著者

関 彌一郎

出版者

横浜国立大学

雑誌

横浜国立大学人文紀要. 第一類, 哲学・社会科学 (ISSN:05135621)

巻号頁・発行日

vol.23, pp.A23-A45, 1977-11-30

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In England, an interesting and important Act called "Congenital Disabilities (Civil Liability) Act" came into force on July 22, 1976. Although the Act passed the Parliament as being a provisional step (interim measure) pending more comprehensive legislation, it may, at the present stage, be considered as a definite criterion whereby the litigious conflicts between the injured child born disabled or with disabilities and the negligent person who has produced an effect on the child en ventre sa mere would be decided. The gists of the provisions in the Act are as follows: (i) A child born alive with a disability caused by someone's fault, either before or at the time of its birth, or before conception, should be entitled to sue in respect of that disability-Sec. (1) & (2). (Only a child of the first generation is entitled to sue.) In relation to pre-concepetion occurances, the defendant, provided he is not the father, is not liable to the child if either or both of the parents knew of the risk of the child being born disabled as a result of such occurances-Sec. 1 (4). (ii) A child so born can not sue its mother if her conduct was the cause of its disability-Sec. 1 (1), except when that disability was a result of her negligent driving of a motor vehicle whilst pregnant with it-Sec. 2.(There is no such limitation on the child's right to sue its father.) (iii) A defendant is not liable in respect of a disabled birth if the advice or treatment given by him in a professional capacity is in accordance with "then received professional opinion." The mere fact of a departure from such an opinion does not necessarily involve liability-Sec. 1 (5). (This is a reflection of rules of the Common Law and is included in order to avoid doubt.) (iv) The fact that the mother is volenti, enters into a contract whereby a third party's liability was excluded or limited, or is contributorily negligent, will adversely affect any action by the child when born alive-Sec. 1 (6) & (7). However, a parent's predecease, failure to take action or inability to take action because he or she suffered no actionable injury, will not debar the action of the child-Sec. 1 (3). (v) The compensation provisions of the Section 7 to 11 of the Nuclear Installations Act, 1965, is to be applied, where damage results from a nuclear incident, and a child is born subsequently with disabilities which are attributable to the incident-Sec. 3 (1)-(3). And in such a case, the contributory fault of the plaintiff is regarded as the contributory fault of person under the Section 13 (6) of the aforesaid Act-Sec. 3 (4). (vi) Damages for loss of expectation of life can not be recovered unless the child lives for at least 48 hours-Sec. 4 (4). In these provisions, there are several problematic points of view whereof we have to take notice carefully. For instance, the liability under this Act is said to be called "derivative liability", because "just as in life injuries to the child may be ascribed to an event involving the parent, so in law liability to the child is derived from liability to the parent" (cf. Mr. R. Carter, H.C. vol. 904, col. 1592). As regards such a kind of civil liability, here remains a certain kind of ambiguity or obscurity, as is expressly mentioned by the Law Commission that there were "technical" difficulties in stating a general rule (Law Com. Report, Para. 45-52 & 75). And for instance, it is said that Section 1 (6) of the said Act created a new exception to the doctrine of "privity of contract" (cf. M.D.A. Freeman's annotations of this Act). And again for instance, it is said that the said Act effects, regardless of the attitude of common law, or contrary to the way of thinking of common law, a revival of that notorious doctrine of "Identification" (cf. P. J. Pace, M.L.R. vol. 40, No. 2, p. 157). To his regret, the present writer could hardly realize these difficult points completely. Still more, there stand a good many Common Law rules or doctrines all of which are hard nuts to crack for him, -for example, a well-known legal maxim of "Actio personalis moritur cum persona [A personal action dies with the person]," or "Damnum sine injuria esse potest [There may be damage or loss inflicted without any act being done which the law deems an injury]," or "Volenti non fit injuria [That to which a man consents cannot be considered an injury]," etc. And more, "neighbour principle" in the case of Donoghue v. Stevenson as to the duty of care in the law of torts, or "sine qua non [without which nothing] rule" as to the proving a causal nexus between the defendant's wrongful act and the plaintiff's defective condition on birth, or "last opportunity doctrine" as to the contributory negligence, and so on. All these profound rules, doctrines, or principles above, are, in the writer's view, too complicated to understand, and still ought to be searched and studied in order to deeply comprehend this Act in the context of Common Law tradition. At any rate, it would be the fact that this Parliamentary Act considering the protection and/or remedy (albeit they means only "compensation") of children who are injured owing to "some person's fault" as in the Thalidmide or Minamat types of cases, established the progressive or one-step advanced principle, by which the conventional rules of Common Law would get to be shaken or shocked. Thus, these traditional rules are sure to be re-examined in compliance with the "Zeitgeist" of this age. Now, the present author brings to his mind the seemingly well-worn proverbs, "Hard cases make bad law," as well as "Hard cases make good law." Didn't we Japanese, feel those tragic cases of Thalidmide and Minamat litigations as "hard cases"? And shall we think of this Act in England, as "a bad law" or "a good law"? If it be bad or good, the author considers, we Japanese, especially members of Legislature, seriously have to watch the application and effect of this noteworthy Act, with eyes wide-open and with keen interest.