Tue, 22 Nov 2005 13:39:25 -0500
More on maternal torts in Alberta
all - and thank you for this very interesting discussion!
think that liability for prenatal injury would inevitably fall differently
on the mother, and to focus solely on the standard traffic accident
that is probably the focus of the statute's drafters might miss
some unintended consequences. Rather than just removing a preferential
immunity from mothers, it could expose mothers (or their insurers,
in the case of the Maternal Tort Liability Act) to liability in
a greater range of circumstances than a father or stranger (male
can only come up with a couple of situations off the top of my head.
a pregnant woman injures her fetus while driving an ATV reasonably
carefully. I haven't researched the definition of "automobile" under
Alberta's Insurance Act in order to determine whether an ATV is
covered. But, if it is not, another inherently risky mode of locomotion
could be substituted. (Section 1(d) of the Alberta Insurance Act
defines states that an automobile "includes a trolley bus and a
self-propelled vehicle, and the trailers, accessories and equipment
of automobiles, but does not include watercraft, aircraft or railway
rolling stock that runs on rails.") Could a court decide that it
was negligent for a woman to adopt a risky mode of locomotion while
pregnant? Since it is the mode of locomotion itself that is risky
rather than the way it is operated vis-à-vis third parties,
this is not a matter of imposing the same duties toward third parties
on pregnant woman as apply more generally. Non-pregnant persons
would not be exposed to the same liability.
a pregnant woman injures her fetus as a result of doing stunts on
her ATV. This carelessness endangers the driver only, as well as
the fetus if the driver is pregnant. As in the above example, duties
toward third parties that are owed by everyone are not applicable.
Once again non-pregnant persons would not be exposed to this liability.
the MTLA removes a mother's immunity wherever injuries were caused
by the mother's use or operation of an automobile. What does "use"
mean? Could a court decide that being a passenger is "use"? If a
woman accepts a ride in a car from someone who is drunk, is this
actionable negligence in "use" of an automobile?
an admittedly extreme hypothetical - a depressed and pregnant woman
who seeks (unsuccessfully) to end her life by driving off a bridge
would be liable where others would have no liability to third parties.
any of these examples incorrect? Are there other hypotheticals to
illustrate this point?
may be willing to tolerate (a) legislation that exposes pregnant
women (or their insurers) to liability for a greater range of activities
than other people and (b) the possibility that this well-meant legislation
might operate as a precedent for expansion into such things as involuntary
hospitalization à la crystal meth example. Indeed, it may
seem heartless to object to maternal liability in these situations,
particularly where there is no other insurance policy to access.
Nevertheless, I feel a lot of disquiet about it, although I certainly
sympathize with the desire to ensure compensation for injured children.
suggestion that liability would operate as a deterrent to careless
behaviour by pregnant women is attenuated by the restriction in
the act to situations in which an insurance policy exists. I suppose
the premium sanction might still exist.
naively ask ... should legal policy be driven by how to access insurance
policies? (On a related note, the Childs v. Desormeaux
hearing has been shifted to January 18 - and we shall soon see whether
we can access a party host's homeowner's insurance policy when a
drunken guest drives uninsured.).
Faculty of Law
University of Ottawa
degree of additional intrusion is always a balance, and
if it were thought intrusive (which almost no-one thinks it is).
there is always s. 1 of the Charter. The judgments in
Dobson anticipate and even suggest this exception; they
deny it for other reasons than that it would be intrusive as a
matter of social policy. Taking care while driving, since so many
other persons are at risk, including the mother herself, imposes
almost no extra onus on the woman because she is pregnant. There
is really no extra care required by imposing liability to the
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