FREDRICTON – New Brunswick’s highest court has ruled that a four-year-old Moncton boy can sue his mother for injuries he sustained while still in the womb.
In 1993, Ryan Dobson’s mother Cynthia was involved in a head-on car collision three months before she was due to give birth. The accident left Ms. Dobson in a coma from which she eventually recovered, but Ryan ended up permanently disabled. He still can’t walk or talk. Now, the New Brunswick Court of Appeal has upheld a lower court ruling allowing Ryan to seek legal damages from his mother.
The pro-life movement is applauding the ruling as a step toward recognition of the unborn child as a person even though Chief Justice William Hoyt was careful to point out that he foetus is still not a person under the law.
In the decision believed to be the first of its kind in Canadian motor-vehicle law, Chief Justice Hoyt wrote that a pregnant woman should be under the same duty as everyone else to drive carefully. “[It is] a duty she owes to her children as well as to the general public. If, as it is alleged here, the child suffers injury during his or her lifetime as a result of the mother’s negligent driving during pregnancy, there is no reason that the child should not be able to enforce his or her rights. To hold otherwise would create a partial exclusion to a pregnant mother’s general duty to drive carefully.
The suit was launched by Gerald Price – Ryan’s grandfather and Ms. Dobson’s father – to obtain damages from her insurance company for the boy’s care. The Insurance Act requires that the insurer defend such suits for clients. Moncton lawyer Jim MacAulay, whose firm represented Ryan, said the Appeal Court decision “recognizes that Ryan is a child who has rights just like any other child.
It also recognizes that a pregnant woman has a general duty to drive carefully and that duty extends to her unborn child.”
But the lawyer also took pains to point out that the court has limited its decision to prenatal injuries received by a child as a result of a mother’s negligent driving “and not injuries due to her lifestyle choices, such as smoking. This decision does not limit a woman’s control of her own body,” he said.
Mr. Justice Hoyt said there is a “very real distinction between an action brought by or on behalf of a foetus and one brought by or on behalf of a child. The law seems settled that a foetus has no right to sue or be subject of an action.”
George Gilmore, president of the New Brunswick Right to Life Association, views the decision as a breakthrough. “It is an indication that the courts are beginning to move in the right direction, and that is toward recognition that the unborn child is a human being.”
– NB Telegraph via Pro-Life E News Canada