Macfarlane and Another v. Tayside Health Board (Scotland)

The House held that parents cannot, as a matter of principle, recover the ordinary costs of rearing a healthy child born after a negligently failed sterilisation: those costs constitute economic loss which the law will not allow in these circumstances. The court treated that exclusion as founded on limits to the duty of care for economic loss (proximity and whether it is fair, just and reasonable to impose liability), the impossibility or undesirability of valuing and setting off the non‑patrimonial benefits of parenthood, and considerations of distributive justice and legal coherence with existing rules (including the rejection of "wrongful life" claims by children).

By contrast the House held that the mother may recover conventional damages (solatium and related special damages) for the pain, discomfort and other foreseeable physical and immediate financial consequences of the unwanted pregnancy and birth. The decision relied on established principles about personal injury and on authorities concerning negligent advice (Hedley Byrne and its extensions) while applying the Caparo proximity / "fair, just and reasonable" test to limit recovery for extended economic consequences.

Background and facts:

Mr and Mrs McFarlane underwent a vasectomy; the husband was told in March 1990 that his sperm counts were negative and that contraceptive precautions could be dispensed with. The wife later became pregnant and gave birth to a healthy child. The parents sued the Tayside Health Board in delict claiming (i) damages for the wife's pain, suffering and distress from the pregnancy and childbirth (solatium) and (ii) damages for the financial cost of rearing the child.

Procedural history:

• The Lord Ordinary dismissed both heads of claim.
• The Second Division of the Inner House allowed a reclaiming motion and permitted proof on both heads.
• The House of Lords heard the appeal.

Nature of the claim and issues:

• The claim was in delict for negligent advice / negligent performance of services (relying on Hedley Byrne and its extensions) and sought solatium and parental economic losses.
• The court framed issues including whether damages were recoverable for (a) the mother's pain and distress relating to pregnancy and birth, and (b) the costs of maintaining the healthy child; whether such costs were pure economic loss; and whether public policy or limits on duty of care precluded recovery.

Court's reasoning:

• On the mother's claim for solatium the House treated pregnancy and childbirth as foreseeable physical consequences of the negligent advice and therefore compensable as personal injury or consequential loss: recovery for pain, discomfort and immediate related expenses was permitted.
• On the claim for child‑rearing costs the majority concluded that although foreseeability was present, the extension of liability to the full costs of maintaining a healthy child raised distinct legal questions about the scope of duty in relation to pure economic loss. Applying the Caparo proximity / "fair, just and reasonable" framework and having regard to distributive justice, coherence with existing law (including the rejection of wrongful life claims) and the practical and moral difficulties of valuing the non‑patrimonial benefits of parenthood, the House held that liability for child‑rearing costs should not be imposed on the doctor or health authority.

Relief sought and disposition:

• The House allowed the appeal in part: it rejected recovery of child‑rearing costs but upheld the availability of damages for the mother's pain, suffering and related pregnancy and birth expenses (and recognised that ancillary patrimonial losses connected with the pregnancy could be recoverable).

Appeal allowed in part. The House of Lords affirmed that the mother may recover damages for the pain, discomfort and immediate expenses of the unwanted pregnancy and birth (solatium and related special damages) but disallowed the parents' claim for the ordinary costs of rearing a healthy child: such child‑rearing costs are economic loss for which the court would not impose liability on the doctor/health authority (proximity/fair, just and reasonable limits to duty of care; practical and distributive justice reasons).

Lord Ordinary (Lord Gill) dismissed both claims (1997 S.L.T. 211). The Second Division of the Inner House allowed a reclaiming motion and granted proof before answer on both heads (1998 S.L.T. 307). The appeal to the House of Lords resulted in a partial allowance of the appeal on 25 November 1999 ([1999] UKHL 50; reported [2000] 2 AC 59).