“Wrongful Life” Revisited

21 January 2021 by Robert Kellar QC

In Evie Toombes v. Dr. Philip Mitchell [2020] EWHC 3506 the High Court has given renewed consideration to claims for, so called, “wrongful life”. Can a disabled person ever claim damages on the basis that they would not have been born but for the defendant’s negligence? The Court answered that question with a resounding “yes”.

The Issue

Where a disabled child would not have been born but for the Defendant’s negligence, it is well established that their parent has a claim for the reasonable costs associated with the child’s disability . That is a “wrongful birth” claim: see Parkinson [2001] EWCA Civ 530. However, the child cannot bring a claim for personal injury on the basis that, with competent advice, their mother would have chosen a termination. In McKay v. Essex Area Health Authority [1982] 2 All ER 771 the Court of Appeal affirmed the principle that a disabled claimant cannot sue for “wrongful life”. In Toombes the Court reconsidered the scope of that prohibition. Did it apply only to termination cases? Or did it extend to claims that, absent the negligence, a disabled person would never have been conceived?

The Facts

Evie Toombes was born with a congenital developmental defect causing spinal cord tethering. Her mother had attended her GP for family planning advice. In breach of duty, her GP had failed to prescribe or give advice about folic acid. The claimant was conceived shortly after this consultation at time when her mother was not taking folic acid. She alleged that with competent care her mother would not have conceived when she did. A different child would have been conceived at a later date after her mother had been increasing her intake of folic acid. This child have been a “genetically different person” to the claimant. The disabled claimant would not have come into existence.

The defendant resisted liability on the basis that this was, in essence, a “wrongful life” case. It raised the same legal and policy objections which vexed the Court in McKay. It was, argued the defendant, “repugnant to the law” to allow the claimant to recover where the correct advice would have led to the conception of a different individual.

The Principles

Mrs. Justice Lambert held that the issue was essentially one of statutory interpretation. In relation to “occurrences” which “affected either parent of the child in his or her ability to have normal, healthy child” the relevant provision was section 1 (2) (a) of the Congenital Disabilities (Civil Liability) Act 1976. The Act had to be construed in the light of the recommendations of the Law Commission from which the legislation had arisen.

The Judge held that a cause of action under section 1 (2) (a) involved three components:

1. A wrongful act; and

2. An “occurrence” as defined in the Act; and

3. A child born with disabilities.

There was no question that components 1 and 3 were made out. The crucial question was whether there had been an “occurrence”. The Defendant submitted that nothing had happened. There had been no change in the mother’s physiological state. However, the Court held that the Act did not require any change or alteration in the mother’s physiological state for there to be an “occurrence”. This was reflected in the provision in section 1 (3) that there was no need for the mother to have suffered an actionable injury for a lawful claim by a child for pre-natal injury. On the facts of the present case it was sufficient that in reliance upon negligent advice the claimant’s mother had sexual intercourse without the benefit of folic acid supplementation.

McKay Distinguished

Lambert J held that she was not bound by the Court of Appeal’s decision in McKay. The Court emphasised that post-conception cases engaged important issues of principle and policy that were not engaged in pre-conception cases. As Stephenson LJ put it in McKay, in post-conception cases: “the only duty which either Defendant can owe the unborn child … is a duty to abort or kill her, or deprive her of that opportunity”. The Court observed that: “to impose such a duty towards the child, would … make a further inroad on the sanctity of human life which would be contrary to public policy”. Lambert J observed that a negligent failure to prevent a birth of an already conceived child engaged a “range of social and moral policy issues, not least the imposition upon the medical profession of a duty to advise abortion in possibly dubious circumstances”. However, claims based upon a wrongful act before conception raised no such difficulties.

Moreover, there was an important distinction between the relevant statutory provisions in pre- and post-conception cases. Post-conception cases fell under section 1 (2) (b), which were subject to an explicit rider that but for the index negligence the “child is born with disabilities which would not otherwise have been present”. The Law Commission had recommended including such a rider in post-conception cases to import the assumption that but for the negligence the child would have been born healthy (not that it would not have been born at all). However, no such rider applied in pre-conception cases (covered by section 1 (2) (a)). Lambert J held that this was a deliberate statutory distinction reflecting the different social and moral policy considerations in pre- and post-conception cases.

Causation

How does causation work in pre-conception cases? Is it sufficient that but for the defendant’s negligence the claimant’s parents would not have had sexual intercourse and the claimant would not have been conceived with disabilities?

Not according to Lambert J. There must be a sufficient causal link between the “circumstances of the sexual intercourse and the disability”. This test would not be satisfied where, for example, a child is born with a disability as a result of negligent but reassuring advice concerning their parents’ genetic status. In that situation the child’s disability has nothing to do with the “circumstances affecting intercourse”: the disability arises from the parents’ genetic status which is unaffected by the index negligence. In contrast, Evie Toombes’ disability resulted from the circumstances of her conception which took place in her mother’s folic acid deficient state.

Comment

Following Toombes, there is no longer any bar to “wrongful life” claims where it is alleged that but for the index negligence the disabled claimant would never have been conceived. The only real hurdle is the causation test affirmed by the court. But in the author’s view this is no more than a reflection of the statutory requirement that the negligence must “affect either parent … in his or her ability to have a normal healthy child”. If that ability has not been affected by the index negligence no claim will arise under the Act.

In practical terms, such claimants will no longer need to rely upon their parents bringing claims for “wrongful birth”. The central difference between such claims and “wrongful life” claims is that the mother’s claim is limited to her life expectation rather than that of the (much younger) claimant.

Whether this development is right in principle is likely to divide opinion. Detractors might object that Lambert J’s decision gives rise to an inconsistency. The bar on “wrongful life” claims may be justified on policy grounds.  The equal sanctity of all human lives (including disabled lives) means that there should be no actionable “right to remain unborn”. That objection might be said to apply equally to pre-conception and post-conception claims for wrongful life. On the other hand, the value of disabled lives is not an attractive basis upon which to deprive disabled people of the right to compensation. Lambert J’s decision also has the merit of ensuring greater consistency between wrongful birth and wrongful life claims (at least in pre-conception cases). Whether the case goes further, and whether the appellate courts take the same view, remains to be seen.

Robert Kellar QC is a barrister at 1 Crown Office Row.