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2A.C.

A [HOUSE O F LORDS]

M c F A R L A N E AND A N O T H E R RESPONDENTS

AND

TAYSIDE H E A L T H B O A R D APPELLANTS

B 1999 July 5, 6, 7; Lord Slynn of Hadley, Lord Steyn,


Nov. 25 Lord Hope of Craighead, Lord Clyde
and Lord Millett

Public Policy—Damages—Birth of child—Pregnancy occurring after


father's vasectomy operation—Birth of healthy child after normal
pregnancy—Whether damages recoverable for maintenance of
p child—Whether mother entitled to damages for pain, suffering and
inconvenience of pregnancy and childbirth
In 1989 the pursuers, a married couple with four children,
decided that they did not want any more children and that the
husband should undergo a vasectomy. The operation was
performed in October 1989 by a surgeon employed by the
defenders ("the board"). Thereafter the husband submitted sperm
D samples to the hospital for analysis, and in March 1990 the
surgeon informed the husband that his sperm counts were
negative and that contraceptive measures were no longer
necessary. The parents acted on that advice. In September 1991
the wife became pregnant and, after a normal pregnancy and
labour, gave birth to a healthy child whom the parents loved and
cared for as an integral part of their family. In an action against
the board the parents alleged that they had suffered loss as a
E result of the board's negligence, and claimed damages for the
physical discomfort suffered by the wife from her pregnancy,
confinement and delivery ("the mother's claim") and for the
financial costs of caring for and bringing up the child ("the
parents' claim"). The Outer House of the Court of Session
dismissed the action on the ground that a normal pregnancy and
labour, even if undesired, could not constitute personal injuries
for which damages were recoverable, and that the benefits of
F parenthood transcended any patrimonial loss incurred as a result
of the child's existence so that the parents could not be in an
overall position of loss. The Second Division of the Inner House
of the Court of Session reversed that decision and held that the
wife was entitled, if negligence were established, to damages for
the physical effects of pregnancy and childbirth and that there was
no requirement to set off the intangible benefits of parenthood
against a claim for patrimonial loss, nor was there any overriding
*J consideration of public policy which would be contravened by the
awarding of damages for the extra expenditure incurred in the
care of the child.
On appeal by the board:—
Held, (1) dismissing the appeal in respect of the mother's claim
(Lord Millett dissenting), that since it was foreseeable that if the
operation was unsuccessful and the husband was told that
J, contraceptive measures were unnecessary the wife might become
pregnant she was, if there was negligence, entitled to general
damages for the pain, suffering and inconvenience of pregnancy
and childbirth, and (Lord Clyde dissenting) to special damages for
extra medical expenses, clothing and loss of earnings associated
60
McFarlane v. Tayside Health Board (H.L.(Sc)) 120001
therewith (post, pp. 74A-E, 81F-G, 84B-F, 87B-E, 89A-B, 97F-G, .
A
102F-H, 104G-105B, 106C-D).
(2) Allowing the appeal in respect of the parents' claim, that
(per Lord Slynn of Hadley, Lord Steyn and Lord Hope of
Craighead) a claim for the costs of caring for a healthy, normal
child was a claim for pure economic loss in respect of which it had
to be shown that it was fair, just and reasonable to impose
liability, and, in the circumstances, the claim did not satisfy the
requirement of being fair, just and reasonable; that (per Lord g
Steyn) considerations of distributive justice indicated that the law
did not permit the parents of a healthy but unwanted child to
claim the cost of its upbringing from a health authority or doctor
in the circumstances of the case; that (per Lord Clyde) to relieve
the parents of the financial obligations of caring for their child
went beyond reasonable restitution for the wrong done; that (per
Lord Millett) the law regarded the birth of a healthy, normal baby
as a blessing and not as a detriment, the advantages and Q
disadvantages of parenthood were inextricably bound together
and the benefits should be regarded as outweighing any loss; and
that, accordingly, the parents were not entitled to recover the
costs of caring for and bringing up their child (post, pp. 75F-76D,
79E-F, 82A-F, 83D-E, 84B, E-F, 95B-C, 96H-97A, B-F, 104G-106A,
106C-D, lllE-F, 113H-114C).
Caparo Industries Pic. v. Dickman [1990] 2 A.C. 605,
H.L.(E.) applied. D
Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R.
1098 considered.
Emeh v. Kensington and Chelsea and Westminster Area Health
Authority [1985] Q.B. 1012, C.A.; Thake v. Maurice [1986] Q.B.
644, C.A. and Allen v. Bloomsbury Health Authority [1993] 1 All
E.R. 651 overruled.
Decision of the Inner House of the Court of Session, 1998
S.L.T. 307 reversed in part. E

The following cases are referred to in their Lordships' opinions:


Administrator, Natal v. Edouard 1990 (3) S.A. 581
Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310; [1991]
3 W.L.R. 1057; [1991] 4 All E.R. 907, H.L.(E.)
Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580 p
t
Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651
Anderson v. Forth Valley Health Board, 1998 S.L.T. 588
Anns v. Merton London Borough Council [1978] A.C. 728; [1977] 2 W.L.R.
1024; [1977] 2 All E.R. 492, H.L.(E.)
Banque Bruxelles Lambert S.A. v. Eagle Star Insurance Co. Ltd. [1997] A.C.
191; [1996] 3 W.L.R. 87; [1996] 3 All E.R. 365, H.L.(E.)
Benarr v. Kettering Health Authority (1988) 138 N.L.J. 179
G
C.E.S. v. Superclinics (Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47
Candlewood Navigation Corporation Ltd. v. Mitsui O.S.K. Lines Ltd. [1986]
A.C. 1; [1985] 3 W.L.R. 381; [1985] 3 All E.R. 935, P.C.
Caparo Industries Pic. v. Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358;
[1990] 1 All E.R. 568, H.L.(E.)
Cockrum v. Baumgartner (1983) 447 N.E.2d 385
Crouchman v. Burke (1997) 40 B.M.L.R. 163
Dunlop v. McGowans, 1980 S.L.T. 129, H.L.(Sc) H
Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985]
Q.B. 1012; [1985] 2 W.L.R. 233; [1984] 3 All E.R. 1044, C.A.
Fish v. Wilcox [1994] 5 Med.L.R. 230, C.A.
61
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.))
A Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455; [1998]
3 W.L.R. 1509; [1999] 1 All E.R. 1, H.L.(E.)
Gold v. Haringey Health Authority [1988] Q.B. 481; [1987] 3 W.L.R. 649; [1987]
2 All E.R. 888, C.A.
Goodwill v. British Pregnancy Advisory Service [1996] 1 W.L.R. 1397; [1996]
2 All E.R. 161, C.A.
Hartke v. McKelway (1983) 707 F.2d 1544
R Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; [1963]
3 W.L.R. 101; [1963] 2 All E.R. 575, H.L.(E.)
Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 145; [1994] 3 W.L.R. 761;
[1994] 3 All E.R. 506, H.L.(E.)
Hickman v. Group Health Plan Inc. (1986) 396 N.W.2d 10
Johnson v. University Hospitals of Cleveland (1989) 540 N.E.2d 1370
Jones v. Berkshire Health Authority (unreported), 2 July 1986, Ognall J.
Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708
C
L. v. M. [1979] 2 N.Z.L.R. 519
Livingstone v. Rawyards Coal Co. (1880) 5 App.Cas. 25, H.L.(Sc)
Lovelace Medical Center v. Mendez (1991) 805 P.2d 603
McKay v. Essex Area Health Authority [1982] Q.B. 1166; [1982] 2 W.L.R. 890;
[1982] 2 All E.R. 771, C.A.
McKernan v. Aasheim (1984) 687 P.2d 850
Mirams, In re [1891] 1 Q.B. 594
D
Murphy v. Brentwood District Council [1991] 1 A.C. 398; [1990] 3 W.L.R. 414;
[1990] 2 All E.R. 908, H.L.(E.)
Public Health Trust v. Brown (1980) 388 So.2d 1084
Richardson v. Mellish (1824) 2 Bing. 229
Robinson v. Salford Health Authority [1992] 3 Med.L.R. 270
Salih v. Enfield Health Authority [1991] 3 All E.R. 400, C.A.
Scuriaga v. Powell (1979) 123 S.J. 406
E Sherlock v. Stillwater Clinic (1977) 260 N.W.2d 169
Smith New Court Securities Ltd. v. Scrimgeour Vickers (Asset Management)
Ltd. [1997] A.C. 254; [1996] 3 W.L.R. 1051; [1996] 4 All E.R. 769,
H.L.(E.)
Szekeres v. Robinson (1986) 715 P.2d 1076
Thake v. Maurice [1986] Q.B. 644; [1986] 2 W.L.R. 337; [1986] 1 All E.R. 497,
C.A.
F Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098; [1983] 2 All
E.R. 522
Walkin v. South Manchester Health Authority [1995] 1 W.L.R. 1543; [1995]
4 All E.R. 132, C.A.
Williams v. Natural Life Health Foods Ltd. [1998] 1 W.L.R. 830; [1998] 2 All
E.R. 577, H.L.(E.)
X, Mile. c. Picard Cour de Cass.Civ. Ire 25 June 1991 D.1991.566
G XY v. Accident Compensation Corporation [1984] 4 N.Z.A.R. 219
Z , In re [1982] 3 N.Z.A.R. 161

The following additional cases were cited in argument:


Albazero, The [1977] A.C. 774; [1976] 3 W.L.R. 419; [1976] 3 All E.R. 129,
H.L.(E.)
H Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1996] A.C. 211; [1995]
3 W.L.R. 227; [1995] 3 All E.R. 307, H.L.(E.)
Parry v. Cleaver [1970] A.C. 1; [1969] 2 W.L.R. 821; [1969] 1 All E.R. 555,
H.L.(E.)
62
McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|
Pickett v. British Rail Engineering Ltd. [1980] A.C. 136; [1978] 3 W.L.R. 955; A
[1979] 1 All E.R. 774, H.L.(E.)
Ruxley Electronics and Construction Ltd. v. Forsyth [1996] A.C. 344; [1995]
3 W.L.R. 118; [1995] 3 All E.R. 268, H.L.(E.)

APPEAL from the Second Division of the Inner House of the Court of
Session.
This was an appeal by Tayside Health Board from a decision dated g
9 January 1998 of the Second Division of the Inner House of the Court of
Session (the Lord Justice Clerk, Lord Cullen, Lord McCluskey and Lord
Allanbridge) recalling the interlocutor of the Outer House (the Lord
Ordinary, Lord Gill) on 30 September 1996, dismissing the action of the
parents, George McFarlane and Laura Helen McFarlane, against the
health board for damages in respect of the birth of a child to them as a
consequence of the alleged negligent advice of the board's employee. On C
4 February 1998 the Inner House granted the health board leave to appeal.
The facts are stated in their Lordships' opinions.

Colin Campbell Q. C. and Laura Dunlop for the health board. In regard
to the mother's claim, a normal pregnancy and a normal delivery of a
healthy child are natural processes which do not amount to personal injury n
or give rise to damages. In the present case, these processes are
inextricably bound up with the child, who is not productive of harm. The
law does not insist upon damages for all foreseeable consequences of a
negligent act. Although a normal pregnancy can cause physical pain and
discomfort, that is part of the normal human condition for which damages
are not recoverable, just as damages are not recoverable for debilitating
grief and bereavement, although they are foreseeable. See also Frost E
v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455; Banque
Bruxelles Lambert S.A. v. Eagle Star Insurance Co. Ltd. [1997] A.C. 191
and Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1996]
A.C. 211.
In regard to the parents' claim, the expenditure on the child is not a
recoverable head of damage. The basic principle of damages is p
compensation, and the first task of the court in the present case is to assess
whether the alleged negligence has caused harm to the parents, in the sense
of detriment to an interest protected by law, and to what extent the
parents are worse off because of the inaccurate information. The direct
result of the alleged negligence was the conception and birth of the child.
She represents benefits and burdens, gains and losses. To focus only on
one aspect of her existence, namely, her financial needs until adulthood, is G
to adopt a partial and selective approach.
Damages are awarded as solace or reparation for a misfortune. It is
not appropriate to award the costs of rearing the child because her life is
neither a harmful event nor an occasion of loss. Although her parents'
legitimate expectations were disappointed, the parents are not damaged by
her presence in their family. Her financial costs are not incurred in order \\
to mitigate or repair an injury to her parents. Such payments are not in
the same category as money spent on a broken back or damaged property.
The child is a normal, healthy child and there are no special features which
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2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc))

^ place unusual or undue burdens on her parents. Feeding, clothing and


educating her are not expenses which are recoverable: see Johnson
v. University Hospitals of Cleveland (1989) 540 N.E. 2d 1370 and Kealey
v. Berezowski (1996) 136 D.L.R. (4th) 708. The approach of other
jurisdictions to unplanned pregnancies is also relevant: see Szekeres
v. Robinson (1986) 715 P.2d 1076; Natal Administrator v. Edouard, 1990
(3) S.A. 581; C.E.S. v. Superclinics (Australia) Pty. Ltd. (1995)
B
38 N.S.W.L.R. 47 and XY v. Accident Compensation Corporation [1984]
4N.Z.A.R. 219.
Even if the alleged negligence caused the costs of the child's
maintenance, it also caused the very substantial benefits which she brings
to her parents. Those benefits are neither incidental nor collateral and are
as much a consequence of her existence as the costs of feeding her. The
C general principle is that any benefits directly caused by the wrongful act
mitigate or even exclude damages. There is no rule that only financial or
easily quantifiable benefits should be taken into account. The common law
on offsetting receipts against losses is based on justice, reasonableness and
public policy: see Parry v. Cleaver [1970] A.C. 1. An award of damages
which incorporates the costs but excludes the benefits of the child would
be unfair and unreasonable. It would necessarily result in an inaccurate
measure of the extent, if any, to which the parents are worse off as a result
of the child's existence. It would be an explicit abandonment of the task of
identifying the true loss in a fair and reasonable way. The exercise may
require imprecise intangibles to be taken into account: see Ruxley
Electronics and Construction Ltd. v Forsyth [1996] A.C. 344, 360. The
development of the relationship between parent and child and the child's
E integration into the family, with all that might entail in terms of pain and
pleasure, caused the health board's mistake to recede into the historical
background. If the benefits of the child's existence are taken into account
they outweigh all the factors which the parents claim by way of damages.
Not all expenditure, however reasonable in the context of the family
circumstances as a whole, should be recoverable. Otherwise, the more
P affluent the parents the greater would be the award of damages by
providing, for example, for private education. An award of damages for
loss of earnings would be higher if injury is caused to a well paid person
rather than to a poorly paid or unemployed man, but it would be wrong
to apply the principle to child rearing costs: see Gold v. Haringey Health
Authority [1988] Q.B. 481. More fundamentally, once the child was born
and the parents accepted her into their family, a completely new situation
G was created which had the result that the alleged negligence could no
longer be regarded as the true cause of all that the child brought to her
parents. It is not the board's negligence but rather the child's existence as a
loved and integral part of the family which was the true cause of the
money spent on her. The alleged negligence caused the conception,
pregnancy and birth. Thereafter, although the decision not to place the
H child for adoption was not unreasonable, she could not be regarded as an
unwanted child. The choice to keep and rear her carried not only the.
benefits but also the costs of maintaining her. The total expenditure on the
child would be determined by the choices and resources of her parents.
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McFarlane v. Tayside Health Board (H.L.(Sc)) |2000]

Much of that would involve the redistribution of family finances rather A


than extra expenditure.
Even though the health board sought to assist the parents in their
desire to limit the size of their family, it would not be fair, just and
reasonable, in the absence of special features, to regard the board as liable
for the costs of rearing the child: see Caparo Industries Pic. v. Dickman
[1990] 2 A.C. 605. In any event, a vasectomy is not an economic or
commercial transaction. B
Given that the child will remain a part of the family, irrespective of the
outcome of the appeal, an award of damages based upon her maintenance
is in conflict with the basic purpose of damages, namely, to restore the
parents, so far as money can, to the position in which they would have
been had there been no negligence. The positions with and without the
child must be compared in order to decide whether the parents are worse ,-,
off. If they are, it is then necessary to identify a proper measure of the
detriment in money terms such as will achieve restitutio in integrum. The
approach of the court below allows the parents to accept the child into the
family at no cost, even though she brings substantial benefits to them. An
award of damages calculated solely by reference to the economic costs of
the child does not and cannot achieve restitution. Therefore it is a fallacy
to assume that a foreseeable expense caused by negligence is necessarily a D
recoverable loss. If, however, there is harm caused by the alleged
negligence, that harm is not to be measured by the total expenditure on
the child. Rather the harm might be characterised as the parents'
disappointed expectation that they could enjoy unprotected marital
intercourse without the risk of increasing their family, and should be
measured in that context. The result should be a nil or nominal award or
an award restricted to the conception, pregnancy and directly related
matters.
As a matter of public policy a healthy child should not be the basis of
a wrong for which damages are recoverable. The law should not encourage
parents to prove that their child is a burden to them. Many of the claims
in cases of this nature are for pure economic loss. The availability of
abortion and contraception is not inconsistent with a conclusion that, in F
the absence of special features, a healthy child should not be regarded as
an occasion of harm or loss to the parents.
Anne Smith Q.C. and Stephen Woolman Q.C. for the parents. All the
elements of an action for damages for negligence are present. The health
board owed a duty to take reasonable care in providing advice to the
parents and it was in breach of that duty. It was reasonably foreseeable
that the parents would act on that advice and that, if the advice was
negligent, there could be physical consequences for the mother and
financial consequences for both parents. There are no good reasons in
principle for denying the pursuers their claim.
Family planning, which is publicly funded and available as of right to
those who choose to use it, is an integral part of the modern marital
relationship. The parents chose to use the National Health Service for a H
.vasectomy in order not to have any more children. Respect for family life
includes the parents' right to respect for a decision to limit the size of their
family. Therefore a duty of care arose in those who provided the
65
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc))
^ sterilisation services. The fact that it was a procedure provided as a matter
of choice did not impose a lesser duty than a procedure provided to cure
an illness. The board invaded the parents' legitimate right and interest in
limiting the size of their family and is obliged to put the parents in the
same position, in so far as money can, as they would be in if their right
and interest had been respected: see The Albazero [1977] A.C. 774 and
Pickett v. British Rail Engineering Ltd. [1980] A.C. 136.
B As to the mother's claim, the fact that pregnancy is a natural process
does not mean that it is a pleasant one. It causes physical pain and
discomfort so that it clearly and neatly falls within the category of a
personal injury. The mother's bodily integrity was affected by the board's
negligence, and the mother is entitled to solatium in respect of the
consequences of conception.
^ As to the parents' claim, the birth of a child is not viewed by the law
as conferring an asset upon the parents. Birth confers rights upon the
child. The only rights conferred upon parents are such rights as they
require to enable them to fulfil the responsibilities which they owe to their
children by statute, for example, to care for their children and send them
to school. These parents had no choice in the matter since it is a part of
their culture that parents do not put up their children for adoption,
D particularly when they have other children who should not be deprived of
their sibling. The parents were also morally opposed to abortion.
Therefore it is not reasonable to say that they exercised a choice. Matters
were beyond their control from the moment of conception. They did not
"choose" to "keep" the child. They were placed in a position of
responsibility as a result of the health board's negligence. The only
P relevant exercise of choice was their decision to limit the size of their
family and they were unable to achieve that because of the board's
negligent advice.
Since the child's unplanned birth the parents have, as a direct
consequence, borne the financial obligation of maintaining the child and
that obligation will continue until her adulthood. The economic burden
which they bear stems from the negligent advice they received. They are
F entitled to be compensated for the financial detriment they suffer in terms
of wage loss, medical costs of the birth and rearing costs of the child: see
Lovelace Medical Center v. Mendez (1991) 805 P.2d 603.
The present state of the law in the United Kingdom is that damages
are recoverable for the financial upheaval resulting from an unplanned
pregnancy: see Udale v. Bloomsbury Area Health Authority [1983]
1 W.L.R. 1098; Thake v. Maurice [1986] Q.B. 644; Emeh v. Kensington and
Chelsea and Westminster Area Health Authority [1985] Q.B. 1012; Allen
v. Bloomsbury Health Authority [1993] 1 All E.R. 651; Allan v. Greater
Glasgow Health Board, 1998 S.L.T. 580; Anderson v. Forth Valley Health
Board, 1998 S.L.T. 588; Salih v. Enfield Health Authority [1991] 3 All
E.R. 400; Robinson v. Salford Health Authority [1992] 3 Med.L.R. 270;
McKay v. Essex Area Health Authority [1982] Q.B. 1166 and Walkin v.
H South Manchester Health Authority [1995] 1 W.L.R. 1543. The fact that the
child is normal and healthy is irrelevant and does not disentitle her parents
to damages. The parents claim only the reasonable costs of her upbringing.
The proper measure of damages is the whole cost of rearing the child to
2 A.C. 2000—3
66
McFarlane v. Tayside Health Board (H.L.(Sc)) 12000]

adulthood, objectively assessed and decided on evidence. No question of ^


set-off arises. The fact that a victim of negligence gets some intangible
benefit as a result of the negligence does not, as a matter of principle,
require that the damages must be reduced or eliminated. If the financial
consequences of an unplanned child is to be set off against the benefits
that accrue to the parents the questions arise as to what those benefits are,
how they are to be valued and what age would be the cut-off point. They
are too speculative, imprecise and intangible for the court to value. B
However, if a benefit is to be offset, it should be offset against the time and
trouble the parents put into the child's care and the invasion of the
parent's freedom. The health board focuses on the child whereas the focus
should be on the parents. Underlying the board's approach is the
assumption that all parents will gain from their child's existence. However,
parents have no entitlement in law to benefit from their children. Q
This is not a case of pure economic loss. The financial consequences
flow from physical events. Even if the parents' claim is regarded as pure
economic loss it is not excluded from entitlement to damages. The board
must have foreseen that their negligent advice would give rise to adverse
financial consequences and it must be liable in respect of those
consequences.
The claims should be determined on the basis of legal principles and D
not on public policy. If Parliament believed that damages should not be
awarded in claims of this type it could have legislated on the matter. It has
not so legislated, although such claims have been accepted in English law
for about 14 years. In any event, the weight of policy considerations is in
favour of allowing the parents' claims.

Campbell Q. C. replied

Their Lordships took time for consideration.

25 November. LORD SLYNN OF HADLEY. My Lords, the relevant


facts in this appeal are very few, the legal issue difficult. The facts are that
Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by p
letter of 23 March 1990 he was told that his sperm counts were negative.
In September 1991 (following the resumption of intercourse without
contraceptive measures), Mrs. McFarlane became pregnant and their fifth
child, Catherine, was born on 6 May 1992. They claim that
Mrs. McFarlane suffered pain and distress from the pregnancy and birth
and that they both have incurred and will incur costs in rearing Catherine,
all due to the negligence of the defenders. They put Mrs. McFarlane's ^
claim at £10,000 and their claim as parents at £100,000 for the cost of
maintaining the child. It is right to say at once that despite, their claim the
respondents have loved and cared for Catherine as an integral member of
the family.
The Lord Ordinary, Lord Gill, 1997 S.L.T. 211 dismissed both claims.
He thought that as a matter of principle they were not entitled to H
damages. The Second Division of the Court of Session reference
unanimously allowed a reclaiming motion. They thought that the parties
should be allowed a proof before answer that if they could establish
67
L
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) of Hadi"?

^ negligence they should be given the opportunity to prove the loss, injury
and damage which they aver arises directly from the fact that the wife
became pregnant.
The Lord Ordinary considered the pregnancy could not be equiparated
with a physical injury, but that even if it could it was not an injury for
which damages are recoverable. The existence of the child and the
mother's happiness derived from it could not be ignored and they
B outweighed the pain and discomfort. As to the claim for the rearing of the
child, his view was that the choice was between (a) allowing full recovery
subject to issues of remoteness and (b) allowing no recovery since the
value of the child outweighed the cost of maintenance. Limiting recovery
to specific heads of claim which were not outweighed by the value of
having the child was not acceptable, not least because of the difficulty of
.-, valuing the child's existence. His conclusion, at p. 216, was that to allow
nothing for the benefits the parents received from having a child was
wrong in principle, at any rate where a healthy child is concerned:
" . . . I am of the opinion that this case should be decided on the
principle that the privilege of being a parent is immeasurable in
money terms; that the benefits of parenthood transcend any
n patrimonial loss, if it may be so regarded, that the parents may incur
in consequence of their child's existence; and that therefore the
pursuers in a case such as this cannot be said to be in an overall
position of loss."
Accordingly, as a matter of principle, damages were not recoverable. On
the other hand,
E "if the benefits to the parents do not extinguish both claims, they
should certainly extinguish the claim for the costs of the child's
upbringing. To hold otherwise will be to give the pursuers more than
compensation:" p. 217.
He held that as a matter of principle damages were not recoverable and
that claims could not succeed.
F On appeal, 1998 S.L.T. 307 the Lord Justice Clerk, Lord Cullen, said
that the claim was for the physical and pecuniary consequences brought in
train by the second pursuer's pregnancy and childbirth rather than that the
child was "harm" to the parents. As to the claim for pain and distress
resulting from the pregnancy and childbirth, they did not have to be seen
as "injury" and there was no reason for thinking that the law did not
recognise them as damage. To say that was cancelled out by postnatal
happiness was not acceptable. As to the costs of rearing a child, he did not
accept that these could not result from the defenders' negligence: keeping
the child rather than arranging an abortion or an adoption did not break
the chain of causation. The parents had to spend extra money because of
the defenders' negligence which led to the birth of the child. They were
entitled to decide not to have a child. It was unwarranted to assume that
H the joy of having a child in every case exceeded any monetary claim which
might arise. It could not be said that the pursuers could have suffered no
loss worthy of compensation. He declined to consider whether public
policy prevented the claim from being brought: that was not for the court.
68
tfHadfcT McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|
Lord McCluskey said, at pp. 313, 315-316: ^
" 'Damnum' in the context of our law of reparation means a loss in
the sense of a material prejudice to an interest that the law recognises
as a legal interest. When there is a concurrence of injuria and
damnum the person whose legal right has been invaded with resultant
loss to him has a right to seek to recover money reparation for that
loss from the wrongdoer . . . In my view, it is sufficient to say that a 3
woman who becomes pregnant despite her deliberate choice not to
become pregnant suffers damnum and loss in the form of significant
consequences for her physical condition, being consequences which
she did not desire."
As to whether the joy to be received from the birth of a child cancelled out
pain and financial loss he said, at pp. 316, 317: C
"I know of no principle of Scots law that entitles the wrongdoer to
say to the victims of his wrongdoing that they must look to their
prospective and impalpable gains on the roundabouts to balance what
they actually lose on the swings . . . I conclude that the benefits to the
parents of having a live healthy child cannot be taken into account
under any principle known to Scots law." D
He too rejected "public policy" as the criterion for deciding the issue.
Lord Allanbridge accepted that there was injuria. Once the husband
was told following the vasectomy that his sperm counts were negative and
that he could dispense with contraceptive precautions the damage occurred
when the wife became pregnant. His claim therefore arose before the birth
of the child. He too, thought they should be allowed to prove the loss E
injury and damage resulting from the fact that the wife became pregnant.
The parents' failure to arrange abortion or adoption was not a novus
actus interveniens.
The result of the judgment of the Court of Session is that the pursuers
should be able to seek to prove full recovery.
Although these judgments refer to the law of Scotland (which p
obviously was the applicable law) it is, as I understand it, accepted that the
law of England and that of Scotland should be the same in respect of the
matters which arise on this appeal. It would be strange, even absurd, if
they were not.
The issues raised in this case—or similar issues arising from other
methods of preventing conception and birth have arisen in cases before the
courts of England and Scotland for some 20 years but have not yet been G
considered by your Lordships. The issues have arisen also in the courts of
states of the United States, of the Commonwealth and of other European
states. Counsel have referred the House to many of these cases. There is no
single universally applied test. Judges have not only said (as here) in some
cases all, in some cases nothing can be recovered, they have also said that
the award may be for something in between. It is not necessary to refer to H
all of these cases but it is in my view of value to examine the trend of
decisions in England and Scotland and more briefly to see how the courts
of other countries have dealt with this difficult and often emotive matter.
69
L
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) of Hadie"

A Cases in England and Scotland


In Scuriaga v. Powell (1979) 123 S.J. 406 a claim for breach of a
contract to terminate pregnancy by abortion, Watkins J. held that the sole
reason for the continuation of the pregnancy was the doctor's breach of
contract. He awarded damages for pain and suffering and for actual and
prospective loss of earnings and for diminution of marriage prospects but
R he did not award damages for the maintenance of the child. From the
short report of the judgment it does not, appear whether he was asked to
do so.
In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098
where a woman's sterilisation failed, a healthy child was born and a
second operation performed. Jupp J. accepted that the damages for an
admitted liability in negligence should include, in addition to damages for
C pain and suffering and loss of earnings during pregnancy (which were
conceded), damages for "the disturbance to the family finances" such as
the cost of a layette, and increased accommodation for the family. On
grounds of public policy, however, he rejected a claim for the future cost
of the child's upbringing to age 16. The considerations of public policy
which weighed with him were that it was undesirable that a child should
T-) learn that a court had declared its life to be a mistake, the difficulty of
setting off the joy of having a child against the cost of rearing, and the risk
that doctors might be led to encourage abortion in order to avoid claims
against them for medical negligence.
In Emeh v. Kensington and Chelsea and Westminster Area Health
Authority [1985] Q.B. 1012 a sterilisation operation had failed and a child
was born with congenital abnormalities which required constant medical
E and parental supervision. On a claim in contract the court held that there
was no rule of public policy which precluded recovery of damages for pain
and suffering and for maintaining the child. The court took a multiplier of
eight for a child five years old at the time of the appeal.
In Thake v. Maurice [1986] Q.B. 644 a vasectomy was performed, the
husband was told that'contraception precautions were not necessary but a
p child was born. The claim was brought in contract and in tort. Peter Pain J.
found that there was no reason why public policy prevented the recovery
of expenses arising from the birth of a healthy child. He awarded damages
in respect of the expenses of the birth and the mother's loss of wages but
refused damages for the pain and distress of labour holding that these
were off set by the joy occasioned by the birth. He did, however, award
damages in an agreed sum for the child's upkeep to its seventeenth
G birthday. The Court of Appeal held that damages should be awarded for
pain and suffering, per the majority, in tort rather than contract. The joy
of having the child could be set off against the time, trouble and care in
the upbringing of the child but not against prenatal pain and distress. For
the latter, damages should be awarded.
In Benarr v. Kettering Health Authority (1988) 138 N.L.J. 179
fj Hodgson J. allowed damages in respect of the future private education of
a child following a negligently performed vasectomy since private
education was what the child could expect to have in that particular
family.
70
rfHadleJ"" McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

In Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651 A


Brooke J. considered that the earlier authorities showed that if, as a result
of negligence in the termination of a pregnancy, a child was born the
mother could recover damages for the foreseeable loss and damage which
she suffered in consequence. Those damages included (a) general damages
for pain and discomfort associated with the pregnancy and birth (less the
advantage of not undergoing a termination of the pregnancy); (b) financial g
special damage associated with (a); (c) economic loss being (i) "the
financial loss she suffers because when the unwanted child is born she has
a growing child to feed, clothe, house, educate and care for until the child
becomes an adult," and (ii) loss of earnings because she has to look after
the child. On the other hand, except when a handicapped child is born, the
wear and tear on the mother in bringing up a healthy child is generally off ^
set by the benefits derived from bringing a child to maturity. He
accordingly awarded as general and special damages £96,631 including the
cost of maintaining the child until she was 18, and child-minding costs
between the ages of 11 and 14. This judgment was followed by Langley J.
in Crouchman v. Burke (1997) 40 B.M.L.R. 163 and in Robinson v. Salford
Health Authority [1992] 3 Med.L.R. 270. n

In Salih v. Enfield Health Authority [1991] 3 All E.R. 400 the cost of
maintaining a child born as a result of an incorrect diagnosis was rejected
either because this was not caused by the negligence or because the cost
would have been incurred in any event on the birth of at least one more
child.
In the Scottish case of Allan v. Greater Glasgow Health Board, 1998
E
S.L.T. 580, 584, 585, a judgment of 25 November 1993, Lord Cameron of
Lochbroom rejected contentions that public policy considerations
prevented a claim for pain and distress of pregnancy and birth, and he
awarded damages. He could see no reason why the cost of rearing a child
should not in principle be provided for:

"On the other hand, I can accept that there are matters for which no F
reparation will be given either because they are so intangible as to be
virtually impossible to assess in terms of money, as for instance, time
and trouble in bringing up a healthy child (as noted by Kerr L.J. in
Thake v. Maurice) or so remote and speculative as should be ignored
(as, for instance, the cost of a wedding as in Allen) . . . I therefore
reject the submission that there is any general bar to claiming child G
costs under the ordinary principles of law in Scotland pertaining to
assessment of damages or that public policy operates to exclude
wholly such costs. The question at the end of the day must be whether
what is sought by way of reparation can be regarded as reasonable
having in mind the particular circumstances of the particular case."
T_r

There has thus been in England and Scotland a trend towards allowing
damages both for the pain and distress of an unplanned pregnancy and
birth and also for the cost of rearing the child born.
71
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ^fH^di™

A Cases in the United States of America


The approach of courts has varied widely both in the reasoning and in
the result. At one end of the spectrum is Szekeres v. Robinson (1986) 715
P.2d 1076 where the Supreme Court of Nevada held that there should be
no award of damages. The court ruled, at pp. 1078, 1079, that the birth of
a healthy but unwanted child was an
B "event which, of itself, is not a legally compensable injurious
consequence even if the birth is partially attributable to the negligent
conduct of someone purporting to be able to prevent the eventuality
of childbirth . . . Our decision . . . simply holds that one cannot
recover in tort for such an event because the constituent element of a
negligence tort, namely damages, is not present here."
C The court left open the possibility of a claim in contract.
At the other end of the spectrum is Lovelace Medical Center v. Mendez
(1991) 805 P.2d 603. There the Supreme Court of New Mexico, in a failed
sterilisation case, said, at p. 612, that where the prime motivation for the
sterilisation was to conserve family resources:
"the Mendezes' interest in the financial security of their family was a
legally protected interest which was invaded by Lovelace's negligent
failure properly to perform Maria's sterilisation operation (if proved
at trial), and that this invasion was an injury entitling them to recover
damages in the form of the reasonable expenses to raise Joseph to
majority."
F They also accepted that damages should generally be awarded for pain
and suffering associated with pregnancy and birth. They stressed at p. 613,
that the '"offsetting benefits' principle applies only to reduction of
damages for invasion of the same interest as the one that has been
harmed." Thus emotional benefits could not be set off against financial
detriment arising from the invasion of financial security. The setting-off of
emotional benefits against emotional disadvantages although theoretically
F possible should not be allowed since it would lead to unseemly cases and
such litigation was contrary to public policy.
In between these two ends of the spectrum there are cases where the
costs of maintenance have been rejected. Thus in Johnson v. University
Hospitals of Cleveland (1989) 540 N.E.2d 1370 it was held that parents
could only recover damages for the cost of the pregnancy itself and not the
Q expense of rearing an unwanted child. Having considered four theories—
no recovery, the valuation of benefits to mitigate damages, limited
damages excluding child rearing and full recovery, the court concluded,
at p. 1378, that the limited damages theory was to be adopted partly, as
I read it, because to allow child rearing cost would be to invite
"unduly speculative and ethically questionable assessments of such
H matters as the emotional effect of a birth on siblings as well as
parents, and the emotional as well as the pecuniary costs of raising an
unplanned, and, perhaps, unwanted child in varying family
environments . . . The extent of recoverable damages is limited by
72
^Hadley" McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

Ohio's public policy that the birth of a normal, healthy child cannot ^
be an injury to her parents."
In Public Health Trust v. Brown (1980) 388 So.2d 1048 the Supreme
Court of Florida, in refusing a claim for the cost of rearing a child to a
woman alleging a negligently performed sterilisation operation, followed
what they saw as the majority of courts in refusing such costs. They said,
at pp. 1085-1086: B

"In our view, however, its basic soundness lies in the simple
proposition that a parent cannot be said to have been damaged by the
birth and rearing of a normal, healthy child . . . 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 Q
legally, this may be deemed conclusively presumed by the fact that a
prospective parent does not abort or subsequently place the
'unwanted' child for adoption . . . On a more practical level, the
validity of the principle may be tested simply by asking any parent
the purchase price for that particular youngster. Since this is the rule
of experience, it should be, and we therefore hold that it is, the
appropriate rule of law." D
Although this approach is followed it seems by the majority of state
courts in which limited damages are awarded, excluding rearing costs,
there is another approach. That is to accept the costs of rearing a child but
to set off against those costs the non-financial benefits and joys of the
parents in having a child. Thus in Sherlock v. Stillwater Clinic (1977) 260
N.W.2d 169, 176, where a claim was brought for the birth of a child E
following a negligently performed sterilisation of the mother, the majority
members of the Supreme Court of Minnesota held, in what they described
as "at best a mortal attempt to do justice in an imperfect world" that, after
valuing reasonably foreseeable expenses to be incurred in maintaining and
supporting and educating the child to maturity, in order to prevent unjust
enrichment "the trier of fact will then be required to reduce these costs by p
the value of the child's aid, comfort, and society which will benefit the
parents for the duration of their lives." That approach is obviously in
conflict with what was said in Lovelace's case, 805 P.2d 603.

The Commonwealth
In Administrator, Natal v. Edouard, 1990 (3) S.A. 581 in a claim for *-*
breach of contract where a sterilisation of the wife did not succeed, it was
held, where the sterilisation was performed for socio-economic reasons,
that the father could recover for the cost of maintaining the child but he
could not recover in contract for the pain and suffering of his wife. In L. v.
M. [1979] 2 N.Z.L.R. 519 Cooke J. in the Court of Appeal in New
Zealand expressed the view that the cost of rearing a child did not arise H
directly or indirectly from the faulty procedure adopted. In Kealey v.
Berezowski (1996) 136 D.L.R. (4th) 708 in Canada Lax J. refused damages
for the costs of rearing the child.
73
L
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ofHadi°"

A The difficulty of these issues is highlighted in C.E.S. v. Super clinics


(Australia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47. There a woman claimed
damages for loss of the opportunity to terminate a pregnancy which
doctors failed properly to diagnose. The trial judge dismissed the claim
since any proposed abortion would have been unlawful. On grounds of
public policy Meagher J.A. would have excluded such a claim altogether.
It was inherently so difficult to assess the damages on any acceptable basis
B that the task should not be undertaken. Kirby A.C-J. would have allowed
damages both for the pain and suffering associated with the pregnancy and
birth and for the costs of rearing the child, but he said, at p. 77, he would
have offset the value of the benefits to be derived from the birth and
rearing of the child:
"a setting-off of net benefits is something to be assessed by the fact
C finder in a case against the nett injury incurred. Each case will depend
upon its own facts. Such questions can be safely committed to trial
judges or juries."
In the result in order to achieve a majority order he agreed with
Priestley J.A. that the ordinary expenses of rearing the child should be
excluded. Priestley J.A. considered, at pp. 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
E which was the cause, in my opinion, of the subsequent cost of rearing
a child."

Cases from other European states


In Cases, Materials and Texts on National, Supranational and
International Tort Law (edited by Professor W. van Gerven, Jeremy Lever
F Q.C. and others) (1998) there is an analysis of cases in the French,
German and Dutch courts. I do not set out the detail of these but it seems
clear that in these jurisdictions also different courts have taken different
views on the difficult legal and ethical issues which arose. It seems to me
from this and from a valuable article "Damages for the Birth of a Child"
(1995) 40 J.L.S.S. 298 by Angus Stewart Q.C. that the law is still
developing and that there is no universal and clear approach. I refer in
particular to the cases which are mentioned in Cases, Materials and Texts
in National, Supernational and International Tort Law, pp. 88-90 in the
German courts where the test to be adopted does not appear to have been
finally resolved. On the basis of what is said there the French courts would
appear reluctant to award damages for maintenance arising from an
unwanted birth. The Hoge Raad of the Netherlands in 1997 quashed a
H decision of the Court of Appeal in a case based on breach of contract and
held that compensation could be awarded for the expenses of raising a
child born normal and healthy and that these expenses should not be
reduced by evaluating the joy of having the child: pp. 161-164.
74
IfHadle?" McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

From this review it is clear that there is a wide range of opinions to ^


consider. None is binding on your Lordships and it must be decided which
of these approaches is as a matter of principle to be adopted as a rule of
the law of Scotland and England.
My Lords, I do not find real difficulty in deciding the claim for
damages in respect of thev pregnancy and birth itself. The parents did not
want another child for justifiable, economic and family reasons; they
already had four children. They were entitled lawfully to take steps to B
make sure that that did not happen, one possible such step being a
vasectomy of the husband. It was plainly foreseeable that if the operation
did not succeed, or recanalisation of the vas took place, but the husband
was told that contraceptive measures were not necessary, the wife might
become pregnant. 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. The object of the
vasectomy was to prevent them happening. It seems to me that in
consequence the wife, if there was negligence, is entitled by way of general
damages to be compensated for the pain and discomfort and
inconvenience of the unwanted pregnancy and birth and she is also entitled
to special damages associated with both—extra medical expenses, clothes D
for herself and equipment on the birth of the baby. She does not claim but
in my view, in principle she would have been entitled to prove
compensation for loss of earnings due to the pregnancy and birth. It is not
contended that the birth was due to her decision not to have an abortion
which broke the chain of causation or made the damage too remote or
was a novus actus interveniens. If it were suggested I would reject the p
contention and I see no reason in principle why the wife should not
succeed on this part of the claim.
Whether the parents should be entitled as a matter of principle to
recover for the costs of maintaining the child is a much more difficult
question. Logically, the position may seem to be the same. If she had not
conceived because of the board's negligence there would not have been a
baby and then a child and then a young person to house, to feed and to F
educate. I would reject (had it been suggested, which it was not) that a
failure to arrange adoption (like an abortion) was a new act which broke
the chain of causation or which made the damage necessarily too remote.
There was no legal or moral duty to arrange an abortion or an adoption
of an unplanned child.
The question remains whether as a matter of legal principle the
damages should include, for a child by then loved, loving and fully
integrated into the family the cost of shoes at 14 and a dress at 17 and
everything that can reasonably be described as necessary for the
upbringing of the child until the end of school, university, independence,
maturity?
The discussion in the American cases of the "benefits rule" to which
I have referred persuades me that it should not be adopted here and it is JJ
significant that it has not been adopted in many American states. Of
course judges have to evaluate claims which are difficult to evaluate,
including assessments as to the value of the loss of a life, loss of society or
75
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) ^Hadi™

j^ consortium, loss of a limb or a function. But to do so and to get it even


approximately right if little is known of the baby or its future at the time
the valuation has to be made is very difficult. It may not be impossible to
make a rough assessment of the possible costs of feeding, clothing and
even housing a child during the likely period of the child's life up to the
age of 17 or 18 or 25 or for whatever period a parent is responsible by
statute for the support of a child. But even that can only be rough. To
B reduce the costs by anything resembling a realistic or reliable figure for the
benefit to the parents is well nigh impossible unless it is assumed that the
benefit of a child must always outweigh the cost which, like many judges
in the cases I have referred to, I am not prepared to assume. Of course
there should be joy at the birth of a healthy child, at the baby's smile and
the teenager's enthusiasms but how can these be put in money terms and
P trimmed to allow for sleepless nights and teenage disobedience? If the
valuation is made early how can it be known whether the baby will grow
up strong or weak, clever or stupid, successful or a failure both personally
and careerwise, honest or a crook? It is not impossible to make a stab at
finding a figure for the benefits to reduce the costs of rearing a child but
the difficulties of finding a reliable figure are sufficient to discourage the
acceptance of this approach.
D Accordingly, since I have rejected the Lord Ordinary's approach that
nothing should be awarded at all the choice is between awarding all costs
incurred by the parents consequent upon the conception and birth of the
child on the one hand and awarding damages limited to those I have
already accepted thereby excluding the cost of rearing the child.
As to this I do not accept the argument that no damages should be
v awarded as otherwise children will learn that their birth was not wanted
and that this will have undesirable psychological consequences. An
unplanned conception is hardly a rare event and it does not follow that if
the conception is unwanted the baby when it is born or the baby as it
integrates into the family will not be wanted. Nor do I attach weight to the
argument that if damages claims of this kind are allowed doctors to
protect themselves will encourage late abortions. Such an event is possible
F but the ethical standards of the medical profession (coupled with
insurance) should be a sufficient protection in such cases, which ought to
be rare if proper care is taken.
The real question raised here is more fundamental. It is to be
remembered on this part of the case that your Lordships are concerned
only with liability for economic loss. It is not enough to say that the loss is
foreseeable as I have accepted it is foreseeable. Indeed if foreseeability is
the only test there is no reason why a claim should necessarily stop at the
date when a statutory duty to maintain a child comes to an end. There is a
wider issue to consider. I agree with Mr. Stewart Q.C. (in the article to
which I have referred) that the question is not simply one of the
quantification of damages, it is one of liability, of the extent of the duty of
care which is owed to the husband and wife.
H It is to be remembered that in relation to liability the House has
recognised that in respect of economic loss in order to create liability there
may have to be a closer link between the act and the damage than
foreseeability provides in order to create liability. Thus in Caparo
76
of°Hadie"n McFarlane v. Tayside Health Board (H.L.(Sc)) [2000]

Industries Pic. v. Dickman [1990] 2 A.C. 605 Lord Bridge of Harwich said ^
that there should be a relationship of "neighbourhood" or "proximity"
between the person said to owe the duty and the person to whom it is said
to be owed. That relationship depends on whether it is "fair, just and
reasonable" for the law to impose the duty. As Mr. Stewart Q.C. says the
alternative test is to ask whether the doctor or the board has assumed
responsibility for the economic interest of the claimant "with concomitant
reliance by the claimant." B
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 Q
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.
This conclusion is not the result, as it is in some of the American cases
of the application, of "public policy" to a rule which would otherwise D
produce a different conclusion; it comes from the inherent limitation of the
liability relied on. A line is to be drawn before such losses are recoverable.
I would accordingly dismiss the board's appeal in respect of the claim
for solatium by Mrs. McFarlane and her claim for expenses caused directly
and immediately by the pregnancy and birth, including medical expenses
(if any) and the costs of the layette, but I would allow the Board's appeal p
in respect of the claim for damages for the rearing of the child.

LORD STEYN. My Lords, a surgeon wrongly and negligently advised a


husband and wife that a vasectomy had rendered the husband infertile.
Acting on his advice they ceased to take contraceptive precautions. The
wife became pregnant and gave birth to a healthy child. The question is
what damages, if any, the parents are in principle entitled to recover. F
It may be helpful to state at the outset the nature and shape of the
case before the House. First, a distinction must be made between two
types of claims which can arise from the failure of a sterilisation
procedure, resulting in the birth of a child. There is the action (if
permitted) for "wrongful life" brought by a disadvantaged or disabled
child for damage to himself arising from the fact of his birth. The present
case does not fall within this category. It is what in the literature is called ^
an action for "wrongful birth." It is an action by parents of an unwanted
child for damage resulting to them from the birth of the child. Secondly,
the claim before the House is framed in delict. Counsel cited observations
to the effect that it is immaterial whether such an action is brought in
contract or in delict. The correctness of this assumption may depend on
the nature of the term of the contract alleged to have been breached, H
Usually, since a contract of services is involved, it may be an obligation to
take reasonable care. On the other hand, the term may be expressed more
stringently and may amount to a warranty of an outcome. It is
77
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Steyn

A unnecessary in the present case to consider whether different considerations


may arise in such cases. My views are confined to claims in delict. Thirdly,
the claim is brought under the extended Hedley Byrne principle {Hedley
Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465) as explained in
Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 145 and Williams v.
Natural Life Health Foods Ltd. [1998] 1 W.L.R. 830 that is, it is based on
an assumption of responsibility by the doctor who gave the negligent
B advice. Fourthly, there is a procedural aspect. The case comes before the
House by way of an appeal from a decision of the Second Division of the
Inner House of the Court of Session on the sustainability of the pleaded
case of the parents of the unwanted child. This is an area of the law which
gives rise to many difficult problems which could not be explored in depth
in this case. I am not inclined to go beyond the issues directly arising on
P the present pleadings.

The unwanted child


In 1989 Mr. and Mrs. McFarlane already had four children. They
decided to move to a bigger house. They needed a larger mortgage. In
order to meet the increased financial commitments Mrs. McFarlane
„ returned to work. They further decided not to have any more children
and that Mr. McFarlane would undergo a vasectomy operation. On
16 October 1989 a consultant surgeon performed the operation on
Mr. McFarlane at a hospital for which Tayside Health Board is
responsible. The operation was carried out without complication. One of
the risks of a vasectomy operation is spontaneous recanalisation of the
divided vas. For this reason Mr. and Mrs. McFarlane were advised to
E adopt contraceptive precautions until sperm samples had been analysed. In
January and February 1990 that was done. On 23 March 1990 the
consultant surgeon wrote to Mr. McFarlane saying "your sperm counts
are now negative and you may dispense with contraceptive precautions."
Mr. and Mrs. McFarlane acted on this advice. Nevertheless in September
1991 Mrs. McFarlane became pregnant. On 6 May 1992 Mrs. McFarlane
p gave birth to a healthy daughter, Catherine. Mr. and Mrs. McFarlane love
their daughter and care for her as an integral part of the family.

The legal proceedings in Scotland


The parents sued the Tayside Health Board in delict. The claim is
divided into two parts. First, Mrs. McFarlane claimed a sum of £10,000 in
respect of pain, suffering and distress resulting from the unwanted
pregnancy. Secondly, Mr. and Mrs. McFarlane claimed a sum of £100,000
in respect of the financial cost of bringing up Catherine. The Lord
Ordinary (Lord Gill), 1997 S.L.T. 211 dismissed the action in respect of
both heads of claim. The Lord Ordinary declined to follow a line of
English decisions cited to him. He rejected, at p. 216, the claim for the cost
of bringing up Catherine "on the central point as to the value to be placed
H on the child's existence in any calculation of the parents' overall position."
He observed "that the privilege of being a parent is immeasurable in
monetary terms and that the benefits of parenthood transcend any
patrimonial loss." In regard to the claim for a solatium he held that
78
Lord Steyn McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

pregnancy and childbirth is not a personal injury. The Inner House, 1998 ^
S.L.T. 307 unanimously allowed a reclaiming motion and reversed the
order of the Lord Ordinary, with the result that under the existing order
the action will go to proof under both heads of claim. The court ruled that
the physical and financial consequences of the conception and birth of
Catherine were recoverable heads of damage. The benefits which the
parents derive from Catherine should be left out of account. Relying
strongly on a line of decisions in the English courts, the Inner House held B
in separate judgments that on conventional principles there were no
grounds which negatived the prima facie liability of the health board.

The issues
The statement of facts and issues summarised the questions to be
considered as follows, (i) Are the pursuers entitled to damages? (ii) Is the C
second pursuer entitled to claim solatium? (iii) Are the pursuers entitled to
claim for the financial consequences of pregnancy and the birth of the
child? (iv) Is a claim for the financial consequences of the pregnancy and
birth excluded as being for pure economic loss? (v) Does public policy
exclude the pursuers' claims for damages in whole or in part? (vi) Does the
fact that the pursuers now have, as a result of the alleged negligence, a live „
healthy child, disentitle them to damages in whole or in part? These issues
overlap. Different considerations apply to the two heads of claim and it
will be necessary to consider them separately. It will be convenient first to
consider the claim of the parents for the total cost of bringing up
Catherine and then to consider the smaller claim of Mrs. McFarlane for a
solatium for pain, suffering and distress resulting from her pregnancy. It is
common ground that in regard to the sustainability in law of the two E
heads of claim there are no material differences between the law of
Scotland and the law of England.

The cost of bringing up Catherine


It will be convenient to examine first the line of English cases on which
the Inner House founded its decision that the cost of bringing up F
Catherine is a sustainable claim. In Udale v. Bloomsbury Area Health
Authority [1983] 1 W.L.R. 1098 Jupp J. rejected a claim for the cost of
bringing up an unwanted child. The judge observed, at p. 1109, that the
birth of a child is "a blessing and an occasion for rejoicing." In Thake v.
Maurice [1986] Q.B. 644 Peter Pain J. refused to follow Udale's case and
allowed such a claim. He observed, at p. 666G, that social policy, which
permitted abortion and sterilisation, implied that it was generally
recognised that the birth of a healthy child was not always a blessing. In
Emeh v. Kensington and Chelsea and Westminster Area Health Authority
[1985] 1 Q.B. 1012 the Court of Appeal had to consider divergent
approaches in the cases of Udale and Thake. But the unwanted child in
Emeh's case had been born with congenital disabilities. The defendants'
contention was that the cost of upbringing should be limited to the extra H
costs attributable to the child's disabilities. Full costs were allowed but in a
modest sum of the order of £6,000. Angus Stewart Q.C., in "Damages for
the Birth of a Child" (1995) 40 J.L.S.S. 298, 300 pointed out:
79
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Steyn

^ "The issue [in Emeh] possibly presented as one of deceptive simplicity


given that the claim was by the mother alone: it was held that the
compensable loss extended to any reasonably foreseeable financial loss
directly caused by the unexpected pregnancy. The formulation equates
pregnancy with personal injury giving rise to consequential (as
opposed to pure) economic loss which includes upbringing costs."
B That I regard as a perceptive explanation of the context of the judgment.
In unreserved judgments the Court of Appeal chose to follow the judgment
of Peter Pain J. rather than the judgment of Jupp J. This decision has been
considered binding on lower courts and on the Court of Appeal in regard
to claims by parents for wrongful birth of a healthy child. It is the critical
decision in the line of authority in England. It is unnecessary to discuss the
subsequent English decisions which followed Emeh's case but I list them in
chronological order: see Thake v. Maurice [1986] Q.B. 644; Gold v.
Haringey Health Authority [1988] Q.B. 481; Benarr v. Kettering Health
Authority (1988) 138 N.L.J. 179; Allen v. Bloomsbury Health Authority
[1993] 1 All E.R. 651; Salih v. Enfield Health Authority [1991] 3 All E.R.
400; Robinson v. Salford Health Authority [1992] 3 Med.L.R. 270; Fish v.
Wilcox [1994] 5 Med.L.R. 230; Walkin v. South Manchester Health
D Authority [1995] 1 W.L.R. 1543; Goodwill v. British Pregnancy Advisory
Service [1996] 1 W.L.R. 1397. It is only necessary to mention one specific
matter about those decisions. In Benarr's case the court held that health
authorities were liable to pay for private education of the unwanted child.
It is right to point out that the Court of Appeal decision in Emeh's
case predates the full retreat from Anns v. Merton London Borough Council
P [1978] A.C. 728 which was announced by the decision of the House in
Murphy v. Brentwood District Council [1991] 1 A.C. 398. Since then a
judicial scepticism has prevailed about an overarching principle for the
recovery of new categories of economic loss. Here the father's part of the
claim for the cost of bringing up the unwanted child is undoubtedly a
claim for pure economic loss. Realistically, despite the pregnancy and child
birth, the mother's part of the claim is also for pure economic loss. In any
F event, in respect of the claim for the costs of bringing up the unwanted
child, it would be absurd to distinguish between the claims of the father
and the mother. This feature of the claim is important. The development
of a new ground of liability, or a new head of such liability, for the
recovery of economic loss must be justified by cogent reasons.
Even before Murphy's case there was unease among judges about the
Q decision in Emeh's case. This was memorably articulated in Jones v.
Berkshire Area Health Authority (unreported), 2 July 1986, another
unwanted pregnancy case. Ognall J. said:
"I pause only to observe that, speaking purely personally, it remains a
matter of surprise to me that the law acknowledges an entitlement in
a mother to claim damages for the blessing of a healthy child. Certain
H it is that those who are afflicted with a handicapped child or who long
desperately to have a child at all and are denied that good fortune,
would regard an award for this sort of contingency with a measure of
astonishment. But there it is: that is the law."
80
Lord Steyn McFarlane v. Tayside Health Board (H.L.(Sc)) 12000)

In Gold v, Haringey Health Authority [1988] Q.B. 481, 4 8 4 F Lloyd L.J. A


(with the agreement of the other members of the court) cited this
observation and said that "many would no doubt agree with this
observation."
In the present case your Lordships have had the advantage of
considering this issue in the light of far more analytical and comprehensive
arguments from both counsel than were put before the Court of Appeal in
Emeh's case. Counsel took your Lordships on a valuable tour d'horizon of B
comparative jurisprudence. Claims by parents for the cost of bringing up
an unwanted but healthy child as opposed to more limited claims by
the mother in respect of pain, suffering and distress associated with the
pregnancy have proved controversial in foreign jurisdictions: compare the
valuable comparative article by Angus Stewart Q.C., 40 J.L.S.S. 298, 300.
In the United States the overwhelming majority of state courts do not p
allow recovery of the costs of bringing up a healthy child: see the review in
Johnson v. University Hospitals of Cleveland, 540 N.E.2d 1370; Annotation,
89 A.L.R. 4th 632 (May 1998), passim. In Canada the trend is against
such claims: see Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708, 724-
730, which contains a review. By a majority the New South Wales Court of
Appeal in C.E.S. v. Superclinics (Australia) Pty. Ltd., 38 N.S.W.L.R. 47
held that the plaintiff had, through the negligence of the defendants, lost D
the opportunity to have an abortion which would not necessarily have
been unlawful. The court ordered a retrial on the issue as to whether an
abortion would have been unlawful. Kirby P. considered that damages
could be awarded for the cost of bringing up the child. Priestley J.A. was
prepared to allow a limited recovery for "wrongful birth" but not for
child-rearing expenses. Meagher J.A. agreed with Priestly J.A. on this p
point, though in a dissenting opinion he concluded that public policy was
an absolute bar to the award of damages in "wrongful birth" cases. In
New Zealand there is a no-fault compensation scheme. It is, however,
instructive to note that the Accident and Compensation Authority held
that there was no causal connection between the medical error and the
cost of raising the child: In re Z. [1982] 3 N.Z.A.R. 161 and XY v.
Accident Compensation Corporation [1984] 4 N.Z.A.R. 219. In Germany F
the Constitutional Court has ruled that such a claim is unconstitutional
inasmuch as it is subversive of the dignity of the child. But the
Bundesgerichtshof has rejected this view and permits recovery of the costs
of bringing up the child. The Federal Court observed that compensation
not only has no detrimental effect on this child, but can be beneficial to it:
see B. S. Markesinis, The German Law of Obligations, vol. II: Torts, 3rd
ed. (1997), pp. 155-156. In France the Cour de Cassation has ruled that
"whereas the existence of the child she has conceived cannot in itself
constitute for the mother a loss legally justifying compensation, even
if the birth occurred after an unsuccessful intervention intended to
terminate the pregnancy:" see Mile. X c. Picard (Cour de Cass. Civ.
Ire 25 June 1991 D. 1991, 566).
H
Such claims are not allowed. From this comparative survey I deduce that
claims by parents for full compensation for the financial consequences of
the birth of a healthy child have sometimes been allowed. It may be that
81
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) Lord Steyn

^ the major theme in such cases is that one is simply dealing with an
ordinary tort case in which there are no factors negativing liability in
delict. Considerations of corrective justice as between the negligent surgeon
and the parents were dominant in such decisions. In an overview one
would have to say that more often such claims are not allowed. The
grounds for decision are diverse. Sometimes it is said that there was no
personal injury, a lack of foreseeability of the costs of bringing up the
B child, no causative link between the breach of duty and the birth of a
healthy child, or no loss since the joys of having a healthy child always
outweigh the financial losses. Sometimes the idea that the couple could
have avoided the financial cost of bringing up the unwanted child by
abortion or adoption has influenced decisions. Policy considerations
undoubtedly played a role in decisions denying a remedy for the cost of
^ bringing up an unwanted child. My Lords, the discipline of comparative
law does not aim at a poll of the solutions adopted in different countries.
It has the different and inestimable value of sharpening our focus on the
weight of competing considerations. And it reminds us that the law is part
of the world of competing ideas markedly influenced by cultural
differences. Thus Fleming has demonstrated that it may be of relevance,
depending on the context, to know whether the particular state has an
D effective social security safety net: see Fleming, The American Tort Process
(1988), pp. 26-27.
I will now eliminate the grounds upon which I would not decide
against the parents' claim for compensation for financial loss arising from
the child's birth. Counsel for the health board rightly did not argue that it
is a factor against the claim that the parents should have resorted to
F abortion or adoption. I cannot conceive of any circumstances in which the
autonomous decision of the parents not to resort to even a lawful abortion
could be questioned. For similar reasons the parents' decision not to have
the child adopted was plainly natural and commendable. It is difficult to
envisage any circumstances in which it would be right to challenge such a
decision of the parents. The starting point is the right of parents to make
decisions on family planning and, if those plans fail, their right to care for
F an initially unwanted child. The law does and must respect these decisions
of parents which are so closely tied to their basic freedoms and rights of
personal autonomy.
Counsel for the health authority argued as his primary submission that
the whole claim should fail because the natural processes of conception
and childbirth cannot in law amount to personal injury. This is a view
taken in some jurisdictions. On the other hand, it is inconsistent with
many other decisions, notably where limited recovery of compensation for
pain, suffering and distress is allowed. I would not follow this path. 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.
I would therefore reject the argument of the health authority on this point.
H In the alternative counsel argued that, if money spent on Catherine is
regarded as a detriment to her parents, it is outweighed by the many and
undisputed benefits which they have derived and will derive from
Catherine. While this factor is relevant in an assessment of the justice of
82
Lord Steyn McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

the parents' claim I do not regard such a "set-off' as the correct legal ^
analysis of the position.
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. 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 B
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,
1 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. Like Ognall J. in Jones v. Berkshire
Area Health Authority, 2 July 1986, 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 D
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 in court 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 upon the birth of a healthy child, which p
all of us regard as a valuable and good thing.
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 F
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. Two recent
illustrations of the relevance of the moral dimension in the development of
the law illustrate the point. In Smith New Court Securities Ltd. v.
Scrimgeour Vickers (Asset Management) Ltd. [1997] A.C. 254 the House
differentiated between the measure of damages for fraudulent and H
negligent misrepresentation. Pointing out that tort law and morality are
inextricably interwoven I said (with the agreement of Lord Keith of Kinkel
and Lord Jauncey of Tullichettle) that as between the fraudster and the
83
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Steyn

^ innocent party moral considerations militate in favour of requiring the


fraudster to bear the risk of misfortunes directly caused by the fraud:
p. 280B-C. In Frost v. Chief Constable of South Yorkshire Police [1999]
2 A.C. 455 the police officers claimed compensation for psychiatric loss
they sustained as a result of the Hillsborough disaster. By a majority the
House ruled against the claim. The principal theme of the judgments of the
majority was based on considerations of distributive justice. In separate
B 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 A.C. 310
but granted it to police officers who were on duty. Lord Hoffmann
expressly invoked considerations of distributive justice: [1999] 2 A.C. 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.
D In my view it is legitimate in the present case to take into account
considerations of distributive justice. That does not mean that I would
decide the case on grounds of public policy. On the contrary, I would
avoid those quicksands. Relying on principles of distributive justice I am
persuaded that our tort law does not permit parents of a healthy unwanted
child to claim the costs of bringing up the child from a health authority or
p a doctor. If it were necessary to do so. I would say that the claim does not
satisfy the requirement of being fair, just and reasonable.
This conclusion is reinforced by an argument of coherence. There is no
support in Scotland and England for a claim by a disadvantaged child for
damage to him arising from his birth: see McKay v. Essex Area Health
Authority [1982] Q.B. 1166. Given this position, which also prevails in
Australia, Trindade and Cane, The Law of Torts in Australia, 3rd ed.
F (1999), p. 434, observe:
"it might seem inconsistent to allow a claim by the parents while that
of the child, whether healthy or disabled, is rejected. Surely the
parents' claim is equally repugnant to ideas of the sanctity and value
of human life and rests, like that of the child, on a comparison
between a situation where a human being exists and one where it does
G not."
In my view this reasoning is sound. Coherence and rationality demand
that the claim by the parents should also be rejected.
Two supplementary points remain to be mentioned. First, I have taken
into account that the claim in the present case is based on an assumption
of responsibility by the doctor who gave negligent advice. But in regard to
H the sustainability of a claim for the cost of bringing up the child it ought
not to make any difference whether the claim is based on negligence
simpliciter or on the extended Hedley Byrne principle. After all, the latter
is simply the rationalisation adopted by the common law to provide a
84
Lord Steyn McFarlane v. Tayside Health Board (H.L.(Sc)) |2000]
remedy for the recovery of economic loss for a species of negligently ^
performed services: see Williams v. Natural Life Health Foods Ltd, [1998]
1 W.L.R. 830, 834G. Secondly, counsel for the health board was inclined to
concede that in the case of an unwanted child who was born seriously
disabled the rule may have to be different. There may be force in this
concession but it does not arise in the present appeal and it ought to await
decision where the focus is on such cases.
I would hold that the Inner House erred in ruling that B
Mr. and Mrs. McFarlane are entitled in principle to recover the costs of
bringing up Catherine.

The claim for pain, suffering and distress


The claim for a solatium simply alleges that Mrs. McFarlane became /-.
pregnant and had to undergo a pregnancy and confinement and the pain
and distress of giving birth to the child. It will be recalled that I have
already rejected the argument that Mrs. McFarlane suffered no personal
injury. The considerations of distributive justice which militated against
the claim for the cost of bringing up Catherine do not apply to the claim
for a solatium. The constituent elements of a claim in delict are present.
There is nothing objectionable to allowing such a claim. And such limited D
recovery is supported by a great deal of authority worldwide. I would
uphold it. The pleadings also allege that the wife gave up work during the
later stages of her pregnancy. Counsel for the health authority concedes
that if a claim for limited recovery is allowed such an ancillary claim
would also be sustainable. This consequential relief is within the spirit of
the limited recovery principle and I would endorse it. c
For the reasons I have given I would uphold the decision of the Inner
House on this part of the claim.

The disposal of the appeal


I would allow the appeal on the cost of bringing up Catherine and
dismiss the appeal on the claim for a solatium by Mrs. McFarlane. F
LORD HOPE OF CRAIGHEAD. My Lords, it is now quite common for
couples to choose surgical sterilisation as a means of limiting the size of
their families. The operative procedures are quite simple, especially where
the man is being sterilised. They are also readily available on the National
Health Service. In the year to 31 December 1997, the last year for which
information is available, 8,357 vasectomies and 7,871 female sterilisations ^
were carried out in Scotland. In most cases the operation is successful, but
occasionally there are difficulties. In the case of a vasectomy, spontaneous
recanalisation can occur with the result that the man regains his fertility.
For this reason tests need to be carried out for a period after the operation
to ensure that the procedure has been successful. During this period
samples of sperm are analysed to determine whether active sperm are still H
present in the man's semen. Patients are advised to continue with
contraceptive precautions until the sperm counts have been analysed and
found to be negative.
85
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) o/craiglleSd

^ Patients who undertake these operations are entitled to expect that


they will be performed competently and that reasonable care will also be
taken during the post-operative period when samples of sperm are being
analysed. The ordinary standards of care apply. A surgeon who fails to
fulfil the duties of care to be expected of a professional man of ordinary
skill will be held to have been negligent. The specialists in the laboratory
who receive and analyse the sperm samples and who are responsible for
B recording the results and advising the patients about them will also be held
to have been negligent if they fail to exercise the skill and competence
which is reasonably to be expected of them. But difficult questions of law
arise, should a child be born following the sterilisation procedures, as to
the extent of their liability to the parents of the child in damages.

C The issues in this case


How difficult these questions are is well demonstrated by the decisions
which the judges in the Court of Session have reached in this case. The
pursuers claim that they have suffered loss, injury and damage as a result
of mistaken advice following the first named pursuer's vasectomy. They
aver that they received advice that the sperm counts following analysis of
D the samples of sperm which he provided were negative and that they could
dispense with contraceptive precautions. Just over two years after they had
received that advice the second named pursuer gave birth to the couple's
fifth child. The pregnancy was a normal one. There were no complications,
and the child Catherine is a normal, healthy child. But the pursuers had
planned to have no more children. The purpose of the operation had been
to limit the size of their family. They sought damages from the health
board for the pain, distress and inconvenience which the second named
pursuer suffered as a result of the pregnancy and giving birth. They also
sought damages for financial loss involved in caring for the child after
birth and rearing her during her childhood.
The Lord Ordinary, Lord Gill, 1997 S.L.T. 211, held that the pursuers
were not entitled to any damages. He dismissed the pursuers' action on the
F ground that their averments were irrelevant. The Second Division (the
Lord Justice Clerk, Lord Cullen, and Lord McCluskey and Lord
Allanbridge), 1998 S.L.T. 307, recalled the Lord Ordinary's interlocutor
and allowed the pursuers a proof before answer on both parts of their
claim. The question which is before your Lordships in this appeal is, as my
noble and learned friend, Lord Steyn, has observed, one of principle. It is
whether and, if so, to what extent the pursuers are entitled in these
^ circumstances to damages.
The decisions of the Lord Ordinary and of their Lordships of the
Second Division were at the opposite ends of the spectrum on this issue.
The Lord Ordinary said that the case should be decided on the principle
that the privilege of being a parent is immeasurable in monetary terms,
and transcended any patrimonial loss that might be incurred in
H consequence of the child's existence. He held that the pursuers in such a
case as this could not be said to be in a position of overall loss. The
Second Division, on the other hand, took what may be described as the
traditional view of delictual liability: where damnum has resulted from
86
of°Cra"gTad McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

injuria, the law recognises a legal interest which must be made good by an ^
award of damages. Applying this principle, and on the ground that there
was no overriding objection on the ground of public policy, the claims for
the physical effects of the pregnancy and childbirth and for the child
rearing costs were both held to be admissible. This all or nothing approach
is reflected in the pleadings and, for the most part, it was also reflected in
the positions which each side adopted in the course of the argument. But
there is a substantial body of jurisprudence in other jurisdictions which B
favours the middle view that the costs of child rearing are not recoverable
but that damages may be given for loss, injury and damage which is
attributable to the pregnancy and giving birth to the child.
The pursuers' pleadings suggest that the second named pursuer's claim
which relates to the pregnancy and the childbirth is restricted to the
discomfort and inconvenience of the pregnancy and the pain and distress Q
which she suffered during the delivery. It is not said that she sustained any
loss of earnings during this period. The claim as presented appears to be a
straightforward claim by her for solatium. It is analogous to that which
may be made by a pursuer in a case of personal injury. In her case the
claim is for the physical consequences to her of the implantation of semen
within her fertile body by her husband whom both parties believed to be
sterile. The other claim, which both pursuers make, is for the financial D
consequences of caring for, feeding and clothing and maintaining the child
which they attribute to the erroneous and negligent advice which they
received from the hospital.
I propose to consider first the second named pursuer's claim for the
loss, injury and damage which she suffered during the period of the
pregnancy and during or attributable to the process of delivery. I shall g
describe this as "the mother's claim." I shall then turn to the claim for
child rearing costs, which relates to the period after the delivery. This
seems to me to raise difficult questions of principle which are best
considered separately.

The mother's claim P


The mother's claim can be described in simple terms as one for the
loss, injury and damage which she has suffered as a result of a harmful
event which was caused by the defenders' negligence. 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 child's conception. It may seem odd to describe the conception as ^
harmful. But it was the very thing which she had been told would not
happen to her after the sperm tests had been carried out following her
husband's vasectomy, and it was attributable directly to the defenders'
negligence.
The physical consequences to the woman of pregnancy and of
childbirth are, of course natural processes. In normal circumstances they H
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
87
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) o/oaig'tad
A grounds must be rejected, as this is an area of family life in which freedom
of choice may properly be exercised. The processes of sterilisation are
readily available in our hospitals to those who wish to make use of them.
It seems to me that there is no reason in principle why the law should not
give damages where the conception was due to the surgeon's negligence or
to negligence on the part of those responsible for the tests in the
laboratory.
B The Lord Ordinary rejected this claim on what he described as the
central point as to the value to be placed on the child's existence in any
calculation of loss in respect of the pregnancy. The defenders' position, as
explained in their written case, was that as pregnancy and childbirth are
natural processes they cannot amount to personal injury sounding in
damages. As Mr. Colin Campbell put it in the course of his argument, the
(-, reason why damages for these consequences of the negligence are not
recoverable is that pregnancy and the birth which results from it are a
normal part of life. I would reject both of these arguments. The relief and
joy which follow a successful delivery and all the pleasure which a child
gives to the mother in so many ways during the process of upbringing are,
of course, incalculable. But I know of no principle which requires that
such consequences must be taken into account in the assessment of
D damages where a person has previously endured pain and suffering. The
fact is that pregnancy and childbirth involve changes to the body which
may cause, in varying degrees, discomfort, inconvenience, distress and
pain. Solatium is due for the pain and suffering which was experienced
during that period. And the fact that these consequences flow naturally
from the negligently-caused conception which has preceded them does not
p remove them from the proper scope of an award of damages. Many
examples can be given in the field of personal injury where the natural
consequences of an initial injury, such as the development of arthritic
changes at the site of the injury or of post-traumatic epilepsy, are taken
into account in the assessment of damages.
The authorities are, with only a few exceptions, all one way on this
point. In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098,
F where a healthy child was born following a sterilisation operation, it was
conceded that the mother was entitled to damages for (1) the original
operation which had turned out to be useless; (2) the shock and anxiety of
an unwanted pregnancy; (3) the anger at the thwarting of the decision
which she and her husband had taken not to have more children; (4) the
ordinary symptoms of pregnancy during the early stages, which she
thought were due to illness or disease, and the taking of unnecessary drugs
to overcome them; (5) her fear, after the pregnancy was diagnosed, that
the drugs may have harmed or deformed the child; (6) the operation
for resterilisation after the birth; and (7) her loss of earnings for about
11 months made necessary by the pregnancy and birth: see Jupp J.
at p. 1104D-F. In Thake v. Maurice [1986] Q.B. 644, 633 Kerr L.J. rejected
the argument that the mother's claim for antenatal suffering should be
H extinguished by the happiness of the postnatal events. The Court of
Appeal upheld her claim for the discomfort and pain of pregnancy and
delivery when these had occurred normally and without adverse incidents.
In Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651, where the
88
of°Cra"^ad McFarlane v. Tayside Health Board (H.L.(Sc)) [2000J

hospital negligently failed to diagnose that the mother was pregnant at the ^
time of her operation for sterilisation and she would have terminated the
pregnancy if it had been diagnosed at that time, Brooke J. held, at p. 657c,
that the mother was entitled to recover general damages for the discomfort
and pain associated with the continuation of her pregnancy and the
delivery of her child, after setting off the benefit of avoiding the
termination of the pregnancy.
In Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 584F, Lord B
Cameron of Lochbroom rejected the submission that there were public
policy considerations repugnant to an award of damages for the pain,
distress and suffering associated with a normal pregnancy and the physical
act of giving birth and for further incidental damages associated with the
pregnancy and birth. Of the various Commonwealth and United States
cases which I shall examine in the next chapter, mention need only be ^
made here of Kealey v. Berezowski, 136 D.L.R. (4th) 708, 742 where Lax J.,
sitting in the Ontario Court (General Division), said that, having become
pregnant as a result of a failed sterilisation, the mother was entitled to the
damages which flowed from the pregnancy, labour and delivery as well as
the necessity to undergo a second sterilisation process. It appears from his
observations, at p. 743, that he would also have awarded her damages for
sick days taken off work during pregnancy, for lost overtime and for other D
elements of loss of income attributable to this period had there been
adequate proof of these items.
The only exceptions to this line of authority are to be found in
Nevada, which alone among the various States which have considered this
matter in the United States of America has adopted the position that there
should be no recovery: Szekeres v. Robinson, 715 P.2d 1076, Nevada, and p
in South Africa where, the claim having been made in contract and not
delict, the rule that only patrimonial loss can be recovered in contract was
applied and the mother's claim for discomfort, pain and suffering and loss
of amenities of life in consequence of the pregnancy was disallowed:
Administrator, Natal v. Edouard, 1990 (3) S.A. 581.
In Szekeres v. Robinson, Springer J. said as to the case of the healthy
although unwanted child, 715 P.2d 1076, 1078: F
"Many courts have taken for granted that normal birth is an
injurious and damaging consequence and have disagreed only on the
'how-much' part of such claims. We do not take the wrongness nor
the injuriousness of the birth event for granted and say, to the
contrary, that normal birth is not a wrong, it is a 'right.' It is an event
which, of itself, is not a legally compensable injurious consequence G
even if the birth is partially attributable to the negligent conduct of
someone purporting to be able to prevent the eventuality of
childbirth."
On this basis the Nevada court held that the constituent elements of a tort
were not present and that tort actions for the birth of a normal child
should be disallowed. But the reasoning in the South African court on this H
point of principle was quite different. In Administrator, Natal v. Edouard,
1990 (3) S.A. 581, 590-591 Van Heerden J.A. said that he failed to see why
only the birth of an abnormal child should be regarded as a wrong
89
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ofcSJtaH
^ recognised by law, and that he did not find attractive the proposition that
the birth of a normal child is a blessing which cannot constitute a wrong.
The Nevada decision is out of line with all the other American cases, and
the South African decision depends on a strict application of the rule as to
the damages recoverable in contract which has no part in our law relating
to delictual liability for negligence.
I would therefore affirm the decision of the Second Division on this
B point. I should however like to emphasise that I do not think that it would
be right to regard the mother's claims for solatium and for any financial
loss attributable to the pregnancy as terminating at the precise moment of
the child's birth. The pleadings do not suggest that a claim is being made
in this case for any discomfort, pain or distress after the delivery or for
any loss of income during the period when the second named pursuer was
Q recovering from it. But it is not difficult to imagine that there may be cases
where the mother experiences physical or emotional problems after the
birth or sustains loss of income during that period which is attributable to
the effects upon her of the pregnancy. I would prefer to limit the scope for
the recovery of damages under this head by applying the normal rules as
to the remoteness of damage rather than subjecting the claim to a strict
and, as I see it, unreasonable and unrealistic timetable.
D
The child-rearing costs
This is a claim for economic loss. The first-named pursuer does not
claim that he suffered any physical or mental injury. The loss which falls to
be considered under this head is the cost of rearing a normal, healthy
child. Mrs. Anne Smith presented her claim as amounting to the cost of
fulfilling the obligation of aliment which the pursuers owe to the child
under section l(l)(c) of the Family Law (Scotland) Act 1985 and their
parental responsibilities under section 1 of the Children (Scotland) Act
1995. She said that the claim was quite a modest one. It seems to me that
the potential for claims of this kind is very large, bearing in mind that the
child's dependency under the Act of 1985 will continue until the age of 25
F if she is undergoing instruction at an educational establishment or training
for employment or for a trade, profession or vocation: see section 1(5) of
that Act. But quite apart from the size of the claim, there are important
matters of principle to be considered as to its admissibility.
Mr. Campbell said that the proposition which lay at the heart of the
defenders' argument that damages for the cost of rearing the child were
not recoverable was that the defenders' negligence had not caused harm to
^ the pursuers. He submitted that it did not follow from the fact that the
pursuers did not want to incur this expense that it was recoverable. He
said that the child, was not herself a harmful event, that she was not
productive of harm. She had been accepted willingly and lovingly into the
family. She was an unplanned but no longer an unwanted child.
The exercise of placing a value on the child in order to offset the
H benefits which she brought against the costs of her upbringing was
invidious. So a line could properly be drawn at birth as to the damages
which were recoverable. For the pursuers Mrs. Smith said that their claim
was not inconsistent with respect for the child's life and their acceptance of
90
of°Cra"gTad McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|

her into their family. She pointed out that for them there was no choice ^
but to accept her once they and their other children had become aware of
the pregnancy. There was no question of them seeking an abortion, and it
would have been unthinkable for them to have put her out for adoption
once she had been born. The correct focus should be on the position in
which they had been placed financially as a result of the conception which
occurred due to the defenders' negligence.
Differing views as to the result of the weight to be attached to these B
arguments are to be found in the authorities. There has been, after an
initial decision to the contrary, a consistent line of authority, both in
England and in Scotland, to the effect that the costs of child rearing are
recoverable. Some support for that view is to be found in the
Commonwealth and American cases, but there is substantial support for
limiting damages to the mother's claim and excluding all claims relating to c
the cost of the child's upbringing.
The starting point for a review of the English and Scottish cases is
Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098. In that
case Jupp J. held that, while the plaintiff could recover damages for her
pain and suffering and for disruption to the family finances and the cost of
the layette caused by the unexpected pregnancy, the costs arising from the
coming into the world of a healthy, normal child were not recoverable. He
reached this view on an examination of various considerations of public
policy. But in Emeh v. Kensington and Chelsea and Westminster Area
Health Authority [1985] Q.B. 1012 the Court of Appeal held that it was
not contrary to public policy for the plaintiffs to recover damages for the
birth of a child. This decision was applied by the Court of Appeal in
Thake v. Maurice [1986] Q.B. 644. In Benarr v. Kettering Health Authority, E
138 N.L.J. 179 it was held that the health authority was liable to pay for
the cost of educating the child privately, in addition to other costs. In
Allan v. Greater Glasgow Health Board, 1998 S.L.T 580 (the opinion was
issued on 25 November 1993) Lord Cameron of Lochbroom, following
Thake v. Maurice, held that there was no general bar to the recovery of
child rearing costs in Scots law or on grounds of public policy. In p
Anderson v. Forth Valley Health Board, 1998 S.L.T. 588 Lord Nimmo
Smith disagreed with the Lord Ordinary's decision in the present case. He
followed Emeh's case [1985] Q.B. 1012 and Lord Cameron of
Lochbroom's decision in Allan v. Greater Glasgow Health Board, 1998
S.L.T. 580.
While most judges other than the Lord Ordinary in the present case
have been content to follow Emeh's case it is worth noting that in Jones v. G
Berkshire Area Health Authority, 2 July 1986, Ognall J. expressed surprise
that the law acknowledged an entitlement to damages for a healthy child,
and that in Gold v. Haringey Health Authority [1988] Q.B. 481, 4 8 4 G
Lloyd L.J. agreed with this observation. In Allen v. Bloomsbury Health
Authority [1993] 1 All E.R. 651, 662D-F Brooke J. also expressed some
misgivings about this line of authority. He pointed out that contemporary n
commentators had pointed out that the decision in Emeh's case had
cleared the way for potentially heavy future awards of damages for the
cost of maintaining children in this class of case. He went on:
91
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) of'c'aig'heSd

^ "If an unplanned child is born after a failure by a hospital doctor


to exercise the standard of care reasonably to be expected of him and
the child's parents have sent all their other children to expensive
private boarding schools for the whole of their education then it
appears to me that as the law now stands a very substantial claim for
the cost of private education of a healthy child of a reasonably
wealthy family might have to be met from the funds of the health
B authority responsible for the doctor's negligence. However, if this is
regarded as inappropriate on policy grounds it is, as Waller L.J.
pointed out in Emeh's case, for Parliament, not the courts to
determine policy questions: judges at first instance, at any rate, can do
no more than try to identify and apply principles approved by the
higher courts unless and until Parliament intervenes."
/-<
It seems to me that, despite Mrs. Smith's assurance that the claim in
the present case is a modest one, it is necessary to face up to the problem
which Brooke J. identified in Allen v. Bloomsbury Health Authority. To the
example which he gave of the reasonably wealthy family one might add
other examples of cases where the costs of private education might be
regarded as recoverable, such as that of the expatriate banker or
D businessman whose work required him to reside with his wife in countries
where suitable facilities for education were not available or to adopt an
itinerant lifestyle. It is not difficult to see that in such cases a very
substantial award of damages might have to be made for the child's
upbringing. Awards on that scale would be bound to raise questions as to
whether it was right for the negligent performance of a voluntary and
P comparatively minor operation, undertaken for the perfectly proper and
understandable purpose of enabling couples to dispense with contraceptive
measures and to have unprotected intercourse without having children, to
expose the doctors, and on their behalf the relevant health authority, to a
liability on that scale in damages. It might well be thought that the extent
of the liability was disproportionate to the duties which were undertaken
and consequently, to the extent of the negligence.
F Although no clear pattern emerges from a study of the Commonwealth
and American cases, there are some indications that the limited damages
rule favoured by some states in the U.S. is preferable to the position which
has been adopted in the English and Scottish cases—other than in Udale's
case and by the Lord Ordinary.
In Emeh v. Kensington and Chelsea and Westminster Area Health
G Authority [1985] Q.B. 1012, 1028 Purchas L.J. quoted with approval the
following passage from Sherlock v. Stillwater Clinic, 260 N.W.2d 169, a
decision of the Supreme Court of Minnesota, at pp. 170-171:
"We hold that in cases such as this an action for 'wrongful
conception' may be maintained, and that compensatory damages may
be recovered by the parents of the unplanned child. These damages
H may include all prenatal and postnatal medical expenses, the mother's
pain and suffering during pregnancy and delivery, and loss of
consortium. Additionally, the parents may recover the reasonable
costs of rearing the unplanned child subject to offsetting the value of
92
of°Cr"g°hPead McFarlane v. Tayside Health Board (H.L.(Sc)) |2000]

the child's aid, comfort, and society during the parents' life ^
expectancy."
Purchas L J . said that this was the approach which Watkins J. had
adopted in Scuriaga v. Powell, 123 S.J. 406 when he awarded damages to
the plaintiff who gave birth to a healthy child after a legal abortion had
failed to terminate her pregnancy.
There are three reasons for doubting, with great respect, Purchas L J ' s g
reliance on these cases in reaching the view which he did in Emeh's case. In
the first place, Watkins J. did not make any award in Scuriaga v. Powell
for the costs of child rearing. The awards which he made were for the
physical and mental suffering caused by the continuation of the pregnancy
and for the plaintiffs loss of earnings including future loss. In the second
place, the decision in Sherlock's case was to apply what has been described
as the "benefits rule" that is to say, to offset the value of the non- C
patrimonial benefits which the child gives against the costs of its
upbringing. The approach which the English courts have adopted is a
different one, namely to, award damages for the costs of child-rearing but
not to offset against those costs the value of the non-patrimonial benefits.
But the third and more significant point is that, as Angus Stewart Q.C.
has observed in his valuable article, "Damages for the Birth of a Child," ^
40 J.L.S.S. 298, the passage which Purchas L.J. quoted from Sherlock v.
Stillwater Clinic has been received into U.K. jurisprudence almost by
accident. It does not really deserve the status which has been accorded to
it in the English and Scottish authorities. It was quoted again by Kerr L.J.
in Thake v. Maurice [1986] Q.B. 644 and by Lord Cameron of Lochbroom
in Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 584B-E. But
two of the members of the court (Sheran C.J. and Peterson J.) dissented in E
that case, pointing to earlier authority in the same state to the effect that it
would be, in Sheran C.J.'s words, "preposterous for the father of an un-
planned child to be awarded damages in a case such as this for the cost of
nurture and education of the child during its minority." In a later case in
the same state, Hickman v. Group Health Plan Inc. (1986) 396 N.W.2d 10,
17 Minnesota, it was said, that the majority in Sherlock's case had allowed
the cause of action "somewhat hesitantly." Moreover the decision is out of
line with the majority view among the jurisdictions in the U.S. The
majority of states favour what has been described as the "limited damages
rule," which excludes child rearing costs.
The basis for the limited damages rule was described by the Supreme
Court of Florida in Public Health Trust v. Brown, 388 So.2d 1084, 1085-
1086 in a passage which was quoted with approval by Ward J. in the G
Supreme Court of Illinois in Cockrum v. Baumgarther (1983) 447 N.E.2d
385, 388:
"In our view . . . its basic soundness lies in the simple proposition
that a parent cannot be said to have been damaged by the birth and
rearing of a normal, healthy child. Even the courts in the minority
recognize, as the jury was instructed in this case, that the costs of H
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
93
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) ofoSJteS

^ invaluable 'benefits' of parenthood far outweigh any of the mere


monetary burdens involved. Speaking legally, this may be deemed
conclusively presumed by the fact that a prospective parent does not
abort or subsequently place the 'unwanted' child for adoption. On a
more practical level, the validity of the principle may be tested simply
by asking any parent the purchase price for that particular youngster.
Since this is the rule of experience, it should be, and we therefore hold
B that it is, the appropriate rule of law."
In Johnson v. University Hospitals of Cleveland, 540 N.E.2d 1370,
Ohio, the Supreme Court of Ohio observed, at p. 1375, that the vast
majority of jurisdictions which have decided the issue have adhered to the
limited damages rule which denies all child rearing expenses. After
reviewing the various theories of recovery, the court found that the limited
C damages theory was the most persuasive rule, at p. 1378:
"In Ohio, a tort recovery may not be had for damages which are
speculative . . . Allowing a jury to award child-rearing costs would be
to invite unduly speculative and ethically questionable assessments of
such matters as the emotional effect of a birth on siblings as well as
parents, and the emotional as well as the pecuniary costs of raising an
D unplanned and, perhaps, unwanted child in varying family
environments."
The court added that they were aware of the possible hardships which
might result from that, decision and that they were not blind to the
economic realities that accompany the rearing of a child. But the
legislature was the proper forum in which the competing social
E philosophies should be considered in establishing the law."
A similar view has been taken in the State of Washington. In
McKeman v. Aasheim (1984) 687 P.2d 850, 855 it was held that the costs of
rearing an unplanned child were not recoverable, on the ground that it was
impossible to establish with reasonable certainty whether the birth of a
particular healthy, normal child damaged its parents:
F "Perhaps the costs of rearing and educating the child could be
determined through use of actuarial tables or similar economic
information. But whether these costs are outweighed by the emotional
benefits which will be conferred by that child cannot be calculated.
The child may turn out to be loving, obedient and attentive, or
hostile, unruly and callous. The child may grow up to be President of
Q the United States, or to be an infamous criminal. In short, it is
impossible to tell, at an early stage in the child's life, whether its
parents have sustained a net loss or net gain."
In Australia the Court of Appeal of New South Wales held in C. E. S. v.
Superclinics (Australia) Pty. Ltd., 38 N.S.W.L.R. 47 that the damages
recoverable where negligent advice resulted in the loss of the opportunity
H to terminate a pregnancy did not include the expenses of rearing a child
born of the pregnancy, on the ground that the mother's choice to keep her
child was the cause of the subsequent rearing costs. In South Africa it was
held in Administrator, Natal v. Edouard, 1990 (3) S.A. 581, in an action for
94
Jf&iSEid McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

breach of contract that, where a sterilisation had been performed for ^


socio-economic reasons, the costs of rearing the child were recoverable.
But in Canada the limited damages rule has been adopted in Ontario:
Kealey v. Berezowski, 136 D.L.R (4th) 708. In an impressive judgment,
Lax J. explained her reasons, at pp. 739-741, in a passage which is worth
quoting in full as it demonstrates the influence on her thinking of Lord
Oliver of Aylmerton's speech in Caparo Industries Pic. v. Dickman [1990]
2 A.C. 605 which, as I shall explain later, I, too, would regard as a vital °
signpost as to the direction which should be taken in the search for a
satisfactory solution to this very difficult problem:
"If public policy must be invoked, these statutory provisions [to the
effect that every parent has an obligation to provide support to a
child, in accordance with need, during the period of dependency] ^
suggest to me that, as a matter of public policy, the financial
responsibilities associated with the care and upbringing of a child are
the responsibilities of parents. In a wrongful pregnancy case, the
question then becomes, to what extent, if at all, the defendant's
negligence impairs the plaintiffs ability to meet those responsibilities
to the unplanned child or compromises the relationship of mutual
support and dependency between parent and child. It is for this D
reason . . . that in wrongful pregnancy cases, it is the court's function
to find the interest which a successful sterilisation would have
protected in order to determine whether the consequences of the failed
sterilisation constitute a genuine injury or a 'blessed event.' The
reasons for the sterilisation are relevant to this determination. This
approach makes sense if one considers that the general principle of £
compensatory damages is restitutio in integrum . . . It also makes
sense if one accepts that the underlying rationale for the award of
child-rearing costs in many of the 'total recovery' cases is to ensure
that the plaintiffs can meet their financial responsibilities to the
child . . . Finally, it makes sense if the injury is looked at through the
lens of the Caparo 'limited purposes' rule for it has this in common
with it. In both, foreseeability is a necessary, but an insufficient
determinant . . . What it comes down to is this. There is a cause of
action against a physician for negligently performing a sterilisation
which results in an unplanned pregnancy. If a child is born as a result
of that pregnancy, this does not, in itself, constitute a harm which
inevitably leads to damages for child-rearing costs: '[T]he duty of care
is inseparable from the damage which the plaintiff claims to have G
suffered from the breach. It is not a duty to take care in the abstract
but a duty to avoid causing in the particular plaintiff damage of the
particular kind which he has in fact sustained.'"—per Lord Oliver in
Caparo's case [1990] 2 A.C. 605, 651—"The particular damage
sustained in this case is an unplanned and undesired pregnancy. There
is no damage caused by the defendant's negligence which prevents n
Ashley's parents from fulfilling their responsibilities to her or
compromises in any way the relationship of mutual support and
dependancy which, as a matter of law, arose on her birth.
95
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) of cTaigS
A Accordingly, the child-rearing costs in this case are not a compensable
loss."
In the light of the very different solutions which have been adopted in
these various jurisdictions it is, I think, possible to draw these conclusions.
The question for the court is ultimately one of law, not of social policy. If
the law is unsatisfactory, the remedy lies in the hands of the legislature. It
D can be changed by the Scottish Parliament. As to the law, it has not been
suggested that the costs of rearing the child are too remote, in the sense
that they were not a reasonably foreseeable consequence of the defender's
negligence. For my part, I would regard these costs as reasonably
foreseeable by the wrongdoer. But in the field of economic loss
foreseeability is not the only criterion that must be satisfied. There must be
a relationship of proximity between the negligence and the loss which is
C said to have been caused by it and the attachment of liability for the harm
must be fair, just and reasonable. The mere fact that it was reasonably
foreseeable that the pursuers would have to pay for the costs of rearing
their child does not mean that they have incurred a loss of the kind which
is recoverable.
In Candlewood Navigation Corporation Ltd. v. Mitsui O.S.K. Lines Ltd.
n [1986] A.C. 1, 25 Lord Fraser of Tullybelton, delivering the judgment of
the Board, said:
"Their Lordships consider that some limit or control mechanism
has to be imposed upon the liability of a wrongdoer towards those
who have suffered economic damage in consequence of his
negligence."
E This theme was developed and applied in Caparo Industries Pic. v.
Dickman [1990] 2 A.C. 605. In that case Lord Bridge of Harwich, after
referring to a series of cases since Anns v. Merton London Borough Council
[1978] A.C. 728, said [1990] 2 A.C. 605, 617-618:
"What emerges is that, in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a duty of care are
F that there should exist between the party owing the duty and the
party to whom it is owed a relationship characterised by the law as
one of 'proximity' or 'neighbourhood' and that the situation should
be one in which the court considers it fair, just and reasonable that
the law should impose a duty of a given scope upon the one party for
the benefit of the other."
G Lord Oliver of Aylmerton made the same point in his speech at p. 632D,
and he went on to say, at p. 633:
"the postulate of a simple duty to avoid any harm that is, with
hindsight, reasonably capable of being foreseen becomes untenable
without the imposition of some intelligible limits to keep the law of
negligence within the bounds of common sense and practicability.
H Those limits have been found by the requirement of what has been
called a 'relationship of proximity' between plaintiff and defendant
and by the imposition of a further requirement that the attachment of
liability for harm which has occurred be 'just and reasonable.'"
96
if'cra'igTad McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

He offered this further guidance, at p. 651: ^


"'proximity' in cases such as this is an expression used not necessarily
as indicating literally 'closeness' in a physical or metaphorical sense
but merely as a convenient label to describe circumstances from which
the law will attribute a duty of care. It has to be borne in mind that
the duty of care is inseparable from the damage which the plaintiff
claims to have suffered from its breach. It is not a duty to take care in g
the abstract but a duty to avoid causing to the particular plaintiff
damage of the particular kind which he has in fact sustained."
These observations were taken a step further in Murphy v. Brentwood
District Council [1991] 1 A.C. 398. In the course of his discussion of the
relevant principles Lord Oliver said, at pp. 486-487:
"In the straightforward case of the direct infliction of physical injury C
by the act of the plaintiff there is, indeed, no need to look beyond the
foreseeability by the defendant of the result in order to establish that
he is in a 'proximate' relationship with the plaintiff . . . The infliction
of physical injury to the person or property of another universally
requires to be justified. The causing of economic loss does not. If it is
to be categorised as wrongful it is necessary to find some factor „
beyond the mere occurrence of the loss and the fact that its
occurrence could be foreseen. Thus the categorisation of damage as
economic serves at least the useful purpose of indicating that
something more is required . . ."
In Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455,
492 Lord Steyn said that the contours of tort law are now profoundly „
affected by distinctions between different kinds of damage or harm. In that
case a distinction was drawn between psychiatric harm and physical injury.
The wide scope of potential liability for pure psychiatric harm, and the
fact that it might result in a burden of liability on defendants to so many
people which was disproportionate to their tortious conduct, made it
necessary for a solution to be found on what were essentially pragmatic
grounds. Lord Hoffmann, at pp. 510-511, contrasted the ideal of a system F
of corrective justice with the imperfect way the law of torts works in
practice distributive justice, which gives generous compensation to some
people but leaves, for various reasons, the vast majority of cases of injury
and disability uncompensated. He explained, at pp. 510-511, that the
solution which he favoured in that case, placing the police in the same
position as to pure psychiatric harm as the bereaved relatives, had been
informed by considerations of distributive justice. It was a practical
attempt to preserve the general perception of the law as a system of rules
which is fair as between one citizen and another.
How is one to apply these very general, and necessarily imprecise,
principles to the present case? Their Lordships of the Second Division gave
effect to the traditional civilian, system of corrective justice, which
provides a remedy in damages wherever it can be demonstrated that there H
has been a concurrence of damnum and injuria. For the reasons which
I have outlined, I do not think that this approach can be reconciled with
the fact that the loss claimed under this head is pure economic loss and
97
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) ofC^i^Sd

^ with recent authorities in this House, which counsel on both sides were
right to accept are now part of Scots law, as to the requirements which
must be satisfied if damages for loss of that kind are to be recoverable.
There must be a relationship of proximity, and the attachment of liability
for the harm must be just, fair and reasonable.
I do not wish to place undue emphasis on the fact that the pursuers
chose to keep the child. The fact is, as Mrs. Smith so ably demonstrated,
B they had no other choice. The law is not so harsh as to drive parents, in
the very difficult situation in which the pursuers found themselves, to the
alternatives of abortion or placing for adoption, which, for obvious
reasons, they would have found quite unacceptable. Nevertheless they are
now bringing the child up within the family. There are benefits in this
arrangement as well as costs. In the short term there is the pleasure which
Q a child gives in return for the love and care which she receives during
infancy. In the longer term there is the mutual relationship of support and
affection which will continue well beyond the ending of the period of her
childhood.
In my opinion it would not be fair, just or reasonable, in any
assessment of the loss caused by the birth of the child, to leave these
benefits out of account. Otherwise the pursuers would be paid far too
D 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
c childhood are not recoverable as damages. It cannot be established that,
overall and in the long run, these costs will exceed the value of the
benefits. This is economic loss of a kind which must be held to fall outside
the ambit of the duty of care which was owed to the pursuers by the
persons who carried out the procedures in the hospital and the laboratory.
For these reasons, which I believe are very similar to those which Lord
Steyn has given in his judgment, I would allow the appeal on this part of
F the pursuers' claim.

Conclusion
I would allow the appeal as to that part of the pursuers' claim which
relates to the costs of caring for, feeding and clothing and maintaining the
„ child and of her layette—the child-rearing costs. The pursuers' averments
relating to those matters, which go to make up the sum sued for in the first
conclusion, should not be admitted to probation. I would dismiss the
appeal as to the second named pursuer's claim for solatium. That matter,
which relates to the sum sued for in the second conclusion, is appropriate
for the proof before answer which was allowed in terms of the Second
Division's interlocutor.
H
LORD CLYDE. My Lords, the pursuers and respondents are the
parents of five children. They are claiming damages in respect of the
conception and subsequent birth of the youngest of these children. The
2 A.C. 2000—4
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

defenders and appellants have challenged the relevancy of the pursuers' A


averments by way of a preliminary plea in advance of any proof of the
facts. The dispute requires to be resolved on the assumption that the
pursuers' allegations in their pleadings are true and it is on the basis of
their present averments alone that the question of law has to be answered.
I turn next to summarise their averments.
In explaining the history of the matter in condescendence 2 the
pursuers state that in 1989, when they had four children, they had agreed B
that they would have no more children and that the first named pursuer
would undergo a vasectomy operation. They aver that he underwent a
vasectomy operation performed by a Mr. Irving on 16 October 1989. Prior
to the operation there had been a discussion with both pursuers about the
subsequent procedures. It was understood that during a period after the
operation two samples would be required to be provided by the first Q
named pursuer in order to ascertain whether any motile sperm were still
evident. The first named pursuer provided samples in January and
February 1990. But the pursuers aver that an analysis relating to the sperm
of another patient was erroneously attributed to him, or at least an
erroneous record was made of an analysis of a sample as having been
provided by him on 23 March 1990. By letter dated 23 March 1990
Mr. Irving wrote to the first named pursuer stating "Your sperm counts D
are now negative and you may dispense with contraceptive precautions."
After receiving the letter the pursuers dispensed with contraceptive
precautions. In about September 1991 the second named pursuer became
pregnant. The pursuers do not aver that they gave to the defenders any
particular information about the reason for the desired vasectomy. They
had agreed between themselves that they did not want any more children p
and it may be assumed that that was the most that the defenders would
know.
In condescendence 3 the pursuers set out their allegations of fault.
Essentially these allege negligence in the compilation of the seminal
analysis record relating to the first named pursuer and negligence in
advising the first named pursuer that he could dispense with contraceptive
precautions when the defenders had not received two samples which tested F
negative for the presence of motile sperm.
Finally in condescendence 4 the pursuers set out the detail of the loss,
injury and damage which they claim they have sustained as a result of the
defenders' fault and negligence. These fall under two heads. The first is for
the payment to both of them of the sum claimed in the first conclusion.
This is a claim for "financial loss as a consequence of the birth of the said
child." It comprises the costs of caring for, feeding, clothing and
maintaining the child and the expenses incurred in the layette. The second
claim is, in terms of the second conclusion, a claim solely by the second
named pursuer. It is for solatium for the pain, distress and inconvenience
suffered by her consequent on the pregnancy, confinement and delivery
together with some loss of earnings which she sustained. The loss of
earnings is alleged to be as a result of the birth and accordingly subsequent H
to it. I understand this claim to relate to a loss of earnings consequent
upon the existence of the child not consequent upon the pregnancy. The
joint claim on the other hand is distinct. It is for the costs which the
99
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Clyde

^ pursuers will require to meet as parents of the child. But while there are
two distinct claims made, nevertheless if the action is to any extent
relevant there is only one right of action for the pursuers. That right arose,
if it did, at conception, the stage at which there was a concurrence of
injuria and damnum.
Before going any further it may be useful to highlight some particular
features of the present case which may serve to identify some limits both
B as regards the facts, the allegations of fault and the substance of the
damages claimed on which the present claim proceeds. In that connection
five observations may be made at this stage relating to the scope of the
problem.
First, to use the classification adopted in Kealey v. Berezowski, 136
D.L.R. (4th) 708, it is a claim for a wrongful conception. It is brought by
£, the parents, not by or on behalf of the child for any losses which she may
suffer. It is not a claim brought by the parents for a wrongful birth,
meaning by that a negligent failure to terminate pregnancy and distinct in
that respect from a wrongful conception. Anderson v. Forth Valley Health
Board, 1998 S.L.T. 588 was such a case. Nor is it a claim for a wrongful
life, brought by the child alone or with the parents on the ground of a
condition such that the child should not have been allowed to be born.
D Indeed, it is not, suggested that the child has any ground for claim.
Secondly, the present case relates to a conception which was followed
by a successful birth of a healthy child. In the course of the argument this
factor sometimes, but not at others, appeared to be of importance. If there
is a distinction in cases of wrongful conception between those where the
child is healthy and those where the child is unhealthy, or disabled or
_ otherwise imperfect, it has to be noted that in the present case we are
dealing with a normal birth and a healthy child.
Thirdly, the action is based on negligence, not contract, with no special
features in the knowledge or expectation of the parties which might
possibly be of significance. It does not proceed upon any warranty by the
defenders that unprotected intercourse would be safe. Again that may give
rise to different issues than those presently raised. Circumstances may of
F course occur where a claim for damages may be based either upon delict
or upon contract. Where there is an express or implied term of a contract
that particular work will be performed with all reasonable care there may
be no practical difference between the two formulations of the basis of the
claim for damages. But the distinction between cases of breach of contract
and cases of delict may be of significance, and in so far as in contract some
special considerations may arise it is as well to note that the present case is
founded purely on negligence and not on contract.
Fourthly, the issue raised in the appeal is strictly not one of the
existence of a duty of care on the defenders towards the pursuers. The
defenders admit that certain duties of care were incumbent upon them and
it is accepted that a duty of care was owed by the defenders to the
pursuers. Further for the purposes of the debate it may be assumed that
H the defenders acted in a way which amounted to a breach of the duties
which they owed to the pursuers. The only issue appears then to be one
about the existence and extent of loss which the pursuers have sustained as
a result of that breach. That leads immediately to the fifth consideration
100
Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

which relates to the nature of the two claims made in the present case. As ^
I have already noted, one is a claim for solatium with a further element of
financial loss, while the other, the joint claim, is a claim purely for a
financial loss. They both arise from an allegation of the making of a
negligent statement.
The relevance of the pursuers' claims may be considered from various
points of view. One approach is that of public policy. This has played a
part in the development of the law in England in dealing with cases such B
as the present, and more prominently and extensively in the corresponding
judicial decisions in the U.S.A. But I have considerable difficulty in finding
assistance towards the solution of the present problem by reference to
considerations of policy. In the present context at least, what are referred
to as policy considerations include elements of what may be seen as ethical
or moral considerations. But whatever the label used to identify or ,-,
describe them I am not persuaded that a sufficiently solid ground for
decision in the circumstances of the present case can be found by searching
for a reason in policy. For one thing it is difficult to find any "policy"
ground for upholding the pursuers' claim in whole or part without finding
beside it a countervailing consideration which points to the propriety of
disallowing the claim. This point has been developed by C. R. Symmons in
"Policy Factors in Actions for Wrongful Birth" (1987) 50 M.L.R. 269. To D
take but one example, the "sanctity of human life" can be put forward as a
ground for justifying the law's refusal of a remedy for a wrongful
conception. On the other hand the general recognition of the importance
of family planning in society and of the propriety of adopting methods of
contraception including those involving a treatment designed to achieve a
permanent solution, reflects the recognition that unlimited child-bearing is „
not necessarily a blessing and the propriety of imposing a liability on those
who negligently provide such a treatment. Particularly where consideration
of public policy can be invoked by both sides to the dispute, it seems to
me that to proceed upon such a ground is unlikely to lead to any confident
solution.
Furthermore while it is comforting to be able to affirm that one can see
no policy reasons for not allowing a claim such as the present to succeed, F
that gives little basis in principle for justifying why it should succeed. And
to affirm more positively that public policy requires that the claim should
succeed seems to me to be coming very close to an encroachment on the
responsibilities which attach to the legislature and not to the courts. The
judicial function may extend beyond the interpretation of the law to
the problem of applying the law to novel circumstances. But in doing so
the court should have regard to existing principles. It may be that
considerations of what may be referred to as policy are of assistance in
determining whether the application of the law should be extended so as to
create a novel liability for damages. But the problem in the present case is
not, truly that kind of question. It is a problem of determining the extent
of the damages to which in the circumstances the defenders are liable in
law. H
Public policy was long ago recognised by Burrough J. in Richardson v.
Mellish (1824) 2 Bing. 229, 252 as "a very unruly horse, and when once
you get astride it you never know where it will carry you." As Pearson J.
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2 A.C. McFarlane \. Tayside Health Board (H.L.(Sc.)) Lord Clyde

A observed in his dissent in Public Health Trust v. Brown, 388 So.2d 1084,
1086: "I am confident that the majority recognises that any decision based
upon a notion of public policy is one about which reasonable persons may
disagree." In In re Mirams [1891] 1 Q.B. 594, 595, Cave J. observed that
judges should be "trusted [more] as interpreters of the law than as
expounders of what is called public policy." While there may be occasions
on which the courts may safely enter so uncertain a territory, at least in
B the circumstances of the present case I do not consider that it is useful to
pursue so uncertain and unpromising a line of approach.
In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098,
1109, Jupp J. came to the conclusion "that on the ground of public policy
the plaintiff's claims . . . should not be allowed." But the policy reasons
put forward by Jupp J. were carefully dismantled by Peter Pain J. in Thake
Q v. Maurice [1986] Q.B. 644 and not explored in that case on appeal. In
Emeh v. Kensington and Chelsea and Westminster Area Health Authority
[1985] Q.B. 1012 public policy was seen as a possible matter of objection
to allowing the consequences of the fault to extend to the inclusion of the
maintenance costs, but it was not regarded as sufficient to exclude that
claim. In Gold v. Haringey Health Authority [1988] Q.B. 481, 484,
Lloyd L.J. expressly stated that the conflict in respect of public policy on
the desirability of permitting a claim for damages for an unwanted
pregnancy had been resolved by the court in Emeh's case. In the careful
analysis of the law which was made by Brooke J. in Allen v. Bloomsbury
Health Authority [1993] 1 All E.R. 651 the possible problem of allowing
both a claim for personal injuries and a claim for purely economic loss
was raised. That issue was put at rest in Walkin v. South Manchester
E Health Authority [1995] 1 W.L.R. 1543 where in relation to a claim by a
mother following on an unsuccessful sterilisation operation the court held
that there was only one cause of action and that cause of action was for
damages consisting of or including damages in respect of personal injury
for the purposes of section 11(1) of the Limitation Act 1980. While English
practice clearly admits claims for damages for unwanted pregnancies and
p allows the damages to include the cost of maintenance of the child it
appears that that matter has been allowed to develop undeterred by
considerations of policy. In the present case the Inner House similarly
found no overriding considerations of public policy such as to exclude the
pursuers' claim.
Another approach which might be taken in dealing with the problem
of a claim for a wrongful conception is that of analysing the problem in
G terms of the existence of a duty to compensate. The claim made by the
first named pursuer is simply one for an economic loss consequent upon
the alleged negligent advice. Such a claim could be approached as a matter
of, liability rather than damages. In such a context the concept of the
proximity of the relationship between the wrongdoer and the person
affected by the wrong can be usefully invoked as a means of putting
H reasonable limits upon the extent to which liability for economic loss
following upon negligent advice is to be permitted. In a more refined way
the approach may be formulated in terms of the existence of a duty to
avoid causing damage of a particular kind.
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|

My Lords, I hesitate to adopt such an approach in the present case. As ^


I have already noted, 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 B
named pursuer has some right of action which can be more readily
recognised and I would be prepared to accept that there should be an
obligation on 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 S.L.T. 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. Considerations of remoteness, and
conversely of proximity, can arise in different ways both in the context of
the liability for wrongdoing and in the context of the damages to which
the person suffering the wrong may be entitled. It seems to me desirable to
preserve the distinction between remoteness in relation to injuria and D
remoteness in relation to damnum. The present case is concerned with the
extent of the losses which may properly be claimed in the circumstances of
the case, rather than with the existence or non-existence of a liability to
make reparation.
I turn next to consider the question whether the pursuers have
sustained any loss which the law would recognise. The extreme position „
advanced by the appellants is to the effect that there has not been any loss
sustained by the pursuers. That was at the heart of their submission in the
Inner House and it was with that issue that the court was principally
concerned. One approach here is to question whether the quantification of
any loss involves such speculation and uncertainty as to be beyond the
ability of the court, and so for that reason to be inadmissible. But there
can be no particular problem so far as the second named pursuer's claim is F
concerned. The assessment of solatium for the pain, inconvenience and
discomfort of pregnancy and the event of a birth is plainly something
which the courts can undertake albeit necessarily on a broad basis. Her
particular patrimonial losses are also readily open to quantification. The
argument may be at its strongest in relation to the maintenance claim. But
the short answer to any argument on the impracticability of quantifying
that head of loss is that courts have managed to do just that without any
evident difficulty, but with a due recognition of the imponderable elements
involved. The assessment of a claim such as is presented in the present case
is both practicable and practised.
So far as the solatium claim was concerned 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 H
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. The approach which
103
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Clyde

^ commended itself to the Lord Ordinary on the maintenance costs was to


the effect that the value of the child outweighed and indeed transcended
any patrimonial loss which the child might create. But in attempting to
offset the benefit of parenthood against the costs of parenthood one is
attempting to set off factors of quite a different character against each
other and that does not seem to me to accord, with principle. At least in
the context of the compensation of one debt against another, like requires
B to be offset against like. In this analogous context of endeavouring to
cancel out the maintenance claim one would still expect economic gain to
be set off by economic loss. It may be that the benefit which a child
represents to his or her parent is open to quantification, but there is no
principle under which the law recognises such a set off. A parent's claim
for the death of a child is not offset by the saving in maintenance costs
P which the parent will enjoy. Nor, as was noted by the discussion in the
present case, is the loss sustained by a mineworker who is rendered no
longer fit for work underground offset by the pleasure and benefit which
he may enjoy in the open air of a public park. Furthermore, in order to
pursue such a claim against the risk of such a set-off, a parent is called
upon in effect to prove that the child is more trouble than he or she is
worth in order to claim. That seems to me an undesirable requirement to
D impose upon a parent and further militates against such an approach.
Indeed, the very uncertainty of the extent of the benefit which the child
may constitute makes the idea of a set-off difficult or even impracticable.
A 'stronger argument can be presented to the effect that the obligation
to maintain the child is an obligation imposed upon the parents of the
child and that they will not be held to have sustained any loss caused by
„ the defenders' negligence if, despite the negligence, they are able to meet
those obligations. This seems to me to be the line of reasoning adopted by
Lax J. in Kealey v. Berezowski, 136 D.L.R. (4th) 708, 739-740, where,
having indicated that the financial responsibilities associated with the care
and upbringing of a child are the responsibilities of parents, she stated:
"In a wrongful pregnancy case, the question becomes, to what extent,
if at all, the defendant's negligence impairs the plaintiffs ability to
meet those responsibilities to the unplanned child or compromises the
relationship of mutual support and dependency between parent and
child."
She concluded, at p. 740:
"The particular damage sustained in this case is an unplanned and
G undesired pregnancy. There is no damage caused by the defendant's
negligence which prevents Ashleys parents from fulfilling their
responsibilities to her or compromises in any way the relationship of
mutual support and dependency which, as matter of law, arose on her
birth. Accordingly, the child-rearing costs in this case are not a
compensable loss."
H It is not suggested in the pursuers' averments in the present case that
they are unable to meet the costs of maintaining the child, nor that the
relationship of mutual support and dependency has been damaged by the
alleged negligence. But I am not persuaded that this approach provides a
104
Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc)) 12000]

sufficient basis for rejecting the maintenance claim as not constituting a A


loss. The approach adopted by Lax J. starts from a consideration of public
policy. It is on the basis that the obligation of maintenance is as a matter
of public policy to be imposed on the parents that he would, as it appears,
allow only an inability to meet those obligations caused by the alleged
negligence to enable a compensable loss to arise. As I have already stated,
I do not find a sufficiently secure basis in public policy to lead to a
confident solution in the present case. The reality is that there has been ^
and will be an expenditure of money on maintenance. The pursuers claim
that they are required to spend more money than they would otherwise
have been required to do. They have another mouth to feed.
On the assumption that the pursuers can establish that they have each
sustained a loss, they must also show that the loss was caused by the
alleged negligence. This is yet another approach which can be taken to the c
problem. So far as the second named pursuer's claim for solatium
immediately associated with her pregnancy is concerned, I have no
difficulty in accepting the existence of a causal connection. I have,
however, found the causal link with the maintenance claim far more
doubtful. I have similar difficulties with the claim by the second named
pursuer in respect of a loss of earnings following the birth of the child, on
account, perhaps, of her having to give up her employment in order to
look after the child. There are several successive stages from the allegedly
negligent advice before one reaches the incurring of the maintenance costs;
the intercourse without protection, the conception of the child, the
carrying of the child to her birth, and the acceptance of the baby as a
further member of the family with all the obligations towards her which
parenthood involves. The cost of the maintenance of the child seems to me E
to be a loss near the limits of the causal chain. But it cannot be reasonably
suggested that the chain was broken by any novus actus on the part of the
pursuers. The decision to keep the child, to accept into the family a baby
who was originally unwanted, cannot rank as an acting on the part of the
pursuers sufficient to break the causal chain. It seems to me that a
sufficient causal connection can be made out. p
It might be argued that the cause of the loss in respect of the
maintenance costs was properly the imposition by statute of the obligation
on a parent to maintain a child, so that the cause of the loss was not the
alleged negligence, but the operation of the law. In XY v. Accident
Compensation Corporation [1984] 4 N.Z.A.R. 219, 224, Jeffries J. expressed
the view that "the payment of maintenance for one's child is not
necessarily and directly resulting from the birth but from the state of G
parenthood which inevitably involves financial sacrifice." But that case was
concerned with a special statutory standard for the entitlement to damages
which appears to be higher than the test which is adopted in Scotland of
losses naturally and directly arising from the alleged wrong.
It appears to me that the solution to the problem posed in the appeal
with regard to the maintenance claim should be found by consideration of JJ
the basic idea which lies behind a claim for damages in delict, that is the
idea of restitution. In Lord Blackburn's words in Livingstone v. Rawyards
Coal Co. (1880) 5 App.Cas. 25, 39:
105
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) Lord Clyde

A " y ° u should as nearly as possible get at that sum of money which will
put the party who has been injured, or who has suffered, in the same
position as he would have been in if he had not sustained the
wrong . . . "
I find no difficulty in that respect with the claim for solatium by the second
named pursuer. The pain which she suffered through the carrying of an
g unwanted child seems to me to be reasonably a subject for compensation.
The damages require to be expressed in terms of money, and in so far as
money can compensate for pain and suffering a form of restitution can be
made. But the claim for the financial losses immediately seems more
difficult. The result of the decision of the Inner House is that the pursuers
have the enjoyment of a child, unintended but now not unwanted, free of
any cost to themselves and maintained at the expense of the defenders. It
C 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 to be a slightly
TJ 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.
The situation in the present case is a peculiar one. Without
E surrendering the child the pursuers cannot realistically be returned to the
same position as they would have been in had they not sustained the
alleged wrong. But it cannot reasonably be claimed that they should have
surrendered the child, as by adoption or, far less, by abortion, so as to
achieve some kind of approximation to the previous situation, even if such
courses were available or practicable. There is no issue here of mitigation
p of damages. But while it is perfectly reasonable for the pursuers to have
accepted the addition to their family, it does not seem to me reasonable
that they should in effect be relieved of the financial obligations of caring
for their child. That seems to me to be going beyond what should
constitute a reasonable restitution for the wrong done.
The restitution which the law requires is a reasonable restitution. As
was recognised in Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580,
^ 585 the eventual question is "whether what is sought by way of reparation
can be regarded as reasonable having in mind the particular circumstances
of the particular case." In the present case we are concerned critically with
a claim for an economic loss following upon allegedly negligent advice. In
such a context I would consider it appropriate to have regard to the extent
of the liability which the defenders could reasonably have thought they
H were undertaking. It seems to me that even if a sufficient causal connection
exists the cost of maintaining the child goes far beyond any liability which
in the circumstances of the present case the defenders could reasonably
have thought they were undertaking.
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Lord Clyde McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|

Furthermore, reasonableness includes a consideration of the A


proportionality between the wrongdoing and the loss suffered thereby. The
cost of maintaining a child may vary substantially in different
circumstances. Counsel for the respondents sought to stress the modesty of
the likely level of award in the present case. But once it is accepted that the
cost of private education may be included in appropriate cases, as was the
case, for example, in Benarr v. Kettering Health Authority, 138 N.L.J. 179, a
relatively much more substantial award could be justified. The fact that the B
quantification admits the possibility of very significant differences in the
level of award remains and I find it difficult in the context of a claim such as
the present to accept that there would be any reasonable relationship
between the fault and the claim such as would accord with the idea of
restitution. That the expense of child rearing would be wholly
disproportionate to the doctor's culpability has been recognised in the Q
American jurisprudence as one factor supporting the rule of limited
damages: see Johnson v. University Hospitals of Cleveland, 540 N.E.2d 1370,
1375-1376. The solution of allowing limited damages has received
considerable support in America and I consider that that solution provides
the proper measure of restitution in the circumstances of the present case.
I would accordingly allow the appeal to the extent of excluding from
probation the claim for any loss of wages by the second named pursuer as D
a result of the birth of the child, and the claim by both pursuers for
additional costs in caring for, feeding and clothing and maintaining the
child, and the expenses in the layette. That leaves solely the claim by the
second named pursuer for solatium and on that a proof before answer
should be allowed.
LORD MILLETT. My Lords, Mr. and Mrs. McFarlane had four young
children. They decided not to have any more and Mr. McFarlane agreed
to have a vasectomy. They have not explained the reasons for their
decision beyond saying that they "considered their family to be complete."
It is possible, perhaps likely, that financial considerations played a part,
especially since they had already decided to move to a bigger house and
take on increased financial commitments; but it cannot be assumed that F
such considerations were decisive. In any case, Mrs. McFarlane's reasons
may not have been the same as her husband's; she may simply have felt
that four children were enough for her to look after.
The operation was carried out under the National Health Service at a
hospital under the control of the defenders. The operation was not
successful, though it is not alleged that anyone was to blame. Un-
fortunately, the consultant surgeon wrote to Mr. McFarlane and informed
him, contrary to the case, that his sperm count was negative and that he
could dispense with contraceptive precautions. The result was predictable.
Mrs. McFarlane conceived again and in due course was delivered of a fifth
child. The pregnancy and delivery were uneventful, and Catherine is a
lovely, healthy, normal baby. She has been accepted into the family with
love and joy. H
Mr. and Mrs. McFarlane have brought proceedings for damages. They
allege that the defenders failed to take reasonable care to ensure that the
information they were given was correct, that they were entitled to rely on
107
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Millett

j^ it, and that Mrs. McFarlane's pregnancy and confinement and Catherine's
birth and subsequent existence were the direct and foreseeable result of the
defenders' negligence. Mrs. McFarlane claims damages of £10,000 for the
pain and distress of the pregnancy and delivery. Mr. and Mrs. McFarlane
jointly claim £100,000, being the estimated costs of the layette and of
feeding, clothing and maintaining Catherine throughout her childhood.
They make no claim for the care and trouble of bringing up Catherine, or
B the sleepless nights they may now have to endure for a fifth time.
The defenders do not deny that they are responsible for having
supplied the information in question, that Mr. and Mrs. McFarlane were
entitled to rely on it, that it was incorrect, and that they were under a duty
to take reasonable care to ensure that it was correct. Nor do they deny
that, if they failed to do so, then they would normally be liable for all the
P foreseeable consequences of its being wrong: see Banque Bruxelles Lambert
S.A. v. Eagle Star Insurance Co. Ltd. [1997] A.C. 191, 214, per Lord
Hoffmann. The defenders do not admit that they were negligent—this
issue remains to be tried—but they rightly concede that Mrs. McFarlane's
pregnancy and Catherine's birth were the direct and foreseeable
consequences of the information being wrong. Causation is not in issue.
They do not allege that Mr. and Mrs. McFarlane should have mitigated
D their loss by abortion or adoption. But they deny that the conception and
birth of a normal, healthy baby are events capable of giving rise to a claim
in damages.
The Lord Ordinary dismissed the action. He held that neither head of
claim was maintainable. He rejected Mrs. McFarlane's personal claim on
the ground that normal pregnancy and childbirth are natural processes
_ and cannot properly be treated as if they were personal injuries. He
rejected Mr. and Mrs. McFarlane's joint claim for the cost of bringing up
Catherine on the ground that the birth of a normal, healthy baby is not a
harm but a blessing. He expressed the view that the privilege of
parenthood is immeasurable in monetary terms and transcends any
financial loss involved in bringing up the child. The Inner House
unanimously reversed the decision of the Lord Ordinary and allowed the
F action to go to proof in respect of both heads of claim.
The contention that the birth of a normal, healthy baby "is not a
harm" is not an accurate formulation of the issue. In order to establish a
cause of action in delict, the pursuers must allege and prove that they have
suffered an invasion of their legal rights (injuria) and that they have
sustained loss (damnum) as a result. In the present case the injuria
occurred when (and if) the defenders failed to take reasonable care to
ensure that the information they gave was correct. The damnum occurred
when Mrs. McFarlane conceived. This was an invasion of her bodily
integrity and threatened further damage both physical and financial. Had
Mrs. McFarlane miscarried, or carried to full term only to be delivered of
a still-born child, it is impossible to see on what basis she could have been
denied a cause of action, though the claim would have been relatively
H modest. The same would apply if Mr. and Mrs. McFarlane had adhered to
their determination not to have another child and had proceeded to restore
the status quo ante by an abortion. Damages would be recoverable for the
pain and distress involved as well as for any expenses incurred. The issue,
108
Lord Millett McFarlane v. Tayside Health Board (H.L.(Sc.)) |2000|

therefore, is not whether Catherine's birth was a legal harm or injury, that ^
is to say, whether the pursuers have a completed cause of action, but
whether the particular heads of damage claimed, and in particular the
costs of maintaining Catherine throughout her childhood, are recoverable
in law.
The admission of a novel head of damages is not solely a question of
principle. Limitations on the scope of legal liability arise from legal policy,
which is to say "our more or less inadequately expressed ideas of what B
justice demands" (see Prosser and Keeton on Torts, 5th ed. (1984), p. 264).
This is the case whether the question concerns 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 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.
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 D
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. in Jones v. Berkshire Area Health Authority, 2 July 1986,
Brooke J. in Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651 F
h
and Lloyd L.J. in Gold v. Haringey Health Authority [1988] Q.B. 481) 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 F
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 H
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
109
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) Lord Millett

^ 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
B 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,
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
D 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
F 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
F 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
H 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
110
Lord Millett McFarlane v. Tayside Health Board (H.L.(Sc)) |2000|

to a lawful termination. But suppose that Mr. and Mrs. McFarlane were A
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
Hartke v. McKelway (1983) 707 F.2d 1544. B
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, Q
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,
136 D.L.R. (4th) 708, 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 L")
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. F
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 Q
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, 388 So.2d
1084, 1085-1086 the court observed:
H
"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
Ill
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc.)) Lord Millett

^ 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
B 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. Baumgartner, 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
D 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
P 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
F 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.
Q The contention that the birth of a healthy baby is a blessing and not
a matter for compensation has been countered by three main argu-
ments. 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.-C.J. (addressing a different point) in C.E.S. v. Superclinics
(Australia) Pty. Ltd., 38 N.S.W.L.R. 47, 75:
H "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
112
Lord Millett McFarlane v. Tayside Health Board (H.L.(Sc)) |2000]

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 g
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. C
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 j)
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 forgo. The point is forcibly put by Pearson J. dissenting in Public
E
Health Trust v. Brown, 388 So.2d 1084, 1087 in language approved by
Kirby A.-C.J. in his dissenting judgment in C.E.S. v Superclinics
(Australia) Pty. Ltd., 38 N.S.W.L.R. 47, 74:
"There 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." F
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 fj
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
113
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Millett

^ 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] Q.B. 1012, 1024 that save in the
B 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
c (Australia) Pty. Ltd., 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
E 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
F 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
H 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
2 A.C. 2000—5
114
Lord Millett McFarlane v. Taysidc Health Board (H.L.(Sc)) |2000|

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 B
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 D
transferring to others the responsibilities which it entails.
Unlike your Lordships, ] 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 of their claim to measure their loss
by the consequences of Catherines conception and birth does not lead to
the conclusion that they have suffered none. They have suffered both F
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 H
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
115
2 A.C. McFarlane v. Tayside Health Board (H.L.(Sc)) Lord Milieu
* 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.

B Appeal allowed in part with costs in


House of Lords and below.

Solicitors: Lawrence Graham for Central Legal Office, Scottish Health


Service; Balfour & Manson, Edinburgh.
[Reported by SHIRANIKHA HERBERT, Barrister]
C

[HOUSE O F LORDS]

R E G I N A v . S E C R E T A R Y O F STATE F O R T H E
H O M E D E P A R T M E N T , Ex parte S I M M S AND ANOTHER

1999 May 19, 20; Lord Browne-Wilkinson, Lord Steyn,


July 8 Lord Hoffmann, Lord Hobhouse of Woodborough
E and Lord Millett

Prisons—Prisoners' rights—Visit by journalist—Order of Secretary of


State permitting access only on undertaking not to use material
gained for professional purposes—Whether order ultra vires—
Whether prison regulations in general language presumed subject to
j'undamental human rights—Prison Act 1952 (c. 52), s. 47(1)—
Prison Rules 1964 (S.I. 1964 No. 388), r. 33

The applicants were prisoners convicted of murder, whose


renewed applications for leave to appeal against conviction had
been refused by the Court of Appeal (Criminal Division) but who
continued to protest their innocence. They were visited in prison
by journalists who had befriended them and were interested in
publicising their stories. The prison authorities, having become
P aware of the purpose of the visits, refused to allow them to
continue unless the journalists signed undertakings not to use
information obtained on visits for professional purposes, in
accordance with paragraph 37 of section A of the Prison Service
Standing Order 5 of 1996 (issued by the Secretary of State
pursuant to rule 33 of the Prison Rules 1964, under authority
conferred by section 47(1) of the Prison Act 1952). The journalists
refused to sign and consequently were not allowed to make any
H further visits. Although neither journalist made an official request
to visit under the terms of paragraph 37A of section A, which
made provision as to the terms to be imposed when
"exceptionally" a journalist was permitted to visit in his
professional capacity, the Secretary of State had adopted a policy