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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Greenfield v Flather & Ors [2001] EWCA Civ 113 (24 January 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/113.html
Cite as: [2001] 1 WLR 1279, [2001] 1 FLR 899, [2001] EWCA Civ 113, [2001] PIQR Q7, [2001] WLR 1279, (2001) 59 BMLR 43, [2001] Lloyds Rep Med 143, [2001] Lloyd's Rep Med 143

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Neutral Citation Number: [2001] EWCA Civ 113
NO: A2/2000/2126

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
NORWICH DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC)

Royal Courts of Justice
Strand
London WC2

Wednesday, 24th January 2001

B e f o r e :

LORD JUSTICE BUXTON
LORD JUSTICE MAY
and
LORD JUSTICE LAWS

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GREENFIELD
- v -
FLATHER AND OTHERS

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040 Fax No: 0171-831 8838
(Official Shorthand Writers to the Court)

____________________

Mr WALTER AYLEN QC and Mr RICHARD OUGH (instructed by Ashton Graham, Electric House, Lloyds Ave, Lipswich, Suffolk) appeared on behalf of the Appellant
Mr KIERAN COONAN QC and MISS KATIE GOLLOP (instructed by Hempsons, 33 Henrieth St, London WC2E 8NH) appeared on behalf of the Respondent

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

  1. LORD JUSTICE BUXTON: This is an appeal from a decision of His Honour Judge Langan QC, sitting as a judge of the High Court on a preliminary issue in a clinical negligence case.
  2. The brief facts that are accepted or assumed for the purpose of this preliminary point are that in 1994 the claimant, a lady who was then 37 years old and in full-time employment, was a patient of the general medical practice who are the defendants in this claim. She was prescribed by the doctors a course of contraception by way of injection. There is no complaint about that decision or about the way in which that limited part of the treatment was administered. Her complaint is that the nurses who were employed by the doctors to administer the treatment failed to observe that she was pregnant.
  3. The issue of pregnancy, as I understand it, arose during the course of that treatment and was relevant firstly because the course of treatment and the instructions for it require the administration of a pregnancy test, which did not happen in this case; and secondly, as I would assume, because had it been known that the patient was pregnant at the time, it is not lawful, I would imagine, with that knowledge to administer this treatment, save in the limited circumstances in which a pregnancy may be terminated. Be that as it may, for the purpose of this application it is accepted that there was an act of negligence by reason of the fact that the claimant was not told that she was pregnant. That fact was not identified until she herself, becoming concerned about the matter, administered a test to herself.
  4. In due course she gave birth to a daughter, a child that originally she had not wanted, but the judge was told that happily that child was now a welcome member of the family. She has taken the decision to give up her employment in order to care for that child. Her claim in these proceedings is, however, that if she had been told at the right time that she was indeed pregnant, she would have had that pregnancy terminated by way of an abortion, and therefore, because she would not have a daughter to look after, she would still be working outside the home. It will of course be observed that such course of action could not have been followed unless it would have been in the circumstances lawful to do so under the law with regard to termination of pregnancies. Here again, however, it is assumed for the purpose of this application that such a termination, if it had taken place, would have been lawful. I think it is perhaps important to underline that that is an assumption made for the purpose of these proceedings. The matter, as I understand it, has not been decided, and is certainly not being decided by this Court.
  5. Her case, and the issue that matters in this application, is that she is entitled to include in the damages that are recoverable for the defendant's negligence compensation for the loss of her earnings: that is to say, compensation for the fact that during really the whole of the time when the child requires the mother's presence at home full-time or part-time in order to care for her, the claimant cannot work. The judge determined that that head of damages was not recoverable in this action. It is against that finding that this appeal is brought.
  6. The judge, in what was, if I may be permitted to say so, an exemplarily clear and elegant judgment, found himself forced to that conclusion by reference to the decision of the House of Lords in the case of McFarlane v Tayside Health Board [2000] 2 AC 59. The judge submitted that authority to close inspection and it is necessary that we should say a good deal about it: it being, as I said, the case that the judge found it to be conclusive in dismissing this claim. In the McFarlane case the pursuers (or in English terms claimants) were a married couple already with four children who decided they did not want to have any more children and that in order to achieve that end the husband should undergo a vasectomy. That vasectomy was conducted in a negligent manner, and as a result the parents, believing that they could continue to have intercourse without the danger of conception, did so, and the wife because the vasectomy had failed gave birth to a child, again originally unwanted but happily found by the Court to have become an integral and loved part of the family.
  7. There were two separate heads of claim in the McFarlane case. First, what was described for the purposes of identification as the mother's claim, which was a claim for discomfort from the pregnancy and the injury and stress of the act of giving birth. A ruling that she could recover in that respect was upheld in the House of Lords. There was, secondly what was described as the parents' claim, for the cost of caring for and bringing up the child. The House of Lords held that they could not recover for that head of damage. It was, basically speaking, the judge's conclusion that no relevant distinction was to be drawn between a case such as McFarlane, when there was expenditure incurred directly on the bringing up of the child, and a case such as our case where there has been a loss of earnings because the parent has left work to devote herself to the rearing of the child.
  8. Mr Walter Aylen QC submitted before us, in terms that he had submitted before the judge, that McFarlane did not bind us; the judge's decision to follow it had been incorrect; and that if we applied first principles to this case untrammelled by guidance drawn from McFarlane his client's claim would in fact be made out. There are a number of strands to Mr Aylen's argument, which I hope I shall accurately convey.
  9. The first point that he makes is that the actual factual situation in our case, that is to say, a loss of earnings, was simply not addressed in the McFarlane appeal. Although I understand there is some potential dispute about the actual matters that were before the House in McFarlane, I am content for purposes of this judgment to accept that the House in McFarlane did not consciously direct itself to an issue of the order that we have here, that is to say, loss of earnings, not caused by the direct results of the pregnancy or any illness or illness-like situation, but contingent on the decision of a healthy mother to leave work to care for a healthy child.
  10. Secondly, he argued that the correct characterisation or analysis of the McFarlane case as a matter of the law of negligence was that the claim in that case had been for pure economic loss caused by negligent advice, the advice being that the parties had been told that they could safely have intercourse. The present case, he said, is different because it is a case where complaint is made not of advice but of physical injury caused by an omission: as Mr Aylen said, picking up an observation from the bench, the case is not different in terms of analysis from what it would be if his client had presented herself not as a candidate for contraception but as somebody with undefined pains or illnesses which were in fact cancerous and which negligently were not identified as such by the doctor.
  11. That characterisation is important in Mr Aylen's argument because he goes on to say that since the case is to be characterised as one of physical injury caused by omission in performance of a duty, as a matter of principle all damage caused by that physical injury is recoverable; and the cost of bringing up the child is plainly something, he says, that was caused by physical injury. As to causation, I shall say something at a later stage of this judgment. More fundamentally, however, I am not able to accept the relevance of the distinction that Mr Aylen puts forward. There are two aspects of that concern. Firstly, it seems to me that the distinction is extremely fragile simply as a matter of fact. It is far from clear how one properly should characterise the events that occurred either in McFarlane or in our case. In McFarlane there was an incompetent operation followed by advice that the parties could have intercourse. That advice was wrong, but it was wrong because the operation had gone wrong.
  12. In our case it could equally be said, it seems to me, that there was incompetent treatment in conjunction with advice that the patient was not pregnant; because as I sought to point out earlier the investigation of pregnancy was an integral part of the treatment process, and the nurse seems to have told Mrs Greenfield on at least one occasion, or certainly strongly implied, that she was not pregnant.
  13. It is not necessary to come to a conclusion on these matters of characterisation. I raise that only in an attempt to demonstrate that I would be extremely doubtful about any distinction between this case and McFarlane that rested upon these controversial and difficult matters of analysis. That being so, I am unable to accept that the damage suffered here was "physical" in any way that makes a relevant distinction between this case and McFarlane. It may or may not be right, as an authority on the law of limitation which Mr Aylen showed us appeared to demonstrate, that what happened here is to be characterised as an interference with the plaintiff's body, even though it was a failure to interrupt a physical process already in operation rather than the initiation of a process. But there is no difference between this case and McFarlane which, in my judgement, makes any distinction that is relevant in law between the two cases.
  14. Even however if that is not right, the distinction Mr Aylen sought to draw was, in my view, irrelevant to the issues in the case. The attraction of the analysis to him was to seek to argue that there was a strong, indeed stark, distinction in the law of negligence between the rules applying to a case that can be characterised as one of advice or causing of economic loss; and to a case that can be characterised as one of physical damage. That, however, is not now the law. Whether it was at one time thought that advice cases of Hedley Byrne type fell into a completely different category from other aspects of the law of negligence, recent high authority has made plain that that is not so. That view is clear from at least two passages in McFarlane itself. I venture to go first to what was said by Lord Steyn at page 83G of the Law Reports report when he said this:
  15. "... 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..."
  16. In so saying, Lord Steyn was reverting to a principle or observation about the law of negligence that he had expressed on previous occasions. I would venture, if I may, to cite a short passage from a case that was not referred to in argument. I do so only because it marches entirely with what Lord Steyn said in McFarlane. That is the case of Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211 at 235, where at 235D Lord Steyn said this:
  17. "Counsel for the cargo owners submitted that in cases of physical damage to property in which the plaintiff has a proprietary or possessory interest the only requirement is proof of reasonable foreseeability. For this proposition he relied on observations of Lord Oliver of Aylmerton in Caparo Industries Plc. v Dickman [1990] 2 AC 605. 632-633. Those observations, seen in context, do not support his argument. They merely underline the qualitative difference between cases of direct physical damage and indirect economic loss. The materiality of that distinction is plain. But since the decision in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff."
  18. Reverting to McFarlane on this point, I also venture to quote some words of Lord Millett to be found at page 108G of the report:
  19. "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.... 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."
  20. There, importantly, Lord Millett, in my judgement makes it quite plain that the same broad principles, and broad they are, apply to any claim in negligence, however that claim may be characterised.
  21. It is therefore not conclusive in this case, as Mr Aylen sought to argue it was, that the House of Lords in McFarlane did not specifically address the question of loss of earnings as opposed to costs of rearing the child. Nor is it conclusive that the mechanism by which the loss in that case was caused was, or may have been, different from the mechanism by which it was caused in this case. The question is whether the general approach to remoteness of loss in negligence in cases of negligent pregnancy that was adopted in McFarlane properly applies to our case. Like the judge, I am of the opinion that it plainly does, as I shall now demonstrate.
  22. If one looks at McFarlane in more detail there seems to me to be broadly two concurrent approaches that their Lordships brought to the question of remoteness or liability. The first is that at least three of their Lordships thought to be relevant to the case before them the principle enunciated in the case of Caparo v Dickman. The rule in Caparo was mentioned by Lord Slynn at page 75H (a passage I do not need to cite), and also on two occasions by Lord Hope of Craighead at page 95G. He cited a very well-known passage from the judgment of Lord Oliver in Caparo, which I think it not necessary to set out in extenso. Then he quite clearly applied Caparo and its language and approach when he summed up his views at page 97C in these terms:
  23. "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 [those are benefits from having a child as a member of one's family]. 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."
  24. There, and in a number of passages that I am about to cite, reference is made to the fact that the loss is characterised as economic. That however is not the point upon which McFarlane turns, and the citations that I ventured to put forward from Lord Steyn and Lord Millett in the earlier part of this judgement demonstrate that. No other of the three judges, as far as I see, directly addressed that particular point, but they gave no indication that they differed from Lord Steyn and Lord Millett.
  25. On this, what I call the Caparo, point Lord Steyn certainly relied on the general approach in Caparo but he expressed it in more general and more extensive terms. He said this at page 82E:
  26. "My Lords, to explain decisions denying a remedy for the cost of bringing up an unwanted child by saying that there is no loss, no foreseeable loss, no causative link or no ground for reasonable restitution is to resort to unrealistic and formalistic propositions which mask the real reasons for the decisions. And judges ought to strive to give the real reasons for their decision. It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice. That is of course, a moral theory. It may be objected that the House must act like a court of law and 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."
  27. Then, having referred to a number of other recent cases which Lord Steyn saw as demonstrating that proposition (at least two of which were cases of physical injury and not of economic loss narrowly understood), Lord Steyn continued in these terms on page 83D:
  28. "In my view it is legitimate in the present case to take into account considerations of distributive justice. That does not mean that I would decide the case on grounds of public policy. On the contrary, I would avoid those quicksands. Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or 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."
  29. That is the requirement laid down by Caparo.
  30. In that connection it is illuminating to refer as a footnote to another part of Lord Steyn's judgment at page 84D where he was dealing with another part of the claim. He said:
  31. "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."
  32. That is to say, as I understand it, a loss directly related to the pregnancy, which is the emphasis that Lord Steyn puts, is within the spirit of the "limited recovery principle" that he has earlier enunciated. The cost of rearing the child falls outside that ambit because it is not, I would venture to comment, directly related to the pregnancy.
  33. That is the first strand, I would say, of the view expressed by the House of Lords. A second and related strand, already apparent also in the citation that I ventured from Lord Hope, is perhaps what might be called the principle of reasonable reparation. Lord Clyde referred to that at page 105G:
  34. "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 circumstance of the present case the defenders could reasonably have thought they were undertaking."
  35. There Lord Clyde does put the passage in the context of the claim for economic loss. A similar view was however expressed by Lord Millett page 113H in terms that were not even verbally so limited. He said:
  36. "... 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 forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy 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."
  37. I have ventured to cite, in somewhat lengthy terms, what the House of Lords actually said, because in my view it is overwhelmingly clear from McFarlane that the claim in that case was not dismissed on grounds that narrowly related to the economic nature of the claim, or narrowly related to the fact that the expenditure was not directly a loss suffered by the parent. The claim was rejected in McFarlane by the House of Lords on grounds of very broad principle, broad principle reaching certainly beyond, in my judgement, the particular circumstance of an unwanted pregnancy. But even within that particular circumstance it is really quite impossible to distinguish between our case and McFarlane in any terms that protect this case from the broad view of liability and the broad view of the nature of the application of the law of tort that was adopted by all of the judges, in one manner or another, in the McFarlane case. For that reason (which I think will not improve by being expanded on further) it is absolutely clear to me that this appeal must fail.
  38. There is another and different ground, it seems to me, why the appeal is also misconceived. Even on the basis that this is a claim for losses contingent upon physical injury, it seems to me simply not to be the case in any realistic terms that the cost of the existence of a child, whether it be costs of rearing or the contingent loss of the parent who has to give up a job to bring the child up, is in law caused by the pregnancy: which is the matter to which the complainant in this case complains. It is caused rather by the existence of the child, just as the family's expenditure on its other children is caused by their existence. That again is a short point, but it seems to me that it demonstrates again that this case cannot be solved in the plaintiff's favour by characterising it as a case of physical damage with contingent loss.
  39. In this part of the appeal I should just say one other thing about a case relied on to some extent by Mr Aylen, Scuriaga v Powell, a decision of Watkins J, as he then was, reported in Volume 123 of the Solicitor's Journal at page 406, which proceeded to this Court unreported but we have been by the industry of Mr Aylen and those assisting him shown the transcript. In that case Watkins J granted relief in respect of loss of earnings attributable not only to what might be characterised as illness or disability relating to the pregnancy but also for the head of loss sought in this case, loss of earnings contingent upon the rearing of a child. When the matter proceeded to the Court of Appeal, it was contested only on the question of quantum. It was recorded as a concession made by leading counsel on the part of the defendant that the head of loss that I described was recoverable. That being so, the matter having been passed by concession, and we have not been shown anything to indicate that the Court approved that concession, the case has authority on the point of whether there can be recovery for loss of earnings only in terms of it being a decision of a judge of first instance. It therefore does not bind us and in any event I consider that the decision of Watkins J cannot, for the reasons that I have indicated, stand with the later case in the House of Lords of McFarlane. Scuriaga was referred to in McFarlane in passing terms and, as Mr Aylen pointed out, it was not said to be wrong, but in the context of that case, it seems to me, that was all that could be said about it. There is nothing in McFarlane to suggest that their Lordships directed their minds to that particular point, and they certainly did not approve of the decision of Watkins J.
  40. On the case as it stood in the original notice of appeal this appeal must therefore fail. We however have also before us an application to add to the notice of appeal a fresh ground based upon Article 8 of the European Convention on Human Rights and its application of domestic law under the Human Rights Act 1998. This point was not raised before the judge because when the matter was before the judge the Human Rights Act was not in force, and it was not raised before the Lord Justice who granted leave in this case, because he was in the same condition when leave was sought. Mr Aylen, however, argues that he ought to have leave to pursue this point.
  41. As I understand it, the point goes as follows. Article 8, as is well known, places upon member states who are parties to the European Convention an obligation to respect private and family life of subjects. By section 6 of the Human Rights Act of 1998 a public authority must act in a way which is compatible with a Convention right. It is specifically provided that courts are public authorities for that purpose. So the argument goes that, firstly, to refuse the claimant damages for the particular head of loss in issue in this case would be a breach of her Article 8 right. It would be such a breach because, as I understand it, it would limit her ability to be both with her child and at work; it would reduce the family's income, and it would reduce it unfairly because the income was being reduced by reason of a tortious act on the part of the defendants. Therefore a court faced with this claim should take account of, and give effect to, that right, and the only obvious way of doing that is not by way of declaration as to what the law should be (because Mr Aylen made it quite clear that is not what he was after) but by granting the claim in damages that the domestic law does not permit.
  42. Even if it were the case on these facts that a breach of Article 8 arose by the failure of the domestic legal system to grant damages in these circumstances, the way in which such a failure can be asserted in domestic private law proceedings is not wholly clear, to put it at its lowest. But it is not necessary to pursue that aspect of this claim because it fails on two very clear and separate grounds.
  43. The first is that the decision of Judge Langan was a judicial act, as so characterised in the Human Rights Act. By section 9(1)(a) of the Human Rights Act, it is only possible to bring any proceedings in respect of such a judicial act by exercising a right of appeal. Therefore, the only way in which complaint can be made, as indeed it is made here, of Judge Langan's decision is by appealing to this Court, which is what Mr Aylen seeks to do. But he has, on the facts of this case, the overwhelming difficulty that when Judge Langan decided the case the Human Rights Act was not in force, and whatever may or may not have been the United Kingdom's obligations in international law as to Article 8, there was no ground on which any individual subject in the domestic legal system to assert such a right. Since the judge was not then under any obligation to take note of Article 8 (or at least, not under any obligation of the sort Mr Aylen wishes to assert), there is nothing for the appellants to appeal about. So the application must fail in any event.
  44. Secondly however, if the first point is thought to be unattractively technical, albeit inescapable, one has to look to see whether indeed it is even remotely arguable that the present state of English law as described in McFarlane, and as applied in this case by the judge, entails any breach of Article 8(2) at all. I need say nothing in this judgment about the relevance of Article 8(2). Article 8(1) provides that everyone has the right to respect in his private and family life, his home and correspondence. That talks in terms of "respect" of family life. It is clear that, contrary to what the wording might appear at first sight to provide, in certain circumstances there is an obligation under Article 8 placed upon the authorities of member states to take positive action, as opposed to merely avoiding negative action in respect of the rights protected by Article 8. That is established in general terms by the the early and important case of Marckx v Belgium 2 EHRR 330. It is recognised in the Convention jurisprudence that the concept of respect for family life is of a difficult nature to grasp, and one in which the European authorities will pay considerable regard to the arrangements made in the individual member states. That is plain from an observation of the Strasbourg Court in the case of Abul Abdulaziz v United Kingdom [1985] 7 EHRR 471 at paragraph 67 of the judgment where the Court said this:
  45. "The notion of respect is not clear cut. Having regard to the diversity of the practices followed and the situations obtaining in the contracting states, the nation's requirements will vary considerably from case to case. Accordingly this is an area in which the contracting parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the Community and individuals."
  46. Faced with that view on the part of the Strasbourg Court, I would hesitate long before concluding without firm guidance from that Court that any particular failure on the part of a national government entailed a failure to respect family rights. But in this case we do have some positive guidance in a contrary sense, thanks to the diligence of those assisting Mr Coonan QC for the respondent. We have been taken to Application No 11776/85, the case of Andersson and Kullman v Sweden 46 DR 251, an admissibility decision of the Commission where the applicants were persons of modest means with children to look after, who had a dispute with the authorities in Sweden as to the proper level of child benefit. They complained that they were refused financial support by the authority in Sweden for bringing up their children because Mrs Kullman wished to stay at home and take care of her two children instead of placing them in a home or day care. The Commission said this at page 253 of the report:
  47. "The Commission observes that the Convention does not as such guarantee the right to public assistance either in the form of financial support to maintain a certain standard of living or in the form of supplying day home care places. Nor does the right under Article 8 of the Convention to respect for family life extend so far as to impose on States a general obligation to provide for financial assistance to individuals in order to enable one of two parents to stay at home to take care of children."
  48. I, for my part, if I may respectfully say so, was not surprised to see that the Commission had so held, though it was not a case with which I was familiar until it was drawn to our attention today. It seems to me that that observation is, if anything a fortiori of our present case. That was an application directly against the child support authorities of the member state. In this case it is an application, as it were secondhand, saying that a certain regime of damages is required in order to fulfil the requirements of Article 8. There is absolutely no reason to think that that is so, and absolutely no reason to think that Article 8 does or would lay any such requirement upon the national authorities.
  49. This claim is rendered the more unlikely by the striking paradox pointed out in argument by My Lord, Lord Justice Laws, that the basis of the claimant's claim is that by reason of the negligence of the defendant she was provided with a family in the first place; in other words, her complaint in this case is that what should have been steps to prevent her from having a family were not taken. That is, to put it at its lowest, an unpromising basis for an application under Article 8. But in any event, leaving that point aside, the basis upon which Article 8 is argued is in my judgement hopelessly wide and would stand no prospect of surviving in the Strasbourg jurisdiction were it to be taken there: which is of course the guide that we have to apply in determining in these courts whether there has been a breach of that article.
  50. For that reason I would not permit this part of the application to be pursued, and as the Court has already indicated it rejected Mr Aylen's application. I, therefore, for my part, would dismiss the application and also dismiss the appeal.
  51. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons given by Lord Justice Buxton whose account of the facts I gratefully adopt.
  52. There are, in my judgment, two clear reasons why this appeal should fail. First, I do not accept Mr Aylen's submission that the appellant's relevant claim for loss of earnings is an orthodox claim for damages consequential on, or parasitical to, a personal injury claim.
  53. As Lord Slynn of Hadley indicated in McFarlane [2000] 2 AC 59 at 74, the appellant may have been in principle entitled to claim compensation for loss of earnings due to the pregnancy and birth. It appears from the opinion of Lord Steyn at page 84D that such a limited claim was in principle conceded in McFarlane -- see also Lord Hope of Craighead at page 87D and 89B to C. That might readily have been characterised as a claim for damages consequential on, or parasitical to, a personal injury claim, the personal injury being that associated with the pregnancy and birth itself. But the relevant claim in the present appeal is not a claim for compensation for loss of earnings due to the pregnancy and birth. It is a claim arising from the existence of a child by a mother who, so far as the consequences of pregnancy and birth are concerned, is perfectly able to work.
  54. Accordingly, this attempted means of side-stepping McFarlane in my judgment fails. There may be a claim for what may be characterised as a personal injury, but that claim does not extend to the loss of earnings' claim with which this Court is concerned.
  55. Second, there seems to me to be no material distinction between the costs of caring for and bringing up a child held to be irrecoverable in McFarlane and the mother's claim for loss of earnings in this appeal. It is, I think, correct that the House of Lords in McFarlane did not have to decide in terms whether loss of earnings in claims of this kind was recoverable. But the House did in substance decide that it was not fair, just and reasonable to impose on the doctor or his employer liability for the responsibilities consequential on the birth of the child imposed on, or accepted by, the parents to bring up the child -- see, for example, Lord Slynn at page 96C and Lord Hope at 97C to F. The present claim for the loss of earnings is in my view plainly such a claim.
  56. Likewise Lord Steyn, approaching the case from the vantage point of distributive justice, considered that the traveller on the London Underground would consider that the law of tort has no cause to provide legal remedies consequent on the birth of a healthy child which all of us regard as a valuable and good thing -- see page 82D. The present claim is such a claim.
  57. Lord Clyde at pages 105F to 106A held that to relieve the parents of the financial obligations of caring for the child would go beyond what would constitute a reasonable and proportionate restitution for the wrong done. That, in my judgment, applies equally to the claim in the present appeal. Lord Millett held that the costs of bringing up the child in that case were not recoverable, for the reasons he gave on page 114 to which Lord Justice Buxton has referred. Those reasons apply with equal force in my judgment to the present claim.
  58. In my view, therefore, the judge was correct to hold himself bound to decide the present case in accordance with McFarlane. This Court is also so bound.
  59. I agree with Lord Justice Buxton that there is no proper basis whatever for a submission that the state of the law to be found in McFarlane offends Article 8 of the European Convention of Human Rights such that this Court would be obliged to adopt an alteration in that law. I therefore would refuse the application and dismiss this appeal.
  60. LORD JUSTICE LAWS: I agree that this appeal should be dismissed and that the application for permission to amend the notice of appeal should be refused. I agree also with the reasons given for that result in both my Lords' judgments.
  61. The conventional approach to the assessment of damages for negligence requires the Court to make a comparison between the condition and circumstances of the claimant as they are at the trial and his or her condition and circumstances as they would have been if the effects occasioned by the defendants' negligence had not happened. So much is elementary.
  62. In the ordinary case, assuming the relevant facts proved, there is a simple and controversial relationship between (1) negligence (2) consequent detriment and (3) just compensation. This relationship and the logic upon which such claims for damages are based requires that the consequence for the claimant of the defendant's negligence, stage 2, is indeed a detriment and not a benefit. In principle no damages are awarded for a benefit, or I would say for any condition that is other than a detriment or taken to be a detriment.
  63. Here, with respect, is the value in the present context of the distinction between damage attributable to the effects of pregnancy and confinement and alleged damage attributable to the existence of the healthy child that is born. The first may be said to be a detriment; the second cannot possibly be so categorised. This is an antithesis which remains unrecognised by the submissions advanced by Mr Aylen QC. This case falls within the second of these classes.
  64. That is sufficient to conclude the appeal in the respondent's favour. This is a simple approach and it seems to me, with very great respect, that it is supported by their Lordships' speeches in McFarlane [2000] 2 AC 59, whichever formulation there to be found one chooses to emphasise; but perhaps most particularly that set out in the opinion of Lord Millett. If, which I by no means necessarily accept, this Court's reasoning in such cases as Walkin v South Manchester Health Authority [1995] 4 All ER 132 is at variance with this conclusion, then with deference it is, in my judgment, disapproved in McFarlane.
  65. It is to be noted that if this lady were to obtain the damages she seeks, she would happily be in a position whereby she would look after her much loved child at home, yet at the same time in effect would receive the income she would have earned had she stayed at work. In my judgment that is not just compensation; it is the conferment of a financial privilege, which has nothing to do with just compensation.
  66. (Appeal refused; costs agreed at 14,333; legal aid assessment)


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