XX v Whittington Hospital NHS Trust

In assessing damages for medical negligence, the court may award the reasonable cost of lawful domestic surrogacy using the claimant’s own eggs where the prospects of success are reasonable. The cost of commercial surrogacy abroad remains irrecoverable where the arrangement is contrary to public policy in England and Wales, even if lawful where undertaken. Donor-egg surrogacy is not restorative of the claimant’s loss of fertility and is not recoverable. Provisional damages require a real risk of serious deterioration and a proper case for departing from the once-and-for-all rule; a temporary psychological deterioration likely to respond to treatment did not satisfy that test. A claimant may fall within disability definitions while still working, but future earnings loss should be assessed broadly where a multiplier-and-multiplicand calculation would be unrealistic.

The claimant suffered loss of fertility and serious bladder, bowel and vaginal injuries following the defendant’s admitted negligent delay in diagnosing cervical cancer. Causation was admitted, and the trial concerned quantum. The principal issues were whether damages should include provisional damages for possible future psychological harm, the cost of surrogacy in California or the United Kingdom, future loss of earnings, and future treatment and medication. The court also considered life expectancy and the appropriate assessment of disability-related earnings loss.

1. Provisional damages. The risk of psychological deterioration after wholly unsuccessful surrogacy was real, at 30–40%, but the likely deterioration was temporary and treatable. It was therefore not sufficiently serious, and this was not a proper case for departing from the normal once-and-for-all award. Provisional damages were awarded only for the agreed risk of radiation enteritis causing gastrointestinal failure and possible home parenteral nutrition.
2. Surrogacy. The claim for Californian commercial surrogacy failed. The court was bound by Briody v St Helens and Knowsley Area Health Authority (2002) QB 856: commercial surrogacy remained illegal in the United Kingdom and contrary to public policy, and the fact that the arrangement would be made in California did not alter that conclusion. The Human Fertilisation and Embryology Act 2008 had not made commercial surrogacy contracts lawful. By contrast, lawful United Kingdom surrogacy using the claimant’s own eggs could attract an award where the prospects of a live birth were reasonable. Donor eggs were excluded because they were not restorative of the loss of the claimant’s ability to have her own child. The award was limited to two UK surrogacies, reflecting the expert evidence.
3. Loss of earnings. The claimant was disabled under section 6 of the Equality Act 2010 and under the Ogden Tables definition, despite continuing in the same employment. Following Billett v Ministry of Defence (2015) EWCA Civ 773, a multiplier-and-multiplicand calculation was rejected as unrealistic. A broad Smith v Manchester assessment produced four years’ earnings.
4. The total damages were £580,618.52. The court found no reduction in life expectancy and directed the parties to draw up the order, including the provisional-damages order.