Court of Session confirms duty of care owed to father, and rejects “resources cap” on damages, in wrongful birth claim

PO and OO v Lothian Health Board [2026] CSOH 55

In an opinion issued on 11 June 2026, Lord Braid has decided two significant questions in a “wrongful birth” claim against Lothian Health Board, finding for the pursuers on both. The case concerned a couple whose fourth child, “A”, was born with Down’s syndrome following the Board’s admitted negligence in failing to carry out fetal screening that would have detected the condition. The defenders accept that, but for that failure, the first pursuer would have terminated the pregnancy.

With the joint claim for care costs valued at over £18 million, two issues were taken to debate under chapter 42A: first, whether the Board owed a duty of care to the father (the second pursuer) as well as the mother; and second, whether the additional costs of raising child A should be assessed by reference to the child’s reasonable needs, or capped by the parents’ financial resources.

First issue: was a duty owed to the father?

The defenders argued that the father was, at best, a secondary victim whose claim was precluded by Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, on the basis that a clinician owes a duty only to the patient. They invited the court not to follow the Scottish authorities of Anderson v Forth Valley Health Board and McLelland v Greater Glasgow Health Board, contending that the decision whether to terminate a pregnancy is the mother’s alone and that recognising a duty to the father would qualify her autonomy as a patient.

Lord Braid disagreed. He held that the father was a primary, not a secondary, victim: his psychological injury flowed from the trauma of caring for a disabled child caused directly to him, not from witnessing harm done to the mother. Paul therefore did not apply.

On the wider question, the court held that the Board did owe the father a duty of care in the provision of fetal testing. The necessary proximity arose from the father’s relationship with the mother and the couple’s shared intention to raise their child together — not from the happenstance of his parental rights or his attendance at one appointment. Importantly, the duty did not require the clinicians to advise the father of anything directly; it was fulfilled by taking reasonable care in testing the mother and reporting the results accurately to her (an approach drawn from the Australian case BT v Oei). Lord Braid confirmed that the law in Scotland remains as set out in Anderson and McLelland, and that this is consistent with authority from other jurisdictions.

Second issue: needs of the child, or resources of the parents?

The defenders argued that the parents’ loss must be measured by reference to the resources available to them, so that costs they could not afford to incur were not recoverable, relying on Rand v East Dorset Health Authority and the familiar “managing director and chauffeur” analogy.

Lord Braid rejected that approach. Following Anderson and the weight of English authority (Hardman, Lee and Roberts, in preference to Rand), he held that damages fall to be assessed by reference to the reasonable needs of the child, asking simply whether a particular head of claim is reasonable and likely to be incurred. Capping recovery by the parents’ means would produce the “deeply unattractive” result of the poorest parents recovering less for identical needs. He noted that the parents’ needs and the child’s needs are “inextricably intertwined”, and that the fact that the parents’ claim (necessarily) reflects the child’s needs, does not convert the claim into an impermissible “wrongful life” claim.

The defenders’ averments seeking to limit damages by reference to the pursuers’ resources were held irrelevant and excluded from probation. Lord Braid did, however, sound a note of caution: it does not necessarily follow that the pursuers can recover for expenditure beyond their own deaths, or for the costs of a personal injury trust, those being questions “for another day”.

Disposal

The court sustained the pursuers’ second and fifth pleas-in-law, reserved all questions of expenses, and appointed the case to a further case management hearing.

Full Opinion of Lord Braid can be viewed here.

Ampersand’s Euan Mackenzie KC appeared for the pursuers, with David Swanney, instructed by Slater & Gordon. Ampersand’s Paul Reid KC and Louise Jardine appeared for the defenders, instructed by the NHS Central Legal Office.

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