XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 (19 December 2018) was the appellate consideration of damages issues in a claim which arose from the admitted negligence of the Respondent (“the Hospital”) in failing to detect in Ms X signs of cancer both from smear tests carried out in 2008 and 2012 and from biopsies performed in 2012 and 2013. Ms X developed cancer of the cervix for which she required chemo-radiotherapy treatment which in turn led to infertility and severe radiation damage to her bladder, bowel and vagina.
As explained at [2]:
The principal issue on the appeal is whether the judge was correct in law to refuse (or limit) Ms X’s recovery of damages for expenses of surrogacy arrangements which she intended to make, either in the state of California in the United States of America or, alternatively, in this country. The second issue is whether, in so far as the judge awarded damages for such surrogacy expenses as would be lawful in this country, he was correct to differentiate between “own egg” and “donor egg” surrogacies. The third issue is whether, dependent upon our decision upon the surrogacy issues, there should be any reduction in the damages awarded for pain, suffering and loss of amenity.
Allowing the appeal, the appellate court held (see [81]) that the law no longer requires a bar to recovery of the damages claimed by Ms X on public policy grounds.
At [96] McCombe LJ commented:
In proposing this result, I would emphasise that a decision in favour of Ms X in this case should not be taken to imply that a court would be right in every case to permit awards of damages to cover surrogacies as extensive as those envisaged in this case. Apart from the points of principle considered both by the learned judge and by us, we have not been called upon to consider whether the attempt to achieve a “four child” family in this case was reasonable in all the circumstances or whether the various surrogacy and medical steps were the reasonable way of achieving the result, such that damages should be awarded on that basis. Those matters were not in issue in this case, as they might well be in future cases. However, I do not think that the court should be unduly alarmed by the issues that this might throw up in future cases to such an extent as to deny what I see to be a proper award of damages. The reasonableness of proposed surrogacy steps will have to be proved. However, the assessment of evidence on such issues is well within the capacities of the judges of the Queen’s Bench Division.