Summary of the facts
The claimant was conceived in early 2001. Before conception her mother attended an appointment with the Defendant, her GP to discuss family planning. The appointment took place on 27 February 2001. At that time, it was standard practice for GP’s to advise prospective mothers of the potential benefits of taking sufficient folic acid before conception and during the first trimester. It was understood that an adequate intake may potentially reduce the risk of a baby being born with neural tube defects.
It was agreed that the defendant advised the Claimant’s mother that taking folic acid was optional and it was for her to decide whether to take the supplement. She was not warned of any association between folic acid intake and the prevention of spina bifida. He did not prescribe folic acid supplements. It was accepted that the failure to advise that the Claimant’s mother should take folic acid supplement and to prescribe the supplement was a breach of the duty of care owed to the mother.
Shortly after the consultation and in reliance upon the advice the Claimant was conceived. She was born on born on 19th November 2001. She has a lipomylomeningocoele an occult form of neural tube defect causing spinal cord tethering as a consequence of which her mobility is limited and she suffers from urinary and bowel incontinence.
The claim
The action came to trial on a preliminary issue. A set of facts were agreed and the issue for the court was whether, on the basis of those facts, the claim disclosed a lawful cause of action. The Defence made it clear that the allegations made by the Claimant were comprehensively disputed. The claimant alleges that the cause of her disability was her mother’s failure to take folic acid before conception, and that failure was as a result of the defendant’s failure to inform her mother about the link between folic acid the risk of neural tube defects. It was said that but for the breach of duty the Claimant’s mother would have delayed attempting to conceive for a number of weeks whilst she increased her intake of folic acid and achieved the therapeutic level of the folic acid in her bloodstream which she would then have maintained during the first 12 weeks of the pregnancy.
The claim was brought by the Claimant through her mother but the mother did not bring a claim. The parties agreed that the claimant’s mother would have had a claim for damages for wrongful birth following Parkinson v Seacroft and St James University Hospital NHS Trust [1]. The mother’s claim would have encompassed the reasonable costs associated with the Claimant’s disability together with a modest award for pain and suffering associated with pregnancy and childbirth. The claimant’s claim was for the additional costs associated with her disability not the full costs of uninjured and injured living expenses.
For the purposes of the preliminary trial it was accepted that:
1. The Defendant’s failure to advise the Claimant’s mother that she should take folic acid supplement, and to prescribe the supplement was a breach of the duty of care owed to the Claimant’s mother
2. But for that breach of duty the Claimant’s mother would have delayed attempting to conceive for a number of weeks whilst she increased her intake of folic acid and achieved the therapeutic level of folic acid in her bloodstream which she would have maintained during the first 12 weeks of the pregnancy.
3. The Claimant was in fact conceived shortly after the consultation and she would not have been conceived but for the negligence. A sibling would have been conceived and born at a later stage.
4. The sibling would have been a genetically different person who would not have suffered from a neural tube defect. (In fact, the Claimant has a younger sibling who did not have a neural tube defect).
Submissions for parties
The defendant argued both under the Congenital Disabilities (Civil Liability) Act 1976 and at common law the agreed facts did not disclose a lawful cause of action. This was a claim in which the injury alleged is not the disability but the fact of the claimant’s existence. They argued that the action is one of “wrongful life” [2] and as such the claim was expressly excluded by the provisions of the Congenital Disabilities (Civil Liability) Act 1976. The defendant relied upon the judgment of the Court of Appeal in McKay v Essex Area Health Authority [3]. The claim would not have been recognised at common law, even before the introduction of the 1976 Act.
In McKay the Court struck out the claim brought by a child born with significant disabilities consequential upon her mother’s infection with rubella during pregnancy. The allegation was that but for the breach of duty the pregnancy would have been terminated. In McKay the court concluded that the claim was one for “wrongful life” and there were two main obstacles to the claim. The first was a policy objection to permitting a claim inconsistent with the concept of sanctity of human life and the second focused on the impossibility of evaluating damages.
The claimant argued that this was not a claim for “wrongful life” and the claim fell squarely within the scope of the Act which permitted recovery for children born disabled as a consequence of negligence affecting a parent in his or her ability to have a healthy child. On a proper reading of the Act and McKay it was argued the label of “wrongful life” is restricted to tortious acts or omissions following conception but for which the pregnancy would have been terminated. “Wrongful life” cases are “abortion cases” as distinct from cases in which it is alleged that, but for the negligence the child would not have been conceived. McKay could be distinguished.
Congenital Disabilities (Civil Liability) Act 1976- The purpose of the Act
The key question at the preliminary issue hearing before Lambert J was whether there was a lawful cause of action and whether the claimant’s case could succeed under the Congenital Disabilities (Civil Liability) Act 1976.
The Congenital Disabilities (Civil Liability) Act 1976 came into force in July 1976. The Act came into force to “make provision as to civil liability in the case of children born disabled in consequence of some person’s fault.” The Act was prospective in effect and applied to all births occurring after it came into force, replacing the common law.
The Act gave effect to the recommendations of the Law Commission Report in 1974 the impetus of which was the thalidomide tragedy and litigation in its wake. One problem for the unborn child was that fact that the child had no legal existence at the time of injury, nor any existence separate to its mother. However, an event or occurrence resulting from a negligent act or injury could cause pre-natal injury even though at the time of the negligence the injured person had not been conceived.
The Commissioners recommended that so far as possible claims for pre-natal injury should be equated with ordinary claims for damages for personal injury inflicted after birth. As a general rule where there was liability at common law to a parent for an act or omission causing pre-natal injury the child should be entitled to recover damages. It was required that the child should be born alive with the cause of action crystallising at birth. The child’s right of action was not prejudiced by the inability of the mother to sue. There was one exception recommended by the Commissioners and that is where there was parental knowledge at the time of the conception of the existence of a risk that a child born of the intercourse would be disabled. Such knowledge would break the chain of causation.
The Commissioners considered actions for wrongful life and concluded that an action for a wrongful life should not be permitted. They did conclude that there was a distinction to be made between cases where the action was in fact not really a wrongful life action. The Report offered two examples of variants with reference to the American case of Williams v State of New York [4]. In this case as a result of hospital negligence a female patient conceived as a result of rape. The child sued the hospital for damages for the stigma of illegitimacy and the action was dismissed in part because illegitimacy was not an injury. The Commissioners considered that if the rapist had been syphilitic there may have been a more sympathetic basis for the claim. It was said that claims brought by children disabled by the effect of syphilis transmitted by the father were not wrongful life claims. The child seeks a remedy for the disability not for being born.
Congenital Disabilities (Civil Liability) Act 1976. The terms of the Act
The Act provides as follows:
1. Civil liability to child born disabled.
(1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child’s own mother) is under this section answerable to the child in respect of the occurrence, the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.
(2)An occurrence to which this section applies is one which—
(a) affected either parent of the child in his or her ability to have a normal, healthy child; or
(b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.
(3) Subject to the following subsections, a person (here referred to as “the defendant”) is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.
(4) In the case of an occurrence preceding the time of conception, the defendant is not answerable to the child if at that time either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the occurrence); but should it be the child’s father who is the defendant, this subsection does not apply if he knew of the risk and the mother did not.
(5) The defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion.
The decision of the court
The focus of the court was on the interpretation of s1 of the Congenital Disabilities (Civil Liability) Act 1976. It was found that the requisite elements of s1 of the Act were established. There was a potentially wrongful act (negligent advice) leading to an occurrence (sexual intercourse in a folic acid deficient state) which resulted in a child born with disabilities due to that deficiency. The Act provides that the claim is one for personal injury arising from the child’s disability to be assessed in accordance with conventional principles.
The court rejected the argument that occurrence had to require some change or alteration in the claimant’s mother’s physiological state. S 1(3) provided that there was no need for the mother to have suffered an actionable injury for a lawful claim to be made by the claimant. Having sexual intercourse without the protective benefit of folic acid supplementation was found to be an “occurrence” within the meaning of the Act.
Comment
The decision in Toombes v Mitchell confirms that claimants born as a result of pre-conception negligence can bring a claim in their own right if they can demonstrate that the facts and circumstances fall within the terms of the Act. The decision also permits the claim to go forward unless there is an appeal. This was also a decision on assumed facts and whether the Claimant ultimately succeeds at trial if there is no appeal will depend on the ultimate findings in fact by the court. If the decision stands Claimants who can satisfy the requirements of the Act no longer require to rely upon the parents to bring a claim on their behalf. These claims when brought by parents have traditionally been limited to the life expectation of the parent rather than the child and that clearly restricts damages awarded.
There are a number of situations where a child is born following negligence. There have been cases where there has been a failed sterilisation and the mother conceives or a failed termination of pregnancy where conception has occurred. Some writers have distinguished between claims for “wrongful conception” and “wrongful birth”.
The law in relation to the so called “wrongful birth” claims has undergone significant change and review in recent years and the issue has been considered in the House of Lords in the Scottish case of McFarlane v Tayside Health Board [5] and the English case of Rees v Darlington Memorial Hospital NHS Trust [6].
In McFarlane the House of Lords held that the financial costs of rearing a healthy child following a failed sterilisation were not recoverable. The court did award general damages relating to pregnancy and childbirth and special damages to include extra medical expenses, clothing for the mother and the mother’s loss of earnings. It was held that principles of distributive justice did not permit recovery in this situation.
A number of first instance cases post McFarlane had suggested that the position was different in the case of a child with disabilities [7]. In Parkinson v St James and Seacroft University Hospital NHS Trust [8] the Court of Appeal held that the parents of a disabled child born after a negligently performed sterilisation operation could recover for the additional costs of raising the child attributable to the disability.
In Rees [9] the focus was on the mother’s impairment. The Claimant had a severe visual impairment which she felt would affect her ability to raise a child. A sterilisation procedure was performed negligently and she gave birth to a healthy child and the question for the court was whether she could recover the additional costs of bringing up a healthy child attributable to the mother’s disability. By a majority the Court of Appeal concluded that the decision in McFarlane did not apply and the mother was entitled to recover the additional costs of bringing up the child related to her disability. A seven-judge panel of the House of Lords by a bare majority reversed the decision in Rees and held that where a child is born healthy the principle in McFarlane should apply irrespective of the mother’s disability.
Causation is also an issue when considering the distinction between a healthy and disabled child. The defendant’s negligence relates to the birth of the child. In Parkinson it was said that what was relevant was whether the disabilities flow foreseeably from the unwanted conception. This point arose in Groom v Selby [10] where negligence related to a failure to perform a pregnancy test prior to a sterilisation with the result the mother was unaware she was pregnant. Had she known about the pregnancy she would have had a termination. The child was born apparently healthy but four weeks after birth was found to be suffering from salmonella meningitis as a result of which the child had significant disabilities. The meningitis was caused by exposure to bacteria from the birth canal and perineal area during delivery. The Court of Appeal held that it could not be said that the infection constituted an intervening event and the child’s handicap arose from the normal incidents of conception, intra-uterine development and birth. In Groom v Selby Hale LJ suggested that in Parkinson it was agreed that the child’s disability must be genetic or arise from the processes of intra-uterine development and birth.
More recently in Meadows v Khan [11] the issue of causation in such claims has been considered by the Supreme Court and the decision is awaited with interest. The claimant gave birth to son born with haemophilia and he was later diagnosed as also suffering from autism. She was negligently advised by her GP that there was no risk of her being a carried of haemophilia. She claimed for the additional costs of both disabilities and it was said that the scope of the duty was to avoid the risk of a child being born with haemophilia and the additional costs related to the autism were disallowed.
It will be interesting to see how the Supreme Court view this causation issue and whether the court endorses the scope of duty approach seen in the Australian case of Wallace v Kam [12] although when considering the restrictive approach to causation adopted by the Australian courts it must be remembered that it was the Australian civil liability legislation which introduced this restrictive approach.
[1] [2001] EWCA Civ 530
[2] This term was coined in the United States and adopted by the Law Commission in its Report on Injuries to Unborn Children (Law Com.No.60) Auguest 1974.
[3] [1982] 2 All ER 771
[4] [1966] 18 N.Y. 2d 481
[5] [2000] 2 AC 59
[6] [2003] UKHL 52
[7] Rand v East Dorset Health Authority [2000] Lloyd’s Rep. Med.181; Hardman v Amin [2000] Lloyd’s Rep. Med 498; Groom v Selby [2001] Lloyd’s Rep.Med. 39; Lee v Taunton and Somerset NHS Trust [2001] 1 F.L.R. 419
[8] [2001] EWCA Civ 530
[9] see AD v East Kent Community NHS Trust [2002] EWCA Civ 1871 where there was no recovery where the effect of the mother’s disability was that she was unable to take care of the child at all.
[10] [2001] Lloyd’s Rep. Med.39, QBD
[11] [2019] EWCA Civ 152
[12] [2013] HCA 19
