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McFarlane v Tayside Health Board and Cattanach v Melchior
Abstract
Compares the reasoning in two judgments concerning wrongful conception from the House of Lords and the Australian High Court, with diametrically opposed results; the former invoking distributive justice to deny liability for the full, foreseeable and often foreseen consequences of a negligent sterilisation procedure resulting in the birth of a healthy child, and the other allowing that full range of liability based on corrective justice reasoning. Considers the causes and frequency of failed sterilisations in the UK and the deterrent effect on medical practice of imposing full liability for the consequences.
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SCLR 126 (Court of Session, Inner House (Second Division)
- Mcfarlane V Tayside Health
- Board
McFarlane v Tayside Health Board ( 1998 ) SCLR 126 (Court of Session, Inner House
(Second Division)).
Although the panel reinterpreted its terms of reference as being concerned with legal doctrine, not affordability of the tort system: P Cane
Although the panel reinterpreted its terms of reference as being concerned with legal
doctrine, not affordability of the tort system: P Cane, ' Reforming Tort Law in Australia:
a Personal Perspective ' ( 2003 ) 27 Melbourne University Law Review 649.
the case was settled for £ 1.8 million: ' Wrongful Birth Claim — Child Missing Upper Limbs Bilaterally: CW v NHS Hospital Trust ' (2011) 17 Clinical Risk 234
- H Mcgregor
- M Spencer
- J Picton
246 Eg In a wrongful birth case where antenatal screening failed to identify a bilateral absence
of arms on the fetus, the case was settled for £ 1.8 million: ' Wrongful Birth Claim — Child Missing
Upper Limbs Bilaterally: CW v NHS Hospital Trust ' (2011) 17 Clinical Risk 234.
247 H McGregor, M Spencer and J Picton, McGregor on Damages, 19th edn ( London, Sweet
& Maxwell, 2014 ) para 38-290.
248 Cattanach (HCA) (n 3 above) [161] (Kirby J); Bradfi eld (n 101 above), 314 (Bradfi eld
being Resident Medical Offi cer, the Alfred Hospital, Melbourne).
ONCA 2 ; Cherry v Borsman ( 1992 ) 94 DLR (4th) 487 (BCCA)
- Hergott V Bovingdon
Hergott v Bovingdon 2008 ONCA 2 ; Cherry v Borsman ( 1992 ) 94 DLR (4th) 487
(BCCA).
OJ No 4477 (quantum) (Ont CtJ). 10 Under the Abortion Act
- R H See
- Hunter
See RH v Hunter [ 1996 ] OJ No 2065 (liability), [1996] OJ No 4477 (quantum) (Ont CtJ).
10 Under the Abortion Act 1967 s 1(1)(d).
59 BMLR 58 ; Salih v Enfi eld Health Authority
- Hardman V Amin
Hardman v Amin
( 2000 ) 59 BMLR 58 ; Salih v Enfi eld Health Authority [ 1991 ] 3
Farraj v King ' s Healthcare NHS Trust
BMLR 57; Farraj v King ' s Healthcare NHS Trust [ 2009 ] EWCA Civ 1203, (2009) 111 BMLR
HL) (n 1 above), 87; also rejected by Lord Cameron in Allan
- Mcfarlane
McFarlane (HL) (n 1 above), 87; also rejected by Lord Cameron in Allan (n 73 above),
583.