LAW MANTRA

THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

MacFarlane and another v Tayside Health Board [2000] 2 AC 591

OVER VIEW The case commentary is based on a land mark Scotland judgment named, MacFarlane and another v Tayside Health Board. This commentary is a critic analysis where it explains the case, giving special attention to legal issues in this case, application of the principle concepts of law of Torts and developments or any draw backs the judgment has brought to the existing law. Before analyzing the case it is important to know a brief description about facts of the case to understand the basis of this case. There are five House of Lords giving reasoning to their judgment, and they have amazingly cited the case law while referring to concepts of law on Torts too. In the conclusion of the analysis, the draw backs and the developments that this judgment brought to the existing law is mentioned. This commentary has taken an effort to get the critics from the case itself while understanding the argumentation based on this case; therefore this analysis is a case study. Facts of the Case in Brief In explaining the history of the matter, in 1989 when they had four children, they had agreed that they would have no more children and that the first named pursuer Mr. MacFarlane would undergo a vasectomy operation. They aver that he underwent a vasectomy operation performed by a Mr. Irving on 16 October 1989. Prior to the operation there had been a discussion with both Pursuers (Mr. and Mrs. MacFarlane) about the subsequent procedures. It was understood that during a period after the operation two samples would be required to be provided by the first named pursuer in order to ascertain whether any motile sperm were still
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Jayani De Siva, LL.B.( Hons) (Colombo)

evident. The first named pursuer provided samples in January and February 1990. But the pursuers aver that an analysis relating to the sperm of another patient was erroneously attributed to him, or at least an erroneous record was made of an analysis of a sample as having been provided by him on 23 March 1990. By letter dated 24 March 1990 Mr. Irving wrote to the first named pursuer stating Your sperm counts are now negative and you may dispense with contraceptive precautions. After receiving the letter the pursuers dispensed with contraceptive precautions. In about September 1991 the second named pursuers became pregnant. The pursuers do not aver that they gave to the defenders any particular information about the reason for the desired vasectomy. They had agreed between themselves that they did not want any more children and it may be assumed that was the most that the defenders would know.2

Case Study The back ground of this MacFarlane case is that Lord Ordinary3 and Lord Gill held that the pursuers were not entitled to any damages4 and they dismissed the two claims5. The Second division6 recalled the Lord Ordinarys interlocutor and allowed the pursuers a proof before answer on both parts of their claim 7 on the grounds of law principles and that there was no overriding objection on the ground of public policy and therefore the both claims held to be

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MacFarlane and another v Tayside Health Board [2000] 2 AC 59 The Lord Ordinary said that the case should be decided on the principle that the privilege of being a parent is immeasurable in monetary terms and transcended any patrimonial loss that might be incurred in consequences of the childs existence. He held that the pursuers in such a case as this could not be said be in a position of overall loss, MacFarlane and another v Tayside Health Board [2000] 2 AC 59 4 MacFarlane and another v Tayside Health Board [1997] S.L.T. 211 5 Mrs. MacFarlane suffered pain and distress from the pregnancy and birth claiming 10,000 pounds and Costs in rearing the Chile Catherine claiming 100,000 pounds 6 Lord Justice Clerk, and Lords McCluskey and Allanbridge, on the other hand, took what may be described as the traditional view of delictual liability: where damnum has resulted from injuria, the law recognizes a legal interest which must be made good by an award of damages. 7 MacFarlane and another v Tayside Health Board [1998] S.L.T. 307

admissible. The land mark judgment 8 which was finally heard by the House of Lords9 is analyzed in this case commentary under three main aspects. They are to critically analyze the case giving special attention to the legal issues in this case, application of the principle concepts of Tort and developments or any draw backs the judgment has brought to the existing law. The nature and the back ground of this case is that it is regarding a wrongful birth which led to an action by parents of an unwanted child for damage resulting from the birth of the child that the claim is framed in Delict and also it is brought under the extended Hedley Byrne principle10 are the main aspects concentrated through out the judgment. The issues of this case is briefly given11 in a question format and the most important two will be the claim asking for the pain, distress suffered from the pregnancy and the costs in rearing the child. It is important to state that similar issues arising from other methods of preventing conception and birth, have arisen earlier too before the courts of England and Scotland for many years, but have not yet been considered by Lordships a case with similar facts. In the courts of United States of America, of the Commonwealth and of other European States too has faced this issue, which has been considered and those are used in this judgment giving an in-depth comparative case law analysis. The conclusion of this analysis in case law was that there is no single universally applied test12. Lord Slynn of Hadley examines the trend of decisions of Scotland and also to law of England, because that is same in England in respect of the matters which aroused in this case.

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MacFarlane and another v Tayside Health Board [2000] 2 AC 59 Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Millett held, damages could be made payable in respect of the pain and suffering associated with an unwanted pregnancy and confinement, but that the costs of brining up the child were irrecoverable. 10 Hedley Byrne & Co. Ltd. V Heller & Partners Ltd. [1964] A.C. 465 11 MacFarlane and another v Tayside Health Board [2000] 2 AC 59, i) Are the pursuers entitled to damages? ii) Is the second pursuers entitled to claim solatium? iii) Are the pursuers entitled to claim for the financial consequences of pregnancy and the birth of the child? iv) Is a claim for financial consequences of the pregnancy and birth excluded as being for pure economic loss? v) Does public policy exclude the pursuers claims for damages in whole or in part? vi) Does the fact that the pursuers now have, as a result of the alleged negligence, a live healthy child, disentitle them to damages in whole or in part? 12 MacFarlane and another v Tayside Health Board [2000] 2 AC 59

There are number of cases cited in this judgment and few cases have been referred to support the case analysis. In the case of Sciuriage13 it was held the sole reason for the continuation of the pregnancy was the doctors breach of contact. They awarded damages for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but did not award damages for maintenance of the child. In another case claim was rejected for the future cost of the childs upbringing to age sixteen14. At the same time there was a case, the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child15. In the case of Thake v. Maurice16 damages were awarded in respect of expenses of the birth and the mothers loss of wages but refused damages for the pain and distress. In a very recent case 17 decided closer to this judgment damages were awarded as general and special damages 96,631 pounds including the cost of maintaining the child until she was 18 years. This judgment was followed by in two other cases18 is identical. Therefore with the number of case laws cited in this judgment what is important to realize is, that there is no applicable universal law and the decision will depend on the discretion of the judges and also according to the facts of the case. There has thus been in England and Scotland a trend towards allowing damages both for the pain and suffering and distress of an unplanned pregnancy and birth and also for the cost of rearing the child born19 was mentioned by Lord Slynn of Hadley in this judgment. Citing cases from European countries20 it was held that none is binding on your Lordships and it must be decided which of these approaches is as a matter of principle to be adopted as a rule of law of Scotland and

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Sciuriaga v Powell (1979) 123 Solicitors Journal 406 Udale v Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098 15 The court took a multiplier of 8 for a child 5 years old at that time of the appeal 16 [1986] Q.B. 644 17 Allan v Bloomsbury Health Authority [1993] 1 All. E.R. 651 18 Crouchman v Burke 40 B.M.L.R. 163 and Robinson v Salford Health Authority [1992] 3 Med L.R. 270 19 MacFarlane and another v Tayside Health Board [2000] 2 AC 59 20 In the Common Law of Europe Case books torts (edited by Professor W. Van Gerven, Jeremy Lever Q.C. and others [1998]) there is an analysis of cases in the French, German and Dutch courts. In these jurisdictions also different courts have taken different views on the different legan and ethical issues arose. In the valuable article Damages for the Birth of a Chile by Angus Stewart Q.C. that the law is still developing and that there is no universal and clear approach. - MacFarlane and another v Tayside Health Board [2000] 2 AC 59

England21 was held which could be taken as a good analysis of the case laws, thinking of the reforms that the law of Scotland should need to exist. There are no direct applicable set of rules or elements derived from law of Torts to fulfill the claims that the pursuers are asking for, as mentioned before that there is no universal applicable law. In this analysis it is important to note that this judgment has taken few concepts from law of Torts and argued on those to prove their decision that they held. It was held in this judgment that in relation to liability, the House recognized in respect of economic loss and in order to create a liability there may have to be a closer link between the act and the damages than foreseeability provides in order to create liability. To further explain the Lordship has cited the case Caparo Industries Plc. V Dickman22. In this case of MacFarlane, the argumentation House of Lords have brought is that the doctor who undertakes a duty of care in regard to the prevention of pregnancy; it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family.23 They also argue saying that the primary submission should fail because the natural process of conception and childbirth cannot in law amount to personal injury. On the other hand, it is inconsistent with many other decisions, notably where limited recovery of compensation for pain, suffering and distress is allowed.24 It is mentioned that every pregnancy involves substantial discomfort and pain. It is important to look at considerations of distributive justice and the tort law applicable to this case does not permit parents of a healthy unwanted child to claim costs of bringing up the child from a health authority and if it is so it will be unfair, unjust and unreasonable. With the above applicable principles, the ordinary standards of care also will apply. A surgeon who fails to fulfill the duties of care to be expected of a professional man of ordinary skill will be held to have been negligent. The
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MacFarlane and another v Tayside Health Board [2000] 2 AC 59 [1990] 2 A.C. 605 Lord bridge said that there should be a relationship of neihgbourhood or proximity between the person said to owe the duty and the person to whom it is said to be owed. The relationship depends on whether it is fair, just and reasonable for the law to impose the duty. As Mr. Stewart Q.C. says the alternative test is to ask whether the doctor or the Board has assumed responsibility for the economic interest of the claimant with concomitant reliance by the claimant 23 MacFarlane and another v Tayside Health Board [2000] 2 AC 59 24 ibid

specialists in the laboratory who receive and analyze the sperm samples and who are responsible for recording the results and advising the patients about them will also be held to have been negligent if they fail to exercise the skill and competence which is reasonably to be expected of them. 25 Difficult question of law is, should a child be born following the sterilization procedures, to the extent of their liability to the parents of the child in damages. The Nervada court held in a case26 that the constituent elements of a tort were not present and that tort actions for the birth of a normal child should be disallowed. When it comes to the economic loss concept in this case, Lord Hope of Craighead states that this economic loss must be held to fall out side the ambit of the duty of care which was owed to Mr. and Mrs. MacFarlane by the persons who carried the procedure in the hospital and in the laboratory27. The cost of maintenance of the child seems to be a loss near the limits of the causal chain, but cannot be reasonably suggested that the chain was broken by any norvus actus on the part of the pursuers28. Largely attempting to side-step the policy issues, the Lordships took the view that the child rearing costs were a form of pure economic loss and thus irrecoverable 29. On the

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MacFarlane and another v Tayside Health Board [2000] 2 AC 59 Szekeres v Robinson [1986] 715 P. 2d. 1078: Springer J. said as to the case of healthy although unwanted child many courts have taken for granted that normal birth is an injurious and damaging consequence and have disagreed only on the how-much part of such claims. We do not take the wrongness for the injuriousness of the birth event for granted and say, to the contrary, that normal birth is not a wrong, its a right. It is and event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to the negligent conduct of someone purporting to be able to prevent the eventuality of child birth., MacFarlane and another v Tayside Health Board [2000] 2 AC 59 27 In my opinion it would not be fair, just or reasonable, in any assessment of the loss caused by the birth of the child, to leave these benefits out of account. Otherwise the pursuers would be paid far too much. They would be relieved of the cost of rearing the child. They would not be giving anything back to the wrongdoer for the benefits. But the value which is to be attached to these benefits is incalculable. The costs can be calculated but the benefits, which in fairness must be set against them, cannot. The logical conclusion, as a matter of law, is that the costs to the pursuers of meeting their obligations to the child during her childhood are not recoverable as damages. It cannot be established that, overall and in the long run, these costs will exceed the value of the benefits, MacFarlane and another v Tayside Health Board [2000] 2 AC 59 28 The decision to keep the child, to accept into the family a baby who was originally unwanted, cannot rank as an acting on the part of the pursuers sufficient to break the causal chain. It seems to me that a sufficient causal connection can be made out, It seems to me that even if a sufficient causal connection exists the cost of maintaining the child goes far beyond any liability which in the circumstances of the present case the defenders could reasonably have though they were undertaking. Furthermore, reasonableness includes a consideration of the proportionality between the wrongdoing and the loss suffered thereby, MacFarlane and another v Tayside Health Board [2000] 2 AC 59 29 On the other hand Lord Steyn [2000] A.C. 59 at 82 did recognize the cogency of the policy arguments against the imposition of liability based on the sanctity and value of human life, and Lord Hope (at 97) acknowledged the

other hand, it has been held that the special costs associated with brining up a disabled child following a negligently performed sterilization are recoverable.30 Equally, if a woman undergoes a negligently performed sterilization operation because she herself is disabled, the costs of rearing any child31 born subsequently are recoverable.32 These were the main concepts and the principles of law of Torts that the decisions of House of Lords were based on. Conclusion The conclusion of this case commentary will address draw backs of the judgment and the development of this judgment to the existing law. The House of Lords have failed to consider which party was best able to meet the loss or insure them against it. They also failed to recognize the many non-pecuniary detriments to be balanced against the non-pecuniary benefits gained in having a child. The arguments they used to prove about limited damage rule also seem not sufficient. Also given that policy was at the root of the decision to first allow damages for child rearing then it might have been better to consider openly the policy factors. Their Lordships have clearly failed to justify their decision.33 Though this article which is cited, clearly mentions this case as a draw back to the existing law as a judgment which has not justified, there is a development also in this case that the existing law can accept. Any writer or an authority can criticize a judgment, but it has to be looked in-depth to see if it is a draw back to the existing law is also important. Since there are no elements fixed in Tort law which prevails in Scotland or England, when it is an incident like in this case, the judges have their discretion to cite the case law and relate the principles of law of Torts and justify as what they think fair and reasonable. It should be noted that it clearly states that there is no universal principle applicable for this situation. This case has been very thoroughly analyzed through
benefits associated with having a child that (were they calculable) would have to be set off against the cost bringing up a child (were they recoverable which they were not). 30 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] Q.B. 266. This so regardless of whether it is a matter of pure bad luck that the child comes to be born with a disability, or whether it manifests within a few weeks of birth: Groom v Selby [2001] EWCA Civ 1522, [2001] 64 BMLR 47 31 Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [2002] 2 All ER 177 32 John Murphy, Street on Torts, Eleventh Edition, Lexis Nexis, United Kingdom, 2003, pp 227 33 Dr Alasdair Maclean, McFarlane v Tayside Health Board: A Wrongful Conception in the House of Lords?, [2000] 3 Web JCLI, http://webjcli.ncl.ac.uk/2000/issue3/maclean3.html , accessed 20-03-2012

case law along with concepts such as duty of care, pure economic loss, distributive justice and with the public policy argumentations. There has been nothing lacking in the judgment with referring to case law or principle aspects. In this case the development the House of Lords tried to bring in to the existing law is that the Lord Slynn of Hedley citing cases from European countries it was held that none is binding on your Lordships and it must be decided which of these approaches is as a matter of principle to be adopted as a rule of law of Scotland and England.34 Therefore it is important to notice his statement as a development that in this case the Lordships have tried to point out that there is a need to fix set of rules or elements that should constitute for a case like this and also to identify what are the approaches that they should follow. This is a very identical land mark case and therefore this case consists a mixture of development and draw backs addressing the main issues which were if it is to compensate the pain and suffering cause due to pregnancy or if to compensate child rearing costs and held child damages could be made payable in respect of the pain and suffering associated with an unwanted pregnancy and confinement only.

By:Jayani De Siva LL.B.( Hons) (Colombo)

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MacFarlane and another v Tayside Health Board [2000] 2 AC 59