watt v Rama [1972] VR 353 is a significant Australian precedent establishing liability in negligence for prenatal injuries to a child born alive, recognising the legal interests in this context.²² Here, where damage has been inflicted upon an entity ‘in esse‘ a further condition ‘birth’ is imposed before an action may lie and compensation can be awarded.²³

FOOTNOTES:

1. Watt v Rama [1972] VR 353 (Full Court) (‘Watt‘). ↩︎
2. Ibid 354–355 (Winneke CJ and Pape J). ↩︎
3. Ibid 355; Josephine M D’Archy, ‘Watt v Rama (Negligence, Duty of Care)’ (1973) 9(2) Melbourne University Law Review, 318, 318–319. ↩︎
4. Watt (n 1) 355–356; D’Archy (n 3) 319. ↩︎
5. Donoghue v Stevenson [1932] AC 562 (‘Donoghue‘). ↩︎
6. D’Archy (n 3) 318. ↩︎
7. Ibid. ↩︎
8. Watt (n 1) 358 (Winneke CJ and Pape J). ↩︎
9. Ibid 359. ↩︎
10. Ibid 360. ↩︎
11. Ibid. ↩︎
12. Ibid. ↩︎
13. Ibid. ↩︎
14. Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC 1004, 1027 (Lord Reid) (‘Dorset Yacht Case‘). ↩︎
15. M G Gazley, ‘Tort Liability for Pre-Natal Injuries’ (1973-1975) 7 Victoria University of Wellington Law Review 202, 208. ↩︎
16. Dorset Yacht Case (n 14) 1027 (Lord Reid). ↩︎
17. Gazley (n 15); Watt (n 1) 370 (Gillard J). ↩︎
18. Donoghue (n 5); Gazley (n 15) 208; Watt (n 1) 371. ↩︎
19. Gazley (n 15) 208. ↩︎
20. Watt (n 1) 374. ↩︎
21. Ibid 368. ↩︎
22. Cf Paxton v Ramji (2008) 242 OAC 34. In this Canadian case, the Ontario Court of Appeal held that physicians cannot owe a duty of care to the future child of a patient. ↩︎
23. D’Archy (n 3) 319. ↩︎

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