McKay v Essex Area Health Authority

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE ACKNER,LORD JUSTICE GRIFFITHS
Judgment Date19 February 1982
Judgment citation (vLex)[1982] EWCA Civ J0219-3
Docket Number82/0044
CourtCourt of Appeal (Civil Division)
Date19 February 1982
Between:
Mary McKay (Suing by her Uncle and Next Friend Michael William Davis)
First Plaintiff (Respondent)
and
Jacinta McKay
Second Plaintiff
and
Essex Area Health Authority
First Defendant (Appellant)

and

Dr. Gower-Davies (Male)
Second Defendant (Appellant)

[1982] EWCA Civ J0219-3

Before:

Lord Justice Stephenson

Lord Justice Ackner

and

Lord Justice Griffiths

82/0044

1978 M No. 2947

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR. JUSTICE LAWSON)

Royal Courts of Justice,

MR. MICHAEL HUTCHINSON Q.C. and MR. TERENCE COGHLAN (instructed by Mr. T.R. Dibley, Legal Adviser, North East Thames Regional Health Authority, London NW1 5JD) appeared on behalf of the First Defendant (Appellant).

MR. RODERICK ADAMS (instructed by Messrs. Hempsons, Solicitors, London WC2E 8NH) appeared on behalf of the Second Defendant (Appellant).

MR. JOHN WILMERS Q.C. and MR. JAMES HARRIS (instructed by Messrs. Steggles Palmer & Co., Solicitors, Benfleet, Essex) appeared on behalf of the Plaintiffs (Respondents).

LORD JUSTICE STEPHENSON
1

There is before the court a claim by an infant daughter (suing by her uncle and next friend) and by her mother, against a health authority and against a doctor. On 17th February 1981 Master Bickford Smith struck out part of the infant plaintiff's claim, but on 18th June 1981 Mr. Justice Lawson allowed her appeal and allowed all her claim to proceed, but gave leave to appeal. This court is asked by both defendants to restore the master's order.

2

In this case we are unanimously of the opinion that the infant plaintiff's claim for what has been called "wrongful life" discloses no reasonable cause of action. We were all clearly of that opinion at the conclusion of the argument, and we reserved judgment in order to put into writing our reasons for allowing the appeal. In the course of doing so Lord Justice Griffiths has come to the conclusion that, though the claims disclosed no reasonable cause of action, the judge was nevertheless right in exercising his discretion not to strike them out and that on that ground the appeal should be dismissed. I have not felt able to agree with him on that point and shall give my reasons for disagreeing with him and for allowing the appeal.

3

The claims arise from the fact that the child was born disabled by rubella ("German measles"), which infected the mother in the early months of her pregnancy. That misfortune is alleged to have been the fault of the defendants; of the authority in one respect and of the doctor in two respects.

4

The statement of claim has been slightly amended at the suggestion of the learned judge. For the purpose of these interlocutory proceedings its allegations must be assumed to be true. It reads as follows:

"1. The first plaintiff is a little girl born in 1975 and the second plaintiff is her mother.

2. The first defendant operated a laboratory which inter alia tested samples of body fluids in order to discover whether the donor of the fluid sample was suffering from Rubella ('German Measles'). At all material times the second plaintiff was the patient of the second defendant. 2a. The first defendant and the second defendant owed to the first plaintiff and to the second plaintiff a duty of care.

3. The first and second plaintiffs will contend that Rubella is an infection which is capable of giving rise to severe and irreversible damage to unborn children in the womb if it infects the mother of such an unborn child in the first four months of pregnancy. The risk of such damage is very substantial if the infection occurs in the first month and while the risk declines thereafter it is significant even in the fourth month. The progress of Rubella in the mother and unborn child may be arrested by the injection of globulins into the mother but this cannot reverse or ameliorate damage already done by Rubella to the unborn child. Once damage has actually occurred to the unborn child it is irreversible and the only method of preventing that child and its family or guardian from being burdened with those injuries in life is to abort the unborn child as provided by the Abortion Act 1967.

4. The plaintiffs will contend that the first and second defendants knew or should have known of the matters set out in the preceding paragraph.

5. On or about February 1975 the second plaintiff by her husband conceived the first plaintiff.

6. On or about April 1975 the second plaintiff attended the surgery of the second defendant and told him that she was pregnant and that she thought she had been in contact with Rubella. The second defendant took a blood sample from her with a view to its being tested for infection with Rubella.

7. That blood sample or the results of any tests which may have been performed upon it were mislaid by the first and second defendants. The second plaintiff again provided a blood sample for tests.

8. In due course the second plaintiff was informed by the second defendant that she and her unborn child had not been infected with Rubella during the pregnancy and that she need not consider an abortion of it.

9. The second plaintiff would at all times have been willing to undergo an abortion of the unborn child within her if she had been informed that it had been infected with Rubella and that there was a significant risk that it had suffered damage.

10. In reliance upon the advice of the second defendant the second plaintiff did not request an abortion but continued with her pregnancy. On or about 15th August the first plaintiff was born (prematurely, for a reason unconnected with the matters complained of herein).

11. Thereafter the first plaintiff was diagnosed as having been infected with Rubella whilst still in her mother's womb and as a result of such infection had suffered injuries while still in the womb.

The first plaintiff has suffered serious damage to her neural tissues and full particulars of the first plaintiff's current medical condition will be served in due course upon the defendants when it has been possible to make a reasonably full assessment.

12. The above injuries, or the extent of them, was a result of the negligence of the second defendant.

The second defendant was negligent in that he failed to guard against or to treat the suspected infection with Rubella by an injection of globulins into the second plaintiff which he knew or ought to have known would combat the disease and reduce the likelihood of further damage. The plaintiffs will aver that this should have been done when the second plaintiff first complained of contact with Rubella but without resiling in any way from that contention the plaintiffs aver that the opportunity should not have been missed to administer such an injection at any later stage.

13. As a result of the negligence of the second defendant the first and second plaintiffs have been burdened with the injuries of the first plaintiff in that the second defendant failed to advise the second plaintiff of the desirability of an abortion of the first plaintiff.

The second defendent was negligent in that he:—

(a) failed to appreciate or to pass on to the first defendant some or all of the information provided by the second plaintiffs;

(b) failed to elicit all relevant information from the second plaintiff;

(c) failed to require all appropriate tests to be performed upon the test sample provided by the second plaintiff;

(d) caused or permitted a test sample or the results of any tests that may have been performed thereon to become mislaid;

(e) took only two blood samples from the second plaintiff (one of those having been mislaid);

(f) confused the blood sample provided by the second plaintiff or the results of any testing that may have been done thereon with some other blood sample, sample, test results or piece of paper;

(g) failed to interpret such results of tests that may have been passed to him correctly, or at all;

(h) failed to advise the second plaintiff of the infection with Rubella and of the risk that if the first plaintiff were born into the world she would suffer from serious and irreversible injuries;

(i) failed to inform the second plaintiff of the advisability of an abortion.

14. As a result of the negligence of the first defendant the first and second plaintiffs have been burdened with the injuries of the first plaintiff in that the first defendant acted negligently in respect of the testing of blood samples for Rubella whereby the second plaintiff was misled as to the advisability of an abortion.

The first defendant was negligent in that it:—

(i) failed to perform all the tests that may have been required by the second defendant upon the blood sample of the second plaintiff, or to perform any of those tests;

(ii) failed to appreciate properly or at all any instructions or additional information that the second defendant may have provided in connection with the proposed testing;

(iii) in so far as there was a duty upon them so to do, failed to perform all appropriate tests or to require all relevant information whether requested or supplied by second defendant or not;

(iv) failed to conduct any testing that may have been performed with due care;

(v) in so far as there was a duty upon them so to do, failed to interpret the results of any testing that may have been performed, correctly or at all;

(vi) failed to inform the second defendant properly or at all of the results of any testing that may have been performed;

(vii) lost one of the blood samples provided by the second plaintiff or the results of any tests that may have been performed upon it;

(viii) confused the blood sample provided by the second plaintiff with another sample or confused the...

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4 firm's commentaries
  • Court Of Appeal Summaries (July 19-23)
    • Canada
    • Mondaq Canada
    • 27 July 2021
    ...of) v. Dobson, [1999] 2 S.C.R. 753, Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, Paxton v. Ramji, 2008 ONCA 697, Liebig v. Guelph General Hospital......
  • COURT OF APPEAL SUMMARIES (July 19-23)
    • United States
    • LexBlog United States
    • 24 July 2021
    ...of) v. Dobson, [1999] 2 S.C.R. 753, Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, Paxton v. Ramji, 2008 ONCA 697, Liebig v. Guelph General Hospital......
  • A statutory right to wrongful life compensation? Toombes v Mitchell (UK)
    • Australia
    • Mondaq Australia
    • 3 June 2021
    ...a valid claim for damages for wrongful birth: [39]. 13 Above n 4, at [7]. 14 Above n 4, at [7]. 15 McKay v Essex Area Health Authority [1982] QB 1166; [1982] 2 All ER 771; [1982] 2 WLR 16 Above n 4, at [9]. 17 Above n 4, at [26]-[27]. 18 Above n 4, at [28]. 19 Above n 4, at [30]-[31]. 20 Ab......
  • UK: Wrongful life cause of action or not?
    • United Kingdom
    • LexBlog United Kingdom
    • 21 January 2021
    ...Disabilities (Civil Liability) Act 1976.... 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. It was common ground between the parties that, on ......
13 books & journal articles
  • THE PROTECTION OF PERSONAL INTERESTS
    • Singapore
    • Singapore Academy of Law Journal No. 2015, December 2015
    • 1 December 2015
    ...had and could never have had a life free from the disabilities”. Other judges, such as Ackner LJ in McKay v Essex AreaHealth Authority[1982] QB 1166 at 1189 have focused on the fact that wrongful life claims are premised on the assertion that the claimant should never have been born at all,......
  • THE PROMISE OF UNIVERSALITY
    • Singapore
    • Singapore Academy of Law Journal No. 2013, December 2013
    • 1 December 2013
    ...Law Norms, Private Law Norms and Policy Arguments” (2011) 19 Tort Law Review 3 at 8. 210 For example, McKay v Essex Area Health Authority[1982] 1 QB 1166; Hill v Chief Constable of West Yorkshire[1989] AC 53; Stovin v Wise[1996] AC 923; Phelps v Hillingdon London Borough Council[2001] 2 AC ......
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    • Construction Law. Volume III - Third Edition
    • 13 April 2020
    ...Ltd (1994) 72 BLR 26; Lion-Dairy & Drinks Pty Ltd v Sinclair Knight Merz Pty Ltd [2013] FCA 869. 702 McKay v Essex Area Health Authority [1982] QB 1166 at 1191, per Griiths LJ; Williams & Humbert Ltd v Trade Marks Jersey Ltd [1986] 2 WLR 24 (HL(E)); Cheick Ltd v JDM Associates (No 3) (1989)......
  • “Wrongful Life” – The Constitutional Court Paved the Way for Law Reform
    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 May 2019
    ...677 677.31 2015 2 SA 139 (CC) para 20. Also see par a 19.32 S 1(2)(b) of the Congenital Dis abilities (Civil Liabil ity) Act 1976 (UK).33 [1982] QB 1166 (CA); [1982] 2 All ER 771 (CA).402 STELL LR 2015 2© Juta and Company (Pty) that no cause of action existed u nder English law. The court a......
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