P had a sterilisation operation which was performed negligently, so as to allow her to have children but only disabled ones. She became pregnant, was told that her child would be disabled, but she decided not to abort. CA said that hospital was not liable for the basic costs of bringing up a child (i.e. the costs of bringing up a healthy child) but was liable for the additional costs relating to a child’s “significant disability” (“significant” to be decided on a case by case basis e.g. not having 11 fingers but yes to Down’s syndrome) but not regarding “minor defects”. This was because it was a foreseeable consequence of a negligently performed sterilisation operation that a disabled child would be born.
Brooke LJ: It is established that in some cases a court may choose to apply distributive rather than corrective justice (Doesn’t say when- arbitrary therefore legal uncertainty). He sets out key points from McFarlaneon which there wasn’t disagreement: (1) public policy, unlike legal policy, has no role to play; (2) not arranging an abortion or adoption in case of unwanted children is NOT a NAI; (3) the “benefits” rule (weighing cost of parenting in that case against benefits) is not to be used; (4) the unwanted pregnancy has to be “reasonably foreseeable”; (5) the claim, except for the mother’s physical pain, was for economic loss.
Hale J: there are 2 reasons to consider unwanted pregnancy as damage: (1) loss of autonomy over one’s body, and (2) physical pain and harm from the conception. He doubts Slynn’s claim that a doctor can be responsible for non-conception but not the reasonably foreseeable results of failing his duty. He adopts a distributive justice approach.