From: Craig Purshouse <C.J.Purshouse@leeds.ac.uk>
To: Jack Enman-Beech <jenmanbeech@gmail.com>
obligations@uwo.ca
Date: 18/12/2018 08:56:05 UTC
Subject: Re: [Spam?] Re: Raising of healthy children

Dear all,


Andrew writes:

'...it's invidious to award damages to a parent that demonstrate full well to a child of that parent that he was unwanted in the first place (though if that is so, the conventional award in Rees v Darlington becomes awkward).'

If we accepted this argument then it would not just be the conventional award that becomes awkward. Presumably the mother's claim for the physical discomfort suffered by her during the pregnancy and delivery (permitted in McFarlane) would also not be allowed as the child would know they were unwanted (the discomfort of wanted pregnancies obviously goes uncompensated). Anyway, if it is a choice between the money and hurt feelings (if any, and assuming they will not find out anyway) I know what I'd choose! Let's not pretend that the child is being protected by making its upbringing harder. Not having to share a bedroom, a new Xbox, nicer holidays, food on the table etc will more than soften the blow. 


Nicole and Jack prefer to see the loss as 'loss of choice'. In my view, this raises far more problems than it solves. All sorts of things interfere with one's 'choices'. On what basis is this choice to be compensated but not other choices one is deprived of? I have written at length about why this is not a good idea ('Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law?' (2015) 22 Torts Law Journal 226) and similar arguments were adopted by the Court of Appeal of Singapore in ACB v Thomson Medical Pte Ltd [2017] SGCA 20. 


I do wonder whether McFarlane would have been decided the same way now that there is a 2 child cap on child benefits payments in this country. That said, these are difficult cases. I think most people's view is that some damages should be awarded but the conventional award is insultingly low and full damages, as Lord Bingham recognised in Rees, could lead to large sums of money being drained from the NHS to pay for private school fees. A solution could be to allow claims but have a statutory cap on damages (e.g. £100k).


Best wishes,

Craig


Dr Craig Purshouse

Lecturer in Law

1.18 The Liberty Building

University of Leeds, LS2 9JT

T: (0113) 343 5050

From: Jack Enman-Beech <jenmanbeech@gmail.com>
Sent: Tuesday, December 18, 2018 7:45:12 AM
To: obligations@uwo.ca
Subject: [Spam?] Re: Raising of healthy children
 
Dear all,

Professor Moreham's concern could perhaps have been addressed by something like the conventional award given in Rees. At para 8, Lord Bingham described the motivation of the award thus: "To speak of losing the freedom to limit the size of one's family is to mask the real loss suffered in a situation of this kind. This is that a parent, particularly (even today) the mother, has been denied, through the negligence of another, the opportunity to live her life in the way that she wished and planned." We could argue about whether £15,000 is adequate to this loss. Similar issues might arise for nominal awards for contract breach or trespass to property where no damage was done. For a discussion of wrongful conception as loss of choice see Janice Richardson, The Classic Social Contractarians: Critical Perspectives from Contemporary Feminist Philosophy and Law, ch 7.

But damages for loss of choice do not, in Professor Tettenborn's characterization, "demonstrate full well to a child ... that he [sic] was unwanted in the first place". --Because there is a difference between being unwanted and being unchosen, a difference discovered by many surprise parents. It does not justify force to say that the forced course of action would have been chosen anyway.

Yours truly &c.,
Jack Enman-Beech
SJD Candidate, University of Toronto Faculty of Law