MARGARET McLELLAND and GERARD McLELLAND v. GREATER GLASGOW HEALTH BOARD
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Prosser Lord Marnoch Lord Morison | 0937/5/1993 OPINION OF LORD PROSSER in RECLAIMING MOTION FOR THE DEFENDERS in the cause MARGARET McLELLAND and GERARD McLELLAND Pursuers and Respondents; against GREATER GLASGOW HEALTH BOARD Defenders and Reclaimers: _______ |
Act: Dorrian, Q.C., Illius; Digby Brown, S.S.C.
Alt: Hajducki, Q.C., Dunlop; R.F. Macdonald
7 March 2001
[1]On 5 September 1991, the first-named pursuer, Mrs. McLelland, gave birth to a son Gary McLelland. Gary suffers from Down's Syndrome. It is a matter of admission that this was noted immediately when he was born. In this action, the pursuers aver that members of the staff of the Glasgow Royal Maternity Hospital (for whom the defenders are vicariously liable) negligently failed to diagnose Gary's condition, and advise the pursuers of it, at the appropriate stage of pregnancy. It is also averred that if the first pursuer had been advised that the baby would be affected by Down's Syndrome, she would have had the pregnancy terminated. Damages are claimed, under various heads, in respect of the loss, injury and damage suffered by the pursuers as a result of this negligence. Negligence is admitted, and the Lord Ordinary heard proof in relation to damages only. In terms of the joint minute by which the defenders admitted negligence, it was agreed that the amount of any damages payable by the defenders to the pursuers would be 95% of the sums assessed as payable by the court.
[2]In terms of the three conclusions of the summons, sums are claimed respectively by Mrs. McLelland, Mr. McLelland and both Mr. and Mrs. McLelland jointly. Mrs. McLelland's claim is for solatium, together with past and future wage loss. Mr. McLelland's claim is for solatium only. The joint claim covers a number of different heads, in relation to past and future care and maintenance of Gary. In respect of each head of claim, the Lord Ordinary assessed the amount payable (in some cases inclusive of interest) and applied the 5% discount agreed in terms of the joint minute. In the result, he awarded £117,139 to Mrs. McLelland in terms of the first conclusion; £5,697 to Mr. McLelland in terms of the second conclusion; and £232,325 to the pursuers jointly in terms of the third conclusion. The defenders reclaim in respect of all three of these awards, although not in respect of all the heads of damages under which the Lord Ordinary's assessment of damages was made. Without discussing figures at this stage, it is convenient to set out the various heads of damages, numbering them as the Lord Ordinary did:
1(a)Solatium for Mrs. McLelland.
1(b)Solatium for Mr. McLelland.
2Layette.
3(a)Maintenance - birth to 30 April 1998.
3(b)Maintenance - 1 May 1998 to age 19.
3(c)Maintenance - age 19 to age 40.
4(b)Care - 1 May 1998 to age 19.
4(c)Care - age 19 to age 40.
5Care and maintenance after age 40.
6(a)Mrs. McLelland's past wage loss.
6(b)Mrs. McLelland's future wage loss.
Put shortly, the word "maintenance" refers to costs of maintenance which would arise regardless of the fact that Gary is affected by Down's Syndrome - what one may call ordinary maintenance - although certain increases in costs, attributable to his special needs, are also included in the "maintenance" heads at 3(a) and 3(b). The expression "care" is used to denote major costs of care, over an above those of maintenance, arising as a result of the fact that Gary is affected by Down's Syndrome. No issue now arises in relation to items 1(a), 3(c) or 4(b) or (c). (Head 4(a) related to a matter no longer in issue).
[3]The defenders and reclaimers set out four grounds of appeal. First, they contend that the Lord Ordinary erred in law in holding that Mr. McLelland was entitled to an award of solatium (head 1(b) above). Secondly, they contend that the Lord Ordinary erred in law in awarding the pursuers the cost of the layette and the basic cost of maintenance from Gary's birth to his reaching the age of 19 (heads 2, 3(a) and 3(b)) although the increases attributable to his special needs are not disputed. Nor is head 3(c). These first two grounds of appeal raise issues of principle. Grounds 3 and 4 raise no issues of principle, but turn upon questions of evidence. In terms of ground 3, it is contended that the Lord Ordinary erred in awarding a sum in respect of care and maintenance after the age of 40 (head 5 above). Ground 4 is to the effect that his Lordship erred in awarding the first pursuer any sum in respect of wage loss after Gary's fifth birthday (head 6(a) for the period after 5 September 1996, and head 6(b)).
[4]I discuss these matters in that same order. Before doing so, however, I would note that when the reclaiming motion came before us, on 28 September 1999, the decision of the House of Lords in McFarlane v. Tayside Health Board, 2000 S.C. (H.L.) 1, had not yet been issued. At the request of counsel, we heard submissions on 28 and 29 September 1999, but it was agreed that further submissions might be appropriate, once the decision in McFarlane was available. In due course it became evident that further submissions would indeed be required; and after unfortunate delays for various reasons, we eventually heard these further submissions on 27 November 2000. These further submissions related to the second ground of appeal alone.
[5]Before I turn to the specific grounds of appeal, it will be useful to give a brief account of the factual background, and the context in which the defenders accept that they are liable to make reparation to the pursuers. This was Mrs. McLelland's first pregnancy. When she became pregnant, in January 1991, she was apprehensive that there was a risk that the child might be affected by Down's Syndrome, as she has a brother who is so affected, and as a result of tests after his birth, the pursuer knew that she had a genetic abnormality which carried an increased risk that a child of hers would be similarly affected. Despite the matter being raised by her general practitioner, when he referred her to the ante-natal clinic, and being mentioned by Mrs. McLaughlin herself at that clinic, she was given only a non-diagnostic screening test. The test was negative, but Mrs. McLelland was not told that it did not exclude the possibility of the child being affected. The test which would have diagnosed Down's Syndrome, amniocentesis, was not administered. Put shortly, the case of fault is that knowing of the relevant history, staff at the hospital should have taken the steps which would have led to amniocentesis. The decision of the pursuers would have been to terminate the pregnancy: knowing the history, they had discussed the matter before Mrs. McLelland became pregnant, and had made a definite decision to terminate if tests showed that the child would be affected. The Lord Ordinary held it proved that if the staff had performed their duties, Gary would not have been born.
Ground 1 - Solatium for Mr. McLelland (Head 1(b)).
[6]The Lord Ordinary granted decree in favour of Mr. McLelland, in respect of the second conclusion of the summons, for the sum of £5,697. This reflected his assessment that £5,000 was the appropriate figure for solatium, together with interest on 60% of that sum as relating to the past, but discounted by 5% in respect of the agreement. The amount and calculation of the award are not questioned, if any award of solatium is appropriate. But before the Lord Ordinary and in his submissions to us, counsel for the defenders contended that there should be no award at all.
[7]The question of whether an award of solatium should be made will often depend on whether there was any duty of care. In the present case, that is not the question. The defenders have admitted liability. That being so, the Lord Ordinary took as the appropriate starting point the fact that the defenders had admitted that they owed a duty of care to both pursuers, and had acted in breach of that duty: they were therefore liable in damages for any loss, injury and damage suffered by the pursuers or either of them as a result. More particularly, his Lordship noted that in certain categories of case, liability would depend on the pursuer having suffered "personal injury". But he took the view that once liability was conceded, the question came to be whether the heads of damage claimed reflected material prejudice suffered by the pursuer to an interest recognised by law. In presenting the reclaiming motion, counsel for the defenders acknowledged that this was not a case where one was considering whether there was a duty of care, which had been breached. That had been conceded. His contentions were at times hard to reconcile with that concession: they came close to a submission that in principle the father in a case such as this would never have a claim for solatium. But the concession having been made, the submission took the form of an argument based upon the evidence. The evidence simply did not provide a foundation for any award: what Mr. McLelland had suffered fell short of what the law required for an award of solatium.
[8]The facts which provide the basis for this award of solatium to Mr. McLelland have to be seen in the context of the facts which provided the basis for the undisputed award of solatium to Mrs. McLelland. That award was made partly upon the basis of the pain and suffering which she experienced as a result of the continuance of the pregnancy beyond the date at which it would have been terminated, and as a result of the birth itself, by caesarean section. That of course represents a difference between her claim and Mr. McLelland's. But the other grounds of her claim for solatium are the same as the grounds upon which the Lord Ordinary made an award in favour of Mr. McLelland. First, there is the shock and distress on discovery, soon after the birth, that (contrary to the expectation which the defenders' negligence had created) Gary was in fact affected by Down's Syndrome. And in addition, there was the longer term additional mental, physical and emotional stress and wear and tear involved in bringing up a child so affected, over and above that involved in bringing up a healthy child. It is to be noted that although the defenders do not quarrel the award of solatium to Mrs. McLelland, either in principle or in amount, they do not concede that these additional bases for Mrs. McLelland's claim were sound. And in relation to Mr. McLelland, it was submitted that they were unsound.
[9]In general terms, counsel for the defenders submitted that Mr. McLelland's right to solatium (although conceded in theory) was difficult to categorise. Was one really dealing with a wrong done to him directly, or was he to be seen as a "secondary" victim? Mrs. McLelland had plainly sustained personal injury; but it was submitted that Mr. McLelland was really a secondary victim of the injury done to his wife. I shall come to the question of what he suffered; but I am satisfied that there is no validity in the suggestion that he is thus a secondary victim of a wrong done to another. As the Lord Ordinary says, both pursuers relied on the defenders' staff, to exercise reasonable care to provide them with the information, as well as providing the first pursuer with treatment, necessary to secure them against the eventuality of the birth of a child affected by Down's Syndrome. I would agree with the Lord Ordinary, that it was reasonably foreseeable to the staff concerned, that if they failed in their duty of care to both pursuers, the very event which they sought to guard themselves against was liable to occur, and that if it did so occur, the harmful effects, on both pursuers, would include both severe shock and distress on discovery that the child was affected by the syndrome, and also, in the longer term, increased stress and wear and tear in bringing up and caring for the child. Whether or not the law allows damages for these consequences, I am in no doubt that they are direct consequences, for Mr. McLelland, of the breach of a duty owed to him. Decisions as to "secondary" victims are not, in my opinion, in point.
[10]Factually, the Lord Ordinary accepts that Mr. McLelland shared with his wife the shock and distress at the discovery that Gary was affected by the syndrome. He accepts Mr. McLelland's evidence that he was "devastated" by the discovery, and that he had the particularly difficult task of breaking the news to the grandparents, having told them that the child was normal and healthy. The Lord Ordinary goes on to accept that Mr. McLelland was affected by the additional "stress and wear and tear" of bringing up a child affected by the syndrome, although he regards his exposure to that stress as less constant, both in the past and in the future, than his wife's, as he is in full time employment. I did not understand it to be disputed that the evidence justified these descriptions of what Mr. McLelland suffered as a result of the defenders' negligence. He has been, and will be, stressed and worn and torn.
[11]As had occurred before the Lord Ordinary, the submissions to us involved reference not only to claims by "secondary victims" such as nervous onlookers, but to claims for solatium in respect of the death of another, and cases where there had been, for example, failed sterilisation - in which case the issue did not really arise. Reference was also made to previous cases in which a claim for solatium by a father had not been made. I do not think that these cases illuminate the principles which are to be applied in a case such as this. In the end, the submission advanced on behalf of the defenders appeared to me to turn upon the proper identification of what would, and what would not, be regarded by the law as amounting (as the Lord Ordinary put it) to material prejudice suffered by a pursuer to an interest recognised by law. Founding upon dicta in Wallace v. Kennedy (1908) 16 S.L.T. 485, counsel for the defenders submitted that there must be physical injury, although that might be produced by nervous shock. It is, however, evident that that is too narrow a description of what the law requires. In Simpson v. Imperial Chemical Industries Limited 1983 S.L.T. 601, the Lord Justice Clerk said (at page 605) that it is not enough for a person to say that he received a shock or a fright from an explosion which caused "normal emotional reaction with no lasting effect" and to claim on account of this "shock" alone. But his Lordship went on to say that a person could only claim damages if he proved that "he suffered some physical, mental or nervous injury"; and he later says that as a matter of principle and indeed of common sense, a "normal emotional reaction" not resulting in any "illness, injury or disability" is not enough. The contrasts made by the Lord Justice Clerk in Simpson have a parallel in McLoughlin v. O'Brien [1983] A.C. 410, where Lord Bridge referred to the need to establish that a pursuer was suffering "not merely grief, distress or any other normal emotion, but a positive psychiatric illness." I am not myself persuaded that this last distinction is useful in cases such as the present: between normal emotions and positive psychiatric illness, there will be many types of suffering, and indeed consequences which are more or less disabling, which Lord Bridge does not mention. And while one might not wish to describe the impact upon Mr. McLelland as psychiatric illness, the language of "stress and wear and tear" does not seem to me to be merely metaphorical. Nor does Mr. McLelland's devastation, soon after the birth, seem to me to be adequately described as, or as analogous to, the nervous shock sustained by a bystander or one who hears news of an accident - or indeed as simply the "normal emotional reaction", with no lasting effect, which may be felt by those who are submitted to shock or fright. The language which has been used where the scope of duty is in question, or where one has an essentially secondary victim, is in my opinion quite misleading when one is dealing with a victim of direct wrong, like Mr. McLelland. There is no need to come within the expression "personal injuries"; but Fleming v. Strathclyde Regional Council 1992 S.L.T. 161 seems to me to illustrate the need for the law to accept that personal damage is not limited to medical conditions, just as Cullen v. Docherty 1995 S.L.T. 716 shows that anxiety, worry and distress over a significant period are matters which cannot be excluded from the category of consequences which were sound in damages, when caused by negligence. I am in full agreement with the approach adopted by the Lord Ordinary on this matter, and I see no basis, in principle or upon the facts of this case, for denying a pursuer such as Mr. McLelland damages in the form of solatium for what the defenders' staff did to him.
Ground 2 - Ordinary outlays and maintenance (Heads 2, 3(a) and 3(b)).
[12]This ground of appeal covers heads 2, 3(a) and 3(b); but nothing turns on the inclusion of head 2, nor is the separation of head 3(a) and head 3(b) of any significance for present purposes. Moreover, the inclusion under heads 3(a) and 3(b) of increased costs attributable to Gary's special needs may be ignored for the purposes of this ground of appeal: one is concerned here only with the ordinary or basic costs of maintaining Gary until he attains majority. No issue arises as to quantum in that respect: the question is whether the pursuers are entitled to recover damages in respect of the expenditure which they have incurred and are likely to incur in the future on Gary's basic maintenance. The Lord Ordinary has held that they are so entitled.
[13]In their written grounds of appeal, the pursuers submit that the Lord Ordinary ought to have held that no award for these basic costs should be made "in respect that, on the evidence, Gary McLelland was not an 'additional child'". That formulation of their position reflects the way in which the matter was argued before the Lord Ordinary. As regards the evidence, the Lord Ordinary proceeded upon the basis that the pursuers' intention was to have a family of two. They have a family of two. And it is unlikely that they will have any further children now. In that factual context, the submission advanced to the Lord Ordinary on behalf of the defenders turned very substantially upon Salih v. Enfield Health Authority, [1991] 3 All E.R. 400 which the defenders contended should be followed. The Lord Ordinary did not regard the decision of the Court of Appeal in Salih as distinguishable; but he declined to follow that decision. He preferred the result reached by Drake J. at first instance. The basis of his decision is not, however, to be found in the reasoning adopted by Drake J. The Lord Ordinary did not adopt that reasoning, and his decision was essentially one founded upon the ordinary principles of Scots law in relation to reparation. If the defenders had not failed to detect that the expected child was affected by the genetic disorder, the pregnancy would have been terminated. The pursuers would therefore not have incurred the basic cost of maintaining Gary. Prima facie, therefore, the pursuers were entitled to recover that cost from the defenders as part of their claim. If that result was to be displaced, it was for the defenders to displace it. And his Lordship was not persuaded that the "additional child" argument, expressed in the Court of Appeal's decision in Salih, displaced the general principle.
[14]The Inner House decision in McFarlane, 1998 S.C. 389, was issued after submissions to the Lord Ordinary in the present case had begun, but before they were concluded. His Lordship notes that the well-established basic principle, that an award of damages should put the pursuers as nearly as money can in the position in which they would have been if the negligence had not taken place, was reaffirmed in McFarlane. And his finding that the pursuers were entitled to damages in this respect is founded upon that principle. But the submissions advanced to him did not turn significantly upon anything said in McFarlane: the question was rather whether, as the defenders contended, the Court of Appeal's decision in Salih, and the "additional child" argument, demonstrated that damages would not be recoverable in terms of the general principle, if the actual and expected expenditure on the child in question would have been incurred in any event, according to the evidence, upon another child.
[15]In contrast to what happened in the Outer House, the issuing of the House of Lords decision in McFarlane, after the submissions which we heard in September 1999 but before the resumed hearing in November 2000, resulted in a fundamental change in the arguments advanced by the defenders and reclaimers. It was no longer contended that the "additional child" argument, rejected by the Lord Ordinary, provided a sound and sufficient argument for holding that the pursuers could not recover the basic costs of maintaining Gary. At the resumed hearing, the contention for the defenders and reclaimers was that the principles enunciated by the House of Lords in McFarlane were also applicable in a case such as the present, and excluded this head of claim. On behalf of the pursuers and respondents, the submission to us was that the Lord Ordinary's conclusion was well-founded in principle, and that the decision in McFarlane, upon different facts and a different form of fault, had no application in the present case, and should be distinguished.
[16]In these circumstances, it does not appear to me to be necessary to resolve the questions raised by the Court of Appeal's decision in Salih. I am not myself persuaded that that decision is other than sound in regard to the "additional child" argument; but I do not think it useful to discuss that question in the present case, and wish to reserve my opinion upon that matter. I turn to the contentions of the parties, and in particular the question of whether the principles enunciated in McFarlane are determinative of this case.
[17]Counsel for the defenders and reclaimers of course acknowledged that McFarlane and the present case differed in a number of respects. In McFarlane, a child had been born to a couple who wanted no more children. The child was a healthy one, and there had been no apprehension that she would be otherwise. The reasons for the parents not wanting another child had nothing to do with considerations of health. Moreover, in McFarlane the negligent advice resulted in an unwanted pregnancy, whereas in the present case the negligence occurred when Mrs. McLelland was already pregnant, and resulted not in an unwanted pregnancy but in Gary's condition not being discovered in time for termination of the pregnancy. However, the defenders' submission was that these (and any other) factual differences did not mean that there was any difference in the principle to be applied. The decision of the House of Lords was that the defenders in that case were not liable to meet the economic loss incurred by the parents in maintaining a child whose birth they had not wanted. The present pursuers' claim was likewise for economic loss incurred by them in maintaining Gary, whose birth they had not wanted. While the circumstances were factually different, the basis of the House of Lords decision was that it would not be fair, just or reasonable for the law to impose such a liability on the defenders. If it was not fair, just or reasonable in the McFarlane circumstances, there was no basis for saying that it would be fair, just and reasonable to impose such a liability in the present case. It would be invidious for the law to impose liability in the present case, where there was none in such a case as McFarlane. It was submitted that such a differentiation would effectively devalue Gary's life.
[18]Counsel for the defenders and reclaimers asked us to bear in mind that in the area of pure economic loss, the court considered what was fair, just and reasonable, and was not concerned merely with questions of causation, foreseeability and remoteness. It was accepted that any question as to what was fair, just and reasonable was a circumstantial one: the court would need to consider the facts and circumstances of the particular case. But it was submitted that in applying this test, there was nothing in the circumstances which could properly lead one to say that it would be fair, just and reasonable to allow the present pursuers' claim, while rejecting the claim which had been made by Mr. and Mrs. McFarlane. The defenders fully accepted their responsibility for what happened - that Gary was born with Down's Syndrome. They accepted their liability for the additional costs which would flow from his having been born with Down's Syndrome, in comparison with the costs which would have arisen if he had not had Down's Syndrome. But in relation to the basic costs of maintaining a child who would not have been born but for the defenders' negligence, it would not be fair, just or reasonable to say that there was liability in the case of a disabled child, but none in the case of a healthy child. Counsel referred to Anderson v. Forth Valley Health Board 1998 S.L.T. 588 (in which there had been no claim for basic costs); and to the recent case of Rand v. The East Dorset Health Authority [2000] L. Rep. Med. 170, which he submitted was not distinguishable upon its facts. Overall, it was submitted that McFarlane showed that it was not fair, just or reasonable, when negligence resulted in the birth of a child which would not otherwise have occurred, to hold the negligent adviser liable for the ordinary costs of maintaining a child.
[19]On behalf of the pursuers and respondents, Miss Dorrian submitted that nothing in McFarlane struck at the present claim, which remained sound as a matter of principle. McFarlane had been treated as a case of pure economic loss, and in that respect she did not contend that this case was different. The law applicable to cases of pure economic loss was therefore to be applied. In accordance with what had been said by Lord Slynn of Hadley in McFarlane, at pages 10 and 11, it was accepted that in such a case the question was not simply one of the quantification of damages; that the question was one of liability - of the extent of the duty of care owed to the pursuers; that it was not enough to say that the loss was foreseeable, although in this case, as in McFarlane it was; and that in this case, as in McFarlane, (following Caparo Industries plc v. Dickman [1990] 2 A.C. 605) it was necessary to consider the relationship between the person said to owe the duty and the persons to whom it was said to be owed. It was also accepted that the question whether that relationship gave rise to a duty of the extent claimed depended on whether it was "fair, just and reasonable" for the law to impose the duty. And it was accepted that the test was to ask whether the doctor or the Board had assumed responsibility for the particular economic interest of the claimant, with concomitant reliance by the claimant.
[20]That being the correct approach, counsel submitted that it was essential to look carefully at the questions of responsibility and reliance in each case. The context in McFarlane was one of family planning, and it was clear that the doctor had undertaken a duty of care in regard to the prevention of pregnancy. But as Lord Slynn observed, "it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family." The doctor did not "assume responsibility" for these economic losses. And if a client wanted to be able to recover such costs, he or she would have to do so by an appropriate contract.
[21]But the present case was very different. The doctors were not concerned simply with family planning, or a general duty of care in regard to the prevention of possible future pregnancies. The responsibility and reliance here were very specific. The doctors had a specific responsibility to discover whether the unborn child had Down's Syndrome. The pursuers were relying upon the doctors to detect Down's Syndrome, if present, and there was no doubt that the pregnancy would have been timeously terminated if Down's Syndrome had been detected as it should have been. One was concerned with what had been in the contemplation of the doctors, and the parents. In the present case, what had been in contemplation had been absolutely specific. The liability which the law imposed was to be discovered in cases such as Hedley Byrne & Company Limited v. Heller & Partners Limited [1964] A.C. 465, Caparo and McFarlane. Advice had been sought and given. The advice had been sought for a known purpose. It was known that it was likely to be acted on. And it was acted upon: the pregnancy was not terminated, as it would have been if the defenders had done what they should have done, and discovered and advised that the child was affected by Down's Syndrome. In such circumstances, there was no basis for saying that pure economic loss could not be recovered, or that it should be restricted to certain forms of such loss. The claim was not based upon the mere foreseeability of the birth of a handicapped child. The responsibility and reliance were so specific that they were closely analogous to those which would be present in an explicit contractual relationship of the kind envisaged by Lord Slynn. The doctors' responsibilities, and the pursuers' reliance upon them, related to a specific child: Mrs. McLelland was already carrying that child, and what was at stake was the avoidance of the birth of that child if he was (not "might be") handicapped. That handicap was one which would affect the child for life, and would be a corresponding, lasting burden upon the parents. This was not, therefore, a case in which, as in McFarlane, the doctors' responsibility related simply to the question of whether a child was born or not. The need to discover whether Down's Syndrome was present, and to terminate the pregnancy if it was, related very directly to the long-term consequences thereafter, for the child but also for the parents. McFarlane made it plain that what was said in that case could not be applied directly to a case such as the present: the test depended on circumstances, and the birth of a seriously disabled child was not merely a different circumstance, but crucially altered the responsibilities, when avoidance of the birth of such a disabled child lay at the heart of the doctors' responsibilities.
[22]In the course of their submissions, both counsel noted generally that questions of foreseeability and remoteness could arise either in relation to the quantification of damages, or in relation to the prior problem of showing that any duty of care existed. But in the present case, as in McFarlane, it is obvious and undisputed that a duty of care existed. And the contention advanced by the defenders, that this head of damages is unsound in law, is not based upon any suggestion that the loss in question was either unforeseeable or too remote to sound in damages. As in McFarlane, the defenders' position is that there is a duty of care, with liability in damages for the breach of that duty, but that the nature and scope of that duty has to be identified by reference to the circumstances. And since the limits of the duty, and corresponding liability for breach, are to be discovered by a consideration of what is fair, just and reasonable, and by considering what responsibilities have been assumed, one relevant consideration in identifying the limits of the duty may be the nature and scope of the economic loss which may be incurred by the wronged party, if the duty be breached.
[23]At first sight, this may appear to blur the conceptual distinction between the existence of liability, and the quantification of damages. But in my opinion the questions remain distinct. And in the field of negligent advice and economic loss, I do not think that one can adequately define the scope and nature of a duty, or of liability for breach, without regard to what the parties had in contemplation: one must assess responsibility not merely in terms of things to be done or not done, but as a factor limiting acceptance of liability for consequential economic loss.
[24]In the course of their submissions, counsel naturally directed our attention to specific parts of the speeches of their Lordships in McFarlane. It was suggested that these were not merely difficult to understand, but so different as to reveal no single ratio for the decision. That does not seem to me to be the case. Much that is contained in their Lordships' speeches is concerned with ideas which have been previously voiced, and approaches which have previously been adopted, but which were rejected or regarded as unsatisfactory as a foundation for their Lordships' decision. I do not find it necessary to comment on these matters, in order to resolve the present case. In identifying the considerations which led them to their decision, their Lordships expressed themselves in markedly different ways, and may be said to follow different conceptual paths. Speaking for myself, I find that an aid to understanding, rather than the opposite.
[25]I have already said something of Lord Slynn's approach. Lord Steyn's consideration of the matter in terms of distributive justice does not seem to me to be at odds with anything said by Lord Slynn, but reflects the multiplicity, and indeed richness, of the considerations which underpin the law when broad concepts such as fairness and reasonableness, and justice itself, have to be assessed, and are used to provide answers. (At a more humdrum level, it is easy to raise an academic eyebrow when a judge asks himself what commuters on the Underground would think - but one's impression of what their response would be is at least a useful check upon, and in my opinion may frequently differ from, one's own personal assessment of what is fair or just or reasonable).
[26]After a wide review of the authorities, Lord Hope of Craighead, at page 29, refers to considerations of distributive justice, and the "practical attempt to preserve the general perception of the law as a system of rules which is fair as between one citizen and another". He goes on to say this:
"How is one to apply these very general, and necessarily imprecise, principles to the present case? Their Lordships of the Second Division gave effect to the traditional civilian system of corrective justice, which provides a remedy in damages wherever it can be demonstrated that there has been a concurrence of damnum and injuria. For the reasons which I have outlined, I do not think that this approach can be reconciled with the fact that the loss claimed under this head is pure economic loss and with recent authorities in this House, which counsel on both sides were right to accept are now part of Scots law, as to the requirements which must be satisfied if damages for loss of that kind are to be recoverable. There must be a relationship of proximity, and the attachment of liability for the harm must be just, fair and reasonable."
[27]Lord Clyde considers the relevance of the pursuers' claims from various points of view. After a discussion of public policy and a possible duty to compensate, he observes at page 34A that the case "is concerned with the extent of the losses which may properly be claimed in the circumstances of the case, rather than with the existence or non-existence of a liability to make reparation". And at page 36C he says that it appears to him that the solution to the problem with regard to the maintenance claim should be found "by consideration of the basic idea which lies behind a claim for damages in delict, that is the idea of restitution". It was suggested that there was a significant difference between his Lordship's approach and that of Lords Slynn, Steyn and Hope. But having referred to the basic idea of restitution, his Lordship goes on at page 37 to point out that the restitution which the law requires is a reasonable restitution. And in the context of a claim for an economic loss, following upon allegedly negligent advice, his Lordship says that he would consider it appropriate "to have regard to the extent of the liability which the defenders could reasonably have thought they were undertaking." In adding that it seems to him that the cost of maintaining the child "goes far beyond any liability which in the circumstances of the present case the defenders could reasonably have thought they were undertaking" he is in my opinion applying the test which he has identified and which I think is plainly the same test applied by Lords Slynn, Steyn and Hope. While Lord Millet's approach is somewhat different, and results in partial dissent, I am satisfied that the principles and approach leading to the decision are plain.
[28]In any event, it did not appear to me that counsel for the parties in the present case essentially differed as to these principles, and the appropriate approach. The law to be applied is the law governing claims for pure economic loss. In relation to claims in that particular category (and quite apart from McFarlane) our law attaches (or "imposes") liability if and only if certain extra requirements are met, and in particular attaches such liability only if the court is satisfied that (in addition to the normal requirements for delict) it is fair, just and reasonable that there be such liability. These propositions are not in doubt, in my opinion. And neither was in any way disputed in this reclaiming motion. Nor was it disputed that in this case the question whether the requirements were met was to be answered by asking whether the doctor or the Board had assumed responsibility for the particular economic loss, with concomitant reliance by the pursuers. We were not asked to consider other basic principles or approaches; and I do not regard it as necessary or appropriate to consider this common ground. There was, of course, a fundamental difference between the parties as to what, upon this basis, would be fair, just and reasonable in the circumstances of this case. But otherwise, the difficulties and differences seemed to me to relate to some of the discarded tests and intractable problems which have been considered at other levels in other cases, and are of no real assistance in cases subsequent to McFarlane.
[29]I come therefore to the application of these agreed, and in my view correct, principles to the facts of this case, as established in evidence. In considering what was in the contemplation of the parties in the present case, and the issues of reliance and responsibility undertaken, it seems to me that Miss Dorrian was well-founded in saying that the circumstances are very different from those which obtained in McFarlane, and that the principles and approach which are enunciated in McFarlane leave it as an entirely open question, whether in the circumstances revealed by the evidence in the present case it would be fair, just and reasonable to allow the claim for basic maintenance.
[30]I am unpersuaded by the suggestion that it would be "invidious", or indicate some devaluing of Gary's life, if we were to find that in the circumstances of the present case the claim for basic maintenance, which was rejected in McFarlane, should be allowed. I find that kind of terminology hard even to understand, and of no real assistance in approaching the actual issues in this case. I would add that I have found no assistance, in considering what might be fair, just and reasonable, in any universal propositions about "blessings" or the joys of parenthood. One can of course generalise on these lines, particularly if one's thoughts are concentrated on the new-born babe. But every case remains individual, and however strong the bond may be, its potential for anguish as well as mutual fulfilment seems to me to make the "benefit" of parenthood not merely imponderable (which paradoxically may not always relieve the court of a duty to weigh it) but totally speculative. Even indirectly, it does not seem to me that this is a helpful consideration. Similarly, it does not seem to me to be helpful to have recourse to any generalised propositions relating to children who are born with some particular illness or the like. (In the particular circumstances of this particular case, the defenders accept liability to pay damages in respect of those elements of the pursuers' economic loss which flow from the fact that Gary has Down's Syndrome. But that is a quite different matter).
[31]On behalf of the pursuers, Miss Dorrian's submissions as to what the pursuers and the doctors had in contemplation, and as to the responsibilities which the doctors had assumed, and upon which the pursuers relied, were spelt out with great clarity. In relation to the increased cost of maintenance, and the special requirements of care, flowing from the fact that Gary has Down's Syndrome (which are not of course disputed) these submissions seem to me plainly to be right. The known situation was not that the pursuers did not want a child. They did. I do not think it is a mis-description, or really an oversimplification, to say that what they did not want was Down's Syndrome afflicting their child, and all that that would entail for them. That was what the doctors should have averted. And I am in no doubt that the special and extra economic burdens attributable to that must be taken to have been in the contemplation of the doctors, and that it is fair, just and reasonable that the defenders should be liable in that respect.
[32]However, I am not persuaded that the circumstances of the case lead to the same conclusion, in relation to the ordinary costs of maintaining Gary during the years of his minority. I of course acknowledge that if the doctors had fulfilled their duty of care, the pregnancy would have been terminated and Gary would not have been born. And that being so, it is possible to describe the breach of duty in terms of the fact of his birth, and to say that in this case, unlike McFarlane, the doctors must be seen as accepting the full economic responsibility for that birth, if it came about through their negligence. But I find myself quite unable to see matters in that way.
[33]I was at first inclined, in the light of the arguments advanced for the pursuers, to think that this was a stronger case than McFarlane for finding the defenders liable. But I have come to the view that the reverse is the case. In McFarlane, any birth was the issue - the event to be averted by preventing pregnancy. The negligent advisers would, I think, properly be held to have in contemplation that if they failed in their duties, an unwanted birth might occur. But in such circumstances, as Lord Slynn points out, it does not follow that the duty includes also avoiding the costs of rearing the child if born. I of course accept that in a case such as the present, the minds of the doctors would be directed to this specific unborn child, rather than to the general risk of pregnancy. But their primary function and duty did not relate to the birth of any child. Still less did they relate to issues of family planning and the cost of bringing up any child. The primary question related to Down's Syndrome and its detection, with appropriate advice to follow. While termination of pregnancy would be expected, if the syndrome were found, the primary and practical question here did not relate to the birth of any child. The conduct required of the doctors, in fulfilment of their duty of care, was not conduct which in itself had any direct connection with the birth of the child. The matters which required their attention and action and advice were matters relating to the presence or absence of Down's Syndrome. One can say that it would be in their contemplation that if they fulfilled their duties, their advice might lead to termination of pregnancy, and that if they failed in their duties, that opportunity would be lost. But despite my initial response, it now seems to me that at the relevant time, the possibility of an unwanted birth would be even less directly in their contemplation than in a case like McFarlane, and that there is no proper basis for saying that they were assuming any responsibility in relation to the ordinary costs of maintenance of the child, were he to be born.
[34]Correspondingly, while the pursuers were of course relying upon the doctors to detect Down's Syndrome, if the child were affected by it, and are correspondingly entitled to recover damages for economic loss related to Down's Syndrome itself, I cannot see their reliance as having extended across the intended termination of pregnancy, and beyond matters thus directly related to Down's Syndrome, into the area of ordinary maintenance of the child, were he to be born.
[35]In these circumstances, and upon the basis of my assessment as to what was in the contemplation of the parties, and the issues of responsibility and reliance, I can see no proper basis for holding that it would be fair, just or reasonable for the defenders to be held liable in respect of heads 3(a) and 3(b) of the pursuers' claim.
[36]Having had the advantage of reading the opinions of your Lordships, I should add two brief observations. First, I agree with Lord Marnoch that the question of what is fair, just and reasonable in a particular case may turn on matters other than those which in this case were treated as providing a quite specific ad hoc "test". Nonetheless, I would not myself think it at all likely that evidence as to the personal responses of the particular parents (or indeed each of them if they differed) would be of assistance to the fact-finding judge or jury in cases of this kind. And secondly, while I agree with Lord Morison, and disagree with Lord Slynn, in thinking that there would be nothing strange or absurd if the law of Scotland and that of England differed upon such difficult matters as arose in McFarlane, I am myself unsurprised and unperturbed that the particular requirements in regard to pure economic loss have been recognised in the laws of both jurisdictions in the same way. They do not seem to me to involve any truly "moral" judgment, or to introduce any greater element of subjectivity than is inherent in many judicial decisions. I should not myself have thought that they had found their way into Scots law on any basis other than principle - but in any event they have, and had done so before McFarlane. They were accordingly undisputed in this case. I of course note Lord Morison's views; and I regret that my own reasoning and conclusions, as he construes them, do not commend themselves to him. We also construe the speeches in McFarlane differently. But I do not have any further observations upon these matters.
Ground 3 - Care and maintenance after the age of 40 (Head 5).
[37]The Lord Ordinary made an award of £50,000 to the pursuers, in respect of the care and maintenance of Gary after he reaches the age of 40. It is contended on behalf of the defenders that this award should not have been made, because the evidence established inter alia that State funding would be available to cover any such costs, and that the pursuers, in any event, did not envisage any form of residential care for Gary. (It is to be noted that in this connection, the otherwise crucial distinction between "ordinary" maintenance, and additional costs of care attributed to the fact that Gary suffers from Down's Syndrome, is not drawn). The starting point for the Lord Ordinary's award is the fact that when Gary reaches 40, his parents will be over 65, and unlikely to be able to bear the burden of looking after him. By that stage, he is more likely to suffer from pre-senile dementia than is normal. Assessments were available to the court, showing the likely cost of his care at that stage, either in some form of supported accommodation, or at home with substantial supervision (which would cost more). The Lord Ordinary's award was based on figures for supported accommodation, but using a modest multiplier of four. That would have produced a figure of approximately £115,000, ignoring the prospects of Social Security funding. His Lordship did not feel able to ignore that prospect, but equally did not consider it appropriate to make no award at all. He therefore discounted that figure to £50,000 to reflect the probability of some State-funded support.
[38]The basis for the Lord Ordinary's approach and conclusions is to be found in the broad tenor of the evidence, rather than particular or precise identification of what is likely to happen. That seems to me to be natural, if not indeed inevitable. As one might expect with loving parents, there was evidence indicating that the pursuers would do all they could, would see Gary as a life-long commitment, would want to keep him at home as long as they could, and would want to see him settled when they could no longer carry the burden themselves. How this might be achieved financially is not (understandably, in my view) established by any firm evidence. The way in which such cases are dealt with at present does not tell one with any certainty how matters will be dealt with in a generation's time. I do not think that this is a matter upon which there is much to say. I am satisfied that, as was submitted on behalf of the pursuers, the Lord Ordinary was entitled to reach the conclusion that there may be support available, looking 32 years ahead, but that there might well not be sufficient support to resolve the problem. The assessment of an award of damages in Scotland is traditionally a matter of broad judgment, and I can see no error in the approach adopted by the Lord Ordinary.
Ground 4 - Wage loss (Heads 6(a) and 6(b)).
[39]The Lord Ordinary assessed Mrs. McLelland's past wage loss at £25,000, and her future loss of earnings at £72,000. On the former, a sum of £8,312 was to be added, in respect of interest. In making his awards, he of course applied the agreed 5% discount. On behalf of the defenders, it was submitted that any loss of earnings after Gary's fifth birthday was not attributable to the birth of the child. Upon that basis, there should be no award for future wage loss, and the award for past wage loss should be limited to the period up to his fifth birthday, on 5 September 1996.
[40]After Gary's birth, Mrs. McLelland worked part time. But for his birth she would have worked full time. Her part time work was for approximately half the number of hours that she would have worked if working full time. The award of £25,000 reflected the difference, subject to further accepted reductions. The issue is not as to the figures, or the rate of loss. What is in issue is what Mrs. McLelland would have done, if Gary had not been born, and the matter is complicated by the fact of her having had another child. Her answers in evidence upon this somewhat speculative matter are not easy to reconcile, and include answers given in re-examination to what are really leading questions. On a matter where there can be no real certainty as to what would happen, I am satisfied that the matter was one for the Lord Ordinary to judge on the whole evidence, and that taking the evidence as a whole, he was entitled to reach the conclusion which he did reach. In weighing one part of Mrs. McLelland's evidence against another, he had the advantage, which I do not have, of having heard that evidence being given. He says that he has no hesitation in accepting that with one or two normal healthy children, she would have been able to organise her life and theirs in such a way as to enable her to continue working full time. I am satisfied that that was a conclusion he was entitled to reach. I see no basis for disturbing his awards under these heads.
Summary and Conclusion
[41]In these circumstances, I would allow the reclaiming motion in relation to the second ground of appeal, but otherwise refuse it. Upon that basis, the Lord Ordinary's interlocutor of 23 September 1998 should stand unaltered in relation to the award of £117,139 quoad the first conclusion, and also the award of £5,697 quoad the second conclusion. The award of £213,325 in relation to the third conclusion should be recalled, in order to exclude therefrom those parts of that award which were challenged and which fell under heads 2, 3(a) and 3(b) - the layette and the claim for ordinary maintenance from birth to the age of 19. (It appears that in any event that figure of £213,325 was erroneous, due to an arithmetical error, and should have been £232,325 upon the basis of the Lord Ordinary's assessments and awards). Parties have lodged a joint minute, stating inter alia that in the event of ground of appeal 2 being successful, the Lord Ordinary's award should be reduced in two respects. First, head 3(a) of his assessment of the pursuers' claims should be reduced by £20,392 (from the total of £31,459 stated under that head in his Lordship's Opinion). And secondly, head 3(b) should be reduced by £31,365 (from the stated figure of £41,200).
[41]The fact that there is a remaining unchallenged balance under each of heads 3(a) and 3(b) results from the inclusion under each of these heads of the increases in maintenance costs due to Gary's special needs. These increases, like those covered by heads 4(b) and 4(c), are not "ordinary", and are not touched by my conclusion upon ground 2. The two agreed, but limited, reductions produce a total reduction of £51,757 in the cumulo total of those heads of assessment which relate to the third conclusion of the summons. That cumulo total was £244,553 (before the 5% discount) and it therefore falls to be reduced to a figure of £192,796. And correspondingly, the amount of the decree, quoad the third conclusion, reflecting the agreed 5% discount, should be reduced to £183,156. The award in respect of the layette could in principle be deducted in terms of my conclusion on ground 2 - but in terms of the joint minute this is not sought.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Prosser Lord Marnoch Lord Morison | 0937/5/1993 OPINION OF LORD MARNOCH in RECLAIMING MOTION FOR DEFENDERS in the cause MARGARET McLELLAND and GERARD McLELLAND Pursuers and Respondents; against GREATER GLASGOW HEALTH BOARD Defenders and Reclaimers: _______ |
Act: Dorrian, Q.C., Illius; Digby Brown, S.S.C.
Alt: Hajducki, Q.C., Dunlop; R.F. Macdonald
7 March 2001
[1]I agree that this reclaiming motion should be disposed of in the manner proposed by your Lordship in the chair. However, as regards the second head of the reclaimers' argument, namely the submission anent the disallowance of the so-called "ordinary" costs of maintenance, I prefer to rest my own opinion on the facts of the present case as established in the evidence led.
[2]In that connection, I am not, perhaps, as confident as is your Lordship that the ratio of McFarlane in the House of Lords is centred on the matter of assumption of responsibility by the doctor and concomitant reliance on him by the claimant. That, no doubt, was how Miss Dorrian, for the respondents, sought to approach the matter but it was, I think, an approach dictated, at least in part, by her clients' acceptance and love of the child in question. Rather do I think that in terms of distributive justice (per Lord Steyn and Lord Hope of Craighead), incalculable benefits (per Lord Hope of Craighead, Lord Clyde and Lord Millett) or what is "fair, just and reasonable" (per Lord Slynn and Lord Hope of Craighead) the speeches of their Lordships leave wide open the possibility of a different result being reached in the event of any form of negligence giving rise to the birth of a damaged, as opposed to a healthy, child.
[3]In the present case, while the evidence on the point is somewhat sparse, the first pursuer was asked in cross-examination whether "you get pleasure from having him (Gary)?". The answer is a simple one, "Yes, we do" - an answer which goes unchallenged in the rest of the evidence. There is accordingly no suggestion that, as matters have turned out, Gary is in any way an unwanted child and that, as I see it, places the respondents in the same position as Mr. and Mrs. McFarlane so far as the ordinary costs of maintenance are concerned. But I do not go so far as to say that the birth of a damaged or disadvantaged child can never give rise to a claim for such costs and, in that connection, I note that, despite his rather different approach, even Mr. Justice Newman in Rand v. East Dorset Health Authority left open the question of when "human life might have to be accorded no value." As to this matter generally - however invidious it might be - I cannot do better than respectfully adopt what is said by Lord Nimmo Smith in Anderson v. Forth Valley Health Board 1998 S.L.T. 588, at p. 605:
"The birth and upbringing of a child no doubt bring both advantages and disadvantages, both happiness and distress; and most people most of the time would regard the former as outweighing the latter. But it seems to me to be a question of fact and degree in the circumstances of any particular case where the balance rests. It may be regarded as being within the range of reasonable responses to the birth of a child that in one case his parents may accept it as an unmixed blessing, or at least as an event which on the whole is to be welcomed, while in another it is seen as nothing less than an unmitigated disaster. These are necessarily subjective reactions, so the fact that one set of parents reacts to a birth in a way in which others might not should not be determinative either way of an entitlement to damages. This is essentially a jury question, and I can identify no reason in principle for excluding from the range of options open to a jury an award of damages arising from the birth of a child if the parents have in fact suffered what may be regarded as adverse consequences."
[4]I recognise, of course, that in that case the only claim was for the extraordinary costs of care but it seems to me that Lord Nimmo Smith's approach is equally applicable to the claim here in dispute.
[5]All that said, I am satisfied, for the reason give above, that in the present case the claim for the ordinary costs of maintenance is not made out and I accordingly concur, in its entirety, in the judgment envisaged by your Lordship in the chair.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Prosser Lord Marnoch Lord Morison | 0937/5/1993 OPINION OF LORD MORISON in RECLAIMING MOTION FOR THE DEFENDERS in the cause MARGARET McLELLAND and GERARD McLELLAND Pursuers and Respondents; against GREATER GLASGOW HEALTH BOARD Defenders and Reclaimers: _______ |
Act: Dorrian, Q.C., Illius; Digby Brown, S.S.C.
Alt: Hajducki, Q.C., Dunlop; R.F. Macdonald
7 March 2001
[1]For the reasons set out in your Lordship's Opinion, I agree that grounds of appeal 1, 3 and 4 in this reclaiming motion should be dealt with as your Lordship proposes.
[2]Ground 2 of the grounds of appeal states that the Lord Ordinary
"erred in law in awarding the pursuers (a) the cost of the layette, (b) the basic costs of maintenance of Gary McLelland from birth to 30 April 1998 and from 1 May 1998 to the age of nineteen. The Lord Ordinary should have held that no award therefor should be made in respect that, on the evidence, Gary McLelland was not an additional child".
Had it not been for the decision in McFarlane I would have had little difficulty in agreeing with the Lord Ordinary and refusing this ground of appeal. As the Lord Ordinary has noted, the defenders have admitted liability to pay damages to the pursuers for any loss sustained by them as a result of the defenders' negligence. There seemed to me to be little doubt that in the circumstances of this case the requirement to maintain the child whose birth would not have taken place if the pursuers had been properly advised was a foreseeable consequence of that negligence, and that the only question raised was whether the loss thereby incurred included the whole cost of maintaining the child, or whether a deduction should be made from that cost on account of the fact that part of it would have been incurred anyway on a "substitute" healthy child who would have been born if the negligence had not occurred. Such a deduction could only be justified upon the ground that Gary was not what was described in Salih and Anor v. Enfield Health Authority, [1991] 3 All E.R. p. 400 as an "additional child", and that the normal expense of maintaining him is therefore in pari materia with the cost which would have been incurred by the birth of another child who, if the negligence had not occurred, would have been, but was not, born. The view that the two costs are in pari materia with each other depends on regarding the pursuers' claim as part of that made on behalf of the "family unit", rather than as one made in respect of an individual. There would seem to me to be practical difficulties in assessing the value of such a claim if it had been made in the present case, but it has not. Regarding Gary as an individual, I do not see how the cost of maintaining him can be described as incurred "for an identical purpose" as that of maintaining someone else. I see no logical ground upon which it could be held, consistently with the defenders' admission of liability, that an award of damages to the pursuers includes part of the cost of maintaining the child but excludes another part.
[3]The decision in McFarlane to exclude the cost of maintaining a child whose conception would have been avoided if the negligence had not occurred does not affect that view. We were asked to apply that decision to the pursuers' claim for maintenance costs in this case. In my opinion the decision has no application to this claim. Although it was arrived at in different ways it depended crucially on two facts, unanimously regarded as material, which differ from those of the present case. Firstly, the negligence on the basis of which the claim proceeded was negligent advice that a vasectomy had rendered the husband infertile. The consequence of that failure was that the wife became pregnant and then gave birth to a healthy child. As was pointed out for example by Lord Clyde, the claim was "not one for a wrongful birth, meaning by that a negligent failure to terminate pregnancy and distinct in that respect from a wrongful conception". In the present case the negligence falls into the category of a claim for a "wrongful birth". The purpose of the tests which the defenders negligently failed to carry out was to advise the wife, if that were shown to be the case, that the child would be born with Down's syndrome. Had they done so, the pregnancy would have been terminated. Liability for the consequences of an unwanted conception was treated, in McFarlane, obviously correctly, as different from that for the consequences of a "wrongful birth".
[4]Secondly, the different approaches taken in McFarlane do not disguise the fact that the case was decided principally on the general ground that maintenance costs were not due because the birth of a healthy child is a blessing, not a liability. Whether that blessing fell to be taken into account because it formed part of the whole circumstances rendering it fair, just and reasonable to impose liability for maintenance costs on the parents, or because the benefit should be held to offset those costs, or because the doctor had not undertaken liability to meet them, seems to me to be of no consequence. The "cost-free enjoyment of a child", and the "relationship of mutual support and dependency" between the parents and the child, was the principal reason for excluding the defenders' liability. It was noted that there was no suggestion that the relationship between parents and child had been "compromised" in the sense referred to by Lax J. in Kealey v. Berezowski (1996) 136 D.L.R. 708, 739-740. There is no basis in the evidence or elsewhere in the present case for suggesting that this relationship has not been compromised, and indeed the recognition by the defenders that the costs of maintenance of the child, so far as related to his handicap, are recoverable, is directly contrary to the principal argument which succeeded in McFarlane.
[5]For these reasons I hold that the decision has no direct application to the issue raised in this ground of appeal. Since the appeal was ultimately presented to us exclusively on the basis that there was no material distinction between the facts in McFarlane and those in the present case, it could be refused on this ground alone.
[6]The different approaches adopted in McFarlane towards the claim for recovery of child-rearing costs made no difference to the result, and in my view any such differences do not affect the result in the present case. The common factor in the decision was the recognition that claims for pure economic loss do not arise unless there is a "more proximate relationship" between the negligence and the loss, or between the alleged wrongdoer and the person who has suffered the loss, than that provided by the criterion of foreseeability. This is certainly a proposition which forms part of the law of Scotland, but I am not aware of any case in Scotland in which it has previously been accepted that the necessary proximity is established by the court's general assessment of what is "fair, just and reasonable". As is pointed out by Lord Steyn, such a test proceeds in essence on the "judges' sense of the moral answer to a question" and by "what a judge reasonably believes that the ordinary citizen would regard as right". I must confess that my perception of what "the traveller on the underground" would think fair does not differ from that which I myself think and that therefore the test appears to me to be no less subjective if expressed in this way. In the circumstances of the present case, particularly since liability has been admitted, I prefer the approach taken by Lord Clyde who regarded the issue as not properly one of the existence or non-existence of a duty of care to avoid causing damage of a particular kind, but as one arising in the context of what damages the person suffering the wrong may be entitled to. He based his decision upon the grounds that reasonable restitution did not involve relieving the parents of their financial obligations incurred in caring for their child; and, in the context of a claim for economic loss, that reasonable restitution could not involve liability which went beyond that which the defenders could reasonably have thought they were undertaking. As noted above, these conclusions were based on facts different from that of this case. However, I proceed on the same approach, although, as I have mentioned, it would have made no difference if I had proceeded otherwise.
[7]In this case there is no general issue whether the pursuers' economic loss in maintaining the child is excluded. Part of that cost, related to their expenditure on the child's special needs, is admitted to be recoverable. The "relationship of proximity between plaintiff and defendant", referred to by Lord Oliver in Capearo Industries plc v. Dickman [1990] 2 A.C. 605, 633 must clearly exist in the present case. Since the defenders' negligence was one which directly related to the "wrongful birth" of the child, I regard the concession as having been correctly made, but in any event, since the "additional child" argument has now been abandoned, I can see no logical justification for excluding from the liability which the defenders thought that they were undertaking one part of the costs of maintenance and including another part. The contrary view which I understand to be expressed by your Lordship in the chair appears to be based on the assertion that the doctor's conduct had no direct connection with the birth of the child, but was related directly only to the presence or absence of Down's syndrome. I am not able to understand this view. The direct and only object of carrying out the tests which the doctors failed to carry out was to prevent the birth to the wife of a child suffering from Down's syndrome. That was precisely what she wished to avoid, and the defenders were or ought to have been aware of that fact. The negligent failure to test was not related to the prevention, curing or treatment of the condition if it were discovered, and no restriction of the defenders' liability for maintenance costs on this kind of basis can be justified.
[8]Nor in my opinion can the disputed claim in the present case be excluded on the general ground that a child is a benefit for whose upkeep the parents should be regarded as responsible, as was successfully argued in McFarlane. If that were so, the benefit would be set against and would exclude the whole of the costs of maintaining the child, not just part of them. In any event, as Lord Marnoch points out, in the case of a damaged or disadvantaged child, the argument cannot depend on the generally recognised benefits of parenthood referred to in McFarlane. It must, if presented, proceed on evidence as to the extent of the disadvantage and the subjective reaction of the parents. In my view it would be totally illogical at least in the present case to regard the defenders' responsibilities as having been restricted by reference to such considerations, particularly since these responsibilities admittedly include part of the costs of maintenance, the nature of which could not be assessed in advance. I consider that it would be unfair, unjust and unreasonable if an argument of this nature were to be successful on the facts of this case and, for what it may be worth, I have little doubt that the traveller on the underground would think the same.
[9]I would therefore refuse the reclaiming motion so far as related to this ground of appeal.