Toombes v Mitchell [2020] EWHC 3506 (QB) (21 December 2020) (available on BAILII) raises some bried but legally complex issues. This brief note is not sufficient to cover all the elements of the decision, even though the decision itself is quite short.
The trial was held to determine a preliminary issue – whehter on the facts of the claimant’s case taken at their highest, a cause of action existed for her.
The Claimant was born on 19 November 2001. She had a congenital developmental defect causing spinal cord tethering. She alleged that the cause of her physical disability is her mother’s failure to take folic acid before her conception which was, in turn, due to the Defendant’s negligent advice (at [1]).
As explained by the primary judge at [3], “The facts which have been agreed include that, but for the breach of duty, the Claimant would not have been conceived. The Defendant therefore submits that this is a claim in which the injury alleged is not the Claimant’s disability but the fact of her existence. It is the Defendant’s case that the action is one of “wrongful life”,…. As such, the claim is expressly excluded by the provisions of the Congenital Disabilities (Civil Liability) Act 1976…. Relying upon the judgment of the Court of Appeal in McKay v Essex Area Health Authority [1982] 2 All ER 771, the Defendant also submits that the claim would not have been recognised at common law.
It was common ground between the parties that, on the agreed facts as presented for the purpose of the preliminary issue trial, the Claimant’s mother would have had a valid claim for damages for wrongful birth (at [39]), however that had not been pursued.
As explained at [56], here there was a wrongful act (negligent advice) leading to an occurrence (sexual intercourse in a folic acid deficient state) which resulted in a child born with disabilities due to that deficiency of folic acid.
The defendant argued (at [37]) that but for the negligence, the Claimant would never have been conceived. The Claimant could never have been born in any other way. The Defendant did not cause her disability and this Claimant could only ever have existed in her current and disabled state. The fact that but for the negligence a genetically different sibling would have been conceived after folic acid supplements had been given is irrelevant. This claim therefore raised the same policy and legal objections as those which vexed the Court in McKay.
The primary judge held (mostly by focusing on a pre-conception occurrence and by interpretation of the relevant legislation) that that the Claimant in this case has a lawful claim for damages for personal injury arising from her disability.
It would not be surprising to see an appeal from the decision above.
Note: see also the discussion of this matter in the UK Human Rights blog.