England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Judge Peter Clark)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 18th October 2001

LORD JUSTICE BROOKE :

1. This is an appeal by the defendant from a judgment of Judge Peter Clark, sitting as a judge of the High Court on 11th December 2000, when he held that the claimant Sarah Jane Groom was entitled to recover damages from the defendant, Dr Miranda Ruth Selby, for her admitted negligence in failing to discover the claimant's pregnancy at or immediately after the claimant attended her general practitioners' surgery on 21st November 1994. The claimant subsequently gave birth to a child, Megan, on 26th May 1995. On 21st June 1995 Megan was admitted to hospital where she was diagnosed as suffering from salmonella meningitis, complicated by bilateral frontal brain abscesses. The judge held that the claimant was not entitled to recover the ordinary economic cost of bringing up Megan, if she had been a healthy child, but that she was entitled to recover the additional costs attributable to bringing up a disabled child. Although the claimant originally sought permission to cross-appeal against the first of these findings, that application has been dismissed by consent. We are therefore concerned only with the defendant's appeal against the judge's second finding. The defendant also appeals against the judge's order that she pay the entire costs of the action up to the date of that order.
2. The facts of the case are relatively straightforward. The claimant was born in June 1968, and in 1989 she started to live with a man called Danny Conway, whom she married about ten years later. In October 1990 their first child Charlie was born. The claimant suffered three miscarriages in the course of the next two years, but during 1993 she became pregnant again. During this pregnancy she discussed with her partner the idea of her being sterilised after her next child was born. They consulted a general practitioner and decided that the claimant would see a consultant at their local hospital after the child was born.
3. Their second child, Holly, was born in February 1994, and six months later the claimant saw the consultant who carried out a sterilisation operation on 5th October 1994. She did not perform a pregnancy test before operating. Unknown to anyone the claimant was about six days pregnant at that time.
4. On 21st November 1994, when she was probably seven and a half weeks pregnant, the claimant saw the defendant, Dr Selby. Although her periods were normally regular, she had missed a period. She complained of abdominal pain and a green discharge. Dr Selby prescribed antibiotics. She did not recommend or arrange a pregnancy test, and she did not examine her to see if she was pregnant. It is admitted that she was negligent in this regard.
5. On 14th December 1994, when she was probably 11 weeks pregnant, the claimant saw Dr Selby's partner, Dr Swift. Dr Swift arranged for a pregnancy test, and about a week later she told her that the test result was positive. The claimant was distraught at this news. On 29th December an ultrasound scan was performed. The claimant saw the foetus in her womb. She discussed the possibility of a termination of the pregnancy with her husband, but felt unable to take this course. The judge found as a fact that if she had been told about the pregnancy on 21st November, she would have asked for her pregnancy to be terminated. There is no appeal against that finding.
6. On 26th May 1995 Megan was born. She was just over three weeks premature. She appeared healthy at first, but on 21st June 1995 she became unwell and was admitted to hospital. As I have said, she was diagnosed as suffering from salmonella meningitis, complicated by bilateral frontal brain abscesses. Surgical drainage was performed, and a ventriculo-peritoneal shunt inserted.
7. Megan subsequently developed convulsions and episodes of septicaemia. Investigations suggested she had an immunoglobulin deficiency. Immunoglobulin infusions were continued until January 1997, and she now has normal immune functions. The judge found that her prognosis is uncertain.
8. The reason for this is that brain damage to the frontal lobes can produce variable results. In a best case scenario, Megan's future disabilities will be mild. She will be left with a degree of emotional vulnerability and lability, with intelligence in the low-average range. On this basis she will probably be able to function independently as an adult. In a worst case scenario, she will plateau in both cognitive and emotional development as a school child. She will have moderately severe learning difficulties and will be unable to live independently. In this scenario she will require ongoing attendance and supervision.
9. The matter was tried on the basis of agreed medical reports. There was no oral evidence. On this basis the judge made findings, against which there is no appeal, on the cause of Megan's disability. He said that the claimant's half-brother had experienced meningococcal meningitis as a child, and that her two older children had suffered illnesses in the first year of their lives. Charlie had developed malaise and fever, from which he had made a good recovery, when he was two months old. Holly had developed meningococcal meningitis at the age of 11 months, but this was not due to any immune deficiency. The judge found that Megan did not have a congenital immune deficiency.
10. He went on to find that three factors had led to her contracting salmonella meningitis. The first was bad luck. She had been exposed at birth to bacterium which was colonising her mother's birth canal and perineal area. This persisted until it caused invasive infection three and a half weeks later. The second factor was Megan's young age at the time, which predisposed her, like all infants, to serious infections of this kind. The third was her prematurity. This rendered her even more susceptible to invasive infection, partly because she had had less time in which to pick up maternally derived protective antibodies in her blood.
11. The claim in this action was issued on 18th November 1997. On 20th July 2000 Master Foster ordered that judgment be entered in favour of the claimant for damages and interest to be assessed. He directed that two issues be treated as preliminary issues in the assessment:

(i) Is the claimant entitled to claim any damages for all or part of the cost of bringing up and caring for Megan?

(ii) Was Megan born with congenital abnormalities which have led to her needing additional care?

The judge directed that judgment be entered for the claimant on the first of these issues to the extent set out in his judgment, and for the defendant on the second issue. He ordered the defendant to pay the claimant's costs of the action to date. He granted both sides permission to appeal and directed that the assessment of the claimant's damages be postponed until after the hearing of any appeal.

12. I have summarised the judge's findings quite briefly, but in order to understand the issues in the case it is necessary to set out the expert evidence at somewhat greater length. For this purpose I refer to the admirably clear report prepared by Dr Adam Finn, who is a senior lecturer in paediatric immunology.
13. Immunoglobulins, which are also known as antibodies, are proteins released by white blood cells. They circulate in the blood and constitute part of a human being's defences against infection. When a baby is born, he/she has little or no immunoglobulin of any class in the blood derived from his/her own blood cells. This is because the immunoglobulin only starts to be made by the white blood cells in response to exposure to infection, and babies are not normally exposed to infection in the womb.
14. A baby, however, usually has detectable (and often quite high) levels of immunoglobulin in the blood during the first weeks of life, because this class of antibody is transported from the mother's blood across the placenta into the baby's blood during the last weeks of pregnancy. Babies born prematurely are more prone to severe infection that those born at term, and one of the reasons for this is that they have fewer antibodies derived from their mothers in their blood.
15. Newborn infants are prone to several extremely severe infections. These include bacterial infections such as meningitis, which are usually caused by bacteria that derive from the mother's birth canal and the skin around that anatomical area. These coat the surface of the baby during the first weeks of life until they are released by other organisms. Salmonella is one such bacterial strain. For this reason, serious infection with this and other similar bacteria is seen in normal young infants, but only much more rarely in other age groups of normal children.
16. I have already set out one reason (see paragraph 14 above) why premature babies like Megan may be even more prone to severe infection of this kind. Another reason is that the skin and mucous membranes (the linings of the nose and mouth) in new born babies are thinner and more easily damaged, and this weakness is even more pronounced in premature babies. Once the skin or mucous membranes are damaged, the way is open for the entry of potentially dangerous bacteria into the child's blood stream.
17. It will be seen from this description that the incidence of meningitis by this route is one of the natural, though fortunately rare, consequences of childbirth. Mr Coghlan QC suggested that some intervening cause was in operation, so as to break the chain of causation, but I found his arguments on this point wholly unconvincing, and he did not refer us at the hearing to any authority in support of his contention. Since his client's breach of duty caused the claimant's pregnancy to continue, when it would otherwise have been terminated, and since Mr Coghlan conceded that the chain of events that took place in this case was foreseeable, even if it was extremely rare, then if this was a straightforward personal injuries claim the way would ordinarily be open for the claimant to recover damages for negligence. In Jolley v Sutton London Borough Council [2000] 1 WLR 1082 the House of Lords re-affirmed the authority of Hughes v Lord Advocate [1963] AC 837 in this branch of the law.
18. This is, however, a claim for economic loss (see Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 at [30], [2001] 3 WLR 376, 386D). In Parkinson two members of the present division of the court were concerned with what is called a "wrongful conception" claim (in which a child would not have been conceived but for the negligence complained of) as opposed to the present "wrongful birth" claim (in which a pregnancy would not have been continued but for the negligence complained of). In paragraph 48 of my judgment in Parkinson I suggested that it was not helpful in that case to dwell any longer on a recent line of authority in English first instance judgments which were concerned with "wrongful birth" cases because the policy issues in such cases were different.
19. All I had in mind when I said this was that wrongful birth cases were commonly concerned with a situation in which a doctor had negligently failed to detect that there was a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. Under section 1(d) of the Abortion Act 1967 (as substituted by the Human Fertilisation and Embryology Act 1990 s 37(1)) a pregnancy may be lawfully terminated in such a case at any time, and the issues relating to causation and to what is fair, just and reasonable in such circumstances are very much more straightforward.
20. In the present case, however, there is no reason to suppose that any abnormality would have been detected in the foetus if the claimant's pregnancy had been detected, as it should have been, on 21st November 1994 or shortly thereafter. In our judgments in Parkinson, Hale LJ and I made some observations about the principles to be applied in wrongful conception cases, and these appear to me to be equally applicable to a wrongful birth case of the present type. I said (at paras 53-54):

"In this judgment I am concerned only with the loss that arises when the child's significant disabilities flow foreseeably from his or her unwanted conception. There may well be foreseeable incidents during the mother's pregnancy and the time leading up to the birth of the child from which the child's disabilities have flowed, but these will not in the ordinary way be effective to break the chain of causation. If, on the other hand, there is evidence that a child's disabilities, discernible at birth, were caused by some new intervening cause, then the difficult and interesting issues that may arise in such a case will have to be resolved by applying well-known principles of causation to the facts of the case before the court.

A negligent surgeon should not, without more, be held liable for the economic consequences of the birth of a child with significant disabilities if the child's disabilities were brought about between conception and birth by some ultroneous cause (for which see Lord Wright in The Oropesa [1943] P 32, 39). Similarly, the ordinary rules relating to contributory negligence will be applied in an appropriate case to limit recovery."

21. Hale LJ, for her part, said (at para 92):

"Another question is when the disability must arise. [Counsel] argued that there was no rational cut-off point, as any manner of accidents and illnesses might foreseeably affect a child throughout his childhood. But that is part of the ordinary experience of childhood, in which such risks are always present, and the balance of advantage and disadvantage is deemed to be equal. The two serious contenders are conception and birth. The argument for conception is that this is when the major damage was caused, from which all else flows. This was what the defendant undertook to prevent. But there are at least two powerful arguments for birth. The first is that although conception is when the losses start, it is not when they end. The defendant also undertook to prevent pregnancy and childbirth. The normal principle is that all losses, past, present or future, foreseeably flowing from the tort, are recoverable. The second is that it is only when the child is born that the deemed benefits begin. And it is those deemed benefits which deny the claim in respect of the normal child. In practice, also, while it may be comparatively straightforward to distinguish between ante and post natal causes of disability, it will be harder to distinguish between ante and post conception causes. Further, the additional risks to mother and child (for example because of the mother's age or number of previous pregnancies) may be among the reasons for the sterilisation. I conclude that any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not novus actus interveniens, will suffice to found a claim."

22. These judgments were not available to the judge when he decided this case in December 2000. Mr Coghlan has seized on these passages in support of his contention that the cut-off point is the occasion of birth, and that Megan was healthy at birth: the judge expressly said so on page 3 of his judgment. He criticised the judge for a later passage (judgment, page 9) in which he said:

"The short answer to [Mr Coghlan's] submission is that Megan is not and never has been a healthy child … At the time of her birth the infecting bacterium was sitting quietly on the surface of Megan's skin and/or gut. It was and remained asymptomatic for about 3½ weeks. The bacterium then entered her bloodstream and within 12-48 hours of entry symptoms of septicaemia followed by meningitis developed … In these circumstances Megan cannot, in my judgment, be treated as a healthy child …"

23. In that passage the judge was concerned to compare Megan with the "healthy child" who was at the centre of the House of Lords' deliberations in McFarlane v Tayside Health Authority [2000] 2 AC 59, and in my judgment the judge was right to make the distinction of which Mr Coghlan makes complaint. We are concerned in the present case with a child whose severe handicap arose from the normal incidents of conception, intra-uterine development and birth. Her prematurity (which made her particularly vulnerable) was not due to any new intervening event and her exposure to the bacterium which proved her downfall occurred during the process of birth. All the causes of her meningitis were in place when the umbilical cord was severed: all that remained was for the bacterium to penetrate a weak point in the child's skin or mucous membranes and the damage was done.
24. On this basis, it appears to me that this court's earlier decision in Parkinson is dispositive of this appeal. If we go to the battery of tests to which I referred in paragraph 50 of my judgment in that case, the route to the judge's conclusion in this case would be on the following lines:

i) in the absence of evidence of any new intervening act, the birth of a premature child who suffered salmonella meningitis through exposure to a bacterium during the normal processes of birth was a foreseeable consequence of Dr Selby's failure to advise the claimant that although she had been sterilised she was in fact pregnant;

ii) there are no difficulties about proximity;

iii) there is, as in Parkinson, no difficulty in principle in accepting the proposition that Dr Selby should be deemed to have assumed responsibility for the foreseeable and disastrous consequences of performing her services negligently

iv) Dr Selby knew that the claimant had been sterilised and wanted no more children (let alone children with serious handicaps) and Dr Selby's duty of care when advising on the symptoms of which the claimant made complaint must be deemed to include the purpose of ensuring that if the claimant was indeed pregnant again she should be informed of this fact, so as to enable her to take appropriate steps to prevent the birth of another child if she wished;

v) as in Parkinson, no radical step into the unknown is in question here;

vi) as in Parkinson, an award of compensation which is limited to the special upbringing associated with rearing a child with a serious disability would be fair, just and reasonable.

25. I see no need to have recourse to principles of distributive justice in this case. I think that lay people might be equally divided in opinion if asked to decide what was fair in such a complex case. This shows how it may not be appropriate to use all the recent tests propounded by the House of Lords in every difficult case of this kind.
26. Mr Coghlan argued strenuously that if we did not fix the child's apparent state of health at birth as the cut-off point, we would be making judges' tasks unnecessarily difficult when they are invited to try future cases on the borderline. I can see the force of that submission, but it appears to me that it should not stand in the way of our doing justice in a case like the present, in which a child's enduring handicaps, caused by the normal incidents of intra-uterine development and birth, were triggered off within the first month of her life. All these cases are fact-sensitive, and the longer the period before the disability is triggered off, the more difficult it may be to establish a right to recover compensation, particularly because new intervening causes are likely to be at work.
27. For these reasons I would dismiss this appeal. We will consider the appellant's arguments on the costs issues in the court below when we hand down this judgment.

LADY JUSTICE HALE:

28. I agree. The principles applicable in wrongful birth cases cannot sensibly be distinguished from the principles applicable in wrongful conception cases. This court has already decided, in Greenfield v Irwin (A Firm) and others [2001] 1 FLR 899, that the principle in McFarlane v Tayside Health Board [2000] 2 AC 59 applies to the wrongful birth of a healthy child. The facts were similar to those of this case, in that there was a negligent failure to discover that the mother was pregnant before prescribing her a course of contraceptive injections. Her pregnancy was therefore not discovered until it was too late to terminate it.
29. In such cases, unlike the usual run of wrongful birth cases, there is no direct connection between the negligence and the disability. In cases such as Rand v East Dorset Health Authority [2000] Lloyd's Rep Med 181, Hardman v Amin [2000] Lloyd's Rep Med 498, or Lee v Taunton & Somerset NHS Trust [2001] 1 FLR 419, there has been a negligent failure to diagnose the disorder which leads to, or to screen properly for, the disability in question. Here the negligence consists in allowing the pregnancy to continue when the claimant did not wish to be pregnant at all.
30. Nevertheless, in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2001] 3 WLR 376, this court took the view that the principle in McFarlane could properly be confined to the ordinary costs of bringing up a healthy child in a wrongful conception case. The extra costs of bringing up a disabled child could be claimed even though there was no direct link between the negligence and the disability.
31. Left to myself, as I made clear in Parkinson, I would not regard the costs of bringing up a child who has been born as a result of another's negligence as 'pure' economic loss. Rather, they are economic losses consequent upon the invasion of bodily integrity suffered by a woman who becomes or remains pregnant against her will. That is an additional reason for confining the principle in McFarlane to the actual decision in that case, that is, to the costs of bringing up a healthy child. Whether one regards this as a scope of duty question or a scope of damages question matters little. As I also made clear in Parkinson, insofar as we are required to apply the battery of tests laid down by the House of Lords in determining the ambit of liability in any novel type of case, I agreed with the careful analysis and application of those tests by Brooke LJ in that case. It is fair, just and reasonable that a doctor who has undertaken the task of protecting a patient from unwanted pregnancy should bear the additional costs if that pregnancy results in a disabled child. It follows that I also agree with his analysis in this case.
32. There will always be borderline cases in the application of any principle. In Parkinson, Brooke LJ and I were also agreed on the source of the disability: it must be genetic or arise from the processes of intra-uterine development and birth. That was what the doctor negligently failed to prevent. Megan's meningitis was 'bad luck' in the sense that many new born babies do not succumb to such infections. But it arose from the process of her birth during which she was exposed to the bacterium in question. Mr Coghlan accepted that the disability might arise from an event during pregnancy, such as a disease contracted by the mother, which took place after the negligent failure to diagnose the pregnancy. This case is no different.
33. The judge might be congratulated for accurately foreshadowing the decision of this court in Parkinson. I would dismiss this appeal.

MR JUSTICE DAVID STEEL:

34. I also agree.
Order: Defendant to pay Claimant's cost of appeal; assessed if not agreed, and costs below. (Order does not form part of the approved judgment)