Greenfield v Flather
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,Lord Justice Laws,LORD JUSTICE MAY,Lord Justice Buxton,LORD JUSTICE LAWS |
| Judgment Date | 24 January 2001 |
| Neutral Citation | [2001] EWCA Civ 113 |
| Docket Number | NO: A2/2000/2126 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2001 |
[2001] EWCA Civ 113
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
NORWICH DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Buxton
Lord Justice May and
Lord Justice Laws
NO: A2/2000/2126
Mr WALTER AYLEN QC and Mr RICHARD OUGH (instructed by Ashton Graham, Electric House, Lloyds Ave, Lipswich, Suffolk) appeared on behalf of the Appellant
Mr KIERAN COONAN QC and MISS KATIE GOLLOP (instructed by Hempsons, 33 Henrieth St, London WC2E 8NH) appeared on behalf of the Respondent
This is an appeal from a decision of His Honour Judge Langan QC, sitting as a judge of the High Court on a preliminary issue in a clinical negligence case.
The brief facts that are accepted or assumed for the purpose of this preliminary point are that in 1994 the claimant, a lady who was then 37 years old and in full-time employment, was a patient of the general medical practice who are the defendants in this claim. She was prescribed by the doctors a course of contraception by way of injection. There is no complaint about that decision or about the way in which that limited part of the treatment was administered. Her complaint is that the nurses who were employed by the doctors to administer the treatment failed to observe that she was pregnant.
The issue of pregnancy, as I understand it, arose during the course of that treatment and was relevant firstly because the course of treatment and the instructions for it require the administration of a pregnancy test, which did not happen in this case; and secondly, as I would assume, because had it been known that the patient was pregnant at the time, it is not lawful, I would imagine, with that knowledge to administer this treatment, save in the limited circumstances in which a pregnancy may be terminated. Be that as it may, for the purpose of this application it is accepted that there was an act of negligence by reason of the fact that the claimant was not told that she was pregnant. That fact was not identified until she herself, becoming concerned about the matter, administered a test to herself.
In due course she gave birth to a daughter, a child that originally she had not wanted, but the judge was told that happily that child was now a welcome member of the family. She has taken the decision to give up her employment in order to care for that child. Her claim in these proceedings is, however, that if she had been told at the right time that she was indeed pregnant, she would have had that pregnancy terminated by way of an abortion, and therefore, because she would not have a daughter to look after, she would still be working outside the home. It will of course be observed that such course of action could not have been followed unless it would have been in the circumstances lawful to do so under the law with regard to termination of pregnancies. Here again, however, it is assumed for the purpose of this application that such a termination, if it had taken place, would have been lawful. I think it is perhaps important to underline that that is an assumption made for the purpose of these proceedings. The matter, as I understand it, has not been decided, and is certainly not being decided by this Court.
Her case, and the issue that matters in this application, is that she is entitled to include in the damages that are recoverable for the defendant's negligence compensation for the loss of her earnings: that is to say, compensation for the fact that during really the whole of the time when the child requires the mother's presence at home full-time or part-time in order to care for her, the claimant cannot work. The judge determined that that head of damages was not recoverable in this action. It is against that finding that this appeal is brought.
The judge, in what was, if I may be permitted to say so, an exemplarily clear and elegant judgment, found himself forced to that conclusion by reference to the decision of the House of Lords in the case of McFarlane v Tayside Health Board [2000] 2 AC 59. The judge submitted that authority to close inspection and it is necessary that we should say a good deal about it: it being, as I said, the case that the judge found it to be conclusive in dismissing this claim. In the McFarlane case the pursuers (or in English terms claimants) were a married couple already with four children who decided they did not want to have any more children and that in order to achieve that end the husband should undergo a vasectomy. That vasectomy was conducted in a negligent manner, and as a result the parents, believing that they could continue to have intercourse without the danger of conception, did so, and the wife because the vasectomy had failed gave birth to a child, again originally unwanted but happily found by the Court to have become an integral and loved part of the family.
There were two separate heads of claim in the McFarlane case. First, what was described for the purposes of identification as the mother's claim, which was a claim for discomfort from the pregnancy and the injury and stress of the act of giving birth. A ruling that she could recover in that respect was upheld in the House of Lords. There was, secondly what was described as the parents' claim, for the cost of caring for and bringing up the child. The House of Lords held that they could not recover for that head of damage. It was, basically speaking, the judge's conclusion that no relevant distinction was to be drawn between a case such as McFarlane, when there was expenditure incurred directly on the bringing up of the child, and a case such as our case where there has been a loss of earnings because the parent has left work to devote herself to the rearing of the child.
Mr Walter Aylen QC submitted before us, in terms that he had submitted before the judge, that McFarlane did not bind us; the judge's decision to follow it had been incorrect; and that if we applied first principles to this case untrammelled by guidance drawn from McFarlane his client's claim would in fact be made out. There are a number of strands to Mr Aylen's argument, which I hope I shall accurately convey.
The first point that he makes is that the actual factual situation in our case, that is to say, a loss of earnings, was simply not addressed in the McFarlane appeal. Although I understand there is some potential dispute about the actual matters that were before the House in McFarlane, I am content for purposes of this judgment to accept that the House in McFarlane did not consciously direct itself to an issue of the order that we have here, that is to say, loss of earnings, not caused by the direct results of the pregnancy or any illness or illness-like situation, but contingent on the decision of a healthy mother to leave work to care for a healthy child.
Secondly, he argued that the correct characterisation or analysis of the McFarlane case as a matter of the law of negligence was that the claim in that case had been for pure economic loss caused by negligent advice, the advice being that the parties had been told that they could safely have intercourse. The present case, he said, is different because it is a case where complaint is made not of advice but of physical injury caused by an omission: as Mr Aylen said, picking up an observation from the bench, the case is not different in terms of analysis from what it would be if his client had presented herself not as a candidate for contraception but as somebody with undefined pains or illnesses which were in fact cancerous and which negligently were not identified as such by the doctor.
That characterisation is important in Mr Aylen's argument because he goes on to say that since the case is to be characterised as one of physical injury caused by omission in performance of a duty, as a matter of principle all damage caused by that physical injury is recoverable; and the cost of bringing up the child is plainly something, he says, that was caused by physical injury. As to causation, I shall say something at a later stage of this judgment. More fundamentally, however, I am not able to accept the relevance of the distinction that Mr Aylen puts forward. There are two aspects of that concern. Firstly, it seems to me that the distinction is extremely fragile simply as a matter of fact. It is far from clear how one properly should characterise the events that occurred either in McFarlane or in our case. In McFarlane there was an incompetent operation followed by advice that the parties could have intercourse. That advice was wrong, but it was wrong because the operation had gone wrong.
In our case it could equally be said, it seems to me, that there was incompetent treatment in conjunction with advice that the patient was not pregnant; because as I sought to point out earlier the investigation of pregnancy was an integral part of the treatment process, and the nurse seems to have told Mrs Greenfield on at least one occasion, or certainly strongly implied, that she was not pregnant.
It is not necessary to come to a conclusion on these matters of characterisation. I raise that only in an attempt to demonstrate that I would be extremely doubtful about any distinction between this case and McFarlane that rested upon these controversial and difficult matters of analysis. That being so, I am unable to accept that the damage suffered here was "physical" in any way that makes a relevant distinction between this case and McFarlane. It may or may not be right, as an authority on the law of...
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