A step by step guide on how to answer a problem question when the type of negligent damage results in wrongful life and conception - first class standard.
Negligence Flowchart (3b): Wrongful life and conception
You should differentiate between two types of claims:
- Liability arising from the birth of a disabled or unwanted child
o What claims, if any, does a child have for harm inflicted before the child was
born?
o What claims, if any, do parents have following the birth of an unwanted
child?
- Liability to child for pre-natal harm
o Claim brought on behalf of a child based on defendant’s negligence which
has caused the child to be born with some adverse condition or disability
Wrongful life
- Wrongful birth; the mother should never have been in a position of giving birth. The
negligence occurs between conception and birth
A child can also claim for wrongful life. This is where the child is born with an impairment
and the D’s negligence comprises of failure to identify or warn the parents of the likelihood
of the child being born with this condition.
The complaint must relate to an omission, and secondly the disability cannot be caused by
D’s negligence.
McKay v Essex AHA: there is no claim for wrongful life, but there can be a claim by the child
for prenatal harm.
When a claimant is claiming for an event that occurs before the child is born, generally no
duty of care will be found as a foetus cannot be considered a natural and legal person. Here,
there will be a duty found for the duty not to harm the C by a failure to take reasonable
care, not a duty to avoid the risk of harm. Harm occurs when C achieves legal personality
and inherits a damaged body.
• Burton v Islington HA: alleged negligence by D in performing gynaecological
operation on C’s mother when pregnant with C; C born with various impairments;
• De Martell v Merton HA: alleged negligence by D in performing gynaecological
operation on C’s mother when pregnant with C; C born with various impairments;
Congenital Disabilities (Civil Liability) Act 1976:
- S.1 : If D would be liable in tort to either of C’s parents for an event which
o affected the parent’s ability to have a normal healthy child; or
o affected the mother during pregnancy or the mother or C during birth; and
o C’s disabilities are a result of that event; then
o C has a claim against D for those disabilities
NB C has no claim under s 1 against her/his mother
- S.2:
- ‘A woman driving a motor vehicle when she knows (or ought reasonably to know)
herself to be pregnant is to be regarded as being under the same duty to take care
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