Wrongful Birth Flashcards
What is the key difference between the approaches of the English and Australian courts?
The English approach only covers limited damages - just the pregnancy costs - McFarlane.
The Australian approach is to award total recovery - for both pregnancy and child-rearing costs - Cattenach.
What’s the issue with McFarlane?
No single rationale for limited damages is given in the case.
Each of the judges gave their own specific reasons.
What was the court’s view on child-rearing costs in McFarlane?
Child-rearing is a pure economic loss.
English law does not allow recovery for pure economic loss.
There is no physical injury or damage to authority in the rearing of a child.
What must be the case for pure economic loss damages to be awarded? What did the court say in McFarlane?
There must be proximity and fairness, justice and reasonableness.
It would not be fair, just and reasonable to award compensation in the case.
What is the other way of viewing McFarlane other than pure economic loss? What did Lord Millett think?
Consequential economic loss.
Lord Millett - an injury was inflicted on the mother by failing to prevent the pregnancy to take place. It is consequential that there is pain and suffering as well as financial losses from raising the child.
Why did Lord Steyn not think it would be fair, just and reasonable to award total recovery in McFarlane? What is the issue here?
Lord Steyn claimed that total recovery would contravene public opinion - if you ask a ‘traveller on the underground’, they would not agree that the claimants should get damages for child-rearing.
This hypothetical opinion poll has no empirical support and is an imprecise test.
What was Lord Hope’s reason for giving limited damages? What is the issue here?
Lord Hope claimed that the loss was too remote from the wrong that was committed.
Can it really be said that the loss was too remote?
What principle did Lord Hope reject and why?
He steers clear of the Mitigation Principle - if the parents really didn’t want the baby they could have had an abortion or put the baby up for adoption.
This is not a decision the court should expect the parents to make.
What is the key issue for the majority? What is this approach called?
Whether there had been any loss to the parents.
Offset/Benefits approach - when you have a child there are costs, but you gain massively from having the child and this outweigh those losses - to claim here would represent unjust enrichment.
Why is the offset/benefits approach controversial?
The parents had already decided that they did not want any children and were trying to mitigate against this occurrence.
They clearly did not believe in the offset/benefits approach.
What reasons does Lord Hope give supporting the offset/benefits approach?
There is a pleasure given by the child in return for the love and care they receive.
Beyond childhood, there is a mutual relationship of support and affection.
What is Lord Hope’s balanced equilibrium principle?
There is no objective way of balancing the costs and benefits of having a child.
The benefits cannot be quantified.
How did Lord Clyde attack Lord Hope’s argument?
Offset/benefits should not deter courts for awarding damages for factors which cannot be precisely calculated.
A parent’s claim for bereavement following a child’s death is not offset by the saving in maintenance costs which the parents will gain.
What is a wrongful birth action?
A claim for compensation made specifically by the parents of a child that has been born which they did not want to be born.
The child has come into existence due to medical negligence i.e. failed/negligent sterilisation or termination.
What is Lord Millett’s reason for rejecting damages for child-rearing? What is the issue with this?
Lord Millett finds the idea that a child is a harm morally repugnant - the birth of a normal, healthy baby is a blessing, not a detriment.
This argument is incredibly moralistic. It sounds like Lord Millett is imposing his own moral view on us.
