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

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    My noble and learned friend Lord Steyn has summarised the common law jurisprudence on the subject of unwanted pregnancies. As he has explained, the Court of Appeal in England has admitted both heads of claim, ruling that there is no ground of public policy to override ordinary principles which would lead to full recovery. This conclusion was reached only after a difference of view at first instance and as a result of misunderstanding the American jurisprudence. More recently three English judges (Ognall J., Brooke J. and Lloyd L.J.) have expressed their personal disquiet at the result. In the United States, where the question is one of state not federal law, the overwhelming majority of jurisdictions admit the mother's personal claim but reject the parents' claim to the costs involved in bringing up the child. The courts in Canada and Australia appear to be moving in the same direction. New Zealand (and Nevada) dismiss both claims. The judgments in favour of rejecting the claim in respect of the financial consequences of the birth of a healthy baby are heavily dependent on moral sentiments. Judges in different jurisdictions have described the claim as "morally offensive," "demeaning of the value of human life," "simply grotesque," "on the face of it ridiculous," and "preposterous." But few of the appellate decisions have been unanimous. Many of them contain powerful and persuasive dissenting judgments. Every argument propounded by the one side has been forcibly refuted by the other, often in the same case. The diversity of reasoning and the force with which the opposing arguments have been advanced and rebutted attest to the difficulty of the problem.

    I do not think that the solution is to be found in a process of categorisation, whether of the nature of the delict or the loss in respect of which damages are claimed. It is true that the claims in the present case are brought under the extended Hedley Byrne principle (Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465). But I agree with my noble and learned friend Lord Steyn that it should not matter whether the unwanted pregnancy arises from the negligent supply of incorrect information or from the negligent performance of the operation itself. It is also true that the claim for the costs of bringing up Catherine is a claim in respect of economic loss, and that claims in delict for pure economic loss are with good reason more tightly controlled than claims in respect of physical loss. But I do not consider that the present question should depend on whether the economic loss is characterised as pure or consequential. The distinction is technical and artificial if not actually suspect in the circumstances of the present case, and is to my mind made irrelevant by the fact that Catherine's conception and birth are the very things that the defenders' professional services were called upon to prevent. In principle any losses occasioned thereby are recoverable however they may be characterised. Moreover the distinction has no moral content, and while ostensibly relied upon by some of those who have rejected the claim it can in reality have played no part in their belief that it would be morally wrong to accede to it.

    I am not persuaded by the reasoning of Lax J. in Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708, 739-740, where she appears to have held that the parents sustain no loss if their ability to discharge their obligations to maintain the child is not impaired. Quite apart from the fact that their ability to discharge their obligations to their other children must be reduced, the argument does not meet the way the parents put their claim. They do not claim that they have sustained loss by the impairment of their ability to discharge their existing liabilities. They claim that they have sustained loss by the incurring of an additional liability.

    I am also not persuaded by the argument that the remedy is disproportionate to the wrong. True, a vasectomy is a minor operation, while the costs of bringing up a child may be very large indeed, especially if they extend to the costs of a private education. But it is a commonplace that the harm caused by a botched operation may be out of all proportion to the seriousness of the operation or the condition of the patient which it was designed to alleviate. I am, however, more impressed by a different though related consideration. I have no doubt that it would be generally regarded as unacceptable (and probably unethical) for a surgeon to seek by contract to limit the damages for which he might be liable for his professional negligence. But I suspect that most people would regard it as reasonable for a surgeon who performed a sterilisation to attempt to exclude liability for the costs of bringing up a child whose birth he negligently failed to prevent. People would instinctively feel that there was a difference even though they might have difficulty in articulating it. But they would surely dismiss as irrelevant the facts that in the latter case the loss was purely financial or that the operation was both simple and inexpensive.

    The reasons why the parents initially sought to avoid childbirth have sometimes been treated as material. I apprehend that, if material at all, they must be decisive. It will be recollected that Mr. and Mrs. McFarlane wanted no more children because they "considered their family to be complete." But suppose that they had been advised not to have any more children because there was a serious risk to Mrs. McFarlane's life or of the birth of a defective child? The obvious remedy would be to have recourse to a lawful termination. But suppose that Mr. and Mrs. McFarlane were strongly opposed to abortion, and could not in conscience resort to one. Suppose further that, to their great joy and relief, childbirth was uneventful and the baby was entirely normal. It would seem to be absurd to allow a claim for the costs of bringing up the child in these circumstances. Recovery has been denied in a number of such cases in the United States when the feared harm did not materialise: see for example Harte v. McElway (1983) 707 F. 2d. 1544.

    But if the costs of bringing up the child are to be disallowed in that case and allowed in this, then the distinguishing feature must lie in the parents' motivation. I would be reluctant to go down this path. In the first place, there are more than the two cases to consider. The parents may have sought to guard against the risk of endangering the mother's life or the birth of a defective child, when presumably recovery would be denied. They may have agreed to sterilisation because they could not afford another child, when presumably recovery would be allowed. Or they may simply have decided that enough was enough, as in Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708 (Ontario), where the mother sought sterilisation because "this body wasn't having any more children." The present case appears, at least at first sight, to fall into this third category. Is recovery to be denied because Mr. and Mrs. McFarlane do not allege in terms that they could not afford another child? Or is it to be allowed because they were not motivated by genetic or therapeutic considerations? Neither principle nor policy indicates the answer.

    In the second place, there are great difficulties both evidential and conceptual in this approach. The parents' motives may have been mixed and their primary motives hard to discern and, as I have already pointed out, may not have been identical. Moreover, they are unlikely to have been communicated to those responsible for performing the operation. It is enough for them to know that their patients wanted no more children; they have no need to know their reasons and it would be impertinent of them to enquire. It is difficult to justify a rule which would make their liability depend on facts which were unknown to them and which are, to put it crudely, none of their business.

    It is unnecessary to consider all the various reasons which have been advanced in the cases for denying recovery of the child-rearing costs. It is sufficient to examine the two principal grounds upon which such claims have been dismissed, together with the contrary arguments. First, it is said that the birth of a healthy baby is not a harm but a blessing. It is "a priceless joy" and "a cause for celebration"; it is "not a matter for compensation." Secondly, it is said that the costs of bringing up the child are not the result of his birth but of the parents' deliberate decision to keep the child and not to have an abortion or to place the child for adoption.

    In an often cited passage in Public Health Trust v. Brown (1980) 388 So. 2d. 1084, 1085-1086 (Florida) the court observed:

    ". . . 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 recognise . . . 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."

The decision was followed in Cockrum v. Baumgarther (1983) 447 N.E. 2d. 385 where the case law in the United States was extensively reviewed by the Illinois Supreme Court.

    The basis for the suggested presumption may leave something to be desired, for in truth the failure to have an abortion or to place the child for adoption is no evidence that the parents themselves regard the child as being, on balance, beneficial. Many people have strong moral objection to abortion and would not countenance it even if it were lawful; while adoption is often not a realistic option. But I am persuaded of the truth of the general proposition. There is something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation.

    I cannot accept that the solution lies in requiring the costs of maintaining the child to be offset by the benefits derived from the child's existence. I agree with Lord McCluskey that the placing of a monetary value on the birth of a normal and healthy child is "as difficult and unrealistic as it is distasteful." In truth it provides no solution to the moral problem. The exercise must either be superfluous or produce the very result which is said to be morally repugnant. If the monetary value of the child is assessed at a sum in excess of the costs of maintaining him, the exercise merely serves to confirm what most courts have been willing to assume without it. On the other hand, if the court assesses the monetary value of the child at a sum less than the costs of maintaining him, it will have accepted the unedifying proposition that the child is not worth the cost of looking after him. Accordingly I agree with the view of all the judges below that the choice is between allowing no recovery on the basis that the benefits must be regarded as outweighing any loss, and allowing full recovery on the basis that the benefits, being incalculable and incommensurable, must be left out of account.

    The contention that the birth of a healthy baby is a blessing and not a matter for compensation has been countered by three main arguments. The first distinguishes between the birth of the child and the financial consequences of the birth. The distinction is most clearly put by Kirby A-CJ (addressing a different point) in C.E.S. v. Superclinics (Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47, 75:

    "In most such cases, it was not the child as revealed which was unwanted. Nor is the child's existence the damage in the action. The birth of the child is simply the occasion by which the negligence of the respondents manifests itself in the economic injury to the parents. It is the economic damage which is the principal unwanted element, rather than the birth or existence of the child as such."

    This is correct as far as it goes, but it does not take us very far. As I have already pointed out, the issue is not whether the birth of the child is harmful but whether the costs of maintaining the child are recoverable. The difficulty arises from the fact that the birth of the child and the financial consequences of his birth are inseparable. When parents reluctantly decide that they cannot afford a further child, they know that they can only avoid the expense by not having one. If they can prevent the conception of another child, they can avoid the costs of maintaining him. They will also avoid the distress involved in contemplating the possibility of abortion or adoption. They undergo sterilisation in order to prevent conception. Their purpose (as distinct from their motives) in undergoing sterilisation is to prevent conception, not to avoid its consequences.

    The second argument is to deny that the birth of a healthy baby is always and in all circumstances a blessing and not a harm. This is undeniable. Oedipus is perhaps the prime example of this, though I doubt whether even the strongest supporters of full recovery would have awarded his unfortunate parents damages for all the predictable (because predicted) consequences of his birth. In ordinary life, however, the birth of a healthy and normal baby is a harm only because his parents, for whatever reason, choose to regard it as such.

    The third argument takes advantage of this very fact. It insists that the parents are the best judges of where their interests lie. They should not be treated as receiving a benefit when it is one they have deliberately decided to forego. The point is forcibly put by Pearson J. dissenting in Public Health Trust v Brown (1980) 388 S.O. 2d. 1084, 1087 in language approved by Kirby A.-C.J. in his dissenting judgment in C.E.S. v Superclinics (Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47, 74:

    ". . . [t]here is a bitter irony in the rule of law announced by the majority. A person who has decided that the economic or other realities of life far outweigh the benefits of parenthood is told by the majority that the opposite is true."

This is true, but it does not follow that the costs of bringing up the child are recoverable. The admissibility of any head of damage is a question of law. If the law regards an event as beneficial, plaintiffs cannot make it a matter for compensation merely by saying that it is an event they did not want to happen. In this branch of the law at least, plaintiffs are not normally allowed, by a process of subjective devaluation, to make a detriment out of a benefit.

    I turn next to examine the argument that the costs of bringing up a child are not the result of his birth but of the parents' deliberate decision to keep him and not have an abortion or place him for adoption. As I have already mentioned, the defenders do not allege that Mr. and Mrs. McFarlane should have mitigated their loss by taking either of these steps. Abortion would probably have been unlawful, while adoption is not a realistic option for parents of four young children who have watched their mother carry a child to full term and learned of her safe delivery. Are they to be told that their parents have given their little sister away because they cannot afford to keep her? But I would go further. I regard the proposition that it is unreasonable for parents not to have an abortion or place a child for adoption as far more repugnant than the characterisation of the birth of a healthy and normal child as a detriment. I agree with Slade L.J. in Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] 1 Q.B. 1012, 1024 that save in the most exceptional circumstances (which it is very hard to imagine) it can never be unreasonable for parents or prospective parents to decline to terminate a pregnancy or to place the child for adoption.

    The present argument is different. It is that, however reasonable, the parents' decision to keep the child breaks the chain of causation. The point is well expressed by Priestley J.A. in C.E.S. v Superclinics (Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47, 84-85:

    "The point in the present case is that the plaintiff chose to keep her child. The anguish of having to make the choice is part of the damage caused by the negligent breach of duty, but the fact remains, however compelling the psychological pressure on the plaintiff may have been to keep the child, the opportunity of choice was in my opinion real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing the child.

    "Putting the matter another way, in my opinion,. . . the defendant's negligence should not, as a matter of ordinary commonsense and experience, be regarded as a cause of the ordinary expenses of rearing a child that [its] parent has chosen to bring up.

    "The plaintiff, having chosen to keep the child in the human way that as I have said I think most people in the community would approve of, is not entitled to damages for the financial consequences of having made that difficult but ordinary human choice."

    I find the conclusion more attractive than the route by which it is reached. If the parents have a choice, it is one they should never have been called upon to make. But there is no choice if there is no realistic alternative. It would be better to substitute the word "decision", but even this is not necessarily appropriate. It is doubtful whether Mr. and Mrs. McFarlane made any conscious decision to keep Catherine. It is more likely that they never even contemplated an alternative. The critical fact is that they have kept her, not that they deliberately chose or decided to do so. It is, of course, that fact which has inevitably involved them in the responsibility and expense of bringing her up. But I cannot accept the proposition that this has broken the chain of causation. Catherine's conception and birth, and the restoration of the status quo by abortion or adoption, were the very things that the defenders were engaged to prevent. If conception and birth occurred, they inevitably had financial consequences. The costs of bringing her up are no more remote than the costs of an abortion or an adoption would have been. In each case the causal connection is strong, direct and foreseeable.

    Nevertheless I am persuaded that the costs of bringing Catherine up are not recoverable. I accept the thrust of both the main arguments in favour of dismissing such a claim. In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

    This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages. In other contexts the law adopts the same principle. It insists that he who takes the benefit must take the burden. In the mundane transactions of commercial life, the common law does not allow a man to keep goods delivered to him and refuse to pay for them on the ground that he did not order them. It would be far more subversive of the mores of society for parents to enjoy the advantages of parenthood while transferring to others the responsibilities which it entails.

    Unlike your Lordships, I consider that the same reasoning leads to the rejection of Mrs. McFarlane's claim in respect of the pain and distress of pregnancy and delivery. The only difference between the two heads of damage claimed is temporal. Normal pregnancy and delivery were as much an inescapable precondition of Catherine's birth as the expense of maintaining her afterwards was its inevitable consequence. They are the price of parenthood. The fact that it is paid by the mother alone does not alter this.

    It does not, however, follow that Mr. and Mrs. McFarlane should be sent away empty handed. The rejection their claim to measure their loss by the consequences of Catherine's conception and birth does not lead to the conclusion that they have suffered none. They have suffered both injury and loss. They have lost the freedom to limit the size of their family. They have been denied an important aspect of their personal autonomy. Their decision to have no more children is one the law should respect and protect. They are entitled to general damages to reflect the true nature of the wrong done to them. This should be a conventional sum which should be left to the trial judge to assess, but which I would not expect to exceed £5,000 in a straightforward case like the present.

    In addition, Mr. and Mrs. McFarlane may have a claim for special damages. A baby may come trailing clouds of glory, but it brings nothing else into the world. Today he requires an astonishing amount of equipment, not merely the layette but push-chair, car seat, carry cot, high chair and so on. The expense of acquiring these is considerable, but in my opinion it is not recoverable. It falls into the same category as the costs of maintaining the baby. But most parents keep such items, bought for their first child, to await the arrival of further children. If Mr. and Mrs. McFarlane disposed of them in the belief that they would have no more children, the cost of replacing them should be recoverable as a direct and foreseeable consequence of the information they were given being wrong.

    Accordingly, I would allow the appeal and strike out the claims as presently pleaded. But I would allow any necessary amendment to enable the claims to go to proof in accordance with this opinion.


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