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Section 7.5.1, page 202
Your answer to the initial question in this box will require knowledge of how this distinction has in fact been drawn in the case law, in the years since Hedley Byrne. What cases, for example, are based on statements made by the defendant to the claimant? Where has a claim based on something the defendant did (rather than said) failed? The second question, building on the first, requires a critique of this position – it asks you to defend the stance the courts have taken, in which it is seemingly easier (with exceptions) to base recovery for pure economic loss on a statement rather than an action. Is the distinction still being maintained, or are more recent cases seemingly adding to the number of ‘exceptions to the rule’? Better answers would further draw on the 'hint' given in the question – for most other types of loss (or harm), no distinctions are made (though see the primary/secondary victim distinction in psychiatric harm claims – see chapter 5) – so what reasons have been given for drawing the distinction here and do they stand up to closer scrutiny? Are there elements of public policy at play? If so, what are they, and are they defensible?
Section 7.5.2, pages 203–4
While there are some specific questions asked in this Counterpoint, particularly with regard to 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, the purpose of the box is more to get you thinking more generally about this type of claim. In particular, you should first recognise that some damages are payable in these cases, but only for the physical harm of the pain and suffering caused by the pregnancy and birth. There is a lot of academic literature on so-called 'wrongful birth' cases, much of it critical of the decision, in McFarlane v Tayside Health Board [2000], to prevent recovery where this had previously been possible (the McFarlane decision was based on a variety of reasons: including 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 always a 'blessing' and not, therefore a harm that could give rise to a negligence action). In numerous cases prior to McFarlane, claimants recovered damages in negligence for wrongful birth– so it is well worth reading McFarlane to see why and how the position changed. It is also worth noting that, post-McFarlane, the position of the law has changed yet again (though the core principle of McFarlane was reaffirmed in ARB v IVF Hammersmith [2018]).
Only a year after McFarlane, 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, this decision has been the subject of much critical attention – is a disabled child worth less in the eyes of the law (i.e. is such a child 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 pecuniary 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 (beyond the pain and suffering of pregnancy and birth), the House of Lords in this controversial case awarded her what they called 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 sounding in negligence 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? If you find these issues interesting then you might like to read Nicolette Priaulx, The Harm Paradox:Tort Law and the Unwanted Child in an Era of Choice (London: Routledge-Cavendish, 2007). For broader discussion on the concept of ‘harm’ more generally, see Nicolette Priaulx, ‘Reproducing the Properties of Harms that Matter: The Normative Life of the Damage Concept in Negligence’ (2017, Journal of Medical Law and Ethics).