FREE BOOK SAMPLE from 'A Practical Guide to Wrongful Conception, Wrongful Birth and Wrongful Life Claims' by Rebecca Greenstreet

20/06/18.The law on recovery of damages in wrongful conception, wrongful birth and wrongful life cases has been treated as settled for some time following the cases of McFarlane v Tayside Health Board [2000] 2 A.C. 59, Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, Rees v Darlington Memorial Hospital NHS Trust [2004] 1 A.C. 309 and McKay v Essex Area Health Authority [1982] Q.B. 116.

This book takes an in-depth look at those key cases and their application in practice. There do also remain unanswered questions regarding the limits of recovery in these areas: this book provides an insight into those potential areas for development, as well as exploring the approach taken in foreign jurisdictions and examining recent UK cases in these areas in detail.

CHAPTER ONE
AN INTRODUCTION TO
THE CLAIMS

Objectives

This book provides an overview and analysis of the law in relation to wrongful life, wrongful conception and wrongful birth claims. After reading this book you will:

• Understand how to establish whether there is a cause of action in your cases in these areas.

• Have an in-depth understanding of the relevant case law, including a detailed working knowledge of the key judgments (detailed below).

• Be familiar with recent cases which have challenged those key judgments.

• Be aware of the way such claims have been treated in foreign jurisdictions.

• Have considered whether the principles laid down by the key cases ought to be re-visited by the Supreme Court and if so how best to challenge the established law.

The Different Claims

At the outset it is essential to understand the differences between the three types of claim.

• Wrongful Life: This type of claim is a case brought by a child who is alleging that but for the defendant’s negligence they would never have been born and that that would have been a better outcome. English law does not currently recognise this type of case as a viable claim.

• Wrongful Conception: This is a claim brought where the negligence has resulted in a conception which the claimant had sought to avoid and normally arises out of a negligent sterilisation (whether it is a failed sterilisation operation or the incorrect provision of information regarding that operation).

• Wrongful Birth: Such cases are different to wrongful conception cases as here the claimants did not seek to avoid conception itself but instead the negligence has caused them to lose the opportunity to terminate a pregnancy (for example through negligent pre-natal screening). Interestingly such claims will often have the exact same factual matrix as wrongful life claims, despite the fact that English law does not currently recognise wrongful life claims as having a viable cause of action.

For wrongful conception and wrongful birth claims the recoverability of damages has proven controversial in English law. Any claim for the costs of bringing up a child (referred to throughout this book as maintenance costs) is currently not a recognised head of loss, with damages being restricted to those costs associated only with the pregnancy and birth and, as is explained later, for the extra maintenance costs which relate to a child’s disability. It can also be argued that physical injury only arises in wrongful conception claims (as in wrongful birth claims the claimant already intended to become pregnant, whereas in wrongful conception claims this is what the claimants sought to avoid) and as such wrongful birth claims are claims for pure economic loss only.

The Established Case Law

There is only one key case in the United Kingdom in respect of wrongful life actions, McKay v Essex Area Health Authority¹. The claimant here was a child who had been born disabled: the mother had contracted rubella during pregnancy and it was alleged that but for the defendant’s negligence the mother would have elected to have a termination and so the child would never have been born. The child’s claim was for distress, loss and damage caused by having been brought in to a life in which she suffered from debilitating injuries. The Court of Appeal held that the child’s claim was that the defendants had been negligent in allowing her to be born. The Court of Appeal dismissed that claim on the basis that it was contrary to public policy as a violation of the sanctity of life and that it was not possible to evaluate damages for the denial of non-existence.

The progression of the three key authorities in respect of the recovery of damages in wrongful conception and wrongful birth actions was as follows:

• McFarlane v Tayside Health Board²: The claimants decided they did not want any more children and so the husband underwent a vasectomy. Unfortunately following negligent advice as to the success of the operation the couple became parents to a healthy child. The House of Lords held that, although damages for the pain and suffering of pregnancy and childbirth could be awarded, the maintenance costs were irrecoverable.

• Parkinson v St James and Seacroft University Hospital NHS Trust³: This case presented a factual variation to McFarlane, where a child had been conceived and born due to negligent sterilisation but was not healthy as in McFarlane and instead was born with disabilities (such disabilities were not connected to the negligence). The Court of Appeal reiterated that any claim for the maintenance costs of a healthy child must fail but here allowed recovery of the extra costs associated with rearing a child with disabilities.

• Rees v Darlington Memorial Hospital NHS Trust⁴: The House of Lords was once again presented with a factual variation on the preceding cases, where here the claimant was a disabled woman who had elected to have a sterilisation operation because of the difficulties her disability would cause her in raising children. The sterilisation was performed negligently and resulted in the birth of a healthy child. The House of Lords determined that Rees was more in line with McFarlane than Parkinson and so the costs of rearing the child were irrecoverable, though a lump sum ‘conventional award’ of £15,000 was permitted to reflect the legal wrong suffered by the claimant.

The Current Position

There have been few cases decided in the UK since the above key judgments. There have been recent cases which have tested the boundaries of the principles set out by those key judgments, but none of these have rocked the boat in terms of the established law.

These cases have also been the subject of debate in foreign jurisdictions and an examination of the way in which this controversial topic has been dealt with across the globe provides an insight into the many different ways in which such claims are capable of being dealt with, with some foreign cases permitting wider recovery than is permitted by the UK courts.

There do still remain some unanswered questions as to the scope of recovery of damages in the United Kingdom, following the key judgments above, which include:

• The potential conflict between the denial of wrongful life actions by English courts and Section 1A(1)(b) of the Congenital Disabilities (Civil Liability) Act 1976, which permits a child to bring a claim for negligence during embryo selection which results in the claimant being born with a disability (which arguably amounts to a claim that the child would have been better off not being born and another healthier embryo having been selected instead).

• The extent to which the principles set out in McFarlane, Parkinson and Rees apply to wrongful birth cases: each of those key cases concerned wrongful conception claims and obiter comments in each suggested that wrongful birth claims prompted different policy considerations and so might be treated differently.

• The status of Parkinson: in Rees there was mixed judicial comment regarding the outcome in Parkinson.

• The rights of the father in such actions. Where the negligence in question occurs during the course of treatment / a procedure for the mother then the father’s claim will be one purely for economic loss. This is different to where there is a negligent vasectomy (carried out on the father) which results in direct physical injury to the mother as well.

It is these areas which recent cases have explored and no doubt we will continue to see cases do so. The last major judgment in wrongful conception, wrongful birth or wrongful life claims was delivered over 15 years ago and so it is arguable that it is time for this controversial area of law to be re-visited by the Supreme Court.

CHAPTER TWO
IS THERE A CAUSE OF ACTION?
DUTY, BREACH AND CAUSATION

Introduction

The most controversial aspect of wrongful conception and wrongful birth claims is the quantification of damages, however before examining the damages aspect of a claim it is necessary to establish whether there is an actionable claim in the first place. It should be noted, as will be explained in Chapter Three, English law does not presently recognise a cause of action for wrongful life claims: those cases where a child is bringing a claim themselves for damages relating to their own birth / life.¹

There are three main questions which need to be asked when first assessing a claim: 1. Is a duty owed to the injured party? 2. Has this duty been breached? 3. Has the breach caused damage? If each of these questions can be answered in the affirmative, then there is a viable claim.

Is There a Duty?

The Parties to a Claim

Before determining whether a duty of care exists the parties to a claim need to be identified.

There may be more than one claimant and so each person who has suffered a loss as a result of alleged negligence needs to be considered. For example, in a wrongful conception case the father may be the person who has undergone the sterilisation treatment but, if performed negligently, the mother will also be affected as she will suffer a pregnancy and childbirth as a result of that negligence.

In cases where the father is the one who was sterilised or provided with advice, the mother’s claim will usually be fairly straightforward as she has suffered a physical as well as a financial loss. However, there are still restrictions on when mothers are able to bring a claim as was shown in Goodwill v British Pregnancy Advisory Service. ² Goodwill involved a claim for economic loss brought by a mother, who had fallen pregnant following a spontaneous reversal of a vasectomy which had been undertaken by her partner approximately three years prior to the onset of her relationship with him. The claim was struck out on appeal, as an abuse of process: the court held that at the time that the advice had been provided to the father the claimant mother was “merely … a member of an indeterminately large class of females who might have sexual relations” with the father during his lifetime and as such the defendant could not be held to have voluntarily assumed responsibility towards the claimant, nor was the defendant in a sufficient or special relationship with her so as to give rise to a duty of care.³

Where the case involves a sterilisation of, or advice provided to, a mother then the father’s position is less clear cut. He will need to establish a relationship of proximity to be able to bring a claim as the loss he has suffered is purely financial and so such loss must have been within the contemplation of the defendant at the time the negligence occurred. It is therefore important to examine the proximity of the relationship between the potential defendant and all potential claimants, whether the mother or the father, in such claims.

There may also be more than one defendant and so each of the individuals involved in the care of the potential claimant/s ought to identified and the treatment or advice which they provided carefully examined. As with assessing potential claimants, proximity will also need to be addressed when determining who the potential defendants to an action will be. In Farraj v (1) Kings Healthcare NHS Trust and (2) Cytogenic DNA Services⁴ it was argued by the second defendant that they did not have a sufficient relationship of proximity to the claimant to be held liable. In this case the claimant and her husband had undergone DNA testing of their unborn child as both were carriers of a gene which could cause an inherited blood disorder and wished to detect whether the child would suffer from that disorder. Although the sample was taken by the first defendant it was sent to the second defendant, an independent laboratory, for testing to be undertaken. The test which was returned by the second defendant was negative but when the child was born it was found to be suffering from the genetic disorder. The Court of Appeal upheld the decision of the court at first instance, that there was a sufficient relationship of proximity between the claimant and the second defendant, since the second defendant had been aware of the purpose of the tests they were carrying out and ought to have been aware that parents in the claimants’ position would rely on their skill and care in carrying out those tests.

As above it is not possible for a child to bring a wrongful life claim.⁵ However, in these circumstances the facts will often be indistinguishable from wrongful birth actions (which are recognised under English Law) and so alternative claimants ought to be identified, such as the parents of the child.⁶

Tort

It is well established that a duty of care exists in the following scenarios:

Wrongful Conception

• Sterilisation operations (see Parkinson v St James and Seacroft University Hospital NHS Trust⁷ and Rees v Darlington Memorial Hospital NHS Trust⁸).

• Advice given in relation to sterilisation operations (Newell v Goldenberg⁹ and McFarlane v Tayside Health Board¹⁰).

It can also be assumed that a claim could arise in relation to inaccurate testing following sterilisation operations. It is also possible that there may be a claim where there has been negligent provision of contraceptives or negligent contraceptive advice.¹¹

Wrongful Birth

• Genetic counselling (Lee v Taunton and Somerset NHS Trust¹² and Groom v Selby¹³).¹⁴

• Pre-natal testing (Rand v East Dorset Health Authority¹⁵ and Hardman v Amin¹⁶).

It is also to be expected that a claim could be brought for negligence during IVF treatment, in line with claims for negligent pre-natal testing or genetic counselling.

Contract

There may also be a contractual cause of action, where for example the treatment is carried out in the private sector. Practically speaking there are no real differences between claims brought under contract and those brought under tort. Usually there will be an implied duty in a contract to exercise reasonable care and skill, which mirrors the duty which would be owed under tort, unless the contractual terms themselves impose a higher standard of care (which is very unlikely). Thake v Maurice¹⁷ provides one such example. In that case the court would not imply a warranty that the sterilisation would be one hundred percent effective in to the contract but still found that there had been a breach of the implied duty to exercise reasonable care and skill.

The recent case of…

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