If negligence of the clinical fraternity results in the birth of a child that would otherwise have been aborted by the mother due to, for example, chromosomal abnormalities, this state of affairs is referred to as a “wrongful birth”. In such a case the child has no claim for damages for being born, and the mother cannot recover damages for the cost of bringing up a normal or healthy child who, but for the negligence of the defendants, would not have been born. The mother can however recover as damages the costs associated with the care required to deal with a disabled child.
What happens when the child reaches its majority?
In the case of Catherine Urch v Hammersmith Hospitals NHS Trust the defendant trust argued that on the basis of the rule that the parents had to mitigate their losses, on the disabled child reaching her majority the parents’ legal duties or obligations to care for her ceased, and would have to be taken over by the statutory local authorities for the area where she lived.
The English cases where this issue has cropped up have looked at whether there has to be a legal obligation on the part of the parents to provide care beyond the child’s majority. In Allen v Bloomsbury HA the trial judge held that normal principles of compensation apply, and in accepting this assertion when she refused leave to the defendants in that case to appeal the decision of the trial judge, Hale LJ said:
“The argument that damages should be limited up to the age of 18 was based on a very narrow view of what might or might not be the responsibilities of parents towards children, particularly those children who sadly suffer a disability. There is a great deal in family law to indicate that liabilities…towards those children…may indeed endure long beyond the age of 18.”
In the Scottish case of Anderson v Forth Valley Health Board, the court said that the parents in that case were entitled to make reasonable provision for the disabled child’s care “throughout the child’s life”.
So the cost of care for such children is recoverable even if the care is provided voluntarily after the child reaches its majority. There is no prerequisite for a legal obligation to be present to trigger a right to recover such costs by way of damages.
Further argument in the Urch case related to the provision of accommodation. Generally such costs are claimed on a Roberts v Johnstone basis where the claimant receives the funding costs associated with the provision of accommodation instead of the full capital cost of such accommodation (to prevent a situation arising where the family or relatives then enjoy a windfall from the capital value of the property on the injured person’s death). Here the child was likely to have a full, if disabled, life and so the claim was for the full capital cost of providing accommodation and, as the child would not be earning an income, the costs of running and maintaining it. A compelling argument.
This case settled before trial. However, arguments made at length in correspondence and interlocutory argument illuminate (despite the lack of a judicial ruling on the points canvassed) the approach which may be taken to such cases in future. The case, and law behind it were the subject of a very full review in an excellent article by Robert Glancy QC  PIL Issue 3/06. I would commend that article for further reading on this interesting area of liability.