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

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    The relevance of the pursuers' claims may be considered from various points of view. One approach is that of public policy. This has played a part in the development of the law in England in dealing with cases such as the present, and more prominently and extensively in the corresponding judicial decisions in the U.S.A. But I have considerable difficulty in finding assistance towards the solution of the present problem by reference to considerations of policy. In the present context at least, what are referred to as policy considerations include elements of what may be seen as ethical or moral considerations. But whatever the label used to identify or describe them I am not persuaded that a sufficiently solid ground for decision in the circumstances of the present case can be found by searching for a reason in policy. For one thing it is difficult to find any "policy" ground for upholding the pursuers' claim in whole or part without finding beside it a countervailing consideration which points to the propriety of disallowing the claim. This point has been developed by C.R. Symmons in "Policy Factors in Actions for Wrongful Birth" (1987) 50 M.L.R. 269. To take but one example, the "sanctity of human life" can be put forward as a ground for justifying the law's refusal of a remedy for a wrongful conception. On the other hand the general recognition of the importance of family planning in society and of the propriety of adopting methods of contraception including those involving a treatment designed to achieve a permanent solution, reflects the recognition that unlimited child-bearing is not necessarily a blessing and the propriety of imposing a liability on those who negligently provide such a treatment. Particularly where consideration of public policy can be invoked by both sides to the dispute, it seems to me that to proceed upon such a ground is unlikely to lead to any confident solution.

    Furthermore while it is comforting to be able to affirm that one can see no policy reasons for not allowing a claim such as the present to succeed, that gives little basis in principle for justifying why it should succeed. And to affirm more positively that public policy requires that the claim should succeed seems to me to coming very close to an encroachment on the responsibilities which attach to the legislature and not to the courts. The judicial function may extend beyond the interpretation of the law to the problem of applying the law to novel circumstances. But in doing so the court should have regard to existing principles. It may be that considerations of what may be referred to as policy are of assistance in determining whether the application of the law should be extended so as to create a novel liability for damages. But the problem in the present case is not truly that kind of question. It is a problem of determining the extent of the damages to which in the circumstances the defenders are liable in law.

    Public policy was long ago recognised by Burrough J. in Richardson v. Mellish (1824) 2 Bing. 229, 252 , as "a very unruly horse, and when once you get astride of it you never know where it will carry you." As Pearson J. observed in his dissent in Public Health Trust v. Brown (1980) 388 So. 1084, 1086 "I am confident that the majority recognises that any decision based upon notions of public policy is one about which reasonable persons may disagree." In In re Mirams [1891] 1 Q.B. 594, 595, Cave J. observed that judges should be "trusted [more] as interpreters of the law than as expounders of what is called public policy." While there may be occasions on which the courts may safely enter so uncertain a territory, at least in the circumstances of the present case I do not consider that it is useful in the present case to pursue so uncertain and unpromising a line of approach.

    In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098, 1109, Jupp J. came to the conclusion "that on the ground of public policy the plaintiff's claims .should not be allowed." But the policy reasons put forward by Jupp J. were carefully dismantled by Pain J. in Thake v. Maurice [1986] 1 Q.B. 644 and not explored in that case on appeal. In Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] 1 Q.B. 1012 public policy was seen as a possible matter of objection to allowing the consequences of the fault to extend to the inclusion of the maintenance costs, but it was not regarded as sufficient to exclude that claim. In Gold v. Haringey Health Authority [1988] 1 Q.B. 481, 484, Lloyd L.J. expressly stated that the conflict in respect of public policy on the desirability of permitting a claim for damages for an unwanted pregnancy had been resolved by the court in Emeh. In the careful analysis of the law which was made by Brooke J. in Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 132 the possible problem of allowing both a claim for personal injuries and a claim for purely economic loss was raised. That issue was put at rest in Walkin v. South Manchester Health Authority [1995] 1 W.L.R. 1543 where in relation to a claim by a mother following on an unsuccessful sterilisation operation the court held that there was only one cause of action and that cause of action was for damages consisting of or including damages in respect of personal injury for the purposes of section 11(1) of the Limitation Act 1980. While English practice clearly admits claims for damages for unwanted pregnancies and allows the damages to include the cost of maintenance of the child it appears that matter has been allowed to develop undeterred by considerations of policy. In the present case the Inner House similarly found no over-riding considerations of public policy such as to exclude the pursuers' claim.

    Another approach which might be taken in dealing with the problem of a claim for a wrongful conception is that of analysing the problem in terms of the existence of a duty to compensate. The claim made by the first named pursuer is simply one for an economic loss consequent upon the alleged negligent advice. Such a claim could be approached as a matter of liability rather than damages. In such a context the concept of the proximity of the relationship between the wrongdoer and the person affected by the wrong can be usefully invoked as a means of putting reasonable limits upon the extent to which liability for economic loss following upon negligent advice is to be permitted. In a more refined way the approach may be formulated in terms of the existence of a duty to avoid causing damage of a particular kind.

    My Lords, I hesitate to adopt such an approach in the present case. As I have already noted, the issue raised in the appeal is not properly one of the existence or non-existence of a duty of care. The relationship between the pursuers and the defenders is accepted as one which is sufficiently close as to constitute such a duty and an obligation to make reparation in the event of a breach of that duty. While in the case of the first named pursuer, whose only claim is for an economic loss, it may be tempting to approach the problem as one of the existence of a liability, the second named pursuer has some right of action which can be more readily recognised and I would be prepared to accept that there should be an obligation on the defenders to make reparation to her. The obligation to make reparation is, to use the words of Lord Keith of Kinkel in Dunlop v. McGowans, 1980 S.L.T. 129, 133, "single and indivisible." So also is the ground of action on which the respective claims of the pursuers proceed. Once the obligation to make reparation for some loss is predicated, it seems to me difficult to analyse the claim for maintenance of the child as a particular, and so separate, obligation. Considerations of remoteness, and conversely of proximity, can arise in different ways both in the context of the liability for wrongdoing and in the context of the damages to which the person suffering the wrong may be entitled. It seems to me desirable to preserve the distinction between remoteness in relation to iniuria and remoteness in relation to damnum. The present case is concerned with the extent of the losses which may properly be claimed in the circumstances of the case, rather than with the existence or non-existence of a liability to make reparation.

    I turn next to consider the question whether the pursuers have sustained any loss which the law would recognise. The extreme position advanced by the appellants is to the effect that there has not been any loss sustained by the pursuers. That was at the heart of their submission in the Inner House and it was with that issue that the court was principally concerned. One approach here is to question whether the quantification of any loss involves such speculation and uncertainty as to be beyond the ability of the court, and so for that reason to be inadmissible. But there can be no particular problem so far as the second named pursuer's claim is concerned. The assessment of solatium for the pain, inconvenience and discomfort of pregnancy and the event of a birth is plainly something which the courts can undertake albeit necessarily on a broad basis. Her particular patrimonial losses are also readily open to quantification. The argument may be at its strongest in relation to the maintenance claim. But the short answer to any argument on the impracticability of quantifying that head of loss is that courts have managed to do just that without any evident difficulty, but with a due recognition of the imponderable elements involved. The assessment of a claim such as is presented in the present case is both practicable and practised.

    So far as the solatium claim was concerned the Lord Ordinary held that the pregnancy, confinement and delivery, being natural processes did not constitute an injury. But natural as the mechanism may have been the reality of the pain, discomfort and inconvenience of the experience cannot be ignored. It seems to me to be a clear example of pain and suffering such as could qualify as a potential head of damages. The approach which commended itself to the Lord Ordinary on the maintenance costs was to the effect that the value of the child outweighed and indeed transcended any patrimonial loss which the child might create. But in attempting to offset the benefit of parenthood against the costs of parenthood one is attempting to set off factors of quite a different character against themselves and that does not seem to me to accord with principle. At least in the context of the compensation of one debt against another, like requires to be offset against like. In this analogous context of endeavouring to cancel out the maintenance claim one would still expect economic gain to be set off by economic loss. It may be that the benefit which a child represents to his or her parent is open to quantification, but there is no principle under which the law recognises such a set off. A parent's claim for the death of a child is not offset by the saving in maintenance costs which the parent will enjoy. Nor, as was noted by the discussion in the present case, is the loss sustained by a mineworker who is rendered no longer fit for work underground offset by the pleasure and benefit which he may enjoy in the open air of a public park. Furthermore, in order to pursue such a claim against the risk of such a set-off, a parent is called upon in effect to prove that the child is more trouble than he or she is worth in order to claim. That seems to me an undesirable requirement to impose upon a parent and further militates against such an approach. Indeed, the very uncertainty of the extent of the benefit which the child may constitute makes the idea of a set-off difficult or even impracticable.

    A stronger argument can be presented to the effect that the obligation to maintain the child is an obligation imposed upon the parents of the child and that they will not be held to have sustained any loss caused by the defenders' negligence if, despite the negligence, they are able to meet those obligations. This seems to me to be the line of reasoning adopted by Lax J. in Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708, 739-740, where, having indicated that the financial responsibilities associated with the care and upbringing of a child are the responsibilities of parents, she stated:

    "In a wrongful pregnancy case, the question becomes, to what extent, if at all, the defendant's negligence impairs the plaintiff's ability to meet those responsibilities to the unplanned child or compromises the relationship of mutual support and dependency between parent and child."

He concluded, at p. 740:

    "The particular damage sustained in this case is an unplanned and undesired pregnancy. There is no damage caused by the defendant's negligence which prevents Ashley's parents from fulfilling their responsibilities to her or compromises in any way the relationship of mutual support and dependency which, as matter of law, arose on her birth. Accordingly, the child-rearing costs in this case are not a compensable loss."

    It is not suggested in the pursuers' averments in the present case that they are unable to meet the costs of maintaining the child, nor that the relationship of mutual support and dependency has been damaged by the alleged negligence. But I am not persuaded that this approach provides a sufficient basis for rejecting the maintenance claim as not constituting a loss. The approach adopted by Lax J. starts from a consideration of public policy. It is on the basis that the obligation of maintenance is a matter of public policy to be imposed on the parents that she would, as it appears, allow only an inability to meet those obligations caused by the alleged negligence to enable a compensable loss to arise. As I have already stated, I do not find a sufficiently secure basis in public policy to lead to a confident solution in the present case. The reality is that there has been and will be an expenditure of money on maintenance. The pursuers claim that they are required to spend more money than they would otherwise have required to do. They have another mouth to feed.

    On the assumption that the pursuers can establish that they have each sustained a loss they must also show that the loss was caused by the alleged negligence. This is yet another approach which can be taken to the problem. So far as the second named pursuer's claim for solatium immediately associated with her pregnancy is concerned, I have no difficulty in accepting the existence of a causal connection. I have, however, found the causal link with the maintenance claim far more doubtful. I have similar difficulties with the claim by the second named pursuer in respect of a loss of earnings following the birth of the child, on account, perhaps, of her having to give up her employment in order to look after the child. There are several successive stages from the allegedly negligent advice before one reaches the incurring of the maintenance costs; the intercourse without protection, the conception of the child, the carrying of the child to her birth, and the acceptance of the baby as a further member of the family with all the obligations towards her which parenthood involves. The cost of the maintenance of the child seems to me to be a loss near the limits of the causal chain. But it cannot be reasonably suggested that the chain was broken by any novus actus on the part of the pursuers. The decision to keep the child, to accept into the family a baby who was originally unwanted, cannot rank as an acting on the part of the pursuers sufficient to break the causal chain. It seems to me that a sufficient causal connection can be made out.

    It might be argued that the cause of the loss in respect of the maintenance costs was properly the imposition by statute of the obligation on a parent to maintain a child, so that the cause of the loss was not the alleged negligence, but the operation of the law. In XY v. Accident Compensation Corporation (1984) 4 N.Z.A.R. 219, 224, Jeffries J. expressed the view that "the payment of maintenance for one's child is not necessarily and directly resulting from the birth but from the state of parenthood which inevitably involves financial sacrifice." But that case was concerned with a special statutory standard for the entitlement to damages which appears to be higher than the test which is adopted in Scotland of losses naturally and directly arising from the alleged wrong.

    It appears to me that the solution to the problem posed in the appeal with regard to the maintenance claim should be found by consideration of the basic idea which lies behind a claim for damages in delict, that is the idea of restitution. In Lord Blackburn's words in Livingstone v. The Rawyards Coal Co. (1880) 5 App. Cas. 25, 39:

    "you should as nearly as possible get at that 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 . . ."

I find no difficulty in that respect with the claim for solatium by the second named pursuer. The pain which she suffered through the carrying of an unwanted child seems to me to be reasonably a subject for compensation. The damages require to be expressed in terms of money, and in so far as money can compensate for pain and suffering a form of restitution can be made. But the claim for the financial losses immediately seems more difficult. The result of the decision of the Inner House is that the pursuers have the enjoyment of a child, unintended but now not unwanted, free of any cost to themselves and maintained at the expense of the defenders. It can be argued that the result is to be justified by treating the existence of the child as a windfall which simply has to be disregarded. Alternatively it can be argued that the benefit of the child is something which either cannot in principle be taken into account or even cannot be evaluated, and accordingly the defenders should be held liable for the whole loss suffered by the pursuers without any deduction. That may seem to be a slightly more attractive proposition than the view that the benefit should altogether outweigh the loss. But that the pursuers end up with an addition to their family, originally unintended but now, although unexpected, welcome, and are enabled to have the child maintained while in their custody free of any cost does not seem to accord with the idea of restitution or with an award of damages which does justice between both parties.

    The situation in the present case is a peculiar one. Without surrendering the child the pursuers cannot realistically be returned to the same position as they would have been in had they not sustained the alleged wrong. But it cannot reasonably be claimed that they should have surrendered the child, as by adoption or, far less, by abortion, so as to achieve some kind of approximation to the previous situation, even if such courses were available or practicable. There is no issue here of mitigation of damages. But while it is perfectly reasonable for the pursuers to have accepted the addition to their family, it does not seem to me reasonable that they should in effect be relieved of the financial obligations of caring for their child. That seems to me to be going beyond what should constitute a reasonable restitution for the wrong done.

    The restitution which the law requires is a reasonable restitution. As was recognised in Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 585 the eventual question is "whether what is sought by way of reparation can be regarded as reasonable having in mind the particular circumstances of the particular case." In the present case we are concerned critically with a claim for an economic loss following upon allegedly negligent advice. In such a context I would consider it appropriate to have regard to the extent of the liability which the defenders could reasonably have thought they were undertaking. It seems to me that even if a sufficient causal connection exists the cost of maintaining the child goes far beyond any liability which in the circumstances of the present case the defenders could reasonably have thought they were undertaking.

    Furthermore, reasonableness includes a consideration of the proportionality between the wrongdoing and the loss suffered thereby. The cost of maintaining a child may vary substantially in different circumstances. Counsel for the respondents sought to stress the modesty of the likely level of award in the present case. But once it is accepted that the cost of private education may be included in appropriate cases, as was the case, for example, in Benarr v. Kettering Health Authority

(1988) 138 N.L.J. 179, a relatively much more substantial award could be justified. The fact that the quantification admits the possibility of very significant differences in the level of award remains and I find it difficult in the context of a claim such as the present to accept that there would be any reasonable relationship between the fault and the claim such as would accord with the idea of restitution. That the expense of child rearing would be wholly disproportionate to the doctor's culpability has been recognised in the American jurisprudence as one factor supporting the rule of limited damages (See Johnson v. University Hospitals of Cleveland (1989) 540 N.E. 2d. 1370, 1375-1376). The solution of allowing limited damages has received considerable support in America and I consider that that solution provides the proper measure of restitution in the circumstances of the present case.

    I would accordingly allow the appeal to the extent of excluding from probation the claim for any loss of wages by the second named pursuer as a result of the birth of the child, and the claim by both pursuers for additional costs in caring for, feeding and clothing and maintaining the child, and the expenses in the layette. That leaves solely the claim by the second named pursuer for solatium and on that a proof before answer should be allowed.


My Lords,

    Mr. and Mrs. McFarlane had four young children. They decided not to have any more and Mr. McFarlane agreed to have a vasectomy. They have not explained the reasons for their decision beyond saying that they "considered their family to be complete." It is possible, perhaps likely, that financial considerations played a part, especially since they had already decided to move to a bigger house and take on increased financial commitments; but it cannot be assumed that such considerations were decisive. In any case, Mrs. McFarlane's reasons may not have been the same as her husband's; she may simply have felt that four children were enough for her to look after.

    The operation was carried out under the National Health Service at a hospital under the control of the defenders. The operation was not successful, though it is not alleged that anyone was to blame. Unfortunately, the consultant surgeon wrote to Mr. McFarlane and informed him, contrary to the case, that his sperm count was negative and that he could dispense with contraceptive precautions. The result was predictable. Mrs. McFarlane conceived again and in due course was delivered of a fifth child. The pregnancy and delivery were uneventful, and Catherine is a lovely, healthy, normal baby. She has been accepted into the family with love and joy.

    Mr. and Mrs. McFarlane have brought proceedings for damages. They allege that the defenders failed to take reasonable care to ensure that the information they were given was correct, that they were entitled to rely on it, and that Mrs. McFarlane's pregnancy and confinement and Catherine's birth and subsequent existence were the direct and foreseeable result of the defenders' negligence. Mrs. McFarlane claims damages of £10,000 for the pain and distress of the pregnancy and delivery. Mr. and Mrs. McFarlane jointly claim £100,000, being the estimated costs of the layette and of feeding, clothing and maintaining Catherine throughout her childhood. They make no claim for the care and trouble of bringing up Catherine, or the sleepless nights they may now have to endure for a fifth time.

    The defenders do not deny that they are responsible for having supplied the information in question, that Mr. and Mrs. McFarlane were entitled to rely on it, that it was incorrect, and that they were under a duty to take reasonable care to ensure that it was correct. Nor do they deny that, if they failed to do so, then they would normally be liable for all the foreseeable consequences of its being wrong: see Banque Bruxelles Lambert S.A. v. Eagle Star Insurance Co. Ltd. [1997] A.C. 191 per Lord Hoffmann at p. 214. The defenders do not admit that they were negligent - this issue remains to be tried - but they rightly concede that Mrs. McFarlane's pregnancy and Catherine's birth were the direct and foreseeable consequences of the information being wrong. Causation is not in issue. They do not allege that Mr. and Mrs. McFarlane should have mitigated their loss by abortion or adoption. But they deny that the conception and birth of a normal, healthy baby are events capable of giving rise to a claim in damages.

    The Lord Ordinary dismissed the action. He held that neither head of claim was maintainable. He rejected Mrs. McFarlane's personal claim on the ground that normal pregnancy and childbirth are natural processes and cannot properly be treated as if they were personal injuries. He rejected Mr. and Mrs. McFarlane's joint claim for the cost of bringing up Catherine on the ground that the birth of a normal, healthy baby is not a harm but a blessing. He expressed the view that the privilege of parenthood is immeasurable in monetary terms and transcends any financial loss involved in bringing up the child. The Inner House unanimously reversed the decision of the Lord Ordinary and allowed the action to go to proof in respect of both heads of claim.

    The contention that the birth of a normal, healthy baby "is not a harm" is not an accurate formulation of the issue. In order to establish a cause of action in delict, the pursuers must allege and prove that they have suffered an invasion of their legal rights (injuria) and that they have sustained loss (damnum) as a result. In the present case the injuria occurred when (and if) the defenders failed to take reasonable care to ensure that the information they gave was correct. The damnum occurred when Mrs. McFarlane conceived. This was an invasion of her bodily integrity and threatened further damage both physical and financial. Had Mrs. McFarlane miscarried, or carried to full term only to be delivered of a still-born child, it is impossible to see on what basis she could have been denied a cause of action, though the claim would have been relatively modest. The same would apply if Mr. and Mrs. McFarlane had adhered to their determination not to have another child and had proceeded to restore the status quo ante by an abortion. Damages would be recoverable for the pain and distress involved as well as for any expenses incurred. The issue, therefore, is not whether Catherine's birth was a legal harm or injury, that is to say, whether the pursuers have a completed cause of action, but whether the particular heads of damage claimed, and in particular the costs of maintaining Catherine throughout her childhood, are recoverable in law.

    The admission of a novel head of damages is not solely a question of principle. Limitations on the scope of legal liability arise from legal policy, which is to say "our more or less inadequately expressed ideas of what justice demands" (see Prosser & Keeton Law of Torts 5th ed. (1984), p. 264). This is the case whether the question concerns the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases.

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