Injury Law – McFarlane v Tayside Health Board

01 Dec 2000

By : Walter Aylen

The result of McFarlane is well-known; the parent(s) of an unwanted child, conceived as a result of clinical negligence can recover (in the case of the mother) general damages of some sort or another but cannot claim for the costs of child care during the dependence of the child upon the parent(s). What else, if anything, the case decided is a matter for debate and is to be argued next year in the Court of Appeal.

But what scope is there under recently enacted law for attacking the dismissal of the care cost claim? This, again, is believed to be on the agenda for the Court of Appeal in the course of the next few months.

Does the report (1999) 3 WLR 1301 contain any material for an attack upon the dismissal of the claim under the Human Rights Act 1998 at least where a decision has been made by the parent(s) not to increase the existing number of children?

What about the following:-

(a) “….the law will respect the right of men and women to take steps to limit the size of their family….this is an area of family life in which freedom of choice may properly be exercised”. (Lord Hope p1322);

(b) “Quite apart form the fact that their ability to discharge their obligations to their other children must be reduced…..they claim that they have sustained loss by the incurring of an additional liability”. (Lord Millett p1343);

(c) “They have suffered both injury and loss. They have lost the freedom to limit the size of their family. They have been denied an important aspect of their personal autonomy. For their decision to have no more children is one the law should respect and protect.” (Lord Millett p1348)?

Lord Millett’s remarks were geared towards the justification of a small award of general damages, but, with the advent of the HRA why should they not have applicability to a claim for care costs? The State (“a public authority”) provides sterilisation and abortion services free (subject to certain limits in the latter case). A botched performance of the services leads to an infringement of the relevant parental autonomy: why else would the choice not to have a child or children be so obviously and objectively demonstrated? It seems from the speeches that it matters not whether the negligence is by act, omission or word of mouth or pen.

Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with the convention and Section 8 grants a remedy in the hands of the appropriate court to award damages or compensation. A Health Board or Trust or NH doctors are public authorities. Article 8(1) of the Convention entitles everyone to respect for “private and family life” and by 8(2) prohibits interference except in accordance with widely, but exhaustively, defined limits relating to the general welfare of “the country”. I do not myself see that “distributive justice” (see Lord Steyn p.1319 and Lord Hope p.1332) based on a revolt at compensation for parents of a healthy child as against parents who cannot have children or against the notion of the person who has suffered injury and loss “not giving anything back to the wrongdoer for the benefits” has any focus on those truly public issues.

Will we, therefore, find ourselves going back to where we were in the first place? Or will we find, contrary to the Lords’ present ruling, that it is after all a matter of public policy not to award care costs for an unwanted, but later accepted, child in at least some circumstances?


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