A case on congenital disabilities: Toombes v Mitchell [2020] EWHC 3506 (QB)

In this post, Thea Wilson looks at the recent case of Toombes v Mitchell, which considered arguments about wrongful life in the context of the Congenital Disabilities (Civil Liability) Act 1976.

The facts

The Claimant is a young woman born in November 2001 with a congenital developmental defect causing spinal cord tethering. Her mobility is limited and she doubly incontinent. On her case, her mother attended the Defendant’s practice shortly before her conception in February 2001 to seek advice on family planning. The Claimant alleges that the Defendant had informed her mother that folic acid was optional and did not inform her mother of the link between folic acid and the risk of neural tube defects. At the time, standard practice was to advise prospective mothers of the potential benefits of folic acid supplementation; it was understood that an adequate intake may, potentially, reduce the risk of a baby being born with neural tube defects. The Defendant strongly disputes the Claimant’s factual account.

The Claimant’s mother chose not to pursue a case for wrongful birth. The Claimant did not clarify in her Particulars of Claim whether her case was brought at common law or under statute and the Defendant argued in its Defence that there was no cause of action. The matter went before Lambert J on a preliminary issue hearing on whether, taking the Claimant’s factual case at its highest, the Claimant had a valid cause of action in law.

For the purposes of the hearing, the key question was whether the Claimant’s case could succeed under the Congenital Disabilities (Civil Liability) Act 1976. Section 1 of the Act provides:

1 Civil liability to child born disabled.

(1)      If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, 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.

(2)      An occurrence to which this section applies is one which—

(a)      affected either parent of the child in his or her ability to have a normal, healthy child; or

(b)      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.

(3)      Subject to the following subsections, a person (here referred to as “the defendant”) is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.

(4)      In the case of an occurrence preceding the time of conception, the defendant is not answerable to the child if at that time either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the occurrence); but should it be the child’s father who is the defendant, this subsection does not apply if he knew of the risk and the mother did not.

…

(5)      The defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion.

…

The Parties’ submissions

The Defendant raised two main objections to the case:

• The Act requires three components in order to found a cause of action: (i) a wrongful act; (ii) an occurrence as defined in subsections 1(2)(a) or (b); and (iii) a child born disabled. Here, the mother was unchanged having not taken folic acid so, the Defendant argued, there was no “occurrence”.
• The case is essentially a “wrongful life” case (on the agreed facts, the Claimant would not have been conceived at all but for the breach; she never had a chance of being born other than disabled). This claim therefore raises the same policy and legal objections as those in McKay v Essex Area Health Authority [1982] 2 All ER 771, together with an issue in quantifying damages.

The Claimant largely relied on distinguishing McKay and other “wrongful life” claims, arguing that the label “wrongful life” should properly be limited to a narrow group of “abortion cases”. In the alternative, the Claimant argued that McKay would have been decided differently today giving the shifting attitudes towards abortion.

The judgment

Lambert J carefully analysed McKay, but considered that this was more properly a case concerning statutory interpretation. She therefore considered not only the Congenital Disabilities (Civil Liability) Act 1976, but also the original Congenital Disabilities Bill and its explanatory notes, the 1974 Law Commission Report to whose recommendations the Act gave effect, and the background to that Report.

Lambert J rejected the notion that an ‘occurrence’ had to require some change or alteration in the Claimant’s mother’s physiological state. The Law Commissioners had expressly considered that one of the difficulties in these cases was that a tortious act might result in physical injury to the child but leave the mother physically unaffected; for this reason, section 1(3) provided that there was no need for the mother to have suffered an actionable injury for a lawful claim to be made by a claimant. More fundamentally, however, it was clear from the Report that the ‘occurrence’ could be the act of sexual intercourse (the Act was intended to protect children who had been left disabled due to a sexually transmitted disease transmitted from the father to the mother on conception). Here, having sexual intercourse without the protective benefit of folic acid supplementation was found to be an ‘occurrence’ within the meaning of the Act.

Dealing with the “wrongful life” argument, Lambert J stated that although it was superficially attractive, it did not withstand scrutiny. The Act contained two different types of occurrences: ones which affected the ability of either parent to have a normal healthy child, or pre-conception occurrences (subsection 1(2)(a)); and ones which affected the mother during her pregnancy or the child during the course of its birth, or post-conception occurrences (subsection 1(2)(b)). To only post-conception cases had the requirement that the child was born with disabilities who could have been born without disabilities been added, excluding so called “wrongful life” or “abortion cases”. To the pre-conception, section 1(2)(a), cases there was no such requirement. The absence of this wording indicated that it was not Parliament’s intention that the limitation should apply in such cases; it was sufficient that a claimant was, in fact, born with a disability resulting from the occurrence. Whilst, but for the wrongful act, the Claimant would never had had a chance of being born other than in her disabled condition, this did not bar this claim.

Comment

Although this case can be seen as part of the wider group of cases concerning wrongful birth, it should be considered apart from them. Both parties agreed that on the agreed facts, the Claimant’s mother would have had a valid claim for damages for wrongful birth encompassing the reasonable costs associated with the Claimant’s disability, together with a modest award for pain and suffering associated with pregnancy and childbirth. A wrongful birth claim was, however, not brought.

Instead, the preliminary issue turned solely on a question of statutory interpretation. Whilst, on the face of it the Defendant’s case was a strong one, on a careful analysis of the Act, the Law Commission’s Report and the background to both, in particular the American syphilis cases which were intended to be covered by the Act, Lambert J’s interpretation must be the correct one.

Having made her decision, Lambert J went on to consider how the cases of McKay and CICA v FTT fit within the Act and her interpretation.

McKay was decided after the Act, but on the basis of common law, the birth having occurred prior to 1976. Lambert J considered, however, that it would have been decided in the same way under the Act as it would have fallen within subsection 1(2)(b) and been caught by the “so that the child is born with disabilities which would not otherwise have been present” requirement. This is straightforward and logical.

CICA v FTT which was a claim brought by a disabled child born as a result of an incestuous rape of his mother by her own father. The Court there found that he had not been conceived at the time of the crime of violence so could not succeed. Under the 2008 Criminal Injuries Compensation Scheme, only his mother was the victim of a crime of violence. Lambert J held that the findings in the CICA case, which involved the interpretation of a different statutory scheme, and where the Court did not consider either the Law Commission’s Report or the draft Bill and Explanatory notes relied on extensively by her made undermined her findings. Given the very different questions involved in CICA v FTT, it must be right that it could not prevent the Claimant in Toombes v Mitchell pursuing a claim.

Of course, it remains far from certain that the Claimant will succeed following this judgment. Although the door is now open to her claim, she must still prove the details of the February 2001 consultation were as her mother alleges, and, even if she can prove a breach there, that she had not been conceived at the time of the consultation (which may be in doubt given the proximity between the dates of the consultation and presumed date of conception), that her mother would have taken folic acid but for the breach, and that she would not have been conceived but for the breach.