Friday law report: No damages recoverable for cost of rearing child

3 December 1999

McFarlane and another v Tayside Health Board

House of Lords (Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Millett) 25 November 1999

WHERE AN unwanted pregnancy resulted from the negligence of a health authority in connection with a vasectomy operation, the authority would be liable for damages for the physical effects of the pregnancy and childbirth but not for the costs of bringing up the child.

The House of Lords rejected the appeal of the Health Board against a decision that it was liable for the physical effects of pregnancy and childbirth on the mother, whose pregnancy was unwanted and was a result of the board's negligence, but allowed its appeal in respect of the costs of rearing the child.

In October 1989 the father underwent a vasectomy operation. He was notified by letter in March 1990 that his sperm counts were negative. In September 1991, following the resumption of intercourse without contraceptive measures, the mother became pregnant and their fifth child was born in May 1992.

The parents claimed that the mother had suffered pain and distress from the pregnancy and birth, and that they had both incurred and would incur costs in rearing the child, all due to the negligence of the board. The Lord Ordinary dismissed both claims, holding that as a matter of principle the parents were not entitled to damages, because they could not be said to be in an overall position of loss.

The Second Division of the Court of Session unanimously allowed a reclaiming motion, holding that where loss had resulted from injury, the law recognised a legal interest which had to be made good by an award of damages. Applying that 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 admissible. Accordingly, the parents should be able to seek full recovery. The board appealed.

Anne Smith QC and Stephen Woolman QC (Balfour & Manson, Edinburgh) for the parents; Colin Campbell QC and Laura Dunlop (Lawrence Graham) for the board.

Lord Slynn said that there was no real difficulty in deciding the claim for damages in respect of the pregnancy and birth itself. The parents did not want another child for justifiable economic and family reasons: they already had four children. They were lawfully entitled to take steps to ensure that that did not happen, one possible such step being the vasectomy of the husband.

It was not necessary to consider the events of an unwanted conception and birth in terms of "harm" or "injury" in the ordinary sense of the words. They were unwanted and known by the board to be unwanted events. The object of the vasectomy was to prevent them happening. In consequence the wife, if there was negligence, was entitled by way of general damages to be compensated for the pain and discomfort and inconvenience of the unwanted pregnancy and birth.

Whether the parents should be entitled as a matter of principle to recover for the costs of maintaining the child was a much more difficult question. That part of the case was concerned only with liability for economic loss. It was not enough to say that the loss was foreseeable. The question was not simply one of quantification of damages, it was one of liability, of the extent of the duty of care which was owed to the husband and wife.

In order to create liability for economic loss there might have to be a closer link between the act and the damage than that provided by foreseeability. There should be a relationship of neighbourhood or proximity, and that depended on whether it was fair, just and reasonable for the law to impose the duty.

Although a doctor undertook a duty of care in regard to the prevention of pregnancy, it did not follow that the duty included also avoiding the costs of rearing the child if born and accepted into the family. It was 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 did not assume responsibility for those losses.

Suggested Topics
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Compensation and Benefits Manager - Brentwood - Circa £60,000

£60000 per annum: Ashdown Group: Compensation and Benefits Manager - Compensat...

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £35000 per annum + negotiable: Sauce Recruitment: We have an exciting...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £32000 per annum + negotiable: Sauce Recruitment: We have an exciting...

Day In a Page

Wilko Johnson, now the bad news: musician splits with manager after police investigate assault claims

Wilko Johnson, now the bad news

Former Dr Feelgood splits with manager after police investigate assault claims
Mark Udall: The Democrat Senator with a fight on his hands ahead of the US midterm elections

Mark Udall: The Democrat Senator with a fight on his hands

The Senator for Colorado is for gay rights, for abortion rights – and in the Republicans’ sights as they threaten to take control of the Senate next month
New discoveries show more contact between far-flung prehistoric humans than had been thought

New discoveries show more contact between far-flung prehistoric humans than had been thought

Evidence found of contact between Easter Islanders and South America
Cerys Matthews reveals how her uncle taped 150 interviews for a biography of Dylan Thomas

Cerys Matthews on Dylan Thomas

The singer reveals how her uncle taped 150 interviews for a biography of the famous Welsh poet
DIY is not fun and we've finally realised this as a nation

Homebase closures: 'DIY is not fun'

Homebase has announced the closure of one in four of its stores. Nick Harding, who never did know his awl from his elbow, is glad to see the back of DIY
The Battle of the Five Armies: Air New Zealand releases new Hobbit-inspired in-flight video

Air New Zealand's wizard in-flight video

The airline has released a new Hobbit-inspired clip dubbed "The most epic safety video ever made"
Pumpkin spice is the flavour of the month - but can you stomach the sweetness?

Pumpkin spice is the flavour of the month

The combination of cinnamon, clove, nutmeg (and no actual pumpkin), now flavours everything from lattes to cream cheese in the US
11 best sonic skincare brushes

11 best sonic skincare brushes

Forget the flannel - take skincare to the next level by using your favourite cleanser with a sonic facial brush
Paul Scholes column: I'm not worried about Manchester United's defence - Chelsea test can be the making of Phil Jones and Marcos Rojo

Paul Scholes column

I'm not worried about Manchester United's defence - Chelsea test can be the making of Jones and Rojo
Frank Warren: Boxing has its problems but in all my time I've never seen a crooked fight

Frank Warren: Boxing has its problems but in all my time I've never seen a crooked fight

While other sports are stalked by corruption, we are an easy target for the critics
Jamie Roberts exclusive interview: 'I'm a man of my word – I'll stay in Paris'

Jamie Roberts: 'I'm a man of my word – I'll stay in Paris'

Wales centre says he’s not coming home but is looking to establish himself at Racing Métro
How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?

A crime that reveals London's dark heart

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?
Meet 'Porridge' and 'Vampire': Chinese state TV is offering advice for citizens picking a Western moniker

Lost in translation: Western monikers

Chinese state TV is offering advice for citizens picking a Western moniker. Simon Usborne, who met a 'Porridge' and a 'Vampire' while in China, can see the problem
Handy hacks that make life easier: New book reveals how to rid your inbox of spam, protect your passwords and amplify your iPhone

Handy hacks that make life easier

New book reveals how to rid your email inbox of spam, protect your passwords and amplify your iPhone with a loo-roll
KidZania lets children try their hands at being a firefighter, doctor or factory worker for the day

KidZania: It's a small world

The new 'educational entertainment experience' in London's Shepherd's Bush will allow children to try out the jobs that are usually undertaken by adults, including firefighter, doctor or factory worker