A statutory right to “wrongful life” compensation? Toombes v Mitchell
Published on June 1, 2021 by Bill Madden
This article was first published within LexisNexis’ newsletter Australian Civil Liability, Volume 16 No 7, March 2021.
Late 2020 saw an English Court called upon to address, as a preliminary issue, whether the plaintiff had a lawful cause of action in a claim which was in the nature of a wrongful birth claim. The court held that the claim was lawful, having regard to the wording of the Congenital Disabilities (Civil Liability) Act 1976 (“the Act”). The approach taken by the court warrants attention as does the likely outcome of a similar claim in Australia.
In Australia, civil liability legislation in the various states and territories does not expressly address the potential wrongful life cause of action which had been considered by the High Court of Australia some years ago and rejected in Harriton v Stephens.1
Law reform and the legislation which followed
In England, however, there has existed for some years the Act.2 The Act followed a UK Law Commission Report on Injuries to Unborn Children (Law Com No 60), August 19743 and was described as an Act to make provision as to civil liability in the case of children born disabled in consequence of some person’s fault so that children so born in consequence of a breach of duty under that Act may claim compensation. The impetus for the Report and the Act was the thalidomide tragedy and the litigation in its wake.4
An issue of concern in 1974 was the non-existence of the plaintiff at the time of the negligence. The Commissioners addressed the problem by determining that liability for pre-natal injury sustained by the child should be derived from the duty owed to the parent, requiring only that the child should be born alive, with the cause of action thus crystallising at birth.5 The same issue was dealt with in Australia by court decisions.6
The Act clearly does not limit itself to consideration of wrongful birth claims. However, the Commissioners considered actions for wrongful life and concluded that an action for wrongful life “in the strict sense of the term” should not be permitted.7 A gloss on that conclusion was summarised by the primary judge in Toombes in the following way:
Although the Commissioners considered that actions for wrongful life in the strict sense should not be permitted, they drew a distinction between such actions and other cases which in their view were not “really cases of wrongful life”. The Report offers two examples of such cases, both variants upon the facts of the American case of Williams v State of New York  18 N Y 2d 481, when as a result of hospital negligence a female patient had conceived as a result of rape. In Williams, the child sued the hospital for damages for the stigma of illegitimacy and the action was dismissed, in part, on the ground that illegitimacy was not an injury. However, the Commissioners considered that “if the rapist had been syphilitic, a more sympathetic basis for a claim might have been advanced”. The second example was similar, arising from an intentional wrong by a man suffering from syphilis who had intercourse with a woman without telling her that he was infected.8
. . . Later in its conclusions on the topic of wrongful life at  the Commissioners continued:
. . . in our examples based on the American case cited, we have come to the conclusion that the child should have a remedy. As we have said, we do not think that these are really cases of wrongful life. There is we think a difference between a negligent failure to prevent the birth of an already conceived child and negligence which actually causes the intercourse which results in the conception. In the latter case we think that the child should be able to claim damages and that they should be assessed by comparison with the child as he would have been had he not suffered from the disability.9
The phrase “negligence which actually causes the intercourse which results in the conception” appears to adopt some significance as explained below.
The wording of the Act
Turning then to the Act recommended by the UK Law Commission, at this point it is sufficient to note an opening excerpt from s 1, as follows:
1 Civil liability to child born disabled.
(1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child’s own mother) is under this section answerable to the child in respect of the occurrence, the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.
(2) An occurrence to which this section applies is one which—
(a) affected either parent of the child in his or her ability to have a normal, healthy child; or
(b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.
The issues in Toombes v Mitchell
The interpretation of the above provision arose for consideration in Toombes v Mitchell.10 It was an action to determine a preliminary issue, as to whether the plaintiff had a lawful cause of action.
The plaintiff had a congenital developmental defect causing spinal cord tethering, which gave rise to various disabilities. She alleged that the cause of her disabilities was her mother’s failure to take folic acid before her conception which was, in turn, due to the negligent advice of the defendant general practitioner (GP) who then cared for her mother.11
Facts (some of which were otherwise disputed by the defendant) were agreed for the purpose of the preliminary issue hearing.12 Those facts included:
- The plaintiff’s mother attended an appointment with the defendant general practitioner to discuss family planning on 27 February 2001.
- It was then standard practice for GPs to advise prospective mothers of the potential benefits of taking folic acid (a manufactured form of vitamin B folate) before conception and during the first trimester. It was understood that an adequate intake may potentially reduce the risk of a baby being born with neural tube defects.
- The defendant advised the plaintiff’s mother that taking folic acid was optional and did not warn the mother of any association between folic acid intake and the prevention of spina bifida. He did not prescribe her folic acid supplements.
- Shortly after the consultation and in reliance upon the defendant’s advice, the plaintiff was conceived.
- The plaintiff was born on 19 November 2001. She was diagnosed with a form of neural tube defect leading to permanent disability.
- But for the assumed breach of duty, the mother would have delayed attempting to conceive for a number of weeks whilst she increased her intake of folic acid and achieved a therapeutic level of the folic acid in her bloodstream which she would then have maintained during the first 12 weeks of the pregnancy.13
Importantly, it was accepted by the parties that but for the breach, the plaintiff would not have been conceived and born at all. Her mother would have attempted conception at a later point in time and hence that a sibling, not the plaintiff, would have been conceived and born. The sibling would have been a genetically different person who would not have suffered from a neural tube defect.14
The position of the defendant was that:
. . . the claim discloses no cause of action. … the claim is one for wrongful life and is not actionable under the Act, as interpreted by the Court of Appeal in McKay15; that the Defendant cannot owe the Claimant a duty of care to prevent her coming into existence. … The Claimant contends that she would and should not have been born and her claim for damages invites a comparison between the condition she is in now, and her non-existence, which is an impossible task upon which the Court cannot embark.16
The analysis by the court
Returning to the discussion of the Law Commission report mentioned above, Lambert J, the primary judge, considered the provisions of the Act and relevantly concluded:
The distinction being drawn by the Law Commission between those wrongful life cases coming within the strict sense of the term and those fact situations derived from Williams is relevant to the preliminary issue in this case which falls for my determination. … in the examples based upon Williams, as in the case before me, neither claimant would, but for the negligence or the assault, have been conceived in the first place and yet the Commissioners considered that such claims were not cases of wrongful life but claims for damages for personal injury and that there should be recovery by the child limited to the additional losses flowing from the disability.
I conclude this summary by noting the terms of the draft Bill which was subsequently enacted. Subsection 1(2)(b) concerns occurrences which affected the mother during the pregnancy. This subsection carries the rider: “so that the child is born with disabilities which would not otherwise have been present”. This rider was explained in the Explanatory Note as follows: “the clause gives the child no right of action for “wrongful life” (see paragraphs 89 and 90 of the report). Subsection (2)(b) is so worded as to import the assumption that, but for the occurrence giving rise to a disabled birth, the child would have been born normal and healthy (not that it would not have been born at all). Again, I pause to note that this rider was not added to subsection 1(2)(a) which deals with pre-conception occurrences, only to 1(2)(b) which deals with occurrences affecting the mother during the course of the pregnancy.17
The primary judge went on to consider the 1982 McKay decision of the England and Wales Court of Appeal. Although the decision came a few years after the Act, the legislation was not retrospective so the Court of Appeal applied the common law.
In McKay the claimant was born disabled as a result of an infection of rubella suffered by her mother during the course of her pregnancy. The child brought a claim on the basis that, but for negligence in managing the pregnancy, the mother would have been informed of the risk that her pregnancy would be affected by rubella and would have terminated the pregnancy. In such circumstances, the child would not have suffered “entry into life” with debilitating injuries.18 The Court of Appeal refused to impose upon the medical profession a duty to take away life and also considered that it could not evaluate non-existence for the purpose of awarding damages for life or for the denial of non-existence.19
The cause of action under s 1
Referring to the defendant’s submissions, the primary judge agreed that a cause of action under s 1 of the Act involves three components: a “wrongful act”, an occurrence as defined in s 1(2)(a) or (b) and a child born disabled. The occurrence must result in a child born with disabilities.
If the plaintiff in Toombes was to have a lawful claim under the Act, it is one which must fall within s 1(2)(a) and based upon a pre-conception occurrence.
The defendant identified two problems for the claimant:
- there was no “occurrence”; and
- there was no causal relationship between the plaintiff’s injury and the wrongful act because, but for that wrongful act, the plaintiff would never have been conceived.20
The requirement for an occurrence
The primary judge rejected the argument that there was no occurrence within the meaning of s 1 of the Act, holding that it is not necessary for the mother to prove an actionable injury. Something may have altered her physical state but equally she may have been physically unaffected. Further, depending upon its circumstances, the act of sexual intercourse itself can be a relevant occurrence.21 The plaintiff’s mother’s reliance upon the negligent advice which she was given in having sexual intercourse without the protective benefit of folic acid supplementation was a relevant occurrence.22
The plaintiff would have never been conceived
The approach of the primary judge to the wrongful life characterisation turned on the wording of the Act. She noted that s 1(2)(a) contained no express prohibition on claims brought by children who, but for the wrongful act, would never have been conceived. The primary judge explained:
. . . The Commissioners made clear at  and  of the Report that there was a difference between claims based upon pre-conception occurrences and those which involved occurrences during pregnancy. A negligent failure to prevent the birth of an already conceived child engages a range of social and moral policy issues, not least the imposition upon the medical profession of a duty to advise abortion in possibly dubious circumstances. However, claims based upon a wrongful act before conception which leads to the intercourse and conception raise no such difficulties. The legislation was drafted to make this distinction and to permit certain actions arising from pre-conception occurrences even though, but for the wrongful act, the conception would have not taken place. On a plain reading of subsection 1(1) in conjunction with subsection 1(2)(a), all that a claimant must prove to come within the Act is a wrongful act or omission leading to an occurrence (as defined) which results in a child who is born with disabilities. Unlike in a post-conception case, there is no need for the claimant to prove that, but for the wrongful act, he or she would still have been born. It is sufficient that the claimant was, in fact, born with a disability resulting from the occurrence.23
The defendant was correct in submitting that but for the wrongful act, the plaintiff would never have had a chance of being born other than in her disabled condition, but this fact was held not to bar the claim given the wording of the Act.24
As to causation, the primary judge noted that the need for a causal link between the circumstances of the sexual intercourse and the disability must still be established in a pre-conception occurrence claim. If the mother would not have been able to have a healthy child whatever the circumstances of the intercourse, then the Act would not permit recovery.
However here the plaintiff’s disability resulted from the circumstances of her conception which took place in her mother’s avoidable folic acid deficient state.25
The primary judge provided a comparison example. If in reliance upon reassuring but negligent advice concerning their genetic status, parents had intercourse which led to the conception and birth of a child suffering from a genetic disability inherited from the parent then even though but for the negligent advice that child would not have been conceived that child would not have a lawful claim under the Act. Under that example, there would be no circumstances affecting the intercourse in which a healthy child could have been conceived26 and so there was no causal connection between the occurrence and the disability.
The example was only stated briefly and the discussion did not consider the possibility of assisted reproductive technologies such as the use of donor sperm. Admittedly, the notional child would have been of a different genetic makeup, but that was the case in Toombes albeit with the same parents. In the absence of similar legislation in Australia and given the consideration of wrongful life claim issues by the High Court of Australia in Harriton v Stephens27 it seems unlikely that the plaintiff in Toombes would have succeeded here.
Notwithstanding the focus on the English legislation, the issues in Toombes are difficult ones. The defendant may therefore seek to have the matter considered by the England and Wales Court of Appeal.