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26 the passage i have quoted from lamont js judgment

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Unformatted text preview: f Torts 4 ed p 368) called ‘the most spectacular abrupt reversal of a well-settled rule in the whole history of the law of torts’. (Indeed some American courts go further and even allow damages to be recovered by the estate of a stillborn child.) [26] The passage I have quoted from Lamont J’s judgment in the Montreal Tramways case was also cited by Hiemstra J in Pinchin supra at 257A-B, by Gillard J in Watt v Rama supra at 363-4 and by Dillon LJ in Burton’s case at 839b-d. [27] The more difficult question is whether we should allow such an action by using the nasciturus rule or by using what Professor Joubert called the ordinary principles of the law of delict. [28] The judges in the Supreme Court of Canada who decided the Montreal Tramways case were also divided on the legal principles to be applied so as to allow a child to sue after birth for pre-natal injuries. Lamont J, who delivered his judgment on behalf of himself and Rinfret and Crocket JJ, relied on the nasciturus rule. 18 Cannon J held that it was not necessary to consider the rights of the child while in its mother’s womb, between the time of conception and birth. His judgment was delivered in French. The following summary of his reasoning is taken from the judgment delivered by Winneke CJ and Pape J in Watt v Rama supra at 357: ‘His view was that the cause of action arose when the damage was suffered and not when the wrongful act was committed. Injury was one of the three essential elements of responsibility, and without injury, no action would lie. He thought that in principle the plaintiff’s right to compensation came into existence only when she was born with the bodily disability from which she suffered. It was only after birth that she suffered the injury, and it was then that her rights were encroached upon and she commenced to have rights. It could be said that her rights were born together with her; and from birth with her guardian’s help she could bring the action and endeavour to show that the injury from which she suffered was caused prior to her birth through the fault of the defendant. He thought it unnecessary to discuss the maxims of the civil law or the application of the Civil Code of Quebec. It was not a question of the right the child had after conception, but of the right to compensation which commenced when she was born.’ [29] This approach commended itself to all three judges in Watt v Rama, although Gillard J also, in the alternative, suggested (at 374-7) that the other approach based on the nasciturus rule, which for some purposes at least had been received into the law of England, might be adopted. He stated, however (at 377 lines 29- 19 30), that it was not necessary ‘to form any concluded opinion’ on the point. Cane (op cit 720) found the main line of reasoning in Watt v Rama to be ‘rather technical’ and said that ‘its detailed operation, like the scheme of the [UK] Act presents certain difficulties’. He preferred the alternative reasoning of Gillard J, which involves treating the unborn child as having already been born at the...
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