Misconceptions about Wrongful Conception

Publication Date01 Nov 2002
AuthorLaura C. H. Hoyano
Misconceptions about Wrongful Conception
Laura C. H. Hoyano*
‘Public policy’ has acquired a bad name in English tort law, but the reasons for its
tumble from grace remain obscure. Lord Morris in Dorset Yacht gave us the
Delphic admonition that the court should not shrink from being arbiter of whether
it is fair and reasonable that a duty of care arise, and that ‘policy need not be
invoked where reasons and good sense will at once point the way’1– but did not
explain why sense and logic must be distinguished from policy factors, and why
the latter do not encompass fairness and reasonableness. When the ‘policy
considerations’ step of Lord Wilberforce’s two-stage test in Anns2was supplanted
by ‘fairness, justice and reasonableness’ in Caparo’s three-stage test for duty of
care,3it was unclear how, if at all, this was intended to change the substance of
what the court must consider in novel cases, or whether the revolution was
confined to shifting the persuasive burden respecting policy considerations from
the defendant to the claimant, by inference converting the court from an expansive
to a conservative way of thinking about negligence law. While the factors selected
for consideration under the third stage of the Caparo test have tended to weigh
heavily against creating a duty of care, recently the countervailing policy that
wrongs should be remedied – corrective justice – has regained prominence4(which
begs the question as to what constitutes a wrong). Perhaps aware of the flaccidity
of ‘fairness, justice and reasonableness’ in explaining to parties why a duty of care
has been withheld or imposed in their cases, the Law Lords have continued to cast
about for more satisfactory labels. ‘Assumption of responsibility’, once subjected
to scathing judicial criticism as being ‘neither helpful nor realistic’ as a test of
liability,5is now regarded as a virtually indispensable phrase in novel negligence
decisions, at least where the harm is characterised as economic.6The latest label in
vogue is Aristotle’s ‘distributive justice’,7usually deployed in counterpoint to
‘corrective justice’ which is generally assumed to be the default rationale
underpinning tort law.
ßThe Modern Law Review Limited 2002 (MLR 65:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 883
* Fellow & Tutor in Law, Wadham College, Oxford.
1Home Office vDorset Yacht Co Ltd [1970] AC 1004, 1038–1039.
2Anns vLondon Borough of Merton [1978] AC 728, 751–752.
3Caparo Industries plc vDickman [1990] 2 AC 605, 617–618.
4X (Minors) vBedfordshire CC [1995] 2 AC 633, 745 per Lord Browne-Wilkinson, quoting Lord
Bingham M.R. in the Court of Appeal below who stated that the principle of righting wrongs ‘has first
claim on the law’ and that ‘very potent considerations are required to override that policy’ [[1994] 4
All ER 640 at 663C–D]; Phelps vLondon Borough of Hillingdon [2001] 2 AC 619; Brooks v
Metropolitan Police Commissioner [2002] EWCA Civ 407, at para 59–73.
5Smith vEric S. Bush [1988] 1 AC 831, 862 per Lord Griffiths, a criticism echoed by Lord Roskill in
Caparo n 3 above, 375.
6 Assumption of responsibility was tentatively resuscitated by Lord Goff in Spring vGuardian
Assurance [1995] 2 AC 296 and Henderson et al. vMerrett Syndicates Ltd. [1994] 3 WLR 761 and
was decisive in White vJones [1995] 2 AC 207, assuring its rehabilitation.
7 First invoked by Lord Hoffmann in White vChief Constable of the South Yorkshire Police [1998] 3
WLR 1509, 1550–1551.
In McFarlane vTayside Health Board 8the House of Lords had recourse to all of
these labels in holding that the parents of a healthy child born following a
negligently performed sterilisation procedure could not recover damages from a
health authority for the cost of bringing up that child. The Lords reversed 15 years
of consistent English appellate authority9which had applied the conventional
professional negligence template to find liability for maintenance costs, the claim
being categorised as a consequential economic loss directly flowing from the failed
sterilisation which was not only objectively foreseeable but directly contemplated
by the parents and the surgeon.10 The Law Lords’ attempt to create a sharp-edged
legal rule for ‘wrongful conception’ cases, however they might arise, without
articulating a clearly defined supporting principle has fomented rather than
forestalled further litigation. The lack of consensus in McFarlane has fostered
confusion amongst trial judges and encouraged the Court of Appeal to create
untenable distinctions, pivoting unsteadily on the health of the unwanted child and
the reluctant parent respectively. I will analyse the disparate lines of reasoning
taken in McFarlane and will use the subsequent cases to explore some of the
implications of the collapse of legal principle which McFarlane, at least to this
point, represents.
Fact variation #1: the healthy child of healthy parents
In McFarlane, the four Law Lords who concurred in the result were clearly
concerned not to confer tort immunity on surgeons carelessly performing
sterilisation procedures, which would create an unacceptable anomaly in
Lloyd’s Rep Med 1 [cited hereafter from AC].
9Emeh vKensington and Chelsea and Westminster Area Health Authority [1985] QB 1012
disapproving of Udale vBloomsbury Area Health Authority [1983] 1 WLR 1098 (QB) holding the
contrary; Thake vMaurice [1986] QB 644 (CA, leave to appeal to HL denied). See also the Scottish
cases of Allan vGreater Glasgow Health Board 1998 SLT 580; Anderson vForth Valley Health
Board, 1998 SLT 588. Although the McFarlane appeal emanated from Scotland, the Law Lords were
agreed that English and Scottish law should be the same: ‘[i]t would be strange, even absurd, if they
were not’(n 8 above, 68 per Lord Slynn; see also 78 per Lord Steyn). Some English courts had
expressed misgivings about this position, but nonetheless applied Emeh and Thake:Jones vBerkshire
Area Health Authority (unreported, 2 July 1986 per Ognall J; Gold vHaringey Health Authority
[1988] QB 481, 484g per Lloyd LJ; Allen vBloomsbury Health Authority [1993] 1 All ER 651, 662d–
fper Brooke LJ.
10 ‘Wrongful conception’ cases arise most commonly from failed sterilisation procedures but also
occasionally from incorrect diagnoses that the parents did not carry a defective gene (as in R.H. v
Hunter [1996] OJ No. 2065 (Ont. Gen. Div.) – muscular dystrophy). They are more straightforward
than so-called ‘wrongful birth’ cases, where the claimants decided to have a child, but would have
terminated the pregnancy had they known that the foetus was suffering from an abnormality (as in
Rand vEast Dorset Health Authority (2000) 56 BMLR 39, [2001] Lloyd’s Rep Med 181; Hardman v
Amin ([2000] Lloyd’s Rep Med 498, 59 BMLR 58 [cited hereafter from BMLR]; Lee vTaunton &
Somerset NHS Trust [2001] 1 FLR 419). In ‘wrongful conception’ cases, the parents did not wish to
have any child, so the maintenance costs satisfy the ‘but for’ causation test whereas in ‘wrongful
birth’ cases the claimants would have borne the usual costs of bringing up a child in any event. The
rare cases of failed abortions (as in Scuriaga vPowell (1979) 123 SJ 406, appeal dismissed by CA
(unreported, 24 July 1980,Transcript No. 597 of 1980), or an incorrect diagnosis that the mother was
not pregnant (as in Groom vSelby [2001] All ER (D) 250, 64 BMLR 47 (CA) [cited hereafter from
BMLR]; Greenfield vIrwin [2001] 1 WLR 1292, [2001] 1 FLR 899 [cited hereafter from FLR]) are
in a third category which might be dubbed ‘wrongful continuation of pregnancy’; the medical
negligence did not cause the pregnancy, but such cases can be assimilated for these purposes with
‘wrongful conception’ in that the patient did not want to have a child.
The Modern Law Review [Vol. 65
884 ßThe Modern Law Review Limited 2002

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