Outer House finds father of wrongfully born child with Down’s syndrome entitled to damages for negligence

Negligence was admitted by the defender, Lothian Health Board, which had already paid significant interim damages to the first pursuer PO, the child’s mother, who had told midwives that she did not wish to have a second disabled child. A further question arose as to, if the defenders owed a duty of care to the second pursuer OO, whether damages would be assessed by reference to the child’s needs or to the pursuers’ resources.
The case was heard by Lord Braid in the Outer House of the Court of Session, with Mackenzie KC and Swanney, advocate, appearing for the pursuers and Reid KC and Jardine, advocate, for the defender.

Likely shown abnormality

Child A was born on 9 May 2020 at the Royal Infirmary of Edinburgh, and was diagnosed with Down’s syndrome the following day. At a booking appointment on 5 December 2019 with a community midwife, the first pursuer said that she wanted all the foetal abnormality screening tests which were available. She explained that she and the first pursuer did not want to have another child who was disabled as they would find it difficult to cope, already having one disabled child and two other children.

The first pursuer was offered and accepted an ultrasound screening on 31 December 2019, however it was determined that she was outwith the window in which that test could be done. She was advised that she would have to undertake the QUAD test, a maternal blood test, to screen for Down’s syndrome, but could not undergo the test that day as it was a public holiday. She next attended an antenatal appointment on 14 January 2020, but at that appointment the fact that she had not had the QUAD test was not identified and she was not given that test.

The pursuers’ case was that a QUAD test would have likely shown a chromosomal abnormality, and in addition medical staff failed to identify a “double bubble” suggestive of duodenal atresia, which carried a significantly increased association with Down’s syndrome, at an ultrasound on 6 April 2020. Although it was not formally admitted that the first pursuer would have elected to terminate the pregnancy had she known child A would be born with Down’s syndrome, the defenders accepted that she would have done so.

Founding on an Australian case, BT v Oei (1999), senior counsel for the pursuers submitted that, while only the first pursuer was the defenders’ patient, they owed a duty of care to the second pursuer to take reasonable care in providing services to the first pursuer. The defenders submitted that on any view the second pursuer was a secondary victim, and the concession made by the defenders in the similar case of McLelland v Greater Glasgow Health Board (2001) that both parents were owed a duty of care was wrongly made.

Trauma simultaneously caused

In his decision, Lord Braid said of the nature of injury in this case: “The injury complained of by the first pursuer is not that she continued with her pregnancy for a period of some 3 or 4 months, resulting in additional pain which she would not otherwise have suffered; it is that she suffered psychological injury as a result of child A suffering from Down’s syndrome. That comprised the initial shock and distress of discovering that he had been diagnosed with that syndrome, as well as the stress, wear and tear of raising him thereafter.”

He continued: “That is precisely the same injury as was sustained by the second pursuer, for the same reasons. His injury was in no sense caused by witnessing his wife’s distress, or by the trauma caused to her, but by the trauma simultaneously caused to him. The facts in this case are not analogous to a situation, where, say, the first pursuer had died in childbirth through the negligence of the defenders, when the second pursuer would indeed have been a secondary victim.”

Considering whether a duty of care was owed to the second pursuer, Lord Braid noted: “Senior counsel for the defenders complained that there were conceptual and practical difficulties in applying any test which involved asking whether after the child’s birth the father would meet his parental rights and responsibilities which could not be known during pregnancy. That may well be so, but is not a reason for holding that no duty exists to the father who is in a stable family relationship with the mother, and where the parents appear to have come to a joint decision that whereas they intend to raise a healthy child, they do not wish to raise a disabled one, which is the present case.”

He added: “[The first pursuer’s] wish to undergo foetal testing was so that the pursuers - not just the first pursuer - could avoid that very eventuality. It is reasonable to hold that, from that moment, the defenders accepted responsibility, not simply to the first pursuer, but to both pursuers, to take reasonable care to undertake foetal testing of the first pursuer, and to report the results accurately to her, since they were aware that both pursuers were reliant on them so doing in order to guard against the possibility of their having to raise a second disabled child. Implicit in that was that the first pursuer would have an abortion should the tests show that her baby suffered from Down’s syndrome.”

Lord Braid therefore held that the second pursuer did have a relevant claim against the defenders. In respect of the method of calculating damages, he concluded: “In order to put them in the position in which they would have been but for the negligence, the pursuers ought to be entitled to recover the reasonable costs of meeting child A’s additional needs, that is, those caused by his Down’s syndrome. That is consistent with the scope of the duty on the defenders, the defenders’ practitioners having been aware that the pursuers wished to avoid having a child with additional needs. None of the defenders’ arguments, nor established principles, justify assessing the pursuers’ claim by reference to their means.”

The case was thereafter appointed to call at a further case management hearing to regulate future procedure.