A right old mess

Abstract

Few areas of the law of negligence have excited as much recent comment as the liability of medical practitioners for negligence that results in the birth of an unplanned child. The spate of literature has been sparked by a number of recent cases, particularly in the United Kingdom, dealing with this issue. In "McFarlane v Tayside Health Board" a unanimous House ofLords held that the negligence of a medical practitioner that resulted in an unwanted pregnancy and subsequent birth did not give rise to a claim for damages with respect to the costs of raising the now extant child. This controversial decision led the Court of Appeal in England to distinguish "McFarlane" where the child was born with a disability so that a claim would lie for the extra costs - those over and above the normal expenses of raising a healthy child - associated with the child's disability. A further extension was made by a differently constituted Court Of Appeal in "Rees v Darlington Health Authority" where the claim was for the extra expenses incurred by a disabled parent who had to care for a child born as a result of the negligence of the medical practitioner. In the meantime, the High Court of Australia reached a different conclusion to the House of Lords in "McFarlane" by holding that the reasonable costs of rearing an unplanned child were recoverable in an action against the negligent medical practitioner. Given this diversity the decision of the House of Lords in "Rees v Darlington Health Authority" was much awaited. However, although the decision is of great interest, it is suggested that it leaves many questions unanswered.Whatever one's views of the High Court of Australia's ruling in "Cattanach v Melchior", it is preferable to the fine distinctions that now govern this area of the law of negligence in England and Wales.