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philosophies on the issue. Surely it is not beyond the wit of man to assess
the damage done not on the basis of the actual circumstances but, rather,
on the basis of the cost involved in the upkeep of the average child born to
the average family. This is not a novel idea. To quote Lord Cameron:
‘[A]ccount [can] be taken of the parents’ means in the sense that it will be
unreasonable to compensate the well-to-do parents to any substantially greater
level than the parents of more modest means. To take an example, the amount of
the layette of which an allowance would be made should be set at a reasonable and
not an extravagant level, albeit that the well-to-do may well have exceeded that
level because they have the means to enable them to express their love and care for
the child in a more expensive fashion. Equally the same principle of reasonable-
ness should apply in relation to items as divergent as necessary accommodation
and fees for schooling.114
Recourse to the ‘conventional child’ also eliminates the reverse of this –
that is, the proposition that damages for upkeep of the child should be
adjusted so as to accommodate the capacity of the family to withstand the
costs115 and, in so doing it provides a recognisable benchmark against
which potential tortfeasors can know the extent of their liability. True,
some would still come out comparatively worse or better than others. But,
at least, it would maintain elements of fairness and consistency that are so
essential to public acceptance of the legal process.
The difficulty in analysing their Lordships’ principles is that each
appears to have been seeking a legalistic escape from what is, essentially,
a moral dilemma – and, indeed the House was later to admit the presence
of those moral doubts was sufficient to deflect the normal rules of tort
law.116 We have not yet isolated a single, solid legal ratio that explains
why responsibility for the economic loss sustained by the parents must be
held to fall outside the ambit of the duty of care which was owed them by
the health carers. Hoyano117 concluded, simply, that the House decided,
at least by a majority, that no duty of care was owed in respect of main-
tenance costs. This of itself, however, seems an inadequate explanation
and I suggest, in addition, that the general tenor to emerge is that it was


114
Allan, n. 57 above, at 585.
115
It will be recalled that Newman J in Rand v. East Dorset Health Authority (2000) 56
BMLR 39, [2000] Lloyd’s Rep Med 181 thought that it should be so; Henriques J in
Hardman v. Amin (2000) 59 BMLR 58, [2000] Lloyd’s Rep Med 498 and Toulson J in
Lee v. Taunton and Somerset NHS Trust [2001] FLR 419, [2001] Fam Law 103 took the
opposite view – to my mind, correctly.
116
See discussion of Rees v. Darlington Memorial Hospital NHS Trust in Chapter 5.
117
n. 70 above at 890, citing Lords Slynn, Hope and Steyn. She considered Lords Clyde
and Millett to have adopted the ratio that there was no loss deriving from the
pregnancy.
Unsuccessful sterilisation 125

not fair, just and reasonable in Caparo118 terms to attribute liability. My
problem, and I suspect it is that of many, is to discover why it is not
equally unreasonable to deny economic relief to couples who have been
forced into economic loss through the admitted negligence of a person
who was trusted to exercise a proper degree of professional skill.
Returning to Lord Cameron, speaking before the McFarlane decision:
The question must be asked whether there is any reason why the law . . . should
not recognise as elements sounding in damages, circumstances such as the addi-
tional financial hardships imposed on the parent or parents who require to take
into the family the unexpected and unplanned child after birth, in accommodat-
ing and caring for that child thereafter and, particularly in the case of a handi-
capped child, in meeting the additional burdens arising from the distress
occasioned by its handicap and the extra payments which they require to make
to enable the child to live as near to a normal life as possible. Why, in the case of a
handicapped child, for instance, should not a parent who requires to give up
employment or the like to care for the child, sue for the loss so occasioned? I see
nothing in principle to prevent this. If that be so, why should a healthy child be
dealt with differently in regard to a similar loss?119
McFarlane was a dispute between two individual parties – can it be said
that justice was seen to be done? As already remarked, we will have to turn
to the Commonwealth in order to obtain a wider view of the debate.120

Wrongful pregnancy in Australia
One thing that is absolutely clear from McFarlane is that the precedent it
set did not extend beyond the upkeep of a healthy child; the consequence,

118
Caparo (n. 97 above) was concerned, in the main, with the duty of care per se. Lord
Oliver, however, specifically associated this with liability (at AC 633, All ER 585). I have
assumed that it would now be held as self-evident that the element of trust established in
Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465, [1963] 2 All ER 575 as
being necessary before liability for economic loss can be entertained exists between the
professionals and the patient in both wrongful pregnancy and wrongful birth scenarios:
for discussion, see Toulson J in Lee, n. 73 above at FLR 423–4. In any event, as Lord
Steyn said: ‘it ought not to make any difference whether the claim is based on negligence
simpliciter or on the extended Hedley Byrne principle’ (at AC 83, SC 18).
119
Allan v. Greater Glasgow Health Board n. 57 above, at 584.
120
We have unearthed an interesting historic incident which may serve as a canape to ´
decisions from the major jurisdictions. In Ho and another v. Chan and others (1991)
(Unreported, High Court of Hong Kong, HCA003490A/1986) a couple averred they
had not been properly warned of a risk of failure of tubal ligation. The woman appears to
have been almost pressurised into refusing a termination. At the end of a very thorough
opinion, Liu J found that they had, in fact, had sufficient warning in accordance with
Hong Kong medical practice in the 1980s. Nevertheless, had negligence been demon-
strated, he would have awarded substantial damages including those for upkeep of a
normal child. Interestingly, Liu J said there were 27 reported cases of conception ‘even
after hysterectomy’; unfortunately, he quoted no authority.
126 The troubled pregnancy

as we have seen from Chapter 3, was a rash of cases, each attempting, in
its own way, to ensure that it remained that way. We have, however, also
seen that almost all of these concerned instances of wrongful birth and, as
such, were not strictly relevant to the wrongful pregnancy model of
McFarlane. Nonetheless, they are of immediate interest in that none of
the judges concerned showed any marked inclination to disturb the basic
principle established in the House of Lords. Thus, such was the general
mood of acquiescence to a unanimous decision in the highest forum, that
the alternatives already expressed lay buried in the archives of the Court
of Session and were scarcely discussed in the English courts. Instead, a
steady tradition evolved of allowing the additional costs consequent upon
the extra expenditure of child-rearing involved in the upkeep of a disabled
minor; the plight of the reluctant parents of an additional healthy child
was largely forgotten121 – mainly due to the happy eventuality that the
great majority of those who accepted their uncovenanted children did so
in a loving and wholly admirable way.
But such a happy ending may not always arise, nor are we entitled to
expect those whose lifestyle has been unwittingly disturbed to be content
with their lot. It was fortunate, at least from the academic viewpoint, that
a case of similar importance to McFarlane was litigated in Australia at the
same time. An opportunity thus arose to extend the wrongful pregnancy
debate into a comparative setting.

The case of Mrs Melchior
Mrs Melchior’s case was first heard in the Supreme Court of
Queensland122 in 2000. Her obstetric history was interesting in that, at
the age of 15, her right ovary had been removed on medical grounds.
Nevertheless, she had had two children before she underwent an elective
sterilisation at the age of 40. The right fallopian tube was not visualised
and was assumed to have been removed with her ovary; consequently
only the left tube was correctly clipped laparoscopically. Four years later,
she became pregnant and was delivered of a healthy child. Further inves-
tigation revealed that the right tube was still present and patent and it was
assumed that an egg from the left ovary had migrated across the pelvic
cavity. Dr Cattanach was found to have been negligent but, however
instructive the case may have been in physiological terms, we are con-
cerned here only with the extent of the damages awarded.


121
Until the case of Parkinson, which is considered in detail in Chapter 5.
122
Melchior v. Cattanach [2000] QSC 285.
Unsuccessful sterilisation 127

In the event, the standard claims were met by the particularly Australian
variation on the defence of failure to mitigate – namely that any damages
other than those allowed for pain and suffering should be curtailed by
reference to the theoretical time at which the child could have been adop-
ted.123 Holmes J was guided, in the main, by the Australian NSW Court of
Appeal decision in CES v. Superclinics (Australia) Pty Ltd124 and by the
House of Lords ruling in McFarlane. Having gone through the, by now,
almost routine distillate of the five speeches in the latter, she had this to say:
[W]ere there a single, distinct line of reasoning to be discerned from either
[McFarlane or CES] I should follow it. However, given the divergence of
approach, I can see no alternative but to distil from those decisions the reasoning
which appeals to me as sound.125
She then went on, effectively – and, in this writer’s opinion, with impec-
cable logic – to discard all the reasons given why recompense for main-
tenance should be withheld; innovatively, along the way, she regarded a
failure to have the child adopted (and, by implication, to terminate the
pregnancy) as being not so much an interruption in the chain of causation
as, rather, a failure to interrupt it. She preferred the reasoning relevant to
determining the existence and scope of a duty of care in cases of pure
economic loss, as was expressed in the Australian case of Perre v. Apand Pty
Ltd,126 to that in McFarlane (at [61]). As a result, she awarded the, albeit
comparatively modest, sum of A$105,249 for the costs of raising the child.
The case then went to appeal. This was dismissed by a majority but the
report of the Supreme Court of Queensland, Appeals Division appears
not to be available via database.127 The nub of the case, however, lies in
the subsequent appeal to the High Court of Australia128 where the

123
This may well be because there is no equivalent to the UK Abortion Act 1967 in either
New South Wales or Queensland.
124
(1995) 38 NSWLR 47– a case in the NSW Court of Appeal that was widely quoted in
McFarlane; the case became procedurally confused and was settled before going to
further appeal. Mention was also made of Dahl v. Purnell (1993) 15 QLR 33 in which
damages for maintenance were allowed with a moderate ‘offset’ for the intangible
benefits of a healthy child.
125
n. 122 above, at [50].
126
(1999) 73 ALJR 1190. In simplified form, the requirements for establishing a duty of
care are knowledge that the vulnerable plaintiff belongs to an ascertainable class and that
he or she relies on the specialised advice of the defender.
127
Melchior v. Cattanach [2001] QCA 246. This is the citation quoted by the High Court of
Australia. The Australasian Legal Information Institute website, however, reports only a
procedural discussion under the heading.
128
Cattanach v. Melchior (2003) 199 ALR 131. Hereafter referred to as Cattanach. My
analysis of this case was published electronically as J. K. Mason, ‘A Turn-up Down
Under: McFarlane in the Light of Cattanach’ (2004) 1 SCRIPT-ed, at http://www.law.ed.
ac.uk/ahrb/script-ed/docs/mason.asp.
128 The troubled pregnancy

hearing was limited to the single issue: if, in consequence of medical
negligence, a couple become the parents of an unintended child, can a
court, in an award of damages, require the doctor to bear the cost of
raising and maintaining the child?129
The reader may well think that I am making too much of Cattanach. It
is, however, in my view, an exceptional case. It was the first in which the
attribution of the responsibility for the costs of rearing an uncovenanted,
healthy child, who is born as a result of medical negligence, was addressed
by a panel of seven judges in the highest court of a Commonwealth
country. It is also important in that, for the first time, a panel of judges
at the highest level was divided on the issue; it therefore provides an
opportunity to analyse discordant views that have been formed on the
basis of precisely similar evidence. In the end, the High Court dismissed
Dr Cattanach’s appeal by a majority of 4 to 3. Thus, the result was close
run by any standards and we must consider the conflicting arguments in
some detail.
To an extent, the arguments for allowing the appeal were well
rehearsed in McFarlane and are, therefore, of rather less interest in the
present context than are those to the contrary. The opinions, however,
convey a real sense of urgency which I hope to demonstrate; essentially,
Cattanach represents a well-matched contest between moral and legal
principle and both sides should be presented.
Gleeson CJ’s minority opinion, although probing several avenues, can
be summarised as adopting the ‘public interest’ route in support of the
integrity of the family unit. He drew heavily on the social aspects of family
life and on the obligations that are laid on parents both by statute and at
common law which have always attached fundamental importance to
human life. His approach is most vividly expressed at [6]:
[I]n this context, the concept of value is ethical not economic. It does not depend
upon the benefits, tangible or intangible, that some children bestow upon their
parents . . . In the eyes of the law the life of a troublesome child is as valuable as that
of any other . . . The value of human life, which is universal and beyond measure-
ment, is not to be confused with the joys of parenthood, which are distributed
unevenly.
Nonetheless, he stressed that the ethical dimension could not foreclose
the debate and that the problem to be addressed was legal in nature.
Consequently, he declined to categorise the case as one of personal
injury; were that the case, he pointed out, the child’s father could be
dismissed as a ‘faintly embarrassing irrelevancy’ whereas, in fact, his role

129
Per Gleeson CJ, n. 128 above, at [1].
Unsuccessful sterilisation 129

was one of the defining features of the joint claim by the parents (at [9]).
The claim was, unarguably, one for pure economic loss. Indeed, the
impression is left that at least a proportion of Gleeson CJ’s antipathy to
allowing the damages sought lay in the ‘commercial’ itemisation of the
quantum of damages and the impossibility of defining or limiting
these.130
The cornerstone of his argument was laid in paragraph [38] where he
held that the case concerned the parent–child relationship and that to
seek to assign an economic value to that relationship is neither reasonable
nor possible. This, in turn depended on his understanding that actionable
damage, if there was any, arose because of the creation of a parental
relationship rather than as a result of conception; which, one feels, places
the claimants in something of a Catch 22 situation. It appears to be saying
that they have been forced into a position that involves economic loss;
at the same time, however, it is a loss which, short of putting the child
up for adoption, they cannot legally avoid; from which it follows that
they cannot claim compensation.131 Be that as it may, the Chief Justice
covered his tracks by concluding that ‘the law should develop novel
categories of negligence incrementally and by analogy with established
categories’;132 recognition of the present claim went beyond that and was,
therefore, unwarranted (at [39]).
Hayne J began by acknowledging what most would see as the inexor-
able consequential cascade of a failed sterilisation – conception and
pregnancy, childbirth, the financial consequences of these and the finan-
cial consequences of having a further child to maintain and nurture. Each
was a foreseeable consequence of its predecessor, all the way back to the
negligent advice, and he concluded that the relevant question was not
why the mother should be held to be entitled to recover for them but,
rather, why she should not be so entitled (at [192]). Hayne J also accepted
that the consequentialist analysis pointed logically to the existence of a
single cause of action rather than one split into the effects of pregnancy
and economic loss – a conclusion which had previously led to Lord
Millett’s expression of dissent to the mother’s claim in McFarlane.133
In the end result, however, Justice Hayne based his decision unequi-
vocally on public policy.134 His position was that the balance of benefit

130
Thus following Lords Slynn and Hope in McFarlane.
131
And see Hayne J, n. 128 above, at [244].
132
Quoting Brennan J in Sutherland Shire Council v. Heyman (1985) 157 CLR 424 at 481.
133
Hayne J also protested at categorising such actions as ‘wrongful conceptions’ or ‘wrong-
ful births’ when the negligence lay in a failure to give proper advice.
134
And, in so doing, gave a careful review of the historic relationship between the courts and
the common law – quoting, in particular, Egerton v. Brownlow (1853) 4 HL Cas 1.
130 The troubled pregnancy

and disadvantage to be derived from motherhood cannot be assessed in
monetary terms and, even if it could be so measured, ‘the parent should
not be permitted to attempt to demonstrate that the net worth of the
consequences of being obliged to rear a healthy child is a financial detri-
ment to him or her’ (at [247]):
If attention is to be paid to all of the consequences of the defendant’s negligence,
one of those consequences is that there is a new life in being . . . That life is not an
article of commerce and to it no market value can be given.

He concluded that ‘the common law should not permit recovery of
damages for the ordinary costs of rearing a child’135 and, quite simply,
proposed the development of an inflexible rule in the common law – a rule
which would preclude the parent from recovering damages in the circum-
stances envisaged:
The parent would be denied treating the child as a commodity to be given a
market value. The parent would be denied this . . . because the law should not
permit the commodification of the child.136
In my view, however, it is Justice Heydon’s opinion that provides the most
comprehensive survey of the ‘no recovery’ position.137 He began with the
practicalities to be faced in the future should the appeal be dismissed.
These include allowing for the expense of the child’s schooling,138 the
duration of the upbringing, the importance to be attached to the dimin-
ished quality of life enjoyed by the parents with a new child to look after,
and the difficulties of moderating the damages as related to the economic
standing of the parents – the common law of Australia not permitting
capping.139 All of which looks very like the development of a ‘floodgates’
argument – ‘it does indicate the nature of the litigation which will ensue if



135
n. 128 above, at [255]. Hayne J would specifically allow the extra costs involved in the
upbringing of a child with special needs (at [256] and [263]) thus coming into line with
Parkinson, discussed in Chapter 5.
136
ibid., at [261]. See also Jaensch v. Coffey (1984) 155 CLR 549 per Deane J at 583 quoted
by Heydon J at [318]. The word ‘commodification’ was used on several occasions. It was
left undefined which is a pity – there is no suggestion that the child would or could be
used as a ‘commodity’.
137
Interestingly, Stretton, in an in-depth analysis of the case, considered Heydon J to have
been the weakest of the Cattanach judgments: Dean Stretton, ‘The Birth Torts:
Damages for Wrongful Birth and Wrongful Life’ (2005) 10 Deakin Law Review
310–64.
138
Quoting, inevitably, Benarr v. Kettering Health Authority [1988] NLJR 179 and Allen v.
Bloomsbury Health Authority [1993] 1 All ER 651.
139
But see Kirby J, n. 128 above, at [162], n. 266. See also the conflict between Rand and
Hardman at n. 115 above.
Unsuccessful sterilisation 131

recovery is permitted’.140 The uncertainty as to how the money would be
spent was also considered.141
Heydon J then concentrated on the moral or public interest arguments
that can be used to support a ‘no recovery’ rule and, in reviewing the
existing published legal and academic comment, succinctly expressed (at
[317]) the difficulties in making the case:
[I]t has been one thing to reach a conclusion after experiencing revulsion or
feeling astonishment or observing a grotesque result. It has been another thing
to formulate legal reasoning to support the conclusion reached.

And, therein, lies the weakness of the ‘no recovery’ school of thought for,
despite the fact that Heydon J, for example, makes frequent appeals to
legal principles embodied in both common and statutory family law,142
these are often overshadowed by what appears to be emotive reasoning.
This is not to decry the value and strength of such emotion – this writer
and, one suspects, many readers, would agree with much of what is said.
Moreover, to claim, with approval, that ‘community views’ as to the value
of human life have been changed by the ready acceptance of contra-
ception, sterilisation and abortion,143 is not to say that change per se is
necessarily a good thing – and, in fact, this is a criticism that can be rightly
levelled against communitarian ethics in general. The problem is simply
that to say that ‘it is wrong to attempt to place a value on human life or a
value on the expense of human life because human life is invaluable’ and
that ‘the child itself is valuable . . . because it is life’144 does not answer the
fundamental question – why should people like the Melchiors not be
compensated for the financial loss imposed upon them by the negligence
of another?
This is, of course, not the sum of Justice Haydon’s case against recov-
ery. He does, for example, make a specific issue of the potential damage
to the child who has been the subject of litigation – a recurring theme
which many might feel is better directed towards the use of adversarial


140
Per Heydon J, n. 128 above, at [311].
141
A factor that drove the French courts to the unusual conclusion of allowing an action for
wrongful life brought on behalf of a disabled neonate: X v. Mutuelle d’Assurance du Corps
Sanitaire Francais et al. (2000) JCP 2293, for which see Chapter 6.
¸
142
See, for example, the importance in Australia of the Child Support (Assessment) Act
(1989 (Cth), ss. 3, 4, 24.
143
At [359] quoting McMurdo P and Davies JA in Cattanach v. Melchior [2001] QCA 246
at [51], [80]–[82] which I have been unable to access.
144
Per Heydon J, n. 128 above, at [354]. A major conceptual difficulty for the courts in this
situation is that they must accept this premise but, at the same time, admit that the
parents have a free and legal choice of recourse to abortion – at least in the United
Kingdom.
132 The troubled pregnancy

proceedings in the family court. Nonetheless, the whole tenor of
his opinion is epitomised in his conclusion which can bear quotation
in full:
The various assumptions underlying the law relating to children and the duties on
parents created by the law would be negated if parents could sue to recover the
costs of rearing unplanned children. That possibility would tend to damage the
natural love and mutual confidence which the law seeks to foster between parent
and child. It would permit conduct inconsistent with a parental duty to treat the
child with the utmost affection, with infinite tenderness, and with unstinting
forgiveness in all circumstances because these goals are contradicted by legal
proceedings based on the premise that the child’s birth was a painful and a highly
inconvenient mistake. It would permit conduct inconsistent with the duty to
nurture children.145

And probably, at base, that sums up the case put by all three justices who
were in favour of allowing the appeal – but one has to say that it rests on a
tenuous base. The most that can be said is that their policy reflects ‘an
underlying value of society in relation to the value of human life’146 – and
the cynic will say that we have, here, the wish being father to the thought.
The counter-argument can be expressed in two ways. Either it can be
postulated that the ‘value’ of human life and the costs of human existence
are distinct and that to accept the significance of the latter is not neces-
sarily to deny the importance of the former. Or, in a more down to earth
way, it can be said that the rules of tort are well-established and they
should not be displaced simply in order to accommodate the circum-
stances of the uncovenanted pregnancy.147 Both these approaches were
adopted by the majority in the High Court phase of Cattanach.148
Justices McHugh and Gummow quickly flew their colours in stating
(at [57]):
Merely to repeat those propositions on which the appellants rely does not explain
why the law should shield or immunise the appellants from what otherwise is a
head of damages recoverable in negligence under general and unchallenged
principles.
Immunity in tort law implies protection against an action in respect of
rights and duties for which the tortfeasor would be liable were it not for


145
n. 128 above, at [404]. 146 ibid., per McHugh and Gummow JJ at [55].
147
For discussion of this aspect of McFarlane, see J. Thomson, ‘Abandoning the Law of
Delict?’ 2000 SLT 43.
148
Since the House of Lords was unanimous in McFarlane, the only previous speeches in
the higher Commonwealth courts which supported recovery are to be found in the
appeal stage of Cattanach itself (n. 143 above) and in the Inner House of the Court of
Session in McFarlane v. Tayside Health Board 1998 SC 389.
Unsuccessful sterilisation 133

the circumstances being such that the public interest warrants his or her
protection. But for immunity to be considered, there must be a duty to
breach and the justices concluded that Cattanach was not a case in which
‘immunity’ would be appropriate in respect of family relationships. What
was wrongful in the case, they said, was not the birth of a third child to the
Melchiors but the admitted negligence of Dr Cattanach – a point that has
been consistently argued by those who have found the decision in
McFarlane to be unsatisfactory. They were emphatic that the damage
suffered by the respondents was not the coming into being of the parent–
child relationship:149 ‘The relevant damage suffered by the Melchiors is
the expenditure that they have incurred or will incur in the future, not the
creation or existence of the parent–child relationship’ (at [67]), and this
critical point was emphasised in paragraph [68]:
The unplanned child is not the harm for which recompense is sought in this
action; it is the burden of the legal and moral responsibilities which arise by reason
of the birth of the child that is in contention.150

Moreover, the Justices refuted the suggestion that the costs of rearing a
child born as the result of negligence would constitute a novel head of
damages:
[W]hen a plaintiff asserts that, but for the defendant’s negligence, he or she would
not have incurred a particular expense, questions of causation and reasonable
foreseeability arise. Is the particular expense causally connected to the defend-
ant’s negligence? If so, ought the defendant to have reasonably foreseen that an
expense of that kind might be incurred?151
The answer to both questions in respect of the award in issue, they said,
should be affirmative.
Having addressed the problem positively, McHugh and Gummow JJ
considered the negative approach of refuting the ‘family unity’ argument
that underlies so much of the opposition to recovery for maintenance.
Allowing that ‘family values’, in the wide sense, represented an element of
corporate welfare, they could, nevertheless, perceive no general recogni-
tion that persons in the position of the Melchiors should be denied the full
remedies of Australian common law. It was, they said (at [77]):


149
See Gleeson CJ, n. 128 above, at [26].
150
The Justices again disapproved the use of the term ‘wrongful birth’ in this context. I also
believe that it is a misnomer (J. K. Mason,‘Wrongful Pregnancy, Wrongful Birth and
Wrongful Terminology’ (2002) 6 Edinburgh Law Review 46–66 at 49) and the criticism
actually makes the distinction. The negligence of Dr Cattanach – i.e. the uncovenanted
pregnancy – is wrongful, not the birth of the child.
151
Quoting from Nominal Defendant v. Gardikiotis (1996) 186 CLR 49 per McHugh J at 54.
134 The troubled pregnancy

[A] beguiling but misleading simplicity to invoke the broad values which few
would deny and then glide to the conclusion that they operate to shield the
appellants from the full consequences in law of Dr Cattanach’s negligence.
Although their argument here takes on the nature of some of the intuitive
reasoning adopted by those of the opposing view, most would surely agree
that the common law should not justify preclusion of recovery on the
basis of speculation.152
I was very much drawn to Justice Callinan when he highlighted the
sophistic approach taken by many of those who have been called upon to
adjudicate in cases of wrongful pregnancy. ‘I cannot help observing,’ he
said, ‘that the repeated disavowal in the cases of recourse to public policy
is not always convincing’ (at [291]) and he followed with (at [292]):
In substance, almost all of the arguments that can be made against the awarding of
damages for the costs of rearing a child consequent upon what [could be cate-
gorised]153 as a wrongful pregnancy case do involve emotional and moral values
and perceptions of what public policy is or should be.
Even so, he was not without sympathy for the emotional track – but
emotions, no matter how strong, must be subservient to legal principle.154
Justice Callinan’s opinion can be summed up in two extracts (at [299],
[301]) which are so definitive as to require no further comment:
The applicants were negligent. The respondents as a result have incurred and will
continue to incur significant expense. That expense would not have been incurred
had the first applicant not given negligent advice. All the various touchstones for,
and none of the relevant disqualifying conditions against, an award of damages for
economic loss are present here
and:
I accept the relevance in the debate of the existence of obligations imposed by the
law relating to families . . . as well as the sanctions of the criminal law, for a failure
to maintain and support children. But the imposition of these legal obligations can
no more absolve the negligent professional from his liability for damages than it
can the negligent motorist from his obligation in tort to pay the increased cost of
the care of a child he has negligently run over.



152
n. 128 above, at [79]. The reference here was specifically to speculation as to the effect
on the resultant child but it is clear that it could be applied generally.
153
Quoting Lax J in the Canadian case Kealey v. Berezowski (1996) 136 DLR (4th) 708 at
723 as the authority. See also the Canadian academic Dickens, n. 71 above; Mason,
n. 150 above.
154
n. 128 above, at [296]. The quotation from De Sales v. Ingrilli (2002) 193 ALR 130 per
Callinan J at [189] is particularly appropriate: ‘That a judge might find a task distasteful
is not a reason for the judge not to do it.’
Unsuccessful sterilisation 135

Undoubtedly, however, it is the opinion of Kirby J that stands out as a
strong and uncompromising contribution to the debate which, he held,
had to be resolved by resort to the usual sources of the common law – that
is through consideration of legal principle and of legal policy.
As to the first, he pointed to a significant and relevant difference
between the common law of Australia and that of the United Kingdom.
McFarlane, he suggested, was decided, at least in major part, on Caparo
principles155 – that to impose a duty of care in respect of economic loss
depended, inter alia, on whether it was fair, just and reasonable to do so.
Caparo, however, has not been followed in Australia;156 accordingly,
McFarlane provided no foundation of legal principle for guidance in
Cattanach. Kirby J went on to deplore, in the strongest terms, how far
from principle the later English decisions had drifted and to forewarn the
Australian courts against following the same path.157 Judges, he said (at
[137]), should be willing to take responsibility for applying the estab-
lished judicial controls over the expansion of tort liability158 but they have
no authority to adopt arbitrary departures from basic doctrine:
Least of all may they do so, in our secular society, on the footing of their personal
religious beliefs or ‘moral’ assessments concealed in an inarticulate premise
dressed up, and described, as legal principle or legal policy
– which is an unusually harsh criticism of some sincere judgments.
Kirby J’s judgment was particularly helpful in setting out the various
scenarios which may be played out when the courts are considering
claims for the costs of rearing an unplanned child. These have, of course,
been well aired both in the courts themselves and in the academic litera-
ture.159 Nonetheless the possible options were so clearly defined by Kirby
J that they can be extracted so as to provide a useful summary.
Option 1 – the child is born healthy and no damages of any kind are
awarded (an option which, in the current series, only Lord Millett, in
McFarlane had adopted). Kirby J traced this back to religious or social

155
n. 97 above. This assessment was certainly accepted by Brooke LJ in Parkinson, dis-
cussed in Chapter 5 below.
156
See, in particular, Perre v. Amand Pty Ltd (1999) 198 CLR 180; Graham Barclay Oysters
Pty Ltd v. Ryan (2002) 194 ALR 337.
157
n. 128 above, at [128], quoting Hoyano, n. 70 above. Although, as has already been
noted, the cases referred to are not, in the main, direct comparators with McFarlane.
158
For which, in England, see not only Rees in Chapter 5 below, but also the more recent
cases of Gregg v. Scott [2005] 2 AC 176 and, more significantly, Chester v. Afshar [2005]
1 AC 134, [2004] 4 All ER 587 where the concept of ‘fairness’ was, at least partially,
accepted. Neither of these last two was a pregnancy case.
159
See, for example, Norrie, n. 51 above; Grubb, n. 51 above; Oliver Radley-Gardner,
‘Wrongful Birth Revisited’ (2002) 118 Law Quarterly Review 11–15; Stretton, n. 137
above.
136 The troubled pregnancy

views resting on the assumption that the birth of a child is an inalienable
blessing;160 to hold otherwise strikes at the foundations of family life and,
hence, society. He dismissed the notion summarily in that to hold that the
birth of a child is a ‘blessing’ in every case ‘represents a fiction which the
law should not apply to a particular case without objective evidence that
bears it out’ (at [148]) and (at [151]):
Neither the invocation of Scripture nor the invention of a fictitious oracle on the
Underground161 . . . authorises a court of law to depart from the ordinary princi-
ples governing the recovery of damages for the tort of negligence.

And, in concert with McHugh and Gummow JJ: ‘To deny such recovery
is to provide a zone of legal immunity to medical practitioners . . . that is
unprincipled and inconsistent with established legal doctrine’ (at [149]).
Option 2 – limiting compensation to the immediate damage resulting
from pregnancy and childbirth – is what can be seen as the McFarlane
solution, and, again, Justice Kirby did not mince his words. With reference
to the lack of unanimity in the House of Lords’ speeches, he said (at [158]):
[T]he diverse opinions illustrate what can happen when judges embark upon the
‘quicksands’ of public policy, at least when doing so leads them away from basic
legal principle.
More specifically he pointed out, correctly, that severing the causal links
between the various, and equally foreseeable, outcomes of pregnancy is
incontestably arbitrary. Moreover: ‘The propounded distinction between
immediate and long-term costs of medical error is not drawn in other
cases of medical negligence. It is arbitrary and unjust in this context’ (at
[162]). The former statement is certainly true; the latter epitomises the
whole, lengthy, debate.
Option 3 – recovery is available for the extra costs of maintaining a
disabled neonate (the Parkinson solution)162 – would, now, seem to be the
recognised United Kingdom policy within the appropriate scenario.
Clearly, however, it introduces an element of arbitrariness – what con-
stitutes compensatable disability? And does its recognition discriminate
against the disabled? We will see later163 how these questions exercised
the minds of those establishing the Parkinson tradition and I fully


160
See Jupp J in Udale, n. 39 above at 531. But, even here, Jupp J actually adopted Option 2,
below.
161
An allusion to ‘the commuter on the London underground’ – Lord Steyn’s now
legendary dispenser of distributive justice in McFarlane.
162
Parkinson v. St James and Seacroft University Hospital NHS Trust [2002] QB 266, [2001]
3 All ER 97, CA.
163
At p. 153.
Unsuccessful sterilisation 137

appreciate the strength of the concerns. At the same time, I feel they are
founded on a half-truth. It is perfectly possible to approve both the
McFarlane approach and the Parkinson solution once one appreciates
that the resultant distinction has nothing to do with either family values
or disability discrimination but is simply a matter of imposed costs – and it
is surely within the competence of the courts to assess those costs. The
logic of what Justice Kirby called an ‘unhappy differentiation’ may be
suspect,164 but most people, one feels, would see it as making the best of a
bad job – always assuming that McFarlane, in refusing to apply the same
reasoning to the birth of a normal child, is a bad job.165
Option 4 offers the saving alternative of adhering to ordinary recovery
principles but, at the same time, providing for the ‘offset’ of the joys of
parenthood. A great deal of printers’ ink has been expended on this
question, especially in the United States where the principle has been
both accepted and rejected.166 It will be remembered that it was also
rejected in McFarlane, largely because of the difficulty, not only of com-
paring like with unlike, but also because of that involved in assessing the
‘benefits’ – a difficulty which led Hale LJ to the useful, if fictitious,
concept of a ‘deemed equilibrium’ of cost and benefit in Parkinson.167
Option 5 – compensation to include the foreseeable costs of child rear-
ing, which could be described as the Emeh option168 or the status quo ante
McFarlane. This, of course, was the option accepted by the majority in the
Court of Appeal in Cattanach. Effectively, failure to do so would be an
arbitrary departure from the principle of corrective justice. ‘Any such
denial is the business, if of anyone, of Parliament not the courts.’169 In
a concession to the House of Lords, Justice Kirby acknowledged that
concern to protect the economic viability of the National Health Service
might help to explain its resort to ‘distributive justice’; such concerns
could not, however, be applied universally.


164
The critical view being that you cannot calculate an ‘added’ expense without attaching a
notional economic ‘value’ to the normal child.
165
It is difficult to see how one can refute the reasoning of Lord Cameron in Allan v. Greater
Glasgow Health Board 1998 SLT 580 at 584.
166
The principles were also extensively analysed by McHugh and Gummow JJ at [90].
167
See Chapter 5 below. Some, of course, might regard this as a fiction too far. See, for
example, Robert Walker LJ in Rees v. Darlington Memorial Hospital NHS Trust [2003]
QB 20, [2002] 65 BMLR 117, CA, at [35].
168
Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012,
CA. A relevant contribution from the United States makes a strong plea for recognition
of this option in that country: Patricia Baugher, ‘Fundamental Protection of a
Fundamental Right: Recovery of Child-rearing Damages for Wrongful Pregnancy’
(2000) 75 Washington Law Review 1205–36.
169
Kirby J in Cattanach, n. 128 above, at [180].
138 The troubled pregnancy

Lessons from a legal ‘test match’
It is impossible to say which side ‘won’ the McFarlane versus Cattanach
contest in an intellectual sense. It is clear that the present writer firmly
opposed the House of Lords decision in the former; he should, therefore,
have welcomed that in the latter. In fact, the unexpected effect of
Cattanach was to make one reconsider and, perhaps, modify one’s orig-
inal, relatively uncompromising, position. The reason for this is difficult
to identify but, possibly, lies in the modes of the presentations in the two
cases. It is, then, not out of place to reappraise these briefly.
It is highly simplistic to extract single ratios from the individual and
complex speeches in McFarlane. With that limitation in mind, however,
we can identify Lord Slynn as holding that it would not be fair, just or
reasonable to impose on the doctor ‘liability for the consequential respon-
sibilities, imposed on or accepted by the parents to bring up a child’ – and
this is the theme which most commentators regard as the ratio of the
case.170 Lord Steyn depended on principles of distributive justice and,
rather strangely, illustrated this by way of the reasonable man’s likely
reaction to an award; apart from the dubious use of public opinion as the
architect of legal principle, it is, of course, difficult to decide who con-
stitutes public opinion in a pluralistic society.171 Lord Hope would not
give any damages because the benefits of parenthood cannot be assessed
in monetary terms and ‘the logical conclusion, as a matter of law, is that
the costs to the pursuers of meeting their obligations to the child . . . are
not recoverable as damages’. Lord Clyde considered that the damages
available in a case such as McFarlane would be disproportionate to the
doctor’s culpability. But it was really left to Lord Millett to distinguish
between Mr and Mrs McFarlane on the one hand and the public at large
on the other. Lord Millett conceded and, indeed, elaborated on the real
damage that had been done to them. They were, he reasoned, at least
entitled to general damages172 and it was illogical to approve these and
deny the costs of upkeep – and we should note how close Lord Steyn and
others were to acknowledging the validity of the parents’ claim.



170
Emily Jackson Regulating Reproduction (Oxford, Hart Publishing, 2001) concludes that,
logically, this must be the ratio – at 33.
171
Stretton, n. 137 above, quotes most aptly: ‘Intuitive feelings for justice seem a poor
substitute for a rule antecedently known, more particularly where all do not have the
same intuitions’. From National Insurance Co of New Zealand v. Espagne (1961) 105 CLR
569, per Dixon CJ at 572.
172
But, even then, damages which would amount only to a conventional sum – Lord Millett
suggested a maximum of ÂŁ5,000 which is hardly princely.
Unsuccessful sterilisation 139

Why, then, is it possible to oppose the McFarlane decision and, yet,
have qualms after reading the minority in Cattanach? The answer is
elusive but, at root, it seems to me that their Lordships at Westminster
were, each in his own way, seeking a route by which they could avoid
giving maintenance damages to the pursuers. The minority in Canberra,
by contrast, were providing positive reasons why such recompense should
not be given – and, as a result, their opinions, although overtly emotional,
were that much more compelling. In the event, however, soul-searching
on the issue is relatively pointless – the reasoning of the Cattanach minor-
ity cannot really withstand dispassionate analysis, simply because there is
no self-evident common law to support their case.
The fundamental difficulty with the wrongful pregnancy action as a
whole is that, whether consciously or subconsciously, most judges who
have decided against recovery for the upbringing of an uncovenanted
child have done so because to do so is seen as placing a value on the
child, whereas the true issue is that of the costs of maintaining a child.
While we may call upon such of the civil and criminal law as governs
family relationships to outline the ground rules for us, it is quite another
matter to extrapolate these so as to create a moral Utopia in which
families should live. Statute law deals with specific situations. Thus,
when the law states that the interests of a child will be paramount,
it refers to those circumstances in which there is a conflict of interests –
it does not place a value on a child. Rather, given that the child’s interests
are paramount, any measure that will, in theory, improve that
child’s socio-economic ambience is serving the letter as well as the spirit
of family law.
Probably, we would all want to live in Utopia but it is unlikely to be a
low-cost area. Those who oppose restitution are forcing such an environ-
ment on uncommitted parents without, at the same time, appreciating
that they may well not have a free choice – it may be, simply, that they
cannot afford to live there. In short, they are expressing a moral paternal-
ism without, themselves, having to undertake paternal responsibilities.173
It is virtually impossible to see that recognition of reality is, in any way,
striking at the roots of family life; in fact, the scene is set for precisely the
opposite result, for an economically viable family is likely to be happier
than one that is stretched financially. Followers of the Cattanach minority
are, perhaps unwittingly, seeking not only the acceptance of their moral
values but also of the economic consequences of so doing. And that is

173
Or, of course, maternal. I express my admiration of Hale LJ’s analysis of parenthood in
Parkinson (n. 162 above, at [70]) in Chapter 5. What she says about a disabled child is
immediately transferable to the healthy child.
140 The troubled pregnancy

what is wrong with the decision in McFarlane and right with that in
Cattanach.
By contrast, the relatively uniform approach taken by the majority in
Cattanach is extremely difficult to refute. All the ingredients and the
consequences of the law of tort are present. The birth of a child is a
foreseeable consequence of a negligent management of an operation
designed to sterilise a patient and the consequent costs of maintaining
that child are not only equally foreseeable but cannot be avoided by dint
of statute law – and there is nothing novel in recompensing consequential
damage. Moreover, since it is impermissible to balance the benefits to one
legal interest against the loss occasioned to a separate legal interest,174 the
problem of offset can be avoided by recourse to principle.
The case made by Kirby J is particularly strong although, in places, it
could have been phrased in more sympathetic terms. To dismiss a deeply
considered opinion as relying on public policy ‘with a passing nod
towards the law’s respect for the sanctity of life . . . and occasional invo-
cations of Scripture’ smacks, once again, of hyperbole which some might
find disturbing.175 The opinion does, however, point us to two consid-
erations that have, as yet, only been touched upon.
First, we are reminded of the decision in CES,176 which might be
regarded as opening up a theoretical ‘Option 6’ and which has not been
fully considered. Here, it was accepted ‘as the highest common denom-
inator of the majority’ that expenses for the upkeep of an uncovenanted
child were recoverable up to the time when the parents could have opted
for its adoption. Justice Kirby dissented from this ‘solution’ which was
scarcely addressed in McFarlane.177 Although, perhaps, representing a
minority stance, I feel that the option should not be foreclosed – legal
principle as to limitation of damage notwithstanding. The importance of
a woman’s autonomy is, of course, agreed. Nonetheless, it is at least
arguable that the exercise of that autonomy involves acceptance of the
consequences of that exercise. This is no place to open the subject in
depth and I revert briefly to it in Chapter 8. Nevertheless, there must be

174
Per McHugh and Gummow JJ at [90]. This, however, depends on the assumption that
the benefits arising from the birth of a child are not legally relevant to the head of damage
that compensates for the cost of maintaining the child – and the authorities, particularly
in the USA, are by no means uniform on the point.
175
n. 128 above, at [159]. See also [151]. One wonders, in passing, whether this might
underlie the very cursory dismissal of the Cattanach decision which was evident in the
later House of Lords opinion in Rees v. Darlington Memorial Hospital NHS Trust [2004]
AC 309, [2003] 4 All ER 987.
176
n. 124 above, at [113].
177
Such discussion as there was concerned, mainly, abortion and abortion was the issue
raised in Emeh, n. 50 above.
Unsuccessful sterilisation 141

many who would still wonder whether the CES decision may not be the
option which, all things considered, is the most fair, just and reasonable.
Which brings us to the second reminder, which is that Caparo178 is
currently rejected as a precedent in Australia.179 The importance of this
is, of course, that as Justice Kirby pointed out (at [121]), McFarlane and
Cattanach have been decided on different principles. As a result, the two
opposing decisions may not be as incompatible as appears at first sight; it
may be that two of the highest courts in the Commonwealth are not, as it
might seem, at loggerheads.180
Even so, given the significance that Caparo’s case has achieved
throughout the field of negligence in the United Kingdom, we might
suitably use it as a coda to this discussion and ask, as has already been
suggested, if we could not use the test in reverse – is it fair, just and
reasonable to deny restitution to those whose lives have been impaired?
One senses a general feeling of doubt in the academic press not only as to
the result in McFarlane but also as to how that result was achieved. I leave
the last word to Weir,181 who believed the McFarlane decision to have
been correct but, at the same time, advised that we should not be sur-
prised if the reasoning was uneasy:
[W]henever it enters the family home, the law of obligations – not just tort but
contract and restitution as well – has a marked tendency to go pear-shaped.



McFarlane under fire
A unanimous decision in the House of Lords is a formidable barrier to
those seeking the alternative outcome. Nonetheless, the significance of
McFarlane is such that it is unsurprising that there were early attempts to
breach the apparently impregnable doctrine of ‘no restitution for the
enforced upkeep of a normal child’. Two cases are relevant in this con-
text. Neither is particularly significant of itself, but each demonstrates an

178
n. 97 above. 179 See n. 156 above.
180
But the man on the Clapham omnibus in the form of the elected legislature probably has
the last word. The New South Wales Civil Liability Act 2002, s.71(1) now states that the
court cannot award damages for economic loss for the costs, or loss of earnings,
associated with the birth of a child. S.71(2), however, does not preclude the recovery
of additional costs arising from a child’s disability. Statute law in the state thus cor-
responds to the current common law in England established in Parkinson v. St James and
Seacroft University Hospital NHS Trust [2002] QB 266 – for which, see Chapter 5. See
also the very similar Queensland Civil Liability Act 2003, s.49A which, while not
including an exception for disability, nevertheless confines the prohibition to births
following attempted sterilisation. South Australia’s Civil Liabilities Act 1936, s.67 also
includes actions for wrongful birth as defined in Chapter 3.
181
Weir, n. 74 above.
142 The troubled pregnancy

understandable reluctance within the judiciary to be the first to charge
into the breach.
The less proximate is Richardson v. L.R.C. Products Ltd182 which was a
claim for personal injuries suffered due to a pregnancy that, in essence,
resulted from a burst condom. The case was raised under the Consumer
Protection Act 1987, section 3 and not under common law alleging
negligence. As a result, the greater part of the judgment is taken up with
technical details including what, to most of us, must be the uncharted
waters of the interaction between latex and ozone. There are, however,
two aspects of the opinion that are of direct interest in the present context.
The claim failed on the technical evidence, but Kennedy J held that
Mrs Richardson could not claim damages in any event as she could have
taken steps to avoid pregnancy by way of post-coital contraception. An
interesting collateral discussion might arise here by way of a comparison
with Park J’s discredited response to Mrs Emeh’s refusal to terminate her
pregnancy.183 No-one would suggest that the practical aspects of taking a
pill and undergoing an abortion are comparable. Nonetheless, it is pos-
sible to argue that, in terms of a woman exercising her reproductive
choice, the difference is merely one of degree – and particularly so when
one remembers that at least some women would regard the destruction of
an embryo as being morally equivalent to the destruction of a fetus.184
Moreover, we have seen, and will see, that, while many unexpectedly
pregnant women would have terminated an early pregnancy, they have
either refused or have been advised against a late abortion. It is therefore
fair to ask at what stage a decision to continue with a ‘wrongful’ preg-
nancy becomes reasonable or, in the present circumstances, how early
must such a choice have to be made in order to render it so unreasonable
as to elide the responsibility of the person who caused the conception?185
The problem may well be dismissed as being of no more than academic
interest; nevertheless, it is sufficient to make one, yet again, wonder at the
logic of accepting the current situation without question.
More significantly, and although the point was not argued in detail,
Kennedy J took the opportunity to state his interpretation of the law and
to cut the ground from under the feet of anyone attempting to circumvent
McFarlane by way of restricting its terms to its specific facts. He said:

182
n. 25 above. 183 Emeh at first instance, n. 50 above.
184
For discussion, see p. 16 above.
185
Kennedy J quoted Hobhouse LJ: ‘[I]t is permissible and appropriate that damages
should only be awarded to the plaintiff on the basis that he has discharged the duty
which the law places upon him to act reasonably to mitigate his loss’: County Ltd v.
Girozentrale Securities [1996] 3 All ER 834 at 858. Which seems to be the basis for the
Australian decision in CES, n. 124 above.
Unsuccessful sterilisation 143

[T]o my mind, the law here was clear, as I believe it is. It is the policy of the law . . .
to exclude from a claimant’s claim the costs of the upbringing of an uncovenanted
child. That is equally applicable whether the claim is laid in negligence or in a
breach of a statutory duty.186
The facts of the second case are very much closer to the current
discussion. In Greenfield v. Irwin (a firm)187 a woman was undergoing a
course of contraceptive injections. The nurse responsible failed to note or
to test for the fact that she was already pregnant. As a result, the diagnosis
was delayed and, although she would have had a termination had she
been informed, she was unwilling to do so at a later date.188 She was
delivered of a healthy child and sought recompense for a ‘wrongful
pregnancy’. Thus far, then, Mrs Greenfield’s case was fairly run of the
mill. However, rather than claim for the upkeep of the child, she based her
case on a loss of earnings due to her having to look after her child full time.
The judge of first instance refused this claim on McFarlane grounds and it
was this refusal that was the subject of appeal. In addition, at appeal, she
innovatively claimed an infringement of her rights to respect for her
private and family life under the European Convention on Human
Rights, Article 8.189
Buxton LJ conceded that the specific issue of the basis for the claim to
recompense had not been directly considered in McFarlane, effectively
because there was no need to address it. In any event, any effect of changing
from a claim for the upkeep of a child, which can be attributed to the birth of
that child, to one for loss of wages, which is due to the presence of the child,
will move the surgeon yet one more step further from responsibility for the
resulting economic loss and it is unsurprising that it was not relied on by
Mrs Greenfield. Rather, her counsel argued that, her action should be
characterised as one involving physical injury caused by omission in per-
formance of a duty – in which case, all damage resulting from that injury
would be recoverable. Pared to the bone, the plea in Greenfield was an
attempt to extend acceptance of the ‘mother’s claim’ for pregnancy and
birth into recognition of recompense for the ‘parents’ claim’ for the bur-
dens of childhood – and the Court of Appeal was unanimous in avoiding



186
n. 25 above, at BMLR 195.
187
[2001] 1 WLR 1292, [2001] 1 FLR 899; sub nom. Greenfield v. Flather (2001) 59
BMLR 43, CA.
188
Interestingly, Buxton LJ is one of the rare judges who have considered the legality of
abortion in the circumstances. He assumed it would have been legal but did not pursue
the matter further.
189
As incorporated in the Human Rights Act 1998, Sch. 1 which was not in force at the trial
stage of Greenfield.
144 The troubled pregnancy

this outcome.190 Moreover, attractive as it seems, this approach is, to an
extent, self-defeating in that, since the financial consequences of both
maintenance and loss of earnings stem from the same root, Greenfield and
McFarlane fall into perfect alignment. It also accords with my possibly
na¨ve belief that the distinctions as to the categorisation of the nature of
ı
the damage, and particularly the nature of the economic loss, that were
argued so heatedly in McFarlane, added an unnecessary gloss. We can look
back to Lord Millett’s observation on the point:
I do not consider that the present question should depend on whether the
economic loss is characterised as pure or consequential. The distinction is
technical and artificial if not actually suspect in the circumstances of the present
case . . . In principle any losses occasioned [by the defenders] are recoverable
however they may be categorised.191
This seems eminently good sense – the claims may well be based on pure
economic loss but it is difficult to see how the economic loss due to the
presence of a child can be anything other than consequent on the birth of
that child – the two are inseparable.192
Mrs Greenfield also contended that there was a fundamental difference
between an ‘advice’ case – such as McFarlane was – and one based on
faulty ‘treatment’ such as hers was. This argument was, in my view
rightly, dismissed fairly tersely; it merely served to strengthen Buxton
LJ’s view that ‘it is really quite impossible to distinguish between our
case and McFarlane in any terms that protect this case from the broad
view of liability and the broad view of the nature of the application of
the law of tort that was adopted by all of the judges . . . in the McFarlane
case’ (at [28]). In short, it was because the cases are indistinguishable that
Mrs Greenfield’s appeal must fail.193

190
E.g., Laws LJ: ‘[I]f this lady were to obtain the damages she seeks, she would happily be
in a position whereby she would look after her much loved child at home, yet at the same
time in effect would receive the income she would have earned had she stayed at work’
(n. 187 above, at WLR [54]).
191
n. 128 above, at AC 109, SC 40.
192
I confess to having difficulty in understanding Buxton LJ’s ‘short point’ that ‘[It is]
simply not the case . . . that the cost of the existence of the child is in law caused by the
pregnancy . . . It is caused by the existence of the child’ (n. 187 above, at [29], emphasis
added). Clearly the child’s existence is due to the pregnancy; the difference in emphasis
presumably lies in the difference between taking a legal or a physiological approach to
reproduction. Even so, we have Lord Millett holding in McFarlane that: ‘Normal
pregnancy and delivery were as much an inescapable precondition of Catherine’s birth
as the expense of maintaining her afterwards was its inevitable consequence’ (n. 128
above, at AC 114, SC 44).
193
I am not pursuing discussion of the claim under Article 8 of the ECHR – suffice it to say
that, although he was clearly breaking fresh ground, Buxton LJ held that the argument in
which the claim was based was so wide that it would stand no prospect of surviving in the
Unsuccessful sterilisation 145

It is, however, interesting to look at the Lord Justice’s reason for so
finding. In essence, this was because he considered that, far from being
dismissed on narrow grounds, the claim in McFarlane was rejected by the
House of Lords:
on grounds of very broad principle, broad principle reaching certainly beyond, in
my judgement, the particular circumstances of an unwanted pregnancy.194
Thus, the significance of Greenfield seems to me to be that it puts
McFarlane beyond the reach of any legalistic attack. We have already
noted that the speeches in the House of Lords are so variant that we can
extract any number of ratios on which to support the decision and the
judgment is correspondingly difficult to undermine. Greenfield, in effect,
takes us one stage further in that the ‘breadth’ of the McFarlane decision
can be used to close any ‘narrow’ chink in its armour. In short, there are
no openings other than that which the House of Lords knowingly left –
the delivery of a disabled neonate.

A connecting case
It is to be remembered that there are two ways by which professional
negligence can contribute to the birth of a disabled child. In the first
place, we have the straightforward ‘wrongful birth’ which has been
discussed in Chapter 3 and is characterised by the provision of negligent
antenatal care either to a single woman or to a couple who are actively
seeking parenthood. I do not believe that this was the situation envisaged
by Lord Steyn when he conceded that the ‘no recovery’ rule might have
to be different in the case of an ‘unwanted child who was born
seriously disabled’.195 Indeed, the lower courts have consistently
accepted this exception and have gone unchallenged in so doing.
Rather, the reference was surely to the alternative event – that is, the
case of wrongful pregnancy that is further complicated by disability in the
neonate.


Strasbourg jurisdiction were it taken there (n. 187 above, at [38]). In this, he relied in the
main on the European Commission’s observation that the right to respect for family life
does not extend ‘so far as to impose on States a general obligation to provide for financial
assistance to individuals in order to enable one of two parents to stay at home to take care
of children’: Andersson and Kullman v. Sweden App. No 11776/85, 46 DR 251.
194
n. 187 above, at [28].
195
n. 128 above, at AC 84, SC 18. It is also to be noted that Lord Clyde referred to the
possibility of a distinction between cases of wrongful conception according to whether or
not the child was healthy (at AC 99, SC 31). Emphasis has been added in both
quotations. The point that a child is wanted in the wrongful birth scenario has already
been emphasised.
146 The troubled pregnancy

This possibility is considered further in the following chapter.
Meantime, the opportunity is taken to remind the reader of the obvious –
that few, if any, classifications within the ‘troubled pregnancy’ consist of
watertight compartments; some overlap, or frank exception to the rule is
inevitable. In a somewhat bizarre way, the case involving Ms Groom
exemplifies both these caveats.
In Groom v. Selby,196 Ms Groom had sought and obtained a sterilisa-
tion in October 1994 without a prior test for pregnancy. She complained
of a vaginal discharge and abdominal pain in November having missed a
period; no pregnancy test was undertaken and she was prescribed anti-
biotics. In December, she was diagnosed as being 15 weeks pregnant and,
once again, while she would have undergone a termination had she been
properly informed in November, she was unwilling to do so when her
pregnancy was so far advanced. A daughter was born in May the follow-
ing year and the report states that, following birth three weeks prema-
turely, ‘[The baby] was healthy at first.’197
Up to this point, then, the case was one of uncomplicated wrongful
pregnancy and wholly comparable to Greenfield; it is noteworthy that
Clark J specifically concluded that there was no congenital abnormal-
ity198 – which I would take to mean there was no abnormality, whether or
not it was detectable, in utero. However, at the age of some 3½ weeks, the
infant contracted meningitis due to salmonella infection and was sub-
sequently severely disabled. The unexpected twist to the case lies in the
fact that the resultant action in damages for the upkeep of the child was
directed against the general practitioner who admitted negligence in the
management of the early pregnancy. Groom, thus, became something of a
Janus case as to classification. On the one side, Dr Selby could be seen as
doing no more than amplifying the wrongful pregnancy scenario that had
been established by the surgeon. On the other, she could have, independ-
ently, arranged for a termination, which the patient would have accepted
at the time; the fact that she did not do so, however, set up a wrongful
birth case – albeit one that did not depend on the presence of a demon-
strable fetal abnormality.199
Why do I see this as an ‘unexpected twist’? Largely because, in order to
accommodate the terms of the action for the expenses of a disabled and
unsolicited child, Clark J had to resort to what I see as a contradiction in

196
[2001] Lloyd’s Rep Med 39, QBD; aff’d (2002) 64 BMLR 47, [2002] Lloyd’s Rep Med
1, CA.
197
ibid., QBD at 41, col 1. 198 ibid., col 2.
199
Although there was, in fact, such an extraordinary family history that an abortion under
s.1(1)(d), although, in fact, ill-founded, could have passed the tests of ‘risk’ and ‘good
faith’.
Unsuccessful sterilisation 147

terms – that is, having established that there was no congenital disorder,
he concluded that: ‘Megan is not and never has been a healthy child.’200
His grounds for this were that: ‘The infecting bacterium was sitting
quietly on the surface of Megan’s skin and/or gut’ and ‘it remained
asymptomatic for about three and a half weeks’. As a result, ‘Megan
cannot, in my judgment, be treated as a healthy child.’201 This is difficult
to accept. The salmonellae were, presumably derived from the mother’s
birth canal rather than from a blood-borne intra-uterine invasion and
opportunistic infection is common enough; we do not, for example,
regard the person contaminated by a nasal carrier of a staphylococcus
as being physically unhealthy before he or she becomes ill. Even if we
ignore this, Groom must be exceptional in that it extends the concept of
wrongful birth so as to include an unhealthy neonate who was a normal
fetus – and this leads to the further question as to how long the interven-
ing period may be before the link between conception and disability is
severed?202 Suppose, for example, the child contracted MRS infection
while in hospital – is there any less of a direct link between the wrongful
pregnancy and the disability? Indeed, Brooke LJ conceded that ‘the
longer the period before the disability is triggered off, the more difficult
it may be to establish a right to recover compensation’.203
It will be apparent that I find Groom an unsatisfactory case. At first
glance, it is difficult to see why the original surgeon was not a party to the
action – he or she performed a negligent operation while, on the other side
of the coin, many might think that a general practitioner whose patient
has recently been sterilised in a specialist unit could be excused for failing
to include pregnancy in her differential diagnosis.204 Even if this is not
conceded, would it not have been more appropriate to bring an action
against the obstetric department on grounds of negligent hygienic prac-
tice? If, as was accepted, the risk of a birth canal being contaminated is
foreseeable, does that not imply that the need for prophylactic measures
is not equally foreseeable?


200
ibid. 201 ibid.
202
This point was specifically taken up in Parkinson, n. 162 above, which is discussed in
detail below. There, Hale LJ was of the opinion that the cut off point should be birth. It is
arguable that, since the infection was contracted before the child was fully extruded from
its mother, it was infected before it was legally born – but if one accepts that, one must
also accept that injury due to birth trauma would be sufficient to found a similar claim.
This problem was raised by counsel for Dr Selby at appeal (2002) 64 BMLR 47, [2002]
Lloyd’s Rep Med 1 ([23] and [26]) only to be summarily dismissed by the court. It is
important to appreciate that the Court of Appeal heard Parkinson after the trial but
before the appeal in Groom.
203
ibid., at [26]. 204 Although, as already noted negligence in this respect was admitted.
148 The troubled pregnancy

Aside from these largely tactical considerations, the case as it stands
does raise some additional and interesting considerations that have been
explored only to a limited extent in other instances of wrongful pregnancy
or birth. As already intimated, it was held that the fact of pregnancy itself
was sufficient to render the birth of a disabled child a foreseeable possi-
bility. Which cannot be denied – yet, intuitively one feels that, absent any
indications to the contrary, the imbalance between the possibility of a
normal and an abnormal neonate is too great for the latter to be regarded
as being reasonably foreseeable.205 This, in turn, leads to the question of
causation. It is difficult to visualise a clear causative link between the
actions of a general practitioner and negligent obstetric management. To
surmount this hurdle, Clark J accepted the proposition that a distinction
is to be made: ‘between proximity in the relationship between the claim-
ant and defendant, which is required, and causal proximity between the
negligent act and the pure economic loss claimed, which is not’.206 Clark J
was able to establish proximity between the claimant and her general
practitioner and concluded that, ‘as a result, the claimant gave birth to an
‘‘unwanted’’ disabled child’.207 With the greatest respect, I suggest that
the only legitimate conclusion is that, as a result, the claimant gave birth
to an unwanted child – which is by no means the same thing.
A further unsatisfactory element of Groom is that the trial was decided
on the basis of agreed medical reports – there was no oral evidence by way
of which some of these questions might have been resolved. It is unsur-
prising that the case went to appeal where, in my view, the situation was
further complicated by semantics. Brooke LJ, for example, saw the case as
clearly one of wrongful birth and then went on to attempt to equiparate
this with the action for wrongful conception208 – or, in my terms, wrong-
ful pregnancy and which I think is the correct classification of this com-
plex case. His resulting causative sequence from a failure to diagnose
pregnancy to severe neonatal brain damage due to salmonella poisoning
is persuasive but, in my view, crosses one bridge too far, particularly as to
foreseeability which, as suggested above should be seen as, at best, a two-
edged weapon.



205
The incidence of congenital abnormalities depends to a large extent on how one defines
abnormality. It was, however, held in Emeh, n. 50 above, that an incidence of between 1
in 200 and 1 in 400 was sufficient to make the risk clearly foreseeable. It is interesting to
compare this with, say, Sidaway v. Board of Governors of the Bethlem Royal Hospital and
the Maudsley Hospital [1985] AC 871 in which it was found acceptable medical practice
not to warn of a risk of severe injury of the order of 1 in 100.
206
n. 196 above, QBD at 45, col.1. My emphasis. 207 ibid.
208
n. 196 above, Lloyd’s Rep Med at [20]. And see Hale LJ at [28] and [29].
Unsuccessful sterilisation 149

One senses a practical significance here in that the multiple interven-
tions involved in the case might have made it very difficult to apply
liability to the surgeon.209 Indeed, there is an impression that Brooke
LJ, supported by Hale LJ, was morally anxious that Ms Groom should
succeed, thus, again, reflecting the Court of Appeal’s distrust of the
decision in McFarlane which was so evident in Parkinson – to which we
turn in the next chapter. This is expressed in the following rather long
extract from the judgment of Brooke LJ:
[Counsel] argued strenuously that if we did not fix the child’s apparent state of
health at birth as the cut-off point, we would be making the judges’ tasks
unnecessarily difficult when they are invited to try future cases on the borderline.
I can see the force of that submission, but it appears to me that it should not stand
in the way of our doing justice in a case like the present, in which a child’s
enduring handicaps, caused by the normal incidents of intra-uterine development
and birth, were triggered off within the first month of her life.210
For a final comment on Groom, we can turn to Hale LJ who, while of
necessity accepting that damages cannot, now, be awarded given the birth
of an uncovenanted healthy child, went on to say:
It is fair, just and reasonable that a doctor who has undertaken the task of
protecting a patient from an unwanted pregnancy should bear the additional
costs if that pregnancy results in a disabled child.211

The alternative view, which I support, is that, if it is fair that the doctor
should be liable for the additional costs of maintaining a disabled child
when, as in Groom, he or she had no responsibility for that disability, then
it is fair that the doctor whose identical negligence resulted, by good
chance alone, in the birth of a healthy child, should be liable for at least
a proportion of the financial havoc he or she has wreaked on the parents.
Be that as it may, Groom has provided an ideal link between the con-
sequences of the inadvertent birth of a healthy child and those cases
which involve disability – which we will now consider.


209
See Lord v. Pacific Steam Navigation, The Oropesa [1943] P 32, [1943] 1 All ER per Lord
Wright at All ER 215, cited at [20].
210
n. 196 above, Lloyd’s Rep Med at [26]. 211 ibid., at [31].
5 Uncovenanted pregnancy and disability




Introduction
We have seen how antagonistic the House of Lords has been to the grant
of recompense for the upkeep of an originally unwanted but healthy child.
There is no doubt that the tenor of the speeches was such as to raise
doubts as to how, given the chance, they would approach a case of
wrongful pregnancy resulting in a disabled child – remembering that
they did, in fact, make no firm statements on the matter. Only two of
their Lordships spoke to the point.
Lord Steyn had this to say:
Counsel for the health authority was inclined to concede that in the case of an
unwanted child, who was born seriously disabled, the rule may have to be differ-
ent. There may be force in this concession but it does not arise in the present
appeal and it ought to await decision where the focus is on such cases.
And Lord Clyde was equally indefinite:
The present case relates to a conception which was followed by a successful birth
of a healthy child. In the course of the argument this factor sometimes, but not at
others, appeared to be of importance. If there is a distinction in cases of wrongful
conception between those where the child is healthy and those where the child is
unhealthy, or disabled or otherwise imperfect, it has to be noted that in the present
case we are dealing with a normal birth and a healthy child.
Neither of these statements gives us any real idea of their Lordships’
intentions nor, in truth, of their underlying philosophical approach to
the possibility. It may, then, be helpful to reassess their speeches in an
attempt to establish the answer.


Second-guessing the House of Lords
Lord Slynn, it will be remembered, crystallised the general feeling of
the House in holding that it would not be ‘Caparo-fair’ to impose liability
for the responsibilities involved in rearing a child. His Lordship did not

150
Uncovenanted pregnancy and disability 151

comment on fairness to the parents. Nevertheless, the extent of the
doctor’s responsibility would be the same irrespective of the health of
the child but, insofar as the disabled child has special needs which must
be paid for, his or her liability would be even greater in the latter case.1
The implication is that Lord Slynn would still deny damages for the
wrongful conception and birth of a disabled child – a conclusion that is
reinforced by the fact that the sterilising surgeon cannot be responsible
for the disability. For this reason alone, Lord Steyn, who depended on
principles of distributive justice, would also have to deny damages on the
grounds that the basis for the distribution of burdens throughout society
remains the same irrespective of the state of the child. Lord Steyn’s
ordinary man on the London Underground would, however, have to be
convinced of this and the ordinary woman on the Strathtay Omnibus
even more so;2 illogical though it may be, Lord Steyn would have to work
harder to find support for his view – and the more disabled the child, the
more difficult would be that task. Given that the guiding factor in cases of
difficulty is what the judge ‘reasonably believes that the ordinary citizen
would regard as right’,3 Lord Steyn must, in my view, be registered as a
‘don’t know’. Lord Hope would, however, have to deny damages. He
would not give any damages for maintenance of a healthy child because
the benefits derived from the child’s existence cannot be assessed in
monetary terms and that, as a result, ‘the logical conclusion, as a matter
of law, is that that the costs to the pursuers of meeting their obligations to
the child . . . are not recoverable as damages’. The benefits derived from a
disabled child might or might not be so obvious but they would still be
incalculable and, therefore, on the basis of what seems to be an unusual
argument, unpayable. Lord Clyde considered that the damages available
in a case such as McFarlane would be disproportionate to the doctor’s
culpability. The disproportion would be even greater in the event of the
resultant child being disabled; so he, too, must then deny damages with
even greater force. Lord Millett considered that: ‘it would be repugnant
to [society’s] own sense of values to do otherwise . . . than take the birth of

1
It was suggested that, in fact, Lord Slynn was the only member of the panel who firmly
closed the door on recovery for the birth of any child. See Longmore J at first instance
quoted, with some hesitation, in the Court of Appeal in Parkinson v. St James and Seacroft
University Hospital NHS Trust [2002] QB 266, [2001] 3 All ER 97, CA, at [45].
2
J. K. Mason,‘Unwanted Pregnancy: A Case of Retroversion?’ (2000) 4 Edinburgh Law
Review 191–206 at 205. The point made was that it is unreasonable to pick out one
particular group as representing the whole population. Lord Steyn’s supposition was no
more than a supposition.
3
McFarlane v. Tayside Health Board [2000] 2 AC 59, 2000 SC 1 at 17. For a generally
similar analysis of the individual positions, see G. Hugh-Jones, ‘Commentary on Taylor v.
Shropshire HA’ [2000] Lloyd’s Rep Med 96 at 107–8.
152 The troubled pregnancy

a normal healthy baby as a blessing, not a detriment’. But that might
well not be so in the case of a defective neonate and Lord Millett might,
accordingly, allow damages – particularly as he was certainly sympathetic
to the McFarlanes. Which leads us to the not wholly unsurprising con-
clusion that, given they maintained their position as stated, the House of
Lords in McFarlane would probably have decided against recovery for the
birth of a child who was disabled had the question arisen. Would there,
then, have been any precedents to assist or to deter them?

The disabled neonate

The pre-McFarlane position
Truly appropriate cases are hard to find because the conditions for which
we are searching are very precise. I have given reasons enough for explain-
ing why the run of cases of wrongful birth that we have discussed in
Chapter 3 are irrelevant as to wrongful pregnancy. The ‘McFarlane-
exception’ demands that there is a failed sterilisation (or similar error),
that there is no fault in the antenatal care and that a disabled child is born.
The exemplar of such a case occurring before the McFarlane decision is
Taylor v. Shropshire Health Authority.4
Mrs Taylor had had four children and a termination before under-
going a sterilising operation at the end of 1987. She became pregnant
the following year and was delivered of a seriously disabled child in 1989.
The report does not tell us whether or not she was offered a second
termination – certainly there were no obvious indications. Nor does it
identify the precise abnormality suffered by the child, which seems to
have been in the nature of mental disorder. Interestingly, her claim based
on failure to warn of the possibility of failure was dismissed both in
negligence – adequate warning being found to have been given – and in
causation.5 Liability was, however, imposed on the grounds of operator
error.
As was to be expected at the time, Nicholl J followed Emeh6 and
Mrs Taylor was awarded the reasonable costs of caring for her son for
the rest of their joint lives. Damages were assessed on the child’s needs

4
Taylor was a split trial and is recorded as [1998] Lloyd’s Rep Med 395 (Popplewell J) and
[2000] Lloyd’s Rep Med 96 (Nicholl J).
5
This being, to an extent, due to the fact the risks of pregnancy while on oral contraceptives –
to which she would have been driven had she refused the operation – were considerably
greater than those following properly performed tubal oblation.

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