We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
06 November 2007
A mother who gave birth to two children after undergoing a failed sterilization operation has failed in her High Court claim to be compensated for the cost of bringing them up (for further details please see "Claim for Failed Sterilization").(1)
In 1998 the plaintiff decided that she did not want to have any more children and was referred to the defendant by her general practitioner for a sterilization procedure.
Having been deemed suitable for the procedure, the plaintiff underwent sterilization by tubal ligation in December 1999. However, it soon transpired that the procedure had failed as the plaintiff fell pregnant with the first of two children she had after the procedure. She subsequently gave birth to a daughter in September 2000. Medical staff allegedly advised that this first post-sterilization pregnancy occurred as a result of the plaintiff being pregnant at the time of the tubal ligation. Ultimately, it was not until the plaintiff conceived and gave birth for a second time that it became apparent that the tubal ligation had been unsuccessful. Accordingly, the plaintiff underwent a second sterilization operation in December 2002.
The plaintiff sought damages to compensate her for having to:
The defendant in this case was a nominee of the hospital in which the sterilization was performed.
The court identified three distinct issues to be decided:
The court had no trouble finding both that the sterilization procedure was a failure and that this failure was due to the negligence of the surgeon. Medical evidence produced at the trial confirmed that the plaintiff fell pregnant after the initial procedure.
With regard to whether the defendant could be held vicariously liable for breach of the duty of care owed to the plaintiff by the surgeon, the defendant argued that whether a person is liable in law for the wrongdoing of another is determined by reference to the element of control exercised, regardless of the nature of the contract. The court dismissed this argument on the basis that "hospital cases" fall outside the universal application of the control test. The court concluded that medical staff in full-time service of hospitals are employees for the purposes of vicarious liability. Accordingly, the court held the defendant vicariously liable for any want of care on the part of the surgeon.
Regarding the damages sought by the plaintiff for pregnancy, birth and the second sterilization, the defendant conceded that should there be a finding of negligence, the plaintiff would be entitled to damages for the pain, suffering and inconvenience of childbirth and having to undergo a second sterilization operation. The plaintiff recovered damages of €90,000 in respect of these heads of claim.
In respect of the claim for the costs of raising two children, the court held that it would be unfair and unreasonable to impose the cost of rearing healthy children born subsequent to a negligently performed sterilization on the negligent doctor in question. The court referred to a "certain incongruity" in seeking to recover costs given the acknowledgment of the happiness that the two children had brought the plaintiff. The court held that it was proper to exclude an award of damages in these circumstances on grounds of policy and made reference to the fact that a decision in the alternative "would open the door to a limitless range of claims". Accordingly, the claim for the cost of rearing the two children was dismissed.(2)
Although similar claims have been unsuccessful in Canadian, US and European courts, this was the first case in Ireland in which the courts had addressed a claim for damages for the costs of rearing a child on foot of a wrongful birth.
In a decision which will undoubtedly be welcomed by clinicians, the reluctance of the court to award damages for the cost of rearing children was clearly founded on a fear of opening the floodgates to a "limitless range of claims".
For further information on this topic please contact Michael Tyrrell or Daniel Scanlon at Matheson Ormsby Prentice by telephone (+353 1 232 2000) or by fax (+353 1 232 3333) or by email (email@example.com or firstname.lastname@example.org).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.