Chapter 12 Pointers to 'pause for reflection' and 'counterpoint' boxes

Product liability

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The purpose of the box is to get you thinking about this type of claim – a claim for 'wrongful birth' (see also discussion of McFarlane v Tayside Health Board [2000] in section 7.5.2 and especially the counterpoint box on p 199 and the online pointers relating to this). In Richardson, though this was on the face of things a product liability case about a defective condom, the real or underlying issue is that the claim being made was for wrongful birth. Basically, the claimants were arguing 'we didn't want this child and we took steps to prevent it, and it is your fault that the child has arrived, therefore you should pay us compensation'. According to the basic and usual principles of negligence or of strict liability for defective products, this should mean the claimants recovered for the extent of the cost of raising that child. But these cases have a long and chequered history, with the courts (most notably the House of Lords) eventually closing down routes to recovery. One question was whether the costs of bringing up an unwanted child when the pregnancy came about by the defendant's negligence should be categorised as pure or consequential economic loss – this was one of the opinions in McFarlane, the leading case in this area. There is also a lot of academic literature on so-called 'wrongful birth' cases, much of it critical of the decision, in McFarlane, to prevent recovery (this was based on a variety of reasons: for example that the loss was purely economic, so no duty of care could arise as this was activity-based rather than statement-based; that the birth of a healthy baby – although unwanted – was a 'blessing' and not, therefore a harm that could give rise to a negligence action). It should be noted that in numerous cases prior to McFarlane, recovery of damages in negligence for wrongful birth had been possible – so it is well worth reading McFarlane to see why the position changed. Note that Richardson came the year after McFarlane – although it is a product liability case, consider the position of the courts – could this claim (even in a slightly different area of law) actually ever have been successful?

Post-McFarlane, the position of the law changed again. In Parkinson v St James & Seacroft University Hospital NHS Trust [2001], recovery was allowed for wrongful birth for a disabled child – but only for the additional costs associated with the disability. Again, the decision was the subject of much critical attention – is a disabled child worth less in the eyes of the law (i.e. less of a 'blessing') than a healthy child? The disability angle also appeared, though differently, in Rees v Darlington Memorial Hospital NHS Trust [2003]. Here, the mother had a disability, and this was precisely the reason she had taken action to prevent herself getting pregnant. Due to the defendant's negligence, she became pregnant and gave birth to a healthy child. The question for the court was whether the healthy child, in this context, was still a 'blessing', therefore meaning that recovery should be denied as no harm had been suffered (as McFarlane) or whether any recovery should be based on the additional costs faced by the mother in raising a child because of her own disability (similar to Parkinson). Arriving at the conclusion that Ms Rees had in fact been harmed, the House of Lords in this controversial case awarded her a 'conventional award' of £15,000 in recognition of her harm, which they conceptualised as her loss of autonomy. This unusual award was entirely without precedent, and can be criticised as being inconsistent with McFarlane (which was not overturned) and for its lack of consistency with the basic principles of negligence more generally. Either wrongful birth is a harm or it is not. If it is, then it would seem to be more appropriate that the award of damages should be based on normal principles. If it is not, then no damages should be awarded at all. Why do you think the House of Lords fudged the issue? And, if the claimants could show that a condom was in fact defective, how would this affect couples who find themselves in the same position as Richardson today?

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This box is asking two things – or one thing in two different ways. Either answer will depend first upon how you would perceive 'justice' to have been done in this case, but must be founded on a knowledge of strict liability, how it works and of why strict liability for defective products was brought in (see section 12.2.2). To answer 'no' to this question, you would need to be able to critique the idea of having strict liability for products, or say that blood in this sense should not have been defined as a ‘product’ (and why). On the second part (the fact that they could not have screened the blood for Hepatitis C at that time) you would need to get into the intricacies of the 'developments risk defence' and how this was interpreted by Burton J in A & Others v National Blood Authority [2001]. To answer 'yes', on the other hand, would require you to defend the principles and policy behind strict liability, as well as defending the approach taken to the developments risk defence.

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