There is no question that the death of a child is one of the most traumatic events one can experience; this is equally the case with the death of a foetus, whether it be miscarriage or stillbirth. In especially unfortunate circumstances, the loss of a foetus can be caused by either intentional or negligent acts of a third party; such as with medical negligence and motor vehicle accidents.
In such cases, those suffering this devastating loss may seek compensation for their pain and suffering. This is a particularly interesting, if incredibly delicate, aspect of personal injury law.
While it is impossible to adequately remedy this kind of loss, tort law attempts to redress that loss through compensation as general damages. Awarding general damages for the pain and suffering and emotional loss of a child presents an unsavoury dilemma; the question of the financial value of the loss of a foetus must be addressed. An attempt to answer this would give rise to a multitude of challenging and sensitive issues with wide-ranging implications. Rather than open these numerous debates, the Courts have stated that “as the law currently stands, an unborn child, carried to full term by its mother can be destroyed through negligent conduct and, other than damages to the mother […], there is no separate award of damages for loss of the foetus.” (Martin v. Mineral Springs Hospital, [2001] A.B.Q.B. 58). This means that under the current law, no financial compensation is awarded solely for the loss of a foetus and the accompanying grief.
Despite the inability to obtain damages specifically for the loss of a foetus, there is have still been cases where damages have been awarded in the context of such a loss. In Morrison v. Novelli, [1986] B.C.J. No. 172 (B.C. C.A.), the court awarded $75,000 for pain, suffering and loss of enjoyment of life to a mother who delivered a stillborn child after 54 hours of labour in intensive care following a motor vehicle accident; as a result of this, she suffered from severe depression. This decision was appealed, and the Court of Appeal noted that the trial judge “correctly instructed the jury that the law does not permit the recovery of damages for loss of an unborn child.” Even though the Court of Appeal considered that the damages awarded were unusually high, it was not the role of the Court to interfere with a jury’s award unless it is wholly disproportional. The Court stated that:
They were properly advised that they should make no award for ordinary grief, but to the extent they found a more serious mental condition caused by the accident it was proper to make an award. It is clear that that was the only proper basis on which to leave the case with the jury. There was a substantial body of evidence indicating a relatively severe and continuing condition. Whether it is called depression or nervous shock or prolonged grief reaction, it was a consequence of the accident. It was a distressing condition which caused substantial problems to Ms. Morrison in her life and at the time of trial was not resolved. It was, therefore, open to the jury to regard that as a matter for substantial compensation.
While sorrow, grief, and emotional distress are not considered to be compensable losses, recognizable physical and psychological conditions are losses that can be compensated by courts (Mount Isa Mines v. Pusey, [1971] 45 A.L. J.R. 88 (Aust. H.C.)) Psychological conditions in the context of the loss of a foetus have been the subject of several cases. In Bekke v. Spence, [1996] O.J. No. 1007 (Ont. Gen. Div.), the court awarded $18,000 in general damages to a mother who lost a foetus at 26 weeks due to the loss causing the mother to suffer from a psychological condition which would require treatment in the future.
In MacKenzie v. MacRae, [1984] O.J. No. 1064 (Ont. S.C.), the plaintiff delivered a stillborn child. The judge noted that damages could not be awarded for the loss of a foetus, and the plaintiff was awarded $15,000 for pain and suffering.In Mathison v. Hofer, [1984] 3 W.W.R. 343 (Man. Q.B.), the plaintiff was awarded $7,000 for the psychiatric illness she suffered as a result of the loss of a foetus at 38 weeks following a motor vehicle accident. In Meyer v. Foord, [1981] B.C.J. No. 565 (B.C. S.C.), the plaintiff underwent a therapeutic abortion 18 days into her pregnancy following serious injuries in a motor vehicle accident. Due to the plaintiff not suffering any psychological damages following this loss, no damages were awarded.
