McFarlane v Tayside Health Board [2000] 2 AC 59

Key points

A claim for the costs of caring for a healthy, normal child was a claim for pure economic loss in respect of which it had to be shown that it was fair, just and reasonable to impose liability, and, in the circumstances, the claim did not satisfy the requirement of being fair, just and reasonable.

Considerations of distributive justice imply that the law does not permit the parents of a healthy but unwanted child to claim the cost of its upbringing from a health authority or doctor.

Facts

The claimants Mr and Mrs McFarlane, had four children and deciding that this was enough, Mr McFarlane had a vasectomy.

The McFarlanes were informed that the husband’s sperm count was negative and that contraceptive measures were no longer necessary.

After following this advice, Mrs McFarlane became pregnant and gave birth to a healthy child, Catherine.

Mrs McFarlane brought a claim for the physical discomfort arising from her pregnancy, confinement, and delivery and the costs associated with this and both parents claimed for the financial costs of bringing up the child.

Held (House of Lords)

Allowing the claimants’ appeal in part; the mother was entitled to damages for the pain, suffering, and inconvenience of pregnancy and childbirth and to damages for extra medical expenses, clothing, and loss of earnings associated therewith.

The House of Lords unanimously refused to allow the parents’ claim for the costs of raising the child.

Lord Slynn

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”

Lord Slynn adopts an “assumption of responsibility” test regarding what the doctor was responsible for: “The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family. Whereas I have no doubt that there should be compensation for the physical effects of the pregnancy and birth… I consider that it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. The doctor does not assume responsibility for those economic losses”: [76]

Lord Steyn

It would not be fair, just, and reasonable to impose a duty of care in these circumstances for reasons of distributive justice, which is concerned with the “just distribution of burdens and losses among members of a society”: [82]

“Judges’ sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right”: [82]

“In my view it is legitimate in the present case to take into account considerations of distributive justice…Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor…I would say that the claim does not satisfy the requirement of being fair, just and reasonable”: [83]

Lord Millett (Minority)

The law should regard the benefits of raising a child as outweighing any detriments.

It would be “repugnant” and “morally offensive” for the law not to regard the birth of a healthy child as a “blessing”.

Instead, I would have awarded the parents a £5,000 conventional sum to reflect the fact their autonomy had been interfered with.

Commentary

Unlike Lords Steyn and Millett, Lord Slynn refused to assume that birth is inherently good.