Neil Davy recently appeared in a ‘wrongful birth’ case in which the High Court awarded damages to a Claimant for the costs associated with a disability which was unrelated to the Defendant’s admitted negligence. In this respect, MNX v Khan [2017] EWHC 2990 (QB) was said to be the first case of its kind, although Yip J sought to resolve the case by reference to established principles.

It should be noted that the Defendant has been granted permission to appeal to the Court of Appeal.

The facts

The Claimant’s son (‘AM’) was born with haemophilia and autism. It was agreed that the Defendant negligently caused the former by failing to determine that the Claimant was a carrier of the haemophilia gene. But for the negligence, the Claimant would have terminated her pregnancy. The Defendant therefore agreed that the Claimant could recover the costs associated with AM’s haemophilia. However, it was disputed that the Claimant could recover the costs associated with AM’s autism, which was not related to the Defendant’s negligence.

Yip J framed the issue as follows: ‘Can a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability (rather than to avoid the birth of any child) recover damages for the additional costs associated with an unrelated disability?’ [2]

Answering this question with a ‘yes’ would lead to a £9,000,000 award of damages, whereas answering ‘no’ would lead to a £1,400,000 award. Consequently, much was at stake for both parties. In the circumstances, Yip J answered ‘yes’.

The importance of Various Claimants v Barclays Bank [2017]

1. A good claim becomes a bad one if there is no one against whom to enforce a judgment.

2. A doctor might be uninsured where:

a. He has engaged in criminal activity and his MDO have declined cover;

b. You are suing him for something not covered by his MDO e.g. some hip cases under the Consumer Protection Act;

c. He did not have cover – perhaps because of an error.

d. You are claiming more than £10m – that is the limit of most doctor’s indemnity.

e. He was operating on an NHS patient in a private hospital.

3. Your options:

a. Try to persuade the MDO to indemnify (not impossible, but difficult).

b. Consider proceeding against doctor’s own assets (usually unattractive because they have a house which is in joint names and which they cannot be forced to sell).

c. Try to involve the NHSLA/ NHSR either by establishing that some of the treatment was on the NHS or by arguing that there were failures of clinical governance within the NHS which contributed to the injury (as in Paterson cases).

d. Try to establish vicarious liability on the part of someone with deep pockets e.g. the private hospital where treatment took place.

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)

In recent years, there has been an increase in the prevalence and social acceptance of surrogacy arrangements in the UK. However, until judgment was handed down in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), there were no reported cases in which a claimant successfully recovered damages for the cost of surrogacy.

In the first decision of its kind, Sir Robert Nelson awarded £74,000 to the Claimant in respect of the cost of UK-based surrogacy for two children, using the Claimant’s own eggs. Claire Watson represented the Claimant in this significant case.

This was a quantum-only clinical negligence trial. The Defendant admitted negligence in failing to detect signs of cancer from smear tests. Consequently, the Claimant developed invasive cancer of the cervix for which she required chemo-radiotherapy treatment, which led to infertility and severe radiation damage to her bladder, bowel and vagina [1].

The Claimant sought damages for, inter alia, the expense of four pregnancies under a commercial surrogacy arrangement in California or, alternatively, under a non-commercial surrogacy arrangement in the UK. In either case, she would primarily seek to use her own eggs. Importantly, it was agreed by the experts in reproductive medicine that the Claimant will probably achieve two live births [34].

Three aspects of Sir Robert Nelson’s judgment are worth noting.

Note for Claimants*

1. On 20th March 2017 the discount rate changed from 2.5% to -0.75%. The life multiplier for a 7 year old child with a life expectancy to age 60 changed overnight from 29 to 65, more than doubling the capital value of a future loss claim.
2. This good news brought an as yet unresolved problem for accommodation claims. For nearly 30 years, since March 1988, the standard approach to valuing the cost of accommodation was that set out by the Court of Appeal in Roberts v Johnstone. If you were living in a house worth £200,000 and you needed to move to a house costing £500,000 the court would not give you the ‘windfall’ of the additional capital, £300,000. Damages are supposed to run out on the day you die but the asset would survive you. Instead you were entitled to compensation for the loss of the use of the additional capital. The discount rate was used to assessed the annual value of the loss. Therefore where the required capital sum was £300,000 the annual value (multiplicand) would be £7,500. This would be multiplied by the life multiplier, so using the figures above, £7,500 x 29 would give an R v. J award of £217,500.
3. There were many problems with R v J. The biggest was in cases of limited life expectancy where the award would be far too small to fund the purchase of a property. There were ways around this, including a claim for the cost of adaptations which were awarded in full. Therefore in a case with limited life expectancy you would achieve a bigger award by buying a small house and spending a lot on adaptations than by buying a bigger house and spending very little on adaptations.
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“The most complicated skill is to be simple.” –Dejan Stojanovic

The EU Product Liability Directive 1985[1] and the consequent Consumer Protection Act 1987 (“CPA”) were introduced in the aftermath of the Thalidomide scandal. The legislators’ intention was to provide a level playing field for EU manufacturers and, more importantly, a simple and uniform no-fault consumer protection system throughout the EU[2]. Despite the latter aim, product liability has created some of the most complex litigation ever to hit the UK courts. Pleadings can resemble – to those who can remember them – telephone books. There are often detailed and complex requests for further information about the precise mechanisms alleged to have caused the defect or injury in issue.  This has created a far more complicated legal process than the fault-based system the Consumer Protection Act was meant to supplant[3]. In short, as stated by Emily Jackson:

“The Consumer Protection Act, despite its name, has proved to be a remarkably consumer-unfriendly piece of legislation.”[4]