In this post Tim Petts of 12KBW considers the widely reported decision of Jay J in ARB v IVF Hammersmith Ltd, a sad case involving the implantation of an embryo without the consent of the father (who had previously separated from the mother) resulting in the birth of a child he did not want.
Some judges have an endearing habit of praising a barrister’s advocacy, intelligence and skill as a way of softening the blow that all that time and effort has been in vain, because the case was hopeless for reasons outside their control. Jay J. went for a variation on that theme in ARB, saying that his judgment “must be seen as a complete personal and moral vindication for ARB” but that this was not so for ARB’s ex-partner, R.
The reason why he said so has been widely reported in the news – he concluded that R had forged ARB’s signature on a IVF consent form after their relationship had broken down. Without ARB’s signature, the defendant clinic would not have thawed an embryo that ARB and R had created during IVF treatment, and it would not thereafter have implanted it into R’s womb. A healthy daughter was born to R as a result, and ARB was helping to raise her. He described his daughter as an “unwanted child”, but said it was a very complicated position. She was a beautiful girl who didn’t feel like part of the family, who reminded him and his wife of pain, who sometimes he didn’t even want to hug – but ARB said that they would do their duty towards her regardless of the outcome. ARB sought substantial damages from the clinic for past and financial future losses incurred in bringing her up: the cost of private education, a gap year, a generous wedding, and so on. The clinic sought an indemnity from R.
Strict contractual liability
There was less coverage of the legal policy reasons why ARB lost, perhaps unsurprisingly. While some reports noted that the judge concluded that the clinic had not been negligent (as it was keen to point out), that was not the whole story. He in fact found that the clinic was strictly liable for breach of contract: the clinic had undertaken not to proceed without the written consent of both ARB and R; it did not have ARB’s consent. This situation arose without negligence on the clinic’s part, since the forged signature was superficially similar to ARB’s genuine signature, but any unfairness to the clinic was irrelevant. The clinic could have inserted a clause limiting or excluding liability, or adopted protocols that would have effectively prevented such a situation happening (as it now has).
Contractual duty of reasonable care
The finding of lack of negligence, though, did bar ARB’s fall-back case on an implied obligation for the clinic to exercise reasonable care in complying with its statutory obligation and licence conditions. By what appears to have been a narrow margin, the judge concluded that there was no breach of this standard. The clinic’s procedures, including the lack of a requirement for ARB to be present at the crucial appointments, were not unusual within the industry (and indeed the Human Fertility Embryology Authority’s Code of Practice did not require a woman’s partner to visit the centre during treatment); and the clinic was entitled to believe that ARB had signed the form, not least because of R’s behaviour. The judge was troubled by subsequent changes in procedure, showing that more robust procedures were not impracticable, but concluded that overall this did not show that there had been negligence.
Claim barred by public policy
Even so, the finding of a breach of a strict contractual duty would have led to an award of some damages, it might have been thought. It did not, because of previous authority on the public policy issues involved where a claim is made for the financial consequences of a healthy, but “unwanted”, child. ARB conceded that this line of authority barred compensation for breach of an implied term to take reasonable care (unless and until the Supreme Court revisits the issue) but tried, unsuccessfully, to argue that the same public policy issues did not apply to strict contractual duties.
Jay J. reviewed the previous authorities. In McFarlane v Tayside Health Board  2 AC 59, for example, the five Law Lords agreed that there was no claim in tort for the financial consequences of a healthy child born after a negligently performed vasectomy. Three of them said it was not fair, just and reasonable to impose liability for this pure economic loss; one of the three said that “distributive justice” barred such a claim; another said it was unreasonable to relieve the parents of their financial obligations; the fifth said that a healthy child was a blessing not a detriment and the benefits outweighed any loss. The position in contract was mentioned but left open. The only award was for general damages for the mother’s pain and suffering in pregnancy and childbirth, and some limited consequential financial losses.
Jay J. said that, by itself, McFarlane would not have barred ARB’s claim. However, Rees v Darlington Memorial Hospital NHS Trust  1 AC 309 did bar it. Mrs Rees was a mother who underwent a sterilisation procedure because she feared that she would not be able to look after a child because of her disability, but negligence in the procedure meant that she gave birth. The seven-strong House of Lords awarded her £15,000 in general damages for being the victim of a legal wrong but said that she was not entitled to the costs of bringing up her child. (No similar general damages claim was made in ARB, and Jay J. left open whether it would have succeeded.) Rees had more of an emphasis on legal policy than McFarlane, balancing the unquantifiable rewards of (even involuntary) parenthood against the financial costs to reach a conclusion that it would not be just to compensate the unwilling parent.
The conclusion in ARB was that these considerations of legal policy also applied to a contractual claim where the measure of damages would be the same as in a tortious claim – the contractual “expectation interest” was based on comparison with the counter-factual scenario of no breach of contract and therefore the child not being born, and this was the same claim as was barred in tort by Rees. He reached that conclusion with reference to the mouldy pig nuts case of Parsons v Uttley Ingham (where the All England Law report of the decision at  1 All ER 525 famously starts its report of the reasoning with “Per Lord Denning MR, Orr and Scarman LJJ dissenting”, temporarily confusing the concepts of majority and minority judgments!) A storage hopper was installed by the defendant in a careless way, breaching its contract with the claimant, that made the pig nuts inside go mouldy, killing 254 pigs. Jay J. said that the reasoning in that case showed that the outcome of remoteness of damage should be the same where contractual and tortious duties were in the main identical, and that this did not depend on whether the contractual obligation was strict or one to take reasonable care.
All the policy reasons identified in Rees to bar such claims were the same whether the claim was framed in contract or tort – not least the undesirability of saying that a private patient could claim substantial damages in contract where an NHS patient, with no contract, could not. The cost of bringing up a child was not too remote in contract in general terms, even if some of the heads of loss were unattractive and speculative – the claim was simply barred by legal policy.
So if ARB is to recover any damages, he must overturn high principles of legal policy that have been stated in two House of Lords judgments on the undesirability of awarding damages for unwanted children. The chances of doing so are slim, surely. The facts in ARB are very unusual, and the situation will more often arise in a case of negligently performed sterilisation procedures where a child surprisingly later arrives, as in McFarlane and Rees. Whatever judicial sympathy there might be for ARB himself, it is difficult to see that this will lead to this established line of authority being overturned, with considerable financial consequences for the NHS.