Goodwill v British Pregnancy Advisory Service
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE THORPE |
| Judgment Date | 17 January 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0117-1 |
| Docket Number | Case No. 9204044 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 1996 |
[1996] EWCA Civ J0117-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(His Honour Judge Clark)
Before: Lord Justice Peter Gibson Lord Justice Thorpe
Case No. 9204044
MISS C. BOOTH, Q.C. (instructed by Messrs. Linnells, Solicitors, Oxford) appeared on behalf of the (Plaintiff) Respondent.
MR. R. STEWART (instructed by Messrs. Reynolds Porter Chamberlain, Solicitors, London, WC1V 7HA) appeared on behalf of the Defendant (Appellant)
The law of negligence, and in particular that part relating to the recovery of damages for economic loss caused by negligent statements or advice, has undergone a number of shifts in direction. The attempt in Anns v Merton London Borough Council [1978] A.C. 728 to lay down a principle of general applicability did not find favour for long. Instead, whilst certain key ingredients of the tort, such as foreseeability, proximity, assumption of responsibility and reliance have been identified, it has been held that the law should develop incrementally by reference to or analogy with established categories of situations where the law has recognised that a duty of care arises and a plaintiff may recover for his loss. The situation in the present case, it is accepted on behalf of the Plaintiff, does not fall within an established category, but, it is suggested, it requires only a modest step from an established category and one which should on the favoured incremental approach now be taken to afford the Plaintiff a remedy in tort. That is challenged by the Defendants who say that it requires a giant and impermissible leap from an established category and that not even arguably was any duty of care owed by these defendants to this plaintiff in the circumstances of this case.
This is an appeal by the Defendants, British Pregnancy Advisory Service, from the order of His Honour Judge Paul Clark in the Oxford County Court on 27 March 1995. He refused to strike out the claims of the Plaintiff, Mrs. Goodwill. The application to strike out had been made under O. 13 r.5 of the County Court Rules on grounds which can be divided into two. One was that the Amended Particulars of Claim disclosed no reasonable cause of action. The other was that those pleadings were frivolous or vexatious or an abuse of the process of the court. I take the essence of the second ground to be that the Plaintiff's claims were manifestly unsustainable. The Judge gave leave to appeal.
The facts alleged in the Particulars of Claim dated 30 March 1992 as further and better particularised on 28 August 1992 and as amended on 16 August 1993 can be summarised as follows. The Defendants are a charity engaged in the arrangement and provision of sterilisation operations including vasectomies and associated counselling services. The Defendants arranged for a vasectomy to be performed on a Mr. MacKinlay on 28 November 1984. A little over 3 months later 2 semen samples were provided by Mr. MacKinlay to the Defendants. On 2 April 1985 the Defendants informed him by letter that the tests on the samples had proved negative, that the vasectomy had been successful and that Mr. MacKinlay no longer needed to use any other method of contraception. In March 1988 the Plaintiff, Mrs. Goodwill, then a 40 year old teacher, commenced a sexual relationship with Mr. MacKinlay. The Plaintiff knew of his vasectomy and of its purported success and permanency in that in March 1988 he volunteered to her that he did not want to have any more children and that accordingly he had had a vasectomy and could not have any more children. Induced by and in reliance on that knowledge she ceased to use a contraceptive coil in May 1988 and no other method of contraception was used by him or her. Prior to January 1989 the vasectomy underwent spontaneous reversal, thereby causing him to regain his fertility. She became pregnant by him in or about January 1989. She learnt on 26 April 1989 that she was pregnant. It was then too late for an abortion. She gave birth to a daughter on 5 November 1989.
Proceedings were commenced by the Plaintiff against the Defendants on 2 April 1992. The allegations of a duty of care, foreseeability and negligence were pleaded in this way:
"5. The Defendants well knew, or ought to have known, that the said Mackinlay and any existing or future sexual partner of the said Mackinlay would or would be likely to rely on the information contained in the said letter [of 2 April 1985] as warranting that the said Mackinlay had been rendered permanently infertile. In the premises, the Defendants owed a duty to the Plaintiff to take reasonable care to ensure that the matters stated in the said letter were true.
………..
9. In stating in the said letter of 2nd April 1985 that the said vasectomy had been successful and that the said Mackinlay no longer need use any other method of contraception, the Defendants acted negligently and in breach of the duty of care which they owed to the Plaintiff.
PARTICULARS OF CLAIM
The Defendants were negligent in that they
a)failed to warn the said Mackinlay whether adequately or at all as to the possibility of late spontaneous reversal of the vasectomy at a time when such possibility was or ought to have been well known to them;
b)failed to warn the said Mackinlay adequately or at all of the possible impregnation of a sexual partner in consequence of such late spontaneous reversal;
c)failed to advise the said Mackinlay adequately or at all as to the necessity of further contraceptive protection to eliminate as far as practicable the possibility of impregnation of an existing or future sexual partner."
The Plaintiff claimed that she had suffered loss and damage consisting of the expenses at her daughter's birth, the cost of bringing her daughter up and the loss of income due to the reduction of her working hours. At 30 March 1992 the accrued damages were estimated at nearly £11,500 and further damages were alleged to be accruing at a little over £10,000 per annum. There is thus no claim other than for financial loss.
A Defence was served on 29 July 1992. The Defendants served a Third Party Notice on Mr. MacKinlay, to which he served a Defence on 12 April 1993. On 24 June 1994 the case was set down for trial. Witness statements were exchanged in December 1994, the Plaintiff supplying a proof of evidence which she had signed on 10 October 1989. On 25 January 1995 the Defendants applied to strike out, but the Judge on 27 March dismissed the application.
The Judge first considered the application to strike out on the ground of no reasonable cause of action, correctly confining his attention to the pleaded facts. He could not find that it was clear beyond doubt that the Plaintiff had no reasonable cause of action, and he expressed himself as "satisfied that the case, whatever its potential weaknesses, is fit for judicial decision under this heading".
The Judge then turned to the application to strike out on the grounds that the claims were frivolous or vexatious or an abuse of the process of the court. For this he looked at the other evidence outside the Amended Particulars of Claim, including the Plaintiff's proof of evidence. From the further evidence the following matters were revealed:
(1) At the time of the vasectomy and of the letter of 2 April 1985 Mr. MacKinlay was married and both he and his wife received counselling from the Defendants.
(2) The Plaintiff at that time was also married and had one son but was divorced in March 1988.
(3) In March 1988 the Plaintiff met Mr. MacKinlay and commenced a sexual relationship with him a month later.
(4) In May 1988 the Plaintiff consulted her own GP about removing her contraceptive coil; she discussed with the GP the fact that Mr. MacKinlay had told her that he had had a vasectomy and the GP said something like "it was only a one in a million chance of getting pregnant" and she was assured that there was a minute chance of becoming pregnant.
(5) On 4 April 1989 the Plaintiff went to see her GP, thinking that there was a minute chance that she might be pregnant, but discounted such thoughts because Mr. MacKinlay had had the vasectomy. She was told that she might be suffering from an ovarian cyst.
(6) The Plaintiff underwent a scan and was told on 26 April that she was 14 weeks pregnant.
(7) When the Plaintiff discovered she was pregnant, she was pleased; she had hoped to have another baby and had been disappointed when at the time her relationship with Mr. MacKinlay developed, she realised that he had had a vasectomy and she could not have had children by him. But her feelings were greatly affected by the knowledge that she was a single person. Mr. MacKinlay was married and living with his wife and family and the chances were that if she decided to go ahead and have the baby she would have to do so as a single parent. She was also upset that she had lost the chance of a termination because by the time the pregnancy was diagnosed it was too late.
(8) The Plaintiff spent a couple of weeks in a great state of turmoil and anxiety before deciding to go ahead with the pregnancy. Although it might have been still possible to terminate the pregnancy, the implications were much more serious because the foetus was so well developed and because of her belief that life was sacred. She also knew in her heart of hearts that she could not abort the life that she had previously thought was an omen of death.
The...
To continue reading
Request your trial
-
ABC v St George's Healthcare Nhs Trust
...wife of a married man who had undergone a vasectomy was able to claim damages for a subsequent pregnancy. By contrast, in Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397, there was no sufficiently proximal relationship between the defendants and a woman who had later entere......
-
McFarlane et al. v. Tayside Health Board, (1999) 250 N.R. 252 (HL)
...Manchester Health Authority, [1995] 1 W.L.R. 1543 (C.A.), refd to. [paras. 44, 109]. Goodwill v. British Pregnancy Advisory Service, [1996] 1 W.L.R. 1397 (C.A.), refd to. [para. Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [paras. 45, 89]. Murphy v. Brentwood Dist......
-
D v East Berkshire Community Health _NHS Trust; K and another v Dewsbury Healthcare _NHS Trust and another ; K and another v Oldham NHS Trust
...(2003) 78 BMLR 22. Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33, Aust HC. Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161, [1996] 1 WLR 1397, CA. Gorringe v Calderdale Metropolitan BC[2004] UKHL 15, [2004] 2 All ER 326, [2004] 1 WLR 1057. Hall (Arthur JS) & C......
- Anderson v Forth Valley Health Board
-
When is a Subsidiary's Negligence the Parent Company's Problem?
...a pre-employment medical check for an employer owed 178 Allen, above n 173, at 400. 179 Goodwill v British Pregnancy Advisory Services [1996] 1 WLR 1397 (CA). 180 Allen, above n 173, at 401. 181 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA). See also Stephen Todd (ed) Todd on Torts (8th ......