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

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The Independent Online
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.