P’S CURATOR BONIS V CRIMINAL INJURIES COMPENSATION BOARD [1997] SLT 1180
FACTS:-
The curator bonis of an incapax sought judicial review of a decision of the CICB to refuse an application. The ward was conceived and born as a result of an incestuous rape by her maternal grandfather upon her mother. The ward suffered severe congenital mental and physical abnormalities on account of the consanguinity of her parents. The CICB refused the application on the grounds that the abnormalities suffered by the ward were not “injuries” as they were inherent in her; that the abnormalities were caused by the consanguinity of her parents and not by the rape. Furthermore at the time of the rape, the ward was living with the perpetrator of the crime as part of the same family and as a result an exception in the scheme applied.
The petition for judicial review came before Lord Osborne for a first hearing.
JUDGMENT:-
The definition of “injury”
Lord Osborne considered the definition of the word “injury.” In the Oxford English Dictionary it was clear that the word “injury” was very wide in scope. Institutional writers had focused on the wrongful act. Lord Osborne referred to Stair’s Institutions I ix 2, 3 and 4 and Walker, Delict (2nd ed) at pp 31 and following. Roman law principles, upon which Scots law was founded, were broad enough to encompass the concept of personal injury for which the petitioner was contending in this case. In the case of Black v Duncan 1924 SC 738, it had been decided that a husband might recover damages from a rapist for the rape of his wife; implicit in that decision was a broad concept of injury. Lord Osborne referred also to the case of A v C (1919) 35 Sh Ct Rep 166.
Lord Osborne considered cases from the United States. In the case of Zepeda v Zepeda 190 NE 2d, pp 856-858 the word “injury” was applied to one who had been born and remained illegitimate. In Curiender v Bio-Science Laboratories, App, 165 Cal Rptr 477 the court considered that the birth of the Claimant with a genetic defect could be regarded as an injury cognisable at law and a claim for reparation was allowed.
In the English case of McKay v Essex Area Health Authority [1982] QB 1166 the court was concerned with a Claimant born with disability as a result of rubella infection. It was alleged that, but for the negligence of the Defendants, the foetus would have been aborted. The Court of Appeal held that since the child’s complaint was that she was born with deformities caused by the rubella while she was in her mother’s womb, the basis of the claim was that the Defendants were negligent in allowed the child to be born alive. Furthermore the child’s claim was contrary to public policy as being a violation of the sanctity of human life. This was a claim that could not be enforced, because the court could not evaluate non-existence for the purpose of awarding damages for the denial of it.
Lord Osborne commented that in the present action, the court was not concerned with the method of assessment of compensation.
In Berman v Allen 404 A 2d 8 an infant afflicted with Down’s Syndrome did not suffer any damage cognisable at law by being brought into existence.
In Alquijay v St Lukes-Roosevelt Hospital Center 483 NYS 2d 994 the court rejected a claim brought on behalf of an infant with Down’s Syndrome. A similar view was taken in Azzolino v Dingfelder 337 SE 2d 528. In Williams v State of New York 223 NE 2d 343 involved a claim brought by an infant born as a result of an assault on a mentally deficient mother. That claim was rejected as was the claim in Cowe v Forum Group Inc.575 NE 2d 630 which was brought by the child of a mother against the nursing home who had failed to protect his mother from rape.
In Harbeson v Parke-Davis Inc. Wash 656 P 2d 483 the case was concerned with foetal hydantoin syndrome, attributable to the use of the drug Dilantin during pregnancy. The court held that a child might maintain an action for “wrongful life” in order to recover extraordinary expenses to be incurred during the child’s lifetime, as a result of the child’s congenital defect. However, general damages for “wrongful life” were not admissible. The same result applied in Turpin v Sortini, Sup 182 Cal Rptr 337 where a child born with hereditary congenital defects could recover extraordinary expenses necessary to treat the hereditary ailment. Lord Osborne commented that it had been submitted that this decision showed that the court had recognised a congenital defect as an “injury”. In another case Procanik v Cillo 478 A 2d 755 an infant Claimant sought damages for birth defects and impaired childhood in consequence of congenital rubella syndrome. A claim for extraordinary medical expenses was recognised.
In Jorgensen v Meade Johnson Laboratories Inc. 483 F 2d 237 a father of deceased and living mongoloid children brought an action claiming that the mongoloid condition of the children resulted from the mother’s taking birth control pills manufactured by the Defendants. Whilst it was recognised that the allegations in the case involved pre and post conception harm, the court did not exclude pre-conception harm from consideration. Therefore there could be a conditional prospective liability in tort to one not yet in being, as happened in Zepeda and Turpin above.
In Renslow v Mennonite Hospital 367 NE 2d 1250 the court held that an infant could maintain an action against a hospital and physician for any injuries sustained as a result of a negligent blood transfusion into the mother, even though the transfusion occurred several years prior to the infant’s conception. The actionability of a pre-conception tort was recognised in Bergstreser v Mitchell 577 F 2d 22. In Graham v Keuchel 847 P 2d 342 it was held that physicians could be found liable for the wrongful death of a newborn infant, even though the acts of alleged negligence took place before that infant was conceived.
Lord Osborne turned to the situation in the United Kingdom. The Congenital Disabilities (Civil Liability) Act 1976 created civil liability to a child born “disabled” in certain circumstances. That Act did not extend to Scotland, but the legal situation was similar.
Coming back to the definition of injury, the court said in R v Criminal Injuries Compensation Board, ex parte Schofield [1971] 1 WLR 926 that the construction of the CICB scheme was not to be approached as if it was a statute. In Brown v Minister of Pensions 1946 SLT 371 the question was whether injury was or was not attributable to war service. There was an onus on the minister to establish that it was not. The court said that the issue was to be decided as it would be a man in the street applying common sense. A similar approach had been taken in R v Criminal Injuries Compensation Board, ex parte Ince [1973] 1 WLR and Stapley v Gypsum Mines Ltd [1953] AC p 681.
There was also the issue of the petitioner living with the perpetrator at the time of the crime of violence, and therefore being barred under the CICB Scheme from making a claim. The petitioner’s counsel argued that since the petitioner had no independent life at the time of the crime of violence (the rape), it could not be said that the petitioner and perpetrator was “living together.....as members of the same family.”
Lord Osborne now considered the arguments of the respondent’s counsel. Personal injury involved an interference with the integrity of the human body or mind, as a result of which the victim was altered. The mere experience of suffering in itself was not enough to constitute “personal injury”. Reparation involved the restoration of a pre-existing condition Lord Osborne had been referred to the Human Fertilisation and Embryology Act 1990 where it was apparent that genetic defects would exist from the moment of conception. The reality was that the petitioner could not have existed save in her present state.
In relation to the authorities from the United States, these should be approached with caution since different states had different laws. In the cases of Becker v Schwartz and Park v Chessin 413 NYS 2d 895, the issue was an alleged failure to advise relating to the availability of test to discover Down’s Syndrome. These claims were rejected. The court indicated that there was no precedent for the recognition of a fundamental right of a child to be born as a whole, functional human being.
Lord Osborne summarised the issues in the case. The first issue was whether the condition of the petitioner could be regarded as a “personal injury” within the CICB scheme. The second issue was whether that personal injury was directly attributable to a crime of violence. The third issue was whether the petitioner could be said to be living with the abuser as a member of the same family within the terms of the CICB scheme.
In relation to the first issue, the legal definition of injury indicated the idea of a pre-existing victim. In Livingstone v Raywards Coal Co. (1880) 7 R (HL) 1 that was the impression given by the court. In Wallace v Kennedy (1908) 16 SLT 485 it was said that there had to be some physical injury of some kind, which might be nervous shock. Mere mental pain and emotion would not ground an action.
Lord Osborne considered the cases from the United States again. In Becker v Schwartz the claim for wrongful life had been dismissed. In Williams v State of New York a case similar to the present one, it was held that the infant had no right to recover and similar decisions were given in Berman v Allan, Alquijay v St Lukes-Roosevelt Hospital, Azzolino v Dingfelder and Cowe v Forum Group Inc.. In Turpin v Sortini again the court the same view was given in relation to pain and suffering and other general damages.
Lord Osborne said that the weight of United States authority told against wrongful life claims.The law might recognise a pre-conception tort, but there was a difficulty where the defect which was the subject of the claim or complaint was of genetic origin and unavoidable.
Lord Osborne now considered the United Kingdom case of McKay v Essex Area Health Authority. In that case the rubella that harmed the child was not the fault of the doctor, the fault was in letting the child be born. The Court of Appeal said that a court could not evaluate non-existence.
Therefore in conclusion, the CICB had not erred in law when they concluded in their written decision that congenital deficiencies could not properly be held to be injuries within the meaning of the Scheme. Injury pre-supposed a pre-injury state, which was capable of assessment and comparison with the post injury state. The child concerned never had, nor could have, any existence save in a defective state. Consequently the Applicant’s petition must fail.
However in relation to causation, Lord Osborne said that a jury or an ordinary man would not draw the distinction between the birth of the child, which they accepted was directly attributable to an act of rape and the “injuries.” Both were directly attributable to the crime of violence. In light of the decision in relation to the first issue, this issue had no bearing on the final result in the case.
Likewise it could not be said that the Applicant was living with the perpetrator at the time of the crime of violence, so that objection to the claim would fail, since it could not be meaningfully said that a foetus could live with anyone as a “member of....[a] family”. Again this issue had no bearing on the final result in the case.
FACTS:-
The curator bonis of an incapax sought judicial review of a decision of the CICB to refuse an application. The ward was conceived and born as a result of an incestuous rape by her maternal grandfather upon her mother. The ward suffered severe congenital mental and physical abnormalities on account of the consanguinity of her parents. The CICB refused the application on the grounds that the abnormalities suffered by the ward were not “injuries” as they were inherent in her; that the abnormalities were caused by the consanguinity of her parents and not by the rape. Furthermore at the time of the rape, the ward was living with the perpetrator of the crime as part of the same family and as a result an exception in the scheme applied.
The petition for judicial review came before Lord Osborne for a first hearing.
JUDGMENT:-
The definition of “injury”
Lord Osborne considered the definition of the word “injury.” In the Oxford English Dictionary it was clear that the word “injury” was very wide in scope. Institutional writers had focused on the wrongful act. Lord Osborne referred to Stair’s Institutions I ix 2, 3 and 4 and Walker, Delict (2nd ed) at pp 31 and following. Roman law principles, upon which Scots law was founded, were broad enough to encompass the concept of personal injury for which the petitioner was contending in this case. In the case of Black v Duncan 1924 SC 738, it had been decided that a husband might recover damages from a rapist for the rape of his wife; implicit in that decision was a broad concept of injury. Lord Osborne referred also to the case of A v C (1919) 35 Sh Ct Rep 166.
Lord Osborne considered cases from the United States. In the case of Zepeda v Zepeda 190 NE 2d, pp 856-858 the word “injury” was applied to one who had been born and remained illegitimate. In Curiender v Bio-Science Laboratories, App, 165 Cal Rptr 477 the court considered that the birth of the Claimant with a genetic defect could be regarded as an injury cognisable at law and a claim for reparation was allowed.
In the English case of McKay v Essex Area Health Authority [1982] QB 1166 the court was concerned with a Claimant born with disability as a result of rubella infection. It was alleged that, but for the negligence of the Defendants, the foetus would have been aborted. The Court of Appeal held that since the child’s complaint was that she was born with deformities caused by the rubella while she was in her mother’s womb, the basis of the claim was that the Defendants were negligent in allowed the child to be born alive. Furthermore the child’s claim was contrary to public policy as being a violation of the sanctity of human life. This was a claim that could not be enforced, because the court could not evaluate non-existence for the purpose of awarding damages for the denial of it.
Lord Osborne commented that in the present action, the court was not concerned with the method of assessment of compensation.
In Berman v Allen 404 A 2d 8 an infant afflicted with Down’s Syndrome did not suffer any damage cognisable at law by being brought into existence.
In Alquijay v St Lukes-Roosevelt Hospital Center 483 NYS 2d 994 the court rejected a claim brought on behalf of an infant with Down’s Syndrome. A similar view was taken in Azzolino v Dingfelder 337 SE 2d 528. In Williams v State of New York 223 NE 2d 343 involved a claim brought by an infant born as a result of an assault on a mentally deficient mother. That claim was rejected as was the claim in Cowe v Forum Group Inc.575 NE 2d 630 which was brought by the child of a mother against the nursing home who had failed to protect his mother from rape.
In Harbeson v Parke-Davis Inc. Wash 656 P 2d 483 the case was concerned with foetal hydantoin syndrome, attributable to the use of the drug Dilantin during pregnancy. The court held that a child might maintain an action for “wrongful life” in order to recover extraordinary expenses to be incurred during the child’s lifetime, as a result of the child’s congenital defect. However, general damages for “wrongful life” were not admissible. The same result applied in Turpin v Sortini, Sup 182 Cal Rptr 337 where a child born with hereditary congenital defects could recover extraordinary expenses necessary to treat the hereditary ailment. Lord Osborne commented that it had been submitted that this decision showed that the court had recognised a congenital defect as an “injury”. In another case Procanik v Cillo 478 A 2d 755 an infant Claimant sought damages for birth defects and impaired childhood in consequence of congenital rubella syndrome. A claim for extraordinary medical expenses was recognised.
In Jorgensen v Meade Johnson Laboratories Inc. 483 F 2d 237 a father of deceased and living mongoloid children brought an action claiming that the mongoloid condition of the children resulted from the mother’s taking birth control pills manufactured by the Defendants. Whilst it was recognised that the allegations in the case involved pre and post conception harm, the court did not exclude pre-conception harm from consideration. Therefore there could be a conditional prospective liability in tort to one not yet in being, as happened in Zepeda and Turpin above.
In Renslow v Mennonite Hospital 367 NE 2d 1250 the court held that an infant could maintain an action against a hospital and physician for any injuries sustained as a result of a negligent blood transfusion into the mother, even though the transfusion occurred several years prior to the infant’s conception. The actionability of a pre-conception tort was recognised in Bergstreser v Mitchell 577 F 2d 22. In Graham v Keuchel 847 P 2d 342 it was held that physicians could be found liable for the wrongful death of a newborn infant, even though the acts of alleged negligence took place before that infant was conceived.
Lord Osborne turned to the situation in the United Kingdom. The Congenital Disabilities (Civil Liability) Act 1976 created civil liability to a child born “disabled” in certain circumstances. That Act did not extend to Scotland, but the legal situation was similar.
Coming back to the definition of injury, the court said in R v Criminal Injuries Compensation Board, ex parte Schofield [1971] 1 WLR 926 that the construction of the CICB scheme was not to be approached as if it was a statute. In Brown v Minister of Pensions 1946 SLT 371 the question was whether injury was or was not attributable to war service. There was an onus on the minister to establish that it was not. The court said that the issue was to be decided as it would be a man in the street applying common sense. A similar approach had been taken in R v Criminal Injuries Compensation Board, ex parte Ince [1973] 1 WLR and Stapley v Gypsum Mines Ltd [1953] AC p 681.
There was also the issue of the petitioner living with the perpetrator at the time of the crime of violence, and therefore being barred under the CICB Scheme from making a claim. The petitioner’s counsel argued that since the petitioner had no independent life at the time of the crime of violence (the rape), it could not be said that the petitioner and perpetrator was “living together.....as members of the same family.”
Lord Osborne now considered the arguments of the respondent’s counsel. Personal injury involved an interference with the integrity of the human body or mind, as a result of which the victim was altered. The mere experience of suffering in itself was not enough to constitute “personal injury”. Reparation involved the restoration of a pre-existing condition Lord Osborne had been referred to the Human Fertilisation and Embryology Act 1990 where it was apparent that genetic defects would exist from the moment of conception. The reality was that the petitioner could not have existed save in her present state.
In relation to the authorities from the United States, these should be approached with caution since different states had different laws. In the cases of Becker v Schwartz and Park v Chessin 413 NYS 2d 895, the issue was an alleged failure to advise relating to the availability of test to discover Down’s Syndrome. These claims were rejected. The court indicated that there was no precedent for the recognition of a fundamental right of a child to be born as a whole, functional human being.
Lord Osborne summarised the issues in the case. The first issue was whether the condition of the petitioner could be regarded as a “personal injury” within the CICB scheme. The second issue was whether that personal injury was directly attributable to a crime of violence. The third issue was whether the petitioner could be said to be living with the abuser as a member of the same family within the terms of the CICB scheme.
In relation to the first issue, the legal definition of injury indicated the idea of a pre-existing victim. In Livingstone v Raywards Coal Co. (1880) 7 R (HL) 1 that was the impression given by the court. In Wallace v Kennedy (1908) 16 SLT 485 it was said that there had to be some physical injury of some kind, which might be nervous shock. Mere mental pain and emotion would not ground an action.
Lord Osborne considered the cases from the United States again. In Becker v Schwartz the claim for wrongful life had been dismissed. In Williams v State of New York a case similar to the present one, it was held that the infant had no right to recover and similar decisions were given in Berman v Allan, Alquijay v St Lukes-Roosevelt Hospital, Azzolino v Dingfelder and Cowe v Forum Group Inc.. In Turpin v Sortini again the court the same view was given in relation to pain and suffering and other general damages.
Lord Osborne said that the weight of United States authority told against wrongful life claims.The law might recognise a pre-conception tort, but there was a difficulty where the defect which was the subject of the claim or complaint was of genetic origin and unavoidable.
Lord Osborne now considered the United Kingdom case of McKay v Essex Area Health Authority. In that case the rubella that harmed the child was not the fault of the doctor, the fault was in letting the child be born. The Court of Appeal said that a court could not evaluate non-existence.
Therefore in conclusion, the CICB had not erred in law when they concluded in their written decision that congenital deficiencies could not properly be held to be injuries within the meaning of the Scheme. Injury pre-supposed a pre-injury state, which was capable of assessment and comparison with the post injury state. The child concerned never had, nor could have, any existence save in a defective state. Consequently the Applicant’s petition must fail.
However in relation to causation, Lord Osborne said that a jury or an ordinary man would not draw the distinction between the birth of the child, which they accepted was directly attributable to an act of rape and the “injuries.” Both were directly attributable to the crime of violence. In light of the decision in relation to the first issue, this issue had no bearing on the final result in the case.
Likewise it could not be said that the Applicant was living with the perpetrator at the time of the crime of violence, so that objection to the claim would fail, since it could not be meaningfully said that a foetus could live with anyone as a “member of....[a] family”. Again this issue had no bearing on the final result in the case.