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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hamilton v. Fife Health Board [1993] ScotCS CSIH_4 (24 March 1993)
Cite as: [1993] ScotCS CSIH_4, 1993 SCLR 408, 1993 SC 369, 1993 SLT 624

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24 March 1993


At advising, on 24th March 1993:

LORD MCCLUSKEY —The pursuers were the parents of a baby boy who was born in August 1976 at Craigtoun Maternity Hospital, St Andrews. The child died three days later. It is a matter of admission that when the child was born he was in a poor condition of health and we must approach this case, at this stage, upon the basis that it was the actions of doctors at that hospital, shortly before the birth and when attempting to deliver the child, that resulted in his poor condition of health at the time of his birth, and also that the child died in consequence of the same traumas sustained immediately before birth. The defenders and respondents are responsible in law for those actions. This reclaiming motion, by the second-named pursuer, was concerned only with the relevancy of the claims by both parents for damages in respect of the loss they suffered as a result of the death of their child.

The defenders and respondents submitted to the Lord Ordinary that the averments of the pursuers in support of the first and third conclusions of the summons, which relate to their claims in respect of the loss of the child, were irrelevant and that the action so far as laid on these conclusions should be dismissed. The Lord Ordinary sustained the second plea-in-law for the defenders and respondents and dismissed the action in relation to these conclusions. The reclaiming motion before us is against the interlocutor of the Lord Ordinary sustaining that plea-in-law.

The parents' rights to damages in respect of the death of their child are said to derive from the Damages (Scotland) Act 1976. The applicable provisions of that Act to which we were referred are as follows: [His Lordship quoted sec. 1(1) and (3) and continued thereafter.] Subsection (4) provides for an award of a "loss of society award". Subsection (7) abolishes the right to claim damages by way of solatium in respect of the death of another person. It is not in dispute that the parents qualify as relatives within the meaning of Schedule 1 to the Act. Section 3 provides: [His Lordship quoted same and continued thereafter.] The interpretation section, sec. 10 (1), includes the following:

"‘Personal injuries"

includes any disease or any impairment of a person's physical or mental condition."

The issue before the Lord Ordinary and before this court was as to the meaning of sec. 1 (1) of the Act, quoted above. The Lord Ordinary's opinion is now reported as Hamilton v. Fife Health Board 1992 S.L.T. 1026. Some seven months after the Lord Ordinary dismissed the parents' claim based upon sec. 1 (1) Lord Morton of Shuna reached the opposite conclusion as to the meaning of F the section and upheld the claim by the parents of a baby boy whose death resulted from negligent failures in treatment of the mother in the hours preceding the birth. The opinion of Lord Morton of Shuna in relation to the relevancy of the claim by those parents is now reported as McWilliams v. Lord Advocate 1992 S.L.T. 1045. The decision by Lord Morton of Shuna was arrived at after a proof before answer but the evidence adduced at the proof was concerned with questions of negligence and damages, not with the question of relevancy. Each Lord Ordinary has fully explained his reasons for the decision that he made on the question of relevancy and it is not necessary, at this stage, to do more than refer to those reasons as reported in the Scots Law Times.

In the present appeal the reclaimer has lodged five grounds of appeal. It is not necessary to narrate them in full here though they do conveniently summarise the argument which was submitted to us by counsel for the reclaimer. It is to that argument that I now turn.

Counsel for the reclaimer submitted that the issue before this court was one purely as to the meaning of sec. 1 (1) of the Damages (Scotland) Act 1976. Before looking at the words of the section, however, it was instructive to consider the state of the law prior to the coming into force of the 1976 Act. At that time, if a person was killed negligently, then certain relatives had a right to claim damages against the wrongdoer. The question as to whether or not a particular claimant had a right fell to be determined by reference to the moment of time immediately before the death of the person who had been killed. Two questions had to be asked: (1) Was the deceased a person related so closely as to give the claimant a right to damages? (2) Would the deceased have had a right of action in respect of the sustaining of his injuries? Reference was made to the opinions of the judges in Eisten v. North British Railway Co. (1870) 8 Macph. 980 where it was made plain that a derivative claim, one deriving from the death of a relative, could be sustained in limited circumstances only, but they included those obtaining when the relationship between the claimant and the deceased was that of parent and child or vice versa. A claim by a posthumous child, in respect of the death of a parent who had predeceased the birth of the child, had been upheld in Connachan v. Scottish Motor Traction Co. Ltd. 1946 S.C. 428, in Leadbetter v. N.C.B. 1952 S.L.T. 179 and in Riddell v. James Longmuir & Sons Ltd. 1971 S.L.T. (Notes) 33. These cases illustrated that at common law there was no difficulty in holding that the posthumous child could claim damages in respect of the death of a parent occurring before the child's birth. In none of these cases did the child's claim appear to rest upon the civil law doctrine contained in the brocard "nasciturus pro iam nato habetur quotiens de eius commodo agitur". In Cohen v. Shaw 1992 S.L.T. 1022 Lord Cullen considered that there was no sound reason in principle why the nasciturus doctrine should not apply to a reparation claim by a posthumous child arising out of the death of his parent; the doctrine was not restricted to rights of succession. There was, however, no case at common law in which the material facts were the same as those in the present case. Reference was also made to McNamara v. Laird Line and Clan Line Steamers Ltd., reported as an appendix to McKay v. Scottish Airways Ltd. 1948 S.C. 254 at p. 265. At p. 266 Lord Constable affirmed the settled rule allowing actions for damages at the instance of a parent in respect of the death of a child while noting that the claim was of an exceptional kind and, as Lord Watson had observed in Clarke v. Carfin Coal Co. (1891) 18 R. (H.L.) 63 at p. 65 did not rest upon:

"any definite principle, capable of extension to other cases which may seem to be analogous, but constitutes an arbitrary exception from the general law which excludes all such actions, founded in inveterate custom, and having no other ratio to support it".

In McKay v. Scottish Airways Ltd. itself Lord President Cooper, at pp. 263–264, acknowledged the peculiar right of certain relatives to recover solatium for the death of a person but described the search for a basis in principle as "a forlorn hope". Although the Lord President there stated that the right of the relatives was an independent, and not a derivative or representative, right, it was difficult to express philosophically the middle view between a derivative and a non-derivative claim. This type of claim was in fact a hybrid type of claim. What was important, however, was that the claim of the posthumous child did not rest upon any principle embodied in the nasciturus doctrine. When it came to the construction of a statute there was a clear principle of statutory interpretation to the effect that it was to be presumed that the legislature did not intend to make any change in the existing law unless it expressed its intention with irresistible clearness: see Maxwell: Interpretation of Statutes (12th edn.) p. 116. No explicit and relevant change in the applicable law could be detected in sec. 1 of the 1976 Act: see Walker on Delict p. 720. The only significant change was in the characterisation of the damages claim itself; the class of claimants remained the same: Walker op. cit. pp. 721–722. There was no hint that parents who would have had a common law claim previously lost it as a result of the 1976 Act. Applying common sense it would be absurd if a woman whose child was injured immediately before birth and died after birth as a consequence of the injuries could make no claim while a woman whose child was injured immediately after birth and died immediately thereafter could claim; no policy reason for making such a distinction could be discovered. Yet that would be the result if the Lord Ordinary's view were correct and it was a result which one should not readily accept had been legislated by inference when the 1976 Act was passed. One could approach a claim under the section by asking four questions: (1) Has a person died? (2) Did that person when he died have a right of action in respect of personal injuries? (3) Did those personal injuries cause his death? (4) Is the claimant a Schedule 1 relative? Question (4) did not need further consideration in this case. It was submitted that it was clear that the pursuers' child who died, died as a "person". It was plain, without relying on the nasciturus doctrine, that that child had had a right of action in respect of the impairment of his physical health. There was ample authority for the view that if a duty was owed in negligence then the breach of duty must be taken to have occurred when a person to whom the duty was owed was actually injured. This was plain from Donoghue v. Stevenson 1932 SC (HL) 31, Bourhill v. Young's Exor . 1941 S.C. 395, at p. 415, (affirmed 1942 S.C. (H.L.) 78), and Watson v. Fram Reinforced Concrete Co. (Scotland) Ltd. and Winget Ltd. 1960 S.C. (H.L.) 92, especially in the speech of Lord Reid. The latter case was concerned with the interpretation of a different statute but the observations founded upon were of general application. In August 1973, shortly after the Scottish Law Commission prepared a draft of a bill which included the clause which ultimately became sec. 1(1) of the 1976 Act (and which was laid before Parliament in 1973 in Scot Law Com. No. 31), there was also presented to Parliament a Command Paper, Cmnd. 5371, entitled Liability for Ante-natal Injury, being Scot Law Com. No. 30. That paper discussed various matters relating to claims in respect of antenatal injury and included the statement:

"The loss of a child before, at, or after birth represents an injury to a parent; for example, a mother might claim in respect of a miscarriage or still-birth wrongfully caused by another, while both parents may sue in respect of the death of a child who has been born alive but has subsequently died from harm sustained in the ante-natal stage"

(para. 7). Reference was also made to various paragraphs discussing different aspects of problems relating to antenatal injury. The conclusion, in para. 19, was:

"That, although there is no express Scottish decision on the point, a right to reparation would, on existing principles, be accorded by Scots law to a child for harm wrongfully occasioned to it while in its mother's womb, provided it was born alive."

Lord Morton of Shuna in McWilliams v. Lord Advocate had correctly narrated the background to the passing of the 1976 Act. His opinion, to which full reference was made, was sound in all respects. Reference was made to the opinions both of Potts J. and of the judges of the Court of Appeal in B. v. Islington Health Authority [1991] 1 Q.B. 638 and Burton v. Islington Health Authority [1991] 1 QB 638 and de Martell v. Merton and Sutton Health Authority [1993] QB 204. Turning to the wording and correct construction of sec. 1 (1) itself it would be helpful to make it clear what was not in issue. The reclaimer was not seeking to challenge the well-established rule that legal personality commenced at birth and not before birth. Secondly, the reclaimer was not seeking to argue that the nasciturus doctrine could be prayed in aid except in the context of giving a right of action to a child subsequently born alive: relatives could not rely directly on this civil law doctrine. However, in the present case, it was not necessary to do so. The real dispute in this appeal was whether or not the Lord Ordinary had properly understood the expression in the statute, "personal injuries sustained by him". The relative physical injuries were inflicted at a time when the child was in utero and was a foetus. But it was a mistake to look narrowly at individual words or phrases and to suggest, for example, that the words "by him" coupled with the word "personal" before "injuries" somehow indicated that the relevant injuries could be inflicted only upon a person in life. The whole structure of the section needed to be looked at. There was no warrant for saying that Parliament intended to create a critical requirement by the use of the words "personal injuries sustained by him". The function of the first four lines or so of the section was to direct attention to the liability to pay damages to the now deceased child or conversely to the child's right to claim damages from the responsible person. Then there followed the critical word "also" which was the key to the structure of the whole section. In essence, therefore, what the section meant was that, provided the deceased child had, before his death, been a person to whom the responsible person had a liability to pay damages, then the responsible person was also liable to pay damages to a qualifying relative. The civil law nasciturus doctrine was not needed either by the child or by the relatives. Even if the Lord Ordinary had been right to regard the words "personal injuries sustained by him" as embodying a critical requirement it was submitted that the word "sustained" did not denote a once and only single event occurring at the moment when injuries were inflicted. Reference to the dictionary showed that the word "sustained" was broadly synonymous with such words as endure, bear, and experience. Accordingly it was perfectly appropriate to treat the personal injuries as being sustained from the time they were inflicted until the time when the injured person died. Even if the word "sustained" had to denote a once-and-for-all, single event that still posed no problem for the reclaimer because the relevant tempus inspiciendum has to be at or after birth. Personal injuries could not be sustained except by a person ("by him"). The child at birth was a person who sustained personal injuries. Nothing in the wording of the section directed attention to a foetus. If injury were inflicted to the foetus and the child sustained the immediate sequelae that was good enough for the reclaimer because the child sustained the sequelae on birth. It might also be said that because the foetus became the person it was the child who had sustained the injuries but at an earlier stage. But there was no difficulty with the concept that the child became afflicted by the injuries, because it was the child who later died from them. The expression "personal injuries" included any disease or any impairment of a person's physical condition. This child sustained an impairment of his physical condition when he was born and it was the result of an act or omission by a person for whom the defenders and respondents were responsible. The reclaiming motion should be allowed.

Counsel for the respondents conceded that the child could have invoked the civil law nasciturus doctrine in an action raised by the child. There was, however, no room for invoking what had been described as the common law fiction, namely that the child was injured at the date of birth. Any injury took place when the child was a foetus. In relation to the application of the nasciturus doctrine reference was made to the speech of Lord Macmillan in Elliot v. Joicey 1935 SC (HL) 57 at p. 70. Relatives could not found upon it. In all the quoted Scottish cases which had any bearing upon this matter the deceased was alive at the time when the delictual act happened and injured him. As to the nature of the claim it was not a derivative action but a separate independent action: see Davidson v. Sprengel 1909 S.C. 566 at p. 570. Connachan, Leadbetterand Riddell all concerned posthumous children. It could be said that the nasciturus doctrine lay at the root of these cases; see also Cohen. Watsonwas of no value to the reclaimer because it concerned a wholly different statute with different wording and the facts were very different. The paragraphs founded upon by the reclaimer in the Report of the Scottish Law Commission (No. 30) were not vouched by any authority. The draft bill was attached to a different Report, Report No. 31. In these circumstances the principle of construction founded upon and referred to in Maxwell op. cit. had no bearing upon the present dispute. Whatever the Scottish Law Commission might have thought, there was no clear and established rule of law to which the principle of statutory construction referred to could apply. What the Report did serve to illustrate was that there were different approaches in various different countries with different legal traditions. These different approaches, contained in Appendix to S.L.C. Report No. 30, Pt. 2, were referred to in some detail. As to the statutory construction the approach of the Lord Ordinary in the present case was correct. If the reclaimers' view was correct then many of the words in sec. 1 (1) were superfluous. In particular the words "in consequence of personal injuries sustained by him" were unnecessary and the words "the injured" preceding "person" should be replaced by the word "that". It was a well-known rule of statutory construction that each phrase had to be given its appropriate content. It was not to be assumed that Parliament used words and phrases unnecessarily. It was true that a liability to pay damages to the injured person was a prerequisite of a claim by a relative but it was not the only prerequisite. It may not have been the express purpose of Parliament to exclude claims by a relative in respect of the death of a child whose death resulted from injuries sustained before birth; but the effect of the section was to exclude any such claim because the whole wording of the phrase which the reclaimers' submission ignored, "in consequence of personal injuries sustained by him" made it plain that the injuries had to be sustained by a person in life. It followed that unless it could be said that the injuries were sustained by a person who was in life the statutory condition was not met. On a proper analysis of the word "sustained" it must be accepted that the injuries were sustained at a point in time when they were inflicted. In this case they were not and there could not be personal injuries inflicted upon "him" because when they were inflicted there was no person and no "him". The child did not die of personal injuries which he, the child, had sustained. Lord Morton of Shuna's analysis of the background to the 1976 Act was flawed by the fact that the Bill was contained in and the Act was derived directly from the Report laid before Parliament in July 1973 (No. 31) which contained no mention of ante-natal injuries. If, as indicated in Pepper v. Hart [1993] AC 593, it was permissible in certain circumstances (specified in the speech of Lord Browne-Wilkinson at p. 640) to consider statements in Parliament—though that seemed inappropriate in this case—there was nothing in the ministerial or other statements to indicate that Parliament had any intention to legislate on the matter of ante-natal injuries at all. Lord Morton of Shuna had been wrong to draw a parallel with the case of McCluskey v. H.M. Advocate 1989 S.L.T. 175 because that case was concerned with a wholly different statute and the reasoning there was not appropriate to the present case. The recent English cases of Burton and de Martell merely showed that different fictions were employed to deal with the difficult case of the posthumous child. But this whole jurisprudence had developed without any reference at all to the interests of third parties such as the present reclaimers. The Lord Ordinary's opinion in the present case was to be preferred. The act of the alleged wrongdoer was completed and the injury was sustained before there was any person. The reclaiming motion should be refused.

In my opinion, the only issue which it is necessary to decide is as to the meaning and application of sec. 1 (1) of the Damages (Scotland) Act 1976. What that section does is to make a wrongdoer ("the responsible person") liable to pay damages to a "relative" (as defined in the Schedule) of a person who has died. The death of that person must have been in consequence of personal injuries sustained by that person as a result of an act or omission giving rise to liability (in the responsible person) to pay damages to the injured person or his executor. As the act or omission must be one giving rise to liability to pay damages, there can be no liability until both damnum and injuria concur. There can be no liability to pay damages until there is a person in respect of whose loss the claim to damages arises. An unborn person, a foetus, is not a person in the eyes of the law—at least in relation to the law of civil remedies—and there can be no liability to pay damages to a foetus, even although the foetus has sustained injuries resulting from a negligent act or omission constituting a breach of duty owed. There is no difficulty whatsoever in Scots law in holding that doctors engaged in the delivery of a foetus owe a duty of care to avoid injury to that foetus: that is trite. But once the foetus ceases on birth to be a foetus and becomes a person there is a concurrence of injuriaand damnum and the newly born child has a right to sue the person whose breach of duty has resulted in the child's loss. The coming into existence of that right to sue does not depend upon the application of any fiction. It depends upon the neighbourhood doctrine of Donoghue v. Stevenson . The doctors engaged in the medical work of assisting in the delivery of a child can obviously foresee that a failure to exercise due care and skill by them may result in injuries to the foetus, being injuries which will cause the child to suffer loss: if the loss to the living child is the foreseeable, direct and probable consequence of the failure to exercise due care and skill at an earlier stage there is a breach of duty owed, in the law of negligence, to the child and that breach occurs when the child is born. If the injuries with which he is born are injuries to his organs or skeleton or tissues then they are properly and sensibly described as "personal injuries" even although when they were inflicted he did not enjoy legal personality; they are injuries to his person although not to his legal persona. They are to him an impairment of his physical condition. To suppose that only one who enjoys legal personality can sustain "personal injuries" is to attach an artificial meaning to the adjective "personal" in sec. 1(1). Legal personality is a construct of the law and merely relates to a basket of rights and responsibilities recognised by the law as effeiring to certain specified creatures, including man-made creatures: there are many examples in history of adult, sentient human beings being denied human status and legal personality and of limited liability companies and even of non-human animals being accorded rights and responsibilities normally appropriate only to human beings. In the circumstances, I see no reason to restrict "personal" in the phrase "personal injuries" so that it means injuries suffered by one on whom the law has conferred legal personality for certain purposes. In my view, it is equally clear that the whole phrase "personal injuries sustained by him" in this context is perfectly apt to include injuries inflicted to the person of a child immediately before his birth and continuing to have their effects on him by impairing his physical condition at and after the time of his birth. Whether or not the phrase would be apt to cover some form of trauma to a foetus in the early days of pregnancy it is not necessary to decide; different legal systems for different purposes have to decide such issues relating to the legal status and rights of a foetus in their context as best they can when they arise: cf.Roe v. Wade 410 U.S. 113 (1973). I am not persuaded that the use of the personal pronoun "him" in the phrase "sustained by him" was intended by Parliament to have the bizarre result that there was no one to injure or to sustain injuries in the few days before the child was born. It is perfectly common in ordinary speech to refer to the child in utero as "he", "she", "him" or "her" and I do not feel driven by the use of such ordinary parlance in this section to the view which the Lord Ordinary accepted, that "Parliament envisaged a person sustaining injuries", meaning a person enjoying legal personality. It was this child who sustained injuries to his person and who died in consequence of personal injuries sustained by him. That appears to me to be enough to require me to hold that the responsible person became liable, on the child's birth, to pay damages to him. There being no dispute that the child was a person who died in consequence of the injuries inflicted on him immediately before his birth, it follows, in my opinion, that the responsible person is also liable to pay damages to the pursuers and reclaimers under sec. 1 (1). It will thus be seen that I prefer the approach of the reclaimers which I have endeavoured to summarise at an earlier stage and that I have simply reformulated the four question test which was promulgated in the reclaimers' submissions.

In relation to the submissions about the background to the passing of the Act, I do not find it necessary or helpful to look in any detail at this background. Although the respondents referred us to Pepper and to the speeches recorded in the official reports of ministers in the respective Houses of Parliament speaking in support of the motion for second reading of the relevant bill, it was not suggested that any real guidance could be obtained from this source. All that was clear was that there was nothing specific said about what clause 1 (1) (later enacted as sec. 1 (1)) was intended to effect in relation to a child injured before birth and dying from his injuries after birth. Lord Morton of Shuna deals fairly fully with the status of the Scottish Law Commission documents in Parliament prior to the introduction of the 1976 Act. I have no reason to disagree with his narration of this matter but, given that the composition of Parliament was radically changed between 1973 and 1976, and having regard to the fact that the S.L.C. document incorporating the bill which became the Act was presented to Parliament before the document dealing with liability for ante-natal injury, I doubt if it is realistic and helpful to look to these documents as defining clearly a mischief which sec. 1 (1) of the Act was designed to remedy in relation to ante-natal injuries.

As to the view expressed by the Scottish Law Commission, to the effect that as at the date of the documents (1973) certain relatives of a child who was injured ante-natally and then died could at common law have sued for compensation for his death, without reliance on the nasciturus fiction, I agree with Lord Caplan and I do not find it necessary to repeat his discussion of B. v. Islington Health Authority, de Martell and Watson; I agree with it fully.

I noted earlier the respondents' submission that Parliament must not be assumed to have used words and phrases unnecessarily and that the subsection could have been more economically worded. It is quite common, however, to find that a provision in an Act of Parliament, once it has been subjected to very close analysis in the light of a particular set of facts, could have been worded differently. Our duty is to look at the provision as a whole and to try to give the words used their ordinary meaning if that is possible. That is, I believe, what I have sought to do. In my opinion the Lord Ordinary has taken too narrow and restricted a view of the meaning and effect of the section and in particular of the one phrase "personal injuries sustained by him".

For these reasons I disagree with the conclusion which the Lord Ordinary has reached. I move your Lordships to sustain the reclaiming motion and to recall the interlocutor of 21st November 1991 sustaining the second plea-in-law for the defenders and dismissing the action in relation to the first and second conclusions. The appropriate course is to repel that plea-in-law and to remit the cause to the Lord Ordinary for further procedure.

LORD CAPLAN —Your Lordship in the chair has fully set out the background to this reclaiming motion and also the respective arguments of the parties so that I need not repeat them.

It is I think accepted that the outcome of this reclaiming motion will depend on the construction to be placed upon sec. 1 (1) of the Damages (Scotland) Act 1976. For my own part I find it helpful in the first instance when construing the relevant statutory provision to look at it in its entirety and in context rather than place too much emphasis on single words or phrases. The object of the subsection is to secure that when a person dies from injuries caused by delict and he or his executor would have had a right to claim damages for these injuries then certain categories of relative should also have a right to claim compensation in respect of the death. Where the subsection applies, a right to claim for loss of society is conferred upon close relatives. A parent who loses a young infant will experience the same sense of loss irrespective of whether the injuries causing death originated shortly before birth or shortly after birth. It is therefore difficult to know what policy objective could have prompted the legislature to confine entitlement to claim compensation to post-natal injuries in a case where the fatality has been caused by the negligence of a third party.

In terms of the subsection the rights of the defined categories of relative only arise where a third party is liable to pay damages to the injured person or his executor. If that liability arises then the person liable to pay damages is also liable to compensate the eligible relatives of the deceased. That consequential liability is quite categorically stated. We must therefore look at the first part of the subsection to discover what particular right of action which would have been available to the injured party or his executor will create a right of action in relatives. The party who originally brought about the fatal injuries to the deceased will only be under liability to pay damages if injuria and damnum co-exist. The first few words of the subsection define the particular damnum which the injured party must suffer before the statutory provision will operate. The critical element of the loss is that the injured party must have died and that death must be in consequence of "personal injuries". Thus the subsection begins by dealing with death and the cause of death so that the emphasis will fall naturally at the time of death and not at some earlier time when injury was first suffered. The respondents argued that the word "personal" in the expression "personal injuries" connotes that the statute is seeking to confine the prerequisite loss to death by injuries inflicted on a living person. It was certainly accepted by the reclaimer that under our law a child in uterodoes not have the legal status of being a person. It is only upon the event of birth that the foetus becomes a person. Reading the first few words of the subsection without undue strain it is not difficult to conclude that if a person dies from injuries (and of course only a living person can die) then the injuries which caused death must essentially be personal injuries. Once the requisite loss is established one looks for the injuria which must underlie the right of action of the deceased or his executor. Thus we come to the phrase "sustained by him as a result of an act or omission of another person". On the face of it the essential question here is "how were the injuries of the deceased caused?" and it would be odd if this question included "at what point of time in the development of his person were they caused?" Thus the link between damnum and injuria is essentially posed by the question "how were the loss-causing injuries acquired?" In my view "sustained" means little more than "acquired". However because of the damaging and unpleasant quality of injuries the word "sustained" with its connotation of "injured" or "borne" or "experienced" might be a more apt word than "acquired". The defenders for their part in support of the view of the Lord Ordinary urged us to read the phrase "sustained by him" as signifying "at the time the harmful injuries were inflicted on a person". "Person" of course in that context would mean a living person. On this construction the legislature were deliberately excluding a right to compensation unless the fatal injuries originated at a point when the deceased was in life. Assuming that it were the intention of the subsection to give effect to such an exclusion and to make a specific provision to exclude rights flowing from harm to an unborn foetus the matter is expressed in a singularly oblique way. The subsection refers to claims by relatives for death at all ages of injured persons and a claim arising from the death of a person suffering from ante-natal injuries must be a relatively rare contingency. One may have expected that such a particular proviso would have merited a separate subsection rather than be worked into a general provision. Moreover the 1976 Act was presented to Parliament in consequence of the Command Paper of the Scottish Law Commission No. 31 (Report on the law relating to damages for injuries causing death) and was based on the draft bill attached to that paper. In so far as we were referred to the terms of the Command Paper by the respondents we were not referred to any proposal to change or restate the law in relation to ante-natal damage.

Senior counsel for the respondents made the point that it is an accepted canon of statutory construction that expressions used must be assumed to have a content. He argued therefore that the phrase "personal injuries sustained by him" can only be given content if it relates to the situation where injuries were sustained by a person in life. It was suggested that if the intention was to include death in consequence of all injuries at whatever stage of development these had been inflicted then the statutory provision could have better read "when a person dies as a result of an act or omission etc.". In any event it was said that the provisions covering ante-natal injury did have a logical basis. The intention was to preserve the pre-existing state of the law since at common law a relative had no claim in respect of a child who had suffered injury before birth. I do not agree that subsec. 1 (1) is merely continuing this view of the common law in relation to anti-natal injuries and I shall develop that point later. However I also do not agree that the reference to "personal injuries sustained by him" has no content unless it is given the meaning urged upon us by the respondents. In relation to direct cause of death the phrase "dies in consequence of personal injuries" is more specific than "dies as a result of an act or omission by another person". Senior counsel for the respondents sought to make a distinction between the injuries initially inflicted and their sequelae. The abbreviated formulation suggested by the respondents' senior counsel may well have left a question as to whether the statutory provision only covered the immediate consequences of the delict or also extended to death caused by the sequelae. Looking to the definition of "personal injuries" given in the interpretation section (sec. 10) of the 1976 Act we find that "personal injuries" includes any disease or any impairment of a person's physical or mental condition. This definition includes consequences which would often be the sequelae to the original injury to the deceased. "Impairment" is usually measured and assessed after the impact of the initial injury. Equally in relation say to occupational disease the body, for example, is assailed by noxious substances and then the disease develops subsequently. Thus in my view the definition in sec. 10 supports the conclusion that in the present case the child died of "personal injuries" for clearly at the time of its death its physical condition was impaired. On one view of course it is difficult to imagine a person dying of injuries which are not "personal" injuries. The phrase "personal injuries" however is commonly encountered as relating to a situation where injuries have been suffered by a person. It is often used to differentiate injuries to the person from patrimonial loss. For example the phrase occurs in the Law Reform (Personal Injuries) Act 1948. Section 3 of that Act sets out that the expression "personal injury" includes any disease and any impairment of a person's physical or mental condition and the expression "injured" shall be construed accordingly. Other examples could be given of the statutory use of the expression "personal injuries" coupled with a definition equivalent to that I have already alluded to. These statutes do not refer to situations where ante-natal injuries could be an issue. However to illustrate in specific terms the point I am making one need look no further than the very Act we are considering. In sec. 9 of the 1976 Act the section is declared to apply to "any action for damages in respect of personal injuries sustained by the pursuer". The section thereafter proceeds to deal with matters that have no reference to claims by relatives but instead relate to matters affecting the situation where the injured person has a direct claim. It was accepted by the respondents that an injured foetus who survives birth would have a right of action. Thus in sec. 9 it is difficult to see what justification there could possibly be for using the phrase "personal injuries sustained by the pursuer" for the purpose of limiting the section to post natal injuries exclusively.

Given that I have concluded that the meaning of sec. (1) is unambiguous there may be no need to proceed further but we were given a comprehensive argument about the relationship between the subsection and the pre-existing law so that it would be appropriate that I consider this in case my interpretation of the section is otherwise invalid. In effect the reclaimer contended that there is what is effectively a presumption against construing a statute so as to innovate on the preceding common law unless it is perfectly clear from the terms of the statute that change in the pre-existing law is intended. Counsel for the reclaimer argued that at common law claims by relatives in so far as allowed by the law would have covered claims in respect of a child who had died from the effects of antenatal injury. Counsel for the respondents contested this. They argued that under the common law a child who had suffered ante-natal injuries could only sue by enlisting the benefit of the civil law fiction to the effect that in matters affecting its interests the unborn child in utero should be deemed to be born. It was contended that this fiction is not available for the benefit of a third party and I think that in cases where it were necessary to apply the fiction the reclaimer would accept that position. The respondents in these circumstances argued that the legislators adopted the wording of sec. 1(1) with a view to taking account of what the respondents perceive to have been the pre-existing law and that it is for this reason that claims by relatives for the death of a child injured ante-natally have been specifically excluded.

In this matter I favour the view of the reclaimer. Thus in my opinion before the 1976 Act certain relatives of a child who was injured ante-natally and then died could at common law have sued for compensation for his death and that without reliance upon the said civil law fiction. As I understand the opinion of the Lord Ordinary he took the opposite view and this may have influenced his decision to construe sec. 1 (1) as he did. More significant however may be the fact that neither the Lord Ordinary's opinion nor indeed the report of his decision in Scots Law Times indicate that the Lord Ordinary was referred to the highly pertinent case of B. v. Islington Health Authority [1991] 1 Q.B. 638. In March 1992 the judgment of Potts J. in the last-mentioned case and of Phillips J. in an equivalent case (de Martell v. Merton and Sutton Health Authority [1993] QB 204) came before the Court of Appeal in England and indeed the majority of that court went out of their way to indicate that they gave their express approval to these judgments. Of course the Court of Appeal decision was not available when the Lord Ordinary heard the present case. The cases in question are now reported in [1993] QB 204 sub nom. Burton v. Islington Health Authority and de Martell v. Merton and Sutton Health Authority. Each of the two judges of first instance and Dillon L.J. in the Court of Appeal gave a very extensive analysis of English law in relation to a child who suffers ante-natal injury and certainly material is set out in these cases which the Lord Ordinary would have required to consider carefully had the cases been available to him. I may say that for my own part having given careful consideration to Burton v. Islington Health Authority (and the associated case of de Martell) I am in full agreement with most of the views expressed by the judges involved. Nor do I see any reason for supposing that the points made by these judges would not be equally applicable to Scotland. It is probably now trite law that before a right of action to sue for reparation arises in Scotland it is not necessary that the act of negligence and infliction of harm should be contemporaneous. Indeed Donoghue v. Stevenson 1932 SC (HL) 31 sets this beyond dispute. Nor is it necessary that the person to whom a duty to take care is owed should be identifiable at the time when such care is neglected or even for that matter alive at such time. A duty is owed to take care not to cause injury to any member of a class of person who might foreseeably be harmed by an act of negligence. As was said by Gillard J. in the Australian case Watt v. Rama 1972 V.R. 353 at p. 373. "It would appear from Donoghue v. Stevenson and Grant v. Australian Knitting Mills Ltd. [1936] AC 85 that it would be immaterial whether at the time of fault the victim was in existence or not, so long as the victim was a member of a class which might reasonably and probably be affected by the act of carelessness". Watt v. Rama was a decision of the Supreme Court of Victoria and it was followed by the Court of Appeal in Burton. Phillips J. quoted the said words of Gillard J. with apparent approval and as I have indicated the majority of the Court of Appeal specifically accepted his reasoning. Furthermore in his judgment Dillon L.J. (at p. 658) quoted with approval from a case at first instance before the High Court of Ontario namely Duval v. Seguin (1972) 26 D.L.R. (3d) 418 at p. 433. The action arose out of ante-natal injuries in consequence of a motor accident to a child later born and named Ann. Fraser J. said "Ann's mother was plainly one of a class within the area of foreseeable risk and one to whom the defendants therefore owed a duty. Was Ann any the less so? I think not. Procreation is normal and necessary for the preservation of the race. If a driver drives on the highway without due care for other users it is foreseeable that some of the other users of the highway will be pregnant women and that a child en ventre sa mère may be injured. Such a child therefore falls well within the area of potential danger which the driver is required to foresee and take reasonable care to avoid." In my own opinion the validity of these remarks is glaringly obvious. In the present case given that the deceased infant is alleged to have been damaged in the course of a forceps delivery shortly before birth, it is scarcely contestable that the prospect that a careless use of the forceps could cause serious damage to the emergent child is an obviously foreseeable danger. Accordingly the doctor in charge of the delivery had a duty to take reasonable care not to do anything which might cause harm to the child about to be born. However the duty is not breached nor does a right of action arise at the point when the careless act is committed (assuming there were such an act). The duty which rests on a person charged with taking care is not the academic responsibility of not being negligent but rather the duty not to cause harm by negligence. The delict is only committed when the initial negligent act actually causes harm. That is to say the concurrence of injuria and damnum is required. Thus as Lord Reid said in Watson v. Fram Reinforced Concrete Co. (Scotland) Ltd. 1960 S.C. 92 at p. 109:

"The ground of any action based on negligence is a concurrence of duty and damage and 1 cannot see how there can be that concurrence unless the duty still exists and is breached when the damage occurs."

As Phillips J. puts it in de Martell at p. 218:

"The duty in the law of negligence is not a duty to exercise reasonable care to avoid risk of causing injury. It is a duty not to cause injury by want of reasonable care."

On the basis of the foregoing reasoning the point when actionable injury is sustained is not the point of time when carelessness is committed nor even the point in time when that carelessness may have given rise to a physical affront but rather the point of time when it can first be said that the person affected has suffered (or "sustained" for that matter) material harm because of the preceding negligence. Thus returning again to Burton at p. 228 Dillon L.J. quotes (again with approval) from the leading judgment of Winneke C.J. and Pape J. at pp. 360–361 of the report in Watt v. Rama . The said judges stated:

"On the facts which for present purposes must be assumed the child was born with injuries caused by the act or neglect of the defendant in the driving of his car. But as the child could not in the very nature of things acquire rights co-relative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the relationship was attached to the defendant".

It has to be noticed that what was said was that in a situation where the foetus had suffered ante-natal injuries in a car accident injuries to a living person were not "sustained" until the point of birth.

In my view the rule of law relating to a child in utero to the effect that it is not a living being (which on one view itself is a fiction) cannot apply in both directions. If the foetus is not a living being then it is mere organic matter—a fuse or conduit which if affected by the negligence of a defender can lead (because it is a feature in the chain of causation) to the emergence of personal injuries when the child is born. In de Martell at p. 219 Phillips J. aptly refers to comments of Holmes J. in Dietrich v. Northampton (1884) 138 Mass. 14. Holmes J. stated at p. 16 of the report:

"That, on general principles, an injury transmitted from the actor to a person through his own organic substance, or through his mother, before he became a person, stands on the same footing as an injury transmitted to an existing person through other intervening substances outside him."

The implication of the point I have been making is that even if I am wrong in attributing to "sustained" as the word is used in sec. 1 (1) a meaning such as "borne" or "experienced" then personal injuries were not "sustained" until the infant was born. Certainly damage was done at an earlier stage to the foetus but it is only at birth for the first time one could say "here is a living being who has sustained personal injuries". As Phillips J. puts it (at p. 219 of de Martell). "In law and in logic no damage can have been caused to the plaintiff before it the plaintiff existed. The damage was suffered by the plaintiff at the moment that in law, the plaintiff achieved personality and inherited the damaged body for which the health authority (on the assumed facts) was responsible".

The defenders attack the applicability to Scotland of de Martell and Burton. These cases were both concerned with ante-natal injuries to a child suffered before the passage of the Congenital Disabilities (Civil Liability) Act 1976. Thus the court was concerned with determining the relevant English common law as it existed before the 1976 statute. It appears to me that the reasoning I have set out above although supported by English and foreign authority is based on principles which are also applicable to Scots Law. The respondents' senior counsel contended that it was not necessary for the court to erect an elaborate argument such as (it is said) happened in Burton because in Scotland the matter should be determined by the applicability of the civil law fiction. I see no need for fiction at all in relation to the right of a deceased child to raise an action based on what happened to it before birth. The civil law fiction is clearly necessary for the resolution of certain categories of case. I do not think it can be disputed that it is needed to create a right of succession in relation to a posthumous child. It may also be needed in a reparation context in a case such as Cohen v. Shaw 1992 S.L.T. 1022 because there it is certainly arguable that without the fiction the posthumous child was not a "relative" at the time of the father's death. However in the present case it seems to me that the child would have had a perfectly clear right to sue on the basis of established common law principles. It should be noted that in England the common law recognises a principle equivalent to our civil law fiction. This point is brought out in the judgment of Dillon L.J. in Burton at p. 227. His Lordship then states:

"For my part I think it would be open to the English Courts to apply the civil law maxim directly to the situations we have in these two appeals, and treat the two plaintiffs as lives in being at the times of the events which injured them as they were later born alive, but it is not necessary to do so."

I would agree with that view in relation to the suggested need to apply the civil law fiction in an equivalent situation in Scotland. I consider that parents who otherwise qualify would have had a right of action for damages prior to 1976 in respect of a child who had died because of ante-natal damage. That is because the child itself would have had a right of action independent of the limiting features of the civil law fiction. That being so I am confirmed in my view that it was not the intention of the legislature to innovate upon the existing law in respect of the relevant matter. Indeed innovation within the context of the 1976 Act would have been surprising and would have required clear statement.

For the reasons which I have set out I find myself in disagreement with the Lord Ordinary's opinion and I would sustain the reclaiming motion. The consequence would be that the Lord Ordinary's dismissal of the action should be recalled and the case remitted to him for further procedure.

LORD WYLIE —I have had the opportunity to read the comprehensive opinion of your Lordship in the chair. I agree with it and there is nothing which I feel I could usefully add.

For the reasons fully set out by your Lordship I would accordingly sustain the reclaiming motion and recall the interlocutor of 21st November 1991.

[1993] SC 369

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