|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Greenfield v Flather & Ors  EWCA Civ 113 (24 January 2001)
Cite as:  1 WLR 1279,  1 FLR 899,  EWCA Civ 113,  PIQR Q7,  WLR 1279, (2001) 59 BMLR 43,  Lloyds Rep Med 143,  Lloyd's Rep Med 143
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report:  1 WLR 1279] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
NORWICH DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC)
Wednesday, 24th January 2001
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE LAWS
|- v -|
|FLATHER AND OTHERS|
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 KIERAN COONAN QC and MISS KATIE GOLLOP (instructed by Hempsons, 33 Henrieth St, London WC2E 8NH) appeared on behalf of the Respondent
Crown Copyright ©
"... 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..."
"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  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  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."
"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."
"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."
"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."
"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."
"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."
"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."
"... 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."
"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."
"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."