(First) PO and (Second) OO against Lothian Health Board (Court of Session)

Factual and Procedural Background

This is a wrongful-birth action brought by two claimants (the first Plaintiff and the second Plaintiff) alleging that The Health Board's employees negligently failed to identify or arrange appropriate fetal abnormality screening during the first Plaintiff's pregnancy. Their fourth child, Child A, was born on 9 May 2020 and diagnosed with Down's syndrome the following day. The Health Board admits negligence in relation to certain failures in screening and reporting; interim damages have been paid to the first Plaintiff. The action proceeds under chapter 42A of the Court of Session Rules. The court heard a debate on agreed facts recorded in a joint minute so as to decide two preliminary issues: whether a duty of care was owed to the second Plaintiff (the father), and whether damages for care costs should be assessed by reference to Child A's needs or by reference to the pursuers' resources.

Legal Issues Presented

1. Whether the defenders owed a duty of care to the second Plaintiff (the father) in respect of the provision of fetal abnormality screening and related services to the first Plaintiff (the mother).
2. Whether damages for the additional costs of raising Child A should be quantified by reference to the child's reasonable needs or by reference to the parents' resources.

Arguments of the Parties

Plaintiff's Arguments

• The service (advice about screening availability, provision of information, conducting tests, accurate reporting, and advice about risks) was provided to both parents in substance because both bore responsibility for the child's care; the Health Board accepted responsibility to both when informed the couple did not want another disabled child.
• The second Plaintiff is a primary victim: the same psychological and practical injuries flow directly to him from Child A's disability rather than indirectly through injury to the first Plaintiff.
• The duty to the second Plaintiff could be discharged by giving proper advice to the first Plaintiff (relying on BT v Oei and analogous authorities).
• Damages for additional care costs should be measured by reference to the reasonable needs of Child A, not the parents' means; authorities such as Anderson, McLelland, Hardman, Lee and Roberts support that approach.

Defendant's Arguments

• The duty of care in the clinical context is owed to the patient (the first Plaintiff) and not to relatives; the second Plaintiff is a secondary victim and Paul and Another v Royal Wolverhampton NHS Trust was cited to that effect.
• Policy and practical difficulties arise if duties are extended to fathers (confidentiality, differing circumstances of fathers, maternal autonomy over termination), so no duty should be recognised to the second Plaintiff.
• On quantification, the correct measure of loss is to put the parents in the position they would have been in but for the negligence; therefore care-related losses should be assessed by reference to what the parents would reasonably incur given their resources (citing Newman J in Rand).

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in two stages.

1. Primary v Secondary Victim and Duty of Care

The court first addressed whether the second Plaintiff was a primary or secondary victim. It rejected the defenders' submission that the second Plaintiff was a secondary victim whose loss was merely derivative of any injury to the first Plaintiff (as characterised in Paul). The court held that the psychological and practical injuries alleged by the second Plaintiff derived directly from Child A's disability and were not injuries suffered indirectly through the first Plaintiff. Turning to duty, the court treated Anderson and McLelland as the proper Scottish starting points. Applying foreseeability and proximity principles, and having regard to the facts (the couple had signalled they did not wish to raise another disabled child; the second Plaintiff attended appointments; the Health Board's employees knew both were reliant on the service to avoid the risk), the court concluded that the Health Board had assumed responsibility in respect of the fetal-testing service in a way that gave rise to a duty to the second Plaintiff. The court rejected arguments that recognising a duty would impermissibly qualify the mother's autonomy or create insuperable practical difficulties, noting that the duty could be formulated as taking reasonable care in providing fetal-testing services to the mother where such services were known to be relied upon by both parents.

2. Measure of Damages

The court adopted the compensatory principle of restoring the pursuers to the position they would have been in but for the negligence. On the specific question whether additional care costs should be assessed by reference to Child A's reasonable needs or by reference to parental resources, the court followed Anderson and a line of authorities (Hardmin, Lee, Roberts) favouring assessment by reference to reasonable needs and the likelihood that the expenditure will be incurred. The court rejected the defenders' contention that parental resources should operate as a limiting factor, finding that doing so would produce unjust and illogical results and would amount to capping recoverable losses. The court excluded the defenders' averments that damages should be assessed by reference to the pursuers' means, but cautioned that some claimed heads (for example costs likely to be incurred beyond the pursuers' deaths or certain trust-administration costs) raised complexities to be resolved at proof.

Holding and Implications

Holding: The court held that the defenders (The Health Board) owed a duty of care to the second Plaintiff and that the second Plaintiff is entitled to proceed with his claim as a primary victim. The court also held that the defenders' averments seeking to limit recoverable care costs by reference to the pursuers' resources were irrelevant and excluded from probation.

Implications:

• Direct effect: The second Plaintiff may recover damages for his losses; the pursuers may proceed to proof on quantum with damages claimed by reference to Child A's reasonable needs (subject to reasonableness and likelihood of incurrence).
• Procedure: Questions of expenses were reserved and the case was returned for further case management and future proof concerning quantum.
• Precedential effect: The court treated Scottish authorities Anderson and McLelland as authoritatively supporting the existence of a duty in circumstances like these and applied that law; the decision applies those authorities to the agreed facts rather than announcing an unprecedented doctrine beyond them.