Pregnancy claim after vasectomy struck out

LAW REPORT v 19 January 1996

Goodwill v British Pregnancy Advisory Service; Court of Appeal (Lord Justice Peter Gibson, Lord Justice Thorpe); 17 January 1996

A doctor who advised a man, following a vasectomy, that the operation was successful and no contraception needed to be used to avoid pregnancy, did not owe a duty of care to the man's future sexual partner who was told of the advice, became pregnant and claimed financial loss.

The Court of Appeal allowed an appeal by the defendant, BPAS, and struck out the plaintiff's claim.

In 1988 the plaintiff, a 40-year-old teacher who was divorced and had one son, commenced a sexual relationship with a man who informed her that he had had a successful vasectomy in 1984 arranged by BPAS who had advised him, after semen tests in 1985, that he no longer needed to use any method of contraception. The plaintiff consulted her own GP who told her that there was a minute chance of getting pregnant. She ceased to use a contraceptive coil. In 1989 the vasectomy underwent spontaneous reversal. The plaintiff became pregnant and she gave birth to a daughter.

The plaintiff brought proceedings against BPAS alleging that it was in breach of its duty of care to her in failing to warn the man of the possibility of spontaneous reversal and to advise the use of contraceptive protection. She claimed damages for financial loss. Judge Paul Clark refused BPAS's application to strike out the claim.

Roger Stewart (Reynolds Porter Chamberlain) for BPAS; Cherie Booth QC (Linnell) for the plaintiff.

Lord Justice Peter Gibson said that the doctor who performed a vasectomy on a man could not realistically be described as employed to confer a benefit on the man's sexual partners in the form of avoiding pregnancy. Still less could he be so described when he was giving advice on tests after the operation.

For the plaintiff to have a sustainable case in negligence for financial loss arising from reliance on advice given by Bpas, there must a proximity or relationship between the giver of the advice and the person who acted on it.

How BPAS knew or should have known that its advice would be communicated to the plaintiff and relied on by her as a warranty of permanent infertility when she did not commence the sexual relationship until three years later was not apparent. It was not pleaded that BPAS expected communication of its advice to the man's sexual partners nor that BPAS was alerted that the advice would be passed on to sexual partners.

It was not alleged nor could it reasonably be alleged that BPAS knew that its advice when communicated to the plaintiff was likely to be acted on by her without independent inquiry. BPAS could know nothing about the likely course of action of future partners.

BPAS was not in a sufficient or any special relationship with the plaintiff such as gave rise to a duty of care. It could not properly be said that BPAS voluntarily assumed responsibility to the plaintiff when giving advice to the man. At that time, she was not an existing partner but was merely, like any other woman in the world, a potential future sexual partner of his, that is a member of an indeterminately large class of females who might have sexual relations with the man during his lifetime.

It was impossible to believe that the policy of the law was or should be to treat so tenuous a relationship between the adviser and the advisee as giving rise to a duty of care.

It was beyond belief that in ceasing to use any contraceptive method, the plaintiff was induced by and relied on the man's bare assertion to her that he had had a vasectomy and could not have any children, given that she only removed her contraceptive coil after taking advice from her GP. She took the risk that there was a small possibility of pregnancy.

The plaintiff's claim would be struck out.

Lord Justice Thorpe, concurring, said that the plaintiff was no nearer the doctor adviser than one who some three and half years after the operation commenced a sexual relationship with his patient. The class to which the plaintiff belonged was potentially excessive in size and uncertain in character. The adviser's state of knowledge militated against the plaintiff. Finally the plaintiff failed the test of reliance.

Ying Hui Tan, Barrister