Burton v Islington Health Authority (De Martell v Merton and Sutton Health Authority)

A child born alive and disabled by negligence occurring before birth may maintain an action in negligence for damage suffered after birth. The cause of action is completed when the child becomes a living legal person and suffers damage, although the prenatal injury may form part of the causal sequence. The absence of independent legal personality before birth does not prevent liability where the relationship between defendant and child was capable of imposing a duty if the child were born. The common law was not frozen by the Congenital Disabilities (Civil Liability) Act 1976 or by the earlier decision in Walker v Great Northern Railway Company of Ireland.

These conjoined appeals concerned whether children born alive with disabilities caused by alleged medical negligence during pregnancy or delivery could sue in negligence. In Burton, the alleged negligence occurred during a dilation and curettage procedure when the mother was about five weeks pregnant. In De Martell, it was alleged to have occurred during labour and delivery.

Mr Justice Potts refused to strike out Burton’s claim. Mr Justice Phillips decided the preliminary issue in De Martell’s favour. The defendants appealed, relying principally on the absence of legal personality before birth, Walker v Great Northern Railway Company of Ireland, and the intervention of the Congenital Disabilities (Civil Liability) Act 1976. The central issue was whether a child born alive could recover for disabilities caused by negligence occurring while the child was unborn.

1. Both appeals dismissed. The Court of Appeal held that a child born alive with disabilities caused by a defendant’s negligent act or omission before birth could maintain an action in negligence. The allegations therefore disclosed possible causes of action.
2. Negligence requires a duty of care, breach and consequent damage. The damage relevant to the causes of action was suffered when each child became a living legal person at birth. The prenatal injury was an evidential part of the causation of that damage. The potential relationship between defendant and child could crystallise on birth into a duty owed to the child, with breach and damage then concurring.
3. The court applied the reasoning in Watson v Fram Reinforced Concrete Company [1960] S.C.(H.L) 92, Montreal Tramways v Leveille [1933] 4 D.L.R. 337, Watt v Rama [1972] V.R. 353 and Duval v Seguin [1972] 26 D.L.R. (3rd) 418. The general rule that a foetus has no independent legal personality before birth did not answer the separate question whether a child born alive could sue for post-birth damage.
4. It was open to English courts to apply the civil-law maxim treating an unborn child as born for its benefit, but it was unnecessary to decide the appeals on that basis. Walker was of no assistance in modern law and was not followed. Section 4(5) of the Congenital Disabilities (Civil Liability) Act 1976 left pre-Act births to be determined by the common law as developed in light of relevant authorities, including helpful Commonwealth decisions.
5. Lord Justice Balcombe agreed with Lord Justice Dillon’s reasons. Lord Justice Leggatt agreed with the result and the substance of the reasoning. Appeals dismissed with costs; legal-aid taxations ordered; leave to appeal to the House of Lords refused.

1. Court of Appeal: dismissed both appeals, reported at [1992] EWCA Civ 2, with costs and legal-aid taxations.
2. High Court, Queen’s Bench Division: Mr Justice Potts refused to strike out Burton’s claim as disclosing no reasonable cause of action. Mr Justice Phillips determined the preliminary issue in De Martell’s favour. Both actions were permitted to proceed to trial.