Professional Documents
Culture Documents
2A.C.
A [HOUSE O F LORDS]
M c F A R L A N E AND A N O T H E R RESPONDENTS
AND
TAYSIDE H E A L T H B O A R D APPELLANTS
APPEAL from the Second Division of the Inner House of the Court of
Session.
This was an appeal by Tayside Health Board from a decision dated g
9 January 1998 of the Second Division of the Inner House of the Court of
Session (the Lord Justice Clerk, Lord Cullen, Lord McCluskey and Lord
Allanbridge) recalling the interlocutor of the Outer House (the Lord
Ordinary, Lord Gill) on 30 September 1996, dismissing the action of the
parents, George McFarlane and Laura Helen McFarlane, against the
health board for damages in respect of the birth of a child to them as a
consequence of the alleged negligent advice of the board's employee. On C
4 February 1998 the Inner House granted the health board leave to appeal.
The facts are stated in their Lordships' opinions.
Colin Campbell Q. C. and Laura Dunlop for the health board. In regard
to the mother's claim, a normal pregnancy and a normal delivery of a
healthy child are natural processes which do not amount to personal injury n
or give rise to damages. In the present case, these processes are
inextricably bound up with the child, who is not productive of harm. The
law does not insist upon damages for all foreseeable consequences of a
negligent act. Although a normal pregnancy can cause physical pain and
discomfort, that is part of the normal human condition for which damages
are not recoverable, just as damages are not recoverable for debilitating
grief and bereavement, although they are foreseeable. See also Frost E
v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455; Banque
Bruxelles Lambert S.A. v. Eagle Star Insurance Co. Ltd. [1997] A.C. 191
and Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1996]
A.C. 211.
In regard to the parents' claim, the expenditure on the child is not a
recoverable head of damage. The basic principle of damages is p
compensation, and the first task of the court in the present case is to assess
whether the alleged negligence has caused harm to the parents, in the sense
of detriment to an interest protected by law, and to what extent the
parents are worse off because of the inaccurate information. The direct
result of the alleged negligence was the conception and birth of the child.
She represents benefits and burdens, gains and losses. To focus only on
one aspect of her existence, namely, her financial needs until adulthood, is G
to adopt a partial and selective approach.
Damages are awarded as solace or reparation for a misfortune. It is
not appropriate to award the costs of rearing the child because her life is
neither a harmful event nor an occasion of loss. Although her parents'
legitimate expectations were disappointed, the parents are not damaged by
her presence in their family. Her financial costs are not incurred in order \\
to mitigate or repair an injury to her parents. Such payments are not in
the same category as money spent on a broken back or damaged property.
The child is a normal, healthy child and there are no special features which
63
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc))
Campbell Q. C. replied
^ negligence they should be given the opportunity to prove the loss, injury
and damage which they aver arises directly from the fact that the wife
became pregnant.
The Lord Ordinary considered the pregnancy could not be equiparated
with a physical injury, but that even if it could it was not an injury for
which damages are recoverable. The existence of the child and the
mother's happiness derived from it could not be ignored and they
B outweighed the pain and discomfort. As to the claim for the rearing of the
child, his view was that the choice was between (a) allowing full recovery
subject to issues of remoteness and (b) allowing no recovery since the
value of the child outweighed the cost of maintenance. Limiting recovery
to specific heads of claim which were not outweighed by the value of
having the child was not acceptable, not least because of the difficulty of
.-, valuing the child's existence. His conclusion, at p. 216, was that to allow
nothing for the benefits the parents received from having a child was
wrong in principle, at any rate where a healthy child is concerned:
" . . . I am of the opinion that this case should be decided on the
principle that the privilege of being a parent is immeasurable in
money terms; that the benefits of parenthood transcend any
n 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, as a matter of principle, damages were not recoverable. On
the other hand,
E "if the benefits to the parents do not extinguish both claims, they
should certainly extinguish the claim for the costs of the child's
upbringing. To hold otherwise will be to give the pursuers more than
compensation:" p. 217.
He held that as a matter of principle damages were not recoverable and
that claims could not succeed.
F On appeal, 1998 S.L.T. 307 the Lord Justice Clerk, Lord Cullen, said
that the claim was for the physical and pecuniary consequences brought in
train by the second pursuer's pregnancy and childbirth rather than that the
child was "harm" to the parents. As to the claim for pain and distress
resulting from the pregnancy and childbirth, they did not have to be seen
as "injury" and there was no reason for thinking that the law did not
recognise them as damage. To say that was cancelled out by postnatal
happiness was not acceptable. As to the costs of rearing a child, he did not
accept that these could not result from the defenders' negligence: keeping
the child rather than arranging an abortion or an adoption did not break
the chain of causation. The parents had to spend extra money because of
the defenders' negligence which led to the birth of the child. They were
entitled to decide not to have a child. It was unwarranted to assume that
H the joy of having a child in every case exceeded any monetary claim which
might arise. It could not be said that the pursuers could have suffered no
loss worthy of compensation. He declined to consider whether public
policy prevented the claim from being brought: that was not for the court.
68
tfHadfcT McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|
Lord McCluskey said, at pp. 313, 315-316: ^
" 'Damnum' in the context of our law of reparation means a loss in
the sense of a material prejudice to an interest that the law recognises
as a legal interest. When there is a concurrence of injuria and
damnum the person whose legal right has been invaded with resultant
loss to him has a right to seek to recover money reparation for that
loss from the wrongdoer . . . In my view, it is sufficient to say that a 3
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."
As to whether the joy to be received from the birth of a child cancelled out
pain and financial loss he said, at pp. 316, 317: C
"I know of no principle of Scots law that entitles the wrongdoer to
say to the victims of his wrongdoing that they must look to their
prospective and impalpable gains on the roundabouts to balance what
they actually lose on the swings . . . I conclude that the benefits to the
parents of having a live healthy child cannot be taken into account
under any principle known to Scots law." D
He too rejected "public policy" as the criterion for deciding the issue.
Lord Allanbridge accepted that there was injuria. Once the husband
was told following the vasectomy that his sperm counts were negative and
that he could dispense with contraceptive precautions the damage occurred
when the wife became pregnant. His claim therefore arose before the birth
of the child. He too, thought they should be allowed to prove the loss E
injury and damage resulting from the fact that the wife became pregnant.
The parents' failure to arrange abortion or adoption was not a novus
actus interveniens.
The result of the judgment of the Court of Session is that the pursuers
should be able to seek to prove full recovery.
Although these judgments refer to the law of Scotland (which p
obviously was the applicable law) it is, as I understand it, accepted that the
law of England and that of Scotland should be the same in respect of the
matters which arise on this appeal. It would be strange, even absurd, if
they were not.
The issues raised in this case—or similar issues arising from other
methods of preventing conception and birth have arisen in cases before the
courts of England and Scotland for some 20 years but have not yet been G
considered by your Lordships. The issues have arisen also in the courts of
states of the United States, of the Commonwealth and of other European
states. Counsel have referred the House to many of these cases. There is no
single universally applied test. Judges have not only said (as here) in some
cases all, in some cases nothing can be recovered, they have also said that
the award may be for something in between. It is not necessary to refer to H
all of these cases but it is in my view of value to examine the trend of
decisions in England and Scotland and more briefly to see how the courts
of other countries have dealt with this difficult and often emotive matter.
69
L
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) of Hadie"
In Salih v. Enfield Health Authority [1991] 3 All E.R. 400 the cost of
maintaining a child born as a result of an incorrect diagnosis was rejected
either because this was not caused by the negligence or because the cost
would have been incurred in any event on the birth of at least one more
child.
In the Scottish case of Allan v. Greater Glasgow Health Board, 1998
E
S.L.T. 580, 584, 585, a judgment of 25 November 1993, Lord Cameron of
Lochbroom rejected contentions that public policy considerations
prevented a claim for pain and distress of pregnancy and birth, and he
awarded damages. He could see no reason why the cost of rearing a child
should not in principle be provided for:
"On the other hand, I can accept that there are matters for which no F
reparation will be given either because they are so intangible as to be
virtually impossible to assess in terms of money, as for instance, time
and trouble in bringing up a healthy child (as noted by Kerr L.J. in
Thake v. Maurice) or so remote and speculative as should be ignored
(as, for instance, the cost of a wedding as in Allen) . . . I therefore
reject the submission that there is any general bar to claiming child G
costs under the ordinary principles of law in Scotland pertaining to
assessment of damages or that public policy operates to exclude
wholly such costs. The question at the end of the day must be whether
what is sought by way of reparation can be regarded as reasonable
having in mind the particular circumstances of the particular case."
T_r
There has thus been in England and Scotland a trend towards allowing
damages both for the pain and distress of an unplanned pregnancy and
birth and also for the cost of rearing the child born.
71
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ^fH^di™
Ohio's public policy that the birth of a normal, healthy child cannot ^
be an injury to her parents."
In Public Health Trust v. Brown (1980) 388 So.2d 1048 the Supreme
Court of Florida, in refusing a claim for the cost of rearing a child to a
woman alleging a negligently performed sterilisation operation, followed
what they saw as the majority of courts in refusing such costs. They said,
at pp. 1085-1086: B
"In our view, however, its basic soundness lies in the simple
proposition that a parent cannot be said to have been damaged by the
birth and rearing of a normal, healthy child . . . it is a matter of
universally-shared emotion and sentiment that the intangible but all
important, incalculable but invaluable 'benefits' of parenthood far
outweigh any of the mere monetary burdens involved . . . Speaking Q
legally, this may be deemed conclusively presumed by the fact that a
prospective parent does not abort or subsequently place the
'unwanted' child for adoption . . . On a more practical level, the
validity of the principle may be tested simply by asking any parent
the purchase price for that particular youngster. Since this is the rule
of experience, it should be, and we therefore hold that it is, the
appropriate rule of law." D
Although this approach is followed it seems by the majority of state
courts in which limited damages are awarded, excluding rearing costs,
there is another approach. That is to accept the costs of rearing a child but
to set off against those costs the non-financial benefits and joys of the
parents in having a child. Thus in Sherlock v. Stillwater Clinic (1977) 260
N.W.2d 169, 176, where a claim was brought for the birth of a child E
following a negligently performed sterilisation of the mother, the majority
members of the Supreme Court of Minnesota held, in what they described
as "at best a mortal attempt to do justice in an imperfect world" that, after
valuing reasonably foreseeable expenses to be incurred in maintaining and
supporting and educating the child to maturity, in order to prevent unjust
enrichment "the trier of fact will then be required to reduce these costs by p
the value of the child's aid, comfort, and society which will benefit the
parents for the duration of their lives." That approach is obviously in
conflict with what was said in Lovelace's case, 805 P.2d 603.
The Commonwealth
In Administrator, Natal v. Edouard, 1990 (3) S.A. 581 in a claim for *-*
breach of contract where a sterilisation of the wife did not succeed, it was
held, where the sterilisation was performed for socio-economic reasons,
that the father could recover for the cost of maintaining the child but he
could not recover in contract for the pain and suffering of his wife. In L. v.
M. [1979] 2 N.Z.L.R. 519 Cooke J. in the Court of Appeal in New
Zealand expressed the view that the cost of rearing a child did not arise H
directly or indirectly from the faulty procedure adopted. In Kealey v.
Berezowski (1996) 136 D.L.R. (4th) 708 in Canada Lax J. refused damages
for the costs of rearing the child.
73
L
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ofHadi°"
Industries Pic. v. Dickman [1990] 2 A.C. 605 Lord Bridge of Harwich 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." B
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 Q
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 D
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 p
in respect of the claim for damages for the rearing of the child.
pregnancy and childbirth is not a personal injury. The Inner House, 1998 ^
S.L.T. 307 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. 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 B
in separate judgments that on conventional principles there were no
grounds which negatived the prima facie liability of the health board.
The issues
The statement of facts and issues summarised the questions to be
considered as follows, (i) Are the pursuers entitled to damages? (ii) Is the C
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 E
heads of claim there are no material differences between the law of
Scotland and the law of England.
^ 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
B 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
D effective social security safety net: see Fleming, The American Tort Process
(1988), pp. 26-27.
I will now eliminate the grounds upon which I would not decide
against the parents' claim for compensation for financial loss arising from
the child's birth. Counsel for the health board rightly did not argue that it
is a factor against the claim that the parents should have resorted to
F 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
F 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.
H 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
82
Lord Steyn McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|
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 B
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,
1 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, 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 D
to discriminate between rich and poor would, surely appear unseemly to
them. It would also worry them that parents may be put in a position of
arguing in court that the unwanted child, which they accepted and care
for, is more trouble than it is worth. Instinctively, the traveller on the
Underground would consider that the law of tort has no business to
provide legal remedies consequent upon the birth of a healthy child, which p
all of us regard as a valuable and good thing.
My Lords, to explain decisions denying a remedy for the cost of
bringing up an unwanted child by saying that there is no loss, no
foreseeable loss, no causative link or no ground for reasonable restitution
is to resort to unrealistic and formalistic propositions which mask the real
reasons for the decisions. And judges ought to strive to give the real
reasons for their decision. It is my firm conviction that where courts of law F
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. [1997] A.C. 254 the House
differentiated between the measure of damages for fraudulent and H
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
83
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Steyn
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 B
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 Q
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 D
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 g
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.
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 B
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, 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 his
observations, at p. 743, that he would also have awarded her damages for
sick days taken off work during pregnancy, for lost overtime and for other D
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, 715 P.2d 1076, Nevada, and p
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, 715 P.2d 1076, 1078: F
"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 G
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 H
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
89
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ofcSJtaH
^ 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
B 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
Q 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.
D
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 presented her claim as amounting to the cost of
fulfilling the obligation of aliment which the pursuers owe to the child
under section l(l)(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
F 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
H 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
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of°Cra"gTad McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|
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 B
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 c
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, E
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 p
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's case [1985] Q.B. 1012 and Lord Cameron of
Lochbroom's decision in Allan v. Greater Glasgow Health Board, 1998
S.L.T. 580.
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. G
Berkshire Area Health Authority, 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, 4 8 4 G
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 n
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:
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2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) of'c'aig'heSd
the child's aid, comfort, and society during the parents' life ^
expectancy."
Purchas L J . said that this was the approach which Watkins J. had
adopted in Scuriaga v. Powell, 123 S.J. 406 when he awarded damages to
the plaintiff who gave birth to a healthy child after a legal abortion had
failed to terminate her pregnancy.
There are three reasons for doubting, with great respect, Purchas L J ' s g
reliance on these cases in reaching the view which he did in Emeh's case. In
the first place, Watkins J. did not make any award in Scuriaga v. Powell
for the costs of child rearing. The awards which he made were for the
physical and mental suffering caused by the continuation of the pregnancy
and for the plaintiffs loss of earnings including future loss. In the second
place, the decision in Sherlock's case was to apply what has been described
as the "benefits rule" that is to say, to offset the value of the non- C
patrimonial benefits which the child gives against the costs of its
upbringing. The approach which the English courts have adopted is a
different one, namely to, award damages for the costs of child-rearing but
not to offset against those costs the value of the non-patrimonial benefits.
But the third and more significant point is that, as Angus Stewart Q.C.
has observed in his valuable article, "Damages for the Birth of a Child," ^
40 J.L.S.S. 298, the passage which Purchas L.J. quoted from Sherlock v.
Stillwater Clinic has been received into U.K. jurisprudence almost by
accident. It does not really deserve the status which has been accorded to
it in the English and Scottish authorities. It was quoted again by Kerr L.J.
in Thake v. Maurice [1986] Q.B. 644 and by Lord Cameron of Lochbroom
in Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 584B-E. But
two of the members of the court (Sheran C.J. and Peterson J.) dissented in E
that case, pointing to earlier authority in the same state to the effect that it
would be, in Sheran C.J.'s words, "preposterous for the father of an un-
planned child to be awarded damages in a case such as this for the cost of
nurture and education of the child during its minority." In a later case in
the same state, Hickman v. Group Health Plan Inc. (1986) 396 N.W.2d 10,
17 Minnesota, it was said, that the majority in Sherlock's case had allowed
the cause of action "somewhat hesitantly." Moreover the decision is out of
line with the majority view among the jurisdictions in the U.S. The
majority of states favour what has been described as the "limited damages
rule," which excludes child rearing costs.
The basis for the limited damages rule was described by the Supreme
Court of Florida in Public Health Trust v. Brown, 388 So.2d 1084, 1085-
1086 in a passage which was quoted with approval by Ward J. in the G
Supreme Court of Illinois in Cockrum v. Baumgarther (1983) 447 N.E.2d
385, 388:
"In our view . . . its basic soundness lies in the simple proposition
that a parent cannot be said to have been damaged by the birth and
rearing of a normal, healthy child. Even the courts in the minority
recognize, as the jury was instructed in this case, that the costs of H
providing for a child must be offset by the benefits supplied by his
very existence. But it is a matter of universally-shared emotion and
sentiment that the intangible but all important, incalculable but
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2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) ofoSJteS
^ with recent authorities in this House, which counsel on both sides were
right to accept are now part of Scots law, as to the requirements which
must be satisfied if damages for loss of that kind are to be recoverable.
There must be a relationship of proximity, and the attachment of liability
for the harm must be just, fair and reasonable.
I do not wish to place undue emphasis on the fact that the pursuers
chose to keep the child. The fact is, as Mrs. Smith so ably demonstrated,
B they had no other choice. The law is not so harsh as to drive parents, in
the very difficult situation in which the pursuers found themselves, to the
alternatives of abortion or placing for adoption, which, for obvious
reasons, they would have found quite unacceptable. Nevertheless they are
now bringing the child up within the family. There are benefits in this
arrangement as well as costs. In the short term there is the pleasure which
Q a child gives in return for the love and care which she receives during
infancy. In the longer term there is the mutual relationship of support and
affection which will continue well beyond the ending of the period of her
childhood.
In my opinion it would not be fair, just or reasonable, in any
assessment of the loss caused by the birth of the child, to leave these
benefits out of account. Otherwise the pursuers would be paid far too
D much. They would be relieved of the cost of rearing the child. They would
not be giving anything back to the wrongdoer for the benefits. But the
value which is to be attached to these benefits is incalculable. The costs
can be calculated but the benefits, which in fairness must be set against
them, cannot. The logical conclusion, as a matter of law, is that the costs
to the pursuers of meeting their obligations to the child during her
c childhood are not recoverable as damages. It cannot be established that,
overall and in the long run, these costs will exceed the value of the
benefits. This is economic loss of a kind which must be held to fall outside
the ambit of the duty of care which was owed to the pursuers by the
persons who carried out the procedures in the hospital and the laboratory.
For these reasons, which I believe are very similar to those which Lord
Steyn has given in his judgment, I would allow the appeal on this part of
F the pursuers' claim.
Conclusion
I would allow the appeal as to that part of the pursuers' claim which
relates to the costs of caring for, feeding and clothing and maintaining the
„ child and of her layette—the child-rearing costs. The pursuers' averments
relating to those matters, which go to make up the sum sued for in the first
conclusion, should not be admitted to probation. I would dismiss the
appeal as to the second named pursuer's claim for solatium. That matter,
which relates to the sum sued for in the second conclusion, is appropriate
for the proof before answer which was allowed in terms of the Second
Division's interlocutor.
H
LORD CLYDE. My Lords, the pursuers and respondents are the
parents of five children. They are claiming damages in respect of the
conception and subsequent birth of the youngest of these children. The
2 A.C. 2000—4
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|
^ pursuers will require to meet as parents of the child. But while there are
two distinct claims made, nevertheless if the action is to any extent
relevant there is only one right of action for the pursuers. That right arose,
if it did, at conception, the stage at which there was a concurrence of
injuria and damnum.
Before going any further it may be useful to highlight some particular
features of the present case which may serve to identify some limits both
B as regards the facts, the allegations of fault and the substance of the
damages claimed on which the present claim proceeds. In that connection
five observations may be made at this stage relating to the scope of the
problem.
First, to use the classification adopted in Kealey v. Berezowski, 136
D.L.R. (4th) 708, it is a claim for a wrongful conception. It is brought by
£, the parents, not by or on behalf of the child for any losses which she may
suffer. It is not a claim brought by the parents for a wrongful birth,
meaning by that a negligent failure to terminate pregnancy and distinct in
that respect from a wrongful conception. Anderson v. Forth Valley Health
Board, 1998 S.L.T. 588 was such a case. Nor is it a claim for a wrongful
life, brought by the child alone or with the parents on the ground of a
condition such that the child should not have been allowed to be born.
D Indeed, it is not, suggested that the child has any ground for claim.
Secondly, the present case relates to a conception which was followed
by a successful birth of a healthy child. In the course of the argument this
factor sometimes, but not at others, appeared to be of importance. If there
is a distinction in cases of wrongful conception between those where the
child is healthy and those where the child is unhealthy, or disabled or
_ otherwise imperfect, it has to be noted that in the present case we are
dealing with a normal birth and a healthy child.
Thirdly, the action is based on negligence, not contract, with no special
features in the knowledge or expectation of the parties which might
possibly be of significance. It does not proceed upon any warranty by the
defenders that unprotected intercourse would be safe. Again that may give
rise to different issues than those presently raised. Circumstances may of
F course occur where a claim for damages may be based either upon delict
or upon contract. Where there is an express or implied term of a contract
that particular work will be performed with all reasonable care there may
be no practical difference between the two formulations of the basis of the
claim for damages. But the distinction between cases of breach of contract
and cases of delict may be of significance, and in so far as in contract some
special considerations may arise it is as well to note that the present case is
founded purely on negligence and not on contract.
Fourthly, the issue raised in the appeal is strictly not one of the
existence of a duty of care on the defenders towards the pursuers. The
defenders admit that certain duties of care were incumbent upon them and
it is accepted that a duty of care was owed by the defenders to the
pursuers. Further for the purposes of the debate it may be assumed that
H the defenders acted in a way which amounted to a breach of the duties
which they owed to the pursuers. The only issue appears then to be one
about the existence and extent of loss which the pursuers have sustained as
a result of that breach. That leads immediately to the fifth consideration
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|
which relates to the nature of the two claims made in the present case. As ^
I have already noted, one is a claim for solatium with a further element of
financial loss, while the other, the joint claim, is a claim purely for a
financial loss. They both arise from an allegation of the making of a
negligent statement.
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 B
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 D
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, F
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 be 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. H
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 it you never know where it will carry you." As Pearson J.
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2 A.C. McFarlane \. Tayside Health Board (H.L.(Sc.)) Lord Clyde
A observed in his dissent in Public Health Trust v. Brown, 388 So.2d 1084,
1086: "I am confident that the majority recognises that any decision based
upon a notion 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
B the circumstances of the present case I do not consider that it is useful 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 Peter Pain J. in Thake
Q v. Maurice [1986] Q.B. 644 and not explored in that case on appeal. In
Emeh v. Kensington and Chelsea and Westminster Area Health Authority
[1985] 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] 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's case. In the careful
analysis of the law which was made by Brooke J. in Allen v. Bloomsbury
Health Authority [1993] 1 All E.R. 651 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
E 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
p allows the damages to include the cost of maintenance of the child it
appears that that matter has been allowed to develop undeterred by
considerations of policy. In the present case the Inner House similarly
found no overriding 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
G 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
H 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.
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|
A " y ° u 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
g 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
C 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
TJ 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
E 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
p 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
H 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.
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|
j^ 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
B 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
P foreseeable consequences of its being wrong: see Banque Bruxelles Lambert
S.A. v. Eagle Star Insurance Co. Ltd. [1997] A.C. 191, 214, per Lord
Hoffmann. 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
D 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
F 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
H 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,
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Lord Millett McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|
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 B
justice demands" (see Prosser and Keeton on 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.
My noble and learned friend, Lord Steyn, has summarised the
common law jurisprudence on the subject of unwanted pregnancies. As he
has explained, the Court of Appeal in England has admitted both heads of D
claim, ruling that there is no ground of public policy to override ordinary
principles which would lead to full recovery. This conclusion was reached
only after a difference of view at first instance and as a result of
misunderstanding the American jurisprudence. More recently three English
judges (Ognall J. in Jones v. Berkshire Area Health Authority, 2 July 1986,
Brooke J. in Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651 F
h
and Lloyd L.J. in Gold v. Haringey Health Authority [1988] Q.B. 481) have
expressed their personal disquiet at the result. In the United States, where
the question is one of state not federal law, the overwhelming majority of
jurisdictions admit the mother's personal claim but reject the parents'
claim to the costs involved in bringing up the child. The courts in Canada
and Australia appear to be moving in the same direction. New Zealand
(and Nevada) dismiss both claims. The judgments in favour of rejecting F
the claim in respect of the financial consequences of the birth of a healthy
baby are heavily dependent on moral sentiments. Judges in different
jurisdictions have described the claim as "morally offensive," "demeaning
of the value of human life," "simply grotesque," "on the face of it
ridiculous," and "preposterous." But few of the appellate decisions have
been unanimous. Many of them contain powerful and persuasive
dissenting judgments. Every argument propounded by the one side has
been forcibly refuted by the other, often in the same case. The diversity of
reasoning and the force with which the opposing arguments have been
advanced and rebutted attest to the difficulty of the problem.
I do not think that the solution is to be found in a process of
categorisation, whether of the nature of the delict or the loss in respect of
which damages are claimed. It is true that the claims in the present case H
are brought under the extended Hedley Byrne principle (Hedley Byrne &
Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465). But I agree with my
noble and learned friend, Lord Steyn, that it should not matter whether
109
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) Lord Millett
to a lawful termination. But suppose that Mr. and Mrs. McFarlane were A
strongly opposed to abortion, and could not in conscience resort to one.
Suppose further that, to their great joy and relief, childbirth was
uneventful and the baby was entirely normal. It would seem to be absurd
to allow a claim for the costs of bringing up the child in these
circumstances. Recovery has been denied in a number of such cases in the
United States when the feared harm did not materialise: see for example
Hartke v. McKelway (1983) 707 F.2d 1544. B
But if the costs of bringing up the child are to be disallowed in that
case and allowed in this, then the distinguishing feature must lie in the
parents' motivation. I would be reluctant to go down this path. In the first
place, there are more than the two cases to consider. The parents may
have sought to guard against the risk of endangering the mother's life or
the birth of a defective child, when presumably recovery would be denied, Q
They may have agreed to sterilisation because they could not afford
another child, when presumably recovery would be allowed. Or they may
simply have decided that enough was enough, as in Kealey v. Berezowski,
136 D.L.R. (4th) 708, where the mother sought sterilisation because "this
body wasn't having any more children." The present case appears, at least
at first sight, to fall into this third, category. Is recovery to be denied
because Mr. and Mrs. McFarlane do not allege in terms that they could L")
not afford another child? Or is it to be allowed because they were not
motivated by genetic or therapeutic considerations? Neither principle nor
policy indicates the answer.
In the second place, there are great difficulties both evidential and
conceptual in this approach. The parents' motives may have been mixed
and their primary motives hard to discern and, as I have already pointed £
out, may not have been identical. Moreover, they are unlikely to have
been communicated to those responsible for performing the operation. It
is enough for them to know that their patients wanted no more children;
they have no need to know their reasons and it would be impertinent of
them to enquire. It is difficult to justify a rule which would make their
liability depend on facts which were unknown to them and which are, to
put it crudely, none of their business. F
It is unnecessary to consider all the various reasons which have been
advanced in the cases for denying recovery of the child-rearing costs. It is
sufficient to examine the two principal grounds upon which such claims
have been dismissed, together with the contrary arguments. First, it is said
that the birth of a healthy baby is not a harm but a blessing. It is "a
priceless joy" and "a cause for celebration;" it is "not a matter for Q
compensation." Secondly, it is said that the costs of bringing up the child
are not the result of his birth but of the parents' deliberate decision to
keep the child and not to have an abortion or to place the child for
adoption.
In an often cited passage in Public Health Trust v. Brown, 388 So.2d
1084, 1085-1086 the court observed:
H
"a parent cannot be said to have been damaged by the birth and
rearing of a normal, healthy child. Even the courts in the minority
recognise . . . that the costs of providing for a child must be offset by
Ill
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) Lord Millett
^ safe delivery. Are they to be told that their parents have given their little
sister away because they cannot afford to keep her? But I would go
further. I regard the proposition that it is unreasonable for parents not to
have an abortion or place a child for adoption as far more repugnant than
the characterisation of the birth of a healthy and normal child as a
detriment. I agree with Slade L.J. in Emeh v. Kensington and Chelsea and
Westminster Area Health Authority [1985] Q.B. 1012, 1024 that save in the
B most exceptional circumstances (which it is very hard to imagine) it can
never be unreasonable for parents or prospective parents to decline to
terminate a pregnancy or to place the child for adoption.
The present argument is different. It is that, however reasonable, the
parents' decision to keep the child breaks the chain of causation. The
point is well expressed by Priestley J.A. in C.E.S. v. Superclinics
c (Australia) Pty. Ltd., 38 N.S.W.L.R. 47, 84-85:
"The point in the present case is that the plaintiff chose to keep her
child. The anguish of having to make the choice is part of the damage
caused by the negligent breach of duty, but the fact remains, however
compelling the psychological pressure on the plaintiff may have been
to keep the child, the opportunity of choice was in my opinion real
„ and the choice made was voluntary. It was this choice which was the
cause, in my opinion, of the subsequent cost of rearing the child.
Putting the matter another way, in my opinion . . . the defendant's
negligence should not, as a matter of ordinary commonsense and
experience, be regarded as a cause of the ordinary expenses of rearing
a child that [its] parent has chosen to bring up. The plaintiff, having
chosen to keep the child in the human way that as I have said I think
E most people in the community would approve of, is not entitled to
damages for the financial consequences of having made that difficult
but ordinary human choice."
I find the conclusion more attractive than the route by which it is
reached. If the parents have a choice, it is one they should never have been
called upon to make. But there is no choice if there is no realistic
F alternative. It would be better to substitute the word "decision," but even
this is not necessarily appropriate. It is doubtful whether Mr. and
Mrs. McFarlane made any conscious decision to keep Catherine. It is
more likely that they never even contemplated an alternative. The critical
fact is that they have kept her, not that they deliberately chose or decided
to do so. It is, of course, that fact which has inevitably involved them in
the responsibility and expense of bringing her up. But I cannot accept the
proposition that this has broken the chain of causation. Catherine's
conception and birth, and the restoration of the status quo by abortion or
adoption, were the very things that the defenders were engaged to prevent.
If conception and birth occurred, they inevitably had financial
consequences. The costs of bringing her up are no more remote than the
costs of an abortion or an adoption would have been. In each case the
H causal connection is strong, direct and foreseeable.
Nevertheless I am persuaded that the costs of bringing Catherine up
are not recoverable. I accept the thrust of both the main arguments in
favour of dismissing such a claim. In my opinion the law must take the
2 A.C. 2000—5
114
Lord Millett McFarlane v. Taysidc Health Board (H.L.(Sc)) |2000|
[HOUSE O F LORDS]
R E G I N A v . S E C R E T A R Y O F STATE F O R T H E
H O M E D E P A R T M E N T , Ex parte S I M M S AND ANOTHER