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McFarlane v Tayside Health Board (Second Division)Case Report
McFARLANE v TAYSIDE HEALTH BOARD
GEORGE MCFARLANE AND MRS LAURA HELEN MCFARLANE, Pursuers (Reclaimers)— Smith, QC, Woolman Damages—Assessment of damages—Reparation—Negligence—Medical negligence—Couple receiving negligent advice regarding safety of resumption of sexual relations after husband having vasectomy—Wife falling pregnant and giving birth to healthy child—Whether personal injury—Solatium—Whether damages recoverable for pain of pregnancy and labour—Whether parents could claim for cost of bringing up child—Whether public interest requirements militated against recoverability of damages—Averments—Relevancy In 1989 a couple agreed that they would have no more children. The husband thereafter went through a vasectomy operation. After the operation, the couple were advised that they should practise contraception for a period. Later the defenders informed them 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 healthy child. The couple then sued the defenders for having given them negligent advice. They claimed damages for the financial costs of caring for and bringing up the child. The wife also claimed damages for the pain of pregnancy and labour. 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 parent might have suffered. The couple reclaimed. 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 medical negligence. The averments of parties appear sufficiently from the opinions of their Lordships in the Inner House.
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. Cases referred to: Allen v Bloomsbury Health Authority [1993] 1 All ER 651 The reclaiming motion called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Allanbridge for a hearing on the summar roll. At advising, on 9 January 1998— LORD JUSTICE-CLERK (Cullen)—In this action the pursuers aver that in 1989 they agreed that they would have no more children and that for this purpose the first pursuer would undergo a vasectomy operation, which was carried out on him on 16 October 1989 at one of the defenders’ hospitals. Because of the risk that there may be spontaneous recanalisation of the divided vas, patients who have undergone such an operation are advised to practise contraception for a period during which samples of sperm are analysed in order to determine whether motile sperm are still present. Having provided certain samples of sperm the first pursuer was informed by the defenders in a letter dated 24 March 1990 that his sperm counts were negative and that he might dispense with contraceptive precautions. The pursuers aver that as a result of this advice and in reliance on it they dispensed with such precautions. However, the second pursuer became pregnant and on 6 May 1992 gave birth to a daughter, who was their fifth child. They aver that the advice which was given arose from an administrative error on the part of the defenders. They set out a number of respects in which the defenders were at fault, but for present purposes the significant averment is that the defenders failed to carry out the following duty, namely ‘not to advise the first pursuer that he could dispense with contraceptive precautions when the defenders had not received two samples of sperm which tested negative for the presence of motile sperm.’ The pursuers claim damages under two heads. The first is the sum of £10,000, which is claimed by the second pursuer upon averments that she had to undergo
the pregnancy and confinement, along with the pain and distress of the delivery of the child. The second claim is in the sum of £100,000, which is claimed by both pursuers and relates to the additional costs in caring for, feeding, clothing and maintaining the child, together with the expenses incurred in providing a layette. No claim is made in respect of any care or trouble undergone by the pursuers in the course of bringing up the child. In the Outer House the defenders challenged the relevancy of the pursuers’ averments on procedure roll. The Lord Ordinary sustained their plea to the relevancy and dismissed the action, on the basis that as a matter of principle damages were not recoverable. The Lord Ordinary was also addressed upon the question whether an award of damages would be contrary to public policy. Although he made certain observations in regard to this objection to the pursuers’ claims he did not sustain the defenders’ plea that on this ground they were entitled to absolvitor. In considering the questions which are raised by the pursuers’ claims it is convenient for me to begin by setting out the defenders’ criticisms of the relevancy of the pursuers’ case, as they were advanced during the hearing of the pursuers’ reclaiming motion. As regards the second pursuer’s claim in respect of pregnancy and childbirth, the defenders did not dispute that there were relevant averments of facts from which it could be inferred that it was a foreseeable consequence of the allegedly negligent advice that the second pursuer would become pregnant and give birth, ie through the parties not using contraception by reason of the advice which had been given. The contention for the defenders was that her pregnancy and childbirth could not constitute personal injury sustained by her, and accordingly could not sound in damages. They were natural processes. It could have been different if the negligence of the defenders’ doctor had caused her to suffer ‘medical harm’ in the course of pregnancy or childbirth. However, there was no suggestion of this. It was an uncomplicated pregnancy at the end of which she was delivered of a normal, healthy baby. In any event any pain and suffering involved was cancelled out by the joy and satisfaction of the child being born. On this aspect of the case the Lord Ordinary’s view was that a pregnancy and childbirth occurring in the circumstances of the present case could not be equiparated with a physical injury, on the ground that these were natural processes resulting in a happy outcome. In any event even if they could be regarded as an ‘injury’, he did not consider that that was an injury for which damages were recoverable. To do so would be to ignore the existence of the child and the happiness which the second pursuer would derive from her existence. As regards the pursuers’ claim in respect of the cost of rearing the child, there was, with one exception, no attack on this claim as being too remote. The defenders did not maintain that the pursuers should have sought an abortion or should have had the child adopted. They did not dispute that couples such as the pursuers had financial considerations in mind in seeking to limit the size of their families, or that, if the pursuers kept the child, it was foreseeable that they would incur expenditure in rearing this additional member of the family. For this purpose there was no suggestion that the second pursuer should be treated as being in a different position from the first pursuer. However, the defenders maintained that the cause of the expenditure on the additional child
was not the allegedly negligent advice but the love and affection of the pursuers towards her. It was true that but for the alleged negligence the child would not have existed. However, the reason for, and the quantification of, the expenditure could not be divorced from the expenditure itself. It was artificial for the pursuers to maintain that the advice was the proximate cause of the expenditure. It was not correct to say that the pursuers had no choice in the matter. The Lord Ordinary was not persuaded by this argument of the defenders when it was advanced before him and took the view that it could be considered only after inquiry. The main argument which was advanced by the defenders against the pursuers’ claim was that they had made no relevant averments of loss. First, the defenders maintained that the pursuers required to show that they had sustained ‘harm’. However, a child was not a ‘harm’. Her birth was the outcome of a natural process. Human life was superior in the hierarchy of values. The law should not be so inflexible as not to recognise this. If the child was not ‘harm’, money spent on her was not harm. Secondly, the defenders argued that in any event the birth of the child could not be regarded as the occasion of loss, although it was not disputed that the child was the occasion of expenditure, and there was no suggestion that the expenditure was too speculative in nature to be susceptible of calculation. Damages could be awarded to compensate for wasted expenditure, to mitigate a harm or loss which had been sustained or to make up for the loss of a gain. In the present case it was unrealistic to divorce the expenditure from the child’s existence, which was the reason for that expenditure. Money spent on the child was not wasted. It was spent on nourishing an asset. Thirdly, the defenders pointed to the benefit which the pursuers derived and would derive from all that the child represented to them. They could not be put into the position in which they would have been had the birth not taken place. If damages were awarded they would be receiving a double benefit. It was unrealistic to ignore that benefit which was independent of the attitude of particular parents. However, the joy of having a healthy child could not be quantified. It was artificial to try to fit it into conventional damages. That would be like placing a value on a child’s life. No accounting exercise was either appropriate or sufficient. Thus the child’s birth involved no detriment to the pursuers. In any event there was no net loss after account was taken of the benefit of the child by way of ‘set off’. That is to say, the value of the child was so immeasurably great that it outweighed all costs. If it were thought that the benefit could amount to less than the cost, it would mean that life was regarded as of less value than purely economic considerations. There was no logic in restricting the relevance of benefit to one head of claim; or of separating the child from the natural processes which led to her birth. The Lord Ordinary took the view that the purpose of damages in effecting restitutio in integrum could not be achieved if the pursuers received the benefits of both the damages and the child. He stated: ‘I consider that the allowance of full recovery of damages without any deduction for the benefit of the child is unsound.’ However, he was also of the opinion that the case should be decided on what he described as ‘the principle that the privilege of being a parent is immeasurable in monetary terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in
consequence of their 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 he went on to express the view that ‘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 would be to give the pursuers more than compensation’. In approaching the defenders’ submissions it is in my opinion important to see how far the well established principles of the law relating to reparation can be applied to the pursuers’ claim, and with what results. The right to raise an action of damages for a quasi-delict depends on the concurrence of iniuria with damnum. The first refers to the doing of a wrong, and the second refers to the prejudice suffered by the pursuer in respect of some interest which is recognised by law. Some interval of time may elapse between the iniuria and damnum. If and when damnum occurs as a result of iniuria, it is possible to make a quantification of the claim of damages, although with the passage of time thereafter this can be done with greater accuracy. See Dunlop v McGowans, per Lord Keith of Kinkel at p 81 and pp 132–133. The damnum and the consequences flowing from it over the course of time are frequently referred to in practice as ‘loss, injury and damage’. When the pursuers’ case is examined in this way it can be seen that, according to their submissions, the concurrence of iniuria and damnum took place when the second pursuer conceived as a result of the pursuers acting to their disadvantage in reliance on the allegedly negligent advice. Accordingly the pursuers’ contention was that the subject matter of their claims represented the realisation of the damnum that befell them when she conceived. Two distinct interests on the part of the pursuers were then adversely affected. The first was the second pursuer’s interest in her bodily integrity, and hence the claim was concerned with the physical consequences for the second pursuer. The second was the pecuniary interest of both pursuers. The purpose of their claims was in order to place them in the same position as if the negligent advice had not been given, and hence conception had not occurred. In the course of the discussion of the reclaiming motion counsel for the defenders accepted that their criticism of the pursuers’ claims could be described by saying that the present case was one of iniuria absque damno. However, it may be noted in passing that senior counsel for the defenders submitted, in line with his contention that the birth of a child to the pursuers was not a harmful event, that there was no duty on the part of the defenders to take steps to avoid acting in such a way as to lead to a child being born to them. However, this is another way of stating the effect of the defenders’ contention that there was, and indeed could be, no damnum. At this point it seems to me to be necessary to examine more closely some of the terminology used by the defenders in their criticism of the pursuers’ claims. Their contention is that the birth of a child is not a ‘harm’. No doubt the same statement of could be made in regard to the conception. At first sight it may appear to be an affront to human feelings and values to recognise a claim of damages which is said to rest on that basis. In the present case the Lord Ordinary categories the question as whether the law ‘allows damages to be recovered for the birth of a normal, healthy and loved child’ following upon ‘a normal and uneventful pregnancy’. I am not persuaded that this is an accurate description of the nature of the pursuers’ claims. The pursuers do not claim damages on the basis that the child was in herself a harm to them. As I understand their
claims, they seek damages for the physical and pecuniary consequences brought in train by the second pursuer’s pregnancy and childbirth. In CES v Superclinics (Australia) Pty Ltd Kirby ACJ said, in reference to the parents' pecuniary claim in an action based on the negligent failure to diagnose pregnancy: ‘Nor is the child’s existence the damage in the action. The birth of the child is simply the occasion by which the negligence of the respondents manifests itself in the economic injury to the parents. It is the economic damage which is the principal unwanted element, rather than the birth or existence of the child as such.’ Turning then to the physical effects of pregnancy and childbirth on the second pursuer, I am unable to accept the defenders’ argument that they should be regarded simply as natural processes. The true complaint is not a complaint against nature but that these natural processes were not inhibited as they should have been. They involved effects which were unwanted, unlike the situation in which a couple are seeking to have a child or at least are content to let matters take their natural course. The pursuers’ case is that the defenders’ negligent advice inflicted these physical effects on the second pursuer, and they manifested themselves in debility, pain, distress and damage to her body. For present purposes I do not consider it as necessary that these effects should be categorised as personal injury, any more than the conception itself. The question is whether they are the manifestations of damnum to an interest of the second pursuer which is recognised by law. I consider there is no sound reason for thinking that there is no such recognition in the law of Scotland. A number of English decisions were drawn to our attention in this context. They are to the same effect, the earliest being Sciuriaga v Powell and the latest being Allen v Bloomsbury Health Authority. The contention that a claim for ante-natal pain and suffering should be extinguished by the happiness of the post-natal events was rejected, and in my view convincingly, by the Court of Appeal in Thake v Maurice. I turn then to consider the pursuers’ claims in respect of the cost of rearing their additional child. As I have already noted, this is presented as a claim in respect of the adverse effect on an interest of both pursuers which is distinct from the second pursuer’s interest in regard to her bodily integrity, but has this in common with it in the sense that both represent the realisation of the damnum occurring at the point of conception. The distinct nature of the pursuers’ claim is plain in the case of the first pursuer. In the case of the second pursuer I do not regard her claim as in some way representing the consequence of the pain and suffering experienced in pregnancy and childbirth. The first point which I consider is whether the costs of rearing should as a matter of relevancy be regarded as not having been caused by the defenders’ alleged negligence. If the defenders are right this must be because such costs could not have been due to their negligence. I am wholly unpersuaded by the soundness of this contention. Why should the fact that the parents have kept the child not be regarded as a direct or natural consequence of the conception, even if that conception was unplanned or unwanted? There is no suggestion whatever that the pursuers took a course of action which was unforeseeable or unreasonable. In these circumstances I am unable to agree that the pursuers in choosing to keep the child broke the chain of causation. On this point I am content to accept the reasoning given by Slade LJ in Emeh v Kensington and Chelsea and Westminster Area Health Authority at pp 1023–1024, in regard to the suggestion in that case that the plaintiff had broken the chain of causation by failing to have an abortion.
It is perhaps unnecessary to point out that in any event parents such as the pursuers have a legal obligation to support their children (see sec 1 of the Family Law (Scotland) Act 1985, and sec 1 of the Children (Scotland) Act 1995). That obligation, as counsel for the pursuers pointed out, transcends any question as to the quality of the relationship between parent and child in the particular case. No question of failure to support arises in the present case, but it is as well to remember that this obligation could have been invoked should the need to do so have arisen. The defenders’ main submission, as I have already noted, was that the pursuers have not sustained and will not sustain any pecuniary loss which would sound in damages as a result of the conception and consequent birth of the child. The pursuers are offering to prove that the birth of an additional child will require them to make additional expenditure in rearing the family. It may well be that a parent would not regard money spent on rearing a child as wasted expenditure. However, this is not because parents expend money in rearing their children on the understanding that they obtain a return for their money but because the need to make expenditure arises from the normal relationship of parent and child and the sense of responsibility which that relationship involves. The essence of the pursuers’ claim, as I understand it, is that as a result of the defenders’ negligence they required to make expenditure which they would not otherwise have done. They appeal to the general principle, as enunciated in the speech of Lord Blackburn in Livingstone v Rawyards Coal Co Ltd at p 7: ‘I do not think there is any difference of opinion as to its being a general rule that where any injury is to be compensated by damages, in settling the sum of money to be given for reparation or damages, you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’ For these reasons I am unable to accept the defenders’ argument that by reason of there being ‘no wasted expenditure’, the pursuers cannot demonstrate that they have sustained a loss. In considering the defenders’ argument that the birth, and hence the cost of rearing, the child could not be regarded as loss in view of the incalculably great benefit which a child represents, it is important, in my view, to endeavour to draw a clear line between the application of principle and the imposition of a policy decision as to what the court should entertain as a loss. At the outset it appears to me to be unwarranted to assume that a child is a blessing in every case. The birth of a child may occasion financial hardship for all members of the family. As counsel for the pursuers observed, what may be a joy in one case may be a burden or even a disaster in others. Where the parents are separated the obligation of support may be divorced from any benefit which a parent may derive from the company of the child. Yet the defenders’ contention is that regardless of circumstances and no matter how great be the expenditure which may be reasonably necessary, the benefit of a child is so immeasurably great that it exceeds any monetary claim which might otherwise arise. More fundamentally it seems to me that the defenders’ argument is driven by an overriding idea as to what the law should not regard as a loss. The proposition that the blessing of a child is an overriding benefit is one sided. It ignores the fact that couples such as the pursuers can and do seek sterilisation and rely on
its effectiveness precisely in order to avoid the additional expenditure which the birth of another child will entail. No doubt if a child is conceived and born they will nourish and support the child as good parents should, but is there a reason in principle why they should not be entitled to make a claim in respect of the expenditure which the negligence of others has caused them to incur? As I have already noted, the Lord Ordinary preferred to approach this question by treating the benefit of the child as a deduction which extinguished the claim for recovery of costs by way of damages. He did so by applying what he described as ‘the correct principle’, which was ‘that the value of a child should be held to outweigh all such costs’. I am not convinced that this is a principle recognised in Scots law. It is remarkable that in the present case both parties for their own purposes relied on the point that the benefits of a child were incapable of being calculated. The defenders relied on that point in order to show that a court should not embark upon such an exercise. The pursuers did so in order to show that the whole concept of deducting the benefit was misconceived, and hence that the value of the benefit should be ignored. In my view it is of no consequence to the pursuers’ pecuniary claim that they derive benefits of an intangible kind from the existence of their child. The law has never sought to place a figure on the value which the existence of one person represents to another, let alone to set this off against a claim for patrimonial loss. It is not uncommon to encounter cases in which the occurrence of an accident has brought in train not only loss of earnings for the pursuer but also an incidental improvement in his enjoyment of life, but the latter is not treated as deductible from that loss. In the result, when the application of legal principle is distinguished from what is treated as axiomatic, the benefits of the child do not provide an answer to the claim for the costs of her upbringing. Respect for human life should not be allowed to obscure the fact that couples who have decided that they cannot afford to raise another child have been left to find away to do so. As Peter Pain J observed in Thake v Maurice at p 666: ‘A healthy baby is so lovely a creature that I can well understand the reaction of one who asks: how could its birth possibly give rise to an action for damages? But every baby has a belly to be filled and a body to be clothed. The law relating to damages is concerned with reparation in money terms and this is what is needed for the maintenance of a baby.’ For these reasons I am of opinion that the defenders’ submission that the pursuers have sustained no loss, whether or not it is described as a net loss, is unfounded. It remains for me to consider whether public policy is such as to exclude an award of damages to the pursuers in respect of either or both of their claims. I am not convinced that this would provide a proper basis for the decision which this court has to arrive at. In Emeh v Kensington and Chelsea and Westminster Area Health Authority Waller LJ at pp 1021–1022 referred to the following passage of Lord Scarman in McLoughlin v O’Brian at p 430: ‘The distinguishing feature of the common law is this judicial development and formation of principle. Policy considerations will have to be weighed: but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court's function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament. Here lies the true role of the two law-making institutions in our constitution. By concentrating on principle the judges can keep the common law alive, flexible
and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.’ Quite apart from these considerations, it is evident that there are policy considerations on both sides of the argument. These have been fully discussed in a number of the decisions in England and in other jurisdictions. A number of the considerations have already featured in the discussion of principle. On the one hand is the argument that the rejection of the claim will vindicate the value of human life and the blessings which a child can bring to his or her parents. It avoids the risk of an undue temptation to seek abortion and the risk that a child in later life might discover that he or she was ‘unwanted’. On the other hand there is the argument that these risks are overstated, that a child is not always a blessing, that the ability of couples to choose to limit the size of their family, in accordance with lawful and widely available means of contraception, should not be ignored, and that damages may help to alleviate hardship as well as meeting need. The relative strength of these arguments is not, in my view, a question on which it is for this court to reach a judgment. On any view I am not persuaded that there is any overriding consideration of public policy which the awarding of damages to the pursuers would contravene. In these circumstances I move your Lordships to allow the reclaiming motion, to recall the Lord Ordinary’s interlocutor, repel the defenders’ second plea in law, and quoad ultra allow to the parties a proof before answer. LORD McCLUSKEY—Your Lordship in the chair has identified the questions which this case poses. The precise answers to these questions are not to be found in any statutory provision or in any case law which is binding upon this court. Similar issues have arisen and have been resolved in various other jurisdictions in both common law and civil law countries. The answers given in other jurisdictions differ greatly one from another and they are commonly arrived at by distinct routes. The reports of the cases from other jurisdictions to which we have been referred contain a whole rainbow of reasons which are prayed in aid to support results which are sometimes diametrically opposed to each other; and judges, in explaining their reasoning, have found support or inspiration in the Bible, in literature, in public policy and in what they perceive to be the public interest. In my opinion, instructive though it is to study the forensic reasoning of judges from other jurisdictions in deciding similar cases, the correct approach for this court to take is to identify the principles that we in Scotland have traditionally applied in cases where persons have sought reparation in the form of damages as compensation for loss said to have been incurred as a direct consequence of the negligence of others; and to see if those recognised principles apply to the facts of the present case. Some support for this approach may, I think, be found in the speech of Lord Reid in Dorset Yacht Co v Home Office at pp 1026–1027: ‘In later years there has been the steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v Stevenson may be regarded as a milestone, and the well-known passage in Lord Atkin’s speech should I think
be regarded as a statement of principle…where negligence is involved the tendency has been to apply principles analogous to those stated by Lord Atkin: cf Hedley Byrne & Co Ltd v Heller & Partners Ltd.’ Your Lordship in the chair has summarised the pursuers’ averments of fact upon which we must approach the issues here. As that summary makes clear, the pursuers claim to have sustained loss as a result of their receiving and acting upon negligent advice for which the defenders are responsible. However, no question is raised here of the kind addressed in such cases as Hedley Byrne & Co Ltd v Heller & Partners Ltd, Caparo Industries plc v Dickman and Goodwill v British Pregnancy Advisory Service; see also Malcolm v Dickson. In those cases the central issue was whether or not the alleged wrongdoer owed any duty of care to the claimant. In the instant case it is undisputed and indisputable that in giving the first named pursuer advice about his fertility the defenders owed a duty of care in respect of that advice both to him and to his wife, the second named pursuer. Nor (with the possible exception of a particular argument about causation, which the Lord Ordinary, in rejecting it, described as ‘a secondary argument’) did the defenders argue that the loss in respect of which the pursuers are claiming was too remote. Your Lordship in the chair also rejects that argument for reasons with which I agree; I need not discuss it further. I can therefore approach the main issues raised by this case without having to consider any of the problems of remoteness. In the ordinary case in which a pursuer seeks damages as money reparation from a defender, the pursuer makes a relevant case if he avers (1) that the defenders owed him a duty of care, (2) that the defenders were in breach of that duty, and (3) that the breach of duty caused the pursuer to sustain loss, injury or damage. It would be possible to cite numerous authorities for this summary, but it is not in dispute that it is accurate. All that is in dispute at this stage, when the pursuers’ averments are assumed to be true, is whether or not the pursuers have relevantly averred that the defenders’ breach of the duties they owed to the pursuers caused the pursuers to suffer loss, injury or damage. Thus the Lord Ordinary was right to say: ‘This case can and should be decided on an analysis of the concept of loss’. It is, nonetheless, appropriate to begin that analysis by observing, as was made clear in cases such as Watson v Fram Reinforced Concrete Co (Scotland) Ltd and Dunlop v McGowans, that in Scotland, the obligation to make reparation arises when first there is a concurrence of iniuria and damnum. ‘Iniuria’ does not mean injury in the ordinary sense of a material prejudice to an interest that the law recognises as a legal interest. When there is concurrence of iniuria and damnum the person whose legal right has been invaded with resultant loss to him has a right to seek to recover money reparation for that loss from the wrongdoer. In Dunlop v McGowans at p 33 and p 39 of the Inner House report, speaking of the phrase, ‘loss, injury or damage’ which appeared in sec 11(1) of the Prescription and Limitation (Scotland) Act 1973, the Lord Justice-Clerk (Wheatley) said: ‘It covers all kind of damnum. As soon as any form of loss, injury or damage occurs following a breach of legal duty or obligation (the iniuria) the concurrence takes place.’ Although the term ‘loss, injury or damage’ there being considered was a statutory term, it was one which derived from the ordinary law of reparation. No one would now think of challenging what that case also made clear, that items of loss which only subsequently emerge or cannot be properly quantified
until a much later date are nevertheless appropriately included within the one claim for reparation, provided always that they ‘are merely the natural and probable consequences of that breach [of obligation] and the initial loss’, per Lord Wheatley at p 34 (p 39). His Lordship concluded by saying that the pursuer has ‘a once for all claim for reparation for all the loss, injury and/or damage which he has sustained as a result of the defender's failure in duty towards him’. Lord Keith of Kinkel expressed the same point in speaking of ‘a single and indivisible obligation’ at p 81; p 132 of the House of Lords report. The next matter which I think it may be useful to consider is to identify the right or rights said to have been invaded. If the first named pursuer was to receive skilled advice as to his fertility it was his right not to receive advice that, as a consequence of the negligence of those giving it, was materially inaccurate and misleading. That right was the counterpart of the defenders’ duty to exercise reasonable care not to give inaccurate and misleading advice. So if the defenders negligently and inaccurately informed him that he could no longer father a child, when they were or should have been aware that he was able to do so, they were in breach of a common law obligation to him. But his right not to receive negligent, inaccurate and misleading advice as to his fertility was part of and very closely bound up with his related right not to impregnate his wife if he chose not to do so. The defenders’ duty to take reasonable care to give a husband accurate advice about his fertility was a duty which was also owed to the second named pursuer, on the principles explained in Hedley Byrne & Co Ltd v Heller & Partners Ltd. Her right not to be made pregnant by her husband without her knowing consent was the corresponding right in the second named pursuer. It is clear that an initial breach of obligation not to give negligent advice about fertility might lead directly, naturally and foreseeably to a breach of the right of the married couple not to have a child at a time and in circumstances when they had made a deliberate choice not to have a child. The right of a married couple to have sexual relations with each other without any likelihood that those relations will result in a pregnancy is a right which the law recognises; a married couple are free to choose not to run the risk of pregnancy whether they adopt artificial means of contraception or use natural means of contraception or even abstain altogether from engaging in sexual intercourse. No one in this case disputes the right of these pursuers to choose to have sexual intercourse which was not attended by any likelihood that the first named pursuer would impregnate the second named pursuer. The breach of duty here, taking the pursuers’ averments pro veritate, led to certain averred results. Obviously not all the results happened at once. The pursuers apparently dispensed with contraceptive precautions in the light of the advice given and continued to have sexual relations with each other in the belief that there was no prospect that the second named pursuer would conceive. In my opinion there was no damnum to either of them in their willingly having unprotected sexual intercourse; I can detect nothing resembling damnum at that stage even although it can properly be said that it was as a result of the wrongful advice that the intercourse was unprotected, ie no contraceptive measures were taken. But, in consequence of their having unprotected sexual intercourse, the second named pursuer, at some stage, conceived and became pregnant. The question which then arises is: did that conception, seen in the light of its sequelae, constitute damnum in the eyes of the law? The pursuers aver what the sequelae were. It is averred: ‘The second named pursuer became pregnant and had to
undergo a pregnancy and confinement and the pain and distress of the delivery of the pursuers’ said child, Catherine.’ Secondly, certain financial consequences are also said to have arisen to both pursuers as a result of the birth of the child. These consequences include moving to a larger house and thus having to undertake a larger mortgage. They include loss of earnings by the second named pursuer and additional costs in caring for, feeding and clothing and maintaining the said child. It is also specifically averred that, ‘the pursuers incurred expenses in the pursuers’ layette’. Thus the items claimed include items of financial expense and outlay already incurred as well as projected financial loss, in addition to the physical consequences of pregnancy, confinement and delivery. In the light of these averments of items of loss flowing naturally and directly from the conception I would have great difficulty in understanding why the law should not regard the conception as being damnum. I have not found it easy to choose an English word which is satisfactory to express the meaning of ‘damnum’ in the special circumstances of this type of case. The word ‘injury’ is closely associated with physical injury or personal injuries and might give a misleading slant to the necessary analysis; but damnum covers matters well beyond the field of physical injuries. The word ‘harm’ was advanced during the debate as a possibility. I do not think it is apt for the present type of case either. It is true that certain of the consequences averred here such as the pain and distress of the delivery of the child bear a certain resemblance to physical injury in the ordinary sense; but, again, I do not think that, in the ordinary case of consensual intercourse, anyone would think of describing pregnancy, confinement and delivery as constituting an injury. Furthermore the word ‘injury’ is very closely connected with the act which causes the loss. I prefer to use the word ‘damnum’, which lawyers commonly use to describe some material prejudice to an interest which the law recognises as a legal interest. It is properly used in Scots law to include an event or happening causing loss that does not have the character of physical injury or damage. Such loss flowing from the prejudice may be measurable directly in money terms, for example a loss of earnings. It may be able to be calculated and expressed in money terms, for example prejudice to earning capacity. It may bear no relationship whatsoever to money, but nonetheless a money award may be made to mark the prejudice and afford such redress as the law can for a loss which cannot be remedied by the restoration of what has been lost, such, for example, as the loss of a limb or of an eye or even of a life. As Lord Neaves said in Auld v Sharp at p 199: ‘Money is the universal solvent; everything can be turned into money that is either a gain or a loss; money is asked and damages are due for reparation of every possible suffering and injury’. It is only in a notional sense that, in personal reparation cases, the purpose of damages is the effect restitutio in integrum: there can be no restitutio in respect of a lost life. But money damages can be paid as reparation for any such loss. Accordingly, I have no difficulty at all with the idea that if, as a result of some act or omission which the law characterises as quasi-delictual, a woman becomes pregnant then she suffers damnum and is entitled at once to claim reparation in money for the prejudicial effects of the iniuria done to her. Even if she were to decide to obtain an early abortion, and did so, it could hardly be denied that her physical integrity and wellbeing had been materially prejudiced by the
wrongful act which led to her becoming pregnant. The prejudice must, I consider, be regarded as damnum in the light of our recognised principles. The Lord Ordinary’s analysis of the main issue is very clearly expressed in his opinion. I hope I do that opinion no injustice if I try to summarise the reasoning in support of that analysis and omit the detailed discussion of the submissions made and the cases cited. The Lord Ordinary says that a pregnancy occurring in the circumstances averred in this case cannot be equiparated with a physical injury or described as a personal injury, given that the physical effects of pregnancy and delivery are natural processes resulting in a happy outcome; but even if pregnancy and labour fell to be regarded as an injury no damages are recoverable because the natural suffering cannot be separated from, and is wholly outweighed by, the outcome, namely the creation of life; so the mother’s claim in respect of the suffering related to the pregnancy and delivery fails. The financial loss claim he also considers must fail because the benefits intrinsic in the existence of a healthy child must be taken into account and must outweigh any financial loss; and that is because the privilege of being a parent is immeasurably high. Thus, in respect of both heads of claim, the enormous benefit consisting of the normal birth of a healthy child must always outweigh any loss to the parents, however direct and calculable; the incalculably high value to be placed on the child’s existence is, for the Lord Ordinary, ‘the central point’. I consider that the Lord Ordinary’s discussion of this matter is flawed to some extent by the semantic difficulties, particularly by those flowing from his use of the word ‘injury’. What he says (at p 214H–I) is: ‘In my opinion, the second pursuer’s claim raises two separate questions: whether the conception, pregnancy and labour constitute an injury at all; and, if so, whether in consequence the second pursuer has sustained any loss. In my view, a pregnancy occurring in the circumstances of this case cannot be equiparated with a physical injury. Pregnancy causes discomfort, pain and sickness. Labour is acutely painful and distressing. But these are natural processes resulting in a happy outcome. They are the natural sequelae of conception and that is an event that in this case can hardly be considered as a physical injury per se. I do not consider that a normal pregnancy, even if undesired, and the labour with which it ends can properly be described as a personal injury.’ But there is, in my view, an unwarranted slip in the reasoning from absence of ‘injury’ to absence of ‘physical injury’, and thence to absence of loss. There was undoubtedly an invasion of the second pursuer’s physical integrity when she became pregnant against her will, in circumstances and at a time when she and her husband had deliberately chosen to avoid a pregnancy. That invasion of the second pursuer’s physical integrity happened when she conceived. No doubt the physical process that followed can be said to have led to ‘a happy outcome’ as in the present case; but it is useful, for the purposes of the analysis, to consider whether or not there could be said to be damnum in a case in which the married woman having become pregnant did not give birth to a healthy child and return to normal health herself. The pregnant woman might miscarry. The child might be stillborn. The woman might die as a result of the pregnancy or in childbirth. She might suffer a hormonal imbalance or other natural change that seriously impaired her health. All of such outcomes are equally ‘natural’ sequelae of conception because it is ‘natural’ processes that produce the misfortunes as well as the happy outcomes. In any such case where the woman suffered a natural misfortune of the kind described and did not give birth to a
normal healthy child there would be no ‘happy outcome’. But it would, in my opinion, be quite wrong to suggest that she had not suffered any damnum arising from the conception in the light of its sequelae. In her case, the loss is obvious and is of a character for which reparation can be made by way of money damages; our courts award money damages daily as reparation for loss in the form of pain, suffering, distress and ill health. Accordingly, it can be said that in every case, whether or not there is a ‘happy outcome’, the pregnant woman suffers material bodily changes which she wished to avoid. It is unnecessary to describe these because, although they will vary from case to case, there are certain common features which are well understood. 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. There is already damnum even before the outcome, happy or otherwise, is known. The law of reparation does not require injury in the ordinary sense of physical or personal injury; all that it requires is a material prejudice to an interest (whether it is of a patrimonial character or not) which the law allows a person to vindicate. When the Lord Ordinary turns to consider the possibility that pregnancy and labour are to be regarded as an injury in a case such as this he says (p 214I–K): In any event, even if pregnancy and labour can be regarded as an injury in a case such as this, I do not consider that that is an injury for which damages are recoverable. The court should not, for the purposes of damages, dissociate pregnancy and labour from their outcome. To do that is to ignore the existence of the child and the happiness that the second pursuer has had and will continue to have from her existence. Since counsel for the pursuers accepts that these benefits have come to the second pursuer, I cannot see how they can either be disregarded altogether or be held not to outweigh the natural pain and discomfort inherent in the creation of life. I would therefore exclude the second pursuer’s claim so far as it relates to her undergoing “pregnancy and confinement and the pain and distress of the delivery of [the child]”;.’ I do not consider that the word ‘should’ (from the second sentence) is appropriate here. The task of the court, as the Lord Ordinary has acknowledged, is to make a legal analysis of the concept of loss to see how the concept applies to the special facts of an unwanted pregnancy. The court has to ask not what the law should be, but what it is. On this branch of the case, however, I would agree with the Lord Ordinary that even if a couple have not planned a pregnancy they may well derive priceless joy, happiness and benefit from the birth and development of their child. But even such joy, happiness and benefit are unlikely to come entirely unalloyed; they are bound to come with some prejudice to legitimate interests of the parents, both patrimonial and otherwise. As I have observed, the mother may well suffer pain and other physical disbenefits. There may be severe patrimonial consequences. She may have to cease work. The couple may have to spend money on the layette, on clothing and the ordinary but inevitable expenses of rearing a child. 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 roundabout to balance what they actually lose on the swings.
There is, of course, a duty upon the person who suffers damnum as a consequence of another’s wrongdoing to take such reasonable steps as he can to minimise his loss. That is why, if as a result of his misfortune he can no longer do heavy work but is fit for lighter work, he must seek lighter work even if it is at a smaller wage. His claim is confined to his net loss. But not all the benefits that might accrue to the victim of a legal wrong are brought into account. We were offered the example of a coal miner who, while working in a deep pit, is rendered unfit to work by an accident, caused by his employers' fault, and resulting in the loss of an arm. He leaves the coal industry and becomes a park attendant at a lower wage. Instead of the dust, darkness and dangers of the pit, his environment becomes one of fresh air, birdsong and sweet smelling flowers. No one would dream of suggesting that a price has to be put on such non-patrimonial benefits accruing to him as an incident of his working in a park rather than a pit, and that that price should be deducted either from his calculated wage loss or even from the money awarded by way of solatium given to mark the pain, suffering and deprivation flowing from the loss of his limb. It would be possible to multiply such examples. In my view, the personal loss which the second pursuer claims to have suffered is not different in its legal character from the claim for calculable financial losses, past and future, with the result that it cannot found a claim for reparation just by reason of the fact that the second pursuer has come to enjoy the benefits of having a live and normal child. The incidental joys and benefits that would not have accrued to the parents but for the wrongdoing are not, in my opinion, benefits of a kind that our law has ever recognised as being able to set off against the calculable consequences of an injury such as a financial loss, or against a solatium award, for pain, discomfort and inconvenience. If such benefits were able to go into the balance, would the court not also be required to take account of the likely worries, disappointments and sorrows that are commonly encountered in the course of parenthood? To treat parenthood as a wholly unblemished blessing to the parents is to ignore the realities of experience. I see no reason for our law to do that. The Lord Ordinary in concluding that there is no loss for which reparation can be claimed expresses the view that ‘the correct principle is that the value of a child should be held to outweigh all such costs’. He finds support for that view in the passage quoted from Public Health Trust v Brown where it is stated: ‘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’ (at pp 1085–1086). I did not understand the basis of the author’s view that the emotion and sentiment he refers to were ‘universally shared’. Tragically, it is a matter of common knowledge that, throughout history, some parents have killed their children at birth because the monetary burdens of rearing children are judged by them to outweigh the benefits of parenthood. Such practices may not be unknown today. I, of course, would regard infanticide abhorrent whatever its motivation or cultural justification; but I recognise it as a sad fact of life that in some cultures infant children, and apparently especially girls, run the risk of being put to death shortly after birth because of what the parents judge to be the harsh necessities of their economic condition. The Lord Ordinary also quotes from Cockburn v Baumgartner to the effect that ‘Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our
civilisation’ (at p 389). I accept that entirely in respect of the aims and principles of our culture and civilisation; but I do not see that that respect ordains that the financial burden of rearing an unplanned child should fall upon those who have both moral and enforceable legal obligations towards the child consequent on the unwanted pregnancy rather than upon the wrongdoer whose negligence the law regards as an essential ‘cause’ of the conception and birth. The ‘principle’ that the value of a child should be held to outweigh all the financial outlay incurred in bringing up the child might well appeal to those who can afford to make such outlay without any, or any undue, financial hardship. But even in our civilisation there are some for whom an unwanted and unplanned pregnancy is a financial disaster and may bring an end to a chosen way of life with financial and personal losses. The so called ‘correct principle’ is one way of avoiding the distasteful task of putting a monetary value upon the birth of a live and healthy child; most judges would, find that task as difficult and unrealistic as it is distasteful. The unrealistic task can be avoided, however, simply by holding that the benefits accruing to the parents of a healthy child which they have conceived are benefits that, along with the likely disbenefits, accrue to them alone, but that such benefits should not accrue to the relief of the wrongdoer whose negligence has caused the pregnancy. I cannot see how the favourable balance of joy to the child’s parents can properly be put into the scales as a huge financial factor so that it inevitably outweighs the losses, patrimonial and non-patrimonial, that the parents sustain. The benefits which the parents derive from having a live child are not, in my opinion, comparable to the benefits that the victim of a wrongdoing may derive as a result of taking appropriate steps to minimise his loss, whether by seeking alternative employment or, as is sometimes appropriate, by undergoing an operation to minimise the disability flowing from the physical injury resulting from the wrongful act. In the circumstances, although I agree with the Lord Ordinary that the real choice is between allowing no recovery at all, on the basis that the benefits will always outweigh any loss, or allowing recovery in full on the basis that the benefits, being of a different order of value, must simply be left out of account, 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. The Lord Ordinary suggests that there is an anomaly in the sense that if the parents are compensated for their patrimonial and non-patrimonial losses they will be ‘in every way better off’ because they have the child as well. I should find it to be even more anomalous that the wrongdoer should claim and receive the benefit of the child in order to eliminate his liability to make money reparation to the victim of the palpable loss resulting directly from the wrong inflicted. No principle of our law requires that every natural, direct and probable consequence, whether in the form of gain or benefit, is to be given a money value and taken into account. I agree with the Lord Ordinary that if the court reaches a view on the primary question raised by the defenders and respondents it is unnecessary to decide the case on the basis of public policy. The Lord Ordinary, however, in considering this matter indicated that he would have some sympathy with the argument presented to him on behalf of the defenders to the effect that for reasons of public policy claims for damages in this type of case should be excluded. He starts by saying that ‘It is true that the law no longer upholds the sanctity of life
as an absolute value’. I am far from being persuaded that the law ever did uphold the sanctity of life as an absolute value. Capital punishment in ordinary murder cases was abolished only recently and still survives in respect of treason. Abortion for certain medical and other reasons was not a crime. If the Lord Ordinary’s reference to the ‘sanctity of life’ is to be construed more narrowly as a reference to the life of the unborn foetus, the enactment by the legislature of legislation permitting abortion in certain circumstances might well be regarded as a departure from ‘an absolute value’; but whatever value falls to be accorded to the sanctity of life I do not see why the privilege of being a parent should be deemed by some axiom of law to be immeasurably great in monetary terms. The Lord Ordinary also deals with his view that ‘most people would find it unseemly that in a case of this kind the child concerned might later learn…that his parents raised an action that implied that they would have preferred that he had not been born’ (p 216B). I am not persuaded that unseemliness is the test that ought to be applied. If unseemliness were the touchstone in such matters then the law would never have permitted actions of declarator of bastardy. Considerations of the kind to which the Lord Ordinary has regard in his obiter observations on public policy appear to me to be too nebulous, arguable and double edged to provide any sound basis for a judgment by a court of law. Such matters, insofar as they are relevant to consideration of claims of the present kind, are matters for consideration by the legislature which has the responsibility of deciding what the law should be, and not by judges whose responsibility is limited to determining what the law is. I agree with the disposal of this reclaiming motion proposed by your Lordship in the chair. LORD ALLANBRIDGE—I agree with both your Lordships that this reclaiming motion should be allowed. It seems to me that this is a case that should go to proof and it cannot be dismissed at this stage either on the basis of iniuria sine damno or as a matter of public policy. It was accepted by counsel for the defenders that the defenders had a duty in delict not to harm the pursuers, but counsel submitted on their behalf that they had no duty to prevent a child from being born because the birth of a child is not a ‘harmful event’. However, in assessing damages a court must apply the principle that the purpose of an award of damages in an action founded on delict is to restore a pursuer, so far as that is possible by the payment of money, to the position he would have been in but for the commission of the wrong complained of. The obligation to make recompense arises and becomes enforceable when there is a concurrence of iniuria and damnum. In this case the iniuria arose when, following on a vasectomy operation in October 1989, the first named pursuer received a letter, dated 24 March 1990, from the consultant surgeon informing him that his sperm count was then negative and he might dispense with the contraceptive precautions, when that in fact was not the situation, and he acted upon such advice. The pursuers aver that they already had four children and agreed that they would have no more children and that the first named pursuer would have a vasectomy operation. They further aver that they were given wrong information as the result of negligence by the hospital laboratory in their analysis of the first named pursuer’s sperm count.
However, it is important to note that in a case such as the present, the damnum occurred when the second named pursuer became pregnant with the pursuers’ fifth child in about September 1991. At that stage the right to raise an action accrued and a quantification of the pursuers’ loss was capable of being made at that date, albeit on the basis of estimation, although greater accuracy can now be achieved in the light of supervening events. (See Lord Keith of Kinkel at 1980 SC (HL), p 81 of Dunlop v McGowans.) The most important supervening event was the birth of Catherine on 6 May 1992. It was that clearly foreseeable event which has caused the pursuers’ patrimonial loss said to arise as a result of her birth, but the second pursuer’s individual claim is based on the pregnancy and confinement itself as well as the pain and distress of the actual delivery of the child. Such an individual claim demonstrates that part of her claim is said to arise even before the birth of the child and is entirely consistent with a right of action accruing at the moment of conception rather than at the ensuing birth. It would appear illogical that that part of her claim could arise and thereafter be negated by the birth of a healthy child which was said by the defenders to have retrospective effect. Whilst I accept at once that the birth of a child can normally be described as a ‘blessing’, that, however, does not mean that it is not an event which can give rise to financial expenditure. If parents plan to limit their family, as is now commonplace by various methods of family planning, they appreciate that they are foregoing the joy and blessing of having another child but may be doing so in the interests of their then existing family. That is the whole object of family planning and one which may be frustrated by the birth of a further child or children. If the birth of a further child can cause increased expenditure then in my view the pursuers are entitled to be given an opportunity to attempt to prove such costs. The Lord Ordinary has taken the view that the action can be dismissed at this stage on the principle ‘that the value of a child should be held to outweigh all such costs’. Obviously one cannot place a value or monetary price on the birth of a child or the existence of the child. Such a value is intangible and impossible to assess in terms of money. But by its very nature it cannot be placed on a set of scales in such a way as always to outweigh the cost of rearing the child itself, as suggested by the Lord Ordinary. If the pursuers in this case can prove that the defenders were negligent then I consider that they should also be given the opportunity to prove the loss, injury and damage which they aver arises directly from the fact that the second named pursuer became pregnant. I should state that there is at least a hint in the defenders’ pleadings, where they aver that the pursuers chose that the child be carried to birth and that they would rear her, that an abortion or allowing adoption of a child could have avoided the pursuers’ loss, injury and damage. Such an approach was not strongly urged upon us and I do not consider that the defenders can found on a failure to exercise either option as being a novus actus interveniens which could in some way break the chain of causation. The pursuers aver that they are opposed to abortion, which is a sufficient answer to that suggestion, and placing the child for adoption is hardly a solution which normally could be expected of the natural parents. Lastly, I agree with the Lord Ordinary’s observation in this case, at p 216L of his opinion, that this is not a case that should be decided on policy grounds. As Lord Scarman said at p 430B–D of McLoughlin v O’Brian, the distinguishing feature of the common law is the judicial development and formation of
principle. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate on the matter. The present case should be decided on principle and on that basis, as I have already outlined, I would also allow this reclaiming motion. THE COURT allowed the reclaiming motion. Balfour & Manson—R F Macdonald
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