Emeh v Kensington and Chelsea and Westminster Area Health Authority: CA 1 Jul 1984

A sterilisation operation had been performed negligently and failed and the claimant was born.
Held: The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s careless failure to clip a fallopian tube effectively. The authority could not expect her to terminate the pregnancy. The mother was entitled to recover damages, including damages for her future loss of earnings, following the birth of a child with congenital abnormalities who required constant medical and parental supervision.
Waller LJ said: ‘In my view it is trite to say that if a woman becomes pregnant, it is certainly foreseeable that she will have a baby, but in my judgment, having regard to the fact that in a proportion of all births – between one in 200 and one in 400 were the figures given at the trial – congenital abnormalities might arise, makes the risk clearly one that is foreseeable, as the law of negligence understands it.’
On a claim in contract the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child. The court took a multiplier of 8 for a child 5 years old at the time of the appeal. The total award in respect of pain, suffering and loss of amenities was andpound;13,000.
References: [1985] 1 QB 1012, [1984] 3 All ER 1044
Judges: Waller LJ
Jurisdiction: England and Wales
This case cites:

  • Doubted – Udale v Bloomsbury Area Health Authority QBD 1983
    The plaintiff underwent a sterilisation operation. The operation was painful and she later became pregnant. She sought damages for the pain and suffering and the additional costs of caring for the new child.
    Held: Public policy held fast . .
    ([1983] 1 WLR 1098, [1983] 3 All ER 522)
  • Approved – Thake v Maurice CA 1986
    A vasectomy was performed. The husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. The first instance court found no reason why public policy prevented the recovery . .
    ([1986] 2 WLR 337, [1986] QB 644, [1986] 1 All ER 497)
  • Applied – Mekew v Holland and Hannen and Cubitts (Scotland) 1970
    . .
    ([1970] CLY 612)

This case is cited by:

  • Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
    Child born after vasectomy – Damages Limited
    Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
    Held: The doctor undertakes a duty of care in regard to the . .
    (Times 26-Nov-99, , , , [2000] 2 AC 59, [1999] UKHL 50, [1999] 4 All ER 961)
  • Cited – Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd) CA 21-Dec-2009
    The claimant suffered injury for which he sought compensation from his employers. He later had to have his leg amputated as a consequence, but then through his own inadvertence suffered further injury to his other leg and a complete loss of . .
    (, [2009] EWCA Civ 1404, [2010] PIQR P8)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.183007