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McFarlane v Tayside Health Board

[2000] 2 AC 59

Case summary last updated at 19/01/2020 11:30 by the Oxbridge Notes in-house law team.

Judgement for the case McFarlane v Tayside Health Board

P1 had a vasectomy and was told his sperm count was 0. His wife, P2, got pregnant and they sued D (1) for P2’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 moralfeelings 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, 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 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 wante 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. 
 
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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