LORD SLYNN OF HADLEY. Clinical Risk 2001 7: 1, 20-22 Download Citation. Tayside Health Board (Scotland) Judgments - Macfarlane and Another v. Tayside Health Board (Scotland) (back to preceding text) The relevance of the pursuers' claims may be considered from various points of view. McFarlane v Tayside Health Board - Case Law - VLEX 793514777 This chapter examines the civil reparation lawsuit filed by Scottish spouses George McFarlane and Laura Helen McFarlane against the Tayside Health Board. v. TAYSIDE HEALTH BOARD (APPELLANTS) (SCOTLAND) ON 25 NOVEMBER 1999. The facts are that Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by letter of 23 March 1990 he was […] . The majority of relevant actions have relied on the possible distinction of cases involving the birth of a disabled . Except for people who live at the most basic level of subsistence, it is an obviously incomplete description of the had rendered the husband infertile. 6 See, eg, McFarlane v Tayside Health Board [2000] 2 AC 59 ('McFarlane'), where the House of Lords allowed damages for wrongful birth, but not for the ordinary costs of raising the child to maturity; Rees v Darlington Memorial Hospital NHS Trust [2003] QB 20, which largely He appealed a rejection of his claim. P1 had a vasectomy and was told his sperm count was 0. 1. The The claim was brought before the Court of Session and the House of Lords . But it is a small part of the truth. McFarlane and another v Tayside Health Board; [2000] 1 FCR 102. ⇒ See the cases of Blyth v Birmingham Waterworks Co (1856), Glasgow Corporation v Muir [1943], and McFarlane v Tayside Health Board [1999] ⇒ A subjective element → although the 'reasonable person' aspect of the test is objective, there is also a subjective element in the reference to the 'Defendant's circumstances' In the New Zealand case of Benarr v Kettering Health Authority the court did consider awarding damages for the upbringing of the child and made a substantial award for the funding of private schooling for the child. The claim was brought before the Court of Session and the House of Lords . The starting point is McFarlane. McFarlane v Tayside Health Board ( 1998 ) SCLR 126 (Court of Session, Inner House (Second Division)). To say that, as a result of the birth of an unintended child, the parents have an extra mouth to feed, is true. Brooke LJ considered the case law notably McFarlane v Tayside Health Board H.L. McFarlane holding that healthy children brought about by negligence in family planning procedures are blessings, and parents should therefore be denied the costs of child maintenance. D rugby club's ground had concrete barrier 7' from touchline. In September 1991 (following the resumption of intercourse without . The case of Rees v. Darlington Memorial Hospital N.H.S. Simply select your manager software from the list below and click on download. Lord Steyn: .. commuters on the London Underground . 4 McFarlane v. Tayside Health Board [1999] 3 W.L.R. McFarlane v Tayside Health Board [1999] Facts. detail by the House of Lords in McFarlane v Tayside Health Board [2000] 1 AC 59. Could the parents make a mother's claim and a parents' claim against the hospital. Edited by: The Rt Hon Sir Mathew Thorpe Publisher: Bloomsbury Professional This even though gift of a child a normal and healthy process and happy outcome. 1, had not yet been issued. . The relevant facts in this appeal are very few, the legal issue difficult. This has played a part in the development of the law in England in dealing with cases such as . The purpose of the 'counterpoint' 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). This case document summarizes the facts and decision in McFarlane v Tayside Health Board [2000] 2 AC 59. The document also included supporting commentary from author Craig Purshouse. M's Guardian v Lanarkshire Health Board [2010] (consultant and the senior registrar) Mansfield v Weetabix Ltd [1998] EWCA Civ 1352; McFarlane v Tayside Health Board [1999]4 All ER 961; Mullin v Richards [1998] 1 WLR 1304; Nettleship v Weston [1971] 3 WLR 370; Newell v Goldenberg [1995] 6 Med LR 371; Orchard v Lee [2009] EWCA Civ 295 v. Melchior (2003) 199 ALR 131, 141. These were: McFarlane v Tayside Health Board [2000] 2 AC59, Parkinson v St James and Seacroft University Hospital NHS Trust [2000] QB266 and Rees v Darlington Memorial Hospital NHS Trust [2002] 2WLR 1483. This case is cited by: Cited - MacFarlane and Another v Tayside Health Board HL 21-Oct-1999 Child born after vasectomy - Damages Limited Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. If you have the appropriate software installed, you can download article citation data to the citation manager of your choice. This resulted un the birth of a child. 11. McFarlane and another v Tayside Health Board. The McFarlanes alleged that Mr Irving, a Health Board surgeon, performed a botched vasectomy on George McFarlane that led to the unplanned pregnancy of Laura McFarlane. McFarlane was a claim for the costs of bringing up a healthy child conceived following a vasectomy procedure, but the judgements in McFarlane leave open the possibility that a . As written by Tony Weir , Tort Law concerns ' civil wrongs ', in which a claimant sues a defendant for doing wrong to him/her, principally with the view of claiming financial compensation. McFarlane v Tayside Health Board 5, points to an apparent incongruity. OLA57. in which the Court of Appeal dismissed the claim for economic loss being the costs of bringing up a healthy child conceived after the father's failed vasectomy. Voluntary assumption of risk will lead to a defence to a claim under OLA57 s2 (5) 0 comments. The section of Tort Law was explained through the elaborate analysis of 'McFarlane v Tayside Health Board (1999)'. 1 McFarlane v Tayside Health Board [2000] 2 AC 59 (SC (HL)) 96-97 (Lord Hope), 106 (Lord Clyde). The McFarlanes alleged that Mr Irving, a Health Board surgeon, performed a botched vasectomy on George McFarlane that led to the unplanned pregnancy of Laura McFarlane. Page v . Rees v Darlington Memorial Hospital NHS Trust . McFarlane holding that healthy children brought about by negligence in family planning procedures are blessings, and parents should therefore be denied . In the first case the source of the child's . Section 12.3.2, page 367. In Richardson, though this was on the face of things a product liability case . The question of compensation with reference to wrongful birth was first considered in 2000 by the House of Lords in McFarlane v Tayside Health Board . House of Lords (Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Millett) 25 November 1999 McFarlane v Tayside Health Board. Lady Justice Nicola Davies DBE gives the sole judgment of the Court with which King LJ and David Richards LJ agree. We understand that permission to appeal this third decision has been granted by the House of Lords. Trustarises from a lower court backlash against the a prior decision of the British House of Lords in McFarlane v.Tayside Health Board. 4 S. Jhaveri, 'Judicial Strategies in Recognising New Areas for Recovery in Negligence - Lessons Learned from Wrongful Conception Cases' (2013) 21 Tort L Rev 63. Appeal from - McFarlane v Tayside Health Board IHCS 8-May-1998 Damages were payable where child born after vasectomy of husband and sperm tests gave false confirmation. McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 3 WLR 1301; [1999] 4 All ER 961; [2000] SLT 154; [2000] Lloyd's LR Med 1, HL. Choo J held that the mother was not. In 2003, the issue finally came before the High Court and the majority refused to follow the English position. Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. Decision. ⇒ See the cases of Blyth v Birmingham Waterworks Co (1856), Glasgow Corporation v Muir [1943], and McFarlane v Tayside Health Board [1999] ⇒ A subjective element → although the 'reasonable person' aspect of the test is objective, there is also a subjective element in the reference to the 'Defendant's circumstances' 14 Dean Stretton, 'The Birth Torts: Damages for Wrongful Birth and Wrongful Life' (2005) 10 Deakin Law Review 319, 353. 29 For example Kelly v Corston [1997] 4 All ER 466, Clunis v Camden and Islington Health Authority [1998] 3 All ER 180, Phelps v London Borough of Hillingdon [200] 4 All ER 504. McFarlane v. Tayside Health Board [2000] 2 AC 59 (SC (HL)): searching for a ratio Mother's pain & Mother's prenatal Mother's postnatal Layette for Child's maintenance costs Head of suffering: medical expenses & loss of income newborn damage associated loss of pregnancy & delivery income Lord Slynn YES: damnum (Scottish YES if caused directly NO (by inference): YES: NO: no assumption of . The claimant seeks damages for a sterilisation operation which was negligently performed, following which she gave birth to a son. Although clearly in 1954, when the case was heard the problem was understood, the defendant must be judged by the state of knowledge at the time, in 1947. The article analyses the series of cases that have evolved following the House of Lords dicta in McFarlane v Tayside Health Board 1 and which seek to circumvent the limitations imposed by that decision on recovery for the birth of an "uncovenanted" addition to the family. This is an appeal from the ruling of Mr Stuart Brown QC, sitting as a deputy judge of the High Court, on a preliminary issue. Required Reading: Textbooks Horsey and Rackley, Tort Law - Chapter 1 Case Law Nettleship v Weston [1971] 3 WLR 370 Roberts v Ramsbottom [1980] 1 WLR 823 Mansfield v Weetabix [1998] 1 WLR 1263 McFarlane v Tayside Health Board [2000] 2 AC 59. In arguing that the courts must seek to find a balanced approach . 3 Cattanach v Melchior [2003] HCA 38, 215 CLR 1 (Aus HC). Study Family Law Cases flashcards from Lucy Browne's University of Edinburgh class online, or in Brainscape's iPhone or Android app. Judgement. 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 . 6 Elspeth Reid, 'Montgomery v Lanarkshire Health oard and the Rights of the Reasonable Patient' (2015) Edinburgh Law Review 361, 364. and HILL v WEST YOUKSHIRE POLICE, where no relationship of proximity existed. - Demonstrated in McFARLANE v TAYSIDE HEALTH: Wasn't just and fair to award compensation for birth of a healthy child. 7 McFarlane v Tayside Health Board (1998) SCLR 126 (Court of Session, Inner House (Second Division)). McFarlane v Tayside Health Board [2000] 2 AC 59, which concerned negligent medical advice afte . 8 The High Court of Australia is the highest appellate court in Australia. McFarlane v Tayside Health Board [2000] 2 AC 59 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 Montgomery v Lanarkshire Health Board [2015] AC 1430 Doughty v Martino Developments Pty Ltd (2010) 27 VR 499 Powers v Maher (1959) 103 CLR 478 Ferrier v WorkCover Queensland [2019] QSC 11 Sugden v Crawford [1989] 1 Qd R 683 Castlemaine . Injury Law - McFarlane v Tayside Health Board. 2 ibid. JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373; McFarlane v Tayside Health Board [2000] 2 AC 59; Mitchell and another v Glasgow City Council [2009] UKHL 11; Michael v Chief Constable of South Wales Police [2015] UKSC 2; Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; Part 2: Duty of Care—Psychiatric Injury. (H.L.) Secondly, Mr. and Mrs. McFarlane claimed a sum of £100,000 in respect of the financial cost of bringing up Catherine. Nevertheless, policy barred the granting of damages for the birth of a healthy child: see McFarlane v Tayside Health Board [2000] 2 A.C. 59 and Rees v Darlington Memorial Hospital NHS Trust[2004] 1 AC 309. The couple ceased all contraceptive practices, resulting in the wife undergoing an unwanted, certainly an unexpected, pregnancy. MACFARLANE AND ANOTHER (RESPONDENTS) v. TAYSIDE HEALTH BOARD (APPELLANTS) (SCOTLAND) ON 25 NOVEMBER 1999 LORD SLYNN OF HADLEY My Lords, The relevant facts in this appeal are very few, the legal issue difficult. The case of Rees v.Darlington Memorial Hospital N.H.S. In McFarlane v Tayside Health Board their Lordships decided that it was contrary to public policy to permit parents to assert that the costs of raising a normal, healthy child was a compensable damage. 1. Case Facts. McFarlane v Tayside Health Board [1999] 3 WLR 1301. In each case, there was no direct connection between the negligence of the medical practitioner and the disability. Summary of case - Court of Justice concluded that UK was compliant with EC law on products - Key dispute of case is in rel to the wording of the EC directive (CPA) . 4 McFarlane v Tayside Health Board [2000] SC (HL) 1 5 Faculty of Sexual & Reproductive Health are, 'Male and Female Sterilisation' (2014) FSRH 1. Whether duty of care was breached when doctor failed to perform a successful sterilisation operation. The judge identified the crux of the matter as being whether the legal policy enunciated by the House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and applicable to tortious claims founded on reasonable care obligations should apply equally to contractual claims . closely at the recent House of Lords decision in McFarlane v Tayside Health Board,12 in which this head of damages was also denied, but again the reasons were diverse, leaving the law unclear.13 Over a series of English decisions in the 15 years preceding McFarlane, starting with Emeh v Kensington and 13 McFarlane v Tayside Health Board [1999] 4 All ER 961,1011. The sterilisation had been negligently performed and R gave birth to a healthy son. The House of Lords case of McFarlane v- Tayside Health Board had previously decided, in November 1999, that the parents of a normal healthy child born following such an operation or, in the case of McFarlane, a failed vasectomy operation, could not claim for the costs of bringing up that child. 6McFarlane v Tayside Health Board(1997) SLT 211 (SC (OH)), 216. The facts are that Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by letter of 23 March 1990 he was told that his sperm counts were negative. However in McFarlane v Tayside Health Board [2000], the House of Lords decided that general maintenance costs for the child's upbringing could not be recovered. admirably succinct summary, it is unsurprising that the sum needed to compensate . Held that C voluntarily assumed risk that he would be injured by being thrown into the barrier. In doing so, Choo J distinguished two cases that counsel placed heavy reliance on: the House of Lords decision of McFarlene and another v Tayside Health Board [2000] 2 AC 59 ("McFarlene v Tayside"); and the Australian High Court decision of Cattanach v Melchior [2003] 215 CLR 1 ("Cattanach v Melchior"). Before doing so, however, I would note that when the reclaiming motion came before us, on 28 September 1999, the decision of the House of Lords in McFarlane v. Tayside Health Board, 2000 S.C. Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. Learn faster with spaced repetition. Lord Steyn: . This case document summarizes the facts and decision in McFarlane v Tayside Health Board [2000] 2 AC 59. Wrongful birth occurs where a husband or wife underwent through the procedure of sterilisation or vasectomy and even after that treatment wife got pregnancy and unwanted child born, if child born healthy, courts held that this is not harm such as in the Scottish case of McFarlane v Tayside Health Board [2000 . McFarlane v Tayside Health Board. - Demonstrated in WATSON v BRISTISH BOXING BOARD. Trustarises from a lower court backlash against the a prior decision of the British House of Lords in McFarlane v. Tayside Health Board. Over the last six years, such questions have arisen in the English courts following the ruling of the UK's highest appellate Court, the House of Lords, in the case of McFarlane v Tayside Health Board ([2000] 2 AC 59). 1301 at 1313 My Lords, The relevant facts in this appeal are very few, the legal issue difficult. In McFarlane v Tayside Health Board (2000), as the case is known, he delivered a celebrated judgment accepting that while the hospital had been in error, "the law must take the birth of a normal . Some highlighted the interference with bodily . . the case was settled for £ 1.8 million: ' Wrongful Birth Claim — Child Missing Upper . Issue. LEADING CASES IN MEDICAL NEGLIGENCE: McFarlane v Tayside Health Board. This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. MacFarlane and another v Tayside Health Board [2000] 2 AC 59 Szekeres v Robinson [1986] 715 P. 2d. H ouse of L ords decision in McFarlane v Tayside Health Board ('McFarlane'),9 2 See, eg, Rance v Mid-Downs Health Authorit y [1991] 1 QB 587 (failure to diagnose a child's handicap at 26 weeks gestation did not give rise to a valid claim for the loss of an opportunity to terminate, when case was heard the problem was understood, but this was not known at the time, in 1947; Denning LJ: .. the court must not look at the 1947 accident with 1954 spectacles . The facts are that Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by letter of 23 March 1990 he was told that his sperm counts were negative. Westminster Area Health Authority, Thake v Maurice, Gold v Haringey Health Authority, as these cases could now be categorised as wrongful conception as they were the result of failed sterilisations and not due to the failure to identify abnormalities during antenatal screening. 1078: Springer J. said as to the case of healthy although unwanted child many courts have taken for granted that normal birth is an injurious and damaging consequence and have disagreed only on the how-much part of such claims. . [4]I discuss these matters in that same order. 30 McFarlane v Tayside Health Board [200] 2 AC 59 the claimant attempted to claim for the cost of raising a child who had been conceived in spite of her partners vasectomy. R sought to uphold the decision and cross appealed, claiming the whole cost of raising the child. . Examines the connection between distributive and corrective justice, the concepts underpinning distributive justice and its practical application in cases such as McFarlane v Tayside Health Board and the Court of Appeal and House of Lords' decisions in Rees v Darlington Memorial Hospital NHS Trust, on whether a disabled mother could claim . In a more recent Scottish case, Mcfarlane v Tayside Health Board the court of first instance said that a healthy baby born from a . In the context of the controversial cases of McFarlane v Tayside Health Board [2000] and Rees v Darlington Memorial Hospital [2002], this article critically examines how harm is judicially characterized and explores the various tensions emerging from conflicting harm constructs. The jurisprudence prior to McFarlane Prior to McFarlane v Tayside Health Board the judicial approach to "wrongful birth" cases seemed to be fixed for over 14 years. In McFarlane v Tayside Health Board [2000] 2 AC 59, all their Lordships, in their different ways, recognised that to cause a woman to become pregnant and bear a child against her will was an invasion of that fundamental right to bodily integrity, although they expressed themselves differently. . JUDGMENT The Court of Appeal unanimously dismisses the appeal. His wife, P2, got pregnant and they sued D (1) for P2's pain and loss of earnings from the pregnancy, and (2) for the costs of bringing up the child. This chapter examines the civil reparation lawsuit filed by Scottish spouses George McFarlane and Laura Helen McFarlane against the Tayside Health Board. 15 McFarlane v Tayside Health Board [1999] 4 All ER 961, 988. plaintiff would have suffered no pain and suffering . The law in relation to the so called "wrongful birth" claims has undergone significant change and review in recent years and the issue has been considered in the House of Lords in the Scottish case of McFarlane v Tayside Health Board [5] and the English case of Rees v Darlington Memorial Hospital NHS Trust [6]. Family Court Reports. Mcfarlane V. Tayside Health Board. 211. II McFarlane v Tayside Health Board [1999] 3 WLR 1301 (HL) A. Judgement for the case McFarlane v Tayside Health Board. case involved a married couple who were negligently advised that a vasectomy operation . . in the context of a claim in tort in McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. The Lord Ordinary (Lord Gill) dismissed the action in respect of both heads of claim: McFarlane v. Tayside Health Board 1997 S.L.T. The result of McFarlane is well-known; the parent (s) of an unwanted child, conceived as a result of clinical negligence can recover (in the case of the mother) general damages of some sort or another but cannot claim for the costs of child care during the dependence of the child upon the parent (s). This . Doctor failed to indetify and inform the patient the operation had failed. H ouse of L ords decision in McFarlane v Tayside Health Board ('McFarlane'),9 2 See, eg, Rance v Mid-Downs Health Authorit y [1991] 1 QB 587 (failure to diagnose a child's handicap at 26 weeks gestation did not give rise to a valid claim for the loss of an opportunity to terminate, 3 December 1999. The House of Lords addressed the issue of damages in a wrongful conception case, in McFarlane and Another v Tayside Health Board - decision provides a strong indication that damages will be awarded for pain and suffering associated with childbirth but not for the costs of maintaining the child until adulthood - no case involving a claim of raising a child in a wrongful birth case has yet come . HL allowed the claim for the mother's suffering but denied the claim for the . Negligence first developed in DONOGHUE v STEPHENSON. McFarlane v Tayside Health Board [1999] 3 WLR 1301. The trust argued that the decision was inconsistent with McFarlane v Tayside Health Board [2000] 2 A.C. 59, whereas R invited reconsideration of McFarlane . Part V then gives a summary of what can be concluded from these authorities. Failed sterilisation operation on McFarlane. The Lord Ordinary declined to follow a line of English decisions cited to him. This case concerned a married couple, who had been assured by doctors employed by the Health Board that the husband was no longer fertile after conducting a vasectomy operation. A doctor performed a sterilisation operation on the father, negligently such that it reversed and caused the wrongful birth of a healthy child. One approach is that of public policy. McFarlane v Tayside Health Board [2000] 2 AC 59 Parkinson v St James [2001] 3 WLR 376 Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091 Reid v Rush & Tompkins Plc [1990] 1 WLR 212 Merrett v Babb [2001] 3 WLR 1 Simaan General Contracting Co v Pilkington Glass Ltd [1988] QB 758 Smith v Eric S Bush [1990] 1 AC 831
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