1
Master’s Thesis
Katja Jungfermann (10846808)
Master’s Thesis European Private Law (12 ECTS)
Title: Compensation for maintenance costs in Germany
and England
“How is the parent’s claim for compensation in cases regarding the
costs of maintenance for a healthy child after an unsuccessful
sterilization approached in Germany and England and why is it
2
Table of contents
I. Introduction ... 3
II. Description and analysis of the approaches ... 4
A. Germany ... 4 1. Contract law ... 4 a) Legal prerequisites ... 5 b) Legal consequences... 6 2. Law of torts ... 13 a) Legal prerequisites ... 13 b) Legal consequences... 14 B. England ... 17
1. Requirements, tests and principles ... 18
a) McFarlane v. Tayside Health Board ... 21
b) Rees v. Darlington Memorial Hospital NHS Trust ... 25
III. Comparison ... 27
A. Tort law ... 27
B. Contract law ... 31
IV. Explanation ... 35
V. Conclusion ... 39
VI. Table of cases... 42
A. Germany ... 42
B. England ... 43
3
I. Introduction
What happens when a physician conducts a sterilization1 unsuccessfully or informs his patient incorrectly about the fact that the sterilization was unsuccessful? A woman who did not want to be pregnant may get pregnant. After giving birth to the child, the parents will have to bring up the child and pay the necessary maintenance costs. Do the parents have the possibility to claim compensation for these maintenance costs?
This research will focus on how Germany and England2 approach the parent’s claim for compensation in this situation. Germany and England were chosen, because both legal systems have a long history regarding such cases with decisions of their highest courts. Both approaches shall be described, compared and their differences will be explained. The comparable objects will be determined with the help of the functional method in the variation of the factual approach.3 By using the set of facts described above as a starting point, the approach of the legal systems to this set of facts will be determined to find the common element that the legal systems share (tertium comparationis).4 Thereby, it shall be assumed that the physician’s action is conducted negligently. In consequence thereof the woman gets pregnant and a healthy child is born, for which the parents claim maintenance costs.
Such a case can be defined as a ‘wrongful birth’5 case. It is a ‘wrongful birth’ case in so far as it regards the parent’s claim in contrast to the child’s claim, which would be called a ‘wrongful life’6 case.7 This research will focus on a ‘wrongful birth’ case in which the child is born healthy. Firstly, it shall be answered how Germany and England approach a claim for compensation for maintenance costs in such a ‘wrongful birth’ case. Using the method of
1 For reasons of simplification, in the following research ‘sterilization’ shall comprise not only the sterilization of
a woman, but also the sterilization of a man, which will usually be called vasectomy.
2This research will only cover English law. However, it will be referred to the case McFarlane v. Tayside Health
Board, which is in fact a Scottish case. The case was decided by the House of Lords (since 2009 the Supreme
Court of the United Kingdom), which functions as the highest court in all matters not only regarding Welsh law, Northern Irish law and Scottish civil law, but also English law. Therefore, it is a precedent regarding English law. As Lord Slynn said in McFarlane: ‘[I]t is as I understand it accepted that the law of England and that of Scotland should be the same in respect of the matters which arise on this appeal. It would be strange even absurd if they were not.’
3Oderkerk M, ‘The Need for a Methodological Framework for Comparative Legal Research: Sense and
Nonsense of ‘Methodological Pluralism‘ in Comparative Law’ [2015] The Rabel Journal of Comparative and International Private Law, vol.79 no.3.
4 Ibidem.
5 Anderson v. Fourth Valley Health Board [1998] S.L.T. 588; Cordelia Thomas, ‘Claims for wrongful pregnancy
and damages for the upbringing of the child’ [2003] U.N.S.W.L.J, 125.
6
Lord Steyn in McFarlane v Tayside Health Board [2000] 2 AC 59,76-G.
7 Anderson v. Fourth Valley Health Board [1998] S.L.T. 588; Cordelia Thomas, ‘Claims for wrongful pregnancy
and damages for the upbringing of the child’ [2003] U.N.S.W.L.J, 125; Lord Steyn in McFarlane v Tayside
4 successive description8, the findings of the study of the objects within the legal systems will be described one after another. Secondly, these findings will be compared to establish the differences and similarities regarding the approach in Germany and England. Thirdly, an explanation will follow to point out why the legal systems approach the same set of facts in the way they do.
II. Description and analysis of the approaches
A. Germany
Since 2012, German law has special provisions, which govern liability for medical malpractice. The Articles 630a BGB9 and the following articles together with Article 280 I BGB regulate liability of a physician regarding a treatment contract. Besides the special contractual provisions, tort law can apply when it comes to the physician’s liability. The contractual provisions concentrate on the special contractual relationship between the physician and the patient, whereas the law of torts relies on an infringement of the duty of care a physician generally has towards his patients.10 Claims based on the contractual provisions and claims based on the law of torts coexist in German law.11 According to the common examination order in Germany, the contractual claim shall be described first, followed by the tortious claim.
1. Contract law
In order to answer the question whether the physician is liable and has to compensate the parents for the costs of maintenance of the unwanted, but healthy child, Articles 630 a, 611, 280 I, II, 281 I 1 BGB have to be taken into account. They state the legal prerequisites and requirements, which have to be fulfilled to be able to award compensation.
8 Oderkerk M, ‘The Need for a Methodological Framework for Comparative Legal Research: Sense and
Nonsense of ‘Methodological Pluralism‘ in Comparative Law’ [2015] The Rabel Journal of Comparative and International Private Law, vol.79 no.3.
9
Bürgerliches Gesetzbuch; German Civil Code; Translation of the German Civil Code: <http://www.gesetze-im-internet.de/englisch_bgb/>, 13.05.15; all the translations of the Articles of the German Civil Code used in this research are to be found on this webside.
10 Ulrike Riedel, “Kind als Schaden” Die höchstrichterliche Rechtsprechung zur Arzthaftung für den
Kindesunterhalt bei unerwünschter Geburt eines gesunden, kranken oder behinderten Kindes (1st edn, Mabuse-Verlag, 2003) 23.
11 Wolfgang Ernst,‘§ 280‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
5
a) Legal prerequisites
Firstly, Article 280 I BGB12 requires an obligation between an obligor and an obligee. This obligation can be seen in the contractual relationship between patient and physician. According to Article 630 a BGB13 this contractual relationship is defined as a treatment contract, which obliges the party agreeing to provide medical treatment for a patient to provide the promised treatment according to the medical standards that are generally recognised at the time of the treatment. A treatment contract can be classified as a service contract according to Article 611 BGB14. Thereby, the physician’s liability is no liability for success. Regarding the sterilization this means that the physician has a duty to correctly perform the procedure of a sterilization as a service according to his best ability. Furthermore, the physician has a duty to correctly inform his patient about the risks and the outcome of the sterilization.
Secondly, the requirement of a breach of duty has to be met. Article 280 I BGB requires there to be a breach of duty, which means according to Article 281 BGB15 that the physician does not render performance as owed.
Thirdly, after having stated a breach of duty and therefore a failure by the physician, he has to be responsible for this failure. According to Article 276 I BGB16 the physician is responsible
12
Article 280 BGB: Damages for breach of duty
(1) If the obligor breaches a duty arising from the obligation, the obligee may demand damages for the damage caused thereby. This does not apply if the obligor is not responsible for the breach of duty.
13 Article 630 a BGB: Duties typical of the contract in the treatment contract
(1) The treatment contract obliges the party agreeing to provide medical treatment for a patient (treating party) to provide the promised treatment, and the other party (patient) to pay the agreed remuneration unless a third party is obliged to effect payment.
(2) Unless agreed otherwise, the treatment must take place according to the medical standards that are generally recognised at the time of the treatment.
14 Article 611 BGB: Typical contractual duties in a service contract
(1) By means of a service contract, a person who promises service is obliged to perform the services promised, and the other party is obliged to grant the agreed remuneration.
(2) Services of any type may be the subject matter of service contracts.
15 Article 281 BGB: Damages in lieu of performance for non-performance or failure to render performance
as owed
(1) To the extent that the obligor does not render performance when it is due or does not render
performance as owed, the obligee may, subject to the requirements of section 280 (1), demand damages in lieu of performance, if he has without result set a reasonable period for the obligor for performance or cure. If the obligor has performed only in part, the obligee may demand damages in lieu of complete performance only if he has no interest in the part performance. If the obligor has not rendered
performance as owed, the obligee may not demand damages in lieu of performance if the breach of duty is immaterial.
(2) Setting a period for performance may be dispensed with if the obligor seriously and definitively refuses performance or if there are special circumstances which, after the interests of both parties are weighed, justify the immediate assertion of a claim for damages.
6 for intention and negligence. Someone acts negligently if he fails to exercise reasonable care pursuant to Article 276 II BGB17. The requirement is seen as fulfilled as long as the physician does not prove the opposite, because the wording of Article 280 I BGB shows that the physician’s responsibility is presumed and the burden of proof lies with the physician.18
There is a contractual obligation to conduct the sterilization according to the medical standards and to inform the patient correctly. When the physician does not fulfil this contractual obligation, this constitutes a breach of duty. When the sterilization is unsuccessful or the information about the unsuccessfulness was not correct, the physician is only responsible for it, when he acted intentionally or negligently. Then, he breached his contractual duty and the legal prerequisites are fulfilled.
b) Legal consequences
After affirming that all legal prerequisites are fulfilled, the question is for what kind of damage and to what extent the physician is liable. Whereas the preceding articles regulated the justification for being liable and having to pay damages, Article 249 BGB and the following articles regulate the content of the damage. When someone is responsible for breaching a duty of care that arises out of an obligation, this person has to compensate for the damage. According to Article 249 I BGB19 this obligor usually must restore the position that would exist if the circumstance obliging him to pay damages had not occurred.
In the case of Article 249 I BGB the ‘difference hypothesis’ is used to help to define the concept and the amount of the damage. The ‘difference hypothesis’ defines the content of the damage as the difference between the situation without the damaging event and the actual situation. 20 In case of the unsuccessful sterilization, the situation in which the physician acts correctly has to be compared with the situation, in which the physician acts negligently and an
16 Article 276 BGB: Responsibility of the obligor
(1) The obligor is responsible for intention and negligence, if a higher or lower degree of liability is neither laid down nor to be inferred from the other subject matter of the obligation, including but not limited to the giving of a guarantee or the assumption of a procurement risk. The provisions of sections 827 and 828 apply with the necessary modifications.
17 Article 276 BGB: Responsibility of the obligor (2) A person acts negligently if he fails to exercise
reasonable care.
18 Wolfgang Ernst,‘§ 280‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 280, recital 31.
19 Article 249 I BGB: Nature and extent of damages
(1) A person who is liable in damages must restore the position that would exist if the circumstance obliging him to pay damages had not occurred.
20 Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
7 unsuccessful sterilization leads to pregnancy. The difference between these two situations is seen as the damage. With a successful sterilization or the correct information after an unsuccessful sterilization, the woman would not get pregnant and the child would not be born. Therefore, the parents would not have to pay for the upbringing of the child. To be strained with the obligation of paying maintenance costs can therefore be seen as economic loss according to the ‘difference hypothesis’.21 Usually, Article 249 I BGB refers to the individual situations regarding the definition and calculation of the damage. The damage would be calculated according to the actual, individual situation of the parents. Regarding maintenance costs however, the courts do not have to look at the actual, individual maintenance costs a family has because of the child, but shall define the damage according to the legally stated general maintenance costs.22 Besides, compensation for maintenance costs would have to stop when the child is eighteen years old.23
Even when maintenance costs are seen as possible damage, a physician is only liable when the damage is caused because of his actions. According to the ‘condicio sine qua non test’, something did not cause the damage, when it can be assumed away without the success in form of the damage being omitted.24 When the breach of the contractual duty by the physician is assumed away, the sterilization would be successful or the patient would know about its unsuccessfulness and no child, causing maintenance costs, would be born. Therefore, the requirement of causation according to the ‘condicio sine qua non test’ is fulfilled.
Furthermore, there are different ways to ensure that there is no unlimited liability. Even when the legal prerequisites are fulfilled and the actual damage can generally be defined as a damage resulting from the unsuccessful sterilization, the compensation cannot be unlimited. Someone is only liable for the damage which is attributable or, in other words, when the ‘proximate cause’ is fulfilled. To answer the question whether this is the case, the ‘adequacy theory’ as well as the theory of the ‘protective scope of the rule’ is used. Something is an adequate condition of a consequence, when it enhanced the possibility of this consequence to occur.25 Moreover, the liability for the damage has to be within the ‘protective scope of the
21 Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 249, recital 29.
22 BGHZ 76, 259 (270) = NJW 1980, 1452. 23
Ibidem.
24 Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 249, recital 103.
8 rule’. When it comes to the breach of a contractual duty, the protective scope of the contractual duty has to contain the actual damage.26
Regarding the case of a sterilization and the compensation for maintenance costs, one reason to conclude the sterilization contract has to be the prevention of future maintenance costs.27 It is not sufficient that the sterilization only is conducted because it is medically indicated.28 Thereby, the claimants have to prove that the physician had the possibility to recognize that the parents were planning their lives without a child and did not only conduct the sterilization for medical reasons.29 Having a child without complication and health implications after a medically indicated but unsuccessful sterilization would mean that the risk, which should have been prevented by the physician, did not occur.30 The physician would not be liable for compensation when the parents actually want to have children and they solely undergo a sterilization because there is a medical reason to do so. Without this medical reason, they would neither want a sterilization, nor would they use other contraceptive measures. When the sterilization is medically indicated, compensation for maintenance costs is only possible when the physician undertook the prevention of future maintenance costs as a secondary obligation.31 Besides the medical indication, another reason for the sterilization has to be that the parents are planning their life in a way, which does not involve the existence of a child. To meet this requirement, it is sufficient that the parents involve the sterilization in their ‘family planning’ in a way that they trust in its success and do not use other contraceptive methods that they would use otherwise.32 The physician has to have the possibility to recognize that the medical indication is not the only reason for the parents to not want a child. He has to know that even without the medical indication, the parents would also have used contraceptive measures, because a child was not part of their ‘family plan’. When the avoidance of maintenance costs is one reason to conclude the treatment contract, the breach of the contractual duty enhances the possibility of maintenance costs to occur. It would not be unlikely that maintenance costs as consequential damage occur. Furthermore, the protective
26
Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 249, recital 35.
27 Gerald Spindler,‘§ 823‘ in Heinz Georg Bamberger and Herbert Roth (eds), Beck’scher Online-Kommentar
BGB (34th edn, C.H.Beck, 2015) para 823, recital 752.
28
Ibidem.
29 OLG Zweibrücken VersR 1997, 1009.
30 Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 249, recital 35.
31
OLG Zweibrücken VersR 1997, 1009.
32 Ulrike Riedel, “Kind als Schaden” Die höchstrichterliche Rechtsprechung zur Arzthaftung für den
Kindesunterhalt bei unerwünschter Geburt eines gesunden, kranken oder behinderten Kindes (1st edn, Mabuse-Verlag, 2003) 31.
9 scope of the contractual duty contains the maintenance costs as damage when it was clear that their avoidance was one reason to conclude the contract. The maintenance costs can be damage in form of the ‘damage of family planning’33.
Although according to the foregoing examination all the requirements are met to award compensation, there are some normative arguments which shall justify an exclusion of compensation without referring to a specific requirement. The historical development shows how difficult it was in general to agree on the compensation for maintenance costs and how important especially one argument was.
In the first important case, which was decided in 1969, compensation was awarded without reservation.34 Nevertheless, there also was some criticism going as far as calling the whole discussion about compensating maintenance costs a ‘bad joke’.35 In the following years some courts denied compensation for maintenance costs.36 However, the Bundesgerichtshof put an end to the denial of maintenance costs with a decision in 1980, in which it awarded compensation.37 In this case, a married couple did not want to have a fourth child and the woman underwent a sterilization.38 This sterilization was unsuccessful because the physician made a mistake.39 Since the decision in this case, it became an established law practice to award compensation until an unexpected statement was made by the second senate of the Bundesverfassungsgericht in 1993.40 The second senate is of the opinion that the acknowledgement of maintenance costs harms the child in its human dignity, because it would mean that the existence of the child is seen as damage or harm.41 The duty of all state authority to protect and respect every human being because of its existence and on its own would prohibit acknowledging maintenance costs as damage.42 Awarding compensation for maintenance costs would infringe the fundamental right of human dignity according to Article
33 Gerald Spindler,‘§ 823‘ in Heinz Georg Bamberger and Herbert Roth (eds), Beck’scher Online-Kommentar
BGB (34th edn, C.H.Beck, 2015) para 823, recital 752.
34 LG Itzehoe VersR 1969, 265; A pharmacist breached his contractual duty to give the patient the right
medicine. The woman got pregnant and the maintenance costs were seen as damage without any reservation. The pharmacist had to compensate the parents for these costs.
35
Erwin Deutsch,’Das Kind oder sein Unterhalt als Schaden’ [1995] Versicherungsrecht Juristische Rundschau für die Individualversicherung, 609, 610.
36 LG Limburg NJW 1969, 1574; LG München I VersR 1970, 428; LG Duisburg VersR 1975, 432; OLG
Bamberg NJW 1978, 1685.
37
BGHZ 76, 249.
38 Ibidem. 39 Ibidem.
40 Eduard Picker, Schadenshaftung für unerwünschte Nachkommenschaft (“Wrongful birth”) (1st edn, C.H.Beck,
1997) 14; BVerfG NJW 1993, 1751.
41 BVerfG NJW 1993, 1751. 42 Ibidem.
10 1 GG43.44 According to Article 78 BVerfGG a decision of the Bundesverfassungsgericht regarding constitutionality is binding. However, the second senate of the Bundesverfassungsgericht reviewed the constitutionality of Article 218b BGB and just took advantage of the opportunity to answer the question whether maintenance costs for a child can be damage or not.45 In Germany, a decision can provide an opportunity for a court to comment on something. However, since this comment it is not necessary for the actual decision, such an ‘obiter dictum’ is not binding for the other courts.46 Only a few months later in 1993, the Bundesgerichtshof decided about the compensation for maintenance costs and did not follow the ‘obiter dictum’.47 In the case, the physician made a mistake while advising parents about the possibility that they could have a handicapped child48. The woman got pregnant, because she thought her child would be healthy, which was not the case.49 Compensation for maintenance costs was awarded.50 The Bundesgerichtshof circumvents the possible infringement of Article 1 GG with stating that the connecting factor for the damage is not the existence of the child, but the maintenance costs themselves as economic loss.51 When a physician breaches a duty of care regarding a contract, which leads to the birth of a child, he is liable for the economic strain that the contractual partner wanted to avoid with the contract.52 It would be a severe interference with the structure of contractual interests to release the physician from the consequences of his contractual breach of duty.53 The Bundesgerichtshof shares the view that it would infringe Article 1 GG to see the existence of a child as the damage.54 However, there would have to be made a distinction between the existence of the child and its human dignity on the one hand and the maintenance costs that arise for the parents on the other hand.55 The damage would not be the child, but the
43 Article 1 GG: [Human dignity – Human rights – Legally binding force of basic rights]
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.
44 BVerfG NJW 1993, 1751. 45
Erwin Deutsch,’Das Kind oder sein Unterhalt als Schaden’ [1995] Versicherungsrecht Juristische Rundschau für die Individualversicherung, 609. 46 BGH VersR 1994, 425 (427) = NJW 1994, 788 (790). 47 BGH VersR 1994, 425 = NJW 1994, 788. 48 Ibidem. 49 Ibidem. 50 Ibidem. 51 BGH NJW 1984, 2625 (2627); BGH VersR 1994,425. 52 BGH VersR 1994,425. 53 Ibidem. 54 Ibidem. 55 Ibidem.
11 maintenance costs that arise because of the birth of the child.56 Particularly, the parents would not be able to be compensated for the complete maintenance costs towards their child, but only for a legally stated part of them.57 Depending on the age of the child, the maintenance costs will be limited to 300 € and later to 500 € per month.58 This argumentation should show that the existence of the child cannot be identified with the damage, but it did not end the discussion. There was and still is a lot of criticism regarding the decision of the Bundesgerichtshof. Regarding the ‘child as damage question’, it was said that the view of the Bundesgerichtshof to see the maintenance costs and not the existence of the child as the damage, would not be possible.59 There would be a direct causal connection between the child’s existence and the maintenance costs, which would arise from the fact that both are inseparably connected.60 The critics found an expression in a claim of two physicians, which was decided by the first senate of the Bundesverfassungsgericht in 1997.61 The physicians did not want to compensate for maintenance costs, although one physician had made a mistake while conducting a sterilization and the other one had given incorrect advise about a possible disability.62 The first senate of the Bundesverfassungsgericht confirmed the argumentation of the Bundesgerichthof. According to the first senate, the maintenance costs can be seen as the damage and it would not infringe Article 1 GG to link the claim for compensation directly to the existence of a human being.63 The personal acknowledgement of a child would not be based upon the payment of maintenance costs by the parents.64 According to the civil code, the existence of the child would only be a legal prerequisite for the arising maintenance costs.65 Although it would have been possible to convoke the plenum of the Bundesverfassungsgericht to avoid different decisions of the second and the first senate, this possibility was not used. However, since the statements of the second senate against compensation of maintenance costs were made on the side during a case regarding the judicial review of Article 218 b BGB, they are not binding. In line with the argumentation of the Bundesgerichtshof and the first senate of the Bundesverfassungsgericht, it is therefore not an infringement of Article 1 GG to claim compensation for maintenance costs.
56
BGH VersR 1994,425.
57 Ibidem.
58 See Düsseldorfer Tabelle: http://www.unterhalt.net/duesseldorfer-tabelle/duesseldorfer-tabelle-2013.html;
accessed 23.06.15
59
Eduard Picker, Schadenshaftung für unerwünschte Nachkommenschaft (“Wrongful birth”) (1st edn, C.H.Beck, 1997) 23. 60 Ibidem. 61 BVerfGE 97, 198 = NJW 1998, 519. 62 Ibidem. 63 Ibidem. 64 Ibidem. 65
12 Another argument against the compensation for maintenance costs is that the parents have material and immaterial benefits out of the birth of a child.66 Regarding the material benefits, it is not possible to prove at the moment when the child is born that they will arise in the future. Therefore, material benefits that parents can have because of their child cannot lead to an exclusion of compensation.67 Nevertheless, it is possible to go to court at the moment when such material benefits become apparent.68 Furthermore, compensation cannot be denied in every case, just because it is theoretically possible that the parents could have material benefits.69 Immaterial benefits like the joy to have a child also have to be disregarded, because they are not comparable with ascertainable economic loss.70 It is not possible to offset the immaterial benefits with ascertainable maintenance costs.71 The Bundesgerichtshof states that it does not even have to be discussed whether the joy of having a child would be an immaterial benefit that could be counted against the material damage.72
In summary, it can be stated that in the case of an unsuccessful sterilization, the parents can claim compensation for maintenance costs under certain conditions. The reason for the sterilization contract has to be at least partly that the patient wants to avoid future maintenance costs instead of conducting a sterilization only on grounds of medical indication. Furthermore, the physician has to fail to render performance as owed and be responsible for it. If these requirements are met, contractual liability will lead to the physician being liable for compensation for maintenance costs. The non-pecuniary claim to restore the position that would exist if the circumstance obliging him to pay damages had not occurred which arises out of Article 249 I BGB can be converted into a claim for pecuniary damage according to Article 250 BGB73. Usually the patient, who concluded the contract, would be the person who can claim damages on the basis of the contract. Nevertheless, the other parent of the child can
66 Claudia Junker, Pflichtverletzung, Kindesexistenz und Schadensersatz (1st edn, Duncker&Humblot GmbH,
2002) 365.
67
OLG Celle NJW 1978, 1688 (1689); OLG Karlsruhe, NJW 1979, 599 (600).
68 Ibidem.
69 Claudia Junker, Pflichtverletzung, Kindesexistenz und Schadensersatz (1st edn, Duncker&Humblot GmbH,
2002) 365.
70
OLG Karlsruhe NJW 1979, 599 (600).
71 Ibidem.
72 BHGZ 76, 249 (253) = NJW 1980, 1450 (1451).
73 Article 250 BGB: Damages in money after the specification of a period of time
The obligee may specify a reasonable period of time for the person liable in damages to undertake restoration and declare that he will reject restoration after the period of time ends. After the end of the period of time the obligee may demand damages in money, if restoration does not occur in good time; the claim to restoration is excluded.
13 claim the compensation on the basis of ‘the contract with protective effect in favour of a third person’.74
2. Law of torts
In German tort law, the basis for a claim for compensation for maintenance costs regarding the physician’s negligent conduct is Article 823 I BGB75. According to Article 823 I BGB a person is liable to compensate another party for the damage arising from unlawfully injuring, intentionally or negligently, the life, body, health, freedom, property or another right of this person. In tort law in contrast to contract law, a physician is not liable for the contractually agreed terms, but for the violation of a legally protected interest.76 Liability according to Article 823 II BGB only plays a subordinate role in a case of unsuccessful sterilization and will therefore be disregarded in this research.
a) Legal prerequisites
According to Article 823 I BGB the first requirement is the violation of a legally protected interest. This is met when a person violates life, body, health, freedom, property or another right of another person. Furthermore, there has to be a connection between the action of the tortfeasor and the legally protected interest being violated. The action has to cause the violation so that the requirement of the ‘founding liability causation’ is fulfilled.77
Maintenance costs are economic loss, which is only compensable on the basis of 823 I BGB, when one of the legally protected interests is violated.78 In the case of the unsuccessful sterilization, the physician’s action can violate a legally protected interest in form of injuring the body of the woman. A violation of the bodily integrity or bodily injury means every significant deviation from the normal condition, which impairs the physical welfare and
74 Hermann Lange,’Haftung für neues Leben’ in Klaus Pietschmann and others (eds), Akademie der
Wissenschaften und der Literatur (1st edn, Franz-Steiner Verlag, 1991 no.2) 5.
75
Article 823 BGB: Liability in damages
(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.
(2) The same duty is held by a person who commits a breach of a statute that is intended to protect another person. If, according to the contents of the statute, it may also be breached without fault, then liability to compensation only exists in the case of fault.
76 Bernhard Losch and Christine Radau, ‘”Wrongful birth” und “wrongful life”. Probleme der rechtlichen
Bewältigung ärtzlicher Pflichtverletzung bei der menschlichen Reproduktion’ [2000] Ethik Med, 30, 39.
77 Gerhard Wagner,‘§ 823‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 823, recital 56.
14 integrity.79 The unwanted pregnancy is a significant deviation from the normal condition and therefore seen as a bodily injury.80
To find out whether there is causation, the ‘condicio sine qua non test’81 assumes the action away and looks whether the legally protected interest would still be violated. Without negligently making a mistake while conducting the sterilization or negligently informing incorrectly about the sterilization, this unsuccessful sterilization would not lead to an unwanted pregnancy and no bodily injury would occur. Therefore, when a physician while conducting a sterilization acts in a way that leads to its unsuccessfulness or informs incorrectly about the unsuccessfulness, his actions can cause an unwanted pregnancy, which is a violation of the body of the woman as the legally protected interest.82
Besides, the violation has to be unlawful and at the tortfeasor’s fault. The unlawfulness is indicated through the violation of a legally protected right and does not need further justification.83 Furthermore, the fact that the physician acts negligently leads to him being at fault according to Article 276 II BGB.
b) Legal consequences
When all the requirements of Article 823 I BGB are met, the legal consequence is a compensation for the damage according to Article 249 BGB and the following articles. The ‘completing liability causation’ in form of causation between the violation of the protected interest and the damage is required.84 Regarding the compensation for maintenance costs, the question has to be answered whether there is causation between the violation of the legally protected right and the maintenance costs. To find out whether the ‘completing liability causation’ exists, again the ‘condicio sine qua non test’85 is used. It answers the factual question, whether the damage would not occur without the violation of the legally protected right. Without the bodily injury in form of the unwanted pregnancy of the woman the child would not be born and the maintenance costs would not occur.
79 Gerald Spindler,‘§ 823‘ in Heinz Georg Bamberger and Herbert Roth (eds), Beck’scher Online-Kommentar
BGB (34th edn, C.H.Beck, 2015) para 823, recital 30.
80 BGHZ 76, 259. 81
Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 249, recital 103.
82BVerfGE 88, 203 (295 f.) = NJW 1993, 1751 (1763 f.); BGH NJW 1980, 1452 (1453).
83 Gerhard Wagner,‘§ 823‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
Bürgerlichen Gesetzbuch (6th edn, C.H.Beck, 2013) para 823, recital 5.
84 Ibidem para 823, recital 56.
85 Hartmut Oetker,‘§ 249‘ in Kurt Rebmann and Franz Jürgen Säcker (eds), Münchener Kommentar zum
15 Besides the requirement that the damage has to emerge causally, the requirement of the ‘proximate cause’ has to be met. The ‘proximate cause’ shall answer the normative question whether the physician is actually liable for the causally emerged damage. It restricts liability with the help of the ‘adequacy theory’86 and the theory of the ‘protective scope of the rule’87. The question is whether the bodily injury enhances the possibility of maintenance costs to occur. When the maintenance costs are directly connected with the bodily injury of the woman, it would not be unlikely that they arise after the violation of her bodily integrity. Furthermore, it has to be asked whether the protective scope of the rule only comprises the protection of the mother from the bodily injury due to pregnancy and birth, or whether it extends to protecting the mother from having to pay maintenance costs.
The OLG Cologne is of the opinion that the ‘proximate cause’ is not fulfilled.88 The compensation for maintenance costs could only be based on the breach of a contractual duty instead of on the general legal duty to not violate a legally protected interest.89 The mother would have suffered a bodily injury because of the unwanted pregnancy.90 A pregnancy would be a significant deviation from the normal condition, because it causes pain and troubles during the pregnancy as well as while giving birth and therefore would impair the physical welfare.91 But the violation of the bodily integrity would only have found an expression in the troubles, which a pregnancy normally entails, and in the pain of giving birth.92 The existence of the child, which causes maintenance costs, would not be based upon the fact that a pregnancy causes these troubles or the pain of giving birth.93 There would be no direct connection and the assumption that a violation of the bodily integrity can cause events that in the end lead to maintenance costs would therefore be so unlikely to foresee that liability would have to be restricted to the pregnancy troubles and the pain of giving birth.94 This is contrary to the contractual liability, whereby physician and patient agreed upon conducting the sterilization, among other reasons, to prevent future maintenance costs, which is why maintenance costs in this case are not absolutely unlikely and unforeseeable.
86 BGH NJW 1976, 1143 (1144);BGH NJW 2002, 2232 (2233). 87 BGH NJW 1987, 2671 (2672). 88 OLG Köln VersR 1997, 1006. 89 Ibidem. 90 OLG Köln VersR 1997, 1006. 91 Ibidem. 92 Ibidem. 93 Ibidem. 94 Ibidem.
16 In the case of an unsuccessful sterilization due to the mistake of the physician, the OLG Düsseldorf said that the unwanted pregnancy constitutes an unlawful bodily injury, but the impairment to health would be terminated with the childbearing.95 Therefore, the violation of a legally protected interest would be terminated with the childbearing and the maintenance costs would only be consequential damage.96 The maintenance costs would be pure economic loss, which would not be compensable on the basis of Article 823 I BGB.97 The maintenance costs are sometimes seen as pure economic loss in form of the money that the parents have to pay to bring up the child.98 Pure economic loss means that there is economic loss, which is not a direct consequence of the damage of a person or a thing. Contractually, maintenance costs can be compensated when a contractual duty has been breached even when they are pure economic loss.99 However, regarding tort law, there has to be a violation of a legally protected interest first and a directly consequential damage.100 The OLG Düsseldorf states that maintenance costs are no direct consequence of the violation of a legally protected interest in form of the bodily injury.101 In a different decision, the OLG Düsseldorf said that maintenance costs are generally only compensable on the basis of contractual relationships.102 Not only some lower courts, but also in the legal theory it is stated that maintenance costs are not compensable on the basis of Article 823 I BGB, because Article 823 I BGB would not protect the compensation for consequential pure economic loss.103
Regarding the protective scope of the rule, on the one hand, it can be said that one reason to protect the mother from an unwanted pregnancy and birth is to prevent that she has to pay maintenance costs in the future. On the other hand, the maintenance costs do not relate to the fact that pregnancy and birth constitute a bodily injury.104 The maintenance costs arise because of the existence of the child and not because of the pregnancy being a bodily
95 OLG Düsseldorf VersR 1993,883. 96 Ibidem.
97
Ibidem.
98 Gerald Spindler,‘§ 823‘ in Heinz Georg Bamberger and Herbert Roth (eds), Beck’scher Online-Kommentar
BGB (34th edn, C.H.Beck, 2015) para 823, recital 750.
99 Erwin Deutsch,’Das Kind oder sein Unterhalt als Schaden’ [1995] Versicherungsrecht Juristische Rundschau
für die Individualversicherung, 609, 614.
100 Ibidem.
101 OLG Düsseldorf VersR 1993,883. 102 OLG Düsseldorf VersR 1992, 317. 103
Gerald Spindler,‘§ 823‘ in Heinz Georg Bamberger and Herbert Roth (eds), Beck’scher Online-Kommentar
BGB (34th edn, C.H.Beck, 2015) para 823, recital 752.
104 Claudia Junker, Pflichtverletzung, Kindesexistenz und Schadensersatz (1st edn, Duncker&Humblot GmbH,
17 injury.105 Therefore, it can be said that by including compensation for maintenance costs, the protective scope of Article 823 I BGB would be interpreted too far.
These arguments are put forward to justify why tort law should not be a possible basis for a claim for maintenance costs after an unsuccessful sterilization. Different reasoning is used, but in conclusion tort law is no possible basis for a claim for maintenance costs.106 Nevertheless, the Bundesgerichtshof only stated that an unwanted pregnancy is seen as a bodily injury, but did not say anything about whether maintenance costs can be compensated as a consequential damage of the bodily injury.107 It is therefore still a possibility to argue that tort law can be a basis for a claim for maintenance costs. However, the Bundesgerichtshof did not say anything about the possbilitily to use tort law as a basis for a claim, but it does not use tort law as a basis for a claim for compensation when it decides about the liability for maintenance costs. Instead, the Bundesgerichtshof builds on the violation of the treatment contract to hold the physician liable for maintenance costs.108 Furthermore, the lower courts decided that tort law cannot be a basis for the compensation for maintenance costs.
B. England
The question at issue is again how the legal system solves the case, in which an unsuccessful sterilization leads to the birth of a healthy child and maintenance costs for this child are claimed. As a common law system, English law mainly concentrates on former cases and principles or tests, which evolved through the precedents. Therefore, regarding the English approach there will be a description of the different theoretical tests and requirements, but detailed reference shall also be made to the most relevant precedents.
In English law, the question whether maintenance costs should be compensated in the case of an unsuccessful sterilization was answered primarily in the course of cases, which were based on the law of torts. The cases were solved on the basis of the law of torts and among the different torts the tort of negligence was taken into account. Tortious liability arises when a duty towards a person, which is primarily fixed by law, is breached and it is possible to redress the breach with damages.109 English tort law is rather fragmented with many relatively
105 Claudia Junker, Pflichtverletzung, Kindesexistenz und Schadensersatz (1st edn, Duncker&Humblot GmbH,
2002) 565.
106 Ibidem 562. 107
BGH NJW 1980, 1452.
108 BGH NJW 2007, 989 = VersR 2007, 109.
109 Percy Henry Winfield and John Anthony Jolowicz, Winfield and Jolowicz on Tort (18e edn, Sweet and
18 specific liability rules instead of consisting of a structured codified system, but the tort of negligence was developed into a general liability rule.110 According to this rule, the three requirements of the tort of negligence are a duty of care, a breach of this duty as well as consequential damage.111
1. Requirements, tests and principles
Firstly, there has to be a duty of care. Stating that this duty has to be imposed by law and its content is primarily fixed by law can be used to distinguish tort law from the law of contract. In contractual relationships, the parties to the contract agree upon their contractual duties and fix their content mostly in the contract. In contrast, in tort law the duty of care is not dependent on such a contractual agreement, but exists by virtue of the law itself.112 In England, the relationship between a patient and a private physician regarding the conduct of the sterilization could be seen as a contractual relationship, because there is an agreement about the conduct of a sterilization and the patient usually pays for the conduct. When the physician is working within the National Health Service (NHS)113, the payment takes place through the NHS which is why the conclusion of a private contract does not occur.114 Tortious liability does not preclude contractual liability, because both can exist concurrently.115 It is possible to sue someone for tortious negligence as well as for breach of contract. ‘[T]he result may be untidy but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, […] [it is not] objectionable that the claimant may be entitled to take advantage of the remedy which is more advantageous to him.’116 This makes sense especially because the duty of care can be the same whether the claim is a tortious or a contractual one.117 A physician has a duty in tort to exercise proper
110 Cees Van Dam, European Tort Law (2nd edn, Oxford University Press, 2013) section 503-1. 111 Ibidem.
112
Percy Henry Winfield and John Anthony Jolowicz, Winfield and Jolowicz on Tort (18e edn, Sweet and Maxwell, 2010) section 1-5.
113 National Health Service (NHS) Act 1946, altered by the Health and Social Care Act 2012.
114 The requirement of consideration is not fulfilled: Gert Brüggemeier, Haftungsrecht: Struktur, Prinzipien,
Schutzbereich (1st edn, Springer, 2006) 457.
115 Percy Henry Winfield and John Anthony Jolowicz, Winfield and Jolowicz on Tort (18e edn, Sweet and
Maxwell, 2010) section 1-5.
116 Lord Goff in Henderson v. Merrett Syndicates Ltd.[1995] 2 AC 194. 117
Percy Henry Winfield and John Anthony Jolowicz, Winfield and Jolowicz on Tort (18e edn, Sweet and Maxwell, 2010) section 1-9.
19 professional care and skill which is the same duty he has towards the patient according to the implied terms of the contract.118
In English law, different principles or tests are used to find out whether a duty of care is established. One principle, which helps to establish such a duty of care, is the ‘Atkinian neighbour principle’. According to this principle, a person acting negligently owes a duty of care to everyone, who can suffer foreseeable damage because of this negligent action, provided there is sufficient proximity between them.119 However, the principle is not accepted when it comes to more problematic cases like liability for pure economic loss.120 The basic rule regarding the tort of negligence says that there usually is no duty of care to prevent someone’s pure economic loss.121 The ‘Caparo test’ and the ‘assumption of responsibility’ are the two exceptions to this rule.122 Besides theses rules, Lord Denning said that ‘the question of recovering economic loss is one of policy. Whenever the Courts draw a line to mark out the bounds of duty, they do it as matter of policy so as to limit the responsibility of the defendant. Whenever the Courts set bounds to the damages recoverable - saying that they are, or are not, too remote - they do it as matter of policy so as to limit the liability of the defendants.’123 The ‘Caparo test’ is a test to establish a duty of care and make sure that there is no unlimited liability. According to this test, ‘[w]hat emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.’124 Therefore, to prove a duty of care according to the ‘Caparo test’ three requirements have to be met. Firstly, there has to be reasonably foreseeable damage. Secondly a proximity between the claimant and the defendant is required. And thirdly, the imposition of the duty of care has to be fair, just and reasonable.
118 Supply of Goods and Services Act 1982 S.13: Implied term about care and skill:
In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.
119 Donoghue v Stevenson [1932] AC 562, 580.
120 Cees Van Dam, European Tort Law (2nd edn, Oxford University Press, 2013) section 503-6. 121
Ibidem.
122 Ibidem section 710-4.
123 Lord Denning in Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27. 124 Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605, 617.
20 Furthermore, there is the ‘Hedley Byrne principle’, which is also called the ‘assumption of responsibility’.125 Lord Morris said: ‘I consider that it follows and that it should now be regarded as settled that if someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise.’126 Therefore, regarding the ‘assumption of responsibility’, it is required that the tortfeasor has an advantage in form of special skills or knowledge over the claimant and that the claimant reasonably relied upon this skill or knowledge. The ‘Caparo test’ as well as the ‘Hedley Byrne principle’ can both be applied and even if the ‘Hedley Byrne principle’ does not adopt a duty of care, it is still possible to do so according to the ‘Caparo test’.127
After having established a duty of care, the second requirement is that this duty has been breached. To find out whether there is such a breach, the behaviour of a reasonable man has to be taken into account. ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. ’128
Finally, when there is a duty of care as well as a breach of this duty, there has to be consequential damage. This means that the breach of the duty of care has to cause the damage. To establish causation, the ‘but-for test’ is used.129 It asks the question, whether the damage would occur but for the breach of the duty of care. In the case of the physician conducting the sterilization, the maintenance costs would not occur without the sterilization being unsuccessful or the information about the unsuccessfulness being incorrect.
After having discussed all the different requirements and principles, attention will now be drawn to the way courts and especially the highest court decided and which principles and requirements they took into account. After a long line of different decisions, the most important precedent is the case of McFarlane.130 The case reversed a trend to award compensation for maintenance costs.131
125
Hedley Byrne & Co. Ltd v Heller and Partners Ltd [1964] AC 465.
126 Lord Morris in Hedley Byrne & Co. Ltd v Heller and Partners Ltd [1964] AC 465. 127 Customs and Excise Commissioners v Barclays Bank [2007] 1 AC 181.
128 Alderson B in Blyth v Company of Proprietors of the Birmingham Waterworks [1856] 156 ER 1047, 1049. 129
Cees Van Dam, European Tort Law (2nd edn, Oxford University Press, 2013) section 11-02.
130 McFarlane v Tayside Health Board [2000] 2 AC 59 (HL).
131 Cordelia Thomas, ‘Claims for wrongful pregnancy and damages for the upbringing of the child’ [2003]
21 In England in 1983, in the case Udale132 the claim for the costs of maintenance was rejected
after the mother’s sterilization was unsuccessful. The arguments were considerations of public policy.133 Firstly, the child should not learn that its life was declared a mistake; secondly, it would be difficult to set off the joy of having the child against the maintenance costs and thirdly, the doctor might be tempted to encourage an abortion.134 However, in 1984, in
Thake135 maintenance costs were granted after the father’s vasectomy had failed. According to
the judge there was no reason why public policy should prevent the compensation of maintenance costs.136 Furthermore, in the same year, all three judges said in Emeh137 that they would agree with the argumentation in Thake and thus awarded compensation for maintenance costs. There would be no rule of public policy which precludes the compensation of the costs to bring up the child.138 The fact that the child in Emeh was disabled was not the basis of the court’s decision.139 Therefore, the decision can be taken into account in this research, which focusses on the birth of a healthy child. After Emeh the courts followed the decision for more than 15 years and awarded compensation without deciding a contractual claim differently than a tort claim.140 Regarding the extent of the awarded compensation, the claims tended to be based upon income support rates.141 In 1988, in Benarr142 however the court took into account that the other children of the family went to private schools and included money for a private school in the award of maintenance costs. Then in 2000, the House of Lords unanimously rejected the claim for maintenance costs in McFarlane.
a) McFarlane v. Tayside Health Board
In the case, Mr. McFarlane and his wife, who already had four children, decided not to have more children. Therefore, Mr. McFarlane went to a physician and underwent a vasectomy, which was unsuccessful. It was not alleged that anyone was to blame for the vasectomy being
132
Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098, [1983] 2 All ER 522(QBD).
133 McFarlane v Tayside Health Board [2000] 2 AC 59, 69-D (HL).
134 Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098, [1983] 2 All ER 522 (QBD); McFarlane v
Tayside Health Board [2000] 2 AC 59, 69-D.
135
Thake v Maurice [1986] QB 215, [1984] 2 All ER 513 (CA).
136 Thake v Maurice [1986] QB 215, [1984] 2 All ER 513 (CA); McFarlane v Tayside Health Board [2000] 2
AC 59, 69-F (HL).
137 Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012, [1984] 3 All ER
1044 (CA).
138 Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012, [1984] 3 All ER
1044 (CA); McFarlane v Tayside Health Board [2000] 2 AC 59, 69-E (HL).
139 Lady Justice Brenda Marjorie Hale, ‘The value of life and the cost of living – damages for wrongful birth’
[2001] British Actuarial Journal, 747, 753.
140 Ibidem. 141 Ibidem.
22 unsuccessful. After the operation, the physician told Mr. McFarlane in a letter that his sperm counts were negative. As a result Mr. and Mrs. McFarlane had sexual intercourse without contraceptive measures, which led to Mrs. McFarlane’s fifth pregnancy. Besides Mrs. McFarlane’s claim for damages for pain and suffering, both parents claimed damages for the upbringing of the child. According to the parents, the physician would have failed to take reasonable care to ensure that the information about the sperm count was correct. It must be noted that the case was founded purely on the tort of negligence and not on contract.
In McFarlane the judges distinguish the claim for damages for pain and suffering and the immediate financial loss suffered by it from the pure economic loss regarding the maintenance costs for the child.143 They unanimously deny the compensation for maintenance costs.
Lord Slynn of Hadley argues against compensating maintenance costs in this case by referring to the requirements of the ‘Caparo test’ as well as the ‘assumption of responsibility’. He is of the opinion that maintenance costs are foreseeable, but he also says that the extent of the duty of care which is owed to the husband and wife should be limited.144 Regarding economic loss, foreseeability would not be enough to establish liability, so the ‘Caparo test’ would have to be applied.145 There may be foreseeability as well as proximity, but Lord Slynn of Hadley does not consider it fair, just or reasonable to hold the physician liable for the consequential responsibilities like maintenance costs.146 To explain why he considers it unfair, he refers to the principle of the ‘assumption of responsibility’. The question is, whether the physician assumed responsibility for the economic interest of the claimant, who relied upon that. The physician had special skills and knowledge regarding the conduct of the sterilization which the patient relied upon. But according to Lord Slynn of Hadley, although the physician would undertake a duty of care with regard to the prevention of pregnancy, this would not lead to the conclusion that this duty includes avoiding the maintenance costs.147 Because the physician would not have assumed responsibility for these damages, a patient would have to rely on an appropriate contract to get compensation.148 Therefore, a duty of care is not established.
143 Lady Justice Brenda Marjorie Hale, ‘The value of life and the cost of living – damages for wrongful birth’
[2001] British Actuarial Journal, 747, 755.
144 McFarlane v Tayside Health Board [2000] 2 AC 59, 75-G (HL). 145
Ibidem 75-H.
146 Ibidem 76-C. 147 Ibidem 76-B. 148 Ibidem 76-C.
23 Lord Steyn also is of the opinion that the parents should not be compensated for the maintenance costs. He refers to distributive justice and says that judges do not just have to look at corrective justice, but also have to take into account what they reasonably believe that an ordinary citizen regards as right.149 He is convinced that, relying on the principle of distributive justice, English tort law does not permit that a physician compensates the parents for maintenance costs.150 Lord Steyn also does not see the requirement of the claim being fair, just and reasonable being met.151 In comparison with ‘wrongful life’ claims, it would be inconsistent to allow the parents claim while rejecting the child’s claim.152 He then states that the physician who gave negligent advice could have assumed responsibility, but that this should not lead to a different result.153 Lord Steyn does not explicitly refer to the principles of the ‘Caparo test’ and the ‘assumption of responsibility’, but uses some of their requirements to better justify his arguments. Instead of denying the existence of a duty of care or its breach, he argues that maintenance costs are no compensable damage.
Lord Hope of Craighead acknowledges that maintenance costs are reasonably foreseeable by the tortfeasor.154 Nevertheless, he also states that foreseeability is not the only requirement which has to be met. Proximity between the negligence and the damage is required and it must be fair, just and reasonable to impose liability.155 According to him, having a child, even when it was unwanted, brings benefits and it would not be fair, just and reasonable to leave these benefits out of account.156 As it would not be possible to calculate and offset these benefits, it would be the best solution to state that maintenance costs are not recoverable.157 Furthermore, according Lord Clyde the issue in the case is not about the establishment of a duty of care or whether this duty is breached, but about the existence and extent of the damage.158 He does not doubt that there is sufficiently close proximity to constitute a duty of care and an obligation to redress the damage when the duty is breached.159 However, the important point is that restitution would have to be reasonable.160 It would not be reasonable to compensate for maintenance costs, because this would relief the parents of their financial
149
McFarlane v Tayside Health Board [2000] 2 AC 59, 82-B (HL).
150 Ibidem 83-D. 151 Ibidem 83-E. 152 Ibidem 83-F. 153 Ibidem 83-H. 154 Ibidem 95-B. 155 Ibidem 95-B. 156 Ibidem 97-D. 157 Ibidem 97-D. 158 Ibidem 102-A. 159 Ibidem 102-A. 160 Ibidem 104-H.
24 obligations of caring for their child.161 Furthermore, it would have been impossible for tortfeasors to reasonably have thought they would undertake such a liability in a case like this.162 Moreover, reasonableness would include a consideration of proportionality.163 The judge states that in the case of maintenance costs, there is no proportionality between the wrongdoing and the damage.164 The reason for this being that maintenance costs would be difficult to calculate, would vary too much and could be extremely high so that a proportional relationship between these costs and the wrongdoing would not be possible.165
Finally, Lord Millet points out that the defendants do not deny that they breached a duty of care and that this caused the pregnancy of the mother as well as the birth of the child as direct and foreseeable consequences.166 It would only be denied that a claim for damages arises out of the conception and birth of a healthy child.167 It would make no difference whether ‘the unwanted pregnancy arises from the negligent supply of incorrect information or from the negligent performance of the operation itself’168. According to him the maintenance costs are not recoverable mainly because of what the birth of a healthy child constitutes. It could not be seen as ‘more trouble and expense than it is worth’169.
In summary, all five judges deny the compensation for maintenance costs using different reasoning. Whereas Lord Slynn already sees a problem in establishing a duty of care, the other judges seem to accept some duty of care, but do not believe that maintenance costs as a particular type of damage are recoverable when the duty is breached.170 Although principles like the ‘Caparo test’ and the ‘assumption of responsibility’ are used to establish a duty of care, some of the judges do not deny a duty of care by referring to these principles. Instead, they refer to the requirements of the principles to justify their arguments that even when a duty of care would be established and breached, maintenance costs would not be compensable damage. It would not be fair to let someone pay for something he did not assume responsibility for.171 Another argument is the incoherence of ‘wrongful birth’ and ‘wrongful
161
McFarlane v Tayside Health Board [2000] 2 AC 59, 105-E (HL).
162 Ibidem 105-G. 163 Ibidem 106-A. 164 Ibidem 106-A. 165 Ibidem 106-B. 166 Ibidem 107-B. 167 Ibidem 107-D. 168 Ibidem 109-A. 169 Ibidem 114-B.
170 Lady Justice Brenda Marjorie Hale, ‘The value of life and the cost of living – damages for wrongful birth’
[2001] British Actuarial Journal, 747, 755.
25 life claims’.172 It would not be fair to allow the parent’s claim, but not the child’s claim.173 Furthermore, the potential scale of the damages is a problem.174 The child itself is regarded as a benefit, which makes it impossible to calculate the damage in a fair way.175 Besides, it is not seen as reasonable to prevent the parents from the financial obligation to pay for the upbringing of their child.176 This could be amounting in unjust enrichment.177 Conclusively, the compensation for maintenance costs particularly fails because the judges state that the imposition of liability for maintenance costs is not ‘fair, just and reasonable’. Apart from this argument, the fact that the judges also put emphasis on distributive justice suggests that fairness and remoteness are criteria for denying damages.178
b) Rees v. Darlington Memorial Hospital NHS Trust
McFarlane is a precedent in England that was seen as the case which had settled the issue of
compensation for maintenance costs in 2000.179 Nevertheless, especially one subsequent case gives rise to questions three years after McFarlane. In the case Rees v Darlington Memorial
Hospital NHS Trust180, Ms. Rees wanted to have a sterilization, because she was visually
impaired and thought that she would not be able to bring up a child. The operation was conducted negligently and was therefore unsuccessful. Ms. Rees got pregnant and gave birth to a healthy child. She claimed compensation for the upbringing of the child.
In 2003, the court was split, but did award an amount of 15.000 pound. The assenting Lord Bingham of Cornhil said in Rees that this ‘conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.’181 Although this explicitly states that the awarded amount should not be seen as some form of compensation, the questions arise why there was no such award in McFarlane and what the award in Rees implies. The only differences in the cases are the visual impairment of
172 Cordelia Thomas, ‘Claims for wrongful pregnancy and damages for the upbringing of the child’ [2003]
U.N.S.W.L.J, 138.
173 McFarlane v Tayside Health Board [2000] 2 AC 59, 83-F (HL).
174 Cordelia Thomas, ‘Claims for wrongful pregnancy and damages for the upbringing of the child’ [2003]
U.N.S.W.L.J, 138.
175
McFarlane v Tayside Health Board [2000] 2 AC 59, 97-D; 114-B; 106-B (HL).
176 Ibidem 105-E.
177 Cordelia Thomas, ‘Claims for wrongful pregnancy and damages for the upbringing of the child’ [2003]
U.N.S.W.L.J, 138.
178
Ibidem 157.
179 Ibidem 138.
180 Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 (HL). 181 Ibidem 8.
