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McFarlane v Tayside Health Board (House of Lords)Case Report
McFARLANE v TAYSIDE HEALTH BOARD
GEORGE MCFARLANE AND MRS LINDA HELEN MCFARLANE, Pursuers (Respondents)— Smith, QC, Woolman, QC Damages—Assessment of damages—Reparation—Negligence—Medical negligence—Couple receiving negligent advice regarding safety of resumption of sexual relations after husband having vasectomy—Wife becoming pregnant and giving birth to healthy child—Solatium—Whether damages recoverable for pain of pregnancy and labour—Whether expenditure and loss of earnings during pregnancy recoverable—Whether costs of bringing up child recoverable In 1989 a couple agreed that they would have no more children. The husband thereafter underwent a vasectomy operation performed at the defenders’ hospital. After the operation, the couple were advised that they should practise contraception for a period. Later the defenders informed the couple that they could dispense with contraceptive precautions as the husband’s sperm counts were by that time negative. The wife subsequently fell pregnant and gave birth to a normal healthy child. The couple sued the defenders for having given them negligent advice. The couple jointly sought damages for the costs of caring for, feeding, clothing and maintaining the child and the expenses incurred in the layette. The wife also sought damages for the pain, distress and inconvenience suffered by her consequent pregnancy, confinement and delivery along with a loss of earnings sustained during her pregnancy. In procedure roll, the Lord Ordinary (Gill) held that a normal, even if undesired, pregnancy and labour could not constitute personal injuries or, if they could, they were injuries for which no damages were recoverable and that the benefits of parenthood transcended any patrimonial losses which the parents might have suffered. The action was accordingly dismissed and the couple reclaimed. The Second Division recalled the Lord Ordinary’s interlocutor and allowed a proof before answer on both heads of loss. The defenders thereafter appealed to the House of Lords. GEORGE MCFARLANE AND MRS LAURA HELEN MCFARLANE brought an action of reparation in the Court of Session against Tayside Health Board seeking damages in respect of the defenders’ alleged negligent advice resulting in an unwanted pregnancy.
The cause called in procedure roll before the Lord Ordinary (Gill) for a debate on the defenders’ plea to the relevancy. At advising, on 30 September 1996, the Lord Ordinary sustained the defenders’ plea to the relevancy and dismissed the action: see McFarlane v Tayside Health Board 1997 SLT 211. The pursuers reclaimed, the reclaiming motion calling before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Allanbridge for a hearing. At advising, on 19 January 1998, the Second Division allowed the reclaiming motion: 1998 SC 389. The defenders appealed to the House of Lords. Cases referred to: Administrator, Natal v Edouard 1990 (3) SA 581
Textbooks, etc referred to: Fleming, The American Tort Process, pp 26–27 The cause was heard in the House of Lords before Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Millett. At delivering judgment— LORD SLYNN OF HADLEY—My Lords, the relevant facts in this appeal are very few, the legal issue difficult. The facts are that Mr McFarlane underwent a vasectomy operation on 16 October 1989; by letter of 23 March 1990 he was told that his sperm counts were negative. In September 1991 (following the resumption of intercourse without contraceptive measures), Mrs McFarlane became pregnant and their fifth child, Catherine, was born on 6 May 1992. They claim that Mrs McFarlane suffered pain and distress from the pregnancy and birth and that they both have incurred and will incur costs in rearing Catherine, all due to the negligence of the defendant. They put Mrs McFarlane’s claim at £10,000 and their claim as parents at £100,000 for the cost of maintaining the child. It is right to say at once that despite their claim the respondents have loved and cared for Catherine as an integral member of the family. The Lord Ordinary (Lord Gill) dismissed both claims. He thought that as a matter of principle they were not entitled to damages. The Second Division of the Court of Session unanimously allowed a reclaiming motion. They thought that the parties should be allowed a proof before answer as if they could establish negligence they should be given the opportunity to prove the loss, injury and damage which they aver arise directly from the fact that the wife became pregnant. The Lord Ordinary considered the pregnancy could not be equiparated with a physical injury, but that even if it could it was not an injury for which damages are recoverable. The existence of the child and the mother’s happiness derived from it could not be ignored and they outweighed the pain and discomfort. As to the claim for the rearing of the child, his view was that the choice was between (a) allowing full recovery subject to issues of remoteness and (b) allowing no recovery since the value of the child outweighed the cost of maintenance. Limiting recovery to specific heads of claim which were not outweighed by the value of having the child was not acceptable, not least because of the difficulty of valuing the child’s existence. His conclusion was that to allow nothing for the benefits the parents received from having a child was wrong in principle, at any rate where a healthy child is concerned: ‘I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of the child’s existence and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss.’ Accordingly, as a matter of principle, damages were not recoverable. On the other hand, ‘if the benefits to the parents do not extinguish both claims, they should certainly
extinguish the claim for the costs of the child’s upbringing. To hold otherwise will be to give the pursuers more than compensation’. He held that as a matter of principle damages were not recoverable and that the claims could not succeed. On appeal the Lord Justice-Clerk said that the claim was for the physical and pecuniary consequences brought in train by the second pursuer’s pregnancy and childbirth rather than that the child was ‘harm’ to the parents. As to the claim for pain and distress resulting from the pregnancy and childbirth, they did not have to be seen as ‘injury’ and there was no reason for thinking that the law did not recognise them as damage. To say that was cancelled out by postnatal happiness was not acceptable. As to the costs of rearing a child, he did not accept that these could not result from the defenders’ negligence: keeping the child rather than arranging an abortion or an adoption did not break the chain of causation. The parents had to spend extra money because of the defenders’ negligence which led to the birth of the child. They were entitled to decide not to have a child. It was unwarranted to assume that the joy of having a child in every case exceeded any monetary claim which might arise. It could not be said that the pursuers could have suffered no loss worthy of compensation. He declined to consider whether public policy prevented the claim from being brought: that was not for the court. Lord McCluskey said: ‘“Damnum” in the context of our law of reparation means a loss in the sense of a material prejudice to an interest that the law recognises as a legal interest. When there is a concurrence of injuria and damnum the person whose legal right has been invaded with a resultant loss to him has a right to recover money reparation for that loss from the wrongdoer’ (1998 SLT at p 313K–L). ‘In my view it is sufficient to say that a woman who becomes pregnant despite her deliberate choice not to become pregnant suffers damnum and loss in the form of significant consequences for her physical condition, being consequences which she did not desire’ (1998 SLT at pp 315L–316A). As to whether the joy to be received from the birth of a child cancelled out pain and financial loss he said: ‘I know of no principle of Scots law that entitles the wrongdoer to say to the victims of his wrongdoing that they must look to their prospective and impalpable gains on the roundabouts to balance what they actually lose on the swings.’ ‘I conclude that the benefits to the parents of having a live healthy child cannot be taken into account under any principle known to Scots law.’ He too rejected ‘public policy’ as the criterion for deciding the issue. Lord Allanbridge accepted that there was injuria. Once the husband was told following the vasectomy that his sperm counts were negative and that he could dispense with contraceptive precautions the damage occurred when the wife became pregnant. His claim therefore arose before the birth of the child. He too thought they should be allowed to prove the loss, injury and damage resulting from the fact that the wife became pregnant. The parents’ failure to arrange abortion or adoption was not a novus actus interveniens. The result of the judgment of the Court of Session is that the pursuers should be able to seek to prove full recovery. Although these judgments refer to the law of Scotland (which obviously was the applicable law) it is as I understand it accepted that the law of England and that of Scotland should be the same in respect of the matters which arise on this appeal. It would be strange, even absurd, if they were not.
The issues raised in this case—or similar issues arising from other methods of preventing conception and birth—have arisen in cases before the courts of England and Scotland for some 20 years but have not yet been considered by your Lordships. The issues have arisen also in the courts of states of the United States, of the Commonwealth and of other European states. Counsel have referred the House to many of these cases. There is no single universally applied test. Judges have not only said (as here) in some cases all, in some cases nothing can be recovered, they have also said that the award may be for something in between. It is not necessary to refer to all of these cases but it is in my view of value to examine the trend of decisions in England and Scotland and more briefly to see how the courts of other countries have dealt with this difficult and often emotive matter. Cases in England and Scotland In Sciuriaga v Powell a claim for breach of a contract to terminate pregnancy by abortion, Watkins J held that the sole reason for the continuation of the pregnancy was the doctor’s breach of contract. He awarded damages for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but he did not award damages for the maintenance of the child. From the short report of the judgment it does not appear whether he was asked to do so. In Udale v Bloomsbury Area Health Authority where a woman’s sterilisation failed, a healthy child was born and a second operation performed. Jupp J accepted that the damages for an admitted liability in negligence should include, in addition to damages for pain and suffering and loss of earnings during pregnancy (which were conceded), damages for ‘the disturbance to the family finances’ such as the cost of a layette, and increased accommodation for the family. On grounds of public policy, however, he rejected a claim for the future cost of the child’s upbringing to age 16. The considerations of public policy which weighed with him were that it was undesirable that a child should learn that a court had declared its life to be a mistake, the difficulty of setting off the joy of having a child against the cost of rearing, and the risk that doctors might be led to encourage abortion in order to avoid claims against them for medical negligence. In Emeh v Kensington and Chelsea and Westminster Area Health Authority a sterilisation operation had failed and a child was born with congenital abnormalities which required constant medical and parental supervision. On a claim in contract the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child. The court took a multiplier of eight for a child five years old at the time of the appeal. In Thake v Maurice a vasectomy was performed, the husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. Peter Pain J found that there was no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child. He awarded damages in respect of the expenses of the birth and the mother’s loss of wages but refused damages for the pain and distress of labour holding that these were off-set by the joy occasioned by the birth. He did, however, award damages in an agreed sum for the child’s upkeep to its 17th birthday. The Court of Appeal held that damages should be awarded for
pain and suffering ‘per the majority’ in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded. In Benarr v Kettering Health Authority Hodgson J allowed damages in respect of the future private education of a child following a negligently performed vasectomy since private education was what the child could expect to have in that particular family. In Allen v Blooomsbury Health Authority Brooke J considered that the earlier authorities showed that if, as a result of negligence in the termination of a pregnancy, a child was born the mother could recover damages for the foreseeable loss and damage which she suffered in consequence. Those damages included (a) general damages for pain and discomfort associated with the pregnancy and birth (less the advantage of not undergoing a termination of the pregnancy); (b) financial special damage associated with (a); (c) economic loss being (i) ‘the financial loss she suffers because when the unwanted child is born she has a growing child to feed, clothe, house, educate and care for until the child becomes an adult’, and (ii) loss of earnings because she has to look after the child. On the other hand, except when a handicapped child is born, the wear and tear on the mother in bringing up a healthy child is generally off-set by the benefits derived from bringing a child to maturity. He accordingly awarded as general and special damages £96,631 including the cost of maintaining the child until she was 18, and child-minding costs between the ages of 11 and 14. This judgment was followed by Langley J in Crouchman v Burke and in Robinson v Salford Health Authority. In Salih v Enfield Health Authority the cost of maintaining a child born as a result of an incorrect diagnosis was rejected either because this was not caused by the negligence or because the cost would have been incurred in any event on the birth of at least one more child. In the Scottish case of Allan v Greater Glasgow Health Board, judgment of 25 November 1993, Lord Cameron of Lochbroom rejected contentions that public policy considerations prevented a claim for pain and distress of pregnancy and birth, and he awarded damages. He could see no reason why the cost of rearing a child should not in principle be provided for. ‘On the other hand I can accept that there are matters for which no reparation will be given either because they are so intangible as to be virtually impossible to assess in terms of money, as for instance, time and trouble in bringing up a healthy child (as noted by Kerr LJ in Thake v Maurice) or so remote and speculative as should be ignored (as, for instance, the cost of a wedding as in Allen) (p 584 K–L). I therefore reject the submission that there is any general bar to claiming child costs under the ordinary principles of law in Scotland pertaining to assessment of damages or that public policy operates to exclude wholly such costs. The question at the end of the day must be whether what is sought by way of reparation can be regarded as reasonable having in mind the particular circumstances of the particular case’ (p 585D–E). There has thus been in England and Scotland a trend towards allowing damages both for the pain and distress of an unplanned pregnancy and birth and also for the cost of rearing the child born. Cases in the United States of America The approach of courts has varied widely both in the reasoning and in the result. At one end of the spectrum is Szekeres v Robinson where the Supreme
Court of Nevada held that there should be no award of damages. The court ruled that the birth of a healthy but unwanted child was an ‘event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to negligent conduct of someone purporting to be able to prevent the eventuality of a childbirth’ (p 1078). ‘Our decision…simply holds that one cannot recover in tort for such an event, because the constituent element of a negligence tort namely damages, is not present here.’ The court left open the possibility of a claim in contract. At the other end of the spectrum is Lovelace Medical Center v Mendez. There the Supreme Court of New Mexico, in a failed sterilisation case, said that where the prime motivation for the sterilisation was to conserve family resources ‘the Mendezes' interest in the financial security of their family was a legally protected interest which was invaded by Lovelace’s negligent failure properly to perform Maria’s sterilisation operation (if proved at the trial) and that this invasion was an injury entitling them to recover damages in the form of the reasonable expenses to raise Joseph to maturity’ (p 612). They also accepted that damages should generally be awarded for pain and suffering associated with pregnancy and birth. They stressed that the ‘“offsetting benefits” principle applies only to the reduction of damages or the invasion of the same interest as the one that has been found’ (p 613). Thus emotional benefits could not be set off against financial detriment arising from the invasion of financial security. The setting-off of emotional benefits against emotional disadvantages although theoretically possible should not be allowed since it would lead to unseemly cases and such litigation was contrary to public policy. In between these two ends of the spectrum there are cases where the costs of maintenance have been rejected. Thus in Johnson v University Hospitals of Cleveland (Ohio) it was held that parents could only recover damages for the cost of the pregnancy itself and not the expense of rearing an unwanted child. Having considered four theories—no recovery, the valuation of benefits to mitigate damages, limited damages excluding child rearing and full recovery—the court concluded that the limited damages theory was to be adopted partly, as I read it, because to allow child rearing costs would be to invite ‘unduly speculative and ethically questionable assessments of such matters as the emotional effect of a birth on siblings as well as parents, and the emotional as well as the pecuniary costs of raising an unplanned, and perhaps, unwanted child in varying family environments’. ‘The extent of recoverable damages is limited by Ohio’s public policy that the birth of a normal, healthy child cannot be an injury to her parents.’ In Public Health Trust v Brown the Supreme Court of Florida, in refusing a claim for the cost of rearing a child to a woman alleging a negligently performed sterilisation operation, followed what they saw as the majority of courts in refusing such costs. They said: ‘In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child…. It is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable “benefits” of parenthood far outweigh any of the mere monetary burdens involved. Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the “unwanted” child for adoption. On a more practical level, the validity of the principle may be tested simply by asking any
parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law.’ Although this approach is followed, it seems, by the majority of state courts in which limited damages are awarded, excluding rearing costs, there is another approach. That is to accept the costs of rearing a child but to set off against those costs the non-financial benefits and joys of the parents in having a child. Thus in Sherlock v Stillwater Clinic, where a claim was brought for the birth of a child following a negligently performed sterilisation of the mother, the majority members of the Supreme Court of Minnesota held, in what they described as ‘at best a mortal attempt to do justice in an imperfect world’, that, after valuing reasonably foreseeable expenses to be incurred in maintaining and supporting and educating the child to maturity, in order to prevent unjust enrichment ‘the trier of fact will then be required to reduce these costs by the value of the child’s aid, comfort and society which will benefit the parents for the duration of their lives’. That approach is obviously in conflict with what was said in Lovelace. The Commonwealth In Administrator, Natal v Edouard in a claim for breach of contract where a sterilisation of the wife did not succeed, it was held, where the sterilisation was performed for socio-economic reasons, that the father could recover for the cost of maintaining the child but he could not recover in contract for the pain and suffering of his wife. In L v M Cooke J in the Court of Appeal in New Zealand expressed the view that the cost of rearing a child did not arise directly or indirectly from the faulty procedure adopted. In Kealey v Berezowski in Canada, Lax J refused damages for the costs of rearing the child. The difficulty of these issues is highlighted in CES v Superclinics (Australia) Pty Ltd. There a woman claimed damages for loss of the opportunity to terminate a pregnancy which doctors failed properly to diagnose. The trial judge dismissed the claim since any proposed abortion would have been unlawful. On grounds of public policy Meagher J A would have excluded such a claim altogether. It was inherently so difficult to assess the damages on any acceptable basis that the task should not be undertaken. Kirby A C-J would have allowed damages both for the pain and suffering associated with the pregnancy and birth and for the costs of rearing the child, but he would have off-set the value of the benefits to be derived from the birth and rearing of the child: ‘A set off of nett benefits is something to be assessed by the fact finder in a case against the nett injury incurred. Each case will depend on its own facts. Such question can be safely committed to trial judges or juries’ (p 77). In the result in order to achieve a majority order he agreed with Priestley JA that the ordinary expenses of rearing the child should be excluded. Priestly JA considered at p 84D: ‘The point in the present case is that the plaintiff chose to keep her child. The anguish of having to make the choice is part of the damage caused by the negligent breach of duty, but the fact remains, however compelling the psychological pressure on the plaintiff may have been to keep the child, the opportunity of choice was in my opinion real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing a child.’ Cases from other European States In the Common Law of Europe Case Book, ‘Torts’ (edited by Professor W Van Gerven, Jeremy Lever QC and others (1998)), there is an analysis of cases in the French,
German and Dutch courts. I do not set out the detail of these but it seems clear that in these jurisdictions also different courts have taken different views on the difficult legal and ethical issues which arose. It seems to me from this and from a valuable article ‘Damages for the Birth of a Child’ by Angus Stewart QC that the law is still developing and that there is no universal and clear approach. I refer in particular to the cases which are mentioned in pp 88–90 of Torts in the German courts where the test to be adopted does not appear to have been finally resolved. On the basis of what is said there the French courts would appear reluctant to award damages for maintenance arising from an unwanted birth. The Hoge Raad of the Netherlands in 1997 quashed a decision of the Court of Appeal in a case based on breach of contract and held that compensation could be awarded for the expenses of raising a child born normal and healthy and that these expenses should not be reduced by evaluating the joy of having the child (see pp 161–164). From this review it is clear that there is a wide range of opinions to consider. None is binding on your Lordships and it must be decided which of these approaches is as a matter of principle to be adopted as a rule of the law of Scotland and England. My Lords, I do not find real difficulty in deciding the claim for damages in respect of the pregnancy and birth itself. The parents did not want another child for justifiable, economic and family reasons: they already had four children. They were entitled lawfully to take steps to make sure that that did not happen, one possible such step being a vasectomy of the husband. It was plainly foreseeable that if the operation did not succeed, or recanalisation of the vas took place, but the husband was told that contraceptive measures were not necessary, the wife might become pregnant. It does not seem to me to be necessary to consider the events of an unwanted conception and birth in terms of ‘harm’ or ‘injury’ in its ordinary sense of the words. They were unwanted and known by the health board to be unwanted events. The object of the vasectomy was to prevent them happening. It seems to me that in consequence the wife, if there was negligence, is entitled by way of general damages to be compensated for the pain and discomfort and inconvenience of the unwanted pregnancy and birth and she is also entitled to special damages associated with both—extra medical expenses, clothes for herself and equipment on the birth of the baby. She does not claim but in my view would be entitled to prove compensation for loss of earnings due to the pregnancy and birth. It is not contended that the birth was due to her decision not to have an abortion which broke the chain of causation or made the damage too remote or was a novus actus interveniens. If it were suggested I would reject the contention and I see no reason in principle why the wife should not succeed on this part of the claim. Whether the parents should be entitled as a matter of principle to recover for the costs of maintaining the child is a much more difficult question. Logically, the position may seem to be the same. If she had not conceived because of the board’s negligence there would not have been a baby and then a child and then a young person to house, to feed and to educate. I would reject (had it been suggested in which it was not) that a failure to arrange adoption (like an abortion) was a new act which broke the chain of causation or which made the damage necessarily too remote. There was no legal or moral duty to arrange an abortion or an adoption of an unplanned child. The question remains whether as a matter of legal principle the damages should include, for a child by then loved, loving and fully integrated into the
family the cost of shoes at 14 and a dress at 17 and everything that can reasonably be described as necessary for the upbringing of the child until the end of school, university, independence, maturity? The discussion in the American cases of the ‘benefits rule’ to which I have referred persuades me that it should not be adopted here and it is significant that it has not been adopted in many American states. Of course judges have to evaluate claims which are difficult to evaluate, including assessments as to the value of the loss of a life, loss of society or consortium, loss of a limb or a function. But to do so and to get it even approximately right if little is known of the baby or its future at the time the valuation has to be made is very difficult. It may not be impossible to make a rough assessment of the possible costs of feeding, clothing and even housing a child during the likely period of the child’s life up to the age of 17 or 18 or 25 or for whatever period a parent is responsible by statute for the support of a child. But even that can only be rough. To reduce the costs by anything resembling a realistic or reliable figure for the benefit to the parents is well nigh impossible unless it is assumed that the benefits of a child must always outweigh the cost which, like many judges in the cases I have referred to, I am not prepared to assume. Of course there should be joy at the birth of a healthy child, at the baby’s smile and the teenager’s enthusiasms but how can these be put in money terms and trimmed to allow for sleepless nights and teenage disobedience? If the valuation is made early how can it be known whether the baby will grow up strong or weak, clever or stupid, successful or a failure both personally and careerwise, honest or a crook? It is not impossible to make a stab at finding a figure for the benefits to reduce the costs of rearing a child but the difficulties of finding a reliable figure are sufficient to discourage the acceptance of this approach. Accordingly, since I have rejected the Lord Ordinary’s approach that nothing should be awarded at all, the choice is between awarding all costs incurred by the parents consequent upon the conception and birth of the child on the one hand and awarding damages limited to those I have already accepted thereby excluding the cost of rearing the child. As to this I do not accept the argument that no damages should be awarded as otherwise children will learn that their birth was not wanted and that this will have undesirable psychological consequences. An unplanned conception is hardly a rare event and it does not follow that if the conception is unwanted the baby when it is born or the baby as it integrates into the family will not be wanted. Nor do I attach weight to the argument that, if damages claims of this kind are allowed, doctors to protect themselves will encourage late abortions. Such an event is possible but the ethical standards of the medical profession (coupled with insurance) should be a sufficient protection in such cases, which ought to be rare if proper care is taken. The real question raised here is more fundamental. It is to be remembered on this part of the case that your Lordships are concerned only with liability for economic loss. It is not enough to say that the loss is foreseeable as I have accepted it is foreseeable. Indeed if foreseeability is the only test there is no reason why a claim should necessarily stop at the date when a statutory duty to maintain a child comes to an end. There is a wider issue to consider. I agree with Mr Stewart QC (in the article to which I have referred) that the question is not simply one of the quantification of damages, it is one of liability, of the extent of the duty of care which is owned to the husband and wife.
It is to be remembered that in relation to liability the House has recognised that in respect of economic loss in order to create liability there may have to be a closer link between the act and the damage than foreseeability provides in order to create liability. Thus in Caparo Industries plc v Dickman Lord Bridge said that there should be a relationship of ‘neighbourhood’ or ‘proximity’ between the person said to owe the duty and the person to whom it is said to be owed. That relationship depends on whether it is ‘fair, just and reasonable’ for the law to impose the duty. As Mr Stewart QC says, the alternative test is to ask whether the doctor or the board has assumed responsibility for the economic interest of the claimant ‘with concomitant reliance by the claimant’. The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family. Whereas I have no doubt that there should be compensation for the physical effects of the pregnancy and birth, including of course solatium for consequential suffering by the mother immediately following the birth, I consider that it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. The doctor does not assume responsibility for those economic losses. If a client wants to be able to recover such costs he or she must do so by an appropriate contract. This conclusion is not the result, as it is in some of the American cases, of the application of ‘public policy’ to a rule which would otherwise produce a different conclusion; it comes from the inherent limitation of the liability relied on. A line is to be drawn before such losses are recoverable. I would accordingly dismiss the board’s appeal in respect of the claim for solatium by Mrs McFarlane and her claim for expenses caused directly and immediately by the pregnancy and birth including medical expenses (if any) and the costs of the layette but I would allow the board’s appeal in respect of the claim for damages in respect of the rearing of the child. LORD STEYN—My Lords, a surgeon wrongly and negligently advised a husband and wife that a vasectomy had rendered the husband infertile. Acting on his advice they ceased to take contraceptive precautions. The wife became pregnant and gave birth to a healthy child. The question is what damages, if any, the parents are in principle entitled to recover. It may be helpful to state at the outset the nature and shape of the case before the House. First, a distinction must be made between two types of claims which can arise from the failure of a sterilisation procedure, resulting in the birth of a child. There is the action (if permitted) for ‘wrongful life’ brought by a disadvantaged or disabled child for damage to himself arising from the fact of his birth. The present case does not fall within this category. It is what in the literature is called an action for ‘wrongful birth’. It is an action by parents of an unwanted child for damage resulting to them from the birth of the child. Secondly, the claim before the House is framed in delict. Counsel cited observations to the effect that it is immaterial whether such an action is brought in contract or in delict. The correctness of this assumption may depend on the nature of the term of the contract alleged to have been breached. Usually, since a contract of services is involved, it may be an obligation to take reasonable care. On the other hand, the term may be expressed more stringently and may amount to a warranty of an outcome. It is unnecessary in the present case to consider whether
different considerations may arise in such cases. My views are confined to claims in delict. Thirdly, the claim is brought under the extended Hedley Byrne principle (Hedley Byrne & Co Ltd v Heller & Partners Ltd) as explained in Henderson v Merrett Syndicates Ltd and Williams v Natural Life Health Foods Ltd, that is, it is based on an assumption of responsibility by the doctor who gave the negligent advice. Fourthly, there is a procedural aspect. The case comes before the House by way of an appeal from a decision of the Second Division of the Inner House of the Court of Session on the sustainability of the pleaded case of the parents of the unwanted child. This is an area of the law which gives rise to many difficult problems which could not be explored in depth in this case. I am not inclined to go beyond the issues directly arising on the present pleadings. The Unwanted Child In 1989 Mr and Mrs McFarlane already had four children. They decided to move to a bigger house. They needed a larger mortgage. In order to meet the increased financial commitments Mrs McFarlane returned to work. They further decided not to have any more children and that Mr McFarlane would undergo a vasectomy operation. On 16 October 1989 a consultant surgeon performed the operation on Mr McFarlane at a hospital for which Tayside Health Board is responsible. The operation was carried out without complication. One of the risks of a vasectomy operation is spontaneous recanalisation of the divided vas. For this reason Mr and Mrs McFarlane were advised to adopt contraceptive precautions until sperm samples had been analysed. In January and February 1990 that was done. On 24 March 1990 the consultant surgeon wrote to Mr McFarlane saying ‘your sperm counts are now negative and you may dispense with contraceptive precautions’. Mr and Mrs McFarlane acted on this advice. Nevertheless in September 1991 Mrs McFarlane became pregnant. On 6 May 1992 Mrs McFarlane gave birth to a healthy daughter, Catherine. Mr and Mrs McFarlane love their daughter and care for her as an integral part of the family. The Legal Proceedings in Scotland The parents sued the Tayside Health Board in delict. The claim is divided into two parts. First, Mrs McFarlane claimed a sum of £10,000 in respect of pain, suffering and distress resulting from the unwanted pregnancy. Secondly, Mr and Mrs McFarlane claimed a sum of £100,000 in respect of the financial cost of bringing up Catherine. The Lord Ordinary (Lord Gill) dismissed the action in respect of both heads of claim: McFarlane v Tayside Health Board 1997 SLT 211. The Lord Ordinary declined to follow a line of English decisions cited to him. He rejected at p 216 the claim for the cost of bringing up Catherine ‘on the central point as to the value to be placed on the child’s existence in any calculation of the parents’ overall position’. He observed ‘that the privilege of being a parent is immeasurable in monetary terms and that the benefits of parenthood transcend any patrimonial loss’. In regard to the claim for solatium he held that pregnancy and childbirth is not a personal injury. The Inner House unanimously allowed a reclaiming motion and reversed the order of the Lord Ordinary, with the result that under the existing order the action will go to proof under both heads of claim: McFarlane v Tayside Health Board 1998 SLT 307. The court ruled that the physical and financial consequences of the conception and birth of Catherine were recoverable heads of damage. The benefits which the parents
derive from Catherine should be left out of account. Relying strongly on a line of decisions in the English courts, the Inner House held in separate judgments that on conventional principles there were no grounds which negatived the prima facie liability of the health board. The Issues The statement of facts and issues summarised the questions to be considered as follows: (i) Are the pursuers entitled to damages? (ii) Is the second pursuer entitled to claim solatium? (iii) Are the pursuers entitled to claim for the financial consequences of pregnancy and the birth of the child? (iv) Is a claim for the financial consequences of the pregnancy and birth excluded as being for pure economic loss? (v) Does public policy exclude the pursuers’ claims for damages in whole or in part? (vi) Does the fact that the pursuers now have, as a result of the alleged negligence, a live healthy child, disentitle them to damages in whole or in part? These issues overlap. Different considerations apply to the two heads of claim and it will be necessary to consider them separately. It will be convenient first to consider the claim of the parents for the total cost of bringing up Catherine and then to consider the smaller claim of Mrs McFarlane for solatium for pain, suffering and distress resulting from her pregnancy. It is common ground that in regard to the sustainability in law of the two heads of claim there are no material differences between the law of Scotland and the law of England. The cost of bringing up Catherine It will be convenient to examine first the line of English cases on which the Inner House founded its decision that the cost of bringing up Catherine is a sustainable claim. In Udale v Bloomsbury Area Health Authority Jupp J rejected a claim for the cost of bringing up an unwanted child. The judge observed that the birth of a child is ‘a blessing and an occasion for rejoicing’. In Thake v Maurice Paine J refused to follow Udale and allowed such a claim. He observed at p 666G that social policy, which permitted abortion and sterilisation, implied that it was generally recognised that the birth of a healthy child was not always a blessing. In Emeh v Kensington and Chelsea and Westminster Area Health Authority the Court of Appeal had to consider divergent approaches in Udale and Thake. But the unwanted child in Emeh had been born with congenital disabilities. The defendants' contention was that the cost of upbringing should be limited to the extra costs attributable to the child’s disabilities. Full costs were allowed but in a modest sum of the order of £6,000. Angus Stewart QC in ‘Damages for the Birth of a Child’ (1995) 40 JLSS 298 at p 300 pointed out: ‘The issue [in Emeh] possibly presented as one of deceptive simplicity given that the claim was by the mother alone: it was held that the compensable loss extended to any reasonably foreseeable financial loss directly caused by the unexpected pregnancy. The formulation equates pregnancy with personal injury giving rise to consequential (as opposed to pure) economic loss which includes upbringing costs.’ That I regard as a perceptive explanation of the context of the judgment. In unreserved judgments the Court of Appeal chose to follow the judgment of Paine J rather than the judgment of Jupp J. This decision has been considered binding on lower courts and on the Court of Appeal in regard to claims by parents for wrongful birth of a healthy child. It is the critical decision in the line of authority in England. It is unnecessary to discuss the subsequent English
decisions, which followed Emeh but I list them in chronological order: see Thake v Maurice; Gold v Haringey Health Authority; Benarr v Kettering Health Authority; Allen v Bloomsbury Health Authority; Salih v Enfield Health Authority; Robinson v Salford Health Authority; Fish v Wilcox; Walkin v South Manchester Health Authority; Goodwill v British Pregnancy Advisory Service. It is only necessary to mention one specific matter about those decisions. In Benarr the court held that health authorities were liable to pay for private education of the unwanted child. It is right to point out that the Court of Appeal decision in Emeh predates the full retreat from Anns v Merton London Borough Council which was announced by the decision of the House in Murphy v Brentwood District Council. Since then a judicial scepticism has prevailed about an overarching principle for the recovery of new categories of economic loss. Here the father’s part of the claim for the cost of bringing up the unwanted child is undoubtedly a claim for pure economic loss. Realistically, despite the pregnancy and child birth, the mother’s part of the claim is also for pure economic loss. In any event, in respect of the claim for the costs of bringing up the unwanted child, it would be absurd to distinguish between the claims of the father and mother. This feature of the claim is important. The development of a new ground of liability, or a new head of such liability, for the recovery of economic loss must be justified by cogent reasons. Even before Murphy there was unease among judges about the decision in Emeh. This was memorably articulated in Jones v Berkshire Area Health Authority, another unwanted pregnancy case. Ognall J said: ‘I pause only to observe that, speaking purely personally, it remains a matter of surprise to me that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are afflicted with a handicapped child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency with a measure of astonishment. But there it is: that is the law.’ In Gold v Haringey Health Authority at p 484G Lloyd LJ (with the agreement of the other members of the court) cited this observation and said that ‘many would no doubt agree with this observation’. In the present case your Lordships have had the advantage of considering this issue in the light of far more analytical and comprehensive arguments from both counsel than were put before the Court of Appeal in Emeh. Counsel took your Lordships on a valuable tour d’horizon of comparative jurisprudence. Claims by parents for the cost of bringing up an unwanted but healthy child as opposed to more limited claims by the mother in respect of pain, suffering and distress associated with the pregnancy have proved controversial in foreign jurisdictions: compare the valuable comparative article by Angus Stewart QC. In the United States the overwhelming majority of state courts do not allow recovery of the costs of bringing up a healthy child: see the review in Johnson v University Hospitals of Cleveland Annotation, 89 ALR 4th 632 (May 1998), passim. In Canada the trend is against such claims: see Kealey v Berezowski which contains a review at pp 724–730. By a majority the New South Wales Court of Appeal in CES v Superclinics (Australia) Pty Ltd held that the plaintiff had, through the negligence of the defendants, lost the opportunity to have an abortion which would not necessarily have been unlawful. The court ordered a retrial on the issue as to whether an abortion would have been unlawful. Kirby P considered that damages could be awarded for the cost of bringing up the child. Priestly JA
was prepared to allow a limited recovery for ‘wrong birth’ but not for child rearing expenses. Meagher JA agreed with Priestly JA on this point, though, in a dissenting opinion, he concluded that public policy was an absolute bar to the award of damages in ‘wrongful birth’ cases. In New Zealand there is a no fault compensation scheme. It is, however, instructive to note that the Accident and Compensation Authority held that there was no causal connection between the medical error and the cost of raising the child: Re: Z and XY v Accident Compensation Corporation. In Germany the Constitutional Court has ruled that such a claim is unconstitutional inasmuch as it is subversive of the dignity of the child. But the Bundesgerichtshof has rejected this view and permits recovery of the costs of bringing up the child. The Federal Court observed that ‘compensation not only has no detrimental effect on this child, but can be beneficial to it’; see B S Markesinis, The German Law of Obligations, vol 11, The Law of Torts: A Comparative Introduction (3rd ed) (1997) at pp 155–156. In France the Cour de Cassation has ruled that ‘Whereas the existence of the child she has conceived cannot in itself constitute for the mother a loss legally justifying compensation, even if the birth occurred after an unsuccessful intervention intended to terminate the pregnancy’: see Mlle X c Picard. Such claims are not allowed. From this comparative survey I deduce that claims by parents for full compensation for the financial consequences of the birth of the healthy child have sometimes been allowed. It may be that the major theme in such cases is that one is simply dealing with an ordinary tort case in which there are no factors negativing liability in delict. Considerations of corrective justice as between the negligent surgeon and the parents were dominant in such decisions. In an overview one would have to say that more often such claims are not allowed. The grounds for decision are diverse. Sometimes it is said that there was no personal injury, a lack of foreseeability of the costs of bringing up the child, no causative link between the breach of duty and the birth of a healthy child, or no loss since the joys of having a healthy child always outweigh the financial losses. Sometimes the idea that the couple could have avoided the financial cost of bringing up the unwanted child by abortion or adoption has influenced decisions. Policy considerations undoubtedly played a role in decisions denying a remedy for the cost of bringing up an unwanted child. My Lords, the discipline of comparative law does not aim at a poll of the solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing considerations. And it reminds us that the law is part of the world of competing ideas markedly influenced by cultural differences. Thus Fleming has demonstrated that it may be of relevance, depending on the context, to know whether the particular state has an effective social security safety net: see Fleming: The American Tort Process, pp 26–27. I will now eliminate the grounds upon which I would not decide against the parents’ claim for compensation for financial loss arising from the child’s birth. Counsel for the health authority rightly did not argue that it is a factor against the claim that the parents should have resorted to abortion or adoption. I cannot conceive of any circumstances in which the autonomous decision of the parents not to resort to even a lawful abortion could be questioned. For similar reasons the parents’ decision not to have the child adopted was plainly natural and commendable. It is difficult to envisage any circumstances in which it would be right to challenge such a decision of the parents. The starting point is the right of parents to make decisions on family planning and, if those plans fail, their
right to care for an initially unwanted child. The law does and must respect these decisions of parents which are so closely tied to their basic freedoms and rights of personal autonomy. Counsel for the health authority argued as his primary submission that the whole claim should fail because the natural processes of conception and childbirth cannot in law amount to personal injury. This is a view taken in some jurisdictions. On the other hand, it is inconsistent with many other decisions, notably where limited recovery of compensation for pain, suffering and distress is allowed. I would not follow this path. After all, the hypothesis is that the negligence of the surgeon caused the physical consequences of pain and suffering associated with pregnancy and childbirth. And every pregnancy involves substantial discomfort and pain. I would therefore reject the argument of the health authority on this point. In the alternative counsel argued that, if money spent on Catherine is regarded as a detriment to her parents, it is outweighed by the many and undisputed benefits which they have derived and will derive from Catherine. While this factor is relevant in an assessment of the justice of the parents’ claim I do not regard such a ‘set off’ as the correct legal analysis of the position. It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents’ claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice. It requires a focus on the just distribution of burdens and losses among members of a society. If the matter is approached in this way, it may become relevant to ask commuters on the Underground the following question: Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority, ie until about 18 years? My Lords, I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic ‘no’. And the reason for such a response would be an inarticulate premise as to what is morally acceptable and what is not. Like Ognall J in Jones v Berkshire Area Health Authority they will have in mind that many couples cannot have children and others have the sorrow and burden of looking after a disabled child. The realisation that compensation for financial loss in respect of the upbringing of a child would necessarily have to discriminate between rich and poor would surely appear unseemly to them. It would also worry them that parents may be put in a position of arguing in court that the unwanted child, which they accepted and care for, is more trouble than it is worth. Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing. My Lords, to explain decisions denying a remedy for the cost of bringing up an unwanted child by saying that there is no loss, no foreseeable loss, no causative link or no ground for reasonable restitution is to resort to unrealistic and formalistic propositions which mask the real reasons for the decisions. And judges ought to strive to give the real reasons for their decision. It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice. That is, of course, a moral theory. It may be objected that the House must act
like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But judges' sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right. Two recent illustrations of the relevance of the moral dimension in the development of the law illustrate the point. In Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd the House differentiated between the measure of damages for fraudulent and negligent misrepresentation. Pointing out that tort law and morality are inextricably interwoven, I said (with the agreement of Lord Keith of Kinkel and Lord Jauncey of Tullichettle) that as between the fraudster and the innocent party, moral considerations militate in favour of requiring the fraudster to bear the risk of misfortunes directly caused by the fraud: at p 280B–C. In Frost v Chief Constable of South Yorkshire Police the police officers claimed compensation for psychiatric loss they sustained as a result of the Hillsborough disaster. By a majority the House ruled against the claim. The principal theme of the judgments of the majority was based on considerations of distributive justice. In separate judgments Lord Hoffmann and I reasoned that it would be morally unacceptable if the law denied a remedy to bereaved relatives as happened in Alcock v Chief Constable of South Yorkshire Police but granted it to police officers who were on duty. Lord Hoffmann expressly invoked considerations of distributive justice: at pp 503H–504C. Lord Browne-Wilkinson and I expressed agreement with this reasoning. In my judgment I observed (at p 498D–E): ‘The claim of the police officers on our sympathy, and the justice of the case, is great but not as great as that of others to whom the law denies redress.’ That is the language of distributive justice. The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches. In my view it is legitimate in the present case to take into account considerations of distributive justice. That does not mean that I would decide the case on grounds of public policy. On the contrary, I would avoid these quick sands. Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor. If it were necessary to do so, I would say that the claim does not satisfy the requirement of being fair, just and reasonable. This conclusion is reinforced by an argument of coherence. There is no support in Scotland and England for a claim by a disadvantaged child for damage to him arising from his birth: see McKay v Essex Area Health Authority. Given this position, which also prevails in Australia, Trinidade and Cane (The Law of Torts in Australia (3rd ed) (p 434) observe: ‘…it might seem inconsistent to allow a claim by the parents while that of the child, whether healthy or disabled, is rejected. Surely the parents’ claim is equally repugnant to ideas of the sanctity and value of human life and rests, like that of the child, on a comparison between a situation where a human being exists and one where it does not’. In my view this reasoning is sound. Coherence and rationality demand that the claim by the parents should also be rejected. Two supplementary points remain to be mentioned. First, I have taken into account that the claim in the present case is based on an assumption of
responsibility by the doctor who gave negligent advice. But in regard to the sustainability of a claim for the cost of bringing up the child it ought not to make any difference whether the claim is based on negligence simpliciter or on the extended Hedley Byrne principle. After all, the latter is simply the rationalisation adopted by the common law to provide a remedy for the recovery of economic loss for a species of negligently performed services: see Williams v Natural Life Health Foods Ltd at p 834G. Secondly, counsel for the health authority was inclined to concede that in the case of an unwanted child, who was born seriously disabled, the rule may have to be different. There may be force in this concession but it does not arise in the present appeal and it ought to await decision where the focus is on such cases. I would hold that the Inner House erred in ruling that Mr and Mrs McFarlane are entitled in principle to recover the costs of bringing up Catherine. The claim for pain, suffering and distress The claim for solatium simply alleges that Mrs McFarlane became pregnant and had to undergo a pregnancy and confinement and the pain and distress of giving birth to the child. It will be recalled that I have already rejected the argument that Mrs McFarlane suffered no personal injury. The constituent elements of a claim in delict are present. The considerations of distributive justice which militated against the claim for the cost of bringing up Catherine do not apply to the claim for solatium. There is nothing objectionable to allowing such a claim. And such limited recovery is supported by a great deal of authority worldwide. I would uphold it. The pleadings also allege that the wife gave up work during the later stages of her pregnancy. Counsel for the Health Authority concedes that if a claim for limited recovery is allowed, such an ancillary claim would also be sustainable. This consequential relief is within the spirit of the limited recovery principle and I would endorse it. For the reasons I have given I would uphold the decision of the Inner House on this part of the claim. The disposal of the appeal I would allow the appeal on the cost of bringing up Catherine and dismiss the appeal on the claim for solatium by Mrs McFarlane. LORD HOPE OF CRAIGHEAD—My Lords, it is now quite common for couples to choose surgical sterilisation as a means of limiting the size of their families. The operative procedures are quite simple, especially where the man is being sterilised. They are also readily available on the National Health Service. In the year to 31 December 1997, the last year for which information is available, 8,357 vasectomies and 7,871 female sterilisations were carried out in Scotland. In most cases the operation is successful, but occasionally there are difficulties. In the case of a vasectomy, spontaneous recanalisation can occur with the result that the man regains his fertility. For this reason tests need to be carried out for a period after the operation to ensure that the procedure has been successful. During this period samples of sperm are analysed to determine whether active sperm are still present in the man’s semen. Patients are advised to continue with contraceptive precautions until the sperm counts have been analysed and found to be negative. Patients who undertake these operations are entitled to expect that they will be performed competently and that reasonable care will also be taken during
the post-operative period when samples of sperm are being analysed. The ordinary standards of care apply. A surgeon who fails to fulfil the duties of care to be expected of a professional man of ordinary skill will be held to have been negligent. The specialists in the laboratory who receive and analyse the sperm samples and who are responsible for recording the results and advising the patients about them will also be held to have been negligent if they fail to exercise the skill and competence which is reasonably to be expected of them. But difficult questions of law arise, should a child be born following the sterilisation procedures, as to the extent of their liability to the parents of the child in damages. The Issues in this Case How difficult these questions are is well demonstrated by the decisions which the judges in the Court of Session have reached in this case. The pursuers claim that they have suffered loss, injury and damage as a result of mistaken advice following the first named pursuer’s vasectomy. They aver that they received advice that the sperm counts following analysis of the samples of sperm which he provided were negative and that they could dispense with contraceptive precautions. Just over two years after they had received that advice the second named pursuer gave birth to the couple’s fifth child. The pregnancy was a normal one. There were no complications, and the child Catherine is a normal, healthy child. But the pursuers had planned to have no more children. The purpose of the operation had been to limit the size of their family. They sought damages from the health board for the pain, distress and inconvenience which the second named pursuer suffered as a result of the pregnancy and giving birth. They also sought damages for financial loss involved in caring for the child after birth and rearing her during her childhood. The Lord Ordinary, Lord Gill, held that the pursuers were not entitled to any damages: 1997 SLT 211. He dismissed the pursuers’ action on the ground that their averments were irrelevant. The Second Division (the Lord Justice-Clerk (Cullen) and Lords McCluskey and Allanbridge) recalled the Lord Ordinary’s interlocutor and allowed the pursuers a proof before answer on both parts of their claim: 1998 SLT 307. The question which is before your Lordships in this appeal is, as my noble and learned friend Lord Steyn has observed, one of principle. It is whether and, if so, to what extent the pursuers are entitled in these circumstances to damages. The decisions of the Lord Ordinary and of their Lordships of the Second Division were at the opposite ends of the spectrum on this issue. The Lord Ordinary said that the case should be decided on the principle that the privilege of being a parent is immeasurable in monetary terms and transcended any patrimonial loss that might be incurred in consequence of the child’s existence. He held that the pursuers in such a case as this could not be said to be in a position of overall loss. The Second Division, on the other hand, took what may be described as the traditional view of delictual liability: where damnum has resulted from injuria, the law recognises a legal interest which must be made good by an award of damages. Applying this principle, and on the ground that there was no overriding objection on the ground of public policy, the claims for the physical effects of the pregnancy and childbirth and for the child rearing costs were both held to be admissible. This all or nothing approach is reflected in the pleadings and, for the most part, it was also reflected in the positions
which each side adopted in the course of the argument. But there is a substantial body of jurisprudence in other jurisdictions which favours the middle view—that the costs of child rearing are not recoverable, but that damages may be given for loss, injury and damage which is attributable to the pregnancy and giving birth to the child. The pursuers’ pleadings suggest that the second named pursuer’s claim which relates to the pregnancy and the childbirth is restricted to the discomfort and inconvenience of the pregnancy and the pain and distress which she suffered during the delivery. It is not said that she sustained any loss of earnings during this period. The claim as presented appears to be a straightforward claim by her for solatium. It is analogous to that which may be made by a pursuer in a case of personal injury. In her case the claim is for the physical consequences to her of the implantation of semen within her fertile body by her husband whom both parties believed to be sterile. The other claim, which both pursuers make, is for the financial consequences of caring for, feeding and clothing and maintaining the child which they attribute to the erroneous and negligent advice which they received from the hospital. I propose to consider first the second named pursuer’s claim for the loss, injury and damage which she suffered during the period of the pregnancy and during or attributable to the process of delivery. I shall describe this as ‘the mother’s claim’. I shall then turn to the claim for child rearing costs, which relates to the period after the delivery. This seems to me to raise difficult questions of principle which are best considered separately. The Mother’s Claim The mother’s claim can be described in simple terms as one for the loss, injury and damage which she has suffered as a result of a harmful event which was caused by the defenders’ negligence. As the pregnancy in this case was a normal one and there were no complications either during or after childbirth, there was no physical event other than the conception to which the claim can be said to be attributable. The harmful event was the child’s conception. It may seem odd to describe the conception as harmful. But it was the very thing which she had been told would not happen to her after the sperm tests had been carried out following her husband’s vasectomy, and it was attributable directly to the defenders’ negligence. The physical consequences to the woman of pregnancy and of childbirth are, of course, natural processes. In normal circumstances they would not be considered as a harm to her or as being due to an injury. But the law will respect the right of men and women to take steps to limit the size of their family. Any objection to the claim on moral or religious grounds must be rejected, as this is an area of family life in which freedom of choice may properly be exercised. The processes of sterilisation are readily available in our hospitals to those who wish to make use of them. It seems to me that there is no reason in principle why the law should not give damages where the conception was due to the surgeon’s negligence or to negligence on the part of those responsible for the tests in the laboratory. The Lord Ordinary rejected this claim on what he described as the central point as to the value to be placed on the child’s existence in any calculation of loss in respect of the pregnancy. The defenders’ position, as explained in their written case, was that as pregnancy and childbirth are natural processes they
cannot amount to personal injury sounding in damages. As senior counsel for the defenders put it in the course of his argument, the reason why damages for these consequences of the negligence are not recoverable is that pregnancy and the birth which results from it are a normal part of life. I would reject both of these arguments. The relief and joy which follow a successful delivery and all the pleasure which a child gives to the mother in so many ways during the process of upbringing are, of course, incalculable. But I know of no principle which requires that such consequences must be taken into account in the assessment of damages where a person has previously endured pain and suffering. The fact is that pregnancy and childbirth involve changes to the body which may cause, in varying degrees, discomfort, inconvenience, distress and pain. Solatium is due for the pain and suffering which was experienced during that period. And the fact that these consequences flow naturally from the negligently caused conception which has preceded them does not remove them from the proper scope of an award of damages. Many examples can be given in the field of personal injury where the natural consequences of an initial injury, such as the development of arthritic changes at the site of the injury or of post-traumatic epilepsy, are taken into account in the assessment of damages. The authorities are, with only a few exceptions, all one way on this point. In Udale v Bloomsbury Area Health Authority, where a healthy child was born following a sterilisation operation, it was conceded that the mother was entitled to damages for (1) the original operation which had turned out to be useless; (2) the shock and anxiety of an unwanted pregnancy; (3) the anger at the thwarting of the decision which she and her husband had taken not to have more children; (4) the ordinary symptoms of pregnancy during the early stages, which she thought were due to illness or disease, and the taking of unnecessary drugs to overcome them; (5) her fear, after the pregnancy was diagnosed, that the drugs may have harmed or deformed the child; (6) the operation for resterilisation after the birth; and (7) her loss of earnings for about 11 months made necessary by the pregnancy and birth: see Jupp J at p 1104D–F. In Thake v Maurice, Kerr LJ rejected the argument that the mother’s claim for ante-natal suffering should be extinguished by the happiness of the post-natal events. The Court of Appeal upheld her claim for the discomfort and pain of pregnancy and delivery when these had occurred normally and without adverse incidents. In Allen v Bloomsbury Health Authority, where the hospital negligently failed to diagnose that the mother was pregnant at the time of her operation for sterilisation and she would have terminated the pregnancy if it had been diagnosed at that time, Brooke J held at p 657C that the mother was entitled to recover general damages for the discomfort and pain associated with the continuation of her pregnancy and the delivery of her child, after setting off the benefit of avoiding the termination of the pregnancy. In Allan v Greater Glasgow Health Board at p 584F Lord Cameron of Lochbroom rejected the submission that there were public policy considerations repugnant to an award of damages for the pain, distress and suffering associated with a normal pregnancy and the physical act of giving birth and for further incidental damages associated with the pregnancy and birth. Of the various Commonwealth and United States cases which I shall examine in the next chapter, mention need only be made here of Kealey v Berezowski, at p 742 where Lax J, sitting in the Ontario Court (General Division), said that, having become pregnant as a result of a failed sterilisation, the mother was entitled to the damages which
flowed from the pregnancy, labour and delivery as well as the necessity to undergo a second sterilisation process. It appears from his observations at p 743 that he would also have awarded her damages for sick days taken off work during pregnancy, for lost overtime and for other elements of loss of income attributable to this period had there been adequate proof of these items. The only exceptions to this line of authority are to be found in Nevada, which alone among the various states which have considered this matter in the United States of America has adopted the position that there should be no recovery: Szekeres v Robinson, and in South Africa where, the claim having been made in contract and not delict, the rule that only patrimonial loss can be recovered in contract was applied and the mother’s claim for discomfort, pain and suffering and loss of amenities of life in consequence of the pregnancy was disallowed: Administrator, Natal v Edouard. In Szekeres v Robinson, Springer J said as to the case of the healthy although unwanted child at p 1078: ‘Many courts have taken for granted that normal birth is an injurious and damaging consequence and have disagreed only on the “how much” part of such claims. We do not take the wrongness nor the injuriousness of the birth event for granted and say, to the contrary, that normal birth is not a wrong, it is a “right”. It is an event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to the negligent conduct of someone purporting to be able to prevent the eventuality of childbirth.’ On this basis the Nevada court held that the constituent elements of a tort were not present and that tort actions for the birth of a normal child should be disallowed. But the reasoning in the South African court on this point of principle was quite different. In Administrator, Natal v Edouard at pp 590–591 Van Heerden JA said that he failed to see why only the birth of an abnormal child should be regarded as a wrong recognised by law, and that he did not find attractive the proposition that the birth of a normal child is a blessing which cannot constitute a wrong. The Nevada decision is out of line with all the other American cases, and the South African decision depends on a strict application of the rule as to the damages recoverable in contract which has no part in our law relating to delictual liability for negligence. I would therefore affirm the decision of the Second Division on this point. I should, however, like to emphasise that I do not think that it would be right to regard the mother’s claims for solatium and for any financial loss attributable to the pregnancy as terminating at the precise moment of the child’s birth. The pleadings do not suggest that a claim is being made in this case for any discomfort, pain or distress after the delivery or for any loss of income during the period when the second named pursuer was recovering from it. But it is not difficult to imagine that there may be cases where the mother experiences physical or emotional problems after the birth or sustains loss of income during that period which is attributable to the effects upon her of the pregnancy. I would prefer to limit the scope for the recovery of damages under this head by applying the normal rules as to the remoteness of damage rather than subjecting the claim to a strict and, as I see it, unreasonable and unrealistic timetable. The Child-rearing Costs This is a claim for economic loss. The first-named pursuer does not claim that he suffered any physical or mental injury. The loss which falls to be considered under this head is the cost of rearing a normal, healthy child. Senior counsel for
the pursuers presented her claim as amounting to the cost of fulfilling the obligation of aliment which the pursuers owe to the child under sec 1(1)(c) of the Family Law (Scotland) Act 1985 and their parental responsibilities under sec 1 of the Children (Scotland) Act 1995. She said that the claim was quite a modest one. It seems to me that the potential for claims of this kind is very large, bearing in mind that the child’s dependency under the Act of 1985 will continue until the age of 25 if she is undergoing instruction at an educational establishment or training for employment or for a trade, profession or vocation: see sec 1(5) of that Act. But quite apart from the size of the claim, there are important matters of principle to be considered as to its admissibility. Senior counsel for the defenders said that the proposition which lay at the heart of the defenders’ argument that damages for the cost of rearing the child were not recoverable was that the defenders’ negligence had not caused harm to the pursuers. He submitted that it did not follow from the fact that the pursuers did not want to incur this expense that it was recoverable. He said that the child was not herself a harmful event, that she was not productive of harm. She had been accepted willingly and lovingly into the family. She was an unplanned but no longer an unwanted child. The exercise of placing a value on the child in order to offset the benefits which she brought against the costs of her upbringing was invidious. So a line could properly be drawn at birth as to the damages which were recoverable. For the pursuers, senior counsel said that their claim was not inconsistent with respect for the child’s life and their acceptance of her into their family. She pointed out that for them there was no choice but to accept her once they and their other children had become aware of the pregnancy. There was no question of their seeking an abortion, and it would have been unthinkable for them to have put her out for adoption once she had been born. The correct focus should be on the position in which they had been placed financially as a result of the conception which occurred due to the defenders’ negligence. Differing views as to the result of the weight to be attached to these arguments are to be found in the authorities. There has been, after an initial decision to the contrary, a consistent line of authority, both in England and in Scotland, to the effect that the costs of child rearing are recoverable. Some support for that view is to be found in the Commonwealth and American cases, but there is substantial support for limiting damages to the mother’s claim and excluding all claims relating to the cost of the child’s upbringing. The starting point for a review of the English and Scottish cases is Udale v Bloomsbury Area Health Authority. In that case Jupp J held that, while the plaintiff could recover damages for her pain and suffering and for disruption to the family finances and the cost of the layette caused by the unexpected pregnancy, the costs arising from the coming into the world of a healthy, normal child were not recoverable. He reached this view on an examination of various considerations of public policy. But in Emeh v Kensington and Chelsea and Westminster Area Health Authority the Court of Appeal held that it was not contrary to public policy for the plaintiffs to recover damages for the birth of a child. This decision was applied by the Court of Appeal in Thake v Maurice. In Benarr v Kettering Health Authority it was held that the health authority was liable to pay for the cost of educating the child privately, in addition to other costs. In Allan v Greater Glasgow Health Board (the opinion was issued on 25 November 1993), Lord Cameron of Lochbroom, following Thake v Maurice, held that there
was no general bar to the recovery of child rearing costs in Scots law or on grounds of public policy. In Anderson v Forth Valley Health Board, Lord Nimmo Smith disagreed with the Lord Ordinary’s decision in the present case. He followed Emeh and Lord Cameron of Lochbroom’s decision in Allan. While most judges other than the Lord Ordinary in the present case have been content to follow Emeh’s case it is worth noting that in Jones v Berkshire Area Health Authority, Ognall J expressed surprise that the law acknowledged an entitlement to damages for a healthy child, and that in Gold v Haringey Health Authority at p 484G Lloyd LJ agreed with this observation. In Allen v Bloomsbury Health Authority at p 662D–F Brooke J also expressed some misgivings about this line of authority. He pointed out that contemporary commentators had pointed out that the decision in Emeh’s case had cleared the way for potentially heavy future awards of damages for the cost of maintaining children in this class of case. He went on: ‘If an unplanned child is born after a failure by a hospital doctor to exercise the standard of care reasonably to be expected of him and the child’s parents have sent all their other children to expensive private boarding schools for the whole of their education then it appears to me that as the law now stands a very substantial claim for the cost of private education of a healthy child of a reasonably wealthy family might have to be met from the funds of the health authority responsible for the doctor’s negligence. However, if this is regarded as inappropriate on policy grounds it is, as Waller LJ pointed out in Emeh’s case, for Parliament, not the courts to determine policy questions: judges at first instance, at any rate, can do no more than try to identify and apply principles approved by the higher courts unless and until Parliament intervenes.’ It seems to me that, despite senior counsel for the pursuers’ assurance that the claim in the present case is a modest one, it is necessary to face up to the problem which Brooke J identified in Allen’s case. To the example which he gave of the reasonably wealthy family one might add other examples of cases where the costs of private education might be regarded as recoverable, such as that of the expatriate banker or businessman whose work required him to reside with his wife in countries where suitable facilities for education were not available or to adopt an itinerant lifestyle. It is not difficult to see that in such cases a very substantial award of damages might have to be made for the child’s upbringing. Awards on that scale would be bound to raise questions as to whether it was right for the negligent performance of a voluntary and comparatively minor operation, undertaken for the perfectly proper and understandable purpose of enabling couples to dispense with contraceptive measures and to have unprotected intercourse without having children, to expose the doctors, and on their behalf the relevant health authority, to a liability on that scale in damages. It might well be thought that the extent of the liability was disproportionate to the duties which were undertaken and, consequently, to the extent of the negligence. Although no clear pattern emerges from a study of the Commonwealth and American cases, there are some indications that the limited damages rule favoured by some states in the US is preferable to the position which has been adopted in the English and Scottish cases—other than in Udale and by the Lord Ordinary. In Emeh v Kensington and Chelsea and Westminster Area Health Authority at p 1028 Purchas LJ quoted with approval the following passage from Sherlock v Stillwater Clinic, a decision of the Supreme Court of Minnesota, at pp 170–171: ‘We hold
that in cases such as this an action for “wrongful conception” may be maintained, and that compensatory damages may be recovered by the parents of the unplanned child. These damages may include all prenatal and postnatal medical expenses, the mother’s pain and suffering during pregnancy and delivery, and loss of consortium. Additionally, the parents may recover the reasonable costs of rearing the unplanned child subject to offsetting the value of the child’s aid, comfort and society during the parents’ life expectancy.’ Purchas LJ said that this was the approach which Watkins J had adopted in Sciuriaga v Powell when he awarded damages to the plaintiff who gave birth to a healthy child after a legal abortion had failed to terminate her pregnancy. There are three reasons for doubting, with great respect, Purchas LJ’s reliance on these cases in reaching the view which he did in Emeh’s case. In the first place, Watkins J did not make any award in Sciuriaga v Powell for the costs of child rearing. The awards which he made were for the physical and mental suffering caused by the continuation of the pregnancy and for the plaintiff’s loss of earnings including future loss. In the second place, the decision in Sherlock’s case was to apply what has been described as the ‘benefits rule’—that is to say, to offset the value of the non-patrimonial benefits which the child gives against the costs of its upbringing. The approach which the English courts have adopted is a different one, namely to award damages for the costs of child-rearing but not to offset against those costs the value of the non-patrimonial benefits. But the third and more significant point is that, as Angus Stewart QC has observed in his valuable article, ‘Damages for the Birth of a Child’ (1995) 40 JLSS 298, the passage which Purchas LJ quoted from Sherlock v Stillwater Clinic has been received into UK jurisprudence almost by accident. It does not really deserve the status which has been accorded to it in the English and Scottish authorities. It was quoted again by Kerr LJ in Thake v Maurice and by Lord Cameron of Lochbroom in Allan v Greater Glasgow Health Board at p 584B–E. But two of the members of the court (Sheran CJ and Peterson J) dissented in that case, pointing to earlier authority in the same state to the effect that it would be, in Sheran CJ’s words, ‘preposterous for the father of an unplanned child to be awarded damages in a case such as this for the cost of nurture and education of the child during its minority’. In a later case in the same state, Hickman v Group Health Plan, Inc it was said at p 17 that the majority in Sherlock’s case had allowed the cause of action ‘somewhat hesitantly’. Moreover the decision is out of line with the majority view among the jurisdictions in the US. The majority of states favour what has been described as the ‘limited damages rule’, which excludes child rearing costs. The basis for the limited damages rule was described by the Supreme Court of Florida in Public Health Trust v Brown at pp 1085–1086 in a passage which was quoted with approval by Ward J in the Supreme Court of Illinois in Cockrum v Baumgartner at p 388: ‘In our view…its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. Even the courts in the minority recognize, as the jury was instructed in this case, that the costs of providing for a child must be offset by the benefits supplied by his very existence. But it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved. Speaking legally, this may be deemed
conclusively presumed by the fact that a prospective parent does not abort or subsequently place the ‘unwanted’ child for adoption. On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law.’ In Johnson v University Hospitals of Cleveland, the Supreme Court of Ohio observed at p 1375 that the vast majority of jurisdictions which have decided the issue have adhered to the limited damages rule which denies all child rearing expenses. At p 1378, after reviewing the various theories of recovery, the court found that the limited damages theory was the most persuasive rule: ‘In Ohio, a tort recovery may not be had for damages which are speculative…Allowing a jury to award child-rearing costs would be to invite unduly speculative and ethically questionable assessments of such matters as the emotional effect of a birth on siblings as well as parents, and the emotional as well as the pecuniary costs of raising an unplanned and, perhaps, unwanted child in varying family environments.’ The court added that they were aware of the possible hardships which might result from that decision and that they were not blind to the economic realities that accompany the rearing of a child. But the legislature was the proper forum in which the competing social philosophies should be considered in establishing the law. A similar view has been taken in the State of Washington. In McKernan v Aasheim at p 855 it was held that the costs of rearing an unplanned child were not recoverable, on the ground that it was impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child damaged its parents: ‘Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar economic information. But whether these costs are outweighed by the emotional benefits which will be conferred by that child cannot be calculated. The child may turn out to be loving, obedient and attentive, or hostile, unruly and callous. The child may grow up to be President of the United States, or to be an infamous criminal. In short, it is impossible to tell, at an early stage in the child’s life, whether its parents have sustained a net loss or net gain.’ In Australia the Court of Appeal of New South Wales held in CES v Superclinics (Australia) Pty Ltd that the damages recoverable where negligent advice resulted in the loss of the opportunity to terminate a pregnancy did not include the expenses of rearing a child born of the pregnancy, on the ground that the mother’s choice to keep her child was the cause of the subsequent rearing costs. In South Africa it was held in Administrator, Natal v Edouard in an action for breach of contract that, where a sterilisation had been performed for socio-economic reasons, the costs of rearing the child were recoverable. But in Canada the limited damages rule has been adopted in Ontario: Kealey v Berezowski. In an impressive judgment, Lax J explained his reasons at pp 739–741, in a passage which is worth quoting in full as it demonstrates the influence on his thinking of Lord Oliver of Aylmerton’s speech in Caparo Industries plc v Dickman which, as I shall explain later, I too would regard as a vital signpost as to the direction which should be taken in the search for a satisfactory solution to this very difficult problem: ‘If public policy must be invoked, these statutory provisions [to the effect that every parent has an obligation to provide support to a child, in accordance with need, during the period of dependency] suggest to me that, as a matter of public policy, the financial responsibilities associated with the
care and upbringing of a child are the responsibilities of parents. In a wrongful pregnancy case, the question then becomes, to what extent, if at all, the defendant’s negligence impairs the plaintiff’s ability to meet those responsibilities to the unplanned child or compromises the relationship of mutual support and dependency between parent and child. It is for this reason…that in wrongful pregnancy cases, it is the court’s function to find the interest which a successful sterilization would have protected in order to determine whether the consequences of the failed sterilization constitute a genuine injury or a “blessed event”. The reasons for the sterilization are relevant to this determination. This approach makes sense if one considers that the general principle of compensatory damages is restitutio in integrum…. It also makes sense if one accepts that the underlying rationale for the award of child-rearing costs in many of the “total recovery” cases is to ensure that the plaintiffs can meet their financial responsibilities to the child…. Finally, it makes sense if the injury is looked at through the lens of the Caparo “limited purposes” rule for it has this in common with it. In both, foreseeability is a necessary, but an insufficient determinant…. What it comes down to is this. There is a cause of action against a physician for negligently performing a sterilization which results in an unplanned pregnancy. If a child is born as a result of that pregnancy, this does not, in itself, constitute a harm which inevitably leads to damages for child-rearing costs: ‘[T]he duty of care is inseparable from the damage which the plaintiff claims to have suffered from the breach. It is not a duty to take care in the abstract but a duty to avoid causing in the particular plaintiff damage of the particular kind which he has in fact sustained’ [per Lord Oliver in Caparo at p 651]. The particular damage sustained in this case is an unplanned and undesired pregnancy. There is no damage caused by the defendant’s negligence which prevents Ashley’s parents from fulfilling their responsibilities to her, or compromises in any way the relationship of mutual support and dependency which, as a matter of law, arose on her birth. Accordingly, the child-rearing costs in this case are not a compensable loss.’ In the light of the very different solutions which have been adopted in these various jurisdictions it is, I think, possible to draw these conclusions. The question for the court is ultimately one of law, not of social policy. If the law is unsatisfactory, the remedy lies in the hands of the legislature. It can be changed by the Scottish Parliament. As to the law, it has not been suggested that the costs of rearing the child are too remote, in the sense that they were not a reasonably foreseeable consequence of the defenders’ negligence. For my part, I would regard these costs as reasonably foreseeable by the wrongdoer. But in the field of economic loss foreseeability is not the only criterion that must be satisfied. There must be a relationship of proximity between the negligence and the loss which is said to have been caused by it and the attachment of liability for the harm must be fair, just and reasonable. The mere fact that it was reasonably foreseeable that the pursuers would have to pay for the costs of rearing their child does not mean that they have incurred a loss of the kind which is recoverable. In Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd at p 25 Lord Fraser of Tullybelton, delivering the judgment of the Board, said: ‘Their Lordships consider that some limit or control mechanism has to be imposed upon the liability of a wrongdoer towards those who have suffered economic
damage in consequence of his negligence.’ This theme was developed and applied in Caparo Industries plc v Dickman. In that case Lord Bridge of Harwich said at pp 617H–618A, after referring to a series of cases since Anns v Merton London Borough Council: ‘What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.’ Lord Oliver of Aylmerton made the same point in his speech at p 632D and at p 633A–B he went on to say this: ‘…the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. Those limits have been found by the requirement of what has been called a “relationship of proximity” between plaintiff and defendant and by the imposition of a further requirement that the attachment of liability for harm which has occurred be “just and reasonable”.’ At p 651E–F he offered this further guidance: ‘…“proximity” in cases such as this is an expression used not necessarily as indicating literally “closeness” in a physical or metaphorical sense but merely as a convenient label to describe circumstances from which the law will attribute a duty of care. It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained.’ These observations were taken a step further in Murphy v Brentwood District Council. In the course of his discussion of the relevant principles Lord Oliver said this at pp 486H–487C: ‘In the straightforward case of the direct infliction of physical injury by the act of the plaintiff there is, indeed, no need to look beyond the foreseeability by the defendant of the result in order to establish that he is in a “proximate” relationship with the plaintiff….The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not. If it is to be categorised as wrongful it is necessary to find some factor beyond the mere occurrence of the loss and the fact that its occurrence could be foreseen. Thus the categorisation of damage as economic serves at least the useful purpose of indicating that something more is required….’ In Frost v Chief Constable of South Yorkshire Police at p 492D Lord Steyn said that the contours of tort law are now profoundly affected by distinctions between different kinds of damage or harm. In that case a distinction was drawn between psychiatric harm and physical injury. The wide scope of potential liability for pure psychiatric harm, and the fact that it might result in a burden of liability on defendants to so many people which was disproportionate to their tortious conduct, made it necessary for a solution to be found on what were essentially pragmatic grounds. Lord Hoffmann at pp 503H–504C contrasted the ideal of a system of corrective justice with the imperfect way the law of torts works in practice—distributive justice, which gives generous compensation to some people but leaves, for various reasons, the vast majority of cases of injury and disability uncompensated. At pp 510E–511C he explained that the solution
which he favoured in that case, placing the police in the same position as to pure psychiatric harm as the bereaved relatives, had been informed by considerations of distributive justice. It was a practical attempt to preserve the general perception of the law as a system of rules which is fair as between one citizen and another. How is one to apply these very general, and necessarily imprecise, principles to the present case? Their Lordships of the Second Division gave effect to the traditional civilian system of corrective justice, which provides a remedy in damages wherever it can be demonstrated that there has been a concurrence of damnum and injuria. For the reasons which I have outlined, I do not think that this approach can be reconciled with the fact that the loss claimed under this head is pure economic loss and with recent authorities in this House, which counsel on both sides were right to accept are now part of Scots law, as to the requirements which must be satisfied if damages for loss of that kind are to be recoverable. There must be a relationship of proximity, and the attachment of liability for the harm must be just, fair and reasonable. I do not wish to place undue emphasis on the fact that the pursuers chose to keep the child. The fact is, as senior counsel for the pursuers so ably demonstrated, they had no other choice. The law is not so harsh as to drive parents, in the very difficult situation in which the pursuers found themselves, to the alternatives of abortion or placing for adoption, which, for obvious reasons, they would have found quite unacceptable. Nevertheless they are now bringing the child up within the family. There are benefits in this arrangement as well as costs. In the short term there is the pleasure which a child gives in return for the love and care which she receives during infancy. In the longer term there is the mutual relationship of support and affection which will continue well beyond the ending of the period of her childhood. In my opinion it would not be fair, just or reasonable, in any assessment of the loss caused by the birth of the child, to leave these benefits out of account. Otherwise the pursuers would be paid far too much. They would be relieved of the cost of rearing the child. They would not be giving anything back to the wrongdoer for the benefits. But the value which is to be attached to these benefits is incalculable. The costs can be calculated but the benefits, which in fairness must be set against them, cannot. The logical conclusion, as a matter of law, is that the costs to the pursuers of meeting their obligations to the child during her childhood are not recoverable as damages. It cannot be established that, overall and in the long run, these costs will exceed the value of the benefits. This is economic loss of a kind which must be held to fall outside the ambit of the duty of care which was owed to the pursuers by the persons who carried out the procedures in the hospital and the laboratory. For these reasons, which I believe are very similar to those which Lord Steyn has given in his judgment. I would allow the appeal on this part of the pursuers’ claim. Conclusion I would allow the appeal as to that part of the pursuers’ claim which relates to the costs of caring for, feeding and clothing and maintaining the child and of her layette—the child rearing costs. The pursuers’ averments relating to those matters, which go to make up the sum sued for in the first conclusion, should not be admitted to probation. I would dismiss the appeal as to the
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