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

his disability is caused by ACME Corporation(defendant).
SITUATION 1
In this situation, Peter file a lawsuit against ACME Corp which provides defenses to the plaintiff allegations. The plaintiff Peter may claims that ACME Corp with careless to spew toxic chemical waste product into the environment, which caused Peter’s disability. ACME Corporation could be held liable if its carelessness caused Peter’s disability. The location of its factory is near a public park that any people could visit. ACME does not conduct dangerous and harmful chemicals properly, and definitely ACME is highly responsible for the people who often visit this park and get injured. Therefore, the defendant owes duty of care(legal concept) for the plaintiff, and strict liability would be assigned to defendant by a Court.
LIKELY OUTCOME
In terms of reasonable foreseeability, defendant’s negligence cause severe affects. ACME Corporation would be found liable, which means Court would assign strict liability to it. As stated by Lord Lloyd in Page v Smith (1995) “ factory was liable to victim because they knew or ought to have known that asbestos dust was escaping from the factories into the surrounding street and could cause harm to people who were exposed to it. the test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the claimant to the risk” (Lord Lloyd, 1995). Peter would be successful in this lawsuit and get compensatory damage from ACME corporation.

SITUATION 2
Can Peter (plaintiff) get recover compensatory damages if the evidence prove that his disability is caused by his mother May was smoking during pregnant(defendant).
In this scenario, Peter may claim his mother May is prenatal negligence for smoking during pregnant.

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

party.