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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Groom v Selby  EWCA Civ 1522 (18 October 2001)
Cite as: (2002) 64 BMLR 47,  EWCA Civ 1522,  PIQR P18,  Lloyd's Rep Med 1,  Lloyds Rep Med 1
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Judge Peter Clark)
London, WC2A 2LL
Thursday 18th October 2001
B e f o r e :
LADY JUSTICE HALE
MR JUSTICE DAVID STEEL
| SARAH JANE GROOM
|MIRANDA RUTH SELBY
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robert P Glancy QC and Christopher Hough (instructed by Irwin Mitchell for the Respondent)
Crown Copyright ©
LORD JUSTICE BROOKE :
(i) Is the claimant entitled to claim any damages for all or part of the cost of bringing up and caring for Megan?
(ii) Was Megan born with congenital abnormalities which have led to her needing additional care?
The judge directed that judgment be entered for the claimant on the first of these issues to the extent set out in his judgment, and for the defendant on the second issue. He ordered the defendant to pay the claimant's costs of the action to date. He granted both sides permission to appeal and directed that the assessment of the claimant's damages be postponed until after the hearing of any appeal.
"In this judgment I am concerned only with the loss that arises when the child's significant disabilities flow foreseeably from his or her unwanted conception. There may well be foreseeable incidents during the mother's pregnancy and the time leading up to the birth of the child from which the child's disabilities have flowed, but these will not in the ordinary way be effective to break the chain of causation. If, on the other hand, there is evidence that a child's disabilities, discernible at birth, were caused by some new intervening cause, then the difficult and interesting issues that may arise in such a case will have to be resolved by applying well-known principles of causation to the facts of the case before the court.
A negligent surgeon should not, without more, be held liable for the economic consequences of the birth of a child with significant disabilities if the child's disabilities were brought about between conception and birth by some ultroneous cause (for which see Lord Wright in The Oropesa  P 32, 39). Similarly, the ordinary rules relating to contributory negligence will be applied in an appropriate case to limit recovery."
"Another question is when the disability must arise. [Counsel] argued that there was no rational cut-off point, as any manner of accidents and illnesses might foreseeably affect a child throughout his childhood. But that is part of the ordinary experience of childhood, in which such risks are always present, and the balance of advantage and disadvantage is deemed to be equal. The two serious contenders are conception and birth. The argument for conception is that this is when the major damage was caused, from which all else flows. This was what the defendant undertook to prevent. But there are at least two powerful arguments for birth. The first is that although conception is when the losses start, it is not when they end. The defendant also undertook to prevent pregnancy and childbirth. The normal principle is that all losses, past, present or future, foreseeably flowing from the tort, are recoverable. The second is that it is only when the child is born that the deemed benefits begin. And it is those deemed benefits which deny the claim in respect of the normal child. In practice, also, while it may be comparatively straightforward to distinguish between ante and post natal causes of disability, it will be harder to distinguish between ante and post conception causes. Further, the additional risks to mother and child (for example because of the mother's age or number of previous pregnancies) may be among the reasons for the sterilisation. I conclude that any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not novus actus interveniens, will suffice to found a claim."
"The short answer to [Mr Coghlan's] submission is that Megan is not and never has been a healthy child … At the time of her birth the infecting bacterium was sitting quietly on the surface of Megan's skin and/or gut. It was and remained asymptomatic for about 3½ weeks. The bacterium then entered her bloodstream and within 12-48 hours of entry symptoms of septicaemia followed by meningitis developed … In these circumstances Megan cannot, in my judgment, be treated as a healthy child …"
i) in the absence of evidence of any new intervening act, the birth of a premature child who suffered salmonella meningitis through exposure to a bacterium during the normal processes of birth was a foreseeable consequence of Dr Selby's failure to advise the claimant that although she had been sterilised she was in fact pregnant;
ii) there are no difficulties about proximity;
iii) there is, as in Parkinson, no difficulty in principle in accepting the proposition that Dr Selby should be deemed to have assumed responsibility for the foreseeable and disastrous consequences of performing her services negligently
iv) Dr Selby knew that the claimant had been sterilised and wanted no more children (let alone children with serious handicaps) and Dr Selby's duty of care when advising on the symptoms of which the claimant made complaint must be deemed to include the purpose of ensuring that if the claimant was indeed pregnant again she should be informed of this fact, so as to enable her to take appropriate steps to prevent the birth of another child if she wished;
v) as in Parkinson, no radical step into the unknown is in question here;
vi) as in Parkinson, an award of compensation which is limited to the special upbringing associated with rearing a child with a serious disability would be fair, just and reasonable.
LADY JUSTICE HALE:
MR JUSTICE DAVID STEEL: