McFarlane v Tayside Health Board [1999] UKHL 50

Following a negligently performed vasectomy and incorrect advice that Mr McFarlane was sterile, Mrs McFarlane became pregnant and gave birth to a healthy fifth child. The House of Lords held that while the mother could recover damages for pain and suffering from pregnancy and childbirth, neither parent could recover the costs of raising the child.

Facts

Mr McFarlane underwent a vasectomy operation in October 1989. Following sperm sample analysis, he was advised by letter in March 1990 that his sperm counts were negative and he could dispense with contraceptive precautions. The couple, who already had four children and had decided not to have any more, ceased using contraception. Mrs McFarlane became pregnant in September 1991 and gave birth to a healthy daughter, Catherine, in May 1992. The couple alleged negligence in the compilation of seminal analysis records and in advising that contraceptive precautions could be dispensed with.

Claims Made

Mrs McFarlane claimed £10,000 for pain, suffering and distress resulting from the unwanted pregnancy. Both parents jointly claimed £100,000 for the financial costs of bringing up Catherine.

Issues

The principal issues before the House of Lords were:

• Whether the mother was entitled to damages for pain and suffering arising from pregnancy and childbirth
• Whether the parents were entitled to recover the costs of raising a healthy child born as a result of the negligence
• Whether public policy considerations precluded recovery
• Whether the birth of a healthy child negated any claim for damages

Judgment

The Mother’s Claim for Pain and Suffering

The House of Lords unanimously held (with Lord Millett dissenting on this point) that Mrs McFarlane was entitled to recover damages for pain, suffering and distress associated with the pregnancy and childbirth. The Lords rejected the argument that pregnancy and childbirth, being natural processes, could not constitute personal injury. Lord Slynn stated that the wife was entitled to compensation for the pain, discomfort and inconvenience of the unwanted pregnancy and birth, as well as special damages associated with both.

The Claim for Child-Rearing Costs

The House unanimously held that the costs of raising Catherine were not recoverable. Different Lords expressed varying reasoning:

Lord Slynn held that while the economic loss was foreseeable, it was not fair, just or reasonable to impose liability for the consequential responsibilities of bringing up a child. The doctor did not assume responsibility for those economic losses.

Lord Steyn invoked considerations of distributive justice, stating that ordinary members of the public would consider it morally unacceptable for parents of a healthy unwanted child to recover the costs of upbringing. He observed that tort law does not permit such recovery where courts are searching for what is fair and reasonable.

Lord Hope applied the principles from Caparo Industries v Dickman, finding that while the costs were foreseeable, it would not be fair, just or reasonable to leave the benefits of having a child out of account when assessing loss. Since those benefits were incalculable, it could not be established that the costs exceeded the value of the benefits.

Lord Clyde emphasised that the idea of restitution underlying damages meant that it would be unreasonable for the pursuers to be relieved entirely of the financial obligations of caring for their child while enjoying the benefits of parenthood.

Lord Millett, while agreeing on the child-rearing costs, would also have rejected the mother’s claim for pain and suffering, viewing pregnancy and delivery as the inescapable price of parenthood. However, he suggested a conventional sum of up to £5,000 should be awarded for loss of personal autonomy.

Implications

This case established the definitive position in UK law regarding ‘wrongful birth’ claims following failed sterilisation procedures. It confirms that:

• Mothers can recover damages for the physical consequences of unwanted pregnancy and childbirth
• Parents cannot recover the ordinary costs of raising a healthy child born as a result of medical negligence
• The birth of a healthy child must be regarded as a blessing rather than a detriment as a matter of law
• Considerations of distributive justice and what is fair, just and reasonable limit the scope of recoverable damages in negligence

The decision has been influential in subsequent cases concerning the scope of medical negligence liability and the recoverability of pure economic loss.

Verdict: Appeal allowed in part. The claim for the costs of raising the child was dismissed. The mother's claim for damages for pain and suffering arising from pregnancy and childbirth was allowed to proceed to proof.

Source: McFarlane v Tayside Health Board [1999] UKHL 50