WHAT’S YOUR VIEW, GOOD OR BAD JUDGMENT :
McFARLANE & ANOTHER -V- TAYSIDE HEATLH
BOARD (Scotland)
Facts of the case.
Here are the facts of the case. Mr M
underwent a vasectomy operation on 16th
October 1989. He was subsequently told by
the Hospital, that his sperm counts were
negative. (That was bad advice and
negligent). He commenced intercourse without
using contraception and in September 1991
his wife became pregnant and gave birth on
6th May 1992, to their fifth child.
Their Claim.
An action for clinical negligence was
brought against Tayside Health Board for the
following:-
1. Compensation for the pain and distress
from the pregnancy and birth endured by Mrs
M (which they value at £10,000)
and;
2. Costs which they have and will incur
bringing up their child (which was assessed
at £100,000)
It goes without saying that the child
(Catherine) is loved and cared for as an
integral family member, despite the claim
being brought by the respondents (as they
are called).
The Appellants (Tayside Health Board)
reply.
Nothing should be awarded by way of
compensation. One of the arguments was that
to allow compensation, would risk such
children learning that their birth was not
wanted and that it was an undesirable
psychological consequence.
Good luck to the Scots or is this of
wider implication?
Although the Judgments referred to the
Law of Scotland, it is accepted that as it
was heard by the highest Court, the Court
ruling would have the same effect on English
Law.
The first hearing was before a Single
Judge, who dismissed the family’s claim. The
view was that the pregnancy cannot be
EQUIPARATED (we think he means categorised)
as a physical injury: even if it could, it
was not an injury for which compensation was
recoverable. The existence of the child and
the mother’s happiness derived from it,
could not be ignored. They outweighed the
pain and discomfort that she bore. As to an
award for rearing the child, the choice was
between allowing full recovery or allowing
no recovery (because the value of the child
outweighed the cost of maintenance). He did
not think it was an option to award some
compensation for certain items, and not for
others. Here is what he said:-
“I am of the opinion that this case
should be decided upon the principle
that the privilege of being a parent is
immeasurable in money terms; that the
benefits of parenthood transcend any
patrimonial loss, if it may be so
regarded, that the parents may incur in
consequence of 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.”
As a matter of principle therefore,
compensation was not recoverable. He went on
to add that if the benefits to the parents
do not extinguish their claim for
compensation, then certainly the benefits
they gain would extinguish any claim for
costs of bringing up the child. Any other
ruling would give them more than
compensation. The claim should not succeed.
The parents Appealed and on Appeal their
claim was successful. Tayside Appealed to
the House of Lords.
How has the matter been dealt with over
the years and in other countries?
The issues have arisen in the United
States, Commonwealth countries and European
states. There was no single universally
applied test. In some cases nothing was
recovered, in others something, but not all
was given.
The trend in English and Scottish cases
(whether it was for a failed sterilisation
or vasectomy) was towards awarding
compensation for both the pain and distress
of an unplanned pregnancy, leading to a
birth and also for the costs of bringing up
the child.
In the United States of America the
approach has varied widely, from no award,
to full award. Certainly there were claims
where no award was made for brining up the
child because to do otherwise would invite
“unduly speculative and ethically
questionable assessments of such matters
and 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.”
In Ohio, the birth of a normal, healthy
child cannot be an injury to the parents and
therefore compensation was limited.
In a case in the Supreme Court of Florida
the majority of the Judges refused the costs
of bringing up a child on the basis 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 . . . . .
.”
The majority of States followed that
approach of excluding the costs of bringing
up a child. Some, however, opt for setting
off against the costs of brining up the
child, the joys of being a parent, such that
the costs of bringing up the child is
reduced to take into account those benefits
and is described as:-
“. . . . .at best a moral attempt to
do justice in an imperfect world. . . .
.”
In the Commonwealth countries the
position is perhaps summed up by the
following:-
“A set off of net benefits is
something to be assessed by the fact
finder in the case against the net
injury incurred. Each case will depend
on its own facts. Such question can be
safely committed to trial Judges or
Juries.”
In other European states, such as France,
Germany and Holland again, different Courts
have taken different views on the legal and
ethical issues. The Law is still developing
and there is no universal and clear
approach.
What are we left with, having looked at
the various jurisdictions?
There was a wide range of opinions and
approaches varied considerably.
Which stance would you prefer from the
Judgment given by different Judges in the
House of Lords?
It was foreseeable by the Health Board
that if the operation did not succeed and
the husband was told that contraceptive
measures were not necessary, his wife might
become pregnant. The conception and giving
birth, should not be looked as “harm” or
“injury”. They were unwanted events. If the
wife became pregnant and there was
negligence, she should be entitled to
compensation for the pain, discomfort and
inconvenience of the unwanted pregnancy and
birth. She should also be entitled to the
costs and expenses ~ including the medical
expenses, clothes for herself and equipment
on the birth of the child. (Although not
claimed in this case, she should be entitled
to establish that she made a loss of
earnings, due to the pregnancy and birth).
But what of the costs of bringing up the
child?
This is much more of a difficult point.
Should the compensation be included for
bringing up a child until the end of
school/university, when that child is loved
and fully integrated into the family. Most
of the Judges in the House of Lords agreed
that:-
“There should be joy at the birth of
a healthy child, at the baby’s smile and
a teenager’s enthusiasms, but how can
these be put in money terms and trimmed
to allow for sleepless nights and
teenage disobedience? If the valuation
is made early how can it be known
whether the baby will grow up strong or
weak, clever or stupid, successful or a
failure, both personally and career
wise, 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.”
The costs of bringing up the child should
be excluded.
In a claim in 1986, reflecting the unease
amongst Judges, this is what one Judge said
of a claim where an award was made for
bringing up a child:-
“. . . 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 inflicted with a
handicapped child or who long
desperately to have a child at all are
now denied that good fortune would
regard an award for this sort of
contingency with a measure of
astonishment. . .”
Some of the Judges talked about
“distributive justice”! It was said, that
principle requires a focus on the just
distribution of burdens and losses amongst
members of society; ask commuters on the
underground whether parents of an unwanted,
but healthy child should receive
compensation for the costs of bringing up
the child, would they say yes or not? The
very firm view is that an overwhelming
number of ordinary men and women would
answer the questions with an emphatic “No”
and their reason would be based on the
premise of what is morally acceptable and
what is not.
The Judges took it upon themselves to
talk for you and I, assuming you use the
underground. Do you agree that the majority
in society would find it morally
unacceptable that parents should be awarded
the costs of bringing up their child up to
age 18 or until they leave
school/university?
There we are: you have your say. Should
the Law:-
- View the natural process of
conception and child birth as amounting
to personal injury where the birth was
unplanned.
- Would you (as a commuter on the
underground) say yes or not if asked 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 costs of
bringing up the child for the years of
his or her minority (i.e. age 18)?”
What did the Court decide?
The Court decided the following:-
- Our Law does not permit parents of a
healthy unwanted child to claim the
costs of bringing up a child, from a
Health Authority or a Doctor. (If it
were necessary to say so, then it would
be said that such a claim does not
satisfy the requirement of being fair,
just and reasonable).
- Mrs M did suffer a personal injury
by having to go through the pregnancy
and delivery.
- There is nothing objectionable to
allow her compensation for having to
undergo the pregnancy and confinement,
as well as the pain and distress of
giving birth to the child. (Such a
recovery is supported by a great wealth
of authority, world-wide).
- The costs of having to give up
employment to look after the child and
therefore loss of earnings, could also
be recovered in an appropriate case
(although not claimed here).
- The costs of bringing up an unwanted
child which was disabled in some way,
may be recoverable in future appropriate
claims. (The Court was not required to
make a definitive ruling on this point,
as the child was not disabled).
- The parents 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 should
receive compensation, but not to exceed
£5000 in a straight forward case like
the present - so said only one lone
Judge.
- A baby may come trailing clouds of
glory, but it brings nothing else into
the world. It requires an astonishing
amount of equipment, not merely the
layette, but pushchair, car seat, carry
cot, high chair and so on. The expense
of acquiring these is considerable. They
are not recoverable and fall into the
same category as the cost of maintaining
the baby. Most parents keep such items
bought for the first child. If Mr and
Mrs M disposed of them in the belief
that they would have no more children,
the cost of replacing them should be
recoverable.
“. . . . . 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. . .
. Individuals may choose to regard the
balance as unfavourable and take steps
to forego the pleasures as well as the
responsibilities of parenthood . . . .
But society itself must regard the
balance as beneficial. It would be
repugnant to its own sense of values to
do otherwise. It is morally offensive to
regard a normal, healthy baby as more
trouble and expense than it is worth.”
I am sure we would all endorse that.
Gary McFarlane
Clinical Negligence Team
Clinical Negligence Specialist
Veale Wasbrough, Bristol.
We would like to express our thanks to
Gary McFarlane.
Joining
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