McFarlane v Tayside Health Board

Where negligent sterilisation advice results in the birth of a healthy child, the mother may recover damages for the pain, suffering and financial loss attributable to pregnancy and childbirth. Recovery is governed by ordinary rules of causation and remoteness and need not end at the moment of birth.

The parents cannot recover the ordinary costs of bringing up the child. Foreseeability alone does not make such pure economic loss recoverable. Liability for those costs is outside the scope of the professional duty and would not be fair, just and reasonable. The parents' refusal of abortion or adoption neither breaks the chain of causation nor constitutes a failure to mitigate.

After a vasectomy, a hospital consultant negligently advised Mr McFarlane that his sperm counts were negative and that contraceptive precautions were unnecessary. Mrs McFarlane later became pregnant and gave birth to the couple's fifth child, who was healthy and became an integral part of the family.

The parents claimed £100,000 for the child's upbringing. Mrs McFarlane also claimed £10,000 for the pain, suffering and distress of pregnancy and childbirth. The Lord Ordinary dismissed both claims: 1997 S.L.T. 211. The Second Division unanimously reversed that decision and allowed both claims to proceed to proof before answer: 1998 S.L.T. 307.

The central issue was whether negligent advice causing an unwanted conception permitted recovery for the mother's pregnancy-related loss, the parents' child-rearing costs, or both.

Appeal allowed in part. The House unanimously excluded the claim for the costs of bringing up the healthy child. By a majority of four to one, it preserved Mrs McFarlane's claim for solatium for pregnancy and childbirth.

1. Per Lord Slynn, Lord Steyn, Lord Hope and Lord Clyde, the mother's pain, discomfort, inconvenience and distress from an unwanted pregnancy and delivery were compensable. The conception was the event which the negligent advice was intended to prevent. Natural pregnancy and childbirth could therefore produce actionable loss. Lord Hope added that recovery should be bounded by ordinary remoteness principles, rather than an artificial cut-off at birth. Consequential financial loss attributable to pregnancy and recovery could in principle be proved.

2. Per Lord Slynn, Lord Steyn and Lord Hope, foreseeability of child-rearing expenditure did not suffice. The claim was for economic loss. The duty to prevent pregnancy did not extend to assuming responsibility for all the economic responsibilities of bringing up a healthy child. Imposing that liability was not fair, just and reasonable. Lord Steyn also relied on distributive justice and coherence with the rejection of wrongful-life claims. Lord Hope reasoned that the benefits and costs of parenthood could not fairly be separated or reliably valued.

3. Lord Clyde reached the same result through reasonable restitution and proportionality. Although child-rearing expenditure was real, foreseeable and sufficiently caused by the negligence, transferring the whole financial burden of parenthood to the defender would go beyond reasonable reparation.

4. The parents had no legal or moral duty to obtain an abortion or arrange adoption. Their decision to keep the child neither broke the chain of causation nor amounted to a failure to mitigate.

5. Lord Millett agreed that ordinary child-rearing costs were irrecoverable, because the advantages and responsibilities of parenthood were inseparable. He dissented on solatium, considering pregnancy and delivery part of the same indivisible benefit and burden. He would instead have permitted conventional damages for loss of personal autonomy, subject to amendment.

The child-rearing averments were excluded from proof. Mrs McFarlane's claim for solatium was permitted to proceed to proof before answer.

1. House of Lords: Allowed the Health Board's appeal in relation to child-rearing costs, but dismissed it in relation to Mrs McFarlane's claim for solatium: [2000] 2 AC 59.
2. Second Division of the Court of Session: Unanimously recalled the Lord Ordinary's interlocutor and allowed both claims to proceed to proof before answer: 1998 S.L.T. 307.
3. Lord Ordinary: Lord Gill dismissed both claims as irrelevant: 1997 S.L.T. 211.