The claimant was born with a congenital developmental defect causing spinal cord tethering which she claimed was a result of her mother taking insufficient folic acid during pregnancy. She brought a claim against the defendant, her mother’s general practitioner, on the basis that in a discussion with the claimant’s mother on family planning he had failed, contrary to standard practice at the time, to advise the mother of the potential benefits of taking sufficient folic acid before conception and during the first trimester, or to warn her of any association between folic acid intake and the prevention of spina bifida, but had instead advised that it was optional and not prescribed it. The claim was brought under section 1(1) and (2)(a) of the Congenital Disabilities (Civil Liability) Act 1976, which provided for civil liability to a child born disabled in respect of an “occurrence” which had affected either parent of the child in his or her ability to have a normal, healthy child. A preliminary issue was tried whether the claimant had a lawful cause of action. The facts agreed for the purposes of the preliminary issue, which put the claimant’s case at its highest, included that, but for the defendant’s negligence, the claimant would not have been conceived. The defendant contended that the claim was one of “wrongful life” which was excluded by the 1976 Act.
On the preliminary issue—
Held, preliminary issue determined in favour of the claimant. A cause of action under section 1 of the Congenital Disabilities (Civil Liability) Act 1976 involved three components, namely, a wrongful act, an occurrence as defined in subsections 1(2)(a) or (b), and a child born disabled as a result of the occurrence. An “occurrence” on its ordinary meaning meant that something had happened but the 1976 Act did not require that the occurrence involve a change or alteration in the mother’s physiological state and it might not result in any actionable injury to the mother. Depending on the circumstances, the act of sexual intercourse itself could be a relevant occurrence. The 1976 Act drew a distinction between pre-conception occurrence, which were covered by section 1(2)(a), and occurrences which affected the mother during the course of her pregnancy, which fell within section 1(2)(b). The rider to section 1(2)(b), “so that a child is born with disabilities which would not otherwise have been present”, imported the assumption that, but for the occurrence giving rise to a disabled birth, the child would have been born normal and healthy, not that it would not have been born at all. However, no such rider was attached to section 1(2)(a) for which purpose all that a claimant had to prove was a wrongful act or omission leading to an occurrence (as defined) which resulted in a child who was born with disabilities, and there was no need for the claimant to prove that, but for the wrongful act, he or she would still have been born. On the agreed facts, the reliance of the claimant’s mother on the negligent advice which she was given, in having sexual intercourse without the protective benefit of folic acid supplementation, was a relevant occurrence. It was sufficient for the purposes of a section 1(2)(a) claim that the claimant had, in fact, been born with a disability resulting from the occurrence and that a causal link between the circumstances of the sexual intercourse and the disability had been established. All three elements required under the Act were present, namely, a wrongful act (negligent advice) leading to an occurrence (sexual intercourse in a folic acid-deficient state) which resulted in a child born with disabilities due to that deficiency of folic acid. Further, the Act resolved any difficulty in quantification of damages by providing that such a claim was one for personal injury arising from the child's disability to be assessed in accordance with conventional principles. It followed that the claimant had a lawful claim for damages for personal injury arising from her disability (paras 41, 45–48, 51–56, 59).
Susan Rodway QC (instructed by Moore Barlow llp) for the claimant.
Christopher Johnston QC (instructed by Clyde & Co llp) for the defendant.