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 prevention of pregnancy: it does not follow that the duty includes also avoiding the costs of rearing the child if born and accepted into the family. This is not the result of a public policy rule which would otherwise produce a different conclusion; it comes from the inherent limitation of the liability relied on. The claim for solatium stood, and the claim for expenses caused directly and immediately by the pregnancy and birth, including medical expenses (if any) and the costs of the layette, but the claim for damages in respect of the rearing of the child is dismissed. Lord Steyn: ‘It may be objected that the House must act like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But a judge’s sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right.’


Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Millett


Times 26-Nov-1999, [2000] 2 AC 59, [1999] UKHL 50, [1999] 4 All ER 961


House of Lords, House of Lords, Bailii




CitedSciuriaga v Powell 1979
The plaintiff made a claim for the breach of a contract to terminate pregnancy by abortion.
Held: The sole reason for the continuation of the pregnancy was the doctor’s breach of contract. Damages were awarded for pain and suffering and for . .
CitedUdale 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 . .
CitedEmeh 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 . .
CitedThake 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 . .
CitedAllen v Bloomsbury Health Authority 1993
The plaintiff sought damages after a failed sterilisation. She had been apprehensive during the pregnancy that the child might be handicapped, and in the event the child suffered from temper tantrums, a speech defect and slight dyslexia.
Held: . .
Appeal fromMcFarlane v Tayside Health Board IHCS 8-May-1998
Damages were payable where child born after vasectomy of husband and sperm tests gave false confirmation. This even though gift of a child a normal and healthy process and happy outcome. . .
Outer HouseMcFarlane v Tayside Health Board OHCS 11-Nov-1996
No damages are awardable for the birth of child following the failure of a vasectomy. It is against public policy to treat the birth of a child as a loss. . .

Cited by:

CitedGroom v Selby CA 18-Oct-2001
The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The . .
CitedRees v Darlington Memorial Hospital NHS Trust CA 14-Feb-2002
A disabled mother sought damages for the birth of a child after a negligently performed sterilisation.
Held: The rule in McFarlane against recovery of damages for the birth of a healthy child, did not prevent an award which was intended to . .
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedRees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
CitedFarraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
LimitedHardman v Amin QBD 2001
Henriques J said: ‘McFarlane does not affect the law so far as it relates to the wrongful birth of disabled children.’ . .
CitedMeadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .
CitedRobinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
CitedWhittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Personal Injury

Leading Case

Updated: 11 October 2022; Ref: scu.135129