Misleading cases
Feb. 15th, 2010 02:10 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
peterbirksAn interesting legal case from Nottingham Crown Court reported recently. In Claire
Hale v Daniel Burridge – Nottingham County Court (2009), the claimant suffered multiple injuries, including a miscarriage. She was only five weeks pregnant, but had told family and friends and had started to consider names with her husband. So far, so run-of-the-mill. Cases such as this, though horrifically tragic for the people concerned, don't score very highly on the "damages" scale. Ms Hale received £9,250 in damages.
What was interesting was the line in the court report that went:
Which would appear to indicate that anti-abortionists who consider a foetus a child from the moment of conception would be entitled to a greater degree of compensation than those in favour of "a woman's right to choose".
To be honest, I'm somewhat ambivalent on this matter. I can see the judge's point of view. If the woman was planning on having an abortion anyway, it would hardly seem "just" to give her as much compensation as a woman who intended to carry the foetus through to delivery. But that does not appear to be quite what the judge said. As QBE, which published the report, observed:
Legally, this seems to open up a can of worms. In claims for compensation, the amount that you receive can, it would appear, depend on how important you, the claimant, view the matter at hand and how well/badly you react to it. I'm somewhat uncomfortable with this line of thought. Is the compensation for the loss of an arm to be greater because the claimant says that he was thinking of taking up the piano and that he is therefore suffering more greatly than someone who says "oh well, I can always play those Lizst pieces for Wittgenstein's brother"? I don't think that the courts would take this line at all.
From which one has to conclude that this is a case that is particular to foetuses. Despite his apparent objective nature, the judge is taking the line that the woman concerned was right to consider the foetus as a child.
But that still doesn't solve the problem. Suppose the woman had been eight months pregnant? Even I, Mr Rational, Mr pro-right-to-choose, would find it hard to say blithely that "nope, it was still a foetus". So is there a graded scale here on "degree of pregnancy"? Or does the rate go up as soon as the woman goes past the legal period for abortion?
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Hale v Daniel Burridge – Nottingham County Court (2009), the claimant suffered multiple injuries, including a miscarriage. She was only five weeks pregnant, but had told family and friends and had started to consider names with her husband. So far, so run-of-the-mill. Cases such as this, though horrifically tragic for the people concerned, don't score very highly on the "damages" scale. Ms Hale received £9,250 in damages.
What was interesting was the line in the court report that went:
When assessing damages the judge took into account the fact that, despite the pregnancy being at an early stage at the time of the accident, the claimant never the less regarded the foetus as a child.
Which would appear to indicate that anti-abortionists who consider a foetus a child from the moment of conception would be entitled to a greater degree of compensation than those in favour of "a woman's right to choose".
To be honest, I'm somewhat ambivalent on this matter. I can see the judge's point of view. If the woman was planning on having an abortion anyway, it would hardly seem "just" to give her as much compensation as a woman who intended to carry the foetus through to delivery. But that does not appear to be quite what the judge said. As QBE, which published the report, observed:
When assessing damages for miscarriage the court will consider a number of factors including how advanced the pregnancy was and whether the claimant is subsequently able to have children. As in this case the court is also likely to consider subjective factors such as how the claimant views the pregnancy and the consequent psychological reaction to the loss.
Legally, this seems to open up a can of worms. In claims for compensation, the amount that you receive can, it would appear, depend on how important you, the claimant, view the matter at hand and how well/badly you react to it. I'm somewhat uncomfortable with this line of thought. Is the compensation for the loss of an arm to be greater because the claimant says that he was thinking of taking up the piano and that he is therefore suffering more greatly than someone who says "oh well, I can always play those Lizst pieces for Wittgenstein's brother"? I don't think that the courts would take this line at all.
From which one has to conclude that this is a case that is particular to foetuses. Despite his apparent objective nature, the judge is taking the line that the woman concerned was right to consider the foetus as a child.
But that still doesn't solve the problem. Suppose the woman had been eight months pregnant? Even I, Mr Rational, Mr pro-right-to-choose, would find it hard to say blithely that "nope, it was still a foetus". So is there a graded scale here on "degree of pregnancy"? Or does the rate go up as soon as the woman goes past the legal period for abortion?
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