Burton v Islington Health Authority  QB 204
MEDICAL NEGLIGENCE - DUTY OF CARE – LEGAL PERSONALITY
The claimants were children who had been born suffering from disabilities which had been caused by negligent medical treatment of their mothers during pregnancy and at the birth, administered by medical professionals within the defendant health authority. The claimants had all been born before the Congenital Disabilities (Civil Liability) Act 1976, which now provides for civil liability to unborn children, came into force; the defendant hospital sought to argue that as this Act had reformed the law, it must be the case that prior to its coming into force a doctor could not be liable to a child for damage caused before its birth.
The issue was whether the child had an action for the negligent medical treatment of his mother during pregnancy and birth in circumstances where he had suffered damage as a result of this. This was controversial as unborn children are not viewed as persons in the eyes of the law.
The Court concluded that the children were able to sue in their own right, despite the fact that they were unborn and therefore lacked legal personality at the time of the negligent treatment. The reasoning behind this conclusion was that at birth, the child is ‘clothed in all the rights of action…which it would have had if in existence at the date of the accident to its mother’ (p. 226). The Court also noted that this approach was consistent with the law in other Commonwealth jurisdictions (for example with the decision of the Supreme Court of Canada in Montreal Tramways v Leveille  4 DLR 337).