|Judgments - Macfarlane and Another v. Tayside Health Board (Scotland)
Accordingly, since I have rejected the Lord Ordinary's approach that nothing should be awarded at all the choice is between awarding all costs incurred by the parents consequent upon the conception and birth of the child on the one hand and awarding damages limited to those I have already accepted thereby excluding the cost of rearing the child.
As to this I do not accept the argument that no damages should be awarded as otherwise children will learn that their birth was not wanted and that this will have undesirable psychological consequences. An unplanned conception is hardly a rare event and it does not follow that if the conception is unwanted the baby when it is born or the baby as it integrates into the family will not be wanted. Nor do I attach weight to the argument that if damages claims of this kind are allowed doctors to protect themselves will encourage late abortions. Such an event is possible but the ethical standards of the medical profession (coupled with insurance) should be a sufficient protection in such cases, which ought to be rare if proper care is taken.
The real question raised here is more fundamental. It is to be remembered on this part of the case that your Lordships are concerned only with liability for economic loss. It is not enough to say that the loss is foreseeable as I have accepted it is foreseeable. Indeed if foreseeability is the only test there is no reason why a claim should necessarily stop at the date when a statutory duty to maintain a child comes to an end. There is a wider issue to consider. I agree with Mr. Stewart Q.C. (in the article to which I have referred) that the question is not simply one of the quantification of damages, it is one of liability, of the extent of the duty of care which is owed to the husband and wife.
It is to be remembered that in relation to liability the House has recognised that in respect of economic loss in order to create liability there may have to be a closer link between the act and the damage than foreseeability provides in order to create liability. Thus in Caparo Industries Plc. v. Dickman  2 A.C. 605 Lord Bridge said that there should be a relationship of "neighbourhood" or "proximity" between the person said to owe the duty and the person to whom it is said to be owed. That relationship depends on whether it is "fair, just and reasonable" for the law to impose the duty. As Mr. Stewart Q.C. says the alternative test is to ask whether the doctor or the Board has assumed responsibility for the economic interest of the claimant "with concomitant reliance by the claimant".
The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family. Whereas I have no doubt that there should be compensation for the physical effects of the pregnancy and birth, including of course solatium for consequential suffering by the mother immediately following the birth, I consider that it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. The doctor does not assume responsibility for those economic losses. If a client wants to be able to recover such costs he or she must do so by an appropriate contract.
This conclusion is not the result, as it is in some of the American cases of the application of "public policy" to a rule which would otherwise produce a different conclusion; it comes from the inherent limitation of the liability relied on. A line is to be drawn before such losses are recoverable.
I would accordingly dismiss the Board's appeal in respect of the claim for solatium by Mrs. McFarlane and her claim for expenses caused directly and immediately by the pregnancy and birth, including medical expenses (if any) and the costs of the layette, but I would allow the Board's appeal in respect of the claim for damages in respect of the rearing of the child.
A surgeon wrongly and negligently advised a husband and wife that a vasectomy had rendered the husband infertile. Acting on his advice they ceased to take contraceptive precautions. The wife became pregnant and gave birth to a healthy child. The question is what damages, if any, the parents are in principle entitled to recover.
It may be helpful to state at the outset the nature and shape of the case before the House. First, a distinction must be made between two types of claims which can arise from the failure of a sterilisation procedure, resulting in the birth of a child. There is the action (if permitted) for "wrongful life" brought by a disadvantaged or disabled child for damage to himself arising from the fact of his birth. The present case does not fall within this category. It is what in the literature is called an action for "wrongful birth." It is an action by parents of an unwanted child for damage resulting to them from the birth of the child. Secondly, the claim before the House is framed in delict. Counsel cited observations to the effect that it is immaterial whether such an action is brought in contract or in delict. The correctness of this assumption may depend on the nature of the term of the contract alleged to have been breached. Usually, since a contract of services is involved, it may be an obligation to take reasonable care. On the other hand, the term may be expressed more stringently and may amount to a warranty of an outcome. It is unnecessary in the present case to consider whether different considerations may arise in such cases. My views are confined to claims in delict. Thirdly, the claim is brought under the extended Hedley Byrne principle (Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.  A.C. 465) as explained in Henderson v. Merrett Syndicates Ltd.  2 A.C. 145 and Williams v. Natural Life Health Foods Ltd.  1 W.L.R. 830, that is, it is based on an assumption of responsibility by the doctor who gave the negligent advice. Fourthly, there is a procedural aspect. The case comes before the House by way of an appeal from a decision of the Second Division of the Inner House of the Court of Session on the sustainability of the pleaded case of the parents of the unwanted child. This is an area of the law which gives rise to many difficult problems which could not be explored in depth in this case. I am not inclined to go beyond the issues directly arising on the present pleadings.
The Unwanted Child
In 1989 Mr. and Mrs. McFarlane already had four children. They decided to move to a bigger house. They needed a larger mortgage. In order to meet the increased financial commitments Mrs. McFarlane returned to work. They further decided not to have any more children and that Mr. McFarlane would undergo a vasectomy operation. On 16 October 1989 a consultant surgeon performed the operation on Mr. McFarlane at a hospital for which Tayside Health Board is responsible. The operation was carried out without complication. One of the risks of a vasectomy operation is spontaneous recanalisation of the divided vas. For this reason Mr. and Mrs. McFarlane were advised to adopt contraceptive precautions until sperm samples had been analysed. In January and February 1990 that was done. On 24 March 1990 the consultant surgeon wrote to Mr. McFarlane saying "your sperm counts are now negative and you may dispense with contraceptive precautions." Mr. and Mrs. McFarlane acted on this advice. Nevertheless in September 1991 Mrs. McFarlane became pregnant. On 6 May 1992 Mrs. McFarlane gave birth to a healthy daughter, Catherine. Mr. and Mrs. McFarlane love their daughter and care for her as an integral part of the family.
The Legal Proceedings in Scotland
The parents sued the Tayside Health Board in delict. The claim is divided into two parts. First, Mrs. McFarlane claimed a sum of £10,000 in respect of pain, suffering and distress resulting from the unwanted pregnancy. Secondly, Mr. and Mrs. McFarlane claimed a sum of £100,000 in respect of the financial cost of bringing up Catherine. The Lord Ordinary (Lord Gill) dismissed the action in respect of both heads of claim: McFarlane v. Tayside Health Board 1997 S.L.T. 211. The Lord Ordinary declined to follow a line of English decisions cited to him. He rejected at p. 216 the claim for the cost of bringing up Catherine "on the central point as to the value to be placed on the child's existence in any calculation of the parents overall position." He observed "that the privilege of being a parent is immeasurable in monetary terms and that the benefits of parenthood transcend any patrimonial loss." In regard to the claim for a solatium he held that pregnancy and childbirth is not a personal injury. The Inner House unanimously allowed a reclaiming motion and reversed the order of the Lord Ordinary, with the result that under the existing order the action will go to proof under both heads of claim: McFarlane v. Tayside Health Board, 1998 S.L.T. 307. The court ruled that the physical and financial consequences of the conception and birth of Catherine were recoverable heads of damage. The benefits which the parents derive from Catherine should be left out of account. Relying strongly on a line of decisions in the English courts, the Inner House held in separate judgments that on conventional principles there were no ground which negatived the prima facie liability of the health board.
The Statement of Facts and Issues summarised the questions to be considered as follows:
(i) Are the pursuers entitled to damages?
(ii) Is the second pursuer entitled to claim solatium?(iii)
Are the pursuers entitled to claim for the financial consequences of pregnancy and the birth of the child?(iv)
Is a claim for the financial consequences of the pregnancy and birth excluded as being for pure economic loss?(v)
Does public policy exclude the pursuers' claims for damages in whole or in part?(vi)
Does the fact that the pursuers now have, as a result of the alleged negligence, a live healthy child, disentitle them to damages in whole or in part?
These issues overlap. Different considerations apply to the two heads of claim and it will be necessary to consider them separately. It will be convenient first to consider the claim of the parents for the total cost of bringing up Catherine and then to consider the smaller claim of Mrs. McFarlane for a solatium for pain, suffering and distress resulting from her pregnancy. It is common ground that in regard to the sustainability in law of the two heads of claim there are no material differences between the law of Scotland and the law of England.
The cost of bringing up Catherine
It will be convenient to examine first the line of English cases on which the Inner House founded its decision that the cost of bringing up Catherine is a sustainable claim. In Udale v. Bloomsbury Health Authority  1 W.L.R. 1098 Jupp J. rejected a claim for the cost of bringing up an unwanted child. The judge observed that the birth of a child is "a blessing and an occasion for rejoicing." In Thake v. Maurice  Q.B. 644 Paine J. refused to follow Udale and allowed such a claim. He observed at p. 666G that social policy, which permitted abortion and sterilisation, implied that it was generally recognised that the birth of a healthy child was not always a blessing. In Emeh v. Kensington and Chelsea and Westminster Area Health Authority  1 Q.B. 1012 the Court of Appeal had to consider divergent approaches in Udale and Thake. But the unwanted child in Emeh had been born with congenital disabilities. The defendants' contention was that the cost of upbringing should be limited to the extra costs attributable to the child's disabilities. Full costs were allowed but in a modest sum of the order of £6,000. Angus Stewart Q.C., in Damages for the Birth of a Child, 1995, 40 J.L.S.S. 298, 300 pointed out:
That I regard as a perceptive explanation of the context of the judgment. In unreserved judgments the Court of Appeal chose to follow the judgment of Paine J. rather than the judgment of Jupp J. This decision has been considered binding on lower courts and on the Court of Appeal in regard to claims by parents for wrongful birth of a healthy child. It is the critical decision in the line of authority in England. It is unnecessary to discuss the subsequent English decisions, which followed Emeh but I list them in chronological order: see Thake v. Maurice  1 Q.B. 644 (C.A.); Gold v. Haringey Health Authority  1 Q.B. 481 (C.A.); Benarr & Another v. Kettering Health Authority (1988) 138 N.L.J. 179; Allen v. Bloomsbury Health Authority  1 All E.R. 651; Salih v. Enfield Health Authority  3 All E.R. 400 (C.A.); Robinson v. Salford Health Authority  3 Med. L.R. 270; Fish v. Wilcox  5 Med. L.R. 230 (C.A.); Walkin v. South Manchester Health Authority  1 W.L.R. 1543 (C.A.); Goodwill v. British Pregnancy Advisory Service  1 W.L.R. 1397 (C.A.) It is only necessary to mention one specific matter about those decisions. In Benarr the court held that health authorities were liable to pay for private education of the unwanted child.
It is right to point out that the Court of Appeal decision in Emeh predates the full retreat from Anns v. Merton London Borough Council  A.C. 728 which was announced by the decision of the House in Murphy v. Brentwood District Council  1 A.C. 398. Since then a judicial scepticism has prevailed about an overarching principle for the recovery of new categories of economic loss. Here the father's part of the claim for the cost of bringing up the unwanted child is undoubtedly a claim for pure economic loss. Realistically, despite the pregnancy and child birth, the mother's part of the claim is also for pure economic loss. In any event, in respect of the claim for the costs of bringing up the unwanted child, it would be absurd to distinguish between the claims of the father and mother. This feature of the claim is important. The development of a new ground of liability, or a new head of such liability, for the recovery of economic loss must be justified by cogent reasons.
Even before Murphy there was unease among judges about the decision in Emeh. This was memorably articulated in Jones v. Berkshire Area Health Authority, 2 July 1986, (unreported), another unwanted pregnancy case. Ognall J. said:
In Gold v. Haringey Health Authority  1 Q.B. 481, 484G Lloyd L.J. (with the agreement of the other members of the court) cited this observation and said that "many would no doubt agree with this observation."
In the present case your Lordships have had the advantage of considering this issue in the light of far more analytical and comprehensive arguments from both counsel than were put before the Court of Appeal in Emeh. Counsel took your Lordships on a valuable tour d'horizon of comparative jurisprudence. Claims by parents for the cost of bringing up an unwanted but healthy child as opposed to more limited claims by the mother in respect of pain, suffering and distress associated with the pregnancy have proved controversial in foreign jurisdictions: compare the valuable comparative article by Angus Stewart Q.C., op. cit. In the United States the overwhelming majority of state courts do not allow recovery of the costs of bringing up a healthy child: see the review in Johnson v. University Hospitals of Cleveland (1989) 540 N.E. 2d. 1370; Annotation, 89 A.L.R. 4th 632 (May 1998), passim. In Canada the trend is against such claims: see Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708, which contains a review at 724-730. By a majority the New South Wales Court of Appeal in CES v. Superclinics (Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47 held that the plaintiff had, through the negligence of the defendants, lost the opportunity to have an abortion which would not necessarily have been unlawful. The court ordered a retrial on the issue as to whether an abortion would have been unlawful. Kirby P. considered that damages could be awarded for the cost of bringing up the child. Priestley J.A. was prepared to allow a limited recovery for "wrong birth" but not for child rearing expenses. Meagher J.A. agreed with Priestly J.A. on this point, though, in a dissenting opinion, he concluded that public policy was an absolute bar to the award of damages in "wrongful birth" cases. In New Zealand there is a no fault compensation scheme. It is, however, instructive to note that the Accident and Compensation Authority held that there was no causal connection between the medical error and the cost of raising the child: Re: Z  N.Z.A.R. 279, XY v. Accident Compensation Corporation  4 N.Z.A.R. 219. In Germany the Constitutional Court has ruled that such a claim is unconstitutional inasmuch as it is subversive of the dignity of the child. But the Bundesgerichtshof has rejected this view and permits recovery of the costs of the bringing up the child. The Federal Court observed that "compensation not only has no detrimental effect on this child, but can be beneficial to it;" see B.S. Markesinis, The German Law of Obligations, Vol. 11, The Law of Torts: A Comparative Introduction, 3rd ed., (1997), at pp. 155-156. In France the Cour de Cassation has ruled that "Whereas the existence of the child she has conceived cannot in itself constitute for the mother a loss legally justifying compensation, even if the birth occurred after an unsuccessful intervention intended to terminate the pregnancy": see Mille X c. Picard (Cour de Cass. Civ. 1re 25 June 1991 D. 1991, 566). Such claims are not allowed. From this comparative survey I deduce that claims by parents for full compensation for the financial consequences of the birth of the healthy child have sometimes been allowed. It may be that the major theme in such cases is that one is simply dealing with an ordinary tort case in which there are no factors negativing liability in delict. Considerations of corrective justice as between the negligent surgeon and the parents were dominant in such decisions. In an overview one would have to say that more often such claims are not allowed. The grounds for decision are diverse. Sometimes it is said that there was no personal injury, a lack of foreseeability of the costs of bringing up the child, no causative link between the breach of duty and the birth of a healthy child, or no loss since the joys of having a healthy child always outweigh the financial losses. Sometimes the idea that the couple could have avoided the financial cost of bringing up the unwanted child by abortion or adoption has influenced decisions. Policy considerations undoubtedly played a role in decisions denying a remedy for the cost of bringing up an unwanted child. My Lords, the discipline of comparative law does not aim at a poll of the solutions adopted in different countries. It has the different and inestimable value of sharpening our focus on the weight of competing considerations. And it reminds us that the law is part of the world of competing ideas markedly influenced by cultural differences. Thus Fleming has demonstrated that it may be of relevance, depending on the context, to know whether the particular state has an effective social security safety net: see Fleming: The American Tort Process, 26-27.
I will now eliminate the grounds upon I would not decide against the parents claim for compensation for financial loss arising from the child's birth. Counsel for the health authority rightly did not argue that it is a factor against the claim that the parents should have resorted to abortion or adoption. I cannot conceive of any circumstances in which the autonomous decision of the parents not to resort to even a lawful abortion could be questioned. For similar reasons the parents' decision not to have the child adopted was plainly natural and commendable. It is difficult to envisage any circumstances in which it would be right to challenge such a decision of the parents. The starting point is the right of parents to make decisions on family planning and, if those plans fail, their right to care for an initially unwanted child. The law does and must respect these decisions of parents which are so closely tied to their basic freedoms and rights of personal autonomy.
Counsel for the health authority argued as his primary submission that the whole claim should fail because the natural processes of conception and childbirth cannot in law amount to personal injury. This is a view taken in some jurisdictions. On the other hand, it is inconsistent with many other decisions, notably where limited recovery of compensation for pain, suffering and distress is allowed. I would not follow this path. After all, the hypothesis is that the negligence of the surgeon caused the physical consequences of pain and suffering associated with pregnancy and childbirth. And every pregnancy involves substantial discomfort and pain. I would therefore reject the argument of the health authority on this point. In the alternative counsel argued that, if money spent on Catherine is regarded as a detriment to her parents, it is outweighed by the many and undisputed benefits which they have derived and will derive from Catherine. While this factor is relevant in an assessment of the justice of the parents' claim I do not regard such a 'set off' as the correct legal analysis of the position.
It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents' claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice. It requires a focus on the just distribution of burdens and losses among members of a society. If the matter is approached in this way, it may become relevant to ask commuters on the Underground the following question: Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority, i.e. until about 18 years? My Lords, I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic "No." And the reason for such a response would be an inarticulate premise as to what is morally acceptable and what is not. Like Ognall J. in Jones v. Berkshire Area Health Authority (unreported) 2 July 1986 they will have in mind that many couples cannot have children and others have the sorrow and burden of looking after a disabled child. The realisation that compensation for financial loss in respect of the upbringing of a child would necessarily have to discriminate between rich and poor would surely appear unseemly to them. It would also worry them that parents may be put in a position of arguing in court that the unwanted child, which they accepted and care for, is more trouble than it is worth. Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent up upon the birth of a healthy child, which all of us regard as a valuable and good thing.
My Lords, to explain decisions denying a remedy for the cost of bringing up an unwanted child by saying that there is no loss, no foreseeable loss,no causative link or no ground reasonable restitution is to resort to unrealistic and formalistic propositions which mask the real reasons for the decisions. And judges ought to strive to give the real reasons for their decision. It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice. That is, of course, a moral theory. It may be objected that the House must act like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But judges' sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right. Two recent illustrations of the relevance of the moral dimension in the development of the law illustrate the point. In Smith New Court Securities Ltd. v. Scrimgeour Vickers (Asset Management) Ltd.  A.C. 254 the House differentiated between the measure of damages for fraudulent and negligent misrepresentation. Pointing out that tort law and morality are inextricably interwoven I said (with the agreement of Lord Keith of Kinkel and Lord Jauncey of Tullichettle) that as between the fraudster and the innocent party, moral considerations militate in favour of requiring the fraudster to bear the risk of misfortunes directly caused by the fraud: at 280B-C. In Frost v. Chief Constable of South Yorkshire Police  3 W.L.R. 1509 the police officers claimed compensation for psychiatric loss they sustained as a result of the Hillsborough disaster. By a majority the House ruled against the claim. The principal theme of the judgments of the majority was based on considerations of distributive justice. In separate judgments Lord Hoffmann and I reasoned that it would be morally unacceptable if the law denied a remedy to bereaved relatives as happened in Alcock v. Chief Constable of South Yorkshire Police  1 A.C. 310 but granted it to police officers who were on duty. Lord Hoffmann expressly invoked considerations of distributive justice: at 1530H-1551B. Lord Browne-Wilkinson and I expressed agreement with this reasoning. In my judgment I observed (at 1545G). "The claim of the police officers on our sympathy, and the justice of their case, is great but not as great as that of others to whom the law denies redress." That is the language of distributive justice. The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches.