McFarlane v Tayside Health Board

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date25 Nov 1999
Judgment citation (vLex)[1999] UKHL J1125-2
Docket NumberNo 1

[1999] UKHL J1125-2


Lord Slynn of Hadley

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Lord Millett


and Another

Tayside Health Board



My Lords,


The relevant facts in this appeal are very few, the legal issue difficult. The facts are that Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by letter of 23 March 1990 he was told that his sperm counts were negative. In September 1991 (following the resumption of intercourse without contraceptive measures), Mrs. McFarlane became pregnant and their fifth child, Catherine, was born on 6 May 1992. They claim that Mrs. McFarlane suffered pain and distress from the pregnancy and birth and that they both have incurred and will incur costs in rearing Catherine, all due to the negligence of the defendant. They put Mrs. McFarlane's claim at £10,000 and their claim as parents at £100,000 for the cost of maintaining the child. It is right to say at once that despite their claim the respondents have loved and cared for Catherine as an integral member of the family.


The Lord Ordinary (Lord Gill) dismissed both claims. He thought that as a matter of principle they were not entitled to damages. The Second Division of the Court of Session unanimously allowed a Reclaiming Motion. They thought that the parties should be allowed a proof before answer that if they could establish negligence they should be given the opportunity to prove the loss, injury and damage which they aver arises directly from the fact that the wife became pregnant.


The Lord Ordinary considered the pregnancy could not be equiparated with a physical injury, but that even if it could it was not an injury for which damages are recoverable. The existence of the child and the mother's happiness derived from it could not be ignored and they outweighed the pain and discomfort. As to the claim for the rearing of the child, his view was that the choice was between (a) allowing full recovery subject to issues of remoteness and (b) allowing no recovery since the value of the child outweighed the cost of maintenance. Limiting recovery to specific heads of claim which were not outweighed by the value of having the child was not acceptable, not least because of the difficulty of valuing the child's existence. His conclusion was that to allow nothing for the benefits the parents received from having a child was wrong in principle, at any rate where a healthy child is concerned:

"I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of the child's existence and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss."


Accordingly, as a matter of principle, damages were not recoverable. On the other hand, "if the benefits to the parents do not extinguish both claims, they should certainly extinguish the claim for the costs of the child's upbringing. To hold otherwise will be to give the pursuers more than compensation." He held that as a matter of principle damages were not recoverable and that claims could not succeed.


On appeal the Lord Justice Clerk said that the claim was for the physical and pecuniary consequences brought in train by the second pursuer's pregnancy and childbirth rather than that the child was "harm" to the parents. As to the claim for pain and distress resulting from the pregnancy and childbirth, they did not have to be seen as "injury" and there was no reason for thinking that the law did not recognise them as damage. To say that was cancelled out by post-natal happiness was not acceptable. As to the costs of rearing a child, he did not accept that these could not result from the defenders' negligence: keeping the child rather than arranging an abortion or an adoption did not break the chain of causation. The parents had to spend extra money because of the defenders' negligence which led to the birth of the child. They were entitled to decide not to have a child. It was unwarranted to assume that the joy of having a child in every case exceeded any monetary claim which might arise. It could not be said that the pursuers could have suffered no loss worthy of compensation. He declined to consider whether public policy prevented the claim from being brought: that was not for the court.


Lord McCluskey said:

"'Damnum' in the context of our law of reparation means a loss in the sense of a material prejudice to an interest that the law recognises as a legal interest. When there is a concurrence of injuria and damnum the person whose legal right has been invited with a resultant loss to him has a right to recover money reparation for that loss for the wrongdoer" (page 42).

In my view it is sufficient to say that a woman who becomes pregnant despite her deliberate choice not to become pregnant suffers damnum and loss in the form of significant consequences for her physical condition, being consequences which she did not desire "(page 47)."


As to whether the joy to be received from the birth of a child cancelled out pain and financial loss he said:

"I know of no principle of Scots law that entitles the wrongdoer to say to the victims of his wrongdoer that they must look to their perspective and impalpable gains on the roundabouts to balance what they actually lose on the swings.

I conclude that the benefits to the parents of having a live healthy child cannot be taken into account under any principle known to Scots law."


He too rejected "public policy" as the criterion for deciding the issue.


Lord Allanbridge accepted that there was injuria. Once the husband was told following the vasectomy that his sperm counts were negative and that he could dispense with contraceptive precautions the damage occurred when the wife became pregnant. His claim therefore arose before the birth of the child. He too thought they should be allowed to prove the loss injury and damage resulting from the fact that the wife became pregnant. The parents' failure to arrange abortion or adoption was not a novus actus interveniens.


The result of the judgment of the Court of Session is that the pursuers should be able to seek to prove full recovery.


Although these judgments refer to the law of Scotland (which obviously was the applicable law) it is as I understand it accepted that the law of England and that of Scotland should be the same in respect of the matters which arise on this appeal. It would be strange even absurd if they were not.


The issues raised in this case - or similar issues arising from other methods of preventing conception and birth - have arisen in cases before the courts of England and Scotland for some twenty years but have not yet been considered by your Lordships. The issues have arisen also in the courts of states of the United States, of the Commonwealth and of other European states. Counsel have referred the House to many of these cases. There is no single universally applied test. Judges have not only said (as here) in some cases all, in some cases nothing can be recovered, they have also said that the award may be for something in- between. It is not necessary to refer to all of these cases but it is in my view of value to examine the trend of decisions in England and Scotland and more briefly to see how the courts of other countries have dealt with this difficult and often emotive matter.


Cases in England and Scotland


In Sciuriaga v. Powell (1979) 123 Solicitors Journal 406 a claim for breach of a contract to terminate pregnancy by abortion, Watkins J. held that the sole reason for the continuation of the pregnancy was the doctor's breach of contract. He awarded damages for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but he did not award damages for the maintenance of the child. From the short report of the judgment it does not appear whether he was asked to do so.


In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098 where a woman's sterilisation failed, a healthy child was born and a second operation performed. Jupp J. accepted that the damages for an admitted liability in negligence should include, in addition to damages for pain and suffering and loss of earnings during pregnancy (which were conceded), damages for "the disturbance to the family finances" such as the cost of a layette, and increased accommodation for the family. On grounds of public policy, however, he rejected a claim for the future cost of the child's upbringing to age sixteen. The considerations of public policy which weighed with him were that it was undesirable that a child should learn that a court had declared its life to be a mistake, the difficulty of setting off the joy of having a child against the cost of rearing, and the risk that doctors might be led to encourage abortion in order to avoid claims against them for medical negligence.


In Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] 1 Q.B. 1012 a sterilisation operation had failed and a child was born with congenital abnormalities which required constant medical and parental supervision. On a claim in contract the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child. The court took a multiplier of 8 for a child 5 years old at the time of the appeal.


In Thake v. Maurice [1986] Q.B. 644 a vasectomy was performed, the husband was told that contraception precautions were not necessary but a child...

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