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ICLR: Appeal Cases/2000/Volume 2/McFARLANE AND ANOTHER RESPONDENTS AND TAYSIDE

HEALTH BOARD APPELLANTS - [2000] 2 A.C. 59

[2000] 2 A.C. 59

[HOUSE OF LORDS]

McFARLANE AND ANOTHER RESPONDENTS AND TAYSIDE HEALTH BOARD AP-

PELLANTS

1999 July 5, 6, 7;

Lord Slynn of Hadley, Lord Steyn,

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 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 sur-
geon employed by the defenders ("the board"). Thereafter the husband submitted sperm samples to the
hospital for analysis, and in March 1990 the surgeon informed the husband that his sperm counts were nega-
tive and that contraceptive measures were no longer necessary. The parents acted on that advice. In Sep-
tember 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 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 parenthood transcended any patrimonial loss incurred as a result of the child's existence so that the par-
ents could not be in an overall position of loss. The Second Division of the Inner House of the Court of Ses-
sion 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 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:-

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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 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
[2000] 2 A.C. 59 Page 60

therewith (post, pp. 74A-E, 81F-G, 84B-F, 87B-E, 89A-B, 97F-G, 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
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 be-
yond 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 disadvantages of parenthood were
inextricably bound together and the benefits should be regarded as outweighing any loss; and that, accord-
ingly, 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, 95B-C, 96H-97A, 104G-106A, 106C-D, 111E-F, 113H-114C).

Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, H.L.(E.) applied.

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.

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

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.)
 Page 3

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

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 Plc. 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.)

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.

[2000] 2 A.C. 59 Page 61

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

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.

 Page 4

Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708

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

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

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.

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., Mlle. c. Picard Cour de Cass.Civ. 1re 25 June 1991 D.1991.566

 Page 5

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.)

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.)
[2000] 2 A.C. 59 Page 62

Pickett v. British Rail Engineering Ltd. [1980] A.C. 136; [1978] 3 W.L.R. 955; [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 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 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 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 nor-
mal human condition for which damages are not recoverable, just as damages are not recoverable for debil-
itating grief and bereavement, although they are foreseeable. See also Frost 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 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 to
adopt a partial and selective approach.
 Page 6

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
[2000] 2 A.C. 59 Page 63

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 Kea-
ley 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) 38 N.S.W.L.R. 47 and XY v. Accident Compensa-
tion Corporation [1984] 4 N.Z.A.R. 219.

Even if the alleged negligence caused the costs of the child's maintenance, it also caused the very substan-
tial 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 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 unrea-
sonable. 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 ac-
count: 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 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 affluent the parents the greater would be the award of damages by provid-
ing, 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 fundamen-
tally, once the child was born and the parents accepted her into their family, a completely new situation 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 negli-
gence caused the conception, pregnancy and birth. Thereafter, although the decision not to place the 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.
[2000] 2 A.C. 59 Page 64

Much of that would involve the redistribution of family finances rather 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
 Page 7

costs of rearing the child: see Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605. In any event, a vasecto-
my is not an economic or commercial transaction.

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 negli-
gence. 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 calcu-
lated solely by reference to the economic costs of the child does not and cannot achieve restitution. There-
fore it is a fallacy to assume that a foreseeable expense caused by negligence is necessarily a 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 expecta-
tion 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 recov-
erable. 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 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 finan-
cial 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 inte-
gral part of the modern marital relationship. The parents chose to use the National Health Service for a vas-
ectomy 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
[2000] 2 A.C. 59 Page 65

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 inter-
est 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.

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 in-
jury. The mother's bodily integrity was affected by the board's negligence, and the mother is entitled to sola-
tium 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
 Page 8

culture that parents do not put up their children for adoption, 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 con-
ception. 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 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 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 upheav-
al 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. 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
[2000] 2 A.C. 59 Page 66

-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 ques-
tions 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. 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. Un-
derlying the board's approach is the assumption that all parents will gain from their child's existence. Howev-
er, parents have no entitlement in law to benefit from their children.

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 not on public policy. If Parliament be-
lieved 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 le-
gal issue difficult. The facts are that Mr. McFarlane underwent a vasectomy operation on 16 October 1989;
 Page 9

by 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 par-
ents 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 damages. The Second Division of the Court of Session reference unanimously al-
lowed a reclaiming motion. They thought that the parties should be allowed a proof before answer that if they
could establish
[2000] 2 A.C. 59 Page 67

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 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 is-
sues of remoteness and (b) allowing no recovery since the value of the child outweighed the cost of mainte-
nance. 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 prin-
ciple, 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 immeas-
urable in money terms; that the benefits of parenthood transcend any 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,
"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.

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 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.
 Page 10

[2000] 2 A.C. 59 Page 68

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 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:
"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."

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 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 obviously was the applicable law) it is, as I un-
derstand it, accepted that the law of England and that of Scotland should be the same in respect of the mat-
ters 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
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 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.
[2000] 2 A.C. 59 Page 69

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 abor-
tion, 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 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.
 Page 11

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 admit-
ted liability in negligence should include, in addition to damages for 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 re-
jected 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 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 and
parental supervision. On a claim in contract the court held that there was no rule of public policy which pre-
cluded 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 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 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 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.
[2000] 2 A.C. 59 Page 70

In Allen v. Bloomsbury Health Authority [1993] 1 All E.R. 651 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 ad-
vantage of not undergoing a termination of the pregnancy); (b) financial 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 de-
rived 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.

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.
 Page 12

In the Scottish case of Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 584, 585, a judgment of 25
November 1993, Lord Cameron of Lochbroom rejected contentions that public policy considerations pre-
vented 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 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 in-
stance, the cost of a wedding as in Allen) ... I therefore reject the submission that there is any general bar to claiming
child 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."

There has thus been in England and Scotland a trend towards allowing damages both for the pain and dis-
tress of an unplanned pregnancy and birth and also for the cost of rearing the child born.
[2000] 2 A.C. 59 Page 71

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
"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."

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 Su-
preme 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."

They also accepted that damages should generally be awarded for pain and suffering associated with preg-
nancy 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 emo-
tional benefits against emotional disadvantages although theoretically 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 re-
jected. 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 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
 Page 13

"unduly speculative and ethically questionable assessments of such matters as the emotional effect of a birth on sib-
lings as well as parents, and the emotional as well as the pecuniary costs of raising an unplanned, and, perhaps, un-
wanted child in varying family environments ... The extent of recoverable damages is limited by

[2000] 2 A.C. 59 Page 72

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:
"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 senti-
ment that the intangible but all important, incalculable but invaluable 'benefits' of parenthood far outweigh any of the
mere monetary burdens involved ... Speaking legally, this may be deemed conclusively presumed by the fact that a
prospective parent does not abort or subsequently place the 'unwanted' child for adoption ... On a more practical level,
the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster.
Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law."

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
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 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 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.
[2000] 2 A.C. 59 Page 73

The difficulty of these issues is highlighted in C.E.S. v. Superclinics (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 that the task should not be un-
dertaken. 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 val-
ue 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 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."
 Page 14

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 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 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 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.
[2000] 2 A.C. 59 Page 74

From this review it is clear that there is a wide range of opinions to consider. None is binding on your Lord-
ships 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 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 nec-
essary, 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 pre-
vent 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 expens-
es, clothes 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 causa-
tion or made the damage too remote or was a novus actus interveniens. If it were suggested I would reject
the 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 con-
ceived 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 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.
 Page 15

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 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
[2000] 2 A.C. 59 Page 75

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 like-
ly 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 reduce the costs by anything resem-
bling 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 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.

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 awarded as otherwise children will learn
that their birth was not wanted and that this will have undesirable psychological consequences. An un-
planned 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 but the ethical standards of the medical profession (coupled with insur-
ance) 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 foresee-
able 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 ques-
tion 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.

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 foreseeabil-
ity provides in order to create liability. Thus in Caparo
[2000] 2 A.C. 59 Page 76
 Page 16

Industries Plc. 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."

The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty
includes also avoiding the costs of rearing the child if born and accepted into the family. Whereas I have no
doubt that there should be compensation for the physical effects of the pregnancy and birth, including of
course solatium for consequential suffering by the mother immediately following the birth, I consider that it is
not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibili-
ties, 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 ap-
propriate 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 produce a different conclusion; it comes from the inherent limitation of the liabil-
ity 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 ex-
penses (if any) and the costs of the layette, but I would allow the Board's appeal 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.

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, re-
sulting 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. 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
[2000] 2 A.C. 59 Page 77

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 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
 Page 17

explored in depth in this case. I am not inclined to go beyond the issues directly arising on 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 vasecto-
my 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 adopt contraceptive precautions until sperm samples had been an-
alysed. 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 precau-
tions." Mr. and Mrs. McFarlane acted on this advice. Nevertheless in September 1991 Mrs. McFarlane be-
came pregnant. On 6 May 1992 Mrs. McFarlane 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. McFar-
lane claimed a sum of £10,000 in respect of pain, suffering and distress resulting from the unwanted preg-
nancy. 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 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
[2000] 2 A.C. 59 Page 78

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 conse-
quences 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 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 pursu-
ers entitled to damages? (ii) Is the 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, suf-
fering and distress resulting from her pregnancy. It is common ground that in regard to the sustainability in
law of the two heads of claim there are no material differences between the law of Scotland and the law of
England.
 Page 18

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 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 ob-
served, 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 West-
minster 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 dis-
abilities. The defendants' contention was that the cost of upbringing should be limited to the extra costs at-
tributable 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:
[2000] 2 A.C. 59 Page 79

"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 un-
expected pregnancy. The formulation equates pregnancy with personal injury giving rise to consequential (as opposed
to pure) economic loss which includes upbringing costs."

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 or-
der: 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 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 [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. Realisti-
cally, despite the pregnancy and child birth, the mother's part of the claim is also for pure economic loss. In
any event, in respect of the claim for the costs of bringing up the unwanted child, it would be absurd to dis-
tinguish between the claims of the father and the mother. This feature of the claim is important. The devel-
opment 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 decision in Emeh's case. This was
memorably articulated in Jones v. Berkshire Area Health Authority (unreported), 2 July 1986, another un-
wanted 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 acknowl-
edges an entitlement in a mother to claim damages for the blessing of a healthy child. Certain it is that those who are
 Page 19

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."

[2000] 2 A.C. 59 Page 80

In Gold v. Haringey Health Authority [1988] Q.B. 481, 484F Lloyd L.J. (with the agreement of the other
members of the court) cited this observation and said that "many would no doubt agree with this observa-
tion."

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 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 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; Annota-
tion, 89 A.L.R. 4th 632 (May 1998), passim. In Canada the trend is against such claims: see Kealey v. Bere-
zowski (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 the opportunity to have an abortion which would not neces-
sarily 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 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 Au-
thority 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 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
Mlle. X c. Picard (Cour de Cass. Civ. 1re 25 June 1991 D. 1991, 566).

Such claims are not allowed. From this comparative survey I deduce that claims by parents for full compen-
sation for the financial consequences of the birth of a healthy child have sometimes been allowed. It may be
that
[2000] 2 A.C. 59 Page 81

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 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
 Page 20

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 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 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 nat-
ural 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 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 suf-
fering 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. In the alternative counsel ar-
gued 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
[2000] 2 A.C. 59 Page 82

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 distribu-
tive justice. It requires a focus on the just distribution of burdens and losses among members of a society. If
the matter is approached in this way, it may become relevant to ask commuters on the Underground the fol-
lowing question: "Should the parents of an unwanted but healthy child be able to sue the doctor or hospital
for compensation equivalent to the cost of bringing up the child for the years of his or her minority, i.e. until
about 18 years?" My Lords, I am firmly of the view that an overwhelming number of ordinary men and wom-
en would answer the question with an emphatic "No." And the reason for such a response would be an inar-
ticulate 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 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 reme-
dies consequent upon the birth of a healthy child, which 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 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
 Page 21

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 illustra-
tions 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 differenti-
ated between the measure of damages for fraudulent and 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
[2000] 2 A.C. 59 Page 83

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 Hills-
borough 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 judgments Lord Hoffmann and I
reasoned that it would be morally unacceptable if the law denied a remedy to bereaved relatives as hap-
pened in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 but granted it to police offic-
ers 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 ob-
served, 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.

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 par-
ents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or 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. (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 re-
jected. 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 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 pre-
sent case is based on an assumption of responsibility by the doctor who gave negligent advice. But in regard
to 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
[2000] 2 A.C. 59 Page 84
 Page 22

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 in-
clined 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 Mr. and Mrs. McFarlane are entitled in principle to re-
cover 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 preg-
nancy and confinement and the pain and distress of giving birth to the child. It will be recalled that I have al-
ready rejected the argument that Mrs. McFarlane suffered no personal injury. The considerations of distribu-
tive 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 allow-
ing such a claim. And such limited recovery is supported by a great deal of authority worldwide. I would up-
hold it. The pleadings also allege that the wife gave up work during the later stages of her pregnancy. Coun-
sel 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.

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 sola-
tium by Mrs. McFarlane.

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 sterili-
sations 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 present in the man's semen. Patients are advised to continue with contraceptive pre-
cautions until the sperm counts have been analysed and found to be negative.
[2000] 2 A.C. 59 Page 85

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 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 compe-
tence 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.

The issues in this case

 Page 23

How difficult these questions are is well demonstrated by the decisions which the judges in the Court of Ses-
sion have reached in this case. The pursuers claim that they have suffered loss, injury and damage as a re-
sult of mistaken advice following the first named pursuer's vasectomy. They aver that they received advice
that the sperm counts following analysis of 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 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 circum-
stances 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 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
[2000] 2 A.C. 59 Page 86

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 re-
flected 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 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
which she suffered during the delivery. It is not said that she sustained any loss of earnings during this peri-
od. 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 con-
sequences to her of the implantation of semen within her fertile body by her husband whom both parties be-
lieved to be sterile. The other claim, which both pursuers make, is for the financial 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 suf-
fered during the period of the pregnancy and during or attributable to the process of delivery. I shall describe
this as "the mother's claim." I shall then turn to the claim for child rearing costs, which relates to the period
 Page 24

after the delivery. This seems to me to raise difficult questions of principle which are best considered sepa-
rately.

The mother's claim

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 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
[2000] 2 A.C. 59 Page 87

grounds must be rejected, as this is an area of family life in which freedom of choice may properly be exer-
cised. 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.

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 damages where a person has pre-
viously 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 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, 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
 Page 25

extinguished by the happiness of the postnatal events. The Court of Appeal upheld her claim for the discom-
fort 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
[2000] 2 A.C. 59 Page 88

hospital negligently failed to diagnose that the mother was pregnant at the time of her operation for sterilisa-
tion 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 Cameron of Lochbroom rejected the
submission that there were public policy considerations repugnant to an award of damages for the pain, dis-
tress 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. Bere-
zowski, 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 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 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:

"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 le-
gally 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."

On this basis the Nevada court held that the constituent elements of a tort were not present and that tort ac-
tions for the birth of a normal child should be disallowed. But the reasoning in the South African court on this
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
[2000] 2 A.C. 59 Page 89

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 recover-
able in contract which has no part in our law relating to delictual liability for negligence.
 Page 26

I would therefore affirm the decision of the Second Division on this 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 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, un-
reasonable and unrealistic timetable.

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 1(1)(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 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 con-
sidered 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 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
[2000] 2 A.C. 59 Page 90

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 cor-
rect 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 arguments are to be found in the authori-
ties. 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 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 Author-
ity [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
 Page 27

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. Kensing-
ton 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 Au-
thority, 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 An-
derson 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. 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, 484G Lloyd L.J. agreed with this observation. In Allen v. Bloomsbury Health Au-
thority [1993] 1 All E.R. 651, 662D-F Brooke J. also expressed some misgivings about this line of authority.
He pointed out that contemporary 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:
[2000] 2 A.C. 59 Page 91
"If an unplanned child is born after a failure by a hospital doctor to exercise the standard of care reasonably to be ex-
pected 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 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 Par-
liament 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
businessman whose work required him to reside with his wife in countries where suitable facilities for educa-
tion were not available or to adopt an itinerant lifestyle. It is not difficult to see that in such cases a very sub-
stantial 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 compar-
atively 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.

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 Ordi-
nary.

In Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] Q.B. 1012, 1028 Purchas
L.J. quoted with approval the following passage from Sherlock v. Stillwater Clinic, 260 N.W.2d 169, a deci-
sion of the Supreme Court of Minnesota, at pp. 170-171:
 Page 28

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

[2000] 2 A.C. 59 Page 92

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 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 plaintiff's loss of earnings including future loss. In
the second place, the decision in Sherlock's case was to apply what has been described as the "benefits
rule" that is to say, to offset the value of the non-patrimonial benefits which the child gives against the costs
of its upbringing. The approach which the English courts have adopted is a different one, namely to, award
damages for the costs of child-rearing but not to offset against those costs the value of the non-patrimonial
benefits.

But the third and more significant point is that, as Angus Stewart Q.C. has observed in his valuable article,
"Damages for the Birth of a Child," 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.) dis-
sented in that case, pointing to earlier authority in the same state to the effect that it would be, in Sheran
C.J.'s words, "preposterous for the father of an unplanned child to be awarded damages in a case such as
this for the cost of nurture and education of the child during its minority." In a later case in the same state,
Hickman v. Group Health Plan Inc. (1986) 396 N.W.2d 10, 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 de-
scribed 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 Su-
preme 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 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

[2000] 2 A.C. 59 Page 93

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 'un-
wanted' 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 there-
fore hold that it is, the appropriate rule of law."
 Page 29

In Johnson v. University Hospitals of Cleveland, 540 N.E.2d 1370, Ohio, the Supreme Court of Ohio ob-
served, 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 recov-
ery, the court found that the limited 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 unplanned
and, perhaps, unwanted child in varying family environments."

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

A similar view has been taken in the State of Washington. In McKernan v. Aasheim (1984) 687 P.2d 850,
855 it was held that the costs of rearing an unplanned child were not recoverable, on the ground that it was
impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child dam-
aged its parents:
"Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar
economic information. But whether these costs are outweighed by the emotional benefits which will be conferred by
that child cannot be calculated. The child may turn out to be loving, obedient and attentive, or hostile, unruly and cal-
lous. The child may grow up to be President of the United States, or to be an infamous criminal. In short, it is impossi-
ble 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 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
[2000] 2 A.C. 59 Page 94

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 Plc. v. Dickman [1990] 2 A.C. 605 which, as I shall explain
later, I, too, would regard as a vital signpost as to the direction which should be taken in the search for a sat-
isfactory solution to this very difficult problem:
"If public policy must be invoked, these statutory provisions [to the effect that every parent has an obligation to provide
support to a child, in accordance with need, during the period of dependency] suggest to me that, as a matter of public
policy, the financial responsibilities associated with the care and upbringing of a child are the responsibilities of parents.
In a wrongful pregnancy case, the question then becomes, to what extent, if at all, the defendant's negligence impairs
the plaintiff's ability to meet those responsibilities to the unplanned child or compromises the relationship of mutual
support and dependency between parent and child. It is for this reason ... that in wrongful pregnancy cases, it is the
court's function to find the interest which a successful 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 sterili-
sation 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 finan-
cial 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, consti-
tute a harm which inevitably leads to damages for child-rearing costs: '[T]he duty of care is inseparable from the dam-
age which the plaintiff claims to have suffered from the breach. It is not a duty to take care in the abstract but a duty to
 Page 30

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 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.

[2000] 2 A.C. 59 Page 95

Accordingly, the child-rearing costs in this case are not a compensable loss."

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

In Candlewood Navigation Corporation Ltd. v. Mitsui O.S.K. Lines Ltd. [1986] A.C. 1, 25 Lord Fraser of Tul-
lybelton, 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 to-
wards those who have suffered economic damage in consequence of his negligence."

This theme was developed and applied in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605. In that case
Lord Bridge of Harwich, 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 that there should exist between the party owing the duty and the party to whom it is owed a relation-
ship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the
court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for
the benefit of the other."

Lord Oliver of Aylmerton made the same point in his speech at p. 632D, and 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. 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.'"

[2000] 2 A.C. 59 Page 96

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 the abstract but a duty to avoid causing to the particular
plaintiff damage of the particular kind which he has in fact sustained."
 Page 31

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 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 justi-
fied. 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 con-
tours 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 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 has been a concurrence of dam-
num 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
[2000] 2 A.C. 59 Page 97

with recent authorities in this House, which counsel on both sides were right to accept are now part of Scots
law, as to the requirements which must be satisfied if damages for loss of that kind are to be recoverable.
There must be a relationship of proximity, and the attachment of liability for the harm must be just, fair and
reasonable.

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

In my opinion it would not be fair, just or reasonable, in any assessment of the loss caused by the birth of the
child, to leave these benefits out of account. Otherwise the pursuers would be paid far too much. They would
be relieved of the cost of rearing the child. They would not be giving anything back to the wrongdoer for the
benefits. But the value which is to be attached to these benefits is incalculable. The costs can be calculated
but the benefits, which in fairness must be set against them, cannot. The logical conclusion, as a matter of
law, is that the costs to the pursuers of meeting their obligations to the child during her childhood are not re-
coverable 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
 Page 32

of care which was owed to the pursuers by the persons who carried out the procedures in the hospital and
the laboratory.

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

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 admit-
ted to probation. I would dismiss the appeal as to the second named pursuer's claim for solatium. That mat-
ter, 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.

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
[2000] 2 A.C. 59 Page 98

defenders and appellants have challenged the relevancy of the pursuers' averments by way of a preliminary
plea in advance of any proof of the facts. The dispute requires to be resolved on the assumption that the
pursuers' allegations in their pleadings are true and it is on the basis of their present averments alone that
the question of law has to be answered. I turn next to summarise their averments.

In explaining the history of the matter in condescendence 2 the pursuers state that in 1989, when they had
four children, they had agreed that they would have no more children and that the first named pursuer would
undergo a vasectomy operation. They aver that he underwent a vasectomy operation performed by a Mr.
Irving on 16 October 1989. Prior to the operation there had been a discussion with both pursuers about the
subsequent procedures. It was understood that during a period after the operation two samples would be
required to be provided by the first named pursuer in order to ascertain whether any motile sperm were still
evident. The first named pursuer provided samples in January and February 1990. But the pursuers aver that
an analysis relating to the sperm of another patient was erroneously attributed to him, or at least an errone-
ous record was made of an analysis of a sample as having been provided by him on 23 March 1990. By let-
ter dated 23 March 1990 Mr. Irving wrote to the first named pursuer stating "Your sperm counts are now
negative and you may dispense with contraceptive precautions." After receiving the letter the pursuers dis-
pensed with contraceptive precautions. In about September 1991 the second named pursuer became preg-
nant. The pursuers do not aver that they gave to the defenders any particular information about the reason
for the desired vasectomy. They had agreed between themselves that they did not want any more children
and it may be assumed that that was the most that the defenders would know.

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

Finally in condescendence 4 the pursuers set out the detail of the loss, injury and damage which they claim
they have sustained as a result of the defenders' fault and negligence. These fall under two heads. The first
is for the payment to both of them of the sum claimed in the first conclusion. This is a claim for "financial loss
as a consequence of the birth of the said child." It comprises the costs of caring for, feeding, clothing and
maintaining the child and the expenses incurred in the layette. The second claim is, in terms of the second
conclusion, a claim solely by the second named pursuer. It is for solatium for the pain, distress and incon-
 Page 33

venience suffered by her consequent on the pregnancy, confinement and delivery together with some loss of
earnings which she sustained. The loss of earnings is alleged to be as a result of the birth and accordingly
subsequent to it. I understand this claim to relate to a loss of earnings consequent upon the existence of the
child not consequent upon the pregnancy. The joint claim on the other hand is distinct. It is for the costs
which the
[2000] 2 A.C. 59 Page 99

pursuers will require to meet as parents of the child. But while there are two distinct claims made, neverthe-
less 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 as regards the facts, the allegations of fault and the substance of the dam-
ages 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.
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 expec-
tation of the parties which might possibly be of significance. It does not proceed upon any warranty by the
defenders that unprotected intercourse would be safe. Again that may give rise to different issues than those
presently raised. Circumstances may of course occur where a claim for damages may be based either upon
delict or upon contract. Where there is an express or implied term of a contract that particular work will be
performed with all reasonable care there may be no practical difference between the two formulations of the
basis of the claim for damages. But the distinction between cases of breach of contract and cases of delict
may be of significance, and in so far as in contract some special considerations may arise it is as well to note
that the present case is founded purely on negligence and not on contract.

Fourthly, the issue raised in the appeal is strictly not one of the existence of a duty of care on the defenders
towards the pursuers. The defenders admit that certain duties of care were incumbent upon them and it is
accepted that a duty of care was owed by the defenders to the pursuers. Further for the purposes of the de-
bate it may be assumed that the defenders acted in a way which amounted to a breach of the duties which
they owed to the pursuers. The only issue appears then to be one about the existence and extent of loss
which the pursuers have sustained as a result of that breach. That leads immediately to the fifth considera-
tion
[2000] 2 A.C. 59 Page 100

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.
 Page 34

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
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 refer-
ence 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 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 soci-
ety 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. Particu-
larly 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, 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.

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.
[2000] 2 A.C. 59 Page 101

observed in his dissent in Public Health Trust v. Brown, 388 So.2d 1084, 1086: "I am confident that the ma-
jority recognises that any decision based upon a notion of public policy is one about which reasonable per-
sons 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 oc-
casions on which the courts may safely enter so uncertain a territory, at least in 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 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
 Page 35

in Walkin v. South Manchester Health Authority [1995] 1 W.L.R. 1543 where in relation to a claim by a moth-
er 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 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 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 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.
[2000] 2 A.C. 59 Page 102

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 be-
tween the pursuers and the defenders is accepted as one which is sufficiently close as to constitute such a
duty and an obligation to make reparation in the event of a breach of that duty. While in the case of the first
named pursuer, whose only claim is for an economic loss, it may be tempting to approach the problem as
one of the existence of a liability, the second named pursuer has some right of action which can 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 pred-
icated, it seems to me difficult to analyse the claim for maintenance of the child as a particular, and so sepa-
rate, 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 rela-
tion to injuria and 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 rec-
ognise. 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 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 pre-
sented 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 de-
livery, being natural processes did not constitute an injury. But natural as the mechanism may have been the
 Page 36

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
[2000] 2 A.C. 59 Page 103

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 to be offset against like. In this analo-
gous 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 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 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
plaintiff's 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 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."

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
[2000] 2 A.C. 59 Page 104

sufficient basis for rejecting the maintenance claim as not constituting 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
 Page 37

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 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, how-
ever, 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 ac-
count, 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 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 un-
wanted, 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.

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 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 al-
leged 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 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:
[2000] 2 A.C. 59 Page 105
"you 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 unwanted child seems to me to be reasonably a subject for compen-
sation. 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 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 de-
fenders should be held liable for the whole loss suffered by the pursuers without any deduction. That may
seem to be a slightly more attractive proposition than the view that the benefit should altogether outweigh the
loss. But that the pursuers end up with an addition to their family, originally unintended but now, although
unexpected, welcome, and are enabled to have the child maintained while in their custody free of any cost
does not seem to, accord with the idea of restitution or with an award of damages which does justice be-
tween both parties.
 Page 38

The situation in the present case is a peculiar one. Without surrendering the child the pursuers cannot realis-
tically 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 of damages. But while it is per-
fectly reasonable for the pursuers to have accepted the addition to their family, it does not seem to me rea-
sonable 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 al-
legedly 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 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.
[2000] 2 A.C. 59 Page 106

Furthermore, reasonableness includes a consideration of the 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 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 culpabil-
ity has been recognised in the 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 lim-
ited 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 a result of the birth of the child, and the claim by both pursuers for addi-
tional 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 deci-
sion beyond saying that they "considered their family to be complete." It is possible, perhaps likely, that fi-
nancial 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 such considerations were deci-
sive. 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 de-
fenders. The operation was not successful, though it is not alleged that anyone was to blame. Unfortunately,
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
 Page 39

were uneventful, and Catherine is a lovely, healthy, normal baby. She has been accepted into the family with
love and joy.

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
[2000] 2 A.C. 59 Page 107

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 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 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 preg-
nancy 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 their loss by
abortion or adoption. But they deny that the conception and birth of a normal, healthy baby are events capa-
ble 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 re-
versed the decision of the Lord Ordinary and allowed the 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
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 recover-
able for the pain and distress involved as well as for any expenses incurred. The issue,
[2000] 2 A.C. 59 Page 108

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.
 Page 40

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
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 situ-
ation. 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 con-
cerned 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
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 mis-
understanding the American jurisprudence. More recently three English judges (Ognall J. in Jones v. Berk-
shire Area Health Authority, 2 July 1986, Brooke J. in Allen v. Bloomsbury Health Authority [1993] 1 All E.R.
651 and Lloyd L.J. in Gold v. Haringey Health Authority [1988] Q.B. 481) have expressed their personal dis-
quiet at the result. In the United States, where the question is one of state not federal law, the overwhelming
majority of jurisdictions admit the mother's personal claim but reject the parents' claim to the costs involved in
bringing up the child. The courts in Canada and Australia appear to be moving in the same direction. New
Zealand (and Nevada) dismiss both claims. The judgments in favour of rejecting the claim in respect of the
financial consequences of the birth of a healthy baby are heavily dependent on moral sentiments. Judges in
different jurisdictions have described the claim as "morally offensive," "demeaning of the value of human life,"
"simply grotesque," "on the face of it ridiculous," and "preposterous." But few of the appellate decisions have
been unanimous. Many of them contain powerful and persuasive dissenting judgments. Every argument
propounded by the one side has been forcibly refuted by the other, often in the same case. The diversity of
reasoning and the force with which the opposing arguments have been advanced and rebutted attest to the
difficulty of the problem.

I do not think that the solution is to be found in a process of categorisation, whether of the nature of the delict
or the loss in respect of which damages are claimed. It is true that the claims in the present case are brought
under the extended Hedley Byrne principle (Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C.
465). But I agree with my noble and learned friend, Lord Steyn, that it should not matter whether
[2000] 2 A.C. 59 Page 109

the unwanted pregnancy arises from the negligent supply of incorrect information or from the negligent per-
formance of the operation itself. It is also true that the claim for the costs of bringing up Catherine is a claim
in respect of economic loss, and that claims in delict for pure economic loss are with good reason more
tightly controlled than claims in respect of physical loss. But I do not consider that the present question
should depend on whether the economic loss is characterised as pure or consequential. The distinction is
technical and artificial if not actually suspect in the circumstances of the present case, and is to my mind
made irrelevant by the fact that Catherine's conception and birth are the very things that the defenders' pro-
fessional 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 re-
lied 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 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 liabili-
ties. They claim that they have sustained loss by the incurring of an additional liability.
 Page 41

I am also not persuaded by the argument that the remedy is disproportionate to the wrong. True, a vasecto-
my 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 oper-
ation may be out of all proportion to the seriousness of the operation or the condition of the patient which it
was designed to alleviate. I am, however, more impressed by a different though related consideration. I have
no doubt that it would be generally regarded as unacceptable (and probably unethical) for a surgeon to seek
by contract to limit the damages for which he might be liable for his professional negligence. But I suspect
that most people would regard it as reasonable for a surgeon who performed a sterilisation to attempt to ex-
clude 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 op-
eration was both simple and inexpensive.

The reasons why the parents initially sought to avoid childbirth have sometimes been treated as material. I
apprehend that, if material at all, they must be decisive. It will be recollected that Mr. and Mrs. McFarlane
wanted no more children because they "considered their family to be complete." But suppose that they had
been advised not to have any more children because there was a serious risk to Mrs. McFarlane's life or of
the birth of a defective child? The obvious remedy would be to have recourse
[2000] 2 A.C. 59 Page 110

to a lawful termination. But suppose that Mr. and Mrs. McFarlane were strongly opposed to abortion, and
could not in conscience resort to one. Suppose further that, to their great joy and relief, childbirth was une-
ventful and the baby was entirely normal. It would seem to be absurd to allow a claim for the costs of bring-
ing 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.

But if the costs of bringing up the child are to be disallowed in that case and allowed in this, then the distin-
guishing feature must lie in the parents' motivation. I would be reluctant to go down this path. In the first
place, there are more than the two cases to consider. The parents may have sought to guard against the risk
of endangering the mother's life or the birth of a defective child, when presumably recovery would be denied.
They may have agreed to sterilisation because they could not afford another child, when presumably recov-
ery would be allowed. Or they may simply have decided that enough was enough, as in Kealey v. Bere-
zowski, 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 not afford another child?
Or is it to be allowed because they were not motivated by genetic or therapeutic considerations? Neither
principle nor policy indicates the answer.

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

It is unnecessary to consider all the various reasons which have been advanced in the cases for denying
recovery of the child-rearing costs. It is sufficient to examine the two principal grounds upon which such
claims have been dismissed, together with the contrary arguments. First, it is said that the birth of a healthy
baby is not a harm but a blessing. It is "a priceless joy" and "a cause for celebration;" it is "not a matter for
compensation." Secondly, it is said that the costs of bringing up the child are not the result of his birth but of
 Page 42

the parents' deliberate decision to keep the child and not to have an abortion or to place the child for adop-
tion.

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

"a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. Even the courts in
the minority recognise ... that the costs of providing for a child must be offset by

[2000] 2 A.C. 59 Page 111

the benefits supplied by his very existence ... But it is a matter of universally-shared emotion and sentiment
that the intangible but all-important, incalculable but invaluable 'benefits' of parenthood far outweigh any of
the mere monetary burdens involved ... Speaking legally, this may be deemed conclusively presumed by the
fact that a prospective parent does not abort or subsequently place the 'unwanted' child for adoption ... On a
more practical level, the validity of the principle may be tested simply by asking any parent the purchase
price for that particular youngster."

The decision was followed in Cockrum v. 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 counte-
nance it even if it were lawful; while adoption is often not a realistic option. But I am persuaded of the truth of
the general proposition. There is something distasteful, if not morally offensive, in treating the birth of a nor-
mal, healthy child as a matter for compensation.

I cannot accept that the solution lies in requiring the costs of maintaining the child to be offset by the benefits
derived from the child's existence. I agree with Lord McCluskey that the placing of a monetary value on the
birth of a normal and healthy child is "as difficult and unrealistic as it is distasteful." In truth it provides no so-
lution 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 with-
out it. On the other hand, if the court assesses the monetary value of the child at a sum less than the costs of
maintaining him, it will have accepted the unedifying proposition that the child is not worth the cost of looking
after him. Accordingly, I agree with the view of all the judges below that the choice is between allowing no
recovery on the basis that the benefits must be regarded as outweighing any loss, and allowing full recovery
on the basis that the benefits, being incalculable and incommensurable, must be left out of account.

The contention that the birth of a healthy baby is a blessing and not a matter for compensation has been
countered by three main 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:
"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

[2000] 2 A.C. 59 Page 112

the economic damage which is the principal unwanted element, rather than the birth or existence of the child
as such."
 Page 43

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

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

The third argument takes advantage of this very fact. It insists that the parents are the best judges of where
their interests lie. They should not be treated as receiving a benefit when it is one they have deliberately de-
cided to forgo. The point is forcibly put by Pearson J. dissenting in Public 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 (Aus-
tralia) 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."

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 detri-
ment out of a benefit.

I turn next to examine the argument that the costs of bringing up a child are not the result of his birth but of
the parents' deliberate decision to keep him and not have an abortion or place him for adoption. As I have
already mentioned, the defenders do not allege that Mr. and Mrs. McFarlane should have mitigated their loss
by taking either of these steps. Abortion would probably have been unlawful, while adoption is not a realistic
option for parents of four young children who have watched their mother carry a child to full term and learned
of her
[2000] 2 A.C. 59 Page 113

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 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 (Aus-
tralia) 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
 Page 44

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 ordi-
nary commonsense and experience, be regarded as a cause of the ordinary expenses of rearing a child that [its] parent
has chosen to bring up. The plaintiff, having chosen to keep the child in the human way that as I have said I think most
people in the community would approve of, is not entitled to damages for the financial consequences of having made
that difficult but ordinary human choice."

I find the conclusion more attractive than the route by which it is reached. If the parents have a choice, it is
one they should never have been called upon to make. But there is no choice if there is no realistic alterna-
tive. 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 re-
sponsibility and expense of bringing her up. But I cannot accept the proposition that this has broken the
chain of causation. Catherine's conception and birth, and the restoration of the status quo by abortion or
adoption, were the very things that the defenders were engaged to prevent. If conception and birth occurred,
they inevitably had financial consequences. The costs of bringing her up are no more remote than the costs
of an abortion or an adoption would have been. In each case the causal connection is strong, direct and
foreseeable.

Nevertheless I am persuaded that the costs of bringing Catherine up are not recoverable. I accept the thrust
of both the main arguments in favour of dismissing such a claim. In my opinion the law must take the
[2000] 2 A.C. 59 Page 114

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 re-
sponsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But so-
ciety itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do oth-
erwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

This does not answer the question whether the benefits should be taken into account and the claim dis-
missed or left out of account and full recovery allowed. But the answer is to be found in the fact that the ad-
vantages and disadvantages of parenthood are inextricably bound together. This is part of the human condi-
tion. 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 bur-
den. In the mundane transactions of commercial life, the common law does not allow a man to keep goods
delivered to him and refuse to pay for them on the ground that he did not order them. It would be far more
subversive of the mores of society for parents to enjoy the advantages of parenthood while transferring to
others the responsibilities which it entails.

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

It does not, however, follow that Mr. and Mrs. McFarlane should be sent away empty handed. The rejection
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 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 auton-
omy. Their decision to have no more children is one the law should respect and protect. They are entitled to
 Page 45

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 straight-
forward 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 maintain-
ing the baby. But most parents keep such items, bought for their first child, to await the arrival of further chil-
dren. If Mr. and Mrs. McFarlane disposed of them in the belief that they would have no
[2000] 2 A.C. 59 Page 115

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.

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]