Interesting case, thank for drawing it to our attention Bill. It was about the correct interpretation of s 1 of the 1976 Act, and in particular as to whether this was indeed a case of wrongful life that the Act precludes. (Answer no, as the negligence was pre-conception.)
This preliminary issue was decided on facts agreed for the purposes of this hearing, but presumably remaining to be established in further proceedings. So causation hasn't in
fact been resolved here yet, at least so far as I can tell on a quick reading of the judgment.
Cheers
Ken
From: Bill Madden <m.bill.madden@gmail.com>
Sent: 24 January 2021 23:50
To: ODG list <obligations@uwo.ca>
Subject: Toombes v Mitchell [2020] EWHC 3506 (QB)
Dear All
I thought it might be worth mentioning this "preliminary issue" decision, if only as it seems likely to require consideration by an appellate court in the near future as a potential wrongful life claim. It was not disputed that a wrongful birth claim could
have been brought by the mother.
The claimant was born with a congenital developmental defect (spinal cord tethering). That was alleged to have arisen from her mother's failure to take folic acid before her conception, said to be due to negligent advice on the part of the defendant (a general
practitioner).
The defendant's argument was explained by the primary judge at [3],
The facts which have been agreed include that, but for the breach of duty, the
Claimant would not have been conceived. The Defendant therefore submits that this is a claim in which the injury alleged is not the Claimant’s disability but the fact of her existence. It is the Defendant’s case that
the action is one of “wrongful life”,….
The primary judge discussed the legislative framework
(Congenital Disabilities (Civil Liability) Act 1976) and discussed
McKay v Essex Area Health Authority [1982]
2 All ER 771 before concluding that the claimant child had a lawful claim for damages for personal injury arising from her disability.
The decision of McKay is unfortunately rather brief and it is not clear (to me at least) how the causation issue was resolved in favour of this particular child claimant, given that advice about folic acid would seem to have required a delay in conception
and therefore the birth of a 'different' child, at least in a genetic sense. But perhaps I am missing something.
Here is the link to the decision on BAILII.
Regards
Bill Madden
Sydney Australia.