BGHZ 8, 243 II. Civil Senate (II ZR 141/51) Lues -decision = NJW 1953, 417 = JZ 1953, 307
20 December 1952
(with an approving note by R. Schmidt)
Translated by:
K. Lipstein
Professor B. S. Markesinis

On the occasion of the birth of a previous child, the plaintiff’s mother was a patient in the defendant hospital from 29 August until 9 September 1946. On that day she received a blood transfusion which was administered by Dr A who was an employee of the hospital where the donor had first offered himself for this purpose. Dr A had called for a blood test which did not disclose any syphilitic infection, but had not conducted any further examination of the donor. When the donor was again examined in January 1948, the Wassermann test was positive. The defendant hospital, on learning this, recalled all those patients who had been recipients of the donor’s blood. It appeared after a further examination that as a result of the transfusion the plaintiff’s mother had been infected with syphilis and that, in consequence the plaintiff, who was born on 13 October 1947, was suffering from congenital syphilis.

The plaintiff applied for a declaration that the defendant hospital was liable to pay damages in respect of all damage caused to her now or which might arise in the future as a result of the infection of her mother with syphilis on the occasion of the blood transfusion on 9 September 1946, and for the payment of damages for pain and suffering. The judgments by the courts below allowing the claim were upheld for the following


The Court of Appeal has found that the mother of the plaintiff was infected with syphilis because the medical officer at the defendant hospital, when carrying out the blood transfusion on 9 September 1946, did not follow the measures prescribed by the order and the guide-lines of the Reichsminister of the Interior dated 5 March 1940 concerning the examination of donors of blood. According to the Court of Appeal the omission to take these measures was due to the fact that the medical staff of the hospital had not been informed of the guide-lines published by the Minister of the Interior. It is undisputed that the Chief Medical Officer, Dr X, who was a member of the defendant’s board in 1940, failed to give notice to the departments of surgery and gynaecology of the hospital of the order and the guide-lines of the Reichsminister of the Interior. This Division has had occasion to state before in the judgment of 27 February 1952 [reference], which had rejected a second appeal by the defendant in an action by the mother of the plaintiff, that this situation involves not only contractual negligence towards the plaintiff’s mother who had been received by the hospital as a patient under the medical insurance scheme but also a tort by the defendant hospital committed by Dr X, a member of the board, for whom the defendant is responsible according to § 31 BGB. In the present case liability for the damage suffered by the plaintiff can only arise in tort. Such a claim is well founded in the present case.

1. The act of the defendant hospital is to be found in the failure to take the necessary precautions on the occasion of the blood transfusion administered to the mother of the child at a time before the child was conceived. Thereby the defendant has violated a legal duty incumbent upon it. Even if at first this act affected directly the health of the mother alone, the same act had nevertheless caused subsequently an injury to the health of the plaintiff as well, who was born on 13 October 1947. The appellant defendant is wrong in arguing that the injury is indirect with the result that it cannot render the defendant liable. For a claim for damages to arise it suffices if the act causing the damage violates directly or indirectly one of the protected interests or absolute rights set out in § 823 I BGB, provided only that a causal nexus exists in the meaning of the theory of adequate causation between the act creating the damage and the resulting violation of a protected interest [reference]. This can be assumed to exist in the present case, for it is common experience that an infection of a married woman with syphilis is likely to transmit this illness later on to a child conceived by her.

2. The appellant objects above all that in the present case the application of § 823 I BGB is logically excluded because at the time when the act causing damage occurred the plaintiff was not in an intact state which could have been violated by an act causing damage. The appellant argues that § 823 I presupposes logically that damage can only be claimed by those who were intact at one time. If such a state never existed, however, because the egg or the foetus was already sick from the moment of conception as a result of the mother’s illness, no interference had ever occurred with the state of health of a child born subsequently. The same view had been expressed in a decision of the Third Civil Division of this court [reference]. Upon enquiry, however, the Third Division has replied that it no longer maintains this view, and therefore this Division is not bound by the above-mentioned decision. The arguments of the appellant cannot be accepted. They are based on a purely concrete manner of thinking which proceeds on the whole from the individual rights, ownership, and the other absolute rights enumerated in § 823 I BGB but does not pay sufficient attention to the special character of the values of life to which § 823 I BGB refers above all. The difference between these values of life and individual rights on the other hand was stressed by the Reichsgericht as early as 1902, following the observations of Planck [reference]. These values of life themselves are clearly not individual rights, instead it is only possible to state that every individual is entitled to have them granted to him, just as the Constitution of Bonn speaks of the right of every person to life and physical integrity [reference].

Absolute rights are clearly determined by law. Accordingly it is logically impossible, e.g. to damage property before any property has come into being. However, it is fundamentally wrong in law to apply to interference with the values of life protected by § 823 I BGB the principles concerning the distinction between injurious acts affecting absolute rights and injurious acts causing damage to other resources. Therefore one must also reject the observations of Rudolf Smend [reference], according to whom, in the case of injury to health the circumstances in which that tort can be committed must be interpreted in the same distinctive manner as in the case of a violation of individual absolute right, as distinct from that of damage to other resources.

The view rejected here is met by the decisive argument that it pays insufficient attention to the special character of the values of life protected by § 823 I BGB. These values precede the legal system. They express the individuality of human beings as part of nature and of creation. They represent life itself, the essence of all that is alive and derive their substance from it. Every human being has a right to these values of life and is therefore entitled to expect that organic growth will not be disturbed or curtailed by human hand. Every deprivation or disturbance by human beings which hinders or curtails natural growth and natural development constitutes a violation of these protected interests. Thus injury to health has been described accurately as ‘causing a disturbance of the internal processes of life’ [reference]. Common parlance too adopts this attitude in describing a child, such as the plaintiff, whose health was severely impaired at birth, as being a sick child, that is to say as a child whose internal processes of life are disturbed and who has not been endowed with that degree of health with which creation and nature has predisposed the living organism of a human being. In this respect the legal order must follow the phenomenon of nature; it cannot and must not disregard the facts of nature. What is an injury or a curtailment of health cannot therefore be determined by the logical concepts of legal techniques, but is, like the gift of health itself, predetermined by creation and nature which must be recognized as natural reality by the legal system, if it is to derive therefrom any legal conclusions in law.

Following these considerations it is not possible to apply to the health of human beings, which is protected by § 823 I BGB the legal principles based on formal legal technique which governs the violation of individual rights.

It is not possible, either, to agree with the appellant who argues that § 823 I presupposes the existence of a physical person and that it cannot therefore be applied to injuries affecting those who were not yet conceived when the tort was committed, since in such a case ‘another person’ in the meaning of § 823 I BGB does not exist . . . the plaintiff was conceived in the body of the mother who suffered from syphilis and developed in it as a human being affected by syphilis by absorbing the illness. This would not have happened without the tortious act or omission of the defendant; in short without it she would not have become a person suffering from syphilis.

The object of the argument is thus not damage to a foetus or to an unborn child, but the damage which the plaintiff has suffered by the fact that she was born a sick person affected by syphilis. As stated before, her damage is connected by a link of adequate causation with the infection with syphilis of her mother by the defendant. This damage was suffered by the plaintiff when she was born and constituted an injury to her health. Thus the conditions of § 823 I BGB exist for allowing the claim.

Notes to Cases 4 and 5

1.Prenatal injuries typically involved an impact on a pregnant woman that also harmed the later-born child. Could it recover for its injuries (if born alive); and could a wrongful death action be brought if it died? The latter cases, have been the more difficult of the two; and the original problems confronting the law have now become greater as foetal toxic harm has multiplied the difficulties of causation. We shall return to this aspect of the problem under 6, below.

2. For evidentiary and conceptual reasons Common law courts originally displayed a marked reluctance to sanction damages for pre-natal injuries. The evidentiary obstacles were primarily connected with the difficulties of establishing a causal link between accident and foetal injury. (Note the grotesque results in Montreal Tramways v. Léveillé [1933] 4 DLR 337 (Quebec) where club-feet, a congenital defect, were treated as the result of a traffic accident! For a more troublesome (and recent) example see: Mulcahy v. Eli Lilly & Co. 386 NW 2d 67 (1986).) The conceptual difficulties were connected with the foreseeability of the victim (in this case the foetus) and, more importantly, to the question whether a foetus could be treated as a ‘person’. This controversy in turn raised many conceptual, religious, medical, and philosophical issues - in the US highlighted further by Roe v. Wade 410 US 113, 93 S. Ct. 705 (1973) - as to the rights of a foetus and its mother. The question, does a foetus enjoy the same rights as a person has received a varied response. Thus, for the purposes of property, and particularly inheritance, the foetus has traditionally been treated as a person: In Re Trattner’s Estate 394 Pa. 133, 145 A. 2d 678 (1958). On the other hand, in criminal law the killing of a foetus has not been treated as homicide: People v. Greer, 79 Ill. 2d 103, 402 NE 2d 203 (1980) but has been handled under some, lesser, criminal offence. The question how the foetus’ rights can be dove-tailed with its mother’s have raised an even greater controversy; and the aspect that is most relevant to our subject, will be discussed briefly below.

3. The traditional hostile view of the courts can be found clearly expressed in Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). Neither its causative nor conceptual objections to recognising a cause of action are convincing. (See, Dobbs, 781); but it took American courts over sixty years to abandon a position that had enjoyed the support of the great Holmes. One of the earliest decisions to make a break with this approach was Bonbrest v. Kotz 65 F. Supp. 138 (DDC 1946) which, interestingly enough, also referred to Justinian’s Digest and Blackstone’s Commentaries (ibid. 140). The change in other Common law jurisdictions came somewhat later. For Australia see Watt v. Rama [1972] VR 353; for Canada see Duval v. Seguin [1973] 40 DLR 3d 666; and for England see Congenital Disabilities (Civil Liability) Act 1976. In chronological terms, therefore, German law gave an erly lead.

2. Todd v. Sandidge Construction Co., 341 F. 2d 75 (4th Cir.1964) can, in some respects, be treated as an equivalent to case 4; Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 367 NE 2d 1250 (1977) as an analogue to case 5. But see comments in paragraph 5, below. (Contrast, however, Albala v. City of New York, 54 NY 2d 269, 429 NE 2d 786 (1981).) Note also that whereas Todd permits token recovery even where the foetus is born dead (so long as it was viable at the time of the accident), the German decision and the English Act (reproduced below) require that the child be born alive. Which of these variants is preferable and why? Opinions differ; and so do their consequences. On the ‘born alive’ requirement the American courts seem divided. Most take the view that live birth is not necessary for a wrongful death action. Thus Volk v. Baldazo, 103 Idaho 570, 651 P. 2d 11 (1982); Dunn v. Rose Way, Inc., 333 NW 2d 830 (Iowa 1983); Summerfield v. Superior Court, 144 Ariz. 467, 698 P. 2d 712 (1985); Moen v. Hanson, 85 Wash. 2d 597, 537 P. 2d 266 (1975). Others, probably under the influence of Roe v. Wade, 410 US 113, 93 S. Ct. 705 (1973), have held that live birth is a prerequisite of recovery. Thus, see, State ex rel. Hardin v. Sanders, 538 SW 2d 336 (Mo. 1976); Justus v. Atchison, 19 Cal. 3d 564, 565 P. 2d 122 (1977); Chatelain v. Kelley, 322 Ark. 517, 910 SW 2d 215 (1995). A number of recent decisions have adopted this position, often reaching this result on the ground that a stillborn foetus is not a ‘person’ under applicable wrongful death legislation. Thus: Witty v. American Gen. Capital Disrib., Inc., 727 SW 2d 503 (Tex. 1987); Milton v. Carey Medical Center, 538 A. 2d 252 (Me. 1988); Giardina v. Bennett, 545 A. 2d 139 (N. J. 1988)—criticized in 21 Rutgers L. Journ., 227 (1989). A final variation to this kaleidoscope of differing solutions can be found in cases that refuse wrongful death actions where foetus’ are born dead, but allow the mother to recover for her mental anguish. Thus, see, Tanner v. Hartog 696 So. 2d 705 (Fla. 1997); Giardina v. Bennett, 545 A. 2d 139 (1988); Krishnan v. Sepulveda, 916 SW 2d 478 (Tex. 1995). Though these last cases do not come anywhere near representing the majority of jurisdictions, they seem to have much to commend them since, at least, they seem to have grasped the nettle. Simply put, this is that compensating parents under wrongful statute clauses seems inappropriate given that these enactments were always intended to compensate the loss of a provable pecuniary advantage i.e. the lost dependency. In our cases, however, such pecuniary advantage is extremely speculative; and if it could somehow be divined, tort law rules would require that they be reduced to take into account the ‘savings’ made by the parents (who did not have to bear the cost of upbringing these children). So, in these cases, all one is really trying to achieve is to compensate the parents lost dependency but give the mother some money for her emotional harm (on top of course to that which she may, herself, be able to claim for her own injury). The drawback of the proposed solution - and drawback it will be to all those who tend to favour plaintiffs indiscriminately - is that the father of the killed foetus cannot claim anything (unless he witnessed the commission of the wrong and suffered personal, psychiatric injury). So whatever, the equity reasons in favour of a remedy to the mother for the death of her child, it is difficult to justify given the intention and the wording of the original statutes.

In America, the legalistic (but not substantive) objections to such an extended interpretation of the Wrongful Death Statutes have been addressed by those States which have amended the wording of their statutes to allow overtly “loss of companionship” claims. For these claims are not meant to make up for loss of future support but are intended to compensate spouses for the interference with their right to “affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.” (Wal-Mart Stores, Inc. v. Alexander, 868 SW 2d 322, 328 (Tex. 1993). These “companionship” claims are also widely (but not uniformly) recognized in the kind of situations discussed here where the death of a young child is involved; and since they 1980’s have even been extended to the reverse situation allowing children to claim for the loss of parental consortium. (See, Giuliani v. Guiler, 951 SW 2d 318 (Ky 1997). Though not up-to-date, the most informative article on this point is by Love, “Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship” 51 Ind. L.J. 591 (1976). Even more sporadic seems to be the making of companionship awards for severely injured children (Masaki v. General Motors Corp., 780 P. 2d 566 (1989) ), or parents (Robert C. Theama and others v. City of Kenosha, 344 NW 2d 513 (Wisc. 1984); contra, Joe Bennight v. Western Auto Supply Company ,670 SW 2d 373.).

5. When comparing the American and German cases the reader should note that the issues of ‘viability’ and ‘live birth’ are often discussed in the context of who can sue. Putting the emphasis on ‘live birth’ means that the child that was injured while a foetus or because of an injurious act to its mother prior to conception can sue for its injuries; and this is the point made in case no. 4. But if one accepts that viability at the time of the injury will be sufficient to give rise to a cause of action (and no live birth is required) then two questions may arise. The first is that the estate of the unborn child might have a right to claim pecuniary compensation relying on a survival action. The second is that its survivors might wish to sue invoking the appropriate Wrongful Death Statutes and claim their lost dependency. To a non-American lawyer the first possibility appears little short of monstrous. (Cf. Scott v. Kopp, 494 Pa. 487, 491, 431 A. 2d 959, 961 (1981).) But the second, where it is allowed, is no less unorthodox since it represents a marked departure from English law which, through the medium of Lord Campbell’s Act of 1846, originally inspired the USA. (But see discussion about more recent developments in American law in previous paragraph.) The solution ceases to be unorthodox and becomes bizarre in those American jurisdictions which allow punitive damages to be claimed under Wrongful Death Statutes. (See: Moeller, ‘Punitive Damages in Wrongful Death Actions’, 39 The Univ. of Kansas L. Rev., 199 (1990).) A further point that is sometimes forgotten is that such awards to the survivors of the still-born foetus are often cumulated with the personal claims that the survivors may have themselves (for example for shock or loss of companionship) and where this occurs, double compensation is a real danger. (See the points raised at the end of the previous paragraph.) Most American courts and academics (see, for instance, Dobbs, 783) however, do not seem to be unduly concerned by these considerations.

6. It was noted that prenatal injuries were originally inflicted through impact upon the mother. Nowadays, however, the bulk of these injuries are brought about as a result of the (licit or illicit) use of drugs, alcohol, environmental toxins and workplace exposures to harmful substances. The problem with this manner of infliction of the harm is that it is slow and surreptitious and thus likely to raise considerable difficulties with causation. One way around these difficulties is to relax the rules of causation: see, for instance, Berger, ‘Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts’, Colum. L. Rev. 2117 (1997). But such calls have been counteracted by others who are anxious to protect possible defendants and who have thus argued for more demanding standards. Thus, see, Boston, ‘A Mass-exposure Model of Toxic Causation: the Content of Scientific Proof and the Regulatory Experience’, 18 Colum. J. Environ. L. 181 (1993). The important thing to note, however, is that the scientific literature that explains how these substances can affect a foetus is growing in numbers and sophistication. Thus, see Gideon Koren (ed.) Maternal-Fetal Toxicology: A Clinician’s Guide, 2nd ed, (1994). An interesting slant to these problems can also be found in cases which have attempted to address the dangers of mass exposure – including foetal exposure – to toxic substances through the use of injunctions. Thus, see, Williamsburg Around the Bridge Block Association v. Giuliani, 223 A.D. 2d 64, 644 N.Y.S. 2d 252 (1996), where a New York court prohibited the sandblasting of a bridge in order to remove lead paint on the ground that the resulting dust could have serious consequences on the children of pregnant women in the area. (On the effect of lead on a developing foetus see: Dietrich and others, “Low-Level Lead Exposure Effect on Neurobehavioral Development in early Infancy”, 80 Pediatrics 721 (1987).

7. The legal problems can be compounded where the toxic substance has been in the workplace. The question that then has to be addressed is whether the workers’ compensation regimes, which exclude tort remedies, also operate against claims brought by children affected in uttero by their mother’s exposure to the hazardous materials. The limited case law that exists suggests that these restrictions do not affect the claiming children. See: Hitachi Chemical Electro-Products, Inc. v. Gurley, 219 Ga. App. 675, 466 SE 2d 867 (1995); Snyder v. Michael’s Stores, Inc., 16 Cal. 4th 991, 945 P. 2d 781, 68 Cal. Rptr. 2d 476 (1997).

8. There is not much case law that deals with the parents’ duties to the foetus; but there is little doubt that the use of licit or illicit substances during pregnancy can cause harm to it. The question then is, can it sue its parents? The answer has often been linked to the wider issue of parental immunities and their varied fate over the years in the different states. One claim, brought by children against their parents which has consistently failed is that of causing their birth outside wedlock: Slawek v. Stroh, 62 Wis. 2d 295, 215 NW 2d 9 (1974). A child’s action against its mother for negligent driving while pregnant has also failed: Stallman v. Youngquist, 125 Ill. 2d 267, 531 NE 2d 355 (1988). Neither case was a toxic substance case but the reasoning used in the second of these clearly alluded to the mother’s autonomy, privacy, and control of her body etc all of which would suggest that the mother’s rights would prevail over those of the unborn foeuts and thus deprive it of a tort action. A subsequent decision from Texas, dealing with a cocaine inhalation by a pregnant mother, supports this conclusion. See: Chenault v. Huie, 989 SW 2d 474 (Tex. App. 1999).

9. No student of American law will be surprised to be told that on the pre-conception front American courts have, once again, divided. Adamantly opposed to any duty being owed to the unconceived child are the New York courts. See Albala v. City of New York 54 N.Y 2d 269, 445 N.Y.S. 2d 108, 429 NE 2d 786 (1981); Park v. Chessin, 46 N.Y. 2d 401, 413 N.Y.S. 2d 895, 386 NE 2d 807 (1978). The reasons for such a rejection are two. The first is metaphysical: the plaintiff was not a person in existence at the time of the defendant’s negligence. This point has been well addressed by the German court. The BGH has thus forcefully argued that unlike the concept of “subjective rights” (namely property), which is determined by law, the value of life and the gift of good health must be recognised by the legal system as natural phenomena and thereby be seen logically to precede the application of legal techniques. Thus, every deprivation of the choices of actions of a future human being that curtails its natural development constitutes a violation of the interests of that (future) human being with respect to these values of life. The second stems from the fear that such a duty might place health carers – who are the typical defendants in these cases - in a possible position of conflict; for what might be advisable for the mother might entail dangers for the as yet not conceived child. The latter argument is, prima facie, more noteworthy than the former. Yet interestingly enough, no case thus far litigated has indicated anything other than that both interests have been coterminous. (In the event that they were not, no doubt the conflict could be solved by giving the mother the information needed to make an informed choice.) For these reasons but, also because the arguments have not been fully aired by counsel before any courts, the New York position seems to be an isolated one, though one or two other jurisdictions have produced inconclusive pronouncements that seem to lean in the same direction. Thus, Loerch v. Eli Lilly & Co., 445 NW 2d 560 (Minn. 1989). At the other end of the spectrum stand a dozen or so courts, with the Illinois case of Renslow cited above as a leader, which have gone the other way and found a duty in favour of the not conceived child. Finally, a small minority has taken a different view and limited such duty to care professionals who are treating the mother. On this approach, a drug manufacturer has been held not to be expected to foresee the harm that one of his drugs administered to the mother may one day cause to her grandchild: Grover v. Eli Lilly & Company, 63 Ohio St. 3d 756, 591 NE 2d 696 (1992). For further details see: Greenberg, “Reconceptualizing Preconception Torts” 64 Tenn. L. Rev. 315, 349 ff. (1997).

10. For further references to these points see Harper, Fleming James Jr., and Gray, The Law of Torts 2nd edn. (1986) iii. 677–80. See also: Kodilinye, ‘Tortious Liability for “In Utero” Injuries’, 3 Caribbean L. Rev. 122 (1993); McCavitt, ‘The “Born Alive” Rule: A Proposed Change to the New York Law Based on Modern Medical Technology’, 4 New York Law School Law Rev. 609 (1991); Note, ‘Negligent Infliction of Prenatal Death: New York’s Unrecompensed Injury after Tebbut v. Vizostak’ 19 Connecticut L. Rev. 365 (1987); Robertson, ‘Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life’ Duke LJ 1401 (1978); Note, ‘Wrongful Death of a Fetus: Does a Cause of Action Arise When There is No Live Birth?’ 31 Villanova L. Rev. 669 (1986); Batchelor, ‘The Expansion of the Viable Fetus Wrongful Death Action’ 11 Campbell L. Rev. 91 (1988); Wilhelm, ‘Protection of Prenatal Life through Wrongful Death Statutes’, 15 Univ. of Dayton L. Rev., 157 (1989); Hartsoe, “Person or Thing. In Search of the Legal Status of a Fetus: A Survey of North Carolina Law”, 17 Campbell L. Rev. 169 (1995); Parsi, “Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos”, 4 De Paul J. of Health Care Law, 703 (1999).

11. In the USA, the law concerning survival of actions and Wrongful Death Statutes is complicated. To an outside observer, the topic also appears to be inadequately covered in the law curriculum. The following summary may thus be of some use to lawyers who wish to compare the German cases here reproduced with their American analogues but find themselves confused by the somewhat sloppy use of terms by many State courts.

(i) When someone dies, his estate can claim the damages he could have claimed for the period he remained alive after the accident. In the USA this is commonly referred to as the ‘survival action’ and in England as the Law Reform Action. If the victim dies instantly, only funeral costs can be claimed. In the USA the claim for such expenses may depend on whether the estate was legally obliged to incur them.

(ii) If the injured person is compensated while alive and later dies, his dependants will not be able to bring a claim under the Wrongful Death Statutes. The same is true if the injured person allows his claim to become statute-barred or, otherwise, settles his claim with the defendant. In a very narrow area of American maritime law the position may be different. See: Miles v. Apex Marine Corp., 498 U. S. 19, 111 S.Ct. 317 (1990); Sea-Land Services Inc. v. Gaudet, 414 US 573, 94 S. Ct. 806 (1974). Gaudet (allowing dependants of deceased longshoreman to recover damages for loss of companionship) nowadays applies only to widows of longshoremen who died in territorial waters i.e. within a marine league from the shore. The distinction between such cases and all other maritime death cases is so bizarre that it must indicate a good chance that the Supreme Court will overrule Gaudet when it next has the chance to do so.

(iii) If the deceased dies without having been compensated through his personal action, certain dependant relatives may have a cause of action under the Wrongful Death Statutes. This will depend primarily on the wording of the relevant (State) statute, whether it lists the claimants as proper dependants, whether it has mutually exclusive classes of beneficiaries, and so forth.

(iv) In England, compensation for wrongful death is governed by the Fatal Accidents Act of 1846 as repeatedly amended. Many American statutes, passed from about the 1860s onwards, are modelled on the English Act. With significant exceptions (see, for example, Moragne v. State Marine Lines Inc., 398 US 375, 90 S. Ct. 1772 (1970); Gaudette v. Webb 362 Mass. 60, 284 NE 2d 222 (1972)), American courts take the view that there is no Common law (i.e. non-statutory) right to recover for a fatal accident.

(v) In wrongful death cases, English courts have always allowed only claims for monetary losses. No compensation has been given for dommage morale, loss of companionship, solatium etc., though, since 1982 there is the possibility to claim a small, fixed amount for bereavement.

(vi) In some USA jurisdictions, the wording of the statute has been interpreted to allow bereavement claims. But since this is a question of statutory interpretation, this extension, though ‘novel’ to English eyes, cannot be regarded as wrong.

(vii) Some US statutes also allow punitive damages. The award of punitive damages to the dependants, even when authorised by statute, is, de lege ferenda very dubious.

Addendum: The Congenital Disabilities (Civil Liability) Act 1976

1 (1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child’s own mother) is under this section answerable to the child in respect of the occurrence, the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.

(2) An occurrence to which this section applies is one which:

(a) Affected either parent of the child in his or her ability to have a normal, healthy child, or

(b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.

(3) Subject to the following subsections, a person (here referred to as ‘the defendant’) is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of duty which, accompanied by injury, would have given rise to the liability.

(4) In the case of an occurrence preceding the time of conception, the defendant is not answerable to the child if at that time either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the occurrence); but should it be the child’s father who is the defendant, this subsection does not apply if he knew of the risk and the mother did not.

(5) The defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion.

(6) Liability to the child under this section may be treated as having been excluded or limited by contract made with the parent affected, to the same extent and subject to the same restrictions as liability in the parent’s own case; and a contract term which could have been set up by the defendant in an action by the parent, so as to exclude or limit his liability to him or her, operates in the defendant’s favour to the same, but no greater, extent in an action under this section by the child.

(7) If in the child’s action under this section it is shown that the parent affected shared the responsibility for the child being born disabled, the damages are to be reduced to such extent as the court thinks just and equitable having regard to the extent of the parent’s responsibility.

2. A woman driving a motor vehicle when she knows (or ought reasonably to know) herself to be pregnant is to be regarded as being under the same duty to take care for the safety of her unborn child as the law imposes on her with respect to the safety of other people; and if in consequence of her breach of that duty her child is born with disabilities which would not otherwise have been present, those disabilities are to be regarded as damage resulting from her wrongful act and actionable accordingly at the suit of the child.

3 (1) Section 1 of this Act does not affect the operation of the Nuclear Installations Act 1965 as to liability for, and compensation in respect of, injury or damage caused by occurrences involving nuclear matter or the omission of ionizing radiations.

(2) For the avoidance of doubt anything which:
(a) affects a man in his ability to have a normal, healthy child; or
(b) affects a woman in that ability, or so affects her when she is pregnant that her child is born with disabilitieswhich would not otherwise have been present is an injury for the purposes of that Act.

(3) If a child is born disabled as the result of an injury to either of its parents caused in breach of a duty imposed by any of ss. 7 to 11 of the Act (nuclear site licensees and others to secure that nuclear incidents do not cause injury to persons, etc.), the child’s disabilities are to be regarded under the subsequent provisions of that Act (compensation and other matters) as injuries caused on the same occasion, and by the same breach of duty, as was the injury to the parent.

(4) As respects compensation to the child, s. 13(6) of the Act (contributory fault of person injured by radiation) is to be applied as if the reference there to fault were to the fault of the parent.

(5) Compensation is not payable in the child’s case if the injury to the parent preceded the time of the child’s conception and at that time either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the injury).

4 (1) References in this Act to a child being born disabled or with disabilities are to its being born with any deformity, disease or abnormality, including predisposition (whether or not susceptible of immediate prognosis) to physical or mental defects in the future

(2) In this Act:
(a) ‘born’ means born alive (the moment of a child’s birth being when it first has a life separate from its mother), and ‘birth’ has a corresponding meaning; and
(b) ‘motor vehicle’ means a mechanically propelled vehicle intended or adapted for use on roads.

(3) Liability to a child under s. 1 or 2 of this Act is to be regarded:
(a) as respects all its accidents and any matters arising or to arise out of it; and
(b) subject to any contrary context or intention, for the purpose of construing references in enactments and documents to personal or bodily injuries and cognate matters.
as liability for personal injuries sustained by the child immediately after its birth.

(4) No damages shall be recoverable under either of those sections in respect of any loss of expectation of life, nor shall any such loss be taken into account in the compensations payable in respect of a child under the Nuclear Installations Act 1965 as extended by s. 3, unless (in either case) the child lives for at least forty-eight hours.

(5) This Act applies in respect of births after (but not before) its passing, and in respect of any such birth it replaces any law in force before its passing, whereby a person could be liable to a child in respect of disabilities with which it might be born; but in s. 1(3) of this Act the expression ‘liable in tort’ does not include any reference to liability by virtue of this Act or to liability by virtue of any such law.

(6) . . .

5 . . .

6(1) . . .

7 [This Act applies to England, Wales, Northern Ireland, but not Scotland.]

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