Ipsofactoj.com: International Cases [2001] Part 6 Case 10 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

St James & Seacroft University

Hospital NHS Trust

- vs -

Parkinson

LORD JUSTICE BROOKE
LADY JUSTICE HALE
SIR MARTIN NOURSE

11 APRIL 2001


Judgment

Lord Justice Brooke

  1. This is an appeal by the defendants and a cross-appeal by the claimant from a judgment of Longmore J on 11th December 2000 in which he held on a preliminary issue that the claimant could recover damages for the costs of providing for her son Scott's special needs and care relating to his disability, but that she could not recover damages for the basic costs of his maintenance. The defendants appeal against the first of the judge's directions and the claimant appeals against the second.

  2. The assumed facts on which the preliminary issue was tried are set out in the Amended Particulars of Claim. The defendant health authority is responsible for the management and administration of St James's Hospital in Leeds. In November 1993 Mrs Parkinson, who was then 34, was seen by a doctor at the hospital after her own doctor had referred her to the hospital with a request for tubal ligation. A month later she was admitted to the hospital and underwent a laparoscopic sterilisation procedure.

  3. Unhappily, it later transpired that the doctor who performed this procedure had failed to apply a clip effectively to Mrs Parkinson's left fallopian tube. Furthermore two clips, which are known as Filshie clips, appear to have dropped into her abdomen and were allowed to stay there in a part of her anatomy known as the Pouch of Douglas. It was admitted that the procedure had been performed negligently.

  4. Mrs Parkinson conceived a fifth child about ten months later. She went to see a consultant at the hospital, who warned her that the child might be born with a disability, but Mrs Parkinson chose not to have her pregnancy terminated. She gave birth to the child, who is called Scott, in May 1995.

  5. Her claim includes a complaint that the doctor's negligence resulted in damage to the left side of her pelvis, resulting in persistent abdominal pain and dyspareunia. She had to undergo a laparotomy and a salpingectomy, and she complains of continuing urinary problems. Liability for this part of her claim is in issue.

  6. The conception and birth of Scott were catastrophic events in her life. The judge describes how at the time of her sterilisation she was living with her husband in a cramped two-bedroomed house. Their family of four children was complete. She intended to return to work, and the couple had planned to move to larger accommodation. Because of Scott's arrival they were unable to do so. The need for extra money to support the new child was met by her husband working extra overtime at the foundry at which he was a supervisor, but the consequences of the pregnancy placed an intolerable strain on the marriage. This led to Mr Parkinson leaving the family home three months before Scott was born.

  7. Although the full nature and extent of Scott's disabilities would have to be explored at a trial of this action, it is necessary to summarise briefly what his mother says about him. When he was born, he had a heart murmur, and for the first six months he was very quiet. It could then be seen that he was not meeting his developmental milestones. He did not start walking until he was two and a half years old and he did not speak properly until he was three years old. He was big for his age, and his mother had to carry him. In these early years he was very clingy and did very little for himself. Sometimes he would sit in the kitchen and bang his head on the fridge.

  8. When he was three years old, his behaviour changed. He seemed to like making a lot of noise. He would throw tantrums if he did not get his own way. He did not mix well with children at any age, and had a tendency to lash out at his older siblings. If visitors came to the house, he became jealous if he did not have his mother's full attention. When he went to a nursery at the age of four, he behaved in the same way, and his mother was advised by a special needs co-ordinator that he had severe learning difficulties and require special needs.

  9. His mother described in her first statement how she had to give him her full attention at home. Part of her later statement, made in October 2000, reads as follows:

    I find that usually Scott gets up before the other children - at about 6.50am. Because he does not get enough sleep by mid-afternoon he gets tired and irritable. I have done everything possible to get him to sleep more, but it does not work. He is not a big eater but does eat what is put in front of him. He still cannot dress himself.

    Unfortunately Scott does not get on with the other two children. This is because of his attitude towards them. We have a small sitting room at the back of the house for the children to watch television and play games and Scott wants the room to himself. If, for example, one of the children wants to change the channel on the television and if Scott wants to watch another channel he will get violent and hit the child concerned with his hands or feet or even bite them. If he has something in his hand he will hit them with it.

    I have noticed a deterioration in his behaviour over the last year. He now has a very short fuse so far as temper tantrums are concerned. He soon flares up. On one of these temper tantrums he kicked the side of the settee and has caused it to be torn so that it will require replacing.

  10. This evidence from Scott's mother is supported by a statement made in October 1999 by the special educational needs co-ordinator at his school and by a report written the following year by a consultant educational psychologist. The psychologist writes about Scott's social communication difficulties, his disruptive behaviour and his delayed acquisition of basic number concepts. She says that although he was thought to have symptoms of an Autistic Spectrum Disorder, this was not apparent at interview, but it would be consistent with information in the papers available to her. Although it should be possible for his behaviour to improve, she felt that his difficulties would be lifelong.

  11. When it was suggested that it had been agreed for the purposes of the trial of the preliminary issue that Scott was a much loved member of Mrs Parkinson's family, Mr Hone QC told us that that this was not agreed. Although the extent of his disability was in issue, it was admitted by the defendants that he should not be treated as a "healthy" child. Conversely, it was accepted by Mr Hone that any disability from which Scott might suffer was not caused by any breach of duty on the defendants' part.

  12. It may be helpful to start by putting this case into a historical perspective. Cases of this kind first came before the English courts less than 20 years ago, and until very recently the approach of the English judges was conditioned by two decisions of this court, Emeh v Kensington & Chelsea Area Health Authority [1985] 1 QB 1012 and Thake v Maurice [1986] 1 QB 644. In the first of these cases, where a sterilisation had been performed negligently, the court held that a mother was entitled to recover damages, including damages for her future loss of earnings, following the birth of a child with congenital abnormalities who required constant medical and parental supervision. In the second, the court gave practical advice about the way in which different elements of the damages claim should be approached. The effect of these two judgments was that the mother was held to be entitled to claim the cost of a child's upbringing even when the "unwanted" child was a healthy child.

  13. Scottish judges were not bound by this English line of authority, and there was a difference of opinion as to the recoverability of damages for the cost of bringing up a healthy child between the Lord Ordinary (at first instance) and the Inner House of the Court of Session in McFarlane v Tayside Health Board (for the judgments on the appeal see 44 BMLR 140). The first time the House of Lords had to consider the issues that may arise in a case of this kind was on a further appeal in this Scottish case (see the report at [2000] 2 AC 59). It has been necessary for us to give very careful consideration to the speech of each member of the House of Lords in this case.

  14. When Emeh was decided in July 1984 the law of negligence was quite simple. In Anns v Merton London Borough Council [1978] AC 728 Lord Wilberforce had propounded a two stage test. First, the court had to ask whether as between the alleged wrong-doer and the person who had suffered damage there was a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part might be likely to cause damage to the latter. If the answer was "yes", then the court had to consider whether there were any considerations which ought to negative, or to reduce or limit, the scope of the duty or the class of person to whom it was owed, or the damages to which a breach of any duty might give rise. When Waller LJ, who had great experience of personal injuries litigation, applied that test in Emeh, he experienced little difficulty in holding that Mrs Emeh should be entitled to recover.

  15. In particular, he said at p 1019F-G:

    In my view it is trite to say that if a woman becomes pregnant, it is certainly foreseeable that she will have a baby, but in my judgment, having regard to the fact that in a proportion of all births - between one in 200 and one in 400 were the figures given at the trial - congenital abnormalities might arise, makes the risk clearly one that is foreseeable, as the law of negligence understands it.

  16. Since 1984 successive decisions of the House of Lords have made the law of negligence much more complicated. The simple approach in Anns was eventually abandoned. In different complex factual situations the House of Lords now invented different techniques for identifying situations outside the normal run of cases involving physical injury or physical damage (often coupled with consequential loss) in which the courts might uphold a claim for damages for negligence founded on economic loss. Because the English common law has recently taken such a significant change of direction in such cases, we can derive no assistance from the decisions of the highest courts in a number of US states which have denied recovery on the grounds that the birth of a child with congenital abnormalities was not reasonably foreseeable at the time when a doctor performed a sterilisation procedure negligently.

  17. In an analysis of this kind it is customary for the court to be taken through each of the leading House of Lords cases in the last decade as if there was one test to be applied in almost every case. We now have the benefit of a thoughtful passage in the latest edition of Clerk & Lindsell on Torts (Eighteenth Edition, 2000) which draws a lot of the threads together in a helpful way at p 346 (para 7-95):

    Different views have been expressed as to the relationship of the threefold test and assumption of responsibility. Lord Goff in Henderson v Merrett Syndicates Ltd [1996] 2 AC 145, 181C-D, regarded 'assumption of responsibility' as rendering any enquiry into the threefold criterion of fairness as being superfluous. An alternative view regards 'assumption of responsibility' as a sub-set of proximity. Rather than regarding one approach as replacing or being subsumed within another, it is suggested that the most helpful approach may be that taken by Sir Brian Neill in Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2) [1998] PNLR 564 at pp 583-587. After explaining that 'the search for a principle or test has followed three separate but parallel paths' (the 'threefold' test stated by Lord Griffiths in Smith v Eric S Bush [1990] 1 AC 831: the 'assumption of responsibility' test; and the incremental approach recognised by Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605), he commented that:

    The fact that all these approaches have been used and approved by the House of Lords in recent years suggests:

    (a)  

    that it may be useful to look at any new set of facts by using each of the three approaches in turn ...

    (b)

    that if the facts are properly analysed and the policy considerations correctly evaluated the several approaches will yield the same result.

    This analysis sees the different approaches as mutually supportive rather than exclusive in their application. Each may be used to check the provisional conclusion reached by application of the other approaches. In a case where the relationship of the parties is akin to contract, the 'assumption of responsibility' approach may be dominant for the reason suggested by Lord Steyn in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, namely, that where the tortious duty is being asked to fill the gap left by the contractual doctrines of consideration and privity, it is natural to focus on the bilateral relationship of responsibility and reliance. But this should not preclude the court from checking its conclusion by considering the fairness and justice of the duty or by examining analogous duty situations to ensure that the imposition of a duty would be an incremental rather than a radical step. Conversely, the more removed the potential duty situation from the problems caused by privity of contract, the more likely it is that the threefold or incremental approaches will dominate. Thus, where the imposition of a duty on a public service is being considered, the threefold test may predominate, but it may still be helpful to consider whether there was any assumption of responsibility.

    Two members of the present division of this court were sitting with Sir Brian Neill in the 1998 case, and I would reiterate now my agreement with what he said then.

  18. In recent years two other factors have emerged. The first is that it may be necessary on some occasions for a court to ask itself for what purpose a service was rendered, because that inquiry may stake out the limits of the duty of care owed by the person performing the service (South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 per Lord Hoffmann at pp 211C-212F). The second is that in a difficult case the court may find that principles of distributive justice, as opposed to corrective justice, may help it to identify the just solution to the problem it is invited to resolve.

  19. The researches of counsel have shown that recourse to the principles of distributive justice, familiar as they were to Aristotle, has only recently penetrated this field of English law. Lord Hoffmann drew on recent academic writings on the topic in his speech in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, where he was concerned to resolve the conundrum posed by the decision of the Court of Appeal in that case which had permitted police officers at the scene of the Hillsborough football tragedy to recover compensation for suffering post-traumatic stress disorder when such recovery was denied to relatives of the dead who had suffered in the same way.

  20. Lord Hoffmann took the view that the search for principle in this area of the law had been called off in the earlier Hillsborough case, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. He considered that until there was legislative change the courts had got to live with the control mechanisms stated in the Alcock case and that any judicial developments had to take them into account. As a result, the House of Lords was engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as a system of rules which was fair between one citizen and another.

  21. He accepted that if the law of torts was there to give legal force to an Aristotelian system of corrective justice, then there was obviously no valid distinction to be drawn between physical and psychiatric injury. But because the law had fallen into an "unsatisfactory internal state" he looked to principles of distributive justice for a solution. After introducing this topic at p 504A-C he applied it at pp 510C-511C when he sought reasons why liability for psychiatric injury should be extended to rescuers, if it was not available to "spectators and bystanders". Although he was willing to accept that the increase in claims which might result from such an extension would be modest, he said at p 510E-F:

    .... I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.

  22. Lord Browne-Wilkinson said that he agreed that the police officers in Frost should not be entitled to recover, for the reasons given by Lord Steyn and Lord Hoffmann. Lord Hoffmann ended his speech by saying that he agreed with Lord Steyn's reasons, which seemed to him substantially the same as his own. Lord Steyn, for his part, did not mention the words "distributive justice" in his speech in that case, but he did say that the decision of the Court of Appeal had introduced an imbalance in the law of tort which might perplex the man on the Underground. He ended his speech by recognising that the law on the recovery of compensation for pure psychiatric harm was a patchwork quilt of distinctions which were difficult to justify. He rejected two theoretical solutions (one being a complete retreat and the other an advance on grounds dictated by logic) and concluded that the only sensible general strategy for the courts was to say "thus far and no further":

    In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible.

  23. If Lord Steyn had been using the language of corrective justice in this speech, he would have gone on to accept, as did Lord Goff in his dissenting speech, that the police officers should be entitled to recover. Lord Goff considered at p 488E that the claim of each plaintiff should be judged by reference to the same legal principles. Lord Steyn, on the other hand, considered that there were at least four distinctive features of claims for psychiatric harm which in combination might account for the differential treatment accorded by the common law to such claims, and felt that there were cogent policy considerations militating against the "bold innovation" of abolishing all the special limited rules applicable to psychiatric harm.

  24. In his speech in McFarlane (the case with which we are principally concerned on this appeal) Lord Steyn rationalised the language of the majority in Frost. After summarising the main issue in that case, he said at p 83A-C:

    The principal theme of the judgments of the majority was based on considerations of distributive justice. In separate judgments Lord Hoffmann and I reasoned that it would be morally unacceptable if the law denied a remedy to bereaved relatives as happened in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 but granted it to police officers who were on duty. Lord Hoffmann expressly invoked considerations of distributive justice: [1999] 2 AC 455, 503-504. Lord Browne-Wilkinson and I expressed agreement with this reasoning. In my judgment I observed, at p 498D: 'The claim of the police officers on our sympathy, and the justice of the case, is great but not as great as that of others to whom the law denies redress'. That is the language of distributive justice. The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches.

  25. A little earlier he had reverted to one of the tests he had used in Frost when he said at p 82D:

    Instinctively the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing.

  26. It follows that when in McFarlane the House of Lords had to decide whether Mr and Mrs McFarlane should recover the cost of bringing up their healthy, albeit unwanted, daughter, there were at least five different legitimate techniques they might use in deciding whether the law should recognise the existence of a legally enforceable duty of care, the breach of which might lead to an award of compensation of this kind:

    1. They might inquire whether the surgeon had assumed responsibility for the services he rendered when conducting the sterilisation procedure, so as to be liable for the foreseeable economic consequences for Mr McFarlane and his wife if he performed those services negligently;

    2. They might inquire what the purpose of the operation was, viz to prevent Mrs McFarlane from conceiving any more children, so that again the surgeon might be liable for the foreseeable economic consequences of his carelessness when performing an operation with that purpose;

    3. They might adopt the incremental approach of looking for established categories of negligence in this field and deciding whether it was legitimate to take the law forward one further step by analogy with those established categories;

    4. They might apply the now familiar three-stage test propounded by Lord Bridge in Caparo;

    5. They might decide that reference to principles of distributive justice might provide a more just solution to the problem than an approach founded solely on principles of corrective justice.

  27. As we shall see, in McFarlane even the contents of this list were not exhaustive of the approaches which some members of the House chose to adopt. The important thing to note is that there is no longer a single "correct" test. As Sir Brian Neill said at p 586F in BCCI, however, "if the facts are properly analysed and the policy considerations are correctly evaluated, the several approaches will yield the same result".

  28. In McFarlane the pursuers were a married couple. They had four children, and because they did not want any more children, the husband underwent a vasectomy. Five months later a surgeon at the hospital told him that his sperm counts were negative, and that contraceptive measures were no longer necessary. For the purposes of the proceedings which went to the House of Lords on appeal, it was assumed that this advice was given negligently. The parents acted on the surgeon's advice 18 months later the wife became pregnant and after a normal pregnancy and labour she gave birth to a healthy child whom the parents loved and cared for as an integral part of their family.

  29. Both pursuers sought damages of 100,000 to cover the costs of bringing up the child ("the parents' claim"), and the second pursuer sought an additional sum of 10,000 as solatium ("the mother's claim"). The Lord Ordinary dismissed both claims. The Inner House allowed both claims. Four members of the House of Lords allowed the mother's claim but dismissed the parents' claim. The fifth, Lord Millett, would have dismissed both claims, although he would have allowed a conventional sum by way of compensation for the wrong done to these parents by denying them the freedom to limit the size of their family, together with a small claim for certain incidental expenses associated with the arrival of an unexpected child, if pleaded. Different views were expressed by the other members of the House about minor elements of a special damage claim. The case is now reported in the official reports (at [2000] 2 AC 59) and all my page references will be taken from the official report.

  30. Our task has been made more difficult because the five members of the House of Lords spoke with five different voices. Before I come to analyse relevant features of the points of difference between them, I will first identify the issues on which all, or most of them, were agreed, or on which there appear to have been no dissentient voices. These issues, in no particular order, are as follows:

    1. Public policy, as opposed to legal policy, plays no part in the search for a solution (pp 76D, 83D, 100B and G-H, 108B-C). Lord Hope, the fifth member of the House, said that the question for the court was ultimately one of law, not of social policy (p 95A). Lord Steyn likened public policy arguments to "quicksands" (p 83D), and Lord Clyde reminded himself that public policy was long ago recognised as a "very unruly horse" (p 100H). Lord Millett said that limitations in the scope of legal liability arose from legal policy, where what was in issue was the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense was not the same as public policy, even though moral considerations may play a part in both (p 108B).

    2. The claim of parents should not be denied simply because they refused to arrange an abortion or the adoption of the child, when born (pp 74E-F, 81E, 97B, 104E and 105E, 111C and 113B).

    3. The so-called "benefits rule" adopted in other jurisdictions, whereby an attempt is made to offset the benefit of parenthood against the cost of parenthood does not provide the route to a solution in this jurisdiction (pp 74H and 75C-D, 81H-82A, 103A and D, 114C). Lord Hope was content to say that it could not be established that, overall and in the long run, the costs to the pursuers of meeting their obligations to the child during her childhood would exceed the value of the benefits derived from bringing the child up within the family, which was "incalculable" (p 97C-E).

    4. The birth of a child was the foreseeable consequence of a negligently performed vasectomy (pp 74B, 95B, 107B-C and 113H). Lord Steyn said that to explain decisions denying a remedy for the cost of bringing up an unwanted child by saying there was no foreseeable loss was to resort to unrealistic and formalistic propositions which masked the real reasons for the decisions (p 82E). Lord Clyde, who was concerned only with "remoteness in relation to damnum", did not deny the parents' claim on the basis that it was not foreseeable: a sufficient causal connection could be made out (pp 102C-D and 104C-E).

    5. The parents' claim was a claim for economic loss (pp 75H and 76C, 79E, 89D, 100A, 109A). Lord Steyn said that the father's claim was for pure economic loss and that realistically, despite the pregnancy and child birth, the mother's part of the claim was also for pure economic loss. In any event, he said, it would be absurd to distinguish between the claims of the father and the mother in respect of the claim for the costs of bringing up the unwanted child (p 79E-F).

  31. It is also worth noting certain issues on which one or more members of the House expressed an opinion, again with no dissentient voice:

    1. There was disapproval of an argument to the effect that the parents' claim should be disallowed because the child might learn one day that the basis of recovery had been that she was not wanted (Lord Slynn at p 75D-E). On the other hand, when considering the reaction of "ordinary men and women" to the claim, Lord Steyn said that it would worry them that parents might be put in a position of arguing in court that the unwanted child, which they accepted and cared for, was more trouble than it was worth (p 82B-D).

    2. Lord Clyde and Lord Millett rejected an argument to the effect that the parents' claim should be disallowed merely because they were obliged to maintain the child if they could (pp 103H-104B, 109C-D).

    3. Lord Slynn attached no weight to the argument that if damages claims of this kind were allowed doctors would encourage late abortions in order to protect themselves (p 75E-F).

    4. Lord Millett considered that the parents' motivation when they initially sought to avoid child birth should not be taken into account (p 109G-110F).

  32. There can be no doubt, in my judgment, that three members of the House of Lords (Lord Slynn, Lord Steyn and Lord Hope) considered that the answer to the question whether the law ought to uphold the parents' claim lay in determining whether the facts disclosed a state of affairs where the law should recognise a legally enforceable duty of care owed by the surgeon to the parents to relieve them of the financial consequences of bringing up an unwanted child who was a healthy child.

  33. Lord Slynn used two tests, which he explained quite briefly. The first was the "proximity" test expanded by Lord Bridge in Caparo. Lord Slynn said that this test was satisfied only where it was fair, just and reasonable for the law to impose the duty of care postulated. The second was the "assumption of responsibility" test. He said that the question to be asked here was whether the doctor had assumed responsibility for the economic interest of the claimant with concomitant reliance by the claimant.

  34. He applied those tests even more briefly at p 76B-C:

    The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family. Whereas I have no doubt that there should be compensation for the physical effects of the pregnancy and birth, including of course solatium for consequential suffering by the mother immediately following the birth, I consider that it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. The doctor does not assume responsibility for those economic losses. If a client wants to be able to recover such costs he or she must do so by an appropriate contract.

  35. Because Lord Slynn's treatment of the solution is so brief it is not clear whether he would have arrived at the same answers if the child had been seriously disabled at birth. In his survey of comparative law, he did not refer to any of the non-English "unwanted pregnancy" cases which have been concerned with the birth of handicapped children, and when he embarked on his legal analysis of the claim at pp 74E-75C he referred at p 74G to a "child by then loved, loving and fully integrated into the family" and at p 75B to "joy at the birth of a healthy child, at the baby's smile and the teenager's enthusiasm".

  36. Lord Steyn expressly said that there might be force in the concession made by counsel for the health board to the effect that the rule might have to be different in the case of an unwanted child who was born seriously disabled. He solved the problem by reference to principles of distributive justice; I have quoted the critical sentence of his judgment in paragraph 25 above. His philosophical approach to the search for a solution to the conundrum is set out in the passage of his judgment at p 82E-G which immediately follows that sentence:

    My Lords, to explain decisions denying a remedy for the cost of bringing up an unwanted child by saying that there is no loss, no foreseeable loss, no causative link or no ground for reasonable restitution is to resort to unrealistic and formalistic propositions which mask the real reasons for the decisions. And judges ought to strive to give the real reasons for their decision. It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice. That is of course, a moral theory. It may be objected that the House must act like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But judges' sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right.

  37. This was his primary route to a conclusion that the law did not recognise a legally enforceable duty of care of the type I have described in paragraph 32 above. Lord Steyn added at p 83E:

    If it were necessary to do so, I would say that the claim does not satisfy the requirement of being fair, just and reasonable.

  38. In other words, in those very rare cases in which the solution is found by having recourse to the principles of distributive justice, the use of the expression "fair, just and reasonable" is apt for this purpose. In Heil v Rankin [2000] 2 WLR 1173, when reviewing the level of damages for pain, suffering and loss of amenity in personal injuries cases, Lord Woolf MR adopted a comparable approach:

    The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.

  39. Lord Hope articulated even more clearly the congruence of the distributive justice approach with the "fair, just and reasonable" test propounded in Caparo. In his analysis of the facts he said (at p 85D) that the child in that case was a normal healthy child, and when he turned to his legal analysis of the parents' claim he said at p 89D that the loss which fell to be considered under this head was the cost of rearing a normal, healthy child. There is nothing in his judgment (including the survey of comparative law it contains) which suggests that he had in mind the issues that arise when the unwanted child is seriously handicapped.

  40. Lord Hope referred expressly to the speeches of Lord Steyn and Lord Hoffmann in Frost, and inquired at p 96G how one was to apply to the present case the very general, and necessarily imprecise, principles enunciated in Frost. He fastened in this context on the requirements that there must be a relationship of proximity, and that the attachment of liability for the harm must be just, fair and reasonable.

  41. As I have said at paragraph 30(iii) above, Lord Hope then tried to weigh the cost of bringing up a [healthy] child against the benefits derived by the parents from the child's presence in the family (whose value he found to be incalculable) and concluded that it could not be established that, overall and in the long run, the costs would exceed the value of the benefits. It followed that this was "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". He believed that his reasons for allowing the appeal were very similar to those which Lord Steyn had given.

  42. I do not consider it necessary to dwell very long on the different approaches to the parents' claim which were adopted by Lord Clyde and Lord Millett. It is sufficient for my purposes, as it was for Longmore J, that three of the members of the House of Lords used a judicial technique which involved them asking whether there was a legally enforceable duty of care to prevent the parents incurring the financial costs of bringing up a healthy, but unwanted, child. Lord Clyde preferred to focus on the "damnum" and considered that restitution would not be reasonable, having regard to the extent of the liability which the defenders could reasonably have thought they were undertaking. Lord Millett simply concluded at pp 113H-114B that the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. He said that society itself must regard the balance between cost and benefit as beneficial since 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

  43. Although Lord Millett did not think that the solution was to be found in a process of categorisation, whether of the nature of the delict or the loss in respect of which damages were claimed (see p 108G), he defined the target at which the court was aiming in terms not dissimilar to those used by Lord Steyn when he described the dictates of legal policy "which is to say our more or less inadequately expressed ideas of what justice demands". He mentioned a modern text book on torts in this context and continued:

    Legal policy in this sense is not the same as public policy even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases.

  44. When Longmore J analysed the five speeches in the House of Lords, he believed that the tenor of Lord Slynn's language was that a parent could not recover "for this kind of loss at all", whether the child was born healthy or disabled. For the reasons I have given in paragraph 35 above, I am not sure if I agree with him, and in any event Lord Slynn adopted a test of "assumption of liability for economic loss", as opposed to the more well-established test of "assumption of liability for services", on his route to a solution (see Henderson v Merrett Syndicates [1995] 2 AC 146, 181C-D and White v Jones [1995] 2 AC 207, 273G-H).

  45. Longmore J noted that Lord Steyn had left the position of the disabled child open (see paragraph 36 above), and he thought that the element which in Lord Hope's eyes made the McFarlane parents' claim unfair, unjust or unreasonable was absent from any claim for additional costs arising from disability. On Lord Clyde's approach, the judge thought that a reasonable doctor would be appalled and embarrassed to think that his negligence imposed not merely the ordinary and welcome burden of bringing up a healthy child but also the additional element of the cost of bringing up a disabled child. Lord Millett concentrated his mind entirely on "a natural healthy baby".

    The judge concluded:

    If one reads the McFarlane speeches as a whole, therefore, it is only Lord Slynn whose speech inexorably entails the conclusion that there should be no recovery for the cost of bringing up any child, whether healthy or disabled. The language of the other speeches at least leaves the matter open. But, to my mind, the other speeches all point to the conclusion that a disabled child brought into the world by a negligent surgeon is in so different a situation from a healthy child, that a parent should be able to recover the additional costs attributable to the disability.

  46. Like the judge, we have had the opportunity of considering the judgments of English judges in what are called "wrongful birth" cases which were decided at first instance after the decision of the House of Lords in McFarlane. These cases are different from "failed sterilisation" cases because the opportunity that is lost to the parents in "wrongful birth" cases is the opportunity to terminate a pregnancy which they would have enjoyed if the impugned professional services had not been negligently performed. In Rand v East Dorset Health Authority [2000] Lloyd's Med Rep 181 Newman J was concerned with a Down's Syndrome child. In Hardman v Amin [2000] Lloyd's Med Rep 498 Henriques J was concerned with a child who was born very severely disabled after his mother contracted rubella during her pregnancy. In Lee v Taunton and Somerset NHS Trust (October 2000, unreported) Toulson J was concerned with a child born with a large spina bifida lesion and hydrocephalus.

  47. All three judges held that the decision in McFarlane did not preclude an award of compensation for child-rearing costs to these parents, although they differed when assessing the scale on which compensation should be awarded. Toulson J, in particular, after saying why he considered that McFarlane presented no obstacle to the claim before him said at p 18:

    I do not believe that it would be right for the law to deem the birth of a disabled child to be a blessing, in all circumstances and regardless of the extent of the child's disabilities; or to regard the responsibility for the care of such a child as so enriching in the ordinary nature of things that it would be unjust for a parent to recover the cost from a negligent doctor on whose skill that parent had properly relied to prevent the situation.

    If the matter were put to an opinion poll among passengers on the Underground, I would be surprised if a majority would support such a view.

  48. Because the policy issues in "wrongful birth" cases are different, I do not think it helpful to dwell any longer on that line of authority. Nor do I think it necessary to say very much about the approach of the courts in other jurisdictions, although each side furnished us with a most helpful summary of the position. I have already said at paragraph 16 above why I do not consider that the denial of a parents' claim in many US state courts does not take the matter any further, because they are applying a different system of law. We were shown, however, three US cases in state courts which did not find that a restrictive interpretation of "proximate cause" precluded recovery, of which the most recent was a decision of the Supreme Court of Rhode Island in Emerson v Magendatz 689 A 2d 409 (RI 1997). In that case the court considered that the public policy arguments which precluded the award of the cost of raising healthy children did not preclude an award of the extraordinary expenses of child rearing, going beyond the costs of rearing a normal child, when the unwanted child was disabled.

  49. In arriving at this conclusion that court expressly followed the decision of the Supreme Court of Florida in Fassoulas v Ramey 450 So 2d 822 (Fla 1984), which was not followed in a number of other jurisdictions on account of their "proximate cause" rules. In Fassoulas the Supreme Court of Florida followed the reasoning later to be adopted by the House of Lords in relation to the cost of rearing a healthy, normal child. It added, however, at paragraph 4:

    We agree with the district court below that an exception exists in the case of special upbringing expenses associated with a deformed child. See Moores v Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981). Special medical and educational expenses, beyond normal rearing costs, are often staggering and quite debilitating to a family's financial and social health; 'indeed, the financial and emotional drain associated with raising such a child is often overwhelming to the affected parents', Ramey v Fassoulas, 414 So.2d at 201. There is no valid policy argument against parents being recompensed for these costs of extraordinary care in raising a deformed child to majority. We hold these special upbringing costs associated with a deformed child to be recoverable.

  50. Unless we are bound by authority to the contrary, I find this argument persuasive. On this side of the Atlantic I would apply the battery of tests which the House of Lords has taught us to use, and arrive at the same answer. My route would be as follows:

    1. For the reasons given by Waller LJ in Emeh, the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon's careless failure to clip a Fallopian tube effectively;

    2. There was a very limited group of people who might be affected by this negligence: viz Mrs Parkinson and her husband (and, in theory, any other man with whom she had sexual intercourse before she realised that she had not been effectively sterilised);

    3. There is no difficulty in principle in accepting the proposition that the surgeon should be deemed to have assumed responsibility for the foreseeable and disastrous economic consequences of performing his services negligently;

    4. The purpose of the operation was to prevent Mrs Parkinson from conceiving any more children, including children with congenital abnormalities, and the surgeon's duty of care is strictly related to the proper fulfilment of that purpose;

    5. Parents in Mrs Parkinson's position were entitled to recover damages in these circumstances for 15 years between the decisions in Emeh and McFarlane, so that this is not a radical step forward into the unknown;

    6. For the reasons set out in (i) and (ii) above, Lord Bridge's tests of foreseeability and proximity are satisfied, and for the reasons given by the Supreme Court of Florida in Fassoulas, an award of compensation which is limited to the special upbringing costs associated with rearing a child with a serious disability would be fair, just and reasonable.

    7. If principles of distributive justice are called in aid, I believe that ordinary people would consider that it would be fair for the law to make an award in such a case, provided that it is limited to the extra expenses associated with the child's disability.

  51. I can see nothing in any majority reasoning in McFarlane to deflect this court from adopting this course, which in my judgment both logic and justice demands. Although Mr Hone had a cross-appeal in which he sought full recovery for his client, and not the limited recovery ordered by the judge, he did not press his cross-appeal very vigorously, and in my judgment it would not be fair, just and reasonable to award compensation which went further than the extra expenses associated with bringing up a child with a significant disability.

  52. What constitutes a significant disability for this purpose will have to be decided by judges, if necessary, on a case by case basis. The expression would certainly stretch to include disabilities of the mind (including severe behavioural disabilities), as well as physical disabilities. It would not include minor defects or inconveniences, such as are the lot of many children who do not suffer from significant disabilities. I have had the opportunity of reading in draft the judgment of Hale LJ, and I agree with what she says about this matter in paragraph 91 of her judgment.

  53. In this judgment I am concerned only with the loss that arises when the child's significant disabilities flow foreseeably from his or her unwanted conception. There may well be foreseeable incidents during the mother's pregnancy and the time leading up to the birth of the child from which the child's disabilities have flowed, but these will not in the ordinary way be effective to break the chain of causation. If, on the other hand, there is evidence that a child's disabilities, discernible at birth, were caused by some new intervening cause, then the difficult and interesting issues that may arise in such a case will have to be resolved by applying well-known principles of causation to the facts of the case before the court.

  54. A negligent surgeon should not, without more, be held liable for the economic consequences of the birth of a child with significant disabilities if the child's disabilities were brought about between conception and birth by some ultroneous cause (for which see Lord Wright in The Oropesa [1943] P 32, 39). Similarly, the ordinary rules relating to contributory negligence will be applied in an appropriate case to limit recovery.

  55. For these reasons I would dismiss both the appeal and the cross-appeal.

    Lady Justice Hale

  56. The right to bodily integrity is the first and most important of the interests protected by the law of tort, listed in Clerk & Lindsell on Torts, 18th edition, para 1-25. "The fundamental principle, plain and incontestable, is that every person's body is inviolate": see Collins v Willcock [1984] 3 All ER 374, at p 378. Included within that right are two others. One is the right to physical autonomy: to make one's own choices about what will happen to one's own body. Another is the right not to be subjected to bodily injury or harm. These interests are regarded as so important that redress is given against both intentional and negligent interference with them. In contrast, economic interests come very much lower in the list, and for obvious reasons: "in a competitive economic society the conduct of one person is always liable to have economic consequences for another and, in principle, economic activity does not have to have regard to the interests of others and is justifiable by the actor having regard to his own interests alone": see Perrett v Collins [1999] PNLR 77, at p 84. The object of much commercial activity is deliberately to harm the economic interests of competitors: only in very special situations, therefore, does the law recognise a liability to compensate those whose economic interests have been damaged.

  57. In the middle, however, are those cases where the invasion of the right to bodily integrity has caused, not only pain, suffering and loss of amenity (including freedom and autonomy) but also financial consequences, whether in the shape of loss of earnings or the like, or out of pocket expenditure. These are a regular and automatic component in any claim for damages for personal injuries and often form the greater part of the claim for the more severely injured.

  58. In McFarlane v Tayside Health Board [2000] 2 AC 59, all their Lordships, in their different ways, recognised that to cause a woman to become pregnant and bear a child against her will was an invasion of that fundamental right to bodily integrity, although they expressed themselves differently. Some highlighted the interference with bodily autonomy, others the pain, suffering and loss of amenity. Lord Millett put it most clearly, at p 107G:

    The damnum occurred when Mrs McFarlane conceived. This was an invasion of her bodily integrity and threatened further damage both physical and financial.

  59. Lord Hope put it in terms of loss of autonomy rather than harm, at pp 86G to 87A:

    As the pregnancy in this case was a normal one and there were no complications either during or after childbirth, there was no physical event other than the conception to which the claim can be said to be attributable. The harmful event was the conception. The physical consequences to the woman of pregnancy and childbirth are, of course, natural processes. In normal circumstances they would not be considered as a harm to her or as being due to an injury. But the law will respect the right of men and women to take steps to limit the size of their family. Any objection to the claim on moral or religious grounds must be rejected, as this is an area of family life in which freedom of choice may properly be exercised.

  60. Lord Clyde took the other route, at p 102H:

    .... the Lord Ordinary held that the pregnancy confinement and delivery, being natural processes did not constitute an injury. But natural as the mechanism may have been the reality of the pain, discomfort and inconvenience of the experience cannot be ignored. It seems to me to be a clear example of pain and suffering such as could qualify as a potential head of damages.

  61. Lord Steyn took the same view at p 81G,

    After all, the hypothesis is that the negligence of the surgeon caused the physical consequences of pain and suffering associated with pregnancy and childbirth. And every pregnancy involves substantial discomfort and pain.

  62. Lord Slynn relied more on autonomy at p 74C,

    It does not seem to me to be necessary to consider the events of an unwanted conception and birth in terms of "harm" or "injury" in its ordinary sense of the words. They were unwanted and known by the health board to be unwanted events.

  63. Not surprisingly, their Lordships did not go into detail about what is entailed in the invasion of bodily integrity caused by conception, pregnancy and child birth. But it is worthwhile spelling out the more obvious features. Some will sound in damages and some may not, but they are all the consequence of that fundamental invasion. They are none the less an invasion because they are the result of natural processes. They stem from something which should never have happened. And they last for a great deal longer than the pregnancy itself. Whatever the outcome, happy or sad, a woman never gets over it. I do not, of course, forget the serious consequences for many fathers, and will return to these later, but there are undoubted and inescapable differences between the sexes here. As the claimant in this case is the mother, I hope that I may be forgiven for considering the position of mothers first.

  64. From the moment a woman conceives, profound physical changes take place in her body and continue to take place not only for the duration of the pregnancy but for some time thereafter. Those physical changes bring with them a risk to life and health greater than in her non-pregnant state. Those risks vary according to the age, state of health, and other characteristics of the woman, and of the unborn child. For some women, pregnancy is very dangerous, while for others happily it is not. For some women, pregnancy is generally a pleasurable experience, for others it is generally an uncomfortable time, for many it varies according to the trimester.

  65. Along with those physical changes go psychological changes. Again these vary from woman to woman. Some may amount to a recognised psychiatric disorder, while others may be regarded as beneficial, and many are somewhere in between. But for most they include the development of deep feelings for the new life as it grows within one, feelings which there is now evidence to suggest begin to be reciprocated by the growing child even before he is born.

  66. Along with these physical and psychological consequences goes a severe curtailment of personal autonomy. Literally, one's life is no longer just one's own but also some-one else's. One cannot simply rid oneself of that responsibility. The availability of legal abortion depends upon the opinions of others. Even if favourable opinions can readily be found by those who know how, there is still a profound moral dilemma and potential psychological harm if that route is taken. Late abortion brings with it particular problems, and these are more likely to arise in failed sterilisation cases where the woman does not expect to become pregnant. Their Lordships unanimously took the view that it was not reasonable to expect any woman to mitigate her loss by having an abortion: see Lord Slynn at p 74E-F, Lord Steyn at p 81E, Lord Hope at p 97B-C, Lord Clyde at p 105E, Lord Millett at p 113B. Realistically, some may think, the result of their Lordships' decision could well be that some will have no other sensible option.

  67. Continuing the pregnancy brings a host of lesser infringements of autonomy related to the physical changes in the body or responsibility towards the growing child. The responsible pregnant woman foregoes or moderates the pleasures of alcohol and tobacco. She changes her diet. She submits to regular and intrusive medical examinations and tests. She takes certain sorts of exercise and foregoes others. She can no longer wear her favourite clothes. She is unlikely to be able to continue in paid employment throughout the pregnancy or to return to it immediately thereafter.

  68. The process of giving birth is rightly termed 'labour'. It is hard work, often painful and sometimes dangerous. It brings the pregnancy to an end but it does not bring to an end the changes brought about by the pregnancy. It takes some time for the body to return to its pre-pregnancy state, if it ever does, especially if the child is breast fed. There are well-known psychiatric illnesses associated with child-birth and the baby blues are very common. The law recognises that a woman may not recover her pre-pregnancy psychological health for at least six weeks: see Adoption Act 1976, s 16(4).

  69. Quite clearly, however, the invasion of the mother's personal autonomy does not stop once her body and mind have returned to their pre-pregnancy state. The mother who gives birth is always the legal mother of the child, irrespective of whether or not she is the genetic parent: see Human Fertilisation and Embryology Act 1990, s 27(1). She is almost always identifiable: foundlings are extremely rare. The mother always and automatically has parental responsibility for the child: see Children Act 1989, s 2(1) and (2)(a). She will be criminally liable for abandoning or neglecting him: see Children and Young Persons Act 1933, ss 1(1), (2)(a), 17(1)(a). She cannot legally surrender or transfer her responsibility, although she can arrange for others meet it for her: see Children Act 1989, s 2(9). If she acts responsibly there will be no criminal liability, but short of adoption she cannot divest herself of the responsibility. Adoption is subject to many of the same problems as is abortion. Once again, their Lordships did not consider it reasonable for a wrongdoer to expect a parent to take this course.

  70. Parental responsibility is not simply or even primarily a financial responsibility: see Children Act 1989, s 3(1). The primary responsibility is to care for the child. The labour does not stop when the child is born. Bringing up children is hard work. As Sir Nicholas Browne-Wilkinson VC, as he then was, said in Surtees v Kingston upon Thames Royal Borough Council [1991] 2 FLR 559, at p 583G:

    .... the responsibilities of a parent (which in contemporary society normally means the mother) looking after one or more children, in addition to the myriad other duties which fall on the parent at home, far exceed those of other members of society. The studied calm of the Royal Courts of Justice, concentrating on one point at a time, is light years away from the circumstances prevailing in the average home. The mother is looking after a fast moving toddler at the same time as cooking the meal, doing the housework, answering the telephone looking after the other children and doing all the other things that the average mother has to cope with simultaneously, or in quick succession, in the normal household.

  71. The obligation to provide or make acceptable and safe arrangements for the child's care and supervision lasts for 24 hours a day, 7 days a week, all year round, until the child becomes old enough to take care of himself. The law now recognises the claim of an injured person to be compensated for the costs of caring for him. When the care is provided by a family member, the claim is made by the injured person but the loss is the family member's: Hunt v Severs [1994] 2 AC 350. The family member has not been wronged. Here, however, the care is provided by the very person who has been wronged, and the legal obligation to provide it is the direct and foreseeable consequence of that wrong. It is, perhaps, an indication of the reluctance of the common law to recognise the cost of care to the carer that claims for wrongful conception and birth have not previously been analysed in this way: thus in McFarlane, no claim was made 'in respect of any care or trouble undergone by the pursuers in the course of bringing up the child': see McFarlane v Tayside Health Board 1998 SLT 307, at p 309.

  72. The law has found it much easier to focus on the associated financial costs, the out of pocket expenditure on food, clothing, housing, schooling and all the other multitudinous needs of the growing child, and the loss of earnings stemming from the caring role. These costs are not independent of the caring responsibility but part and parcel of it.

  73. It is not possible, therefore, to draw a clean line at the birth. All of these consequences flow inexorably, albeit to different extents and in different ways according to the circumstances and characteristics of the people concerned, from the first: the invasion of bodily integrity and personal autonomy involved in every pregnancy. While the Lord Justice Clerk in McFarlane, 1998 SLT 307, at p 311E, did not regard the mother's financial claim as 'in some way representing the consequences of the pain and suffering experienced in pregnancy and child-birth', it obviously represents the consequences of the fundamental invasion of her rights, which was the conception itself.

  74. Of course, most pregnancies are not caused wrongfully. But this case proceeds on the basis that this one was. The whole object of the service offered to the claimant by the defendant was to prevent her becoming pregnant again. They had a duty to perform that service with reasonable care. They did not do so. She became pregnant as a result. On normal principles of tortious liability, once it was established that the pregnancy had been wrongfully caused, compensation would be payable for all those consequences, whether physical or financial, which are capable of sounding in damages. (Thus, for example, psychological harm falling short of psychiatric injury would not attract compensation, although the overall impact upon the claimant of her injuries may be reflected in the quantum of damages for pain, suffering and loss of amenity; overlapping claims for loss of earnings, extra care and costs because of another mouth to feed might have to be offset, etc.)

  75. There is nothing unusual or contrary to legal principle involved. This is clearly reflected in the decision of the Inner House in McFarlane. Scots law may express itself differently but the principles are the same. What is needed is iniuria and damnum. The iniuria was the breach of the duty of care. The damnum was the conception. Thereafter a claim lay for the natural and probable (or in English law, the foreseeable) consequences of the breach and the initial loss.

  76. A majority of their Lordships in McFarlane clearly recognised that on normal principles the claim would be allowable (indeed, the defenders had not denied this: see Lord Millett, at p 107B). Once again, Lord Millett is the clearest, at pp 108H to 109A:

    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] AC 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 true that the claim for the costs of bringing up Catherine is a claim in respect of economic loss, and that the claims in delict for pure economic loss are with good reasons more tightly controlled that claims in respect of physical loss. But I do not consider that the present question should depend upon 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.

  77. This is a clear reference to the principle in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, a case which, perhaps curiously, is referred to only in the speech of Lord Steyn, and only as an example, at p 77A. Lord Steyn had also said at p 82:

    It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents' claim for the cost of bringing up Catherine must succeed.

  78. Not surprisingly, Lord Clyde's analysis, at p 102A-C, was very similar to that of the Inner House:

    .... the issue raised in the appeal is not properly one of the existence or non-existence of a duty of care. The relationship between the pursuers and the defenders is accepted as one which is sufficiently close as to constitute such a duty and an obligation to make reparation in the event of a breach of that duty. While in the case of the first named pursuer, whose only claim is for an economic loss, it may be tempting to approach the problem as one of the existence of a liability, the second named pursuer has some right of action which can more readily be recognised and I would be prepared to accept that there should be an obligation in the defenders to make reparation to her. The obligation to make reparation is, to use the words of Lord Keith of Kinkel in Dunlop v McGowans, 1980 SLT 129, 133 'single and indivisible'. So also is the ground of action on which the respective claims of the pursuers proceed. Once the obligation to make reparation for some loss is predicated, it seems to me difficult to analyse the claim for maintenance of the child as a particular, and so separate, obligation.

  79. Their Lordships' reasons for denying what would on normal legal principles be recoverable were variously and elegantly expressed. Their words have been subjected to minute analysis before us in this case and elsewhere. In truth, they all gave different reasons for arriving at, on this aspect of the claim, the same result. Nor are those reasons easy to assign to the traditional categories of duty, breach and damage, given that all agreed that there was some duty in the case and that if that duty had been broken, some recoverable damage had resulted.

  80. Lord Slynn prefaced his discussion of the maintenance costs thus, at p 74H:

    The discussion in the American cases of the 'benefits rule' .... persuades me that it should not be adopted here and it is significant that it has not been adopted in many American states.

    His conclusion, at p 76B-C, was this:

    The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family .... I consider that it is not fair just or reasonable to impose upon the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. The doctor does not assume responsibility for those economic losses.

    Given that the doctor clearly does assume some responsibility for preventing conception, it is difficult to understand why he assumes responsibility for some but not all of the clearly foreseeable, indeed highly probable, losses resulting.

  81. Lord Steyn gave a quite different reason, at p 82B-E:

    But one may also approach the case from the vantage point of distributive justice. It requires a focus on the just distribution of burdens and losses among members of a society. If the matter is approached in this way, it may become relevant to ask commuters on the Underground the following question: 'Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority, i.e. until about 18 years?' My Lords, I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic 'No'. And the reason for such a response would be an inarticulate premise as to what is morally acceptable and what is not .... they will have in mind that many couples cannot have children and others have the sorrow and burden of looking after a disabled child. The realisation that compensation for financial loss in respect of the upbringing of a child would necessarily have to discriminate between rich and poor would, surely, appear unseemly to them. It would also worry them that parents may be put in a position of arguing that the unwanted child, which they accepted and care for, is more trouble than it is worth. Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent on the birth of a healthy child, which all of us regard as a valuable and good thing.

  82. The traveller on the Underground is not here being invoked as a hypothetical reasonable man but as a moral arbiter. We all know that London commuters are not a representative sample of public opinion. We also know that the answer will crucially depend upon the question asked and the amount of relevant information and argument given to help answer it. The fact that so many eminent judges all over the world have wrestled with this problem and reached different conclusions might suggest that the considered response would be less emphatic and less unanimous. Distributive justice is concerned with fairness, not only between different classes of claimant and defendant, but also between different classes of potential claimant. That certainly underpinned its first appearance in the law reports in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. This may explain why Lord Steyn compared Catherine's parents with the unwillingly childless or the parents of a disabled child: they are so much better off. If the first is wrongfully caused, there will be a remedy (although whether this extends to funding extraordinary steps to provide a child is a difficult and controversial issue); and Lord Steyn acknowledged, at p 84A, that the rule might have to be different for the last. It follows that his remark, at p 83E, that 'If it were necessary to do so, I would say that the claim [for the costs of bringing up a healthy unwanted child] does not satisfy the requirement of being fair, just and reasonable' cannot be taken as ruling out a claim such as this.

  83. Lord Hope, at p 89D, regarded the claim as one for economic loss. Caparo Industries plc v Dickman [1990] 2 AC 605 was a "vital signpost", at p 94B. He pointed out, at p 95C, that,

    .... 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.

    Recent English case law to that effect must also be part of Scots law. Nevertheless, his conclusion, at p 97C-F, was in some respects an echo of the conclusion of the Lord Ordinary at first instance:

    .... They are now bringing up the child 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 those 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 beheld to fall outside the ambit of the duty of care which was owed to the pursuers ...

    Although he uses the language of duty, he also regarded his reasons as similar to those given by Lord Steyn. I take this to mean that he concentrates upon whether a particular type of damage is within the scope of the duty rather than the existence of the duty itself.

  84. Lord Clyde hesitated to adopt an approach analysing the claim in terms of the existence of a duty to compensate: see p 101G to 102A. He preferred to rely on the idea of reasonable restitution: see p 104H and 105G. He was concerned, at p 105B-D, that:

    The result of the decision of the Inner House is that the pursuers have the enjoyment of a child, unintended but not now unwanted, free of any cost to themselves and maintained at the expense of the defenders. It can be argued that the result is to be justified by treating the existence of the child as a windfall which simply has to be disregarded. Alternatively it can be argued that the benefit of the child is something which either cannot in principle be taken into account or even cannot be evaluated and accordingly the defenders should be held liable for the whole loss suffered by the pursuers without any deduction. That may seem a slightly more attractive proposition than the view that the benefit should altogether outweigh the loss. But that the pursuers end up with an addition to their family, originally unintended but now, although unexpected, welcome, and are enabled to have the child maintained while in their custody free of any cost does not seem to accord with the idea of restitution or with an award of damages which does justice between both parties.

    He also considered, at p 106A, that reasonable restitution must take some account of proportionality.

  85. Lord Millett rejected the last argument, at p 109E: "it is a commonplace that the harm done 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." The same might be said of many accidents at work or on the roads. Lord Millett's reasons for rejecting this 'novel head of damages' (p 108B) were entirely clear, at pp 113H to 114B:

    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 forgo 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.

    He recognised, however, that the benefit to society and the benefit to the individuals are two different things, because he continued, at p 114B-D:

    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 itself does not permit parents to enjoy the advantages and dispense with the disadvantages.

  86. Longmore J in this case concluded that only Lord Slynn had unequivocally based his decision on the extent of the duty of care and in a way which led inexorably to the conclusion that there should be no recovery for the cost of bringing up any child, whether healthy or disabled. The language of the other speeches at least left the matter open. Having recited their reasoning at some length, I agree with him. Having accepted the existence of some duty, they are considering whether a particular type of damage is recoverable if the duty is broken.

  87. At the heart of it all is the feeling that to compensate for the financial costs of bringing up a healthy child is a step too far. A child brings benefits as well as costs; it is impossible accurately to calculate those benefits so as to give a proper discount; the only sensible course is to assume that they balance one another out. No-one wants a situation in which a parent who thoroughly dislikes her child and the predicament in which she has been placed, but does her duty, is at an advantage compared with the parent who falls in love with her child at birth (as most do) and willingly reconciles herself to her fate. No-one wants a situation in which the parent who disparages her child is at an advantage compared with one who sees the best in him. The only solution, as Lord McCluskey in the Inner House said, at [1998] SLT 307 at p 317F, and Lord Millett agreed, is to ignore the benefits altogether or to assume that they cancel out the claim.

  88. There are many who would challenge that assumption. They would argue that the true costs to the primary carer of bringing up a child are so enormous that they easily outstrip any benefits. As Lord McCluskey also said, at p 317B:

    The 'principle' that the value of a child should be held to outweigh all the financial outlay incurred bringing up a child might well appeal to those who can afford to make such outlay without any, or any undue, financial hardship. But even in our civilisation, there are some for whom an unwanted and unplanned pregnancy is a financial disaster and may bring an end to a chosen way of life with financial and personal losses.

  89. The notion of a child bringing benefit to the parents is itself deeply suspect, smacking of the commodification of the child, regarding the child as an asset to the parents. (Indeed counsel for the Health Board went so far as to argue before the Inner House that expenditure on a child was "spent on nourishing an asset": see 1998 SLT 307, at p 310A.) But if, as Lord Millett observed, society is bound to regard its new member as an asset, whatever the views and experience of the parents, an equally rational response might have been to attribute a conventional sum as the benefit to be assumed to be gained from the pleasure of a child's company, the pride in his achievements, the hope of reciprocation of family feelings, the passing on of one's genes. This is a solution sometimes adopted by the law when faced with a rationally necessary but impossible task. Lord Millett would have adopted it for the 'true nature of the wrong done' to the pursuers, the denial of an important aspect of their personal autonomy.

  90. The solution of deemed equilibrium also has its attractions and is in any event binding upon us. Indeed, it provides the answer to many of the questions arising in this case. The true analysis is that this is a limitation on the damages which would otherwise be recoverable on normal principles. There is therefore no reason or need to take that limitation any further than it was taken in McFarlane. This caters for the ordinary costs of the ordinary child. A disabled child needs extra care and extra expenditure. He is deemed, on this analysis, to bring as much pleasure and as many advantages as does a normal healthy child. Frankly, in many cases, of which this may be one, this is much less likely. The additional stresses and strains can have seriously adverse effects upon the whole family, and not infrequently lead, as here, to the break up the parents' relationship and detriment to the other children. But we all know of cases where the whole family has been enriched by the presence of a disabled member and would not have things any other way. This analysis treats a disabled child as having exactly the same worth as a non-disabled child. It affords him the same dignity and status. It simply acknowledges that he costs more.

  91. It also provides a solution to the problem of degree: how disabled does the child have to be for the parents to be able to make a claim? The answer is that the law has for some time distinguished between the ordinary needs of ordinary children and the special needs of a disabled child. Thus, for the purposes of the services to be provided under Part III of the Children Act 1989, a child is taken to be "in need" if, among other things, "he is disabled": see s 17(10)(c). For this purpose, "a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed": see s 17(11). This or very similar definitions have been used since the legislation establishing the welfare state in the late 1940s to identify those whose special needs require special services. Local social services authorities are used to operating it, for example when maintaining the register of disabled children required by Sched 2, para 2 of the 1989 Act. I see no difficulty in using the same definition here.

  92. Another question is when the disability must arise. Mr Stuart Smith QC argued that there was no rational cut-off point, as any manner of accidents and illnesses might foreseeably affect a child throughout his childhood. But that is part of the ordinary experience of childhood, in which such risks are always present, and the balance of advantage and disadvantage is deemed to be equal. The two serious contenders are conception and birth. The argument for conception is that this is when the major damage was caused, from which all else flows. This was what the defendant undertook to prevent. But there are at least two powerful arguments for birth. The first is that although conception is when the losses start, it is not when they end. The defendant also undertook to prevent pregnancy and childbirth. The normal principle is that all losses, past, present or future, foreseeably flowing from the tort, are recoverable. The second is that it is only when the child is born that the deemed benefits begin. And it is those deemed benefits which deny the claim in respect of the normal child. In practice, also, while it may be comparatively straightforward to distinguish between ante and post natal causes of disability, it will be harder to distinguish between ante and post conception causes. Further, the additional risks to mother and child (for example because of the mother's age or number of previous pregnancies) may be among the reasons for the sterilisation. I conclude that any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not novus actus interveniens, will suffice to found a claim.

  93. Finally, I must say something about fathers. Most children still live in two parent households in which the father plays an important part in their lives. Even when they live apart, we attach a great deal of importance to trying to preserve as good and as close a relationship as possible between the child and the parent with whom he is not living. We also expect a financial contribution from that parent. But this is not a debate in which the differences between the sexes can be ignored. The primary invasion of bodily integrity and autonomy is suffered by the mother. If the object of the operation was to prevent that particular mother becoming pregnant, the proximity between her and the defendant is as close as it can be. Even if the object of the operation (and later advice) was to render the father infertile, the proximity between his partner and the defendant is quite close. In both cases the nature of the harm to her is entirely clear and predictable, although it may vary in degree. Of the two types of harm, one can only be suffered by her. The other in my view is properly conceptualised as the obligation to care for and bring up the child. That too is, in the great majority of cases, primarily born by her. However, there are cases where it is shared, more or less equally, or where the primary carer is the father. My tentative view is, however, that if there is a sufficient relationship of proximity between the tortfeasor and the father who not only has but meets his parental responsibility to care for the child, then the father too should have a claim. However, the issue does not arise in this case, and so it is unnecessary to express a concluded view.

  94. On this question, too, the deemed equilibrium which denies damages for bringing up a normal child, is not unhelpful to the analysis. The ordinary parental transaction in respect of ordinary children, in which one parent provides most of the care and the other provides most of the out of pocket expenditure, can be left out of account (this is perhaps fortunate, for the evidence is that in all too many families those varying contributions are nowhere near in equilibrium and the major burden, both caring and financial, is borne by only one parent). The difference between a normal and a disabled child is primarily in the extra care that they need, although this may bring with it extra expenditure. It is right, therefore, that the parent who bears those extra burdens should have a claim.

  95. Longmore J considered that such a claim would not "stick in the gullet". I agree. Whatever the commuter on the Underground might think of the claim for Catherine McFarlane, it might reasonably be thought that he or she would not consider it unfair, unjust or disproportionate that the person who had undertaken to prevent conception, pregnancy and birth and negligently failed to do so were held responsible for the extra costs of caring for and bringing up a disabled child.

  96. For those reasons, as well as those given by Brooke LJ, I would dismiss this appeal.

    Sir Martin Nourse

  97. I agree.


Cases

Emeh v Kensington and Chelsea Area Health Authority [1985] 1 QB 1012; Thake v Maurice [1986] 1 QB 644; McFarlane v Tayside Health Board 44 BMLR 140; Anns v Merton London Borough Council [1978] AC 728; South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191; Frost v Chief Constable of South Yorkshire [1999] 2 AC 455; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Heil v Rankin [2000] 2 WLR 1173; Henderson v Merrett Syndicates [1995] 2 AC 146; White v Jones [1995] 2 AC 207; Rand v East Dorset Health Authority [2000] Lloyd's Med Rep 181; Hardman v Amin [2000] Lloyd's Med Rep 498; Lee v Taunton and Somerset NHS Trust (Oct 2000, unreported); Emerson v Magendatz 689 A 2d 409 (RI 1997); Fassoulas v Ramey 450 So 2d 822 (Fla 1984); The Oropesa [1943] P 32; Collins v Willcock [1984] 3 All ER 374; Perrett v Collins [1999] PNLR 77; Surtees v Kingston upon Thames Royal Borough Council [1991] 2 FLR 559; Hunt v Severs [1994] 2 AC 350; Caparo Industries plc v Dickman [1990] 2 AC 605

Legislations

Adoption Act 1976, s. 16(4)

Human Fertilisation and Embryology Act 1990, s. 27(1)

Children Act 1989, s. 2(1), s. (2)(a), s. 2(9), s. 3(1), s. 17(10)(c), s. 17(11), sch 2 para 2

Children and Young Persons Act 1933, s. 1(1), (2)(a), s. 17(1)(a)

Authors and other references

Clerk & Lindsell on Torts (18th Edn, 2000)

Representations

Jeremy Stuart-Smith QC & Christina Lambert (instructed by Hempsons for the Appellant)
Richard Hone QC & Margaret Bickford-Smith (instructed by Levi & Co for the Respondent)

Notes:-

This decision is also being reported at [2002] QB 266, [2001] 3 All ER 97.


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