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McFarlane v Tayside Health Board [2000] 2 AC 59

By Oxbridge Law TeamUpdated 04/01/2024 07:04

Judgement for the case McFarlane v Tayside Health Board

KEY POINTS

  • It is generally not possible to recover damages for child maintenance if the pregnancy occurs after the father has undergone a vasectomy operation. The vasectomy is a deliberate and voluntary choice to prevent pregnancy, and its failure usually does not give rise to a legal claim for child support.

  • The mother cannot claim damages for the pain, suffering, and inconvenience of pregnancy and childbirth when the birth results in a healthy child following a normal pregnancy. These aspects of pregnancy and childbirth are considered natural and expected consequences of the biological process of reproduction, and they typically do not give rise to legal claims for damages.

FACTS

  • In 1989, a married couple sought to prevent further pregnancies, leading to the husband's vasectomy by a surgeon employed by "the board." Despite negative sperm counts reported in March 1990, the wife became pregnant in September 1991 and gave birth to a healthy child.

  • Claiming negligence by the board, the parents sought damages: "Mother's claim" sought compensation for the wife's pregnancy-related discomfort. "Parents' claim" aimed to recover the financial costs of raising the child.

  • Initially dismissed by the Outer House, the Second Division of the Inner House later reversed the decision. They ruled that the wife could receive damages for her pregnancy and childbirth's physical effects. Furthermore, they found no need to offset parenthood's intangible benefits against the financial claim and saw no public policy prohibition against awarding damages for the child's care costs.

JUDGEMENT

  • The mother's claim is dismissed, except for general damages for pregnancy and childbirth if negligence is proven, with Lord Millett in dissent. The parents' claim is allowed, as it is considered a claim for pure economic loss. However, it is deemed unfair, unjust, and unreasonable to impose liability for the upbringing costs of an unwanted healthy child. Therefore, the parents cannot recover these costs.

COMMENTARY

  • In 1989, a couple sought to prevent further pregnancies with a vasectomy, but the wife became pregnant in 1991. They sued the board for damages: “Motherclaimed," for pregnancy-related discomfort and collectively "Parents' claim" for raising the child.

  • Initially dismissed, the Second Division of the Inner House reversed the decision, allowing damages for pregnancy and childbirth. No need to offset parenthood's benefits was found, but Lord Millett dissented on the mother's claim. The parents' claim was allowed as pure economic loss but deemed unfair to recover upbringing costs for an unwanted healthy child, so those costs were denied.

ORIGINAL ANALYSIS

  • Plaintiff 1 had a vasectomy and was told his sperm count was 0. His wife, Plaintiff 2, got pregnant and they sued Defendant for 

    1. Plaintiff 2’s pain and loss of earnings from the pregnancy, and 

    2. for the costs of bringing up the child. 

  • HL allowed the claim for the mother’s suffering but denied the claim for the costs of bringing up a normal, healthy child, since it was not “fair, just and reasonable” since it went beyond “reasonable restitution”.  

  • NB the judges gave no indication of what would have happen if the baby had been unhealthy or there had been contract stating that “no children” would be the result.

    • This is confined to healthy children.

Lord Slynn

  • Clearly pain and suffering of child birth as well as extra medical expenses, pregnancy clothes cost, loss of earnings etc can be thought of as “harm”. Decision not to have an abortion is NOT NAI, nor is failure to arrange for adoption. 

  • Unlike Steyn and Millett, he won’t assume that birth is inherently good since the baby might grow up to be bad for the parents e.g. an axe-murderer. The doctor’s duty of care is to ensure that there is no pregnancy, not everything that follows from the pregnancy i.e. he is responsible for the damage inherent in the pregnancy (physical pain etc) but not all future consequences. 

  • Slynn also adopts an “assumption of responsibility” test regarding what the doctor was responsible for: Here he only assumed responsibility for non-pregnancy (not economic consequences of pregnancy).

  • This explanation also doesn’t work- pregnancy is the event and the consequences of it are

    1. Immediate pain and 

    2. the cost of childbirth. 

  • Both are consequences and it isn’t possible to distinguish them on the grounds that the former is actually part of the event whereas the other is remote. There is no NAI between the failed vasectomy and the costs of rearing a child. Therefore Slynn’s reasoning is wrong. 

Lord Steyn

  • The law regards the birth of a child as a good thing and therefore not to be considered as compensable. Therefore the costs of bringing it up are worthwhile costs and outweighed by the benefit of the life of a healthy child ( this could equally be said of the pain of childbirth - if birth is inherently good and the “rearing” costs are worthwhile then surely so are the costs of pain in giving birth).

  • Distributive justice means we have to consider the correct allocations of burdens and costs in society. Most people would say that the parents of a child (wanted or not) ought to pay for that burden, and this comes from “inarticulate moral” feelings that society holds.

    • Good for who? What if parents were so emotionally fragile that to have a child would cause them psychiatric damage or create immense economic hardship? It is patently untrue that a birth is always good and it is wrong that no parents regret having children. As for “inarticulate moral” points, why should the gut instinct of the average person inhibit corrective justice?

Lord Hope

  • Also uses this reasoning (see above), but says that since there are costs and benefits the claim should be dismissed.

  • Surely this means that the court should deduct the benefits from the costs and work out the balance - we place values on this sort of thing the whole time e.g. life insurance. 

Lord Millet

  • Lord Millett (dissenting on “rearing” claim) tries to argue that the purpose of the vasectomy was to “prevent conception, not to avoid the consequences”, and therefore the doctors were only liable for the former

    • This distinction makes no sense: They wanted to avoid pregnancy not just to avoid the wife suffering physical pain, but to avoid the costs, effort, etc. of bringing up another a child i.e. the consequences. 

  • However he says that neither claim is recoverable since the joys of parenting outweigh the disadvantages and the costs, whether in conceiving or rearing the child, are to be treated the same and are NOT recoverable.

    • This avoids Slynn’s and Steyn’s inconsistency but still assumes inherent benefit of birth. 

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The real motivation for this case, which all the judges deny, is a desire to avoid bankrupting the health authority i.e. policy consideration.

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Tort Law Notes
1,070 total pages
845 purchased

Tort Law notes fully updated for recent exams at Oxford and Cambridge. ...