Judgments - Macfarlane and Another v. Tayside Health Board (Scotland)

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    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 those 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 [1982] 1 Q.B. 1166. Given this position, which also prevails in Australia, Trinidade and Cane (The Law of Torts in Australia, 3rd ed., 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 .[1998] 1 W.L.R. 830, 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 a 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 a 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 a solatium by Mrs. McFarlane.


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, 8357 vasectomies and 7871 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 S.L.T. 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 S.L.T. 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 defender's 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 Mr. Colin Campbell Q.C. 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 Health Authority [1983] 1 W.L.R. 1098, 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 eleven months made necessary by the pregnancy and birth: see Jupp J. at p. 1104D-F. In Thake v. Maurice [1986] Q.B. 644, 633 Kerr L.J. 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 [1993] 1 All E.R. 651, 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, 1998 S.L.T. 580, 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 (1996) 136 D.L.R. (4th) 708, 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 her observations at p. 743 that she 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, (1986) 715 P. 2d. 1076, Nevada, 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, 1990 (3) S.A. 581.

    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, 1990 (3) S.A. 581,. 590-591 Van Heerden J.A. 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. Mrs. Anne Smith Q.C. presented her claim as amounting to the cost of fulfilling the obligation of aliment which the pursuers owe to the child under section 1(1)(c) of the Family Law (Scotland) Act 1985 and their parental responsibilities under section 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 section 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.

    Mr. Campbell 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 Mrs. Smith 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 them 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 [1983] 1 W.L.R. 1098. 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 [1985] Q.B. 1012 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 [1986] Q.B. 644. In Benarr v. Kettering Health Authority (1988) 138 N.L.J. 179 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, 1998 S.L.T 580 (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, 1998 S.L.T. 588 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 Anderson.

    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 (unreported ), 2 July 1986, Ognall J. expressed surprise that the law acknowledged an entitlement to damages for a healthy child, and that in Gold v. Haringey Health Authority [1988] Q.B. 481, 484G Lloyd L.J. agreed with this observation. In Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651, 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 L.J. 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 Mrs. Smith's 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 U.S. is preferable to the position which has been adopted in the English and Scottish cases - other than in Udale and by the Lord Ordinary.

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