Toombes v Mitchell [2020] EWHC 3506 (QB) (21 December 2020)

C was born on 19 November 2001. She has a congenital developmental defect causing spinal cord tethering… She alleges that the cause of her physical disability is her mother’s failure to take folic acid before her conception which was, in turn, due to D’s negligent advice. She brings this claim through her mother and litigation friend in respect of her own “wrongful conception and birth” alleging that, but for the negligence of D, she would never have been conceived, and that “her damage and disability are due to this”. [1]

The action comes before me on a trial of the preliminary issue. D makes clear that the allegations made in the Particulars of Claim are comprehensively disputed. This dispute remains. However, for the purpose of this trial of the preliminary issue, a set of facts which puts C’s case at its highest has been agreed. The issue for me is whether, on the basis of those facts, the claim discloses a lawful cause of action. [2]

The facts which have been agreed include that, but for the breach of duty, C would not have been conceived. D therefore submits that this is a claim in which the injury alleged is not C’s disability but the fact of her existence. It is D’s case that the action is one of “wrongful life”… As such, the claim is expressly excluded by the provisions of the Congenital Disabilities (Civil Liability) Act 1976 (“the Act”)… Relying upon the judgment of the Court of Appeal in McKay v Essex Area Health Authority [1982] 2 All ER 771, D also submits that the claim would not have been recognised at common law… Both under the Act and at common law, D submits that the agreed facts do not disclose a lawful cause of action. [3]

C submits that the claim is not a claim for “wrongful life”… The claim is one which falls squarely within the scope of subsection 1(2)(a) of the Act which permits recovery by children born disabled as a consequence of negligence affecting a parent in his or her ability to have a healthy child. C submits… the label of “wrongful life” is restricted to tortious acts or omissions following conception but for which the pregnancy would have been terminated. As C put it “wrongful life” cases are “abortion cases” as distinct from cases in which it is alleged that, but for the negligence, the child would not have been conceived. [4]

The focus of this preliminary issue trial is the proper interpretation of section 1 of the Act. [5]

C has a lawful claim for damages for personal injury arising from her disability. This deals with the issues raised for my consideration in the “issues of law” for my preliminary determination. [59]