McFarlane v Tayside Health Board
| Jurisdiction | Scotland |
| Judgment Date | 09 January 1998 |
| Date | 09 January 1998 |
| Docket Number | No 40 |
| Court | Court of Session |
SECOND DIVISION
Lord Gill
Damages—Assessment of damages—Reparation—Negligence—Medical negligence—Couple receiving negligent advice regarding safety of resumption of sexual relations after husband having vasectomy—Wife falling pregnant and giving birth to healthy child—Whether personal injury—Solatium—Whether damages recoverable for pain of pregnancy and labour—Whether parents could claim for cost of bringing up child—Whether public interest requirements militated against recoverability of damages—Averments—Relevancy
In 1989 a couple agreed that they would have no more children. The husband thereafter went through a vasectomy operation. After the operation, the couple were advised that they should practise contraception for a period. Later the defenders informed them that they could dispense with contraceptive precautions as the husband's sperm counts were by that time negative. The wife subsequently fell pregnant and gave birth to a healthy child. The couple then sued the defenders for having given them negligent advice. They claimed damages for the financial costs of caring for and bringing up the child. The wife also claimed damages for the pain of pregnancy and labour. In procedure roll, the Lord Ordinary (Gill) held that a normal, even if undesired, pregnancy and labour could not constitute personal injuries or, if they could, they were injuries for which no damages were recoverable and that the benefits of parenthood transcended any patrimonial losses which the parent might have suffered. The couple reclaimed.
Held (rev judgment of Lord Gill) (1) that, in assessing damages, a court had to apply the principle that the purpose of an award of damages in an action founded on delict was to restore a pursuer, so far as that was possible by the payment of money, to the position he would have been in but for the commission of the wrong complained of, the obligation to make reparation arising and becoming enforceable when there is a concurrence of iniuria anddamnum; (2) that, in this case, the iniuria arose when the defenders gave the advice that the pursuers could dispense with contraceptive precautions when that in fact was erroneous and the pursuers acted upon that advice and the damnum occurred when the wife became pregnant at which time the right to raise an action accrued and a quantification of the pursuers' loss was capable of being made, albeit on the basis of estimation; (3) that the effects of pregnancy and childbirth did not need to be categorised as personal injury any more than the conception itself, the question being whether they were the manifestations of damnum to an interest of the wife which was recognised by law; and (4) that Scots law recognised such an interest; (5) that the pursuers were entitled to recover the extra expenditure which they would incur in the care of the child; and reclaiming motion allowed.
Observed (1) that the fact that the pursuers chose to keep the child did not constitute a novus actus interveniens breaking the chain of causation; and (2) that there were public policy considerations on both sides, the relative strength of which was not a question in which it was for the court to reach a judgment but, on any view, there was no overriding consideration of public policy which the awarding of damages to the pursuers would contravene.
George McFarlane and Mrs Laura Helen McFarlane brought an action of reparation in the Court of Session against Tayside Health Board seeking damages in respect of the defenders' alleged medical negligence.
The averments of parties appear sufficiently from the opinions of their Lordships in the Inner House.
The cause called in procedure roll before the Lord Ordinary (Gill) for a debate on the defenders' plea to the relevancy.
At advising, on 30 September 1996, the Lord Ordinary sustained the defenders' plea to the relevancy and dismissed the action: seeMcFarlane v Tayside Health Board 1997 SLT 211.
The pursuers reclaimed.
Cases referred to:
Allen v Bloomsbury Health AuthorityUNK [1993] 1 All ER 651
Auld v SharpUNK (1874) 2 R 191
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
Caparo Industries plc v DickmanELR [1990] 2 AC 605
Cockburn v Baumgartner 477 NE 2d 385 (III 1983)
Donoghue v StevensonSC 1932 SC (HL) 31
Dorset Yacht Co Ltd v Home OfficeELR [1970 1 AC 1004
Dunlop v McGowansSCSC 1980 SC (HL) 7; 1979 SC 22
Emeh v Kensington and Chelsea and Westminster Area Health AuthorityELR [1985] QB 1012
Goodwill v British Pregnancy Advisory ServiceWLR [1996] 1 WLR 1397
Hedley Byrne & Co Ltd v Heller & Partners LtdELR[1965] AC 465
Livingstone v Rawyards Coal Co Ltd (1880) 7 R (HL) 1
Malcolm v DicksonSC 1951 SC 542
McLoughlin v O'BrianELR [1983] 1 AC 410
Public Health Trust v Brown 388 SO 2d 1084 (1980)
Sciuriaga v Powell (1979) 123 SJ 406
Thake v MauriceELR [1986] QB 644
Watson v Fram Reinforced Concrete Co (Scotland) Ltd(sub nom Watson v Winget LtdSC) 1960 SC (HL) 73
The reclaiming motion called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Allanbridge for a hearing on the summar roll.
At advising, on 9 January 1998—
LORD JUSTICE-CLERK (Cullen)—In this action the pursuers aver that in 1989 they agreed that they would have no more children and that for this purpose the first pursuer would undergo a vasectomy operation, which was carried out on him on 16 October 1989 at one of the defenders' hospitals. Because of the risk that there may be spontaneous recanalisation of the divided vas, patients who have undergone such an operation are advised to practise contraception for a period during which samples of sperm are analysed in order to determine whether motile sperm are still present. Having provided certain samples of sperm the first pursuer was informed by the defenders in a letter dated 24 March 1990 that his sperm counts were negative and that he might dispense with contraceptive precautions. The pursuers aver that as a result of this advice and in reliance on it they dispensed with such precautions. However, the second pursuer became pregnant and on 6 May 1992 gave birth to a daughter, who was their fifth child. They aver that the advice which was given arose from an administrative error on the part of the defenders. They set out a number of respects in which the defenders were at fault, but for present purposes the significant averment is that the defenders failed to carry out the following duty, namely “not to advise the first pursuer that he could dispense with contraceptive precautions when the defenders had not received two samples of sperm which tested negative for the presence of motile sperm.”
The pursuers claim damages under two heads. The first is the sum of £10,000, which is claimed by the second pursuer upon averments that she had to undergo the pregnancy and confinement, along with the pain and distress of the delivery of the child. The second claim is in the sum of £100,000, which is claimed by both pursuers and relates to the additional costs in caring for, feeding, clothing and maintaining the child, together with the expenses incurred in providing a layette. No claim is made in respect of any care or trouble undergone by the pursuers in the course of bringing up the child.
In the Outer House the defenders challenged the relevancy of the pursuers' averments on procedure roll. The Lord Ordinary sustained their plea to the relevancy and dismissed the action, on the basis that as a matter of principle damages were not recoverable. The Lord Ordinary was also addressed upon the question whether an award of damages would be contrary to public policy. Although he made certain observations in regard to this objection to the pursuers' claims he did not sustain the defenders' plea that on this ground they were entitled to absolvitor.
In considering the questions which are raised by the pursuers' claims it is convenient for me to begin by setting out the defenders' criticisms of the relevancy of the pursuers' case, as they were advanced during the hearing of the pursuers' reclaiming motion.
As regards the second pursuer's claim in respect of pregnancy and childbirth, the defenders did not dispute that there were relevant averments of facts from which it could be inferred that it was a foreseeable consequence of the allegedly negligent advice that the second pursuer would become pregnant and give birth, ie through the parties not using contraception by reason of the advice which had been given. The contention for the defenders was that her pregnancy and childbirth could not constitute personal injury sustained by her, and accordingly could not sound in damages. They were natural processes. It could have been different if the negligence of the defenders' doctor had caused her to suffer “medical harm” in the course of pregnancy or childbirth. However, there was no suggestion of this. It was an uncomplicated pregnancy at the end of which she was delivered of a normal, healthy baby. In any event any pain and suffering involved was cancelled out by the joy and satisfaction of the child being born.
On this aspect of the case the Lord Ordinary's view was that a pregnancy and childbirth occurring in the circumstances of the present case could not be equiparated with a physical injury, on the ground that these were natural processes resulting in a happy outcome. In any event even if they could be regarded as an “injury”, he did not consider that that was an injury for which damages were recoverable. To do so would be to ignore the existence of the child and the happiness which the second pursuer would derive from her existence.
As regards the pursuers' claim in respect of the cost of rearing the child, there was, with one exception, no attack on this claim as being too remote. The defenders did not maintain that the pursuers should have sought an abortion or should have had the child adopted. They did...
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...negligent advice on the effect of a vasectomy performed on the husband. Differing from the Inner House of the Court of Session ([1998] S.L.T. 307), the House unanimously rejected this claim. A factual variant of that case reached the Court of Appeal in Parkinson v. St. James and Seacroft Un......
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McFarlane et al. v. Tayside Health Board, (1999) 250 N.R. 252 (HL)
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