Assessing Liability: Peter's Disability Case Analysis

To: Senior lawyer
From: Yu Tang Assistant lawyer
RE: Peter’s disability by external factors
Date: March 5, 2016

QUESTION PRESENTED The plaintiff party is Peter who has disability when he was born. The defendant parties is ACME Corporation and his mother May. There are two factors could cause Peter’s disability, one is the ACME Corp emitted toxic chemicals into environment near the park that May often visited when she was pregnant. The other factor is that his mother May was smoking during pregnant. Could Peter get recover compensatory damages with those two situations?
SHORT ANSWER Two situations should be discussed independently. First discuss the scenario 1: can Peter (plaintiff) get recover compensatory damages if the evidence prove that

In terms of reasonable foreseeability, May owes Peter a duty of care as well. By the way, there is no difference between two situations in terms of reasonable foreseeability. As a pregnant woman, May should know the risk if she is still smoking during pregnant. However, liability cannot be imposed on May if Peter’s disability is caused by her decision. Because in the case Dobson v Dobson (1999) “ the Supreme Court of Canada faced for the first time the question whether a child can sue his or her mother for injuries sustained due to the mother’s prenatal negligence. For many Canadian legal scholars and lawyers, the Court’s decision—that a pregnant woman has no legal duty toward her fetus—came as a surprise. A child is free to sue a third party for damages sustained as a result of the third party’s prenatal negligence, and a child is free to sue either or both of his or her parents for their negligence”(Nelson, E. 1999). It means a duty of care may be owed toward a child who is subsequently born with a disability by anyone in the world except his mother.

LIKELY OUTCOME Based on the May’s defences (which would like to refer to Dobson case), the Court would not assign liability to May, which means May is successful in this lawsuit. The law of Tort only do not apply to a pregnant woman. There is a difference between pregnant woman and the third