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MANU/UKHL/0021/1999

Equivalent Citation: [1999]4All ER961, [1999]UKHL 50

United Kingdom House of Lords

Decided On: 25.11.1999

Appellants: MACFARLANE AND ANOTHER


Vs.
Respondent: TAYSIDE HEALTH BOARD, SCOTLAND

Hon'ble Judges:
Slynn, Steyn, Hope, Clyde and Millett, Lords

JUDGMENT

Lord Slynn of Hadley

My Lords,

The relevant facts in this appeal are very few, the legal issue difficult. The facts are
that Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by 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 defendant. They put Mrs. McFarlane's claim at 10,000 and
their claim as parents at 100,000 for the cost of maintaining the child. It is right to
say at once that despite their claim the respondents have loved and cared for
Catherine as an integral member of the family.

The Lord Ordinary (Lord Gill) 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 unanimously allowed a Reclaiming Motion. They thought that the parties
should be allowed a proof before answer that if they could establish 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 issues of remoteness and (b) allowing no recovery since the value of the child
outweighed the cost of maintenance. Limiting recovery to specific heads of claim which
were not outweighed by the value of having the child was not acceptable, not least
because of the difficulty of valuing the child's existence. His conclusion was that to
allow nothing for the benefits the parents received from having a child was wrong in
principle, at any rate where a healthy child is concerned:

I am of the opinion that this case should be decided on the principle that the
privilege of being a parent is immeasurable in money terms; that the

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benefits of parenthood transcend any patrimonial loss, if it may be so
regarded, that the parents may incur in consequence of the 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." He held that as a matter of
principle damages were not recoverable and that claims could not succeed.

On appeal the Lord Justice Clerk 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 post-natal 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.

Lord McCluskey said:

"'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 invited with a resultant loss to him has a right to
recover money reparation for that loss for the wrongdoer" (page 42).

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" (page 47)."

As to whether the joy to be received from the birth of a child cancelled out pain and
financial loss he said:

"I know of no principle of Scots law that entitles the wrongdoer to say to the
victims of his wrongdoer that they must look to their perspective 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.

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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 understand it accepted that the law of England and that of
Scotland should be the same in respect of the matters which arise on this appeal. It
would be strange even absurd if they were not.

The issues raised in this case - or similar issues arising from other methods of
preventing conception and birth - have arisen in cases before the courts of England
and Scotland for some twenty 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.

Cases in England and Scotland

In Sciuriaga v. Powell (1979) 123 Solicitors Journal 406 a claim for breach of a contract
to terminate pregnancy by abortion, Watkins J. held that the sole reason for the
continuation of the pregnancy was the doctor's breach of contract. He awarded
damages for pain and suffering and for actual and prospective loss of earnings and for
diminution of marriage prospects but he did not award damages for the maintenance of
the child. From the short report of the judgment it does not appear whether he was
asked to do so.

In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098 where a woman's
sterilisation failed, a healthy child was born and a second operation performed. Jupp J.
accepted that the damages for an admitted liability in negligence should include, in
addition to damages for pain and suffering and loss of earnings during pregnancy
(which were conceded), damages for "the disturbance to the family finances" such as
the cost of a layette and increased accommodation for the family. On grounds of public
policy, however, he rejected a claim for the future cost of the child's upbringing to age
sixteen. 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] 1
Q.B. 1012 a sterilisation operation had failed and a child was born with congenital

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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 precluded recovery
of damages for pain and suffering and for maintaining the child. The court took a
multiplier of 8 for a child 5 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] 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.

In Allan 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 advantage 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 derived from bringing a child to
maturity. He accordingly awarded as general and special damages 96,631 including
the cost of maintaining the child until she was 18 and child-minding costs between the
ages of 11 and 14. This judgment was followed by Langley J. in Crouchman v. Burke
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.

In the Scottish case of Allan v. Greater Glasgow Health Board 1998 S.L.T. 580
judgment of 25th November 1993, Lord Cameron of Lochbroom rejected contentions
that public policy considerations prevented a claim for pain and distress of pregnancy
and birth and he awarded damages. He could see no reason why the cost of rearing a
child should not in principle be provided for.

On the other hand I can accept that there matters for which no reparation

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will be given either because they are so intangible as to be virtually
impossible to assess in terms of money, as for instance time and trouble in
bringing up a healthy child (as noted by Kerr L.J. in Thake v. Maurice) or so
remote and speculative as should be ignored, as for instance, the cost of a
wedding as in Allen (page 584). "Either for reject the submission that there
is only a general bar to claiming child costs under the ordinary principles of
law in Scotland pertaining to assessment of damages all their public policy
operates to exclude wholly such costs. The question at the end of the day
must be whether what is sort 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 distress of an unplanned pregnancy and birth and also for the cost of
rearing the child born.

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 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 negligent conduct of someone
purporting to be able to prevent the eventuality of a childbirth" (page 1078)
"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 805 P. 2d. page
603. There the Supreme Court of New Mexico, in a failed sterilisation case, said 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 the trial) and
that this invasion was an injury entitling them to recover damages in the
form of the reasonable expenses to raise Joseph to maturity" (page 612).

They also accepted that damages should generally be awarded for pain and suffering
associated with pregnancy and birth. They stressed that the "'offsetting benefits'"
principle applies only to the reduction of damages or the invasion of the same interest
as the one that has been found" (page 613). Thus emotional benefits could not be set
off against financial detriment arising from the invasion of financial security. The
setting-off of emotional benefits against emotional disadvantages although
theoretically possible should not be allowed since it would lead to unseemly cases and
such litigation was contrary to public policy.

In between these two ends of the spectrum there are cases where the costs of
maintenance have been rejected. Thus in Johnson v. University Hospitals of Cleveland

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(1989) 540 N.E. 2d. 1370 (Ohio) 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 that the limited damages theory was to be adopted partly, as I read it,
because to allow child rearing cost would be to invite

unduly speculative and ethically questionable assessments of such matters


as the emotional effect of a birth on siblings as well as parents and the
emotional as well as the pecuniary costs of raising an unplanned and
perhaps, unwanted child in varying family environments". "The extent of
recoverable damages is limited by 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 F.L.A. A.P.P., (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:

In our view, however, its basic soundness lies in the simple proposition that
a parent cannot be said to have been damaged by the birth and rearing of a
normal, healthy child. . . . It is a matter of universally-shared emotion and
sentiment that the intangible but all-important, incalculable but invaluable
'benefits' of parenthood far outweigh any of the mere monetary burdens
involved. Speaking 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, 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.

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

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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.

The difficulty of these issues is highlighted in C.E.S. v. Superclinics (Ausralia) 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 undertaken. Kirby A.C-J. would have allowed damages both for the pain
and suffering associated with the pregnancy and birth and for the costs of rearing the
child, but he would have off-set the value of the benefits to be derived from the birth
and rearing of the child:

"A set off of nett benefits is something to be assessed by the fact finder in a
case against the nett injury incurred. Each case will depend on its own facts.
Such question can be safely committed to trial judges or juries" (page 77).

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
page 84D:

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 the Common Law of Europe Case books "torts" (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" 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 pages 88-90 of "Torts" 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 Road 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 (see pages 161-164).

From this review it is clear that there is a wide range of opinions to consider. None is
binding on your Lordships and it must be decided which of these approaches is as a
matter of principle to be adopted as a rule of the law of Scotland and England.

My Lords, I do not find real difficulty in deciding the claim for damages in respect of

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the 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 necessary, the wife might become pregnant. It does
not seem to me to be necessary to consider the events of an unwanted conception and
birth in terms of "harm" or "injury" in its ordinary sense of the words. They were
unwanted and known by the Health Board to be unwanted events. The object of the
vasectomy was to prevent them happening. It seems to me that in consequence the
wife, if there was negligence, is entitled by way of general damages to be compensated
for the pain and discomfort and inconvenience of the unwanted pregnancy and birth
and she is also entitled to special damages associated with both - extra medical
expenses, clothes for herself and equipment on the birth of the baby. She does not
claim but in my view in principle she would have been entitled to prove compensation
for loss of earnings due to the pregnancy and birth. It is not contended that the birth
was due to her decision not to have an abortion which broke the chain of causation or
made the damage too remote or was a novus actus interveniens. If it were suggested I
would reject the contention and I see no reason in principle why the wife should not
succeed on this part of the claim.

Whether the parents should be entitled as a matter of principle to recover for the costs
of maintaining the child is a much more difficult question. Logically, the position may
seem to be the same. If she had not conceived because of the Board's negligence there
would not have been a baby and then a child and then a young person to house, to
feed and to educate. I would reject (had it been suggested which it was not) that a
failure to arrange adoption (like an abortion) was a new act which broke the chain of
causation or which made the damage necessarily too remote. There was no legal or
moral duty to arrange an abortion or an adoption of an unplanned child.

The question remains whether as a matter of legal principle the damages should
include, for a child by then loved, loving and fully integrated into the family the cost of
shoes at 14 and a dress at 17 and everything that can reasonably be described as
necessary for the upbringing of the child until the end of school, university,
independence, maturity?

The discussion in the American cases of the "Benefits Rule" to which I have referred
persuades me that it should not be adopted here and it is 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 consortium, loss of a limb or a function. But to do so and to get it
even approximately right if little is known of the baby or its future at the time the
valuation has to be made is very difficult. It may not be impossible to make a rough
assessment of the possible costs of feeding, clothing and even housing a child during
the likely period of the child's life up to the age of 17 or 18 or 25 or for whatever
period a parent is responsible by statute for the support of a child. But even that can
only be rough. To reduce the costs by anything resembling a realistic or reliable figure
for the benefit to the parents is well nigh impossible unless it is assumed that the
benefit of a child must always outweigh the cost which, like many judges in the cases I
have referred to, I am not prepared to assume. Of course there should be joy at the
birth of a healthy child, at the baby's smile and the teenager's enthusiasms but how
can these 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

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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 unplanned conception is hardly a rare
event and it does not follow that if the conception is unwanted the baby when it is born
or the baby as it integrates into the family will not be wanted. Nor do I attach weight
to the argument that if damages claims of this kind are allowed doctors to protect
themselves will encourage late abortions. Such an event is possible but the ethical
standards of the medical profession (coupled with insurance) should be a sufficient
protection in such cases, which ought to be rare if proper care is taken.

The real question raised here is more fundamental. It is to be remembered on this part
of the case that your Lordships are concerned only with liability for economic loss. It is
not enough to say that the loss is foreseeable as I have accepted it is foreseeable.
Indeed if foreseeability is the only test there is no reason why a claim should
necessarily stop at the date when a statutory duty to maintain a child comes to an end.
There is a wider issue to consider. I agree with Mr. Stewart Q.C. (in the article to which
I have referred) that the question is not simply one of the quantification of damages, it
is one of liability, of the extent of the duty of care which is owed to the husband and
wife.

It is to be remembered that in relation to liability the House has recognised that in


respect of economic loss in order to create liability there may have to be a closer link
between the act and the damage than foreseeability provides in order to create
liability. Thus in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 Lord Bridge 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 responsibilities, imposed on or accepted by the parents to bring up a
child. The doctor does not assume responsibility for those economic losses. If a client
wants to be able to recover such costs he or she must do so by an appropriate
contract.

This conclusion is not the result, as it is in some of the American cases of the

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application of "public policy" to a rule which would otherwise produce a different
conclusion; it comes from the inherent limitation of the liability relied on. A line is to be
drawn before such losses are recoverable.

I would accordingly dismiss the Board's appeal in respect of the claim for solatium by
Mrs. McFarlane and her claim for expenses caused directly and immediately by the
pregnancy and birth, including medical expenses (if any) and the costs of the layette,
but I would allow the Board's appeal in respect of the claim for damages in respect of
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, resulting in the birth of a child. There is
the action (if permitted) for "wrongful life" brought by a disadvantaged or disabled
child for damage to himself arising from the fact of his birth. The present case does not
fall within this category. It is what in the literature is called an action for "wrongful
birth." It is an action by parents of an unwanted child for damage resulting to them
from the birth of the child. Secondly, the claim before the House is framed in delict.
Counsel cited observations to the effect that it is immaterial whether such an action is
brought in contract or in delict. The correctness of this assumption may depend on the
nature of the term of the contract alleged to have been breached. 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 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 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 vasectomy operation. On 16
October 1989 a consultant surgeon performed the operation on Mr. McFarlane at a
hospital for which Tayside Health Board is responsible. The operation was carried out

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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 analysed. In January
and February 1990 that was done. On 24 March 1990 the consultant surgeon wrote to
Mr. McFarlane saying "your sperm counts are now negative and you may dispense with
contraceptive precautions." Mr. and Mrs. McFarlane acted on this advice. Nevertheless
in September 1991 Mrs. McFarlane became pregnant. On 6 May 1992 Mrs. McFarlane
gave birth to a healthy daughter, Catherine. Mr. and Mrs. McFarlane love their
daughter and care for her as an integral part of the family.

The Legal Proceedings in Scotland

The parents sued the Tayside Health Board in delict. The claim is divided into two
parts. First, Mrs. McFarlane claimed a sum of 10,000 in respect of pain, suffering
and distress resulting from the unwanted pregnancy. Secondly, Mr. and Mrs. McFarlane
claimed a sum of 100,000 in respect of the financial cost of bringing up Catherine.
The Lord Ordinary (Lord Gill) dismissed the action in respect of both heads of claim:
McFarlane v. Tayside Health Board 1997 S.L.T. 211. 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 pregnancy and childbirth is not a personal injury. The Inner
House 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: McFarlane v. Tayside Health Board, 1998 S.L.T. 307. The court
ruled that the physical and financial consequences of the conception and birth of
Catherine were recoverable heads of damage. The benefits which the parents derive
from Catherine should be left out of account. Relying strongly on a line of decisions in
the English courts, the Inner House held in separate judgments that on conventional
principles there were no ground which negatived the prima facie liability of the health
board.

The Issues

The Statement of Facts and Issues summarised the questions to be considered as


follows:

(i) Are the pursuers entitled to damages?

(ii) Is the 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?

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(v)

Does public policy exclude the pursuers' claims for damages in whole or in part?

(vi)

Does the fact that the pursuers now have, as a result of the alleged negligence, a live
healthy child, disentitle them to damages in whole or in part?

These issues overlap. Different considerations apply to the two heads of claim and it
will be necessary to consider them separately. It will be convenient first to consider the
claim of the parents for the total cost of bringing up Catherine and then to consider the
smaller claim of Mrs. McFarlane for a solatium for pain, suffering and distress resulting
from her pregnancy. It is common ground that in regard to the sustainability in law of
the two heads of claim there are no material differences between the law of Scotland
and the law of England.

The cost of bringing up Catherine

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

The issue [in Emeh] possibly presented as one of deceptive simplicity given
that the claim was by the mother alone: it was held that the compensable
loss extended to any reasonably foreseeable financial loss directly caused by
the unexpected pregnancy. The formulation equates pregnancy with
personal injury giving rise to consequential (as opposed to pure) economic
loss which includes upbringing costs.

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 Paine 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 but I
list them in chronological order: see Thake v. Maurice [1986] 1 Q.B. 644 (C.A.); Gold
v. Haringey Health Authority [1988] 1 Q.B. 481 (C.A.); Benarr & Another 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 (C.A.); Robinson v.
Salford Health Authority [1992] 3 Med. L.R. 270; Fish v. Wilcox [1994] 5 Med. L.R. 230

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(C.A.); Walkin v. South Manchester Health Authority [1995] 1 W.L.R. 1543 (C.A.);
Goodwill v. British Pregnancy Advisory Service [1996] 1 W.L.R. 1397 (C.A.) It is only
necessary to mention one specific matter about those decisions. In Benarr 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 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. Realistically, 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 distinguish between the
claims of the father and mother. This feature of the claim is important. The
development of a new ground of liability, or a new head of such liability, for the
recovery of economic loss must be justified by cogent reasons.

Even before Murphy there was unease among judges about the decision in Emeh. This
was memorably articulated in Jones v. Berkshire Area Health Authority, 2 July 1986,
(unreported), another unwanted pregnancy case. Ognall J. said:

I pause only to observe that, speaking purely personally, it remains a


matter of surprise to me that the law acknowledges an entitlement in a
mother to claim damages for the blessing of a healthy child. Certain it is
that those who are afflicted with a handicapped child or who long
desperately to have a child at all and are denied that good fortune would
regard an award for this sort of contingency with a measure of
astonishment. But there it is: that is the law.

In Gold v. Haringey Health Authority [1998] 1 Q.B. 481, 484G 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 observation."

In the present case your Lordships have had the advantage of considering this issue in
the light of far more analytical and comprehensive arguments from both counsel than
were put before the Court of Appeal in Emeh. 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., op. cit. 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 (1989) 540 N.E. 2d. 1370;
Annotation, 89 A.L.R. 4th 632 (May 1998), passim. In Canada the trend is against such
claims: see Kealey v. Berezowski (1996) 136 D.L.R. (4th) 708, which contains a review
at 724-730. By a majority the New South Wales Court of Appeal in CES v. Superclinics
(Australia) Pty. Ltd. (1995) 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
necessarily have been unlawful. The court ordered a retrial on the issue as to whether
an abortion would have been unlawful. Kirby P. considered that damages could be
awarded for the cost of bringing up the child. Priestley J.A. was prepared to allow a
limited recovery for "wrong birth" but not for child rearing expenses. Meagher J.A.

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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 Authority held that there was
no causal connection between the medical error and the cost of raising the child: Re: Z
[1982] N.Z.A.R. 279, 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 the 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. 11, The Law of Torts: A Comparative Introduction, 3rd ed., (1997), at 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 Mille 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 compensation for the financial consequences of
the birth of the healthy child have sometimes been allowed. It may be that 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 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, 26-27.

I will now eliminate the grounds upon I would not decide against the parents claim for
compensation for financial loss arising from the child's birth. Counsel for the health
authority 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 natural and commendable. It is difficult to envisage any
circumstances in which it would be right to challenge such a decision of the parents.
The starting point is the right of parents to make decisions on family planning and, if
those plans fail, their right to care for 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

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hand, it is inconsistent with many other decisions, notably where limited recovery of
compensation for pain, suffering and distress is allowed. I would not follow this path.
After all, the hypothesis is that the negligence of the surgeon caused the physical
consequences of pain and suffering associated with pregnancy and childbirth. And
every pregnancy involves substantial discomfort and pain. I would therefore reject the
argument of the health authority on this point. In the alternative counsel argued that,
if money spent on Catherine is regarded as a detriment to her parents, it is outweighed
by the many and undisputed benefits which they have derived and will derive from
Catherine. While this factor is relevant in an assessment of the justice of the parents'
claim I do not regard such a 'set off' as the correct legal analysis of the position.

It is possible to view the case simply from the perspective of corrective justice. It
requires somebody who has harmed another without justification to indemnify the
other. On this approach the parents' claim for the cost of bringing up Catherine must
succeed. But one may also approach the case from the vantage point of distributive
justice. It requires a focus on the just distribution of burdens and losses among
members of a society. If the matter is approached in this way, it may become relevant
to ask commuters on the Underground the following question: Should the parents of an
unwanted but healthy child be able to sue the doctor or hospital for compensation
equivalent to the cost of bringing up the child for the years of his or her minority, i.e.
until about 18 years? My Lords, I am firmly of the view that an overwhelming number
of ordinary men and women would answer the question with an emphatic "No." And
the reason for such a response would be an inarticulate premise as to what is morally
acceptable and what is not. Like Ognall J. in Jones v. Berkshire Area Health Authority
(unreported) 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 remedies consequent up 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 reasonable restitution is to resort to unrealistic and formalistic propositions
which mask the real reasons for the decisions. And judges ought to strive to give the
real reasons for their decision. It is my firm conviction that where courts of law have
denied a remedy for the cost of bringing up an unwanted child the real reasons have
been grounds of distributive justice. That is, of course, a moral theory. It may be
objected that the House must act like a court of law and not like a court of morals.
That would only be partly right. The court must apply positive law. But judges' sense of
the moral answer to a question, or the justice of the case, has been one of the great
shaping forces of the common law. What may count in a situation of difficulty and
uncertainty is not the subjective view of the judge but what he reasonably believes
that the ordinary citizen would regard as right. Two recent illustrations of the relevance
of the moral dimension in the development of the law illustrate the point. In Smith
New Court Securities Ltd. v. Scrimgeour Vickers (Asset Management) Ltd. [1997] A.C.
254 the House differentiated between the measure of damages for fraudulent and
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 innocent party, moral
considerations militate in favour of requiring the fraudster to bear the risk of

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misfortunes directly caused by the fraud: at 280B-C. In Frost v. Chief Constable of
South Yorkshire Police [1998] 3 W.L.R. 1509 the police officers claimed compensation
for psychiatric loss they sustained as a result of the Hillsborough disaster. By a
majority the House ruled against the claim. The principal theme of the judgments of
the majority was based on considerations of distributive justice. In separate judgments
Lord Hoffmann and I reasoned that it would be morally unacceptable if the law denied
a remedy to bereaved relatives as happened in Alcock v. Chief Constable of South
Yorkshire Police [1992] 1 A.C. 310 but granted it to police officers who were on duty.
Lord Hoffmann expressly invoked considerations of distributive justice: at 1530H-
1551B. Lord Browne-Wilkinson and I expressed agreement with this reasoning. In my
judgment I observed (at 1545G). "The claim of the police officers on our sympathy and
the justice of their 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 quick sands. Relying on principles of
distributive justice I am persuaded that our tort law does not permit parents of a
healthy unwanted child to claim the costs of bringing up the child from a health
authority or 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] 1 Q.B. 1166. Given
this position, which also prevails in Australia, Trinidade and Cane (The Law of Torts in
Australia, 3rd ed., 434) observe: ". . . it might seem inconsistent to allow a claim by
the parents while that of the child, whether healthy or disabled, is rejected. Surely the
parents' claim is equally repugnant to ideas of the sanctity and value of human life and
rests, like that of the child, on a comparison between a situation where a human being
exists and one where it does not." In my view this reasoning is sound. Coherence and
rationality demand that the claim by the parents should also be rejected.

Two supplementary points remain to be mentioned. First, I have taken into account
that the claim in the present case is based on an assumption of responsibility by the
doctor who gave negligent advice. But in regard to 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 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 authority was inclined to concede that in the case of an
unwanted child, who was born seriously disabled, the rule may have to be different.
There may be force in this concession but it does not arise in the present appeal and it
ought to await decision where the focus is on such cases.

I would hold that the Inner House erred in ruling that Mr. and Mrs. McFarlane are
entitled in principle to recover the costs of bringing up Catherine.

The claim for pain, suffering and distress

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

For the reasons I have given I would uphold the decision of the Inner House on this
part of the claim.

The disposal of the appeal

I would allow the appeal on the cost of bringing up Catherine and dismiss the appeal
on the claim for a solatium by Mrs. McFarlane.

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, 8357 vasectomies and 7871 female sterilisations were carried out in
Scotland. In most cases the operation is successful, but occasionally there are
difficulties. In the case of a vasectomy, spontaneous recanalisation can occur with the
result that the man regains his fertility. For this reason tests need to be carried out for
a period after the operation to ensure that the procedure has been successful. During
this period samples of sperm are analysed to determine whether active sperm are still
present in the man's semen. Patients are advised to continue with contraceptive
precautions until the sperm counts have been analysed and found to be negative.

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 competence which is reasonably to
be expected of them. But difficult questions of law arise, should a child be born
following the sterilisation procedures, as to the extent of their liability to the parents of
the child in damages.

The Issues in this Case

How difficult these questions are is well demonstrated by the decisions which the

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judges in the Court of Session have reached in this case. The pursuers claim that they
have suffered loss, injury and damage as a result of mistaken advice following the first
named pursuer's vasectomy. They aver that they received advice that the sperm
counts following analysis of 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, held that the pursuers were not entitled to any damages:
1997 S.L.T. 211. He dismissed the pursuers' action on the ground that their averments
were irrelevant. The Second Division (the Lord Justice Clerk (Cullen) and Lords
McCluskey and Allanbridge) recalled the Lord Ordinary's interlocutor and allowed the
pursuers a proof before answer on both parts of their claim: 1998 S.L.T. 307. The
question which is before your Lordships in this appeal is, as my noble and learned
friend Lord Steyn has observed, one of principle. It is whether and, if so, to what
extent the pursuers are entitled in these circumstances to damages.

The decisions of the Lord Ordinary and of their Lordships of the Second Division were
at the opposite ends of the spectrum on this issue. The Lord Ordinary said that the
case should be decided on the principle that the privilege of being a parent is
immeasurable in monetary terms and transcended any patrimonial loss that might be
incurred in 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 injuria, the law recognises a legal interest
which must be made good by an award of damages. Applying this principle and on the
ground that there was no overriding objection on the ground of public policy, the
claims for the physical effects of the pregnancy and childbirth and for the child rearing
costs were both held to be admissible. This all or nothing approach is reflected in the
pleadings and, for the most part, it was also reflected in the positions which each side
adopted in the course of the argument. But there is a substantial body of jurisprudence
in other jurisdictions which 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 period. The claim as
presented appears to be a straightforward claim by her for solatium. It is analogous to
that which may be made by a pursuer in a case of personal injury. In her case the
claim is for the physical consequences to her of the implantation of semen within her
fertile body by her husband whom both parties believed to be sterile. The other claim,
which both pursuers make, is for the financial 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

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damage which she suffered 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 after the
delivery. This seems to me to raise difficult questions of principle which are best
considered separately.

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
defender's 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 grounds must be rejected, as this is an area of family life in which freedom of
choice may properly be exercised. The processes of sterilisation are readily available in
our hospitals to those who wish to make use of them. It seems to me that there is no
reason in principle why the law should not give damages where the conception was due
to the surgeon's negligence or to negligence on the part of those responsible for the
tests in the laboratory.

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 Q.C. 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 previously endured pain and suffering. The fact is that
pregnancy and childbirth involve changes to the body which may cause, in varying
degrees, discomfort, inconvenience, distress and pain. Solatium is due for the pain and
suffering which was experienced during that period. And the fact that these
consequences flow naturally from the negligently-caused conception which has
preceded them does not 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 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

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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 eleven 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 ante-natal suffering should be extinguished by
the happiness of the post-natal events. The Court of Appeal upheld her claim for the
discomfort and pain of pregnancy and delivery when these had occurred normally and
without adverse incidents. In Allen v. Bloomsbury Health Authority [1993] 1 All E.R.
651, where the hospital negligently failed to diagnose that the mother was pregnant at
the time of her operation for sterilisation and she would have terminated the
pregnancy if it had been diagnosed at that time, Brooke J. held at p. 657C that the
mother was entitled to recover general damages for the discomfort and pain associated
with the continuation of her pregnancy and the delivery of her child, after setting off
the benefit of avoiding the termination of the pregnancy.

In Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 584F Lord Cameron of
Lochbroom rejected the submission that there were public policy considerations
repugnant to an award of damages for the pain, distress and suffering associated with
a normal pregnancy and the physical act of giving birth and for further incidental
damages associated with the pregnancy and birth. Of the various Commonwealth and
United States cases which I shall examine in the next chapter, mention need only be
made here of Kealey v. Berezowski (1996) 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, (1986) 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, at p. 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 legally
compensable injurious consequence even if the birth is partially attributable
to the negligent conduct of someone purporting to be able to prevent the

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eventuality of childbirth.

On this basis the Nevada court held that the constituent elements of a tort were not
present and that tort actions for the birth of a normal child should be disallowed. But
the reasoning in the South African court on this 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 recognised by law and that he did not find attractive the proposition that the
birth of a normal child is a blessing which cannot constitute a wrong. The Nevada
decision is out of line with all the other American cases and the South African decision
depends on a strict application of the rule as to the damages recoverable in contract
which has no part in our law relating to delictual liability for negligence.

I would therefore affirm the decision of the Second Division on this 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, unreasonable 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 Q.C. 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 considered as to its admissibility.

Mr. Campbell said that the proposition which lay at the heart of the defenders'
argument that damages for the cost of rearing the child were not recoverable was that
the defenders' negligence had not caused harm to the pursuers. He submitted that it
did not follow from the fact that the pursuers did not want to incur this expense that it
was recoverable. He said that the child was not herself a harmful event, that she was
not productive of harm. She had been accepted willingly and lovingly into the family.
She was an unplanned but no longer an unwanted child. The exercise of placing a
value on the child in order to offset the 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 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

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question of them seeking an abortion and it would have been unthinkable for them to
have put her out for adoption once she had been born. The correct focus should be on
the position in which they had been placed financially as a result of the conception
which occurred due to the defenders' negligence.

Differing views as to the result of the weight to be attached to these arguments are to
be found in the authorities. There has been, after an initial decision to the contrary, a
consistent line of authority, both in England and in Scotland, to the effect that the
costs of child rearing are recoverable. Some support for that view is to be found in the
Commonwealth and American cases, but there is substantial support for limiting
damages to the mother's claim and excluding all claims relating to the cost of the
child's upbringing.

The starting point for a review of the English and Scottish cases is Udale v. Bloomsbury
Area Health Authority [1983] 1 W.L.R. 1098. In that case Jupp J. held that, while the
plaintiff could recover damages for her pain and suffering and for disruption to the
family finances and the cost of the layette caused by the unexpected pregnancy, the
costs arising from the coming into the world of a healthy, normal child were not
recoverable. He reached this view on an examination of various considerations of
public policy. But in Emeh v. Kensington and Chelsea and Westminster Area Health
Authority [1985] Q.B. 1012 the Court of Appeal held that it was not contrary to public
policy for the plaintiffs to recover damages for the birth of a child. This decision was
applied by the Court of Appeal in Thake v. Maurice [1986] Q.B. 644. In Benarr v.
Kettering Health Authority (1988) 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 Anderson v. Forth Valley Health Board, 1998 S.L.T. 588
Lord Nimmo Smith disagreed with the Lord Ordinary's decision in the present case. He
followed Emeh and Lord Cameron of Lochbroom's decision in Anderson.

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 (unreported ), 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 Authority [1993] 1 All E.R. 651, 662D-F
Brooke J. also expressed some misgivings about this line of authority. He pointed out
that contemporary 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:

If an unplanned child is born after a failure by a hospital doctor to exercise


the standard of care reasonably to be expected of him and the child's
parents have sent all their other children to expensive private boarding
schools for the whole of their education then it appears to me that as the
law now stands a very substantial claim for the cost of private education of
a healthy child of a reasonably wealthy family might have to be met from
the funds of the health 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

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unless and until Parliament intervenes.

It seems to me that, despite Mrs. Smith's assurance that the claim in the present case
is a modest one, it is necessary to face up to the problem which Brooke J. identified in
Allen's case. 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 education
were not available or to adopt an itinerant lifestyle. It is not difficult to see that in such
cases a very substantial award of damages might have to be made for the child's
upbringing. Awards on that scale would be bound to raise questions as to whether it
was right for the negligent performance of a voluntary and comparatively minor
operation, undertaken for the perfectly proper and understandable purpose of enabling
couples to dispense with contraceptive measures and to have unprotected intercourse
without having children, to expose the doctors and on their behalf the relevant health
authority, to a liability on that scale in damages. It might well be thought that the
extent of the liability was disproportionate to the duties which were undertaken and,
consequently, to the extent of the negligence.

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 and by the Lord Ordinary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The particular damage sustained in this case is an unplanned and undesired


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

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

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

Their Lordships consider that some limit or control mechanism has to be


imposed upon the liability of a wrongdoer towards those who have suffered
economic damage in consequence of his negligence.

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

What emerges is that, in addition to the foreseeability of damage, necessary


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

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

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

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

... 'proximity' in cases such as this is an expression used not necessarily as


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

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

In the straightforward case of the direct infliction of physical injury by the


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

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

How is one to apply these very general and necessarily imprecise, principles to the

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

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

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

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

Conclusion

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

LORD CLYDE

My Lords,

The pursuers and respondents are the parents of five children. They are claiming

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

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

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

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

Before going any further it may be useful to highlight some particular features of the
present case which may serve to identify some limits both as regards the facts, the
allegations of fault and the substance of the damages claimed on which the present

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claim proceeds. In that connection five observations may be made at this stage
relating to the scope of the problem.

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

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

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

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

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 reference
to considerations of policy. In the present context at least, what are referred to as
policy considerations include elements of what may be seen as ethical or moral
considerations. But whatever the label used to identify or describe them I am not

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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 society and of the propriety of
adopting methods of contraception including those involving a treatment designed to
achieve a permanent solution, reflects the recognition that unlimited child-bearing is
not necessarily a blessing and the propriety of imposing a liability on those who
negligently provide such a treatment. Particularly where consideration of public policy
can be invoked by both sides to the dispute, it seems to me that to proceed upon such
a ground is unlikely to lead to any confident solution.

Furthermore while it is comforting to be able to affirm that one can see no policy
reasons for not allowing a claim such as the present to succeed, 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 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 of it you never
know where it will carry you." As Pearson J. observed in his dissent in Public Health
Trust v. Brown (1980) 388 So. 1084, 1086 "I am confident that the majority
recognises that any decision based upon notions of public policy is one about which
reasonable persons may disagree." In In re Mirams [1891] 1 Q.B. 594, 595, Cave J.
observed that judges should be "trusted [more] as interpreters of the law than as
expounders of what is called public policy." While there may be occasions on which the
courts may safely enter so uncertain a territory, at least in the circumstances of the
present case I do not consider that it is useful in the present case 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 Pain J. in Thake v. Maurice [1986] 1 Q.B. 644 and not explored in that
case on appeal. In Emeh v. Kensington and Chelsea and Westminster Area Health
Authority [1985] 1 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] 1 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. In the careful analysis of
the law which was made by Brooke J. in Allen v. Bloomsbury Health Authority [1993] 1
All E.R. 132 the possible problem of allowing both a claim for personal injuries and a

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claim for purely economic loss was raised. That issue was put at rest in Walkin v.
South Manchester Health Authority [1995] 1 W.L.R. 1543 where in relation to a claim
by a mother following on an unsuccessful sterilisation operation the court held that
there was only one cause of action and that cause of action was for damages
consisting of or including damages in respect of personal injury for the purposes of
section 11(1) of the Limitation Act 1980. While English practice clearly admits claims
for damages for unwanted pregnancies and allows the damages to include the cost of
maintenance of the child it appears that matter has been allowed to develop
undeterred by considerations of policy. In the present case the Inner House similarly
found no over-riding 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.

My Lords, I hesitate to adopt such an approach in the present case. As I have already
noted, the issue raised in the appeal is not properly one of the existence or non-
existence of a duty of care. The relationship between the pursuers and the defenders is
accepted as one which is sufficiently close as to constitute such a duty and an
obligation to make reparation in the event of a breach of that duty. While in the case of
the first named pursuer, whose only claim is for an economic loss, it may be tempting
to approach the problem as one of the existence of a liability, the second named
pursuer has some right of action which can be more readily recognised and I would be
prepared to accept that there should be an obligation on the defenders to make
reparation to her. The obligation to make reparation is, to use the words of Lord Keith
of Kinkel in Dunlop v. McGowans, 1980 S.L.T. 129, 133, "single and indivisible." So
also is the ground of action on which the respective claims of the pursuers proceed.
Once the obligation to make reparation for some loss is predicated, it seems to me
difficult to analyse the claim for maintenance of the child as a particular and so
separate, obligation. Considerations of remoteness and conversely of proximity, can
arise in different ways both in the context of the liability for wrongdoing and in the
context of the damages to which the person suffering the wrong may be entitled. It
seems to me desirable to preserve the distinction between remoteness in relation to
iniuria 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 recognise. The extreme position advanced by the appellants is to
the effect that there has not been any loss sustained by the pursuers. That was at the
heart of their submission in the Inner House and it was with that issue that the court
was principally concerned. One approach here is to question whether the quantification
of any loss involves such speculation and uncertainty as to be beyond the ability of the
court and so for that reason to be inadmissible. But there can be no particular problem
so far as the second named pursuer's claim is concerned. The assessment of solatium
for the pain, inconvenience and discomfort of pregnancy and the event of a birth is

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plainly something which the courts can undertake albeit necessarily on a broad basis.
Her particular patrimonial losses are also readily open to quantification. The argument
may be at its strongest in relation to the maintenance claim. But the short answer to
any argument on the impracticability of quantifying that head of loss is that courts
have managed to do just that without any evident difficulty, but with a due recognition
of the imponderable elements involved. The assessment of a claim such as is
presented in the present case is both practicable and practised.

So far as the solatium claim was concerned the Lord Ordinary held that the pregnancy,
confinement and delivery, being natural processes did not constitute an injury. But
natural as the mechanism may have been the 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 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 themselves 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 analogous context of endeavouring to cancel
out the maintenance claim one would still expect economic gain to be set off by
economic loss. It may be that the benefit which a child represents to his or her parent
is open to quantification, but there is no principle under which the law recognises such
a set off. A parent's claim for the death of a child is not offset by the saving in
maintenance costs 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 (1996) 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, he 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.

He 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 Ashley's 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

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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 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 a matter of public
policy to be imposed on the parents that he would, as it appears, allow only an inability
to meet those obligations caused by the alleged negligence to enable a compensable
loss to arise. As I have already stated, I do not find a sufficiently secure basis in public
policy to lead to a confident solution in the present case. The reality is that there has
been and will be an expenditure of money on maintenance. The pursuers claim that
they are required to spend more money than they would otherwise have 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, however,
found the causal link with the maintenance claim far more doubtful. I have similar
difficulties with the claim by the second named pursuer in respect of a loss of earnings
following the birth of the child, on account, perhaps, of her having to give up her
employment in order to look after the child. There are several successive stages from
the allegedly negligent advice before one reaches the incurring of the maintenance
costs; the intercourse without protection, the conception of the child, the carrying of
the child to her birth and the acceptance of the baby as a further member of the family
with all the obligations towards her which parenthood involves. The cost of the
maintenance of the child seems to me to be a loss near the limits of the causal chain.
But it cannot be reasonably suggested that the chain was broken by any novus actus
on the part of the pursuers. The decision to keep the child, to accept into the family a
baby who was originally unwanted, cannot rank as an acting on the part of the
pursuers sufficient to break the causal chain. It seems to me that a sufficient causal
connection can be made out.

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 alleged
wrong.

It appears to me that the solution to the problem posed in the appeal with regard to
the maintenance claim should be found by consideration of 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. The Rawyards Coal Co. (1880) 5 App. Cas. 25, 39:

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

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

The situation in the present case is a peculiar one. Without surrendering the child the
pursuers cannot realistically be returned to the same position as they would have been
in had they not sustained the alleged wrong. But it cannot reasonably be claimed that
they should have surrendered the child, as by adoption or, far less, by abortion, so as
to achieve some kind of approximation to the previous situation, even if such courses
were available or practicable. There is no issue here of mitigation of damages. But
while it is perfectly reasonable for the pursuers to have accepted the addition to their
family, it does not seem to me reasonable that they should in effect be relieved of the
financial obligations of caring for their child. That seems to me to be going beyond
what should constitute a reasonable restitution for the wrong done.

The restitution which the law requires is a reasonable restitution. As was recognised in
Allan v. Greater Glasgow Health Board, 1998 S.L.T. 580, 585 the eventual question is
"whether what is sought by way of reparation can be regarded as reasonable having in
mind the particular circumstances of the particular case." In the present case we are
concerned critically with a claim for an economic loss following upon allegedly negligent
advice. In such a context I would consider it appropriate to have regard to the extent
of the liability which the defenders could reasonably have thought they 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.

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

(1988) 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

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present to accept that there would be any reasonable relationship between the fault
and the claim such as would accord with the idea of restitution. That the expense of
child rearing would be wholly disproportionate to the doctor's culpability has been
recognised in the American jurisprudence as one factor supporting the rule of limited
damages (See Johnson v. University Hospitals of Cleveland (1989) 540 N.E. 2d. 1370,
1375-1376). The solution of allowing limited damages has received considerable
support in America and I consider that that solution provides the proper measure of
restitution in the circumstances of the present case.

I would accordingly allow the appeal to the extent of excluding from probation the
claim for any loss of wages by the second named pursuer as a result of the birth of the
child and the claim by both pursuers for additional costs in caring for, feeding and
clothing and maintaining the child and the expenses in the layette. That leaves solely
the claim by the second named pursuer for solatium and on that a proof before answer
should be allowed.

LORD MILLETT

My Lords,

Mr. and Mrs. McFarlane had four young children. They decided not to have any more
and Mr. McFarlane agreed to have a vasectomy. They have not explained the reasons
for their decision beyond saying that they "considered their family to be complete." It
is possible, perhaps likely, that financial considerations played a part, especially since
they had already decided to move to a bigger house and take on increased financial
commitments; but it cannot be assumed that such considerations were decisive. In any
case, Mrs. McFarlane's reasons may not have been the same as her husband's; she
may simply have felt that four children were enough for her to look after.

The operation was carried out under the National Health Service at a hospital under the
control of the defenders. The operation was not successful, though it is not alleged that
anyone was to blame. 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 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 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

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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 per Lord Hoffmann at p.
214. The defenders do not admit that they were negligent - this issue remains to be
tried - but they rightly concede that Mrs. McFarlane's pregnancy and Catherine's birth
were the direct and foreseeable consequences of the information being wrong.
Causation is not in issue. They do not allege that Mr. and Mrs. McFarlane should have
mitigated their loss by abortion or adoption. But they deny that the conception and
birth of a normal, healthy baby are events capable of giving rise to a claim in damages.

The Lord Ordinary dismissed the action. He held that neither head of claim was
maintainable. He rejected Mrs. McFarlane's personal claim on the ground that normal
pregnancy and childbirth are natural processes and cannot properly be treated as if
they were personal injuries. He rejected Mr. and Mrs. McFarlane's joint claim for the
cost of bringing up Catherine on the ground that the birth of a normal, healthy baby is
not a harm but a blessing. He expressed the view that the privilege of parenthood is
immeasurable in monetary terms and transcends any financial loss involved in bringing
up the child. The Inner House unanimously reversed the decision of the Lord Ordinary
and allowed the 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 recoverable for the pain and distress
involved as well as for any expenses incurred. The issue, therefore, is not whether
Catherine's birth was a legal harm or injury, that is to say, whether the pursuers have
a completed cause of action, but whether the particular heads of damage claimed and
in particular the costs of maintaining Catherine throughout her childhood, are
recoverable in law.

The admission of a novel head of damages is not solely a question of principle.


Limitations on the scope of legal liability arise from legal policy, which is to say "our
more or less inadequately expressed ideas of what justice demands" (see Prosser &
Keeton Law of Torts 5th ed. (1984), p. 264). This is the case whether the question
concerns the admission of a new head of damages or the admission of a duty of care in
a new situation. Legal policy in this sense is not the same as public policy, even though
moral considerations may play a part in both. The court is engaged in a search for
justice and this demands that the dispute be resolved in a way which is fair and
reasonable and accords with ordinary notions of what is fit and proper. It is also
concerned to maintain the coherence of the law and the avoidance of inappropriate
distinctions if injustice is to be avoided in other cases.

My noble and learned friend Lord Steyn has summarised the common law
jurisprudence on the subject of unwanted pregnancies. As he has explained, the Court
of Appeal in England has admitted both heads of claim, ruling that there is no ground
of public policy to override ordinary principles which would lead to full recovery. This

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conclusion was reached only after a difference of view at first instance and as a result
of misunderstanding the American jurisprudence. More recently three English judges
(Ognall J., Brooke J. and Lloyd L.J.) have expressed their personal disquiet at the
result. In the United States, where the question is one of state not federal law, the
overwhelming majority of jurisdictions admit the mother's personal claim but reject the
parents' claim to the costs involved in bringing up the child. The courts in Canada and
Australia appear to be moving in the same direction. New Zealand (and Nevada)
dismiss both claims. The judgments in favour of rejecting the claim in respect of the
financial consequences of the birth of a healthy baby are heavily dependent on moral
sentiments. Judges in different jurisdictions have described the claim as "morally
offensive," "demeaning of the value of human life," "simply grotesque," "on the face of
it ridiculous," and "preposterous." But few of the appellate decisions have been
unanimous. Many of them contain powerful and persuasive dissenting judgments.
Every argument propounded by the one side has been forcibly refuted by the other,
often in the same case. The diversity of reasoning and the force with which the
opposing arguments have been advanced and rebutted attest to the difficulty of the
problem.

I do not think that the solution is to be found in a process of categorisation, whether of


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

I am not persuaded by the reasoning of Lax J. in Kealey v. Berezowski (1996) 136


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

I am also not persuaded by the argument that the remedy is disproportionate to the
wrong. True, a vasectomy is a minor operation, while the costs of bringing up a child
may be very large indeed, especially if they extend to the costs of a private education.
But it is a commonplace that the harm caused by a botched operation may be out of all
proportion to the seriousness of the operation or the condition of the patient which it
was designed to alleviate. I am, however, more impressed by a different though
related consideration. I have no doubt that it would be generally regarded as

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unacceptable (and probably unethical) for a surgeon to seek by contract to limit the
damages for which he might be liable for his professional negligence. But I suspect that
most people would regard it as reasonable for a surgeon who performed a sterilisation
to attempt to exclude liability for the costs of bringing up a child whose birth he
negligently failed to prevent. People would instinctively feel that there was a difference
even though they might have difficulty in articulating it. But they would surely dismiss
as irrelevant the facts that in the latter case the loss was purely financial or that the
operation was both simple and inexpensive.

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

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

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

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

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have an abortion or to place the child for adoption.

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

. . . a parent cannot be said to have been damaged by the birth and rearing
of a normal, healthy child. Even the courts in the minority recognise . . .
that the costs of providing for a child must be offset by the benefits supplied
by his very existence. But it is a matter of universally-shared emotion and
sentiment that the intangible but all-important, incalculable but invaluable,
'benefits' of parenthood far outweigh any of the mere monetary burdens
involved. Speaking legally, this may be deemed conclusively presumed by
the fact that a prospective parent does not abort or subsequently place the
'unwanted' child for adoption. On a more practical level, the validity of the
principle may be tested simply by asking any parent the purchase price for
that particular youngster.

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

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

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

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

In most such cases, it was not the child as revealed which was unwanted.
Nor is the child's existence the damage in the action. The birth of the child is

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simply the occasion by which the negligence of the respondents manifests
itself in the economic injury to the parents. It is the economic damage which
is the principal unwanted element, rather than the birth or existence of the
child as such.

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

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

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

. . . [t]here is a bitter irony in the rule of law announced by the majority. A


person who has decided that the economic or other realities of life far
outweigh the benefits of parenthood is told by the majority that the opposite
is true.

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

I turn next to examine the argument that the costs of bringing up a child are not the
result of his birth but of the parents' deliberate decision to keep him and not have an
abortion or place him for adoption. As I have already mentioned, the defenders do not
allege that Mr. and Mrs. McFarlane should have mitigated their loss by taking either of
these steps. Abortion would probably have been unlawful, while adoption is not a
realistic option for parents of four young children who have watched their mother carry
a child to full term and learned of her safe delivery. Are they to be told that their
parents have given their little sister away because they cannot afford to keep her? But
I would go further. I regard the proposition that it is unreasonable for parents not to

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have an abortion or place a child for adoption as far more repugnant than the
characterisation of the birth of a healthy and normal child as a detriment. I agree with
Slade L.J. in Emeh v. Kensington and Chelsea and Westminster Area Health Authority
[1985] 1 Q.B. 1012, 1024 that save in the most exceptional circumstances (which it is
very hard to imagine) it can never be unreasonable for parents or prospective parents
to decline to terminate a pregnancy or to place the child for adoption.

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

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

"Putting the matter another way, in my opinion,. . . the defendant's


negligence should not, as a matter of ordinary commonsense and
experience, be regarded as a cause of the ordinary expenses of rearing a
child that [its] parent has chosen to bring up.

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

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

Nevertheless I am persuaded that the costs of bringing Catherine up are not


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

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morally offensive to regard a normal, healthy baby as more trouble and expense than
it is worth.

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

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

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

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

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

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