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 of expenses arising from the birth of a healthy child, and awarded damages in respect of the expenses of the birth and the mother’s loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. It also awarded damages in an agreed sum for the child’s upkeep to its seventeenth birthday.
Held: Damages should be awarded for pain and suffering ‘per the majority’ in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded.
Nourse LJ said: ‘Valuable too are the observations of Lord Denning MR in Greaves and Co (Contractors) Ltd v Baynham Meikle and Partners [1975] 1 WLR 1095 . . Lord Denning thought, and I respectfully agree with him, that a professional man is not usually regarded as warranting that he will achieve the desired result. Indeed, it seems that that would not fit well with the universal warranty of reasonable care and skill, which tends to affirm the inexactness of the science which is professed. I do not intend to go beyond the case of a doctor. Of all sciences medicine is one of the least exact. In my view a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms. The defendant did not do that in the present case.’


Nourse LJ


[1986] 2 WLR 337, [1986] QB 644, [1986] 1 All ER 497


England and Wales


CitedGreaves and Co (Contractors) Ltd v Baynham Meikle and Partners CA 1975
Consultant engineers were instructed to design a warehouse, the first floor of which, as they knew, was to be used for storing drums of oil that would be moved around by fork-lift trucks. The warehouse was built to the engineers’ design but after a . .

Cited by:

CitedMacFarlane 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 . .
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 . .
ApprovedEmeh 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 . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 29 April 2022; Ref: scu.183008