Judgments - Macfarlane and Another v. Tayside Health Board (Scotland)

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    In Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] Q.B. 1012, 1028 Purchas L.J. quoted with approval the following passage from Sherlock v. Stillwater Clinic (1977) 260 N.W. 2d 169, a decision of the Supreme Court of Minnesota, at pp. 170-171:

    "We hold that in cases such as this an action for 'wrongful conception' may be maintained, and that compensatory damages may be recovered by the parents of the unplanned child. These damages may include all prenatal and postnatal medical expenses, the mother's pain and suffering during pregnancy and delivery, and loss of consortium. Additionally, the parents may recover the reasonable costs of rearing the unplanned child subject to offsetting the value of the child's aid, comfort and society during the parents' life expectancy."

    Purchas L.J. said that this was the approach which Watkins J. had adopted in Sciuriaga v. Powell (1979) 123 S.J. 406 when he awarded damages to the plaintiff who gave birth to a healthy child after a legal abortion had failed to terminate her pregnancy.

    There are three reasons for doubting, with great respect, Purchas L.J's reliance on these cases in reaching the view which he did in Emeh's case. In the first place, Watkins J. did not make any award in Sciuriaga v. Powell for the costs of child rearing. The awards which he made were for the physical and mental suffering caused by the continuation of the pregnancy and for the plaintiff's loss of earnings including future loss. In the second place, the decision in Sherlock's case was to apply what has been described as the "benefits rule" - that is to say, to offset the value of the non-patrimonial benefits which the child gives against the costs of its upbringing. The approach which the English courts have adopted is a different one, namely to award damages for the costs of child-rearing but not to offset against those costs the value of the non-patrimonial benefits.

    But the third and more significant point is that, as Angus Stewart Q.C. has observed in his valuable article, "Damages for the Birth of a Child" (1995) J.L.S.S. 298, the passage which Purchas L.J. quoted from Sherlock v. Stillwater Clinic has been received into U.K. jurisprudence almost by accident. It does not really deserve the status which has been accorded to it in the English and Scottish authorities. It was quoted again by Kerr L.J. in Thake v. Maurice [1986] Q.B. 644 and by Lord Cameron of Lochbroom in Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 584B-E. But two of the members of the court (Sheran C.J. and Peterson J.) dissented in that case, pointing to earlier authority in the same state to the effect that it would be, in Sheran C.J.'s words, "preposterous for the father of an unplanned child to be awarded damages in a case such as this for the cost of nurture and education of the child during its minority". In a later case in the same state, Hickman v. Group Health Plan, Inc. (1986) 396 N.W. 2d 10, Minnesota, it was said at p. 17 that the majority in Sherlock's case had allowed the cause of action "somewhat hesitantly." Moreover the decision is out of line with the majority view among the jurisdictions in the U.S. The majority of states favour what has been described as the "limited damages rule," which excludes child rearing costs.

     The basis for the limited damages rule was described by the Supreme Court of Florida in Public Health Trust v. Brown (1980) 388 So 2d. 1048, Florida, at pp. 1085-1086 in a passage which was quoted with approval by Ward J. in the Supreme Court of Illinois in Cockrum v. Baumgarther (1986) 447 N.E. 2d 385, Illinois, at p. 388:

    "In our view . . . its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. Even the courts in the minority recognize, as the jury was instructed in this case, that the costs of providing for a child must be offset by the benefits supplied by his very existence. But it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable 'benefits' of parenthood far outweigh any of the mere monetary burdens involved. Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the 'unwanted' child for adoption. On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law."

    In Johnson v. University Hospitals of Cleveland (1989) 540 N.E. 2d 1370, Ohio, the Supreme Court of Ohio observed at p. 1375 that the vast majority of jurisdictions which have decided the issue have adhered to the limited damages rule which denies all child rearing expenses. At p. 1378, after reviewing the various theories of recovery, the Court found that the limited damages theory was the most persuasive rule:

    "In Ohio, a tort recovery may not be had for damages which are speculative . . . Allowing a jury to award child-rearing costs would be to invite unduly speculative and ethically questionable assessments of such matters as the emotional effect of a birth on siblings as well as parents, and the emotional as well as the pecuniary costs of raising an unplanned and, perhaps, unwanted child in varying family environments."

    The court added that they were aware of the possible hardships which might result from that decision and that they were not blind to the economic realities that accompany the rearing of a child. But the legislature was the proper forum in which the competing social philosophies should be considered in establishing the law.

    A similar view has been taken in the State of Washington. In McKernan v. Aasheim (1984) 687 P. 2d. 850, 855 it was held that the costs of rearing an unplanned child were not recoverable, on the ground that it was impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child damaged its parents:

    "Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar economic information. But whether these costs are outweighed by the emotional benefits which will be conferred by that child cannot be calculated. The child may turn out to be loving, obedient and attentive, or hostile, unruly and callous. The child may grow up to be President of the United States, or to be an infamous criminal. In short, it is impossible to tell, at an early stage in the child's life, whether its parents have sustained a net loss or net gain."

    In Australia the Court of Appeal of New South Wales held in C.E.S. v. Superclinics (Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47 that the damages recoverable where negligent advice resulted in the loss of the opportunity to terminate a pregnancy did not include the expenses of rearing a child born of the pregnancy, on the ground that the mother's choice to keep her child was the cause of the subsequent rearing costs. In South Africa it was held in Administrator, Natal v. Edouard, 1990 (3) S.A. 581, in an action for breach of contract that, where a sterilisation had been performed for socio-economic reasons, the costs of rearing the child were recoverable. But in Canada the limited damages rule has been adopted in Ontario: Kealey v. Berezowski (1996) 136 D.L.R (4th) 708. In an impressive judgment, Lax J. explained her reasons at pp 739-741, in a passage which is worth quoting in full as it demonstrates the influence on his thinking of Lord Oliver of Aylmerton's speech in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 which, as I shall explain later, I too would regard as a vital signpost as to the direction which should be taken in the search for a satisfactory solution to this very difficult problem:

    "If public policy must be invoked, these statutory provisions [to the effect that every parent has an obligation to provide support to a child, in accordance with need, during the period of dependency] suggest to me that, as a matter of public policy, the financial responsibilities associated with the care and upbringing of a child are the responsibilities of parents. In a wrongful pregnancy case, the question then becomes, to what extent, if at all, the defendant's negligence impairs the plaintiff's ability to meet those responsibilities to the unplanned child or compromises the relationship of mutual support and dependency between parent and child. It is for this reason . . . that in wrongful pregnancy cases, it is the court's function to find the interest which a successful sterilization would have protected in order to determine whether the consequences of the failed sterilization constitute a genuine injury or a 'blessed event.' The reasons for the sterilization are relevant to this determination.

    This approach makes sense if one considers that the general principle of compensatory damages is restitutio in integrum. … It also makes sense if one accepts that the underlying rationale for the award of child-rearing costs in many of the 'total recovery' cases is to ensure that the plaintiffs can meet their financial responsibilities to the child. . . . Finally, it makes sense if the injury is looked at through the lens of the Caparo 'limited purposes' rule for it has this in common with it. In both, foreseeability is a necessary, but an insufficient determinant. . . .

    What it comes down to is this. There is a cause of action against a physician for negligently performing a sterilization which results in an unplanned pregnancy. If a child is born as a result of that pregnancy, this does not, in itself, constitute a harm which inevitably leads to damages for child-rearing costs:

    '[T]he duty of care is inseparable from the damage which the plaintiff claims to have suffered from the breach. It is not a duty to take care in the abstract but a duty to avoid causing in the particular plaintiff damage of the particular kind which he has in fact sustained.' [per Lord Oliver in Caparo at p. 599]

    The particular damage sustained in this case is an unplanned and undesired pregnancy. There is no damage caused by the defendant's negligence which prevents Ashley's parents from fulfilling their responsibilities to her, or compromises in any way the relationship of mutual support and dependancy which, as a matter of law, arose on her birth. Accordingly, the child-rearing costs in this case are not a compensable loss."

    In the light of the very different solutions which have been adopted in these various jurisdictions it is, I think, possible to draw these conclusions. The question for the court is ultimately one of law, not of social policy. If the law is unsatisfactory, the remedy lies in the hands of the legislature. It can be changed by the Scottish Parliament. As to the law, it has not been suggested that the costs of rearing the child are too remote, in the sense that they were not a reasonably foreseeable consequence of the defender's negligence. For my part, I would regard these costs as reasonably foreseeable by the wrongdoer. But in the field of economic loss foreseeability is not the only criterion that must be satisfied. There must be a relationship of proximity between the negligence and the loss which is said to have been caused by it and the attachment of liability for the harm must be fair, just and reasonable. The mere fact that it was reasonably foreseeable that the pursuers would have to pay for the costs of rearing their child does not mean that they have incurred a loss of the kind which is recoverable.

    In Candlewood Navigation Corporation Ltd. v. Mitsui O.S.K. Lines Ltd. [1986] A.C. 1, 25 Lord Fraser of Tullybelton, delivering the judgment of the Board, said:

    "Their Lordships consider that some limit or control mechanism has to be imposed upon the liability of a wrongdoer towards those who have suffered economic damage in consequence of his negligence."

This theme was developed and applied in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605. In that case Lord Bridge of Harwich said at pp 617H-618A, after referring to a series of cases since Anns v. Merton London Borough Council [1978] A.C. 728:

    "What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

    Lord Oliver of Aylmerton made the same point in his speech at p. 632D, and at p. 633A-B he went on to say this:

    " . . . the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicability. Those limits have been found by the requirement of what has been called a 'relationship of proximity' between plaintiff and defendant and by the imposition of a further requirement that the attachment of liability for harm which has occurred be 'just and reasonable'."

    At p. 651E-F he offered this further guidance:

    " … 'proximity' in cases such as this is an expression used not necessarily as indicating literally 'closeness' in a physical or metaphorical sense but merely as a convenient label to describe circumstances from which the law will attribute a duty of care. It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained."

    These observations were taken a step further in Murphy v. Brentwood District Council [1991] 1 A.C. 398. In the course of his discussion of the relevant principles Lord Oliver said this at p. 486H-487C:

    "In the straightforward case of the direct infliction of physical injury by the act of the plaintiff there is, indeed, no need to look beyond the foreseeability by the defendant of the result in order to establish that he is in a 'proximate' relationship with the plaintiff. . . . The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not. If it is to be categorised as wrongful it is necessary to find some factor beyond the mere occurrence of the loss and the fact that its occurrence could be foreseen. Thus the categorisation of damage as economic serves at least the useful purpose of indicating that something more is required. . . . "

    In Frost v. Chief Constable of South Yorkshire [1998] 3 W.L.R. 1509, 1540 Lord Steyn said that the contours of tort law are now profoundly affected by distinctions between different kinds of damage or harm. In that case a distinction was drawn between psychiatric harm and physical injury. The wide scope of potential liability for pure psychiatric harm, and the fact that it might result in a burden of liability on defendants to so many people which was disproportionate to their tortious conduct, made it necessary for a solution to be found on what were essentially pragmatic grounds. Lord Hoffmann at p. 1550H-1551B contrasted the ideal of a system of corrective justice with the imperfect way the law of torts works in practice - distributive justice, which gives generous compensation to some people but leaves, for various reasons, the vast majority of cases of injury and disability uncompensated. At p. 1556H-1557F he explained that the solution which he favoured in that case, placing the police in the same position as to pure psychiatric harm as the bereaved relatives, had been informed by considerations of distributive justice. It was a practical attempt to preserve the general perception of the law as a system of rules which is fair as between one citizen and another.

    How is one to apply these very general, and necessarily imprecise, principles to the present case? Their Lordships of the Second Division gave effect to the traditional civilian system of corrective justice, which provides a remedy in damages wherever it can be demonstrated that there has been a concurrence of damnum and injuria. For the reasons which I have outlined, I do not think that this approach can be reconciled with the fact that the loss claimed under this head is pure economic loss and with recent authorities in this House, which counsel on both sides were right to accept are now part of Scots law, as to the requirements which must be satisfied if damages for loss of that kind are to be recoverable. There must be a relationship of proximity, and the attachment of liability for the harm must be just, fair and reasonable.

    I do not wish to place undue emphasis on the fact that the pursuers chose to keep the child. The fact is, as Mrs Smith so ably demonstrated, they had no other choice. The law is not so harsh as to drive parents, in the very difficult situation in which the pursuers found themselves, to the alternatives of abortion or placing for adoption, which, for obvious reasons, they would have found quite unacceptable. Nevertheless they are now bringing the child up within the family. There are benefits in this arrangement as well as costs. In the short term there is the pleasure which a child gives in return for the love and care which she receives during infancy. In the longer term there is the mutual relationship of support and affection which will continue well beyond the ending of the period of her childhood.

    In my opinion it would not be fair, just or reasonable, in any assessment of the loss caused by the birth of the child, to leave these benefits out of account. Otherwise the pursuers would be paid far too much. They would be relieved of the cost of rearing the child. They would not be giving anything back to the wrongdoer for the benefits. But the value which is to be attached to these benefits is incalculable. The costs can be calculated but the benefits, which in fairness must be set against them, cannot. The logical conclusion, as a matter of law, is that the costs to the pursuers of meeting their obligations to the child during her childhood are not recoverable as damages. It cannot be established that, overall and in the long run, these costs will exceed the value of the benefits. This is economic loss of a kind which must be held to fall outside the ambit of the duty of care which was owed to the pursuers by the persons who carried out the procedures in the hospital and the laboratory.

    For these reasons, which I believe are very similar to those which Lord Steyn has given in his judgment, I would allow the appeal on this part of the pursuers' claim.


    I would allow the appeal as to that part of the pursuers' claim which relates to the costs of caring for, feeding and clothing and maintaining the child and of her layette the - child rearing costs. The pursuers' averments relating to those matters, which go to make up the sum sued for in the First Conclusion, should not be admitted to probation. I would dismiss the appeal as to the second named pursuer's claim for solatium. That matter, which relates to the sum sued for in the Second Conclusion, is appropriate for the proof before answer which was allowed in terms of the Second Division's interlocutor.


My Lords,

    The pursuers and respondents are the parents of five children. They are claiming damages in respect of the conception and subsequent birth of the youngest of these children. The defenders and appellants have challenged the relevancy of the pursuers' averments by way of a preliminary plea in advance of any proof of the facts. The dispute requires to be resolved on the assumption that the pursuers' allegations in their pleadings are true and it is on the basis of their present averments alone that the question of law has to be answered. I turn next to summarise their averments.

    In explaining the history of the matter in Condescendence 2 the pursuers state that in 1989, when they had four children, they had agreed that they would have no more children and that the first named pursuer would undergo a vasectomy operation. They aver that he underwent a vasectomy operation performed by a Mr. Irving on 16 October 1989. Prior to the operation there had been a discussion with both pursuers about the subsequent procedures. It was understood that during a period after the operation two samples would be required to be provided by the first named pursuer in order to ascertain whether any motile sperm were still evident. The first named pursuer provided samples in January and February 1990. But the pursuers aver that an analysis relating to the sperm of another patient was erroneously attributed to him, or at least an erroneous record was made of an analysis of a sample as having been provided by him on 23 March 1990. By letter dated 24 March 1990 Mr. Irving wrote to the first named pursuer stating "Your sperm counts are now negative and you may dispense with contraceptive precautions." After receiving the letter the pursuers dispensed with contraceptive precautions. In about September 1990 the second named pursuer became pregnant. The pursuers do not aver that they gave to the defenders any particular information about the reason for the desired vasectomy. They had agreed between themselves that they did not want any more children and it may be assumed that that was the most that the defenders would know.

    In Condescendence 3 the pursuers set out their allegations of fault. Essentially these allege negligence in the compilation of the seminal analysis record relating to the first named pursuer and negligence in advising the first named pursuer that he could dispense with contraceptive precautions when the defenders had not received two samples which tested negative for the presence of motile sperm.

    Finally in Condescendence 4 the pursuers set out the detail of the loss, injury and damage which they claim they have sustained as a result of the defenders' fault and negligence. These fall under two heads. The first is for the payment to both of them of the sum claimed in the first conclusion. This is a claim for "financial loss as a consequence of the birth of the said child." It comprises the costs of caring for, feeding, clothing and maintaining the child and the expenses incurred in the layette. The second claim is, in terms of the second conclusion, a claim solely by the second named pursuer. It is for solatium for the pain, distress and inconvenience suffered by her consequent on the pregnancy, confinement and delivery together with some loss of earnings which she sustained. The loss of earnings is alleged to be as a result of the birth and accordingly subsequent to it. I understand this claim to relate to a loss of earnings consequent upon the existence of the child not consequent upon the pregnancy. The joint claim on the other hand is distinct. It is for the costs which the pursuers will require to meet as parents of the child. But while there are two distinct claims made, nevertheless if the action is to any extent relevant there is only one right of action for the pursuers. That right arose, if it did, at conception, the stage at which there was a concurrence of iniuria and damnum.

    Before going any further it may be useful to highlight some particular features of the present case which may serve to identify some limits both as regards the facts, the allegations of fault and the substance of the damages claimed on which the present claim proceeds. In that connection five observations may be made at this stage relating to the scope of the problem.

    First, to use the classification adopted in Kealey v. Berezowski [1996] 136 D.L.R. (4th) 708, it is a claim for a wrongful conception. It is brought by the parents, not by or on behalf of the child for any losses which she may suffer. It is not a claim brought by the parents for a wrongful birth, meaning by that a negligent failure to terminate pregnancy and distinct in that respect from a wrongful conception. Anderson v. Forth Valley Health Board, 1998 S.L.T. 588 was such a case. Nor is it a claim for a wrongful life, brought by the child alone or with the parents on the ground of a condition such that the child should not have been allowed to be born. Indeed, it is not suggested that the child has any ground for claim.

    Secondly, the present case relates to a conception which was followed by a successful birth of a healthy child. In the course of the argument this factor sometimes, but not at others, appeared to be of importance. If there is a distinction in cases of wrongful conception between those where the child is healthy and those where the child is unhealthy, or disabled or otherwise imperfect, it has to be noted that in the present case we are dealing with a normal birth and a healthy child.

    Thirdly, the action is based on negligence, not contract, with no special features in the knowledge or expectation of the parties which might possibly be of significance. It does not proceed upon any warranty by the defenders that unprotected intercourse would be safe. Again that may give rise to different issues than those presently raised. Circumstances may of course occur where a claim for damages may be based either upon delict or upon contract. Where there is an express or implied term of a contract that particular work will be performed with all reasonable care there may be no practical difference between the two formulations of the basis of the claim for damages. But the distinction between cases of breach of contract and cases of delict may be of significance, and in so far as in contract some special considerations may arise it is as well to note that the present case is founded purely on negligence and not on contract.

    Fourthly, the issue raised in the appeal is strictly not one of the existence of a duty of care on the defenders towards the pursuers. The defenders admit that certain duties of care were incumbent upon them and it is accepted that a duty of care was owed by the defenders to the pursuers. Further for the purposes of the debate it may be assumed that the defenders acted in a way which amounted to a breach of the duties which they owed to the pursuers. The only issue appears then to be one about the existence and extent of loss which the pursuers have sustained as a result of that breach. That leads immediately to the fifth consideration which relates to the nature of the two claims made in the present case. As I have already noted, one is a claim for solatium with a further element of financial loss, while the other, the joint claim, is a claim purely for a financial loss. They both arise from an allegation of the making of a negligent statement.

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