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- (^) LLB(hons)/BA University of Canterbury 2017, Graduate Solicitor at Russell McVeagh.
WRONGFUL BIRTH OR WRONGFUL LAW:
A CRITICAL ANALYSIS OF THE AVAILABILITY OF
CHILD-REARING COSTS AFTER FAILED STERILISATION
OPERATIONS IN NEW ZEALAND
Briana Walley*
Abstract
This article explores the availability of child-rearing costs after failed
sterilisation operations in New Zealand. It is divided into three main
sections. First, how the accident compensation scheme has dealt with the
issue thus far. This article discusses how New Zealand case law and the
Accident Compensation Act 2001 provides inadequate cover for parents.
Second, this article discusses how New Zealand courts should respond to a
common law claim for child-rearing costs. This involves an analysis of the
law in the United Kingdom and Australia. This article argues that, while
allowing full child-rearing costs is the preferred option, the common law in
general is not the ideal place for failed sterilisation cases to be determined.
Finally, this article concludes that New Zealand should utilise and expand
its pre-existing accident compensation scheme to encompass claims for child-
rearing costs following failed sterilisation operations.
I. Introduction
The English Court of Appeal once stated that:^1
… a healthy baby is so lovely a creature that I can well understand the reaction of one who asks: how could its birth possibly give rise to an action for damages?
However, when a person has undergone a sterilisation operation, the birth of a child is exactly what they were trying to avoid. When this operation
1 Thake v Maurice [1984] 2 All ER 513 at 526.
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goes wrong, and a child is born, it is reasonable that a parent would want to recover the associated costs. This is known as the tort of wrongful birth. In New Zealand, the starting point for a potential wrongful birth claim, is the Accident Compensation Scheme (“ACC”). The Accident Compensation Act 2001 (“ACA”) provides comprehensive insurance cover for personal injuries that fall under its scope, whilst simultaneously removing the right to sue for compensatory damages in relation to that injury. It then provides entitlements based on the available cover. Controversy exists at the margins of cover, where it is unclear whether the personal injury is covered by ACC or whether the right to sue remains available. The Woodhouse Principles 2 have guided judicial interpretation of ACA to ensure that cases on the margins fall on the correct side of the line. Wrongful birth is the epitome of a case on the margins. It has been established in New Zealand that pregnancy following a failed sterilisation operation is a personal injury under ACC.^3 It has also been established that there are no entitlements available for loss of earning capacity following a failed sterilisation under ACC.^4 However, given that cover is provided for the personal injury, a claimant is potentially barred from bringing a common law claim for child-rearing costs. This is problematic as it creates a legal black hole whereby a claimant can neither claim under ACC nor at the common law for the loss they have sustained. This article explores the legal black hole in the litigation surrounding J v ACC and why the courts have held that there are no entitlements to loss of earning capacity under ACC in failed sterilisation cases.^5 In particular, this article explains how J v ACC has closed the door to a common law claim in damages and why the current legal framework surrounding failed sterilisation cases is unsatisfactory. This article then discusses how failed sterilisation cases would be determined under the common law. There are three options arising from international case law that New Zealand could take: denying child-rearing costs, 6 allowing child-rearing costs,^7 or rewarding a lump sum for loss of autonomy. 8 These options will be discussed in turn. The positions in the United Kingdom and Australia will be compared in order to show that allowing recovery for
2 Namely: community responsibility, comprehensive entitlement, complete rehabilitation, real compensation, and administrative efficiency. Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) [Woodhouse Report]. 3 Allenby v H [2012] NZSC 33. 4 J v ACC [2017] NZCA 441. 5 Ibid_._ 6 This is the position taken in the United Kingdom, Canada and the United States (in some cases). See McFarlane v Tayside Health Board [2009] 2 AC 59; [1999] 4 ALL ER 961 (UK); Cataford v Moreau (1978) 114 DLR (3d) 585 (Canada); Szekeres v Robinson 715 P 2d 1076 (Nev 1986) (USA). 7 This is the option favoured by the High Court of Australia. See Cattnach v Melchior [2003] HCA 38. 8 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309.
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the pregnancy.^12 This included lost earnings. Judge Powell felt that this was the inevitable result of the extension of cover to include pregnancy in Allenby v H ,^13 stating that there is nothing in the Act that requires pregnancy as an injury to stop at the birth of the child.^14 ACC was granted leave to appeal to the High Court.^15 Nation J in the High Court overturned the District Court decision and held that, following the birth of the child, J’s injury was no longer operative and she could claim no further compensation from it.^16 He looked to the scheme of the ACA, and in particular the fact that under s 102, a medical assessment can be undertaken to determine the question in s 103.^17 This, he held, meant that the ACA focused on the physical or medical aspects of injury, which do not include the care of a child.^18 The scheme of the Act did not intend to cover childcare, as it is not a personal injury.^19 J appealed to the Court of Appeal but the majority of Cooper and Asher JJ dismissed her claim. 20 The concurrent appeal to the Supreme Court was declined on jurisdictional grounds, as the ACA does not provide for the possibility of leapfrog appeals. 21 Kós P (dissenting) would have allowed J’s claim and his judgment is arguably the more persuasive. For J, the majority decision means that she has no further appeals and receives no entitlements under ACC for the ongoing effects of the failed sterilisation, despite having cover for her pregnancy. For ACC, this decision means that there is potentially no future avenue for parents to claim for child-rearing costs. The Court of Appeal decision is elaborated on below, as well as the probable impact it has on the availability of a common law claim in negligence.
B. ACC Cover for Pregnancy
New Zealand Courts have been asked to consider failed sterilisation claims under ACC on several occasions. Under the Accident Compensation Act 1972, pain and suffering from a pregnancy after a failed sterilisation was covered, as personal injury by accident was interpreted to include medical misadventure. 22 However, the 1992 amendments narrowed the definition of
12 At [14]. 13 Allenby , above n 3. 14 J v ACC above n 4, at [14]–[16]. 15 ACC v J [2015] NZACC 311. 16 ACC v J [2016] NZHC 1683 at [41]. 17 Accident Compensation Act 2001, ss 102–103; ACC v J [2016] NZHC 1683. 18 ACC v J [2016] NZHC 1683 at [63]. 19 ACC v J [2016] NZHC 1683 at [48]. 20 J v ACC, above n 4. 21 J (SC 93/2016) v ACC [2017] NZSC 3. See also Accident Compensation Act 2001, s 162. 22 L v M [1979] 2 NZLR 519.
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personal injury, and pregnancy was neither expressly included or excluded. 23 This, along with the 2001 amendments, and the change from medical misadventure to treatment injury in 2004, made it unclear how wrongful births would be treated. 24 The position was somewhat clarified in ACC v D, (^25) in which the Court of Appeal held that the ordinary and natural use of the
term personal injury does not encompass pregnancy, even if it is unwanted. This was overruled in Allenby, 26 in which the Supreme Court held that “personal injury” in s 26 ACA should be interpreted expansively to include the physical effects of pregnancy. 27 The Supreme Court took the view that the physical changes to a woman’s body during pregnancy constituted a “personal injury” under s 26, despite it being a natural process. 28 As these changes were caused by medical misadventure, they allowed H’s appeal. 29 As a result of Allenby , it is now established that a woman is covered by ACC for the pain and suffering resulting from a pregnancy caused by a failed sterilisation operation. However, the tumultuous road to Allenby reflects the inherent controversy that comes with wrongful birth claims.^30 In the Supreme Court, Blanchard J went so far as to describe the confusing series of legislative changes and judicial decisions as “tortuous”.^31 The controversy only increases when considering claims for entitlements after a failed sterilisation pregnancy, such as child-rearing costs.
C. Loss of Earning Capacity Entitlements
J claimed that she was entitled to loss of earning capacity arising out of her personal injury of pregnancy_._^32 The basis of her claim was s 103(2) ACA which establishes an entitlement to weekly compensation arising out of personal injury for which a claimant has cover. Section 103 states:
S103 Corporation to determine incapacity of claimant who, at time of personal injury, was earner or on unpaid leave
23 Nicola Peart “ ACC v D [2008] NZCA 576” [2009] NZLJ 3 at 102. 24 Simon Connell “Sex as an ‘accident’” [2012] NZLJ 188 at 188. 25 CC v D [2008] NZCA 576 26 llenby , above n 3. 27 At [69]. 28 Per Blanchard, McGrath, William Young at [80]; Tipping J at [88]; and Elias CJ at [19]. 29 Per Blanchard, McGrath, William Young at [84]; Tipping J at [95]; Elias CJ at [31]. 30 Alison Gordon “New Zealand Supreme Court considers a case of medical misadventure, unexpected pregnancy, personal injury and the Accident Compensation Act” (2012) 20(6) HLB 83 at 83. 31 Allenby , above n 3, at [68]. 32 J v ACC , above n 4.
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able”.^41 This, he contends, means that following childbirth, women are not unable to work as a fact and simply “decide not to work for many different reasons”.^42 However, this argument disregards the fact that the decision to return to work is a decision that parents would not have had to make but for the doctor’s negligence. Nonetheless, the majority judgment of the Court of Appeal in J v ACC 43 mirrored Todd’s perspective. Cooper and Asher JJ focused on the issue of causation and asked whether the “but for” test was enough, or must the barrier preventing J from working be part of an on-going physical injury?^44 The “but for” test was clearly made out in this case as, but for the doctor’s negligence, J would not have had a dependent child. However, Cooper and Asher JJ turned to the scheme of the ACA and interpreted the text of s 103(2) in light of its purpose.^45 They found that the scheme was concerned with physical and mental effects of personal injury, and that ss 102 and 103(2) put medical assessment at its centre.^46 As such, they held that an inability to work must stem from a physical or mental injury, of which a child is neither. They stated:^47
[32] Once the mother is physically and mentally recovered, she will not be unable to work any more “because of” her pregnancy. Her inability to work will arise because of the need to provide care for the child. Ms J is not unable to work because of her personal injury. She is unable to work because she has a dependent child.
This means that a claim for any type of child-rearing costs is currently unavailable under the ACC scheme for J or anyone else. However, this outcome is problematic due to the language and reasoning used to come to the decision. The majority judges argued that considerations from overseas cases mean that any outcome of a common law claim by J would be uncertain, and therefore they were not convinced that the ACA had removed her right to successfully sue for damages at common law.^48 These considerations were that “the law regards the arrival of a healthy child as a blessing,”^49 and that “the costs associated with bringing up a child are outweighed by the joy and mutual love and affection that the child brings”.^50 These arguments will be disputed
41 Stephen Todd “Accidental Conception and Accident Compensation” (2012) 28 PN 196 at 205–206. 42 At 205–206. 43 J v ACC , above n 4. 44 At [12]. 45 At [14]. 46 At [26]. 47 J v ACC , above n 4. 48 At [41] 49 At [40]. 50 At [40].
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in depth below, but it is worth noting at this stage that these arguments are inconsistent with the Supreme Court decision in Allenby.^51 In Allenby , the Supreme Court moved away from these social considerations in deciding that pregnancy was a personal injury under ACC. Many commentators have stated that this is a “welcome approach to such cases”.^52 While the Court of Appeal did not expressly rely on these considerations in coming to their decision, as shall be discussed they are inappropriate considerations in the context of wrongful births. The inconsistency between the approaches of the Supreme Court and the Court of Appeal to wrongful birth potentially calls into question the validity of the Court of Appeal decision. Kós P’s dissent in J v ACC^53 is a welcome step away from this type of language. Kós P would have allowed compensation for loss of earning capacity for so long as the need to care for the child precluded J’s return to work.^54 He too used the purposive approach to come to his decision, but instead focused on how the case law surrounding ACA indicates that the Act must be given a “generous and unniggardly” interpretation.^55 Kós P also looked to s 3 ACA, which makes clear that the focus should be on rehabilitation. He argued that this indicated that the ACA is not solely concerned with J’s physical health.^56 Finally, Kós P took an holistic look at J’s incapacity to work and found that in her particular circumstances she could not make child arrangements, there was no father, no family, and she did not have adequate financial resources.^57 He argued that the majority’s decision implies that J’s employment incapacity stems from these circumstances rather than the presence of the child.^58 Requiring J to make these arrangements, he argues, is the equivalent to asking a woman to procure an abortion or adoption.^59 Ultimately, Kós P applies the “but for” test and finds that J’s incapacity to work is a direct consequence of the treatment injury that caused the birth of the child.^60
Kós P’s reasoning is persuasive and consistent with the generous and unniggardly approach that is used interpreting the ACA.^61 His reasoning
51 Allenby , above n 3. 52 Anthea Williams “Case Comment – Cumberland v Accident Compensation Corporation” (2014) 45 VUWLR 525 ; Allenby , above n 3; C v ACC [2013] NZCA 590 at 532. 53 J v ACC , above n 4. 54 At [51]. 55 J v ACC , above n 4 at [52] quoting ACC v Mitchell [1992] 2 NZLR 436; Harrild v Director of Proceedings [2003] 3 NZLR 289. 56 J v ACC at [62]. 57 At [66]. 58 At [67]. 59 At [67]. 60 At [64]. 61 It should be noted that Kos P has found that a generous and unniggardly approach is not possible in cases where the ACA is clearly delineated see Murray v ACC [2013] NZHC 2967 at [37].
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was based.^69 While this case was overturned by Parliament in s 6 of the Sentencing Amending Act 2014, this was in relation to claimants “topping up” their entitlements with various claims. The concept of the social contract is still relevant when discussing the application of the statutory bar. Applied to child-rearing costs, the problem is that s 317 prevents persons from bringing proceedings independently of the Act for damages arising directly or indirectly out of a personal injury covered by the Act.^70 A child is undoubtedly a consequence of the personal injury of pregnancy and, therefore, there is a chance that a common law claim for child-rearing costs would be barred. The Courts have not resolved this question in relation to wrongful birth. The majority of the Court of Appeal in J v ACC 71 stated they would not determine the issue but noted that it remains possible that J has a claim that is not barred by the Act.^72 Todd agrees, as he believes that child-rearing costs are an economic consequence of the parent-child relationship not of the physical injury to the mother (the pregnancy).^73 As such, he suggests that a claim for damages at common law for this “separate and independent head of financial damage” may not be barred by the accident compensation scheme.^74 This argument will be disputed below (III 2(d)) but for the sake of clarity, it is necessary to emphasise that the existence of the child is a direct consequence of the pregnancy, and that the pregnancy is covered by ACC. Like the majority in J v ACC ,^75 Kós P (dissenting) did not determine the issue but stated that J is unlikely to be able to pursue a claim against the surgeon because of the statutory bar.^76 This is likely to be the correct answer because of the difference between cover and entitlements under ACC. While loss of earning capacity and child-rearing costs are not claimable under ACC after J v ACC,^77 a common law claim for child-rearing costs will likely still be barred because the statutory bar operates when there is ACC cover, regardless of entitlements. If a claimant has cover, then any eligibility for entitlements under ACC flow from this cover.^78 To illustrate this, J was covered by ACC for her personal injury of pregnancy. However, she was not eligible for the entitlement of loss of earning capacity under s 103. The statutory bar applies when a claimant has cover, regardless of their entitlements. This means that J is likely to be barred from being a common law claim for any loss arising out of her personal injury of pregnancy.
69 At 652. 70 Accident Compensation Act 2001, s 317. 71 J v ACC , above n 4, at [41]. 72 At [41]. 73 Todd, above n 40, at 60. 74 At 60. 75 J v ACC , above n 4. 76 At [70]. 77 J v ACC , above n 4. 78 Todd, above n 40, at 74.
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This is a startling outcome for J. Not only is she unable to receive loss of earning capacity entitlements under ACC but also it is highly likely that she would be barred from bringing a claim for damages under the common law. This legal black hole is unjust as J has suffered loss at the hands of a negligent doctor and has no way to recover that loss. New Zealand’s current approach to wrongful birth as laid out in Allenby^79 and J v ACC 80 reflects the extent to which statutory interpretation can stretch under ACA, as the statutory wording is not broad enough to include child-rearing costs. 81 Indeed, some argue that only a “strained” interpretation of ACA can include compensation for lost earnings. 82
E. Is Change Needed?
However, maintaining this status quo does not clarify the law and simply adds to the multitude of claims that a parent must make. An expectant mother already has access to publicly funded maternity care, a potential Work and Income New Zealand claim as a solo mother, other social security benefits, and a claim under ACC for the additional costs of pregnancy. They would then need to file a claim in negligence against the doctor or hospital for the costs of raising the child (if this is available). This is excessive. Kós P stated in J v ACC 83 that there is now an “uneasy patchwork” between ACC entitlements, social security, public health benefits, each with different economic results. 84 In addition, parents are likely to be entitled to far more under ACC than under other social benefits. For example, J’s social security benefits were around 40 per cent of the compensation she was awarded in the District Court under ACC. 85 Therefore, it is not a question of government support or no government support at all, but rather a question of what would provide parents with comprehensive compensation that reflects the position they were put in due to a doctor’s negligence. The existing fractured entitlements scheme is not achieving this. Until ACA is amended, case law will continue to develop in a “piecemeal fashion” adding case law on to an already “unwieldy and incoherent statute”. 86 There are two ways that this can be remedied. First, Allenby could be overturned so that claimants have no cover under ACC.^87 This would remove the statutory bar in s 317 and claimants would be free to bring a claim in
79 Allenby , above n 3. 80 J v ACC , above n 4. 81 Rosemary Tobin “Wrongful Birth in New Zealand” (2005) 12 JLM 294 at 304. 82 At 304. 83 J v ACC , above n 4. 84 At [54]. 85 At [54]. Note that this compensation was lost in the High Court and Court of Appeal. 86 Williams, above n 52. 87 Allenby , above n 3.
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child and is directly caused by the doctor failing to sterilise their patient. In Allenby,^92 Tipping J stated that it is a relatively straightforward fact that the doctor’s negligence causes the resulting pregnancy.^93 Nonetheless, it has been argued that child-rearing costs involve a novus actus interveniens or are too remote to be applied to the negligent doctor. These arguments are examined below. Nonetheless, under general principles of negligence, a parent should be able to recover from a doctor who has negligently performed a sterilisation operation. The principles of negligence in Australia and the United Kingdom are the same, although as shall be seen, the countries differ extensively on matters of policy. These questions of policy and the various arguments that judges use to either decline or allow child-rearing costs are discussed below.
B. Denial of Child-Rearing Costs
A total denial of child-rearing costs is the approach favoured in the United Kingdom following the House of Lords decision in McFarlane.^94 Mr McFarlane underwent a vasectomy operation and was told that his sperm count was negative. Nonetheless, a year later he and his wife discovered that they were pregnant with their fifth child. They claimed £10,000 for the pain and suffering of the pregnancy and £100,000 for the cost of maintaining their new child. Their initial claim was unsuccessful as it was held to be against public policy to treat the child as a loss.^95 There were several appeals and eventually the case ended up in the House of Lords. As Lord Slynn stated “the facts … are very few, the legal issue difficult”.^96 The House of Lords denied the McFarlanes’ claim and held that child- rearing costs are not recoverable in the United Kingdom.^97 While this decision was clear as to the outcome, the decision is far from clear in its reasoning as to why damages for child-rearing costs are not recoverable. The five separate judgements differ extensively in their reasoning. Lord Slynn held that it was not fair, just or reasonable to extend responsibility for the cost of raising the child to the doctor.^98 Lord Steyn took a distributive justice approach and held that child-rearing costs could not be allowed because the average person would think that the parents ought not to be compensated.^99 Lord Hope of Craighead held that since the benefits of raising a child could not be calculated or offset against the financial burden, the costs were not
92 Allenby , above n 3. 93 Allenby, above n 3. 94 McFarlane v Tayside Board [1999] 4 All ER 961. 95 McFarlane v Tayside Board OHCS 11 Nov 1996. 96 McFarlane , above n 94. 97 McFarlane , above n 94. 98 At 970. 99 At 975.
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recoverable.^100 Lord Clyde had similar reasoning but added that it was appropriate to limit damages to the birth so as to provide proper restitution.^101 Finally, Lord Millett held that it would be “subversive of the mores of society” to allow parents to enjoy the benefits of having a child whilst avoiding the burden.^102 What is clear is that all five Law Lords sought to deny the claim for child-rearing costs, but struggled to articulate why on the basis of legal principle, rather than resorting to opinion.^103 Lord Steyn stated that his fellow judges were masking the true reasons for their decision, which were moral, instinctive and based on distributive justice.^104 Following the McFarlane^105 decision, many cases and academic literature have supported the total denial of child-rearing costs.^106 The reasons for denying a claim include, and go beyond, those discussed in McFarlane. These include issues such as denigration to the child, the benefits offset test, causal responsibility issues, concerns around encouraging abortion, and the difficulty of damages quantification. Each shall be discussed in turn.
a) Denigration of the child
The most common argument in favour of denying child-rearing damages is that it would result in a denigration of the child’s worth. In particular, the child would grow up knowing it was unwanted and paid for by another, resulting in psychological harm.^107 This has been dubbed the “emotional bastard” theory.^108 It is an emotive argument, as it goes against human dignity to allow a human being to be categorised as harm.^109 Several cases have expressed such reservations, stating it may be harmful to the child if they find out that they were unwanted.^110
100 At 988. 101 At 994. 102 At 1006. 103 LCH Hoyano “Misconceptions about Wrongful Conception” (2002) 65 Mod LR 883 at 885. 104 McFarlane , above n 94. 105 McFarlane , above n 94. 106 See Cordelia Thomas “Claims for Wrongful Pregnancy and Damages for the Upbringing of the Child” (2003) 26 UNSWLJ 125; Todd, above n 41; B Steininger “Wrongful Birth and Wrongful Life: Basic Questions” (2010) 1 JETL 125; McFarlane v Tayside Health Board [2009] 2 AC 59 ; Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522. 107 Thomas, above n 106. 108 At 152. 109 Ewa Bagińska “Wrongful Birth and Non-Pecuniary Loss: Theories of Compensation” (2010) 1 JETL 171. 110 XY v ACC (1984) 2 NZFLR 376 ; Udale v Bloomsbury Area Health Authority QBD [1983] 1 WLR 1098, [1983] 3 All ER 522; Cattanach v Melchior [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001); Wilbur v Kerr 275 Ark 239 at 571.
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to the child to allow compensation through improving the economic position of the family.^119
b) The benefits offset approach
The second argument against allowing child-rearing costs is the non- economic benefits of having a child are seen to outweigh, or be equal to, the economic costs of raising a child. All five Law Lords in McFarlane discussed this approach, although only Lord Millett found that the case should turn on the benefits offset approach.^120 The benefits offset approach has been considered sensible and appropriate by many subsequent cases and commentators.^121 Courts in Europe have refined this approach to take into account the motivation of the parents in having the original sterilisation operation.^122 These courts are more likely to award child-rearing damages if the motivation for the sterilisation was financial. However, if the motivation was emotional, then recovery for child-rearing costs is seen as less justified.^123 Again, this stems back to the belief that a child should not be considered a loss or harm by the law. Todd describes this as the “core contention” to allowing recovery and sees no reason why the economic loss should be separated from the emotional benefit to the parents in providing for their child’s “happiness, self-esteem and security”.^124 Nonetheless, there is no reason why the economic costs and emotional benefits need to be intertwined as a matter of law, and, in addition, it raises multiple complications and inconsistencies. The first issue with the benefits offset approach is the impossibility of quantifying the benefits of having a child, in order to offset them against the economic losses. In McFarlane ,^125 it was recognised that a child’s life had inestimable value, and there is no evidence as to how the House of Lords itemised the factors to come to the conclusion that the benefits outweighed the losses.^126 Indeed, many criticise this approach because pecuniary and non- pecuniary factors should not be weighed against each other.^127 Strasser argues that even if there is plausibility in the idea that judges could assign a dollar value to the non-pecuniary benefits, it is not the case that these benefits would outweigh the cost in every case.^128 The fact that courts have assumed there is
119 Steininger, above n 111, at 132–133. 120 McFarlane , above n 94. 121 Alverez IJ “A Critique of the Motivational Analysis in Wrongful Conception Cases” (2000) 41 Boston College L Rev 585 at 598; Todd, above n 112, at 533. 122 At 598. 123 At 598. 124 Todd, above n 112, at 533. 125 McFarlane , above n 94. 126 McFarlane , above n 6; see also M Hogg “Damages for Pecuniary Loss in Cases of Wrongful Birth” (2010) 1 JETL 156 at 164. 127 Steininger, above n 111, at 137. This is the case in Germany. 128 Strasser, above n 115, at 193.
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a balance, or that the benefits outweigh the harm, simply demonstrates the fundamental flaw with the approach. A blessing can be a burden and a child can be both, but this does not mean that there has not been a loss.^129 The second main issue with the benefits offset approach is that it seems to imply that the more loving a parent, the less damages are available.^130 This is reproachable, as all children are born with equal value. Finally, the motivation of the parents should be irrelevant to recovery for the cost of their unplanned child. Compensating certain parents discriminates against parents who were subject to the same negligence but who opted for sterilisation for different reasons.^131 This argument stems back to the fact that the parents simply did not ask for these benefits or burdens. They were imposed on them. The parents have already completed their own benefits/ burden analysis when deciding to undergo a sterilisation operation. They have come to their own conclusion that the burden outweighs the benefits. Why should the courts reverse this conclusion? Ultimately, a benefits offset approach allows a child to go through life potentially “ill-clothed, ill-fed, and ill-educated,” despite the fact that a claim for wrongful birth is based on the right of parents to protect and plan their families.^132 Unlike the Court in McFarlane, the New Zealand Supreme Court in Allenby^133 steered away from using the benefits offset approach. This was a welcome contrast to previous cases. For example, in 1984 in XY v ACC^134 the Court stated that most parents would see it as a privilege to raise a child and that financial cost is part of the mutuality of the parent-child relationship.^135 More than 30 years later, Kós P (dissenting) in J v ACC^136 expressly doubted the application of this conclusion stating that it reflected different social conditions that prevailed at the time.^137 However, the majority of the Court of Appeal in J v ACC^138 listed what they saw were the broad considerations that would be taken into account in such cases if it came to the common law. Unfortunately, this included that the arrival of a healthy child is a blessing that outweighs the costs associated with bringing up that child.^139 While this statement is obiter, it was a significant step backwards for New Zealand. New Zealand should not follow precedent that has been described as “Lord Millet
129 Margaret Fordham “Blessing or Burden? Recent developments in Actions for Wrongful Conception and Wrongful Birth in the UK and Australia” (2004) Sing JLS 462 at 483 130 Kashi JS “The case of the unwanted blessing: wrongful life” (1977) 31 U Miami LR 1409 at 1417. 131 Alverez, above n 121, at 620. 132 Alverez, above n 121, at 621. 133 Allenby , above n 3. 134 XY v ACC (1984) 2 NZFLR 376. 135 At 381. 136 J v ACC , above n 4. 137 At [57]. 138 J v ACC , above n 4. 139 At [40].
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There is no reason why courts could not create a similar list of factors in wrongful birth cases. In fact, factors such as the cost of education, food, clothing and shelter are considerably more tangible than those in defamation cases. In any case, parents should not be denied child-rearing damages just because it is too hard to determine what their real damage has been.^153 It is fair to assume that most parents in these cases would prefer a fair estimate of their child’s cost even if it did not equate to full compensation, as opposed to nothing at all.
d) Causal responsibility issues
The fourth argument against allowing child-rearing damages is that there has been a break in the chain of causation, or a novus actus interveniens , between the doctor’s negligence and the economic cost of raising the child. In failed sterilisation cases, applying the “but for” test means that the child would not have been born but for the doctor’s negligence. In other words, the doctor’s negligence caused the birth of the child.^154 One way to argue that this chain has been broken is by contending that child-rearing damages are a purely economic and separate head of damages and therefore not consequential on the pregnancy. This has the benefit of avoiding the child being considered the damage.^155 However, this argument became problematic when Lord Steyn in the House of Lords defined the child as the economic, rather than consequential, damage and relied on distributive justice in order to deny the parents’ claim. Lord Steyn stated:^156
It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice.
As such, Lord Steyn was purporting that distributive justice required the economic burden to fall on the parents rather than the negligent doctor because the causal chain was broken. This means that parents’ duty to financially support their child superseded the duty of care that the doctor had.^157 As such, imposing liability on the doctor for child-rearing costs was seen to subject the doctor to a “medical paternal suit”.^158 This view is
153 Bagińska, above n 109, at 181. 154 For an example of a pregnancy caused by an intervening act, as opposed to the initial treatment injury see A v ACC [2018] NZACC 3 at [33]. 155 M Hogg “Damages for Pecuniary Loss in Cases of Wrongful Birth” (2010) 1 JETL 156 at 161. 156 McFarlane , above n 94, at 970. 157 Hogg, above n 155, at 161. 158 Thomas, above n106, at 125.
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supported by Todd, who states that the complaint is not about the physical consequences to the mother from pregnancy, but about the consequences arising from the existence of the child.^159 This argument is problematic as it relies on the premise of the economic cost of raising a child not being consequential on a pregnancy.^160 This is simply not the case. As has been stated, but for the doctor’s negligence the child would not exist. Lady Hale has stated child-rearing costs are directly consequent on the “invasion of bodily integrity” suffered by a woman who did not wish to be pregnant.^161 For the purposes of ACC, an invasion of bodily integrity is a physical injury, and has been interpreted as such on several occasions.^162 Strasser has stated that a negligently performed sterilisation operation resulting in the birth of a child is not “difficult to anticipate”.^163 Applying common sense, it would be difficult to find a reasonable person who believed that pregnancy would not directly result in the cost of raising a child. The second issue with this line of reasoning is that categorising the harm as pure economic loss “coloured” the Lordships’ views in McFarlane of what an ordinary person would consider compensable.^164 Based on pure economic loss, their Lordships held that economic loss from a healthy baby is generally regarded by society as a good thing.^165 Lord Steyn went so far as to state that if commuters on the Underground were asked if the parents of an unwanted but healthy child should be able to sue the doctor for the costs of raising the child the “overwhelming number of ordinary men and women would answer the question with an emphatic ‘no’”.^166 He gives no evidence as to this supposition and it can only be assumed that it is his own subjective view. In addition, it disregards the subjective desire of the mother to avoid such economic loss and the doctor’s role in causing it. It is difficult to accept that child-rearing costs can be considered pure economic loss. They are inherently and inextricably linked to the pregnancy.
e) Duty to mitigate loss
159 Todd, above n 112, at 532. 160 Victoria Chico “Savior Siblings: Trauma and Tort Law” (2006) 14 Med LR 180 at 187. 161 In Thomas, above n 106, at 139. 162 Patient A v Health Board X (Patient A) HC Blenheim CIV 14, 15 March 2005 per Baragwanath J at [55]; ACC v D [2007] NZAR 679 (HC) at [76]; Cattanach v Melchior [2003] HCA 38, (2003) 199 ALR 131 (although Hayne J saw the invasion into bodily integrity as the operation rather than the pregnancy itself). 163 Strasser, above n 115, at 186. 164 McFarlane , above n 94. 165 Chico, above n 160, at 189. 166 McFarlane , above n 94, at 970.
