Novel heads of damage and legal policy: A dilemma born out of surrogacy?

In the aftermath of the Swift decision on accommodation claims there has been some speculation that perceived primacy of the claimant’s needs could trigger some challenges to existing boundaries in other heads of loss. We consider this in the context of the Supreme Court’s decision on the recoverability of commercial surrogacy costs. It is our view that the boundaries remain largely intact.

The question raised in XX v Whittington Hospital NHS Trust (2020) was whether a court in England and Wales can award damages for the cost of treatment which, whilst illegal in the UK, is available commercially in a country where it is lawful. This was a clinical negligence claim where the claimant had been rendered unable to bear children following a negligently missed cervical cancer diagnosis. The claimant made a claim for surrogacy costs in the UK using her harvested eggs and also for commercial surrogacy in California which uses a surrogate and the surrogate’s eggs. The court allowed the claim in principle for the UK surrogacy process, but was faced with a much more difficult decision regarding the commercial surrogacy costs in California.

Pursuant to the Human Fertilisation and Embryology Act 2008 (HFEA 2008) it is unlawful for anyone in the UK to take part in commercial surrogacy, therefore the question was whether public policy should prevent such an award of damages. Should the fact that commercial surrogacy is not (at present) legalised in the UK mean these damages shouldn’t be recoverable? The Supreme Court, by a majority decision, found in this particular case that the offshore costs were recoverable. Lady Hale’s reasoning was on the basis that commercial surrogacy was legal in California so the commercial surrogacy contract was binding when the procedure was carried out there.  She also went on to say that there have been dramatic changes in social attitudes towards surrogacy, including commercial surrogacy, such that it is no longer contrary to public policy for a claimant to recover such damages.

In civil cases in our jurisdiction we may therefore face claims for this cost, subject to the usual test of reasonableness. However this decision now begs the question as to what other forms of treatment, which are not yet legal in the UK but are legal in other countries, could properly be claimed by claimants. We’ve seen a societal change in how the use of cannabis oil is perceived, so will it now be argued that a claimant should be awarded damages to be treated in Amsterdam where he can legally smoke cannabis for intractable pain? Will a court compensate a claimant who needs to travel to America for prescription drugs which are approved in the USA but not yet in the UK? Will the court award damages for assisted dying by a claimant with a debilitating terminal medical condition? 

It remains to be seen whether the courts will follow the arguments made in XX v Whittington Hospital NHS Trust more widely. However it should be highlighted here that the main thrust of the dissenting minority argument was that there ought to be consistency (“coherence”) between the civil and criminal law. That is to say that if an act is criminalised in the UK a claimant should not be awarded damages in the civil court. The current President of the Supreme Court, Lord Reed, was one of the dissenting judges in XX. He focused his analysis on legal policy (as distinct from public policy) and the need for coherence. The starting point in the case on commercial surrogacy could not be clearer than the Act of Parliament.

The words of Lord Millet in McFarlane v Tayside Health Board [2000] 2 AC 59 [105] should be instructive in how to analyse “novel” heads of loss:

‘The admission of a novel head of damages is not solely a question of principle. Limitations on the scope of legal liability arise from legal policy, which is to say “our more or less inadequately expressed ideas of what justice demands” (see Prosser & Keeton on Torts, 5th ed  (1984), p 264). This is the case whether the question concerns the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases.”

Arguments over the reasonableness of sourcing alternative treatment in the UK and the effectiveness of legalised treatment available in the UK should always be raised, but account also needs to be taken of Lord Reed’s concerns over conflict of laws and wider legal policy which could also be in play.

For more info please contact Partner, Charlotte Smith.