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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 9 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

people as not worth preserving. It would also be impossible to assess the damages in such cases.

26/9/02

wrongful pregnancy:

Kealey v. Berezowski, (1996) 136 D.L.R. (4th) 708 (Ont. Gen. Div.). (CB1p106)

Jurisdiction

Ontario

Facts

Dr. Berezowski botched a tubal ligation of Mrs. Kealey, and she became pregnant and gave birth to a third child. (Once the Kealeys got over the initial shock, they happily welcomed the child into their family.) The Kealeys had a combined income of $100,000; they had the means to support a third child.

Issues

Did Berezowski’s negligence impair the Kealeys’ ability to meet their responsibilities to their unplanned child or compromise the relationship of mutual support and dependency between parent and child?

Holding

No.

Ratio

The injury of the unplanned pregnancy was mitigated by the joys of childrearing. The Kealeys did not have any special interest which the sterilization would have protected. (The judge made it clear that he did not rule out damages being awarded for child-rearing in other cases.) He argued that it would be impossible to assess damages. However, he did award $30,000 for the stress and difficulty of the pregnancy, labour, delivery, and re-sterilization.

Comments

The economic argument here could be extended in other cases to produce a judgement similar to that in Cooke.

Cooke v. Suite, [1995] R.J.Q. 2765 (C.A.). (CB1p109)

Jurisdiction

Quebec

Facts

Suite became pregnant after a botched tubal ligation: Dr. Cooke had removed a vein rather than one of her fallopian tubes, and he had ignored a lab report that had told him this was the case.

Issues

Would it be contrary to public order to allow parents to recover damages for wrongful pregnancy claims?

Holding

No.

Ratio

Chamberland JA found that the birth of a normal, healthy baby could constitute an injury in some cases. He found that Quebec society recognized the right of women to decide whether or not they would have a baby, and the right of couples to plan their family size: this right had been infringed. He did not see any contradiction in saying that parents could deeply love a child and yet recover damages for its upbringing. A couple’s reasons for not wanting another child are relevant. The fact that it is difficult to put a dollar figure on the joys of parenthood doesn’t mean courts should try. Chamberland awarded $30,000 in damages.

Comments

$30,000 doesn’t sound like a lot of money for raising a child!

McFarlane v. Tayside Health Board, [1999] 4 All E.R. 961 (H.L.). (CB1p118)

Jurisdiction

Scotland

Facts

Mr. McFarlane had a vasectomy, and the doctor told him he didn’t need to use any other birth control. But the vasectomy was botched, and Mrs. McFarlane became pregnant and gave birth to a health child (their fifth).

Issues

In a wrongful pregnancy case, are damages for the costs of pregnancy and childrearing recoverable in law?  

Holding

Pregnancy: yes; childrearing: no.

Ratio

The majority found that the costs (financial, physical, emotional) of pregnancy and delivery were recoverable because they were a directly foreseeable consequence of the fault. However, the costs of childrearing were not recoverable because “it was not fair,

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