Toombes v Mitchell

Toombes v Mitchell

CategoryNews Author Susan Rodway KC Date

The action was in two parts. Part 1 was decided in December 2020 by Lambert J in 2020 ([2020] EWCA 3506). This considered a legal issue – the application of s.1 Congenital Disability ( Civil Liability) Act 1976. If a child has been born due to clinical negligence, the child’s parents can bring a claim for what is called ‘wrongful birth’. Here, the Claimant was the child herself.  The legal issue was whether she was precluded from bringing her own claim because it was a claim for ‘wrongful life’.  The court decided that she could bring a claim because her argument was that if advice about folic acid had been given, her mother would have delayed getting pregnant, and so a different child with no disability would have been born.  The trial of this preliminary issue was based upon a set of agreed facts without prejudice to a later trial on those facts – in other words, the court worked on the basis that the Claimant’s factual assertions were correct, without deciding whether they were or not. The second judgment, which was reported this week, was the court’s decision about whether the Claimant had proved those facts or not. HH Judge Coe QC found in favour of the Claimant on 1 December. See [2021] EWHC 3234. Her judgment in effect ratified the agreed facts on which the preliminary legal issue was based.

The facts as found by the court are as follows. C was born on 19 November 2001 with a form of spina bifida which was not identified before her birth. There was no negligence in this failure. C’s mother attended D on 27 February 2001 for pre-conception advice. This was unusual in D’s own experience. D had no independent recollection of the consultation. C’s mother had a clear memory. She was mainly concerned about the time she should delay before attempting to conceive because she had been on the contraceptive pill. It was C’s mother who raised the question of folic acid. D advised her that if she had a good diet there was no need to take folic acid supplement. He told her there was no need to delay and to go away and have ‘lots of sex’. D agreed that if this was the advice he gave, then it was negligent and wrong, so there was no need to obtain expert evidence on this point. It was his case that he acted in accordance with his ‘standard practice’ which was to advise prospective mothers of the link between folic acid supplements and prevention of spina bifida and to take 400mcg per day prior to conception and for the first 12 weeks of pregnancy. His note simply recorded ‘folate if desired’. HH Judge Coe QC preferred the evidence of C’s mother. D had not told C’s mother of the connection between folic acid supplements and spina bifida and had not advised her that it was recommended she take the supplement as above. There was no dispute that to tell C’s mother that folic acid supplement was ‘not necessary’ was negligent.

The Court held that C’s mother was not pregnant at the consultation but that she followed the advice given and C was conceived almost immediately after this. The Judge at the trial of the facts held that if C’s mother had been given the correct advice she would have delayed conception whilst she took a course of folic acid.

The case was not concerned with whether folic acid would have prevented spina bifida in C. It was the timing of the conception and that it was in a folic acid deprived state that was relevant. Had C’s mother delayed conceiving it was agreed that, on balance of probability, a later conception would have been of a healthy baby. No expert evidence was required as the C and D agreed about this. C had a later conceived brother who was healthy and there was no genetic component in the cause of her disability. Even without folic acid the likelihood of spina bifida is low meaning the hurdle of causation was overcome.

Susan Rodway QC 

3rd December 2021

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