Evie Toombes (a protected party who sues by her mother and litigation friend, Caroline Toombes) v Dr Philip Mitchell (sued in his own right and as a partner in, and on behalf of all the partners in the Hawthorn Medical Practice)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert |
| Judgment Date | 21 December 2020 |
| Neutral Citation | [2020] EWHC 3506 (QB) |
| Docket Number | Case No: QB-2019-001503 |
| Court | Queen's Bench Division |
| Date | 21 December 2020 |
[2020] EWHC 3506 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lambert DBE
Case No: QB-2019-001503
Ms Susan Rodway QC (instructed by Moore Barlow) for the Claimant
Mr Christopher Johnston QC (instructed by Clyde & Co) for the Defendant
Hearing dates: 9 and 10 November 2020
Approved by the court for handing down
Introduction
The Claimant was born on 19 November 2001. She has a congenital developmental defect causing spinal cord tethering. Her mobility is very limited and she suffers from urinary and bowel incontinence. She alleges that the cause of her physical disability is her mother's failure to take folic acid before her conception which was, in turn, due to the Defendant's negligent advice. She brings this claim through her mother and litigation friend in respect of her own “ wrongful conception and birth” alleging that, but for the negligence of the Defendant, she would never have been conceived, and that “ her damage and disability are due to this”.
The action comes before me on a trial of the preliminary issue. The Defence makes clear that the allegations made in the Particulars of Claim are comprehensively disputed. This dispute remains. However, for the purpose of this trial of the preliminary issue, a set of facts which puts the Claimant's case at its highest has been agreed. The issue for me is whether, on the basis of those facts, the claim discloses a lawful cause of action.
The facts which have been agreed include that, but for the breach of duty, the Claimant would not have been conceived. The Defendant therefore submits that this is a claim in which the injury alleged is not the Claimant's disability but the fact of her existence. It is the Defendant's case that the action is one of “wrongful life”, a term coined in the United States and adopted by the Law Commission in its Report on Injuries to Unborn Children (Law Com. No. 60) of August 1974 (“the Report”). As such, the claim is expressly excluded by the provisions of the Congenital Disabilities (Civil Liability) Act 1976 (“the Act”) which gave effect to the recommendations of the Law Commission. Relying upon the judgment of the Court of Appeal in McKay v Essex Area Health Authority [1982] 2 All ER 771, the Defendant also submits that the claim would not have been recognised at common law, even before the introduction of the Act in July 1976. In McKay the Court struck out the claim brought by a child, born with significant disabilities consequential upon her mother's infection with rubella during the pregnancy, who alleged that, but for the breach of duty, the pregnancy would have been terminated. The Court observed that, after the coming into force of the Act on July 22 1976 “ there can be no question of such a cause of action arising in respect of births” and that “ this case therefore raises no point of general public importance”. Both under the Act and at common law, the Defendant therefore submits that the agreed facts do not disclose a lawful cause of action.
The Claimant submits that the claim is not a claim for “wrongful life” and that to apply this label to the action is to misunderstand what the Law Commission intended to convey by the term; that whilst actions for “wrongful life” in the strict sense of the term were excluded under the Act, this claim is not such a claim. The claim is one which falls squarely within the scope of subsection 1(2)(a) of the Act which permits recovery by children born disabled as a consequence of negligence affecting a parent in his or her ability to have a healthy child. The Claimant submits that, on a proper reading of the Act, the Report and the judgments of the Court of Appeal in McKay, the label of “wrongful life” is restricted to tortious acts or omissions following conception but for which the pregnancy would have been terminated. As Ms Susan Rodway QC for the Claimant put it in argument before me, “wrongful life” cases are “abortion cases” as distinct from cases in which it is alleged that, but for the negligence, the child would not have been conceived.
The focus of this preliminary issue trial is the proper interpretation of section 1 of the Act. The Report is relied upon by both parties as an external aid to construction, the Act having been passed exactly in accordance with the draft Bill annexed to the Report. The parties also place reliance upon the judgments in McKay in support of their competing definitions of claims for “wrongful life” and to the extent that the judgments interpret the relevant provisions of the Act.
The Claimant was represented by Ms Rodway and the Defendant by Mr Christopher Johnston QC. I am grateful to them both for their submissions.
The Agreed Facts
I set out below the salient agreed facts relevant to the preliminary issue trial.
a. The Claimant was conceived in early 2001. Before conception, the Claimant's mother attended an appointment with the Defendant, her general practitioner, to discuss family planning. This appointment took place on 27 February 2001.
b. At the time, it was standard practice for GPs to advise prospective mothers of the potential benefits of taking sufficient folic acid before conception and during the first trimester. It was understood that an adequate intake may potentially reduce the risk of a baby being born with neural tube defects.
c. The Defendant advised the Claimant's mother that taking folic acid was optional and that it was for her to decide whether to take the supplement. The Defendant did not warn the Claimant's mother of any association between folic acid intake and the prevention of spina bifida. He did not prescribe her folic acid supplements. In so doing, the Defendant acted in breach of duty to the Claimant's mother.
d. Shortly after the consultation and in reliance upon the Defendant's advice, the Claimant was conceived. The Claimant was born on 19 November 2001. The Claimant was diagnosed with a lipomylomeningocoele (LMM), an occult form of neural tube defect leading to permanent disability.
e. For the purposes of this preliminary issues trial, it is accepted that:
i. The Defendant's failure to advise the Claimant's mother that she should take folic acid supplement, and to prescribe the supplement, was a breach of the duty of care (owed to the Claimant's mother);
ii. But for that breach of duty, the Claimant's mother would have delayed attempting to conceive for a number of weeks whilst she increased her intake of folic acid and achieved the therapeutic level of the folic acid in her bloodstream which she would then have maintained during the first 12 weeks of the pregnancy;
iii. The Claimant was, in fact, conceived shortly after the consultation and during the time which, but for the breach, the Claimant's mother would have been increasing her intake of folic acid and avoiding conception. It follows that, but for the breach, the Claimant would not have been conceived and born at all. This reflects the Claimant's case on causation which is that: “ she was wrongly conceived and born and that her damage and disability is due to this. Her claim is that her mother would not have conceived her, that her mother would have attempted conception at a later point in time and hence that a sibling, not the Claimant, would have been conceived and born”; and
iv. The sibling would have been “ a genetically different person” who would not have suffered from a neural tube defect.
f. In fact, the Claimant has a younger sibling, who was born without congenital defects.
The Pleadings
The Particulars of Claim set out the facts alleged, the allegations of breach of duty and the Claimant's case on causation. Given the facts which have been agreed for present purposes, it is not necessary for me to repeat those sections of the claim. The legal basis for the action, whether the claim is brought at common law or under the Act and, if under the Act, how the Claimant articulates her claim is not set out in the Particulars of Claim. The objections made by the Defendant were not anticipated in the Particulars of Claim nor, having been raised in the Defence, were they addressed in a Reply. As to the damages sought, although only a preliminary schedule was served with the pleadings, it is apparent that it is the additional costs associated with the disability that are claimed, not the full costs of uninjured and injured living expenses.
So far as relevant to the issue before me, the Defence sets out the basis upon which it is alleged that the claim discloses no cause of action. It is asserted that the claim is one for wrongful life and is not actionable under the Act, as interpreted by the Court of Appeal in McKay; that the Defendant cannot owe the Claimant a duty of care to prevent her coming into existence; and that even if Parliament were to amend the Act to permit a wrongful life claim and to give the legislation retrospective effect to apply to the claim, this would not be a claim in which damages would be recoverable. The Claimant contends that she would and should not have been born and her claim for damages invites a comparison between the condition she is in now, and her non-existence, which is an impossible task upon which the Court cannot embark.
The parties also agreed a set of “Issues of Law” for the...
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Medical: UK Wrongful life issues revisited.
...this issue which has again come before the Courts. Readers of this blog will remember the interlocutory decision Toombes v Mitchell [2020] EWHC 3506 (QB) (21 December 2020) (available on BAILII) which sought to determine a preliminary issue – whether on the facts of the claimant’s case take......