Auckland and Goold, ‘Offsetting damages in wrongful conception and birth cases: a way through the post-McFarlane mire’

“‘You can offset apples against apples, and pears against pears, but not apples against pears’ (Lord Toulson, Lee v Taunton and Somerset NHS Trust). The House of Lords’ refusal to award damages for the cost of raising children born as a result of negligence has rightly been subject to substantial criticism. Much of this has focused on the handling of the economic loss aspects of such claims, and on the problematic moral arguments raised in support of this refusal. While these are legitimate criticisms, there are further problems with the approach of the courts to maintenance costs that have not been fully examined. In both McFarlane v Tayside Health Board (McFarlane) and later Rees v Darlington Memorial Hospital NHS Trust (Rees), some judges considered that, in order to calculate the damages, benefits accruing to the claimants from the child’s existence (however unintended) would have to be set-off against the losses claimed, that is, the costs of raising the child …

€ (Westlaw)

Cressida Auckland and Imogen Goold, ‘Offsetting damages in wrongful conception and birth cases: a way through the post-McFarlane mire’ (2022) 138 Law Quarterly Review (July) 407-43.

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