Date: Fri, 6 Aug 2004 09:18:33 +1000

From: Harold Luntz

Subject: Wrongful birth

There is another decision of the BC SC decided about the same time as the one referred to by Stephen Waddams, but apparently independently (the two cases don't refer to each other) which members might like to compare. In Roe v Dabbs 2004 BCSC 957 (15 July 2004) the judge said:

DAMAGES IN THE PRESENT CASE

[212] In my view, the four basic approaches outlined in the authorities fail to adequately compensate plaintiffs for the real costs, economic and personal, that arise from raising a child. In undergoing a sterilization in the form of a tubal ligation or a vasectomy or an abortion, a person has, it must be assumed, made an informed decision with the benefit of professional medical advice.

[213] The court, in my view, ought not to negate that decision by assuming that no harm, but a positive benefit, flows from negligently frustrating that considered decision.

[214] The difficulty, however, continues; for arithmetic calculations of the type which evolved in family compensation cases are ill suited to assessing this type of loss. The focus of the court should not be on faulty assumptions that an expenditure on a child represents a loss to the parents or on a process that forces the court to examine family relationships too closely as a form of benefit/detriment analysis.

[215] In this jurisdiction, damages are meant to be compensatory. The principle underlying that is the concept that the court must consider the individual plaintiff and tailor the award to that plaintiff's circumstances.

[216] In my view, the English approach of "conventional damages" seeks to do this by a different means. In this jurisdiction, in my view, the proper approach is to treat damages in these cases as non-pecuniary in nature. The effect of redistribution within a family unit is a factor but such a redistribution should not be treated as a pecuniary loss but simply as one aspect of this non-pecuniary loss.

...

[228] In this case, the plaintiff has suffered the normal pain and discomfort associated with pregnancy and childbirth. She has also suffered limitations on her lifestyle and activities. In addition, she underwent the considerable trauma of discovering the procedure had failed and the emotional upheaval of assessing the possibility that a twin had been aborted, or the fetus damaged, as well as making a further decision concerning a late term abortion. She was lucky to have the sensitive and caring support of her family doctor, Dr. Mittermaier, but even with that support she was severely traumatized.

[229] Taking all of this into account, I award to the plaintiff the sum of $55,000 for non-pecuniary damages.

[230] In addition, Dr. Dabbs does not dispute the plaintiff's income loss with respect to the pregnancy and maternity. I assess that loss at $5,000.

Harold Luntz.

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