Toombes v Mitchell

Section 1 of the Congenital Disabilities (Civil Liability) Act 1976 permits a child born disabled to claim where negligent advice causes an occurrence before conception which affects a parent’s ability to have a healthy child and results in the disability. The claim is not excluded merely because, without the negligence, the claimant would never have been conceived. Sexual intercourse undertaken in reliance on negligent advice may constitute the relevant occurrence. The statutory exclusion for wrongful-life claims applies to the different case in which negligence during pregnancy allegedly failed to prevent the birth of an already conceived child. Damages are assessed as personal-injury damages for the disability, not by comparing existence with non-existence.

The claimant alleged that negligent pre-conception advice by the defendant general practitioner caused her mother to conceive while folic-acid deficient. On agreed facts, proper advice would have delayed conception, so that the claimant would not have been conceived; a genetically different, healthy sibling would instead have been conceived. The claimant was born with a neural-tube defect and claimed damages for the additional losses associated with her disability.

The action came before the High Court for trial of a preliminary issue: whether those facts disclosed a lawful cause of action under the Congenital Disabilities (Civil Liability) Act 1976, or whether the claim was an excluded wrongful-life claim involving an impermissible comparison with non-existence.

1. Judgment for the claimant. On the agreed facts, the claim disclosed a lawful cause of action under section 1 of the Congenital Disabilities (Civil Liability) Act 1976.
2. A claim under section 1 contains three components: a wrongful act, an occurrence falling within section 1(2)(a) or (b), and a child born disabled as a result of that occurrence. The occurrence need not involve a physical or physiological change in the mother. Section 1(3) expressly addresses cases where the parent has no actionable injury.
3. In an appropriate case, sexual intercourse may itself be the relevant occurrence. Here, intercourse undertaken while the mother was folic-acid deficient, in reliance on negligent advice, was an occurrence affecting her ability to have a healthy child. It led to the claimant’s conception and disability.
4. The distinction between section 1(2)(a) and section 1(2)(b) is material. The rider in section 1(2)(b) assumes that, absent the occurrence, the child would have been born normal and healthy. No equivalent rider appears in section 1(2)(a). A pre-conception claim is therefore not barred merely because the child would never otherwise have been conceived.
5. The necessary causal connection remains essential. A child cannot recover where the circumstances of intercourse did not cause or contribute to the disability, as in the suggested example of a genetic disability which would have been inherited in any event. The present disability resulted from conception while the mother was folic-acid deficient.
6. McKay v Essex Area Health Authority [1982] 2 All ER 771 concerned a post-conception claim alleging that negligent pregnancy management should have resulted in termination. It did not decide the pre-conception issue arising here. Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2017] EWCA Civ 139 concerned a different statutory scheme and did not alter the analysis.
7. The claim is for personal injury arising from disability. The Act resolves the alleged quantification difficulty by permitting assessment according to conventional principles, without comparison between existence and non-existence.