Full Recovery Approach
The Full Recovery Approach awards the plaintiff parents the full cost of raising the healthy child. In MS v Baker,the plaintiff conceived and gave birth to a healthy child after a failed tubal ligation.39 The action was dismissed, but in the provisional assessment, Justice Moreau allowed full recovery for the cost of raising the child because the parents’ decision to undergo sterilization was financially motivated.40 Justice Moreau agreed with Justice Lax in Kealey that the parents’ motivation is relevant in assessing whether an injury actually exists.41 Justice Moreau also rejected some of the public policy arguments advanced against full recovery and held that in tort, all foreseeable losses are recoverable.42 The fact that the plaintiff may ultimately love the child and receive some benefit, was irrelevant. Nonetheless, Justice Moreau expressly left open the question of whether parents could recover the costs of raising a healthy child where the decision for sterilization was “a personal choice unrelated to financial pressures, danger to the mother or risk of carrying a harmful genetic trait.”43
In Stockford v Johnston Estate, Justice Garnett uniquely awarded the mother damages for the full cost of raising the child, offset by the financial benefits of having a child (e.g. government and tax benefits), but not the intangible emotional benefits.44 Justice Garnett acknowledged that the birth of a child is often a burden and not always a blessing to all.45 Additionally, the fact that the plaintiff now treasures the child was irrelevant.46 Justice Garnett explained how this view is varied from a strict application of the “Offset Benefits Approach” where both financial and emotional benefits may be used to reduce the award for the cost of raising the child to potentially nothing at all.47 In Kealey, Justice Lax discussed how the Offset Benefits Approach can have the unpalatable result of allowing greater recovery for parents who better argue that the child is a burden to the family, is of no value and that they lack affection for the child.48 This effect has led to the courts’ reluctance to adopt the Offset Benefits Approach in Canada.
Patient’s Duty to Mitigate: Abortion and Adoption
In traditional personal injury cases, plaintiffs are expected to mitigate the harms by making a rational treatment choice.49 Nonetheless, the failure to abort or to put the child up for adoption is unlikely to be considered an irrational decision by the courts due to the highly personal and difficult nature of those decisions. The duty to mitigate damage is only a duty to be reasonable, and is not akin to being forced to accept less than real loss.50
In Keats v Pearce, the Court denied the plaintiff damages for the cost of raising the child, reasoning that, if the plaintiff “truly did not want the child, with all the blessings and burdens entailed, she could have terminated her responsibility and relationship to the child by arranging for an adoption before or after she was delivered.”51 Today, courts would likely find such reasoning unpalatable. The issue is that imposing the duty to mitigate on plaintiffs would essentially eliminate all wrongful birth claims, unfairly transferring the blame to parents in every case.52 In McFarlane v Tayside Health Board, Lord Steyn found that decisions of plaintiff parents to not pursue abortion or adoption could not be questioned in any circumstance.53 It would seriously interfere with any existing rights to personal choice and autonomy.
