Groom v Selby

In a wrongful-birth claim, recovery is not confined to disabilities present or apparent at birth. Additional costs of raising a disabled child may be recoverable where the disability arose from genetic causes or foreseeable events in pregnancy, childbirth or the immediate consequences of those processes, and no new intervening act broke causation. A direct causal link between the negligence and the disability is unnecessary where the negligence allowed an unwanted pregnancy to continue and the disability flowed from the normal incidents of development and birth. The ordinary costs of raising a healthy child remain excluded. Liability for this novel economic loss depends on foreseeability, proximity, assumed responsibility, the purpose of the duty, the absence of a radical extension of liability, and what is fair, just and reasonable. The case is fact-sensitive, particularly as the interval before disability appears lengthens.

After a sterilisation operation, the claimant's pregnancy was negligently missed. She would have sought termination had it been diagnosed. Her daughter was born prematurely and initially appeared healthy, but contracted salmonella meningitis about three and a half weeks after birth, causing uncertain but potentially severe disability.

On preliminary issues, Judge Peter Clark held that ordinary costs of raising a healthy child were not recoverable, but additional disability-related costs were. The claimant's cross-appeal on ordinary costs was dismissed by consent. The defendant appealed the disability-costs ruling and the costs order. The central issue was whether the postnatal infection and resulting disability were too remote or represented a new intervening cause in a wrongful-birth claim.

Brooke LJ delivered the leading judgment; Hale LJ and David Steel J agreed. The appeal was dismissed.

1. The child's prematurity and exposure to salmonella during the ordinary processes of birth were foreseeable consequences of the negligent failure to diagnose the unwanted pregnancy. No new intervening act broke the chain of causation. The fact that the infection became symptomatic several weeks after birth did not prevent recovery where its causes were already in place when the umbilical cord was severed.
2. The Court applied the reasoning in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530. The principle in McFarlane v Tayside Health Authority [2000] 2 AC 59 was confined to the ordinary costs of bringing up a healthy child. It did not prevent recovery of the additional costs associated with serious disability, even where the negligence did not directly cause that disability.
3. For novel economic-loss liability, the relevant considerations included foreseeability, proximity, assumption of responsibility, the purpose of the doctor's duty, whether liability involved a radical step into the unknown, and whether limited compensation was fair, just and reasonable. Dr Selby's knowledge that the claimant had been sterilised and wanted no more children supported the necessary scope of duty. The court saw no need to invoke every recent House of Lords test or principles of distributive justice in every difficult case.
4. The statutory context of usual wrongful-birth cases involving detectable foetal abnormality was different. Section 1(d) of the Abortion Act 1967, as substituted by section 37(1) of the Human Fertilisation and Embryology Act 1990, permitted termination in such circumstances, making causation and fairness issues more straightforward. The present case concerned a pregnancy which would have been terminated despite no detectable foetal abnormality.
5. Hale LJ added that the upbringing costs were properly viewed as economic losses consequential upon the invasion of bodily integrity caused by an unwanted pregnancy, rather than pure economic loss. The distinction between scope of duty and scope of damages was immaterial to the result. The defendant was ordered to pay the claimant's appeal costs, assessed if not agreed, and the costs below.

• Court of Appeal (Civil Division) — In [2001] EWCA Civ 1522, dismissed the defendant's appeal. The defendant was ordered to pay the claimant's appeal costs and the costs below.
• Queen's Bench Division — Judge Peter Clark held that ordinary costs of bringing up a healthy child were not recoverable, but that additional costs attributable to disability were recoverable. The claimant's proposed cross-appeal on ordinary costs was dismissed by consent.