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URL: http://www.bailii.org/uk/cases/UKHL/1999/50.html
Cite as: 1999 GWD 39-1888, 2000 SLT 154, [1999] 3 WLR 1301, [2000] PIQR Q101, [1999] 4 All ER 961, 2000 SC (HL) 1, (2000) 52 BMLR 1, [2000] Lloyd's Rep Med 1, [2000] 2 AC 59, [1999] UKHL 50, [2000] 1 FCR 102, 2000 SCLR 105

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JISCBAILII_CASES_TORT

Macfarlane and Another v. Tayside Health Board (Scotland) [1999] UKHL 50; [2000] 2 AC 59; [1999] 4 All ER 961 (25th November, 1999)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

MACFARLANE AND ANOTHER

(RESPONDENTS)

v.

TAYSIDE HEALTH BOARD

(APPELLANTS)

(SCOTLAND)

ON 25 NOVEMBER 1999

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:

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:

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

He too rejected "public policy" as the criterion for deciding the issue.

    Lord Allanbridge accepted that there was injuria. Once the husband was told following the vasectomy that his sperm counts were negative and that he could dispense with contraceptive precautions the damage occurred when the wife became pregnant. His claim therefore arose before the birth of the child. He too thought they should be allowed to prove the loss injury and damage resulting from the fact that the wife became pregnant. The parents' failure to arrange abortion or adoption was not a novus actus interveniens.

    The result of the judgment of the Court of Session is that the pursuers should be able to seek to prove full recovery.

    Although these judgments refer to the law of Scotland (which obviously was the applicable law) it is as I 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 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.

    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

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

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 (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

    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:

    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 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:

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:

    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 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 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 AC 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 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] AC 465) as explained in Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145 and Williams v. Natural Life Health Foods Ltd. [1998] 1 WLR 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 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?

(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:

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 (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] AC 728 which was announced by the decision of the House in Murphy v. Brentwood District Council [1991] 1 AC 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:

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. 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 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 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 WLR 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

    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 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 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 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:

    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 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:

    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:

    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.

    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 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:

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

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

    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 AC 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:

    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] AC 1, 25 Lord Fraser of Tullybelton, delivering the judgment of the Board, said:

This theme was developed and applied in Caparo Industries Plc. v. Dickman [1990] 2 AC 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] AC 728:

    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:

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

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

    In Frost v. Chief Constable of South Yorkshire [1998] 3 WLR 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 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 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 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 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 QB 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 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 SLT 129, 133, "single and indivisible." So also is the ground of action on which the respective claims of the pursuers proceed. Once the obligation to make reparation for some loss is predicated, it seems to me difficult to analyse the claim for maintenance of the child as a particular, and so separate, obligation. 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 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:

He concluded, at p. 740:

    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:

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 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 liable for all the foreseeable consequences of its being wrong: see Banque Bruxelles Lambert S.A. v. Eagle Star Insurance Co. Ltd. [1997] AC 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 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] AC 465). But I agree with my noble and learned friend Lord Steyn that it should not matter whether the unwanted pregnancy arises from the negligent supply of incorrect information or from the negligent performance of the operation itself. It is 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 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 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:

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:

    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:

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 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:

    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 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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