McFarlane v Tayside Health Board

Lord Slynn held that the doctor had a duty of care in regards to the pregnancy, but not towards the costs of rearing the child:^[5]

"The doctor undertakes a duty of care in regard to the prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family. Whilst I have no doubts that there should be compensation for the physical effects of the pregnancy and birth... I consider that it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up the child."^[6]

Lord Hope held that the claim was entirely for economic loss, which is generally not recoverable. However, the benefits of the raising of the child were to be balanced with the costs of raising the child. Since the benefits are incalculable, but the costs are, the costs of raising the child are not recoverable as damages.^[5]

"It would not be fair, just or reasonable, in any assessment of the loss caused by the birth of the child, to leave these benefits out of account... The costs can be calculated but the benefits, which in fairness must be set against them, cannot. The logical conclusion, as a matter of law, is that the costs to the pursuers of meeting their obligations to the child during her childhood are not recoverable as damages."^[7]

Lord Steyn and Lord Millett both advanced policy arguments. Lord Millett argued that a society must consider the balance of cost and blessing as beneficial.^[5] Lord Steyn advances a distributive justice argument, that the court needed to consider whether spreading the burden across society was just, which for wrongful conception, it was not.^[5]

• Medical Negligence
• Duty of Care in English Law