Greenfield v Irwin

In a negligent pregnancy claim, loss of earnings incurred because a parent leaves work to care for a healthy child is not recoverable. It is not materially different from the costs of bringing up a child rejected in McFarlane v Tayside Health Board [2000] 2 AC 59. The claim is governed by broad negligence principles, including foreseeability, proximity, and fairness, justice and reasonableness. It is not resolved by classifying the negligence as advice, pure economic loss or physical injury. Loss directly related to pregnancy and confinement may be distinct, but loss caused by the child’s existence is not caused by pregnancy in law. Article 8 does not require damages or public financial assistance enabling a parent to remain at home, and the Human Rights Act 1998 could not retrospectively govern the judge’s decision.

The claimant was negligently not informed that she was pregnant while receiving injectable contraception. It was assumed for the preliminary issue that a termination would have been lawful. She claimed loss of earnings on the basis that, had she known of the pregnancy, she would have obtained an abortion and continued working rather than leaving employment to care for the child.

His Honour Judge Langan QC, sitting in the Queen’s Bench Division, held that this head of loss was not recoverable, considering himself bound by McFarlane v Tayside Health Board [2000] 2 AC 59. The claimant appealed, arguing that the present loss of earnings differed from the child-rearing costs considered in McFarlane and that the claim involved physical injury rather than advice or pure economic loss. She also sought to amend the appeal to rely on Article 8 of the European Convention on Human Rights and the Human Rights Act 1998. The central issues were whether McFarlane governed the claim and whether Article 8 required recovery of the claimed loss.

1. Disposition. Buxton LJ delivered the leading judgment, with May LJ agreeing with his reasons and Laws LJ agreeing with both judgments. The appeal was dismissed unanimously. The application to add the Human Rights Act ground was refused.
2. Application of McFarlane. The Court held that the distinction between negligent advice, pure economic loss and physical injury did not determine recoverability. Modern negligence law applies broad considerations of foreseeability, proximity, fairness, justice and reasonableness to claims whatever the nature of the harm. The reasoning in McFarlane v Tayside Health Board [2000] 2 AC 59 was therefore not confined to the precise head of loss considered there.
3. Loss caused by the child’s existence. Although McFarlane had not expressly decided the recoverability of loss of earnings in this form, it had in substance rejected liability for the responsibilities consequential on the birth of a healthy child. A mother’s loss of earnings while caring for such a child was materially indistinguishable from the costs of bringing up the child. The loss was caused in law by the existence of the child, rather than by the pregnancy. The Court also treated pregnancy- and confinement-related loss as potentially distinct, but that issue was not before it.
4. Article 8. The amendment application failed for two independent reasons. The judge’s decision was a judicial act, and section 9(1)(a) of the Human Rights Act 1998 made an appeal the relevant route. However, the Act was not in force when the judge decided the case, so there was no domestic obligation then requiring him to act as contended. In any event, Article 8 did not require English law to provide damages or financial assistance enabling a parent to remain at home to care for children. The wide margin of appreciation and the guidance in Andersson and Kullman v Sweden 46 DR 251 defeated the argument.
5. Additional reasoning. Laws LJ emphasised that damages compensate detriment, not benefit. The existence of a healthy and loved child could not be characterised as a detriment for this purpose. He added that any earlier Court of Appeal reasoning inconsistent with McFarlane would have been disapproved by that decision. Costs were agreed at £14,333, subject to legal aid assessment.

1. Court of Appeal: [2001] EWCA Civ 113, 24 January 2001. The appeal was dismissed and the application to add the Article 8 ground was refused.
2. Queen’s Bench Division: His Honour Judge Langan QC decided a preliminary issue and held that the claimed loss of earnings was not recoverable.