Author: Daniel Millar, Second Six Pupil, 12KBW

Introduction

Lord Braid, in the Outer House of the Court of Session, has handed down judgment in a “wrongful birth” claim: PO v Lothian Health Board [2026] CSOH 55. The pursuers were the mother and father of a child with Down’s syndrome. They claimed that, but for clinical negligence on the part of the defenders’ employees, their son would not have been born.

Wrongful birth claims are rare. There is limited precedent in either Scots or English law. This claim arose from the failure to assess, and warn parents of, the likelihood that their child would have Down’s syndrome. Its subject matter may give rise to moral disputation; this is commendably absent from Lord Braid’s judgment.

The facts

The pursuers had three children, including one who was disabled. When the first pursuer became pregnant with their fourth child, she attended an initial booking appointment. She explained that it would be difficult to cope with a second disabled child and told the midwife that she was keen to have all fetal abnormality screening tests which were available.

The pursuers attended for a “combined test” towards the end, as they thought, of the first trimester. It was then calculated that the pregnancy was in its second trimester, and that the different tests would have to be pursued. At subsequent appointments, a series of opportunities were missed to perform tests, or to correctly assess their results, such that the pursuers were not warned that the child was likely to have Down’s syndrome.

The defenders accepted that the failures of its employees meant that “the duty of care owed to the first pursuer was not fulfilled”: [18 – 19]. They also accepted that she would have chosen to terminate the pregnancy had she known that the child would be born with Down’s syndrome.

Issues

There were two points of law for the court to decide:

  • whether the defenders owed a duty of care to the second pursuer as the child’s father; and
  • whether damages were to be assessed by reference to the child’s needs, or to his parents’ resources.

As to the first issue, there was a dispute as to the recipient of the defenders’ antenatal services (providing information, advising and conducting tests). The defenders contended that the services were solely provided to the patient, the mother – and that, accordingly, no duty of care was owed to the father. The pursuers argued that the services were provided to both parents, and that the defenders could have discharged the duty owed to the father by providing proper advice to the mother. The parties also disagreed as to whether the father was a primary victim or a secondary victim, whose claim would be precluded by Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1.

On the second issue, both parties accepted that the pursuer(s) were entitled to a “conventional” sum of damages to compensate them for their loss of autonomy, any suffering during the pregnancy and childbirth, and frustration. The parties also agreed that the pursuers were entitled to the additional costs of raising a child with Down’s syndrome, but disagreed as to the quantification of that loss, with the defenders averring that damages should be limited “by reference to the resources available to (or which would reasonably have been available to)” the pursuers – not including costs which the pursuers could not or would not have incurred: [49].

Judgment

On the first issue, Lord Braid noted that Scottish authority (including Anderson v Forth Valley Health Board 1998 SLT 588) and House of Lords precedent (Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52), suggested that a duty of care was owed to the father. He considered that the father was a primary as opposed to a secondary victim as – unlike in Paul – he suffered harm not “by witnessing his wife’s distress, or by the trauma caused to her, but by the trauma simultaneously caused to him”: [36].

Lord Braid further held that a duty was, on the facts, owed to the father. After reviewing the authorities, he found that it was foreseeable that the father (in addition to the mother) would suffer harm as it had been known that: he was in a stable relationship with the mother; he could reasonably expected to have had a significant physical and financial involvement in providing care for the child; and as it was the parents’ joint position that they did not wish to raise a disabled child.

The second issue, on the basis of the assessment of damages, was considered more concisely. Again following Anderson and English authorities, Lord Braid held that, in order to put the pursuers in the position in which they would have been but for the defenders’ negligence and the consequent unwanted birth of the child with Down’s syndrome, they “ought to be entitled to recover the reasonable costs of meeting [his] additional needs, that is, those caused by his Down’s syndrome”: [63]. The scope of the claim would not be limited by the pursuers’ socio-economic circumstances. The fact that there was an overlap between the pursuers’ claim (for the cost of providing care) – and the child’s hypothetical but invalid “wrongful life” claim (for the costs of the care he would require) – was immaterial: [59].

Comment

Lord Braid’s analysis adds significantly to the limited caselaw on wrongful birth claims – and particularly those brought following a failure to warn of a child’s potential disability (as opposed to a failure to conduct sterilisation operations competently). The analysis of the father’s position is particularly interesting. Lord Braid’s finding that a duty of care existed, notwithstanding that only the mother was the defenders’ patient, builds on and clarifies the authorities. This was a first instance decision which may be subject to appeal. Future cases might be distinguished where it is less clear that the parents have made a joint decision that they wanted to avoid having a disabled child.

In considering the father’s position, it must be recalled that this is a decision under Scots law. The father’s claim was, in large part, for solatium (compensation for emotional harm or psychological distress) and lost earnings: [3]. Solatia awards are unavailable to English claimants; lost earnings might be irrecoverable as pure economic loss.

Lord Braid’s analysis of the basis for assessing damages avoids creating an uncomfortable precedent under which richer victims of torts would be entitled to a greater sum in damages because they would have been able to afford, for instance, more equipment required to care for their child. The defenders’ arguments, if accepted, could have deprived poorer pursuers of funds for which they had no less need. This would have been entirely unsatisfactory. The judgment leaves open a question as to whether pursuers’ recoverable losses are limited to the sums that would have been expended during their lifetimes – an issue which could be impactful on how parents’ claims are presented and valued.