Kealey v. Berezowski (1996), 30 O.R. (3d) 37 (Ct. J.(Div. gén.))

  • Document:
  • Date: 2018

Kealey et al. v. Berezowski et al. [Indexed as: Kealey v. Berezowski]

30 O.R. (3d) 37

[1996] O.J. No. 2460

Court File No. 93-CQ-64495

Ontario Court (General Division), Lax J.

July 4, 1996

Torts — Negligence — Medical malpractice — Failed sterilization procedure — Unwanted pregnancy — Parents of two healthy children deciding not to have more children and requesting defendant doctor to perform sterilization — Defendant negligently performing sterilization procedure — Plaintiffs conceiving, and child born healthy — Plaintiffs financially capable of raising child and after initial surprise of discovering unwanted pregnancy, plaintiffs welcoming birth of third child — Plaintiffs, however, suing and claiming damages for wrongful pregnancy — Plaintiff mother entitled to general damages for failed sterilization, pregnancy, labour, and delivery and for having to undergo second tubal ligation — Plaintiffs entitled to recover for lost income — Plaintiffs not entitled to damages for cost of child-rearing.

Damages — Negligence — Medical malpractice — Failed sterilization procedure — Unwanted pregnancy — Damages — Parents of two healthy children deciding not to have more children and requesting defendant doctor to perform sterilization — Defendant negligently performing sterilization procedure — Plaintiffs conceiving, and child born healthy — Plaintiffs financially capable of raising child and after initial surprise of discovering unwanted pregnancy, plaintiffs welcoming birth of third child — Plaintiffs, however, suing and claiming damages for wrongful pregnancy — Plaintiff mother entitled to general damages for failed sterilization, pregnancy, labour, and delivery and for having to undergo second tubal ligation — Plaintiffs entitled to recover for lost income — Plaintiffs not entitled to damages for cost of child-rearing.

The plaintiffs KK and WK, who were the parents of two healthy children, decided that they did not want any more children, and, at KK’s request, the defendant Dr. B performed a tubal ligation sterilization procedure on her. The objective of this surgical procedure was to place two clips known as “Filshie clips” around KK’s fallopian tubes and cause the tubes to occlude. The procedure failed. Terminating the pregnancy and adoption were rejected, and, after the initial shock of discovering the pregnancy, the plaintiffs welcomed the birth of another child.

KK gave birth to AK, a healthy child, whom they loved and whom they were financially capable of rearing. The plaintiffs, however, sued Dr. B for negligence, and they claimed damages, including a claim for the cost of rearing AK.

Held, there should be judgment for the plaintiffs.

There was no way to conclusively determine how the pregnancy occurred. The most likely explanation was that Dr. B failed to apply a Filshie clip to KK’s right fallopian tube or she applied it in a way that it did not fully occlude this tube. Dr. B’s liability was established.

The plaintiff KK was entitled to general damages of $30,000 resulting from the failed sterilization, the pregnancy, labour, and delivery and for having to undergo a second tubal ligation. The plaintiffs were each entitled to recover for lost income for special damages, as agreed. The plaintiffs, however, were not entitled to damages for the cost of child-rearing.

In discussing damages, there is a distinction between: (1) a “wrongful birth” case, where, from a planned pregnancy, a child is born with birth defects; (2) a “wrongful life” case, where the child is born with defects, and the parents, because of the doctor’s negligence, have been denied the opportunity to end the child’s life; and (3) a “wrongful pregnancy” case, where the parents allege that the defendant’s negligence has caused an unwanted pregnancy and birth. The immediate case was a wrongful pregnancy case. In Canada, there is no unified approach to the award of damages for wrongful pregnancy nor to the extent of the damages. Courts in Canada, England, and the United States have applied three main approaches to awarding damages for such cases: (1) total recovery, which allows recovery based on ordinary principles of tort law; (2) “offset/ benefits”, which permit recovery for birth costs and the costs of child-rearing but deducts the benefits which the birth and rearing of a child normally bring to parents; and (3) “limited damages”, which permit recovery for damages consequent on the pregnancy of the child but not damages for child-rearing costs.

None of these approaches was free from difficulty, and the principles of public policy or of negligence law were both inadequate for the task of providing unproblematic guidelines. In the case of public policy, arguments could be advanced to both support and to deny recovery for child-rearing costs since, on the one hand, public policy favours sensible family planning and does not impose children on people contrary to their choice, while, on the other hand, children are regarded as beneficial and are very prominent features in the still cherished notion of family. As for tort law, a wrongful pregnancy case raised questions at the intersection of the law about liability and damages. In terms of its legal problems, a wrongful pregnancy claim was analogous to a tort claim for pure economic loss in that the costs for which compensation is sought do not flow from any physical injury to the child but arise from economic costs to the parents. In responding to this claim, the total recovery approach views compensation for child-rearing costs as a logical consequence of the tort principle that the tortfeasor bear responsibility for the costs occasioned to the plaintiff by the wrong. However, in the case of an unwanted pregnancy, this approach assumes, counter- intuitively, that the birth of a healthy child can constitute an injury. The total recovery approach was flawed and confused the principles of tort recovery with the assessment of damages. It failed to answer troubling questions about the appropriateness of applying standard rules about mitigation to the circumstances of an unwanted pregnancy, and, in its quest for perfect compensation, it led to the “offsets/ benefits” approach, which was unacceptable. Offsetting benefits raised the unpalatable prospect that a “beneficial” child would offset any damages and a greater recovery would go to parents who, lacking any affection for the child, were able to demonstrate that the unwanted child was of no value to them.

In the immediate case, it was difficult to characterize the birth of AK as an injury. From the time of learning of the impending birth, the plaintiffs were happy, willing, and financially able to assume the responsibilities and joys of rearing AK. A review of the case-law indicated that, in the cases where an award for child-rearing costs was made, the award followed a finding that the birth of a healthy child had actually caused harm, often because the sterilization was sought for economic reasons and the failure of the sterilization imposed an economic burden on the plaintiffs. It was not proper to analyze the birth of a child in terms of benefits, but a child’s birth does create responsibilities. In wrongful pregnancy cases, the question then becomes to what extent, if at all, the defendant’s negligence impairs the plaintiff’s ability to meet those responsibilities to the unplanned child or compromises the relationship of mutual support and dependency between parent and child. Under this fact-specific approach, for which the reasons for originally seeking the sterilization would be relevant facts, the court is required to determine as nearly as possible whether the failed sterilization caused a genuine injury. The birth of the child by itself, however, does not constitute a harm which inevitably leads to damages. In the immediate case, the plaintiffs were not prevented from fulfilling their responsibilities and, in this case, although perhaps not in other types of cases about unwanted pregnancies, the child-rearing costs were not a compensable loss.

ACTION for damages from a wrongful pregnancy.

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O.R. (2d) 27, 139 D.L.R. (3d) 104, 22 C.C.L.T. 21 (C.A.); Mason v. Western Pennsylvania

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(3d) 1; Ratych v. Bloomer, [1990] 1 S.C.R. 940, 39 O.A.C. 103, 69 D.L.R. (4th) 25, 107 N.R.

335, 30 C.C.E.L. 161, 3 C.C.L.T. (2d) 1, 73 O.R. (2d) 448n; Rieck v. Medical Protective Co. of

Fort Wayne, Ind., 64 Wis. 2d 514, 219 N.W.2d 242 (1974); Rinard v. Biczak, 177 Mich. App.

287, 441 N.W.2d 441 (1989); Shaheen v. Knight, 6 Lycoming R. 19, 11 Pa. D. & C. 2d 41

(1957); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Stills v. Gratton, 55 Cal.

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affd [1986] 1 All E.R. 497 (C.A.); Tremblay v. Daigle, [1989] 2 S.C.R. 530, 27 Q.A.C. 81, 62

D.L.R. (4th) 634, 102 N.R. 81; Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511 (Mich. Ct. App., 1971); Turpin v. Sortini, 119 Cal. App. 3d 690, 174 Cal. Rptr. 128 (1981), revd 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982); Udale v. Bloomsbury Area Health Authority, [1983] 2 All E.R. 522, [1983] 1 W.L.R. 1098, 127 Sol. Jo. 510 (Q.B.); University of Arizona v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Walkin v. South Manchester Health Authority, [1995] 4 All E.R. 132 (C.A.); Watkins v. Olafson, [1989] 2 S.C.R. 750, 39 B.C.L.R. (2d) 294, 61 Man. R. (2d) 81, 61 D.L.R. (4th) 577, 100 N.R. 161, [1989] 6 W.W.R. 481, 50

C.C.L.T. 101; Wilber v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (Ark., 1982); Wilczynski v. Goodman, 73 Ill.App. 3d 51, 391 N.E.2d 479 (1979) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 215 Family Law Act, R.S.O. 1990, c. F.3, ss. 31, 32, 61(2)(e) Authorities referred to Bickenbach, J.E., “Damages for Wrongful Conception: Doiron v. Orr” (1979-90), 17

U.W.O.L. Rev. 493 Chapman, B., “Limited Auditor’s Liability: Economic Analysis and the Theory of Tort Law” (1992), 20 Can. Bus. L.J. 180, p. 208-14 Douthitt, R.A., and Fedyk, J., The Cost of Raising Children in Canada (Markham: Butterworths, 1990) Scheid, J.D., “Benefits vs Burdens: The Limitations of Damages in Wrongful Birth” (1984-85), 23 J. Fam. Law 57, pp. 59- 60 Social Infopac Study, Social Planning Council of Metropolitan Toronto, vol. 11, No. 2, April 1992 Waddams, S.M., The Law of Damages, 2nd ed. (Aurora: Canada Law Book, 1995), para. 14.420

Roderick M. McLeod, Q.C., and Michael Kerr, for plaintiffs. Sheena MacAskill and Karen F. Douglas, for defendants.

LAX J.: — This case raises a novel issue. It involves a consideration of the damages which are recoverable for a wrongful pregnancy. The facts are straightforward. Kimberley and Kevin Kealey are the parents of three healthy daughters: Brittany, Megan and Ashley. In 1991, when Brittany was four years of age and Megan was two years of age, Mr. and Mrs. Kealey decided that they liked the size of their family and did not want more children. Specifically, Mrs. Kealey did not wish to undergo another pregnancy. At her request, she was referred by her family doctor to the defendant physician in this action and Dr. Berezowski performed a sterilization procedure on Mrs. Kealey in July 1991. The procedure is referred to as a tubal ligation. The procedure failed and, in September 1992, Mrs. Kealey gave birth to a third daughter. Ashley is a healthy, normal child and much loved by her parents. Nevertheless, the Kealeys have pursued this action (the action was discontinued against the hospital) alleging that Dr. Berezowski was negligent in

performing the tubal ligation. The damages claimed include a claim for the cost of rearing Ashley.

In Doiron v. Orr (1978), 20 O.R. (2d) 71, 86 D.L.R. (3d) 719 (H.C.J.), a claim of this nature was advanced and, in obiter, was rejected as being “grotesque”. There, it was found that the plaintiff’s pregnancy did not occur as a result of the physician’s negligence. Here, I have concluded that Dr. Berezowski was negligent and that the plaintiffs are entitled to damages which I assess at

$40,094.03. For reasons that are different from those of Garrett J. in Doiron, I have concluded that no damages are recoverable for the cost of raising Ashley.

LIABILITY

The Filshie Clip Procedure

The tubal ligation which was performed on Mrs. Kealey was a Filshie clip procedure. In this procedure, the patient is placed under general anesthetic and two incisions are made in the belly. The abdomen is insufflated with carbon dioxide and a trocar and laparascope are inserted through one opening. A laparascope is somewhat like a telescopic camera and permits the surgeon to view the contents of the abdomen. A Filshie clip applicator is inserted through the other opening. The medical evidence established that the steps which are required to successfully perform this procedure are:

  1. The relevant structure, in this case, the fallopian tube, is identified through the laparascope.

  1. The fallopian tube is placed in the Filshie clip applicator and the tube is followed to its fimbriated end.

  1. The Filshie clip applicator is then moved along the tube to an appropriate position on the tube in preparation for the application of the clip. There is some variation in the position on the tube where the clip may be applied, but most surgeons prefer applying the clip on the isthmic or narrowest portion of the fallopian tube.

  1. The applicator is squeezed to a half-closed position and the surgeon verifies that the entire width of the tube is within the Filshie clip.

  1. The applicator is squeezed to a fully-closed position. This has the effect of releasing the clip.

  1. Following occlusion of the tube, the tube is again followed to its fimbriated end to verify that the clip has been placed on the correct structure.

The procedure is then repeated with the other fallopian tube. The occlusion of both tubes takes about 10 minutes.

If the Filshie clips are properly applied, the effect is that the blood supply to that portion of the tube is cut off and necrosis occurs. In most cases, the two parts of the tube will separate, the ends become blunted, and the clip will remain attached to one end on ghost tissue.

The Filshie clip procedure, as with all sterilization procedures, has a failure rate. Failures may be caused by method error or by operator error. Method errors, which account for about one-third of the failures, can arise through mechanical failure of the clip or applicator or through fistula formation. Mechanical failures may arise if the clip does not close properly or is misaligned. A fistula is a microscopic opening which is not visible to the naked eye. Failures can also occur and pregnancy result through the natural process of reanastomosis. With this kind of failure, occlusion of the tube is accomplished, however, the two severed ends of the tube spontaneously re-join.

Most failures of the Filshie clip procedure are caused by operator or surgical error. Normally, this occurs either because the physician does not identify the correct structure or because the clip is applied in a manner that does not fully encircle the tube. As the intended purpose of the procedure is to occlude both fallopian tubes, this must be accomplished for the procedure to succeed. If this is accomplished, but pregnancy occurs, the standard of care is nevertheless met. In this case, there is no disagreement that if Mrs. Kealey’s pregnancy resulted from a method failure or a reanastomosis, the defendant has no liability. There is also no dispute that Dr.

Berezowski performed the procedure correctly on the left fallopian tube. At issue is whether or not the tubal ligation which she performed on the right fallopian tube conformed to the procedure described above and meets the standard of care.

Theories of Plaintiff and Defendant

There is no way to conclusively determine how Mrs. Kealey’s third pregnancy occurred and the medical evidence which was offered was conflicting. Different theories were advanced. It was the plaintiffs’ position that Dr. Berezowski either failed to correctly identify the right fallopian tube and inadvertently applied the Filshie clip to an adjacent structure known as the round ligament, or that she clipped the right fallopian tube and the round ligament together but, in so doing, she did not fully occlude the right fallopian tube. It was the defendant’s theory that Dr.

Berezowski correctly applied the Filshie clip to the right fallopian tube, but that it subsequently slipped out of the clip, possibly as a result of a fold of peritoneum pulling the clip loose from the tube. It was also postulated that Mrs. Kealey could have become pregnant as a result of a fistula in the left or right fallopian tube or from a mechanical failure of the clip or applicator. A final theory was that the clip appropriately severed the right fallopian tube but that reanastomosis had occurred.

Application of Facts to Theories The Witnesses

There were four doctors who testified: Dr. Berezowski, Dr. Usher-Owen (who performed the re- sterilization), Dr. A.M. Addison, who testified as an expert witness on behalf of the plaintiffs, and Dr. H.H. Allen who testified as an expert witness on behalf of the defendant. Neither Dr.

Addison nor Dr. Allen had the opportunity to examine the plaintiff and their evidence was based on their understanding of the facts as reflected in the medical records and their experience with the Filshie clip procedure. Dr. Berezowski has no independent recollection of the procedure which she performed on Mrs. Kealey on July 16, 1991. Her evidence was based on her operative

note and on her normal practice. Dr. Usher-Owen’s evidence was based in part on her recorded observations at the time of the re-sterilization and in part on her recollection of observations made at that time. Finally, Mrs. Kealey’s own recollections of her conversations with the two doctors with whom she consulted are of some assistance in assessing the medical records and notes as well as the recollections and theories of the doctors.

The Operative Records

It was agreed by all doctors that Dr. Berezowski’s operative note dated July 16, 1991, and likely dictated immediately following the surgery, records a tubal ligation which was performed in accordance with the standard of care. Although the note describes each clip being “attached to the middle” of each tube, Dr. Berezowski’s evidence was that it was her invariable practice to place the clip on the isthmic portion of the tube, about three to four centimetres distal from the cornua of the uterus. The round ligament is a fibro-muscular structure which is in close proximity to the fallopian tube at the isthmic portion of the tube. Although the fallopian tube is thinner and ribbon-like and is uniquely identified by its fimbriated ends, both structures are roughly the same colour and approximately the same diameter at the isthmic portion of the tube. If Dr. Berezowski placed the Filshie clip on the round ligament in error or did not position the clip so that it fully encircled the right fallopian tube, all doctors agree that this falls below the standard of care. The written records of Dr. Usher- Owen bear directly on this issue.

Mrs. Kealey became a patient of Dr. Usher-Owen on referral from her family physician, Dr. D. Emslie. At the consultation with Dr. Usher-Owen on November 23, 1992, Mrs. Kealey specifically requested that Dr. Usher-Owen attempt to determine why the first procedure had failed. In a letter to Dr. Emslie written that day, Dr. Usher-Owen writes:

I saw Kimberley Kealey on the 23rd of November. Kimberley is a young girl who had a tubal ligation in July of last year. She must have had a reanastomosis and managed to conceive in December . . .

I will have a good look with the laparascope and make sure that I put the clips near to the cornual portion of the uterus to make sure that she does not have a second failure. I will make sure that you receive a copy of the operative summary.

The relevant portion of Dr. Usher-Owen’s operative summary states:

[T]he laparascope was inserted and on visualization her uterus and ovaries were normal. The right fallopian tube was intact and one could see the Filshie clip on the round ligament on that side. On the left side however the fallopian tube was severed where the clip had been and you could see the tube blunted portions proximally and distally . . . [F]ilchie clips were applied to the mid portion of the right fallopian. The left had been previously severed. It was obviously ligated and a clip was therefore not placed on the left side . . .

The operative notes of Dr. Berezowski and Dr. Usher-Owen are irreconcilable. Dr. Berezowski’s note records an apparently properly performed tubal ligation with clips applied to both tubes. Dr. Usher-Owen’s note records an apparently properly performed tubal ligation of the left fallopian

tube but not of the right fallopian tube. How then did the clip which was meant to be on the right fallopian tube find its way to the round ligament?

Post-operative Events

Immediately following the surgery, Dr. Usher-Owen drew a sketch for Mrs. Kealey as an aid to explain what she had observed through the laparascope. Although the sketch is not anatomically correct, it shows the clip “on the round ligament” rather than on the right fallopian tube.

Mrs. Kealey saw Dr. Usher-Owen again for a post-operative visit on January 12, 1993. Dr. Usher-Owen’s note of that visit is reproduced below:

Postoperative check:

Patient was in today for a postop check. She tolerated the procedure well and had no problems following surgery. On examination both incisions were well healed.

PLAN: I went over the operative findings with the patient and explained how easy it is to apply the Filshie clip to the round ligament, particularly following a recent delivery as they so closely resemble each other. I also explained that there is no telling whether the clip caught the round at the time of the procedure or just slipped with the peritoneum with time and in fact spontaneous reanastomosis had occurred. The patient was already fully aware of this as it was explained to her by the surgeon who did the original procedure as a possible complication of surgery.

In fact, neither of these risks was explained to Mrs. Kealey by Dr. Berezowski as a possible complication of the surgery.

Within weeks of this visit, the statement of claim in these proceedings was issued. It was Dr. Usher-Owen’s evidence at trial that, had she known that litigation was contemplated, her observations during surgery and her note reflecting these observations would have been more detailed. I find this difficult to accept. Dr. Usher-Owen knew that her patient wanted to determine why the first tubal ligation had failed. Dr. Usher-Owen assured both Mrs. Kealey and Dr. Emslie that she would attempt to ascertain this. In my view, Dr. Usher-Owen’s subsequent explanation of what she says she observed must be assessed in light of this. To the extent of any inconsistency or elaboration, the evidence which I believe is more reliable is the evidence of her written record made at the time.

I also think that some weight should be attached to Mrs. Kealey’s recollection of the explanations which were provided to her as to the reason for the failure. In the absence of notes, there is no reason for a physician to recall the details of conversations with patients. Although patients may sometimes misunderstand the details of information provided by a physician in a consultation, a patient is likely to recall at least the substance of the discussion. Where the patient’s recollection is supported by other evidence, there is no reason not to rely on it.

During Mrs. Kealey’s pregnancy with Ashley, Mrs. Kealey was referred to Dr. Berezowski for pain on her right side. Following investigation in June 1992, these problems were provisionally diagnosed as round ligament strain. It is clear from the evidence that Mrs. Kealey and Dr.

Berezowski discussed future family planning at this time as this is reflected in Dr. Berezowski’s consultation letter to Mrs. Kealey’s family physician. In this letter, Dr. Berezowski postulates that Mrs. Kealey’s pregnancy arose as a result of a tubal fistula. It was Mrs. Kealey’s evidence that when she consulted with Dr. Berezowski in June 1992 for these problems, Dr. Berezowski told her that the tubal ligation could have failed because she may have “clipped the round ligament with the tube, although she could not see herself doing this”. Dr. Berezowski denied making this statement to Mrs. Kealey and believed that Mrs. Kealey confused their discussion of round ligament strain.

It was Dr. Usher-Owen’s evidence that when Mrs. Kealey consulted her on November 23, 1992, she was told by Mrs. Kealey that it was her understanding that the failure was due to Dr.

Berezowski placing the clip on the round ligament. Neither Dr. Berezowski nor Dr. Usher-Owen make any reference to this in their respective consultation letters to Mrs. Kealey’s family physician. This of course was prior to the re-sterilization in November 1992. Following the re- sterilization, the explanation which Dr. Usher-Owen provided to Mrs. Kealey was given with the assistance of the diagram to which I have referred. Although I accept that the purpose of the diagram was to present the explanation in terms which a patient could understand, the diagram is consistent with Mrs. Kealey’s understanding that the sterilization performed by Dr. Berezowski failed because the clip had been applied to the right round ligament instead of the right fallopian tube. Mrs. Kealey’s understanding is also consistent with the observations made by Dr. Usher- Owen on November 25, 1992.

Position of the Clip

Following Dr. Usher-Owen’s post-operative visit with Mrs. Kealey, her next involvement in this case was in the winter of 1993 when Dr. Berezowski was served with the statement of claim in these proceedings. Dr. Berezowski testified that she called Dr. Usher-Owen to inquire about the reason for the failure. According to Dr. Berezowski, Dr. Usher-Owen told her that the right fallopian tube was intact and that the clip was on the mesosalpinx or mesentery of the fallopian tube. No notes were made of this conversation by either doctor.

It would appear that Dr. Usher-Owen’s next involvement with this case was in July 1994 when she was contacted by Mr. Kerr who is one of the solicitors for the Kealeys. A note was made of this telephone conversation which reads:

Talked with Mr. Kerr about the position of the round ligament and I admitted that I could not accurately remember this far past her surgery. The clip to my recollection was partially on the round and on the mesentery of the fallopian tube.

Dr. Usher-Owen had a subsequent telephone conversation with Mr. Kerr in November 1995. She recorded this conversation in a note. It purports to reflect her recollection of the surgery which, at this point, was three years earlier. Her note states:

. . . in July 1994 I was depending on my recollection although I believe it is accurate and that the Filsh[i]e was in close approximation with the right round ligament, attached to the broad ligament and mesentery of the fallopian tube. The clip was closed and covered with peritoneum.

At trial, she elaborated further on her evidence as to the position of the clip. She variously testified that it was “near the round ligament”, “partially across the round ligament”, “not entirely around the round ligament”, and “not encircling the round ligament”. All of these observations were made through a thin film of peritoneum which, Dr. Usher-Owen testified, is similar to viewing something through cobwebs.

It was the plaintiffs’ contention that the most reliable evidence of Dr. Usher-Owen as to the position of the clip is reflected in her operative note of November 25, 1992 and her progress note of January 12, 1993. I agree with this. I do not find it credible that Dr. Usher-Owens’ recollections of the precise location of the clip would improve and become more detailed with time. By her own admission, as reflected in her note of her telephone conversation with Mr. Kerr in July 1994, the passage of time made it difficult for her to accurately recall the precise position of the clip. If she had no accurate recollection in July 1994, some eight months following surgery, it is quite unlikely that a better recollection would emerge absent a compelling explanation. None was offered except that she did not know then that litigation was contemplated. I do not agree that Dr. Usher-Owen would have made a better operative note had she known this. While I accept that the purpose of an operative note is to record relevant medical rather than legal information, Dr. Usher-Owen knew in November 1992 that she was to determine the cause of Mrs. Kealey’s failure and resulting pregnancy and to report this to Dr.

Emslie and to her patient. It seems to me that her operative summary of November 25, 1992, which she agreed to forward to Dr. Emslie, and her consultation note of January 12, 1993 were prepared with this in mind. These documents record that the tubal ligation failed because the right fallopian tube was intact. It was intact because the Filshie clip was not on the tube but was on the round ligament. Does this mean that Dr. Berezowski applied the Filshie clip to the round ligament? This involves a consideration of two other aspects of Dr. Usher- Owen’s evidence, namely, whether the clip was closed and whether there were “markings” on the right fallopian tube.

Was the Clip Closed?

The medical evidence established that clips cannot spontaneously re-open if they properly close, nor can a clip move from one structure to another. Dr. Usher-Owen’s operative report makes no mention of whether the clip was in a closed or locked position. The omission of this detail from the operative summary does not, in my view, carry the same significance as her recorded observations regarding the position of the clip as being “on the round ligament”. Whether the clip was open or closed does have more legal than medical significance. An open clip could suggest mechanical failure of the clip or applicator. Of greater medical significance in determining the cause of Mrs. Kealey’s pregnancy was whether or not the tubes were occluded. This observation was made and recorded by Dr. Usher-Owen.

The clip is very small and the locking mechanism on the clip is minute. Following application, the locking mechanism is embedded in tissue. Both Dr. Addison and Dr. Allen testified that it is very difficult for a surgeon to visualize if the clip has properly closed. In Dr. Usher-Owen’s telephone conversation with Mr. Kerr in November 1995 which Dr. Usher- Owen recorded in a written note, she told him that “the clip was closed”. Her evidence at trial was consistent with this as is Mr. Kerr’s note of this telephone conversation. Dr. Usher- Owen’s note also states that the clip was attached to the broad ligament and mesentery of the fallopian tube which she observed through peritoneum. On this evidence, the clip was embedded in tissue. In my view, it would have been very difficult for Dr. Usher-Owen to see whether the clip was open or closed. I therefore attach little weight to Dr. Usher-Owen’s observations of the clip. Nevertheless, I think it is fair to say that, if Dr. Usher-Owen was able to observe the locking mechanism on the clip at all, her observation of a closed clip is more consistent with the clip having been applied to the wrong structure than with the other theories which were advanced. If the clip in fact was closed and had been properly applied to the fallopian tube, it should have occluded the right fallopian tube which did not occur. It seems to me that her observations of a closed clip tend to discount mechanical failure of the clip or applicator as the explanation for the pregnancy particularly when there is no evidence that the clip which was placed on the left fallopian tube did not function. In fact, the evidence is that it did function as it appropriately severed the left fallopian tube.

“Markings” on the Tube

The second aspect of Dr. Usher-Owen’s evidence which I must consider is her evidence of the “markings” or “dimpling” which she says she observed on the right fallopian tube on November 25, 1992. As with the position of the clip, this observation became more rather than less detailed with time. There is no mention of this in her operative note, her post-operative note, or her July 1994 telephone conversation with Mr. Kerr. Dr. Usher-Owen testified that she did mention this to Dr. Berezowski in their telephone conversation in the winter of 1993. Dr. Berezowski’s evidence neither confirms nor denies this as Dr. Berezowski made no mention in her evidence of this detail of her conversation with Dr. Usher-Owen. Either Dr. Berezowski has no recollection of this or Dr. Usher-Owen is mistaken in her recollection. In view of the importance of the “markings” to the defence theory, I am of the view that, had Dr. Usher-Owen mentioned this to Dr. Berezowski, she would have recalled it. I am therefore of the view that it is more likely that Dr. Usher-Owen is mistaken in her recollection.

The first written note of “markings” appears in Dr. Usher- Owen’s record of her telephone conversation with Mr. Kerr in November 1995. It is a detailed recollection. She tells Mr. Kerr that in November 1992, she observed “markings on the right fallopian tube one to one and a half centimeters distal from the cornua of the uterus”. It was the opinion of Dr. Allen that the most likely explanation for the “markings” or “dimpling” is that it is evidence of the clip having been applied to the tube. Dr. Allen thought it less likely that the “dimpling” was evidence of reanastomosis. Both he and Dr. Addison agreed that a nicking of the tube by the clip would have been evident to Dr. Berezowski and would have left more significant damage. On Dr. Allen’s theory, Dr. Berezowski appropriately applied the clip to the tube, but the tube, being a mobile structure, escaped, leaving evidence of its presence as a “marking” or “dimpling”. The defence

theory is therefore principally supported by Dr. Usher-Owen’s recollection that there were “markings” on the right fallopian tube.

I am highly doubtful that Dr. Usher-Owen would be able to recall three years following surgery that there were “markings” on the tube. If she had observed this in November 1992, I would expect her to have recorded this in her operative summary. Dr. Allen testified that the presence of “dimpling” is not clinically significant although he eventually conceded that it would have been preferable for Dr. Usher-Owen to have noted this. Dr. Addison testified that dimpling is an abnormal occurrence and ought to have been noted. In my view, even if the “dimpling” is not clinically significant from a medical perspective, it was significant here for two reasons. First, prior to the November 25, 1992 re-sterilization, it was Dr. Usher-Owen’s view that pregnancy had resulted from a reanastomosis of the right fallopian tube. This is reflected in her letter of November 23, 1992 to Dr. Emslie. The presence of “markings” on the tube does not establish that there was a reanastomosis, but it is consistent with it. Since she had theorized prior to the surgery that Mrs. Kealey’s pregnancy resulted from a reanastomosis one would have expected her to record any markings seen at the time as evidence of a reanastomosis of the right tube.

Second, Dr. Usher-Owen agreed that she would attempt to determine the cause of the failure. Following surgery, reanastomosis was one of the two explanations that she offered to Mrs.

Kealey for her pregnancy when she saw her in January 1993. Even if Dr. Usher-Owen did not find it necessary to include the observed “dimpling” in her operative summary, I would have expected her to have made mention of it in her post-operative consultation with Mrs. Kealey and it would have been reflected in her note of that visit. It clearly supported one of the explanations she offered to her patient of the reason for her pregnancy. It is my view that Dr. Usher-Owen’s failure to mention this to anyone prior to November 1995 makes this aspect of her evidence unreliable and I reject it.

If I am wrong about this aspect of Dr. Usher-Owen’s evidence and there were in fact “markings” on the tube as she says, in any event, this does not assist the defendant’s theory. Dr. Allen testified that he could think of no reason for a dimpling on the right fallopian tube other than the placement of a Filshie clip on that structure. Dr. Addison agreed that the placement of a clip on the tube would leave a mark. The difficulty is that, according to Dr. Usher-Owen, the “markings” were observed one centimetre to one-and-a-half centimetres distal to the cornua of the uterus. If Dr. Berezowski applied the Filshie clip in accordance with her normal practice, one would expect to find evidence of the dimple approximately four centimetres distal from the uterus. If she applied the Filshie clip “in the middle” as her note indicates, one would expect to find evidence of the dimple approximately six to seven centimetres distal from the uterus. There simply were no “markings” or dimple on the right fallopian tube in either of the places where Dr. Berezowski would have applied the clip.

The Fistula Theory

I turn next to a discussion of a fistulous opening as the cause of Mrs. Kealey’s pregnancy. Dr. Allen and Dr. Usher-Owen testified that it is possible that Mrs. Kealey became pregnant as a result of a fistula in the left or right fallopian tube. Such an opening would not be visible to the naked eye but would permit fertilization to occur. Dr. Usher-Owen testified that she could have injected the right fallopian tube with dye to determine the patency of the tube and would have

done so had she known that litigation was contemplated. It is not clear to me why Dr. Usher- Owen would have done this for litigation purposes but not for the purposes of advising Mrs. Kealey and Dr. Emslie of the reason for the failure and to protect Mrs. Kealey from a second failure. The evidence established that fistulae could arise on either tube. If Dr. Usher-Owen was seriously concerned about fistulae, she should have applied a second Filshie clip to the left fallopian tube which she did not do. In my view, Dr. Usher-Owen did not take these steps because she was of the view that pregnancy had resulted either from a misapplication of the clip to the round ligament or from a reanastomosis. In any event, Dr. Allen testified that fistulae are more common with the electro-coagulation method of tubal ligation. The evidence does not strongly support this theory as the likely cause of Mrs. Kealey’s pregnancy and I reject it.

“On the round ligament”

Finally, I return to the evidence of the placement of the clip. Although Dr. Usher-Owen recorded in her note that the clip was observed “on the round ligament”, her evidence at trial sought to qualify this. Her note, she said, was accurate but incomplete. Dr. Allen testified that if a Filshie clip had been applied to Mrs. Kealey’s right round ligament, he would expect to see it recorded in the operative note as “encircling the round ligament”. Dr. Addison and Dr. Allen agreed that there is no harm in clipping the round ligament with the tube. Dr. Addison testified that if he was aware of this, he would place a second clip on the tube. Dr. Allen did not think this was necessary. Dr. Addison also said that if he clipped the round ligament with the tube, he would record this in his operative note. Dr. Allen said he would not as it has no medical significance for the patient. Dr. Allen is involved in the teaching of the Filshie clip procedure to medical residents whereas Dr. Addison has more experience with the electro- coagulation method of tubal ligation. On balance, I am satisfied with the evidence of Dr. Allen on this point and conclude that the clipping of the round ligament with the tube is not a medical complication which must be recorded.

However, I do not accept Dr. Allen’s evidence that “on the round ligament” means something other than what it says. Based on Dr. Usher-Owen’s operative note, it was Dr. Allen’s view that the reference to “on the round ligament” could equally mean “on the peritoneum” or “on the mesentery”. It was his evidence that if the clip had been applied to the round ligament, the operative note would have read “across the round ligament” or “encircling the round ligament”. He did not agree that at least one meaning of “on” could mean “across”. I reject this evidence. The word “on” was consistently used throughout the viva voce evidence of the doctors and in their written reports to describe the Filshie clip procedure. It even appears in the defendant’s written argument. The procedure is described as involving the placement of the Filshie clip “on the fallopian tube”. In Dr. Allen’s report of May 3, 1995, he discusses the visualization of the fimbriated end of the fallopian tube prior to the application of the clip and states:

This is the recommended method of identifying the proper site for application of teh [sic] Filshie clip. There is no better way of ensuring that the clip is accurately applied on the tube.

(Emphasis added)

Unlike Dr. Usher-Owen’s operative summary which was not prepared in contemplation of litigation, Dr. Allen knew when he prepared his report that it would be used for the purposes of litigation. Nevertheless, his report does not say “across the tube” or “encircling the tube”. It says “on the tube”. I can think of no reason why an operative summary should be more precise in its language than a medical report prepared with litigation in mind. In my view, when Dr. Usher- Owen recorded her observation that the clip was “on the round ligament”, she meant precisely what she said.

Conclusions on Liability

The evidence establishes that Mrs. Kealey understood that there was a risk of failure with the Filshie clip procedure. There is no issue about informed consent. Dr. Berezowski gave no warranty against future pregnancies but she was under a duty to take reasonable care to perform the procedure in accordance with the accepted standard of care. The procedure is one of the more routine and less complicated procedures which obstetricians and gynecologists perform. While any of the theories advanced could account for Mrs. Kealey’s pregnancy, I am satisfied that the most likely explanation for Mrs. Kealey’s pregnancy is that it resulted from the failure of Dr.

Berezowski to apply the clip to the right fallopian tube or to apply it in such a manner that it fully occluded this tube.

The Filshie clip has the largest capacity of all the tube occluding clips which are available to physicians. Even if the clip was applied over both the fallopian tube and the round ligament, it ought to have locked over both structures and occluded the tube. Similarly, had the clip been properly applied to the fallopian tube, but caught the peritoneum, nevertheless, it ought to have occluded the tube. There is no persuasive evidence that there was a mechanical failure of the clip or applicator. It is entirely speculative. The evidence of defective clips at other hospitals and at other times is remote and arguably irrelevant. Given the proximity of the round ligament to the isthmic portion of the fallopian tube, given their resemblance in size and colour at that point, given the observations of Dr. Usher-Owen during the re-sterilization, and given that there was no failure of the clip on the left fallopian tube, I am satisfied that the weight of the evidence establishes that Dr. Berezowski was negligent in the manner in which I have described.

DAMAGES

Law

Because of the novelty of the legal point which this case raises, I begin my discussion of the damages issue by turning first to the scope of the damages which are recoverable consequent on the negligence of the defendant. A definitional framework is required as the terms “wrongful life”, “wrongful birth” and “wrongful pregnancy” are sometimes confused.

Definitions

A “wrongful birth” case normally arises in an action instituted by parents of a child who is born with birth defects as a result of a planned pregnancy. The legal basis for the cause of action

derives from the post-conception interference by the tortfeasor with the mother’s lawful right to terminate the pregnancy had an informed decision been available to her.

“Wrongful life” claims are also claims which arise in cases of planned pregnancies and where the child is born with birth defects. The distinction is that these claims are normally advanced by the infant plaintiff or on his or her behalf and sometimes together with a derivative claim by the parents. These claims can arise pre-conception as in the case of a failed sterilization or post- conception as in the case of a failed abortion or improper genetic screening. A “wrongful life” claim alleges that the tortfeasor, invariably a physician, owes a duty of care to the child which is breached by the physician’s failure to give the child’s parents the opportunity to terminate his or her life. In Canada and in many other jurisdictions, there is no independent cause of action by an injured child for “wrongful life”: Arndt v. Smith (1994), 93 B.C.L.R. (2d) 220, [1994] 8 W.W.R.

568 (S.C.), reversed (1995), 6 B.C.L.R. (3d) 201, [1995] 7 W.W.R. 378 (C.A.).

This is a case of “wrongful pregnancy”. Unlike “wrongful birth” and “wrongful life” cases, the act here complained of is always pre-conception. The claimants are parents who allege that the defendant’s negligence has caused an unwanted pregnancy and birth. The negligence often occurs through a failed sterilization or through the preparation or dispensing of a contraceptive medication. The claim has been advanced for children born healthy and for those born unhealthy. In either case, the child is unplanned. Courts have recognized the viability of this claim which may be advanced in contract or tort, although it is more usually advanced in tort. Courts have diverged on the appropriate measure of damages.

Judicial Approaches to Damages for Wrongful Pregnancy

There would appear to be three principal approaches which courts have used to deal with damages consequent upon a wrongful pregnancy. (1) Total recovery for all reasonably foreseeable damages based on ordinary principles of recovery in tort law. With this approach, damages may be recovered for the pecuniary and non-pecuniary costs associated with the birth as well as for the economic costs of raising the child. (2) The “offset/benefits” approach. Here, recovery is permitted for birth costs as well as the consequent economic costs of child- rearing.

However, the recoverable damages are offset by the benefits which the birth and rearing of a child normally brings to its parents. (3) The “limited damages” approach permits recovery for the unplanned pregnancy but not for the unplanned child. Accordingly, the damages consequent on the pregnancy and birth of the child are recoverable but no damages are awarded for the child- rearing costs. These are denied for reasons of public policy, causation or both.

  1. The “total recovery” approach

    1. United Kingdom Authorities

Since the decisions in Emeh v. Kensington & Chelsea & Westminster Area Health Authority, [1984] 3 All E.R. 1044, [1985] Q.B. 1012 (C.A.), and Thake v. Maurice, [1984] 2 All E.R. 513

(Q.B.), affirmed [1986] 1 All E.R. 497 (C.A.), the English courts have allowed recovery for child-rearing costs following a limited “offset/benefits” approach. This is discussed below in considering this approach.

    1. American Authorities

A small number of American jurisdictions have permitted total recovery embracing the view that parents have a right to recover all damages flowing proximately from the physician’s negligence: Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Stills v. Gratton, 55 Cal.

App. 3d 698, 127 Cal. Rptr. 652 (1976); Turpin v. Sortini, 119 Cal. App. 3d 690, 174 Cal. Rptr.

128 (1981), reversed 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982).

Turpin was in fact a “wrongful life” case and the child’s cause of action was dismissed. However, the court relied on Stills v. Gratton in holding that the parents had a cause of action for rearing a child who had been born with a hereditary condition of total deafness. The Custodio decision disregarded earlier American authority that no damages were recoverable for a healthy but unplanned child: see Shaheen v. Knight, 6 Lycoming R. 19, 11 Pa. D. & C. 2d 41 (1957); Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934); see also Lovelace Medical Center

v. Mendez, 805 P.2d 603 (N.M. 1991), for a more recent case allowing recovery.

In a helpful article, “Benefits vs Burdens: The Limitations of Damages in Wrongful Birth” (1984-85) 23 J. Fam. Law 57, Professor J.D. Scheid analyzes the American jurisprudence in this area. Referring to the early American cases which denied recovery, he states at pp. 59-60:

These two early cases [Shaheen and Christensen] evidenced these courts’ positions that there will be limits to the types of harm about which one may justifiably complain, to say nothing of the value judgments which both courts made as to whether or not there was in fact any harm . .

. These same philosophies echo down through the years, and during this last decade, have been alternately lauded as stating a fundamental proposition in favor of life, or decried as myopic and anachronistic.

A decision whereby recovery would be completely denied could not logically be followed after the United States Supreme Court’s decision in Griswold v. Connecticut and, eight years later, Roe v. Wade . . . As a result, the majority of states that have considered “wrongful pregnancy” or “wrongful birth” have found that a cause of action in negligence against a physician does exist when an unwanted pregnancy or birth occurs. Therefore, the question becomes:

What is the proper measure of damages?

In Professor Scheid’s view, the 1967 Custodio decision in California which first allowed recovery for child-rearing costs and the cases which have followed it, formed the philosophical basis for many courts to create a third position. The third position to which Professor Scheid refers is the “offset/ benefits” approach, which has been adopted in Quebec and in some American jurisdictions.

  1. The “offset/benefits” approach

    1. United Kingdom Authorities

The leading authorities in the United Kingdom are Emeh v. Kensington & Chelsea & Westminster Area Health Authority, supra, and Thake v. Maurice. In Emeh, the parents’ damages were found to include the costs associated with raising a congenitally disabled child born as a result of a negligently performed sterilization procedure. The court found that there was no rule of English public policy which prevented extending recovery to any foreseeable financial loss directly caused by the unexpected pregnancy and that this was so whether the child was born healthy or disabled. Purchas L.J. stated that, where there are mitigating features associated with the birth of a child, they offset and reduce the damages by “the value of the child’s aid, comfort and society during the parent’s life expectancy”. In citing with approval this extract from the American case, Sherlock v. Stillwater Clinic, 260 N.W.2d 169 at p. 170 (Minn., 1977), to which I refer later, Justice Purchas appears to be adopting the “benefits” approach found in some of the American authorities. However, Waller and Slade LL.J. do not otherwise comment on this approach.

Thake v. Maurice concerned the birth of a sixth, healthy child, following a failed vasectomy. At trial, Pain J. found that all the intangible burdens and benefits ended up cancelling each other out and therefore refused to award damages for the pain and suffering associated with pregnancy, labour and delivery. However, he awarded damages for the modest costs of the child’s birth and upkeep. On appeal, the court restored damages for pain and suffering and held that the joys of a healthy child should be offset against the time, trouble and care involved in her upbringing, for which no claim had been made in that case (per Kerr L.J. at p. 509):

The joy of parents at the birth of a healthy child, though with the consequent time and trouble which needs to be devoted to its upbringing, are both virtually impossible to assess in terms of money. It is therefore right that in law they should be treated as cancelling each other out.

On the issue of whether, as a matter of public policy, damages may not be awarded for the birth of a healthy child, Kerr L.J. stated at p. 500:

I pause at this point, since this issue has not been reargued on this appeal. It is concluded at this level by the subsequent decision of this court in Emeh . . . in which it was held, in agreement with the judge’s conclusion on this issue in the present case, that there is no such rule of public policy. Counsel for the appellant [defendant] has, however, reserved the point if the present case should go to the House of Lords.

As far as I am aware, this issue has not been considered by the House of Lords. The current English position therefore would appear to allow full recovery for child-rearing costs. The “benefits” approach, followed in some American jurisdictions and discussed below, is only partially adopted. In the United Kingdom, it is confined to offsetting the time, trouble and care devoted to the child’s upbringing and treated as cancelling each other out. However, subject to the dictum of Purchas L.J. in Emeh, it does not extend to offsetting the totality of the plaintiff’s damages. Notwithstanding, in Allen v. Bloomsbury Health Authority, [1993] 1 All E.R. 651 (Q.B.), Brooke J. appears to have based his decision to allow damages for the education and upkeep of the child on the basis of the mother’s disparaging evidence concerning the value (or lack of value) of the child. It appears that this approach is not followed and the notion that an

unwanted pregnancy creates two different causes of action, one for the personal injuries leading up to delivery and the other for the economic loss as suggested by Brooke J. in Allen, was specifically rejected by the English Court of Appeal in Walkin v. South Manchester Health Authority, [1995] 4 All E.R. 132 at p. 139.

    1. American Authorities

Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511 (Mich. Ct. App., 1971), is the leading American case on the “benefits” approach. There, the plaintiff, a 37-year-old mother of seven children became pregnant and gave birth to an eighth healthy child following the negligent filling of a prescription for birth control pills. The court stated that Mrs. Troppi was entitled, if she could prove breach of duty on the part of the pharmacist, to recover her medical and hospital expenses, loss of wages, and general damages for pain and suffering associated with labour and childbirth. The court then went on to consider whether the child-rearing costs were compensable and concluded that they were. The State of Michigan had recently enacted legislation which fostered contraception. The court noted that the state’s public policy as expressed in the legislation permitted, and was consistent with, recovery. Nevertheless, as it regarded the plaintiffs’ protected interests as unitary, child-rearing costs being one aspect only of the damages which she had sustained, it followed that it should apply the “same interest” rule derived from

the American Restatement of the Law of Torts, 920, to the totality of the damages: “Accordingly, the benefits for the unplanned child may be weighed against the elements of the claimed damages” (per Judge Levin at Mich. App. 225, N.W. 2d 518).

Troppi v. Scarf was followed in Stills v. Gratton, Sherlock v. Stillwater Clinic, Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (Conn., 1982); Hartke v. McKelway, 707 F.2d 1544 (D.C. Circ.,

1983); and, more recently, in Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (Mass., 1990).

  1. The “limited damages” approach

    1. United Kingdom Authorities

In Udale v. Bloomsbury Area Health Authority, [1983] 2 All E.R. 522, [1983] 1 W.L.R. 1098 (Q.B.), the court rejected the recovery of child care costs for a healthy but unplanned child on the grounds that it would be contrary to English public policy. This position would appear to no longer be the law in the U.K. in view of the decision of the English Court of Appeal in Thake v. Maurice approving Emeh and doubting Udale. Nevertheless, this decision provides a useful summary of the public policy reasons which have been advanced in many American and some Canadian jurisdictions for limiting damages to those associated with pre- and post-natal medical and other expenses, pain and suffering during pregnancy and delivery, emotional distress and loss of consortium. They are: (1) the undesirability of a child learning that a court has declared its birth to be a mistake; (2) little or no damages would be awarded for loving mothers but generous compensation would flow to those who disparaged and rejected their child; (3) physicians would be under pressure to encourage late abortions to avoid claims; (4) the birth of a child is a blessing and an occasion for rejoicing.

    1. American Authorities

The “limited damages” approach is followed in the vast majority of American jurisdictions and damages are awarded only for the pain and suffering associated with labour and delivery and a second sterilization procedure. The reasons variously offered are the sanctity of life: Wilczynski

v. Goodman, 73 Ill.App. 3d 51, 391 N.E.2d 479 (1979); the benefits of a healthy child outweigh any economic loss: Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (Pa. Super., 1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex. Ct. App., 1973); Rinard v. Biczak, 177 Mich. App. 287, 441 N.W.2d 441 (1989); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo., 1982); the protection of the mental and emotional health of the child:

Wilber v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (Ark., 1982); McKernan v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984); it is unreasonable to shift the burden to the negligent physician thereby creating a windfall for the parents which is disproportionate to the physician’s culpability: Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64 Wis. 2d 514, 219 N.W. 2d 242 (1974); damages are too speculative or remote:

McKernan v. Aasheim, supra; Girdley v. Coats, 825 S.W. 2d 295 (Mo., 1992).

Cockrum v. Baumgartner, 95 Ill.2d 193, 447 N.E.2d 385 (1983), is a decision of the Illinois Supreme Court which reversed the decision of the Illinois Appellate Court allowing the expenses of educating a healthy child following a failed vasectomy. The judgment of Mr. Justice Ward of the Supreme Court is instructive both for its review of the American jurisprudence and for its analysis of the tort principles which have led courts to adopt either the “total recovery” or the “offset/ benefits” approach. In rejecting both of these approaches, the court chose to limit the consequences of the defendant physician’s wrongful act by simply making a judgment (per Ward J. at p. 200 Ill.2d, p. 389 N.E.2d):

One can, of course, in mechanical logic reach a different conclusion, but only on the ground that human life and the state of parenthood are compensable losses. In a proper hierarchy of values the benefit of life should not be outweighed by the cost of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and broader still, our civilization.

The court concluded that, in the final analysis, the application of strict tort principles to wrongful pregnancy cases was problematic (p. 203 Ill.2d, p. 390 N.E.2d):

The reasons given for denying so-called rearing costs are more convincing than the reasons for abstractly applying a rule not suited for the circumstances in this character of case.

Canadian Authorities

In Canada, there is no unified approach to the award of damages for wrongful pregnancy nor to the extent of the damages. It has been considered in obiter by the Alberta Court of Appeal where it was stated that a claim for rearing a child was “on the face of it ridiculous”: Cryderman v.

Ringrose, [1978] 3 W.W.R. 481, 89 D.L.R. (3d) 82. In Newfoundland, the Trial Division refused to allow child-rearing costs: Keats v. Pearce (1984), 48 Nfld. & P.E.I.R. 102. Noel J. did not think that the mother had suffered any injury (“[T]his was clearly an unwanted pregnancy — not an unwanted child” (at pp. 103-04)). He was of the view that the mother should have mitigated

her loss by arranging for an adoption of the child. The question remains open in New Brunswick: Grey v. Webster (1984), 14 D.L.R. (4th) 706, 57 N.B.R. (2d) 296 (Q.B.).

In Ontario, Garrett J. in Doiron v. Orr refused recovery (the claim being “simply grotesque” (at

p. 74 O.R., p. 723 D.L.R.)) and, in Biggs v. Richter, Court File No. 220544/84, Ont. Dist. Ct., judgment rendered October 23, 1989, Judge Webb did not give an opinion on the statement of Garrett J. in Doiron as there was inadequate evidence to permit an assessment of these damages. In both Doiron and Biggs, the actions against the doctors were dismissed as negligence was not established.

In British Columbia, future care costs were allowed where the defendant doctor caused injuries to the foetus in failing to carry out a therapeutic abortion and the child was born with severe disabilities. The British Columbia Supreme Court adopted the reasoning of the English Court of Appeal in Emeh and found the defendant physician liable for all costs associated with the child’s birth. The Court of Appeal affirmed that ordinary negligence principles applied: Cherry (Guardian ad litem of) v. Borsman (1990), 75 D.L.R. (4th) 668, 5 C.C.L.T. (2d) 243 (B.C.S.C.),

additional reasons at (1991), 75 D.L.R. (4th) 668 at 720, 5 C.C.L.T. 243 at 298, varied (1992), 94

D.L.R. (4th) 487, 12 C.C.L.T. (2d) 137 (B.C.C.A.).

In Quebec, Desch nes C.J. was called upon to consider the issue in Cataford v. Moreau (1978), 114 D.L.R. (3d) 585, 7 C.C.L.T. 241 (Que. Sup. Ct.) (in translation). The court concluded that it was not contrary to public policy in Quebec to grant damages following the birth of a healthy child but did not decide whether, in law, the costs of the child constituted a damage. However, damages were assessed. When the costs of maintenance were offset by the statutory social benefits received for the child, there was a difference of about $1,000. The court concluded that the moral and financial benefits which the child would provide to his parents would exceed this amount. In effect, the court adopted the “offset/benefits” approach.

This was also the approach which the Quebec Court of Appeal followed in Suite v. Cooke, [1995] A.Q. No. 696. There, damages were agreed but the court held (per Chamberland J.A.) that in a case of this kind, the court should evaluate:

. . . the whole of the situation; the costs of maintenance, the financial support which the child could eventually bring to his parents, the inconvenience and the moral sufferings which the presence of an undesired child in the family will cause, the joys and the comfort which this same child will bring . . .

Analysis

The authorities which I have reviewed amply illustrate that there is no approach which is free from difficulty. A claim for child-rearing costs juxtaposes the private world of tort law with a world that is imbued with personal and public views of morality. It asks whether tort law is bold enough or foolish enough to embrace as a harm that which we so clearly regard as a good. It demands that we examine whether tort theory is compromised or validated depending on the approach which is chosen. The claim raises questions about the nature of injury, the limits of the doctrine of foreseeability and the congruence of this doctrine with the assessment of damages.

Courts have struggled with the novel question at issue in this case because, in the absence of legislative guidelines for assessing damages of this kind, they are driven back on standard principles of negligence law or on public policy. Both may be inadequate for the task.

In the case of public policy, arguments can be advanced to both support and to deny recovery for child-rearing costs. It is clear that there is no rule of public policy in Ontario requiring people to have children or preventing them from deciding not to have children or determining the number of children they choose to have. A woman’s right to reproductive choice is lawful and increasingly recognized: R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385; Tremblay

v. Daigle, [1989] 2 S.C.R. 530, 62 D.L.R. (4th) 634. Parents’ rights to plan and limit, if they so choose, the size of their families are the accepted community norms of today.

The time has long passed when a court is free (if indeed, there ever was such a time) to dismiss a claim such as this as “grotesque” or “ridiculous”. We have reliable birth control and sterilization procedures and family planning is both accepted and encouraged. The norms and standards of community which informed the values of an agrarian and religious society have been replaced with the economic pressures to produce an educated and skilled labour force. Families are smaller and expensive to maintain. Children are no longer an economic unit of production. On the contrary, they are an economic drain for some considerable number of years. All of this is true.

However, it is also true that the notion of family however configured, whether nuclear or extended, whether partnered or single, whether heterosexual or same-sex, whether conventional or unconventional, remains the central and cherished structure in our lives. And, for the most part, children figure very prominently at its core without regard to their economic and sometimes emotional costs. In our hierarchy of societal values, the benefits which a child brings are regarded as so essentially worthwhile that we tend to regard those who are childless by choice as unusual and we extend our comfort to those who long for a child but are unable to have one. In short, the love, companionship, affection and joy which a child brings is thought to so outweigh the burdens that we bridle at the thought that the law could be so foolish as to regard this as a compensable loss.

In Ontario, public policy recognizes the inherent value of children. The loss of a child’s “guidance, care and companionship” is compensable by virtue of s. 61(2)(e) of the Family Law Act, R.S.O. 1990, c. F.3, and pecuniary and non- pecuniary losses are recoverable upon the wrongful death of a child: Mason v. Peters (1982), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104 (C.A.). How can it then be that the wrongful birth of a child is a compensable loss? The answer to this, in my view, does not lie in public policy. On the one hand, public policy favours sensible family planning and does not impose children on people contrary to their choice. On the other hand, children are regarded undeniably by the state as beneficial and it is the loss of a child, not the birth of a child, which, in law, is a compensable wrong. Both views, contrary though they may be, are supported not only by public policy but also by public sentiment. Accordingly, it falls to tort law to attempt to determine whether this is a compensable loss. This requires a fuller understanding of the nature of the loss and the legal principles which favour or militate against compensation.

One of the difficulties in the kind of claim which is here advanced is that it cuts not only at the intersection of contract and tort but also at the intersection of tort and damages. As observed by Professor Steven M. Waddams in The Law of Damages, 2nd ed. (Aurora: Canada Law Book, 1995), para. 14.420:

[I]n torts . . . it is impossible to draw a clear dividing line between questions of liability and damages. This is because the test of foreseeability is used in the law of negligence to determine not only the extent of the damages payable by the defendant but whether there is a sufficient legal nexus between plaintiff and defendant in the first place, whereas the legal nexus in a contract case is determined by the existence of the contract itself.

The claim advanced in this case is, in my view, analogous to one of pure economic loss. While it is true that the claim is framed as a foreseeable loss arising from negligence, its essential character and purpose is to redress injury to an economic interest. The economic costs of the future care of a wrongfully injured plaintiff is a familiar one in the law of damages where there is physical injury to the plaintiff. However here, the care costs are claimed in the absence of any injury to the child although they are sought for her benefit. It is in this sense that I say that the costs are analogous to pure economic losses. They do not flow from an injury to the child. They arise as a result of an “injury” to her parents. I turn then to consider whether the claim can be supported on the basis of negligence principles.

It is trite law that the tortfeasor takes the victim as she is and if a duty of care is owed and breached, all reasonably foreseeable losses which are proximately caused by and flow from the wrong are recoverable. Those courts which have adopted the “total recovery” approach have been willing to trace the foreseeability doctrine down an endless path. Compensation for child- rearing costs is seen as the inevitable result of the rigorous and logical application of the tort principle that the tortfeasor bear responsibility for all of the costs which have been visited on the plaintiff by the wrong. The “total recovery” approach depends then on the strict application of the foreseeability doctrine without regard to whether or not the “injury”, in this case, the birth of a healthy child, bears any relationship to the wrongdoing or to the legally protected interest. It assumes, counterintuitively, that the birth of a healthy child can constitute an injury. It seems to me that this approach, when applied strictly to wrongful pregnancy cases, is flawed. It confounds the principles of tort recovery with the assessment of damages. It also leads, in its quest for perfect compensation, to the “offset/benefits” approach which is frankly unacceptable. Finally, it fails to answer the troubling mitigation issues which arise in this kind of case.

In this case, the facts are that the Kealeys have a combined family income of about $100,000. The sterilization was sought because Mrs. Kealey decided that “this body wasn’t having any more children”. Terminating the pregnancy was not considered as an option and the evidence is that “after the initial shock” of discovering the pregnancy, both parents not only accommodated to the idea, but welcomed it, even wondering if their third child might be “their boy” to complete their family. Mrs. Kealey reasonably expected not to be pregnant again and, for that harm, she should be fully compensated. But, on these facts, it is difficult to characterize the birth of Ashley as an injury. As unplanned as her conception may have been, the injury has been unexpectedly transformed into a happiness which both she and her husband agree provides priceless intangible

joys. From the time they learned of Ashley’s impending birth, they have been willing and able to assume all of the responsibilities of her rearing, financial and otherwise.

Should any of this matter? If foreseeability is the sole determinant of recovery, these facts should be neutral. However, if the assessment of damages associated with a child’s birth is considered on the basis that damages are awarded to compensate for an injury, not in the abstract, but with reference to the purpose of the activity, in this case, the sterilization, these facts may very well matter. The proposition can be looked at in another way. It is not enough that the plaintiff’s injury was foreseeable in order to give rise to this head of damage. The plaintiff’s injury must fall within the scope of the wrongdoing in the sense that the risks created by the activity, negligently performed, occasioned the consequences which flow from it. This analysis, borrowed from a consideration of a different issue, namely, the limitations on recovery for negligent misstatement, asks the question: Despite foreseeability, are these the kind of damages for which the defendant physician can be held liable?; B. Chapman, “Limited Auditor’s Liability: Economic Analysis and the Theory of Tort Law” (1992), 20 Can. Bus. L.J. 180 at pp. 208-14.

Professor Chapman’s article analyzes the decision of the House of Lords in Caparo Industries plc. v. Dickman, [1990] 1 All E.R. 568 (H.L.), and considers the relationship between negligent activity embarked on for one purpose which results in harm to a different interest. In Caparo, financial statements which were created for the purpose of providing information to shareholders at an annual meeting were negligently prepared. A shareholder relied on and used the information, not for the intended purpose but in contemplation of a takeover. The House of Lords reversed the Court of Appeal and found that the auditors were not liable to the shareholder. The author’s analysis, although admittedly in consideration of a different problem, albeit one of pure economic loss, is helpful in understanding the function and limits of the foreseeability doctrine and its relationship to the other elements (duty and causation) of a successful tort action.

At the risk of simplifying a very careful and detailed argument, Professor Chapman attempts to demonstrate that the result in Caparo was not only correct on traditional tort grounds but that the result was correctly achieved through the application of tort principles and without resort to public policy. Of interest for present purposes is his argument that the necessary elements of a successful tort action depend on a coherent integration of foreseeability, negligence and causation into a “unified conception of wrongdoing for which it makes sense as a remedy that this plaintiff sue this defendant for this injury” (p. 211). Accordingly, the foreseeability of the plaintiff’s injury, even when it is the cause-in-fact of the plaintiff’s injury, is not enough to found a successful action in negligence. The plaintiff’s injury must fall within the ambit of the risk or wrongdoing of the defendant in order for liability to follow. According to Professor Chapman, the House of Lords in Caparo properly adjudicated the tortious conduct of the defendant by recognizing that, despite foreseeability, the injury (the reliance on and use of negligently prepared financial statements) was outside the ambit of wrongdoing of the defendant auditors,

Although courts which have considered wrongful pregnancy cases have purported to follow ordinary principles of negligence law to allow recovery, a closer analysis of the cases suggests that, foreseeable or not, damages are by and large awarded when the plaintiff is within the ambit of the defendant’s wrongdoing. By this I mean that the consequences of the failed sterilization

causes an actual impairment to the interest which the sterilization sought to protect. In my view, this is evident from each of the seminal wrongful pregnancy cases resulting in the birth of a healthy child in the United States, England and Canada.

In the United States, it was the 1967 decision of the California Appeal Court in Custodio v. Bauer, supra, which opened the door to recovery. There, Mrs. Custodio had sought a tubal ligation to avoid the birth of her tenth child. In the United Kingdom, Thake v. Maurice, supra, found a healthy child born into a “happy, albeit somewhat poverty-stricken, family life” where there were already five children and the plaintiff husband, who was a railway worker, underwent a vasectomy because the family could not afford another child. In Canada, the outcome in the Cataford case in Quebec was undoubtedly influenced by its unhappy facts when the plaintiff, after giving birth to ten children in eleven years, sought a sterilization which failed (p. 595):

[T]he Court does not believe itself justified in concluding that the undesired birth of a healthy child, especially in a poor family consisting of 10 living children, constitutes such a happy and normal event that it would be offensive to the public order to have attached thereto pecuniary compensation in an appropriate case.

Similarly, Suite v. Cooke was a case where the court found that the economic stability of the family was the prejudice which made recovery appropriate:

[I]t was precisely to avoid a fourth pregnancy that, along with her husband, the Respondent Paula Suite took advantage of a particular contraceptive method, tubal ligation, to avoid, the inherent costs associated with the birth of a fourth child. [per Chouinard J.]

The birth of a child does not always constitute in all circumstances and for all parents a happy event. There are cases where the birth of a child, constitutes, as in this case, a prejudice. [per Chamberland J.]

Cases which have followed have also looked for a relationship between the reasons for the sterilization and the consequences which have flowed from the failed sterilization in order to determine the proper measure of damages.

In Hartke v. McKelway, the mother’s reasons for the sterilization were therapeutic, i.e., to avoid the danger to herself from the pregnancy. When the perceived harm did not materialize, the court refused to award damages for child- rearing costs. Hartke has been followed by a number of American courts which have required that economic factors must have motivated the decision to seek the sterilization in order for child-rearing expenses to be awarded for the birth of a healthy but unplanned child: see, e.g., Burke v. Rivo, supra, at p. 773 Mass., p. 6 N.E.2d; University of Arizona v. Superior Court, 136 Ariz. 579 at p. 585, 667 P.2d 1294 at p. 1300 (1983); Jones v.

Malinowski, 299 Md. 257 at p. 270, 473 A.2d 429 at p. 436 (1984).

In Lovelace, supra, at p. 612, the New Mexico Supreme Court approved the following reasoning from Jones v. Malinowski, supra, at pp. 270-71:

[T]he assessment of damages associated with the healthy child’s birth, if any, should focus upon the specific interests of the parents that were actually impaired by the physician’s negligence, i.e., was the sterilization sought for reasons that were (a) genetic — to prevent the birth of a defective child, or (b) therapeutic — to prevent harm to the mother’s health or

(c) economic — to avoid the additional expense of raising a child.

However, the court in Lovelace did not have to cope with the motivational difficulties implicit in this approach as the evidence before it established that Mrs. Mendez had sought the sterilization solely for financial reasons.

[I]n any event, in this case we need not struggle with these difficulties, because . . . a powerful, if not the only, motive for Maria Mendez’s seeking sterilization was to conserve family resources.

That the reasons for sterilization matter and that the court must examine the consequences of the unplanned birth in relation to those reasons is also evident from the decision of the Quebec Court of Appeal in Suite v. Cooke (per Chamberland J.):

I should say immediately that an undesired birth of a child would not always constitute in every circumstance a prejudice. On the contrary! Imagine the case of parents whose only reason for taking measures to avoid the birth of a child is the fear that this child would be the carrier of a hereditary genetic deficiency or the fear that the birth would put the mother’s health in danger. In these circumstances, the birth of a child in good health or following a delivery without a negative impact on the mother’s health would be a happy event and would not give rise to a claim for the costs and maintenance of the child. Every case must be considered on its own facts.

(Emphasis added)

Although frequently cloaked in the language of foreseeability, these cases suggest to me that an award for child-rearing costs very much depends on a court finding that the birth of a healthy child in fact constitutes a harm, frequently because the sterilization is sought for economic reasons, and its failure imposes an economic burden on the plaintiffs which a court is prepared to redress.

Cherry (Guardian ad litem) v. Borsman, supra, did not concern a healthy child but is cited as authority for the proposition that, at least in British Columbia, child-rearing costs in all wrongful pregnancy cases are recoverable. But, it is doubtful whether Cherry v. Borsman is in truth a wrongful pregnancy case. There, the issue was whether an infant born with multiple disabilities following a failed abortion was entitled to damages for breach of the physician’s duty not to injure the foetus in attempting a procedure to terminate her life. The court found that the physician failed in his duty to the mother to successfully terminate the pregnancy and also failed in his duty to the foetus.

The trial judge in Cherry (Guardian ad litem) v. Borsman adopted the reasoning of the English Court of Appeal in Emeh, supra, which stands for the proposition that there is no rule of public

policy preventing the plaintiff from recovering in full the financial damage “sustained and proved”, whether the child is healthy or disabled (emphasis added). However, the child in Emeh was not born healthy but rather, with congenital limitations of speech, gait and appearance. In Emeh, the trial judge made no finding as to the reasons for the abortion and sterilization but, at the time the procedure was sought, Mrs. Emeh was separated from her husband with three healthy children. She had an abortion to terminate a fourth pregnancy and, at the same time, a sterilization procedure to prevent further pregnancies. The operation was performed negligently and, when the pregnancy was discovered at 20 weeks, she declined to have another abortion.

This is a very different case.

I have already stated that, in my view, public policy arguments are not determinative of the issue here one way or the other. Moreover, to draw a distinction between children born with disabilities and those born healthy seems wrong. Every life has value. But, the financial and emotional burdens imposed on parents who are charged with the responsibility of caring for a disabled child are far more apparent to me than the financial and emotional burdens imposed on the Kealeys here. I do not think that this is merely a question of the measure of damages. Rather, it goes to the question of whether or not there is in fact an injury to redress. As well, the kind of case illustrated by Cherry and Emeh is analogous to the more conventional case where damages are awarded to a plaintiff consequent on physical injury to that plaintiff. In Cherry, the infant in fact was a plaintiff. This, of course, is not the case here. The plaintiffs are the parents and the child is healthy.

It would be tempting in a case such as this to simply pronounce, as the court did in Cockrum, that, as a matter of sound judgment, these kinds of costs should not be recoverable even if the strict application of tort principles might lead one to permit recovery. As stated in Cockrum at p. 201 Ill.2d, p. 390 N.E.2d:

We cannot on balance accept the plaintiffs’ contention too that we should rigidly and unemotionally, as they put it, apply the tort concept that a tortfeasor should be liable for all of the costs he has brought upon the plaintiffs. It has been perceptively observed, by distinguished authority, that the life of the law is not logic but experience. Reasonableness is an indispensable quality in the administration of justice.

I agree with the court in Cockrum that the strict application of tort principles to wrongful pregnancy cases is problematic. However, equally problematic is the approach which permits recovery subject to offsetting the benefits of the child. This approach raises the unpalatable prospect that the “beneficial” child could completely offset the damages awarded to his or her parents thereby negating the award. The greater recovery would go to parents who not only did not want their children but who were lacking in affection for the child and able to demonstrate that the child was of no value. That this cannot be right must be evident.

No one would disagree that the responsibilities of rearing a child entail burdens, financial and otherwise. But, successfully meeting those responsibilities also brings innumerable benefits in the form of personal satisfaction and happiness. The responsibilities and the rewards are inextricably bound together and do not neatly balance one against the other, at least not in the case of children. Who can say whether the time, toil and trouble, or the love, guidance and

money which parents devote to a child’s care and upbringing, will bring rewards, tangible or intangible, today, tomorrow or ever. No court can possibly determine this in any sensible way. Nor should it attempt to do so. If damages are awarded for child-rearing costs, it is my view that the correct approach is as suggested in Thake v. Maurice, supra. The responsibilities and the rewards cancel each other out.

If neither the application of strict tort principles (with or without the offset for benefits) nor public policy illuminates the principles on which child-rearing costs are recoverable, some other basis must be found. In an article which considered the Ontario case Doiron v. Orr, supra, J.E. Bickenbach, “Damages for Wrongful Conception: Doiron v. Orr” (1979-80), 17 U.W.O.L. Rev. 493, the author suggests that the birth of a child is not properly analyzed as a benefit but that the legal significance of a child’s birth is that it creates responsibilities. There is support for this view in law, in public policy, and as a matter of common sense.

From the moment of birth, parents and children have mutual obligations to care for and support one another. Parents have a legal duty to provide the “necessaries of life” to their children failing which they are subject to criminal sanctions:

Criminal Code, R.S.C. 1985, c. C-46, s. 215. Every parent has an obligation to provide support to a child, in accordance with need, during the period of dependency: Family Law Act, s. 31.

Children have a corresponding obligation to support their parents if able to do so. Family Law Act, s. 32; see Godwin v. Bolsco (1993), 45 R.F.L. (3d) 310 (Ont. Prov. Div.), affirmed (1995), 20 R.F.L. (4th) 66 (C.A.). If public policy must be invoked, these statutory provisions suggest to me that, as a matter of public policy, the financial responsibilities associated with the care and upbringing of a child are the responsibilities of parents. In a wrongful pregnancy case, the question then becomes to what extent, if at all, the defendant’s negligence impairs the plaintiff’s ability to meet those responsibilities to the unplanned child or compromises the relationship of mutual support and dependency between parent and child. It is for this reason, as Professor Bickenbach suggests, that in wrongful pregnancy cases, it is the court’s function to find the interest which a successful sterilization would have protected in order to determine whether the consequences of the failed sterilization constitute a genuine injury or a “blessed event”. The reasons for the sterilization are relevant to this determination.

This approach makes sense if one considers that the general principle of compensatory damages is restitutio in integrum. “In each case the task of the Court is to determine as nearly as possible the plaintiff’s actual loss, but the plaintiff is not entitled to turn an injury into a windfall”: Ratych v. Bloomer, [1990] 1 S.C.R. 940 at p. 962, 69 D.L.R. (4th) 25. It also makes sense if one accepts that the underlying rationale for the award of child-rearing costs in many of the “total recovery” cases is to ensure that the plaintiffs can meet their financial responsibilities to the child. This is the harm which the courts in Custodio, Thake, Cataford and the other cases to which I have referred were seeking to redress. Finally, it makes sense if the injury is looked at through the lens of the Caparo “limited purposes” rule for it has this in common with it. In both,

foreseeability is a necessary but an insufficient determinant. In both, the court is asked to identify the interest harmed with reference to the purpose of the activity. It is in this sense that there must be “a unified conception of wrongdoing for which it makes sense as a remedy that this plaintiff sue this defendant for this injury”. Caparo was concerned with liability but, if foreseeability is

the determinant of both liability and the extent of the damages which a tortfeasor must bear, the principle should apply equally.

What it comes down to is this. There is a cause of action against a physician for negligently performing a sterilization which results in an unplanned pregnancy. If a child is born as a result of that pregnancy, this does not, in itself, constitute a harm which inevitably leads to damages for child- rearing costs:

[T]he duty of care is inseparable from the damage which the plaintiff claims to have suffered from the breach. It is not a duty to take care in the abstract but a duty to avoid causing in the particular plaintiff damage of the particular kind which he has in fact sustained.

(Per Lord Oliver in Caparo, supra, at p. 599 All E.R.)

The particular damage sustained in this case is an unplanned and undesired pregnancy. There is no damage caused by the defendant’s negligence which prevents Ashley’s parents from fulfilling their responsibilities to her or compromises in any way the relationship of mutual support and dependency which, as a matter of law, arose on her birth. Accordingly, the child- rearing costs in this case are not a compensable loss.

In coming to this conclusion, I do not deny that the economic consequences of raising Ashley were a foreseeable result of Dr. Berezowski’s negligence. But, to accede to the plaintiffs’ argument that I should strictly apply tort principles means that I must also consider mitigation. The reasons for the sterilization were personal as a matter of family planning. The reasons for continuing the pregnancy and raising Ashley in the Kealey family were a matter of personal choice. Mrs. Kealey testified that, upon learning of her pregnancy, she made an immediate decision to continue the pregnancy. Mr. Kealey subsequently concurred in that decision. Neither abortion nor adoption “was an option”. I accept that this was their decision to make and that a court should not ordinarily inquire into the reasons which informed these very personal choices. However, when parents ask a court to be relieved of the consequences of those choices, I think it is appropriate for a court to ask whether it was reasonable in the circumstances to have made those choices. If the answer is only that notwithstanding these choices, they have suffered a foreseeable loss, it is my view that this is an insufficient reason to impose the responsibilities which are at issue here on the tortfeasor.

Life is about choices and not everything in life is predictable or planned. To transform a mistake, measured in millimeters, into a monetary award in this case, cannot be right. Nor, in my view, can every mistake be evaluated by rules designed for different reasons. The Kealeys are willing and able to assume and have assumed their responsibilities as parents to their third daughter as they should. Ashley is ensured a happy and successful childhood in a family which has welcomed her, loves her and can afford to raise her. The responsibilities should remain where they are.

I wish to make clear that the result in this case does not finally determine whether, in all cases, damages for child- rearing costs are or are not recoverable. This is not a case where a

sterilization was sought to protect a mother’s health and the mother became ill, impairing her ability to care for the child. Nor is it a case where a sterilization was sought to avoid the transmission of a hereditary condition and the child was born diseased. This is not a case of economic necessity, imposing unreasonable financial burdens on an impoverished family. Nor is it a case like Emeh, supra, where a physician’s failure to diagnose a pregnancy following a failed sterilization interfered with a woman’s decision to terminate the pregnancy in a timely manner. While the analysis here may be of assistance in deciding those other cases, the assessment of damages in those cases is better left to that time. This is a novel and developing area of law in Canada and in Ontario. Tort law proceeds incrementally. I do not go so far as to say that each case must be decided entirely on its own facts. Nevertheless, I think that general principles for the award of damages for child-rearing costs should evolve as cases present themselves. I appreciate that this provides less certainty and predictability than may be desirable but it does permit the development of sound rules appropriate to the varied circumstances which can arise in wrongful pregnancy cases.

Assessment of Damages General Damages

As a result of the failed sterilization, Kimberley Kealey was pregnant for a third time and is entitled to the damages which flow from the pregnancy, labour and delivery as well as the necessity to undergo a second tubal ligation. The round ligament strain which Mrs. Kealey experienced from May 1992 to September 1992 was a source of some discomfort but resolved on Ashley’s birth. Otherwise, Mrs. Kealey’s pregnancy was free of complications and Ashley was born following a three-hour labour and delivery. As a result of the re-sterilization, which was performed as day surgery under a general anesthetic, Mrs. Kealey is left with four rather than two small scars on her abdomen, each approximately three-eighths inches in diameter which are gradually fading.

In Paling v. Mander, [1993] O.J. No. 1205 (Gen. Div.), the plaintiff underwent an unnecessary laparotomy involving a four- day hospitalization and three-week convalescence. This was followed by three years of serious cramps and a further two years of less severe cramping. A laparatomy is a more invasive procedure than the laparascopy. Damages were awarded by Keenan J. for operative and post-operative pain in the amount of $12,500. He also awarded

$7,500 for the abdominal scar.

In Booker v. Harper, [1996] O.J. No. 955 (Gen. Div.), Cumming J. awarded $12,500 to a plaintiff who underwent an unnecessary surgery for removal of an ovarian cyst with associated pre- and post-operative pain and an element of emotional distress.

These cases are relevant to the re-sterilization but they do not take account of a nine-month pregnancy and the modest emotional distress experienced by Mrs. Kealey upon first learning of the pregnancy. Mrs. Kealey continued to work during her pregnancy and was also caring for two very young children. The pregnancy was exacerbated by the round ligament strain. For a period of nine months, her activities, at home and at work, were made more difficult as a result of the

pregnancy. I think it must be kept in mind that Mrs. Kealey sought the sterilization because she did not want to undergo another pregnancy.

In Biggs v. Richter, supra, Judge Webb awarded $8,500 for a failed sterilization which resulted in a “difficult pregnancy”. There was no re-sterilization in that case.

In Cherry (Guardian ad litem) v. Borsman, supra, which was a case of a negligently performed abortion, the trial judge would have awarded “at least $25,000” had the birth resulted in a normal, healthy child. The award was substantially higher ($75,000), due to the emotional distress associated with the birth of a severely physically and mentally handicapped child and due to the “many years of pain and emotional distress” in bringing up a severely disabled child. In this case, there was no subsequent surgery.

Having regard to the unplanned pregnancy exacerbated by the round ligament strain, the stress and difficulty of caring for two young children and working full-time during this pregnancy, the labour and delivery, and the re-sterilization, all necessitated by the defendant’s negligence, I award general damages of $30,000.

Loss of Income Kimberley Kealey

Kimberley Kealey lost income in the amount of $6,945.53 net of payments received from U.I.C. and from her employer for maternity benefits. This was the claim advanced and was not challenged. However, the claim for sick days taken during pregnancy and for lost overtime, lost vacation coverage and lost shift coverage was not adequately proved and I make no award here.

Kevin Kealey

Following Ashley’s birth, Kevin Kealey chose to take a voluntary seven-week parental leave available through his employer. Net of U.I.C., Mr. Kealey lost income of $4,926. Mr. Kealey’s claim was resisted by the defendant on the authority of Arndt v. Smith, supra. While Mr. Kealey has no independent claim against the defendant, Arndt v. Smith establishes that the father has a derivative claim which flows from the mother’s loss. Freeman v. Sutter, [1996] 4 W.W.R. 748, 110 Man. R. (2d) 23 (C.A.), is clearly distinguishable as, in that case, there was no claim by either the mother or child and therefore no derivative claim of the father was available.

It was argued by the defendant that, as Mr. Kealey’s parental leave was a matter of choice, I should not allow it. Mr. Kealey conceded that it would have been cheaper for him and his wife to hire a baby-sitter. In my view, parental leaves are consistent with current views of the shared role of parents in the rearing of children and should be encouraged. I therefore allow Mr. Kealey’s loss of income claim.

Costs of Raising Ashley

Mr. Anthony Cooper, a qualified actuary, testified on behalf of the plaintiffs. His evidence sought to establish the estimated costs of raising Ashley to age 18, 20 or 22. In arriving at his estimates, Mr. Cooper relied on data from two studies: (1) Social Infopac Study, vol. 11, No. 2, April 1992, published by the Social Planning Council of Metropolitan Toronto; and, (2) Robin

A. Douthitt and Joanne Fedyk, The Cost of Raising Children in Canada (Markham: Butterworths, 1990).

The Social Planning Council study estimates the costs of raising a child in a low-income family in Metropolitan Toronto to age 18. The costs are a “no-frills” estimate and assume no car and a rental home. The study estimates these costs to be about $163,000 for children in lone parent families with two or three children. The study takes account of a number of factors, such as welfare subsidies, which are quite inappropriate to the Kealey family.

The Douthitt and Fedyk study bases the costs of raising children on a percentage of gross family income appropriate to the income level of the family. Mr. Cooper relied on the figure of 11 per cent from this study although he acknowledged in cross-examination that the study gives a range of percentages.

Mr. Cooper looked at the family income of the plaintiffs for four years and applied a factor of 11 per cent to each year. He then multiplied this amount by 18 to arrive at a cost of raising the child to this age. The average of the four years was $172,326. He then compared this number with the estimate of about $163,000 in the Social Planning Council Study and took an average of the two amounts which was $167,000. This produced an annual sum of $9,300 for the cost of raising Ashley. His explanation for using an estimate which combined both studies was that, while the Kealey family falls into the upper-middle income group in the Douthitt and Fedyk study, they live in a small town where costs are likely to be less than in Toronto. His calculations, however, were derived by applying a factor of 11 per cent, which is the highest factor in the study for this income group. Obviously, if a lower factor is used, it will produce a lower annual cost.

Mr. Cooper appropriately applied a discount rate of 2.5 per cent. He did not make any allowance for investment expenses. His calculations did not reflect any government subsidies or child tax credits although he pointed out that child exemptions, allowances and credits have been substantially discontinued for a family with income of about $100,000 per year. However, at the time he made the calculations, the Kealeys were a family unit. At the time of trial, the Kealeys were separated and Mr. Cooper acknowledged that he did not alter his calculations to take into account the tax implications of this or whether it affected the child benefit tax credit in favour of Mrs. Kealey.

Mr. Cooper’s calculations were performed with and without a gross-up. His gross-up calculations did not analyze the particular tax implications for Mrs. Kealey but he based them on an assumed marginal tax rate of 40 per cent. This resulted in a reduced after-tax rate of 4.2 per cent which reduced the net interest rate from 2.5 per cent per annum to -.3 per cent.

Ashley was born on September 15, 1992. The past costs were calculated to January 15, 1996 as

$31,000 ($9,300 x 3 1/3 years). The estimates for future costs, with and without a gross-up are set out below:

No Gross-up Grossed-up

to 18 Past 31,000 Future 139,729

——- Total 170,729 173,640

to 20 Past 31,000 Future 161,980

——- Total 192,980 194,435

to 22 Past 31,000 Future 176,526

——- Total 207,526 215,230

The calculations were originally prepared by Mr. Cooper on the basis that the Kealeys would incur costs for Ashley to age 18, or, if she attended university, to age 22. In argument, it was conceded by counsel for the plaintiffs that, as neither Mr. or Mrs. Kealey had attended university, it was likely that Ashley would not attend university either. I’m not sure that I agree with this but in any event, I was asked to find that Ashley would attend a community college program and, therefore, the relevant age of independence is age 20. I have no difficulty with this and so find.

More controversial is Mr. Cooper’s choice of 11 per cent as the appropriate factor to be applied to gross family income and his use of a gross-up. With respect to gross-up, it is ordinarily appropriate to allow this on future care costs:

Consumers Gas Co. v. Peterborough (City) (1979), 25 O.R. (2d) 399 at p. 456, 104 D.L.R. (3d) 174 (C.A.), affirmed [1981] 2 S.C.R. 613, 129 D.L.R. (3d) 507. “[T]he theory of grossing-up is that there should be an additional sum awarded to compensate for the tax that will accrue on the interest portion of the award”: Watkins v. Olafson, [1989] 2 S.C.R. 750 at pp. 764-65, 61 D.L.R. (4th) 577. However, there is no gross-up for the incidence of income tax on future lost income as the calculation itself is made on gross earnings without deduction for income tax. In this case, the calculations which were made in order to arrive at the principal amount of the fund for future care were based on a percentage of gross income. Therefore, it was contended by the defendant that it was inappropriate to gross-up a number which had been calculated on gross, pre-tax income. Although Mr. Cooper testified in direct examination that his grossed-up calculations were more appropriate, in cross-examination, he agreed with the proposition of the defendant that a gross-up was inappropriate. He stated that his grossed-up calculations found in paragraphs II and IV of his report (ex. 36) could be disregarded. As these are his calculations and this was his evidence, I decline to allow a gross-up on the amount for child-rearing costs.

I turn then to consider whether or not the factor of 11 per cent which Mr. Cooper used for his calculations was the most appropriate factor to be applied. It was contended by the defendant that the more appropriate percentage to use based on the data in the study was 8 per cent and not 11 per cent. Mr. Cooper did not adequately explain, or indeed explain at all, why he selected 11 per cent rather than a lower percentage, other than to point out that the study gave a range of percentages for a family at this income level and he chose 11 per cent. He stated that he did not consider using any of the other percentages for his calculations. If Mr. Cooper had used 8 per cent rather than 11 per cent, the annual costs amount to $6,962 instead of $9,300 (assuming that my arithmetic is correct).

In the separation agreement between Mr. and Mrs. Kealey, they agreed to be equally responsible for supporting their three children. Their incomes are roughly the same. Pursuant to the agreement, Mr. Kealey pays $800 per month as support for the children. Ashley’s one-third share, at least notionally, is $266 per month, which, taking into account Mrs. Kealey’s equal contribution to Ashley’s support, is $6,384 on a yearly basis. This amount approximates the estimates in the Douthitt and Fedhak study if 8 per cent of gross income is used to calculate the costs. This leads me to conclude that 8 per cent of gross income is a more appropriate factor than 11 per cent and accordingly, I assess the child-rearing costs on this basis. The sum over 20 years is $139,240. The statutory discount rate of 2.5 per cent is to be applied to this amount.

Special Damages

Special damages for the “start-up” baby costs have been agreed to in the amount of $1,222.50. In view of the conclusion I have reached with respect to child-rearing costs, there is no logical reason why these costs should be allowed. However, as they have been agreed to, I include them in the assessment. The claim for the purchase of a van to accommodate the larger family was abandoned in argument and I do not propose to deal with it.

Conclusions on Damages

The damages I award are as follows:

Kimberley Kealey: General Damages

$30,000.00 Loss of Income $ 6,945.53

———- Total $36,945.53

Kevin Kealey Loss of Income $ 4,926.00 Agreed Special Damages $ 1,222.50

———- Total $40,094.03

The plaintiffs will have judgment in this amount together with prejudgment interest at the applicable rate, which I am advised is 7 per cent. If costs are not agreed, I may be spoken to.

Judgment accordingly.