This is a claim for the additional costs of raising her son S who suffers from both haemophilia and autism. It is admitted that, but for D’s negligence, S would not have been born because his mother would have discovered during her pregnancy that he was afflicted by haemophilia and so would have undergone a termination. It is agreed that she can recover the additional costs associated with that condition. What is in dispute is whether she can also recover the additional costs associated with S’s autism. D’s position is that such costs are outside the scope of her liability because the service she was providing was only in relation to the risk of haemophilia. In such circumstances, responsibility for the wholly unrelated risk of autism is not to be transferred from the mother to the doctor. C maintains that she is entitled to damages for the continuation of the pregnancy and its consequences, including all the additional disability related costs, on the basis of well-established principles in wrongful birth claims. (paragraph 1)
Can a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability (rather than to avoid the birth of any child) recover damages for the additional costs associated with an unrelated disability? (paragraph 2)
[The court considered the Saamco principle and its application to this case – The House of Lords decided that the measure of damages was the loss attributable to the inaccuracy of the information, namely the difference between the security the lender in fact had and that he would have had if the information had been accurate. The valuer was not responsible for all the consequences of proceeding with a loan which the lender would not have made had the true valuation been known.]
D says all the foreseeable risks of the pregnancy cannot be transferred to the doctor who has provided a service in relation only to one specific risk, the risk of haemophilia. (paragraph 35)
Once it is established that, had the mother been properly advised she would not have wanted to continue with her pregnancy, should it matter why she would have wanted a termination? Why logically should there be a distinction between the parent who did not want any pregnancy and one who did not want this particular pregnancy? In each case, the effect of the doctor’s negligence was to remove the mother’s opportunity to terminate a pregnancy that she would not have wanted to continue. To draw a distinction on the basis of considering the underlying reason why a mother would have wanted to terminate her pregnancy seems unattractive, arbitrary and unfair. (paragraph 58)
…the focus of D’s duty and the very purpose of the service C sought was to provide her with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia. The birth of S resulted from a pregnancy which was afflicted by haemophilia. His autism was bad luck… Equally, each condition was the natural consequence of a pregnancy that would not have continued if the doctor’s duty had been performed correctly. The scope of the duty in this case extended to preventing the birth of S and all the consequences that brought. (paragraph 62)
In my judgment, it would not be fair, just and reasonable to draw a distinction between the mother in this case who would have wanted to terminate this pregnancy and the mother who would have wanted to terminate any pregnancy. (paragraph 68)
…the costs related to S’s autism may properly be recovered by C from D. (Paragraph 72)
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