Tort Law

McFarlane v. Tayside Health Board

[2000] 2 AC 59

Facts

• Mr McFarlane underwent a vasectomy at a hospital operated by Tayside Health Board.
• He and his wife already had four children.
• After the procedure, medical tests were performed.
• The couple were advised that the sperm counts were negative and that they could stop using contraception.
• The advice was allegedly negligent because the vasectomy had not successfully produced sterility.
• Mrs McFarlane became pregnant.
• She gave birth to a healthy fifth child, Catherine.
• The parents brought a negligence claim against the Health Board.
• They sought damages under two principal heads:
o the mother’s pain, suffering, inconvenience and expenses associated with pregnancy and childbirth; and
o the ordinary financial costs of raising Catherine until adulthood.
• The Health Board challenged the recoverability of the child-rearing expenses.
• The dispute reached the House of Lords.

• Whether negligent sterilisation or negligent advice creates liability for pregnancy-related physical and financial consequences.
• Whether the parents could recover the ordinary cost of raising a healthy child.
• Whether the birth of a healthy child could be treated as compensable damage.
• Whether the maintenance expenses fell within the proper scope of the medical duty.

• A doctor undertaking sterilisation or advising upon its outcome owes a duty to exercise reasonable medical care.
• Pregnancy and childbirth caused by negligent sterilisation may support recovery for:
o physical pain and suffering;
o medical expenses;
o loss connected with the pregnancy; and
o immediate financial consequences.
• However, the ordinary costs of raising a healthy child are not recoverable under English negligence law.
• The limit reflects considerations including:
o the scope and purpose of the medical duty;
o fairness and distributive justice;
o the inseparable benefits and burdens of parenthood; and
o the reasonable boundaries of tort compensation.
• The law does not treat the existence of a healthy child solely as a financial injury.

• The pregnancy was a foreseeable consequence of a negligently performed vasectomy or negligent advice concerning its success.
• Mrs McFarlane’s pregnancy and childbirth involved recognised physical effects.
• Those consequences fell directly within the purpose of the undertaking to prevent conception.
• Her pain, suffering and associated expenses were therefore recoverable in principle.
• The cost of raising Catherine presented a different issue.
• Those costs were financially measurable, but parenthood also involved emotional, relational and social benefits that could not realistically be valued and deducted.
• Awarding the full costs would require the court to classify the healthy child’s existence as a net compensable loss.
• The House of Lords considered that this would conflict with ordinary moral assumptions and extend medical liability beyond a fair and reasonable limit.
• It also considered whether the costs should be spread through the public healthcare system.
• The majority concluded that society would not regard it as fair to require the Health Board to finance the ordinary upbringing of a healthy child.
• The distinction did not deny that the pregnancy was unwanted or that the parents incurred genuine expenses.
• It limited the kinds of loss legally recoverable.

• The House of Lords held that Mrs McFarlane could recover damages for pain, suffering and financial consequences associated with pregnancy and childbirth.
• The parents could not recover the ordinary costs of raising their healthy child.
• The birth of a healthy child was not treated as actionable damage for lifelong maintenance purposes.