Ottawa Citizen

Thursday July 08, 1999

Boy wins suit against mother for injuries received in womb

Mother called negligent for 1993 car crash Decision pre-empts top court ruling tomorrow

Janice Tibbetts
The Ottawa Citizen

Diane Doiron, The National Post / Ryan Dobson, 6, was born by emergency caesarean section in his mother's 27th week of pregnancy, and cannot speak and walks only with difficulty. His mother, Cynthia, was in a car accident during her pregnancy. Ryan's grandfather sued on his behalf, accusing Mrs. Dobson of negligence in not avoiding the crash.

A Canadian insurance company is making legal history by paying damages to a disabled New Brunswick boy who was injured in a car accident while he was still in the womb.

The Supreme Court is to rule tomorrow on whether Ryan Dobson, 6, has the right to sue his mother, Cynthia Dobson, for being born with cerebral palsy only hours after she crashed her car. But the insurance compensation will go ahead no matter what the court decides.

"Win or lose, they keep the money," said Robert Barnes, a lawyer representing Mrs. Dobson in her insurance company's fight against her son and father, who is acting as Ryan's litigation guardian.

There have been several cases in Canadian history, dating back to 1934, in which insurance companies have paid damages to children for injuries sustained before birth.

But lawyers in the insurance industry say Ryan's claim has broken new ground because they believe it's the first time in Canada a child has been awarded damages against his mother for pre-birth injuries.

The amount of the payment and the insurance company involved are undisclosed. Lawyers for both sides have agreed on a high amount and a low amount, pending tomorrow's court ruling, which is expected to revive the heated debate over fetal rights and what responsibility, if any, a mother has toward an unborn child.

Mrs. Dobson's insurance policy covered her for up to $1 million.

Her father, Gerald Price, launched a lawsuit on Ryan's behalf, alleging that Mrs. Dobson was negligent in not avoiding the crash on a snowy road near Moncton in March 1993.

He sued in order to obtain damages from his daughter's insurance company in order to help pay for the boy's care.

Ryan was born by emergency caesarean section at 27 weeks. Today, he cannot speak, struggles to walk on his own, communicates using a computer and hand signals and is in a special education class at his school.

The two sides agreed to the settlement to avoid an extreme winner-takes-all scenario in the Supreme Court, said Mr. Barnes.

He said the money, awarded so that the suffering child does not walk away empty-handed in a battle that everyone agreed could go either way, was paid on the condition that it will set no legal precedent and is not an acknowledgment of liability.

"From Ryan's point of view, he at least gets money. He gets a substantial amount," said Mr. Barnes. If he wins the case, he will get another "substantial amount" as well.

A lawyer for the Insurance Council of Canada, which represents the industry, said there are no fears that the payment will open the floodgates to lawsuits against expectant mothers.

The case, in insurance terms, is the same as a third-party liability lawsuit, and Ryan's right to seek damages crystallized when he was born, said Deirdre Martin.

"What's the difference if I injure my unborn child immediately before birth because I had a car accident and there was fault on my part versus I accidentally run over my three-year-old child who is on a tricycle at the end of the driveway?" she asked.

But the case has brought out both sides in the abortion debate.

The pro-choice movement argues that since the Supreme Court has never legally recognized a fetus, Ryan and his mother were one entity and the lawsuit amounts to suing oneself.

New Brunswick's courts have said that the lawsuit can go ahead, ruling that a pregnant woman has a duty to her unborn child and the general public to drive carefully.

Despite the settlement, lawyers for Mrs. Dobson appealed to the Supreme Court, asking it to set clear rules for such cases.

Copyright 1999 Ottawa Citizen