In the recent case of Evie Toombes v Dr Phillip Mitchell (December 2020), Mrs Justice Lambert re-examined the legal position on whether a disabled person can ever claim damages on the basis that they would not have been born but for the Defendant’s negligence. Often considered as a grey area, Mrs Justice Lambert and the Court provided some much needed guidance on this.
The claimant was born in 2001 with a congenital developmental defect, lipomylomeningocoele, causing spinal cord tethering, limited movement and double incontinence.
Prior to conception, the Claimant’s mother attended an appointment with the Defendant General Practitioner for family planning advice. At this time, it was standard practice for General Practitioners to advise prospective mothers of the potential benefits of taking folic acid before conception, which includes a reduced risk of the child being born with neural tube defects and the prevention of spina bifida. In failing to warn the Claimant’s mother of these risks and failing to prescribe folic acid, the Defendant breached his duty of care.
The Claimant was conceived shortly after the appointment, when the mother was in a folic acid deficient state. The Claimant brought a claim in respect of her own wrongful conception and birth, alleging that, but for the Defendant’s negligence, she would have never been conceived and her disability was a direct result of this.
The Defendant argued that the claim was not a lawful cause of action, following the previous case of McKay v Essex Area Health Authority , whereby the Court of Appeal held that a disabled claimant cannot sue for “wrongful life”.
The statutory hurdles
To determine whether there was a lawful cause of action, Mrs Justice Lambert interpreted the statutory provisions of the Congenital Disabilities (Civil Liability) Act 1976. Section 1(1) of the Act states - “If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) 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.”
Therefore there are three elements to satisfy:
- A wrongful act;
- An “occurrence” (defined in subsections 1(2)(a) and (b)); and
- A child born with disabilities.
The first and third elements were straightforward: the Defendant failed to give advice and prescribe folic acid, and the child was born with a congenital disability.
The interpretation of the second element, an ‘occurrence’, was the focal point of this case. The Act states that an ‘occurrence’ could be one which “affected either parent of the child in his or her ability to have a normal, healthy child” as per section 1(2)(a), or one which “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” as per section 1(2)(b).
Mrs Justice Lambert distinguished between the two cases and held that McKay fell under the remit of section 1(2)(b) of the Act, which concerned an ‘occurrence’ to negligence post-conception. By contrast, it was held that Toombes concerned negligence pre-conception and therefore the Claimant had a lawful claim under the Act which fell within section 1(2)(a).
‘Occurrence’ under section 1(2) was interpreted further as including the act of sexual intercourse and, specifically in this case, the act of sexual intercourse in a folic acid deficient state. Mrs Justice Lambert also held that an occurrence did not require a change or alteration in the mother’s physiological state to affect her ability to have a healthy child, as required by subsection 1(2)(a), as the Defendant had argued.
The judgment was therefore found in favour of the Claimant, allowing the Claimant to bring a lawful claim for damages for personal injury arising from her disability.
How could it affect cases going forwards?
Prior to Toombes, McKay did not allow a child to bring a claim for “wrongful life” on her own behalf. Instead, a parent would have to bring a claim for “wrongful birth” on the premise that the child (already conceived) should not have been born and where compensation is assessed in the context of losses incurred by the parent(s).
Following Toombes, there is no longer a bar to “wrongful life” claims where, but for the negligence, the disabled Claimant would never have been conceived. Provided there is a breach of duty and a causal link between the circumstances of the sexual intercourse and the disability, this decision will allow a claimant child to bring a claim on their own behalf and recover damages for personal injury arising out of their disability.
This development is likely to divide opinion, especially considering the sanctity of human life. Given changing attitudes in society since the introduction of the 1976 Act, particularly in relation to fertility, this is an interesting development in the law which we are keen to follow.
Wrongful birth and wrongful life claims are particularly emotive and controversial for all involved. It can be extremely distressing for anyone to make this type of claim. Kingsley Napley’s Clinical Negligence solicitors have represented families on a number of wrongful birth claims. We understand the emotional burden of such legal action and are fully versed in the complex legal arguments needed to persuade the courts of the scale and depth of these claims and subsequent impact on families, both financially and personally.
If you, or a member of your family has experienced a similar situation and would like to know more, please email firstname.lastname@example.org.
About the authors
Satvir Sokhi specialises in clinical negligence and has experience of working with clients who have sustained a range of injuries, including brain injuries, injuries arising from birth, orthopaedic injuries and gastrointestinal injuries.
Lydia Holland is a paralegal in our medical negligence and personal injury team.