Tort; Negligence; the duty of care; foreseeability of harm; unborn plaintiffs.
Facts: While she was pregnant, Lynch drove her car negligently and as a result was involved in an accident. The accident caused injuries to Lynch's unborn child who, as a result, suffered from cerebral palsy when born. An action was brought on behalf of the child against her mother for breach of a duty of care owed to her unborn child.
Issue: Could a duty of care be owed to an unborn child?
Decision: The court held that a duty of care may exist in relation to an unborn child.
Reason: There is no sufficient reason to deny a child the right to claim compensation for ante-natal injuries as a result of the mother's negligent driving. The court recognised that due to compulsory third party insurance for drivers, finding a duty would not result in a mother becoming personally liable to pay damages. This situation therefore seems to be an exception to policy considerations which would otherwise make a mother immune from such liability. Note: In Australia, a disabled child is now entitled to an allowance paid by the state, irrespective of the cause of the disability. This finacial assistance might make it unnecessary to bring an action in Negligence for damages.