Toombes v Mitchell [2021] EWHC 3234 (QB)

The Claimant suffered from a congenital defect, as a result of her mother not having taken folic acid before her conception. Her claim alleged that, at a pre-conception consultation on 27 February 2001, Dr Mitchell, the Defendant, negligently failed to advise her mother, Mrs Toombes, to take folic acid supplements. Had she been properly advised, Mrs Toombes said that she would have delayed conception. In those circumstances, it is said that the Claimant would not have been born, rather a genetically different sibling, conceived later, would have been born without the neural tube or any other defect.

A preliminary issue was tried before Mrs Justice Lambert in December 2020 as to whether the claim disclosed a lawful cause of action, [2020] EWHC 3506 (QB). As reported by Robert Kellar QC in the QMLR Issue 8, Lambert J answered the question with a resounding ‘yes’. A disabled claimant can bring a claim alleging that, but for the index negligence, she would not have been conceived; she is entitled to bring a claim for damages for being born in her injured state.

The legal dispute having been resolved, the trial turned essentially on the factual matters relating to the alleged breach, and related questions of causation. Much depended on the credibility of the Claimant’s mother; for his part, Dr Mitchell had no actual recollection of the consultation, and his note was “inadequate”. The Judge found that Dr Mitchell should have advised Mrs Toombes to take folic acid daily before conception and did not do so. The Judge placed reliance on a subsequent record two years later, which cohered with her case that Dr Mitchell had advised her that if she had a good diet, she would not need folic acid supplements. Breach was, therefore, established.

In respect of causation, the first thing that the Claimant needed to establish was that she had not, in fact, already been conceived prior to the consultation. Mrs Toombes’ last menstrual period had started on 13 February 2001, two weeks before the consultation, having taken her last contraceptive pill on 11 February 2001. The judge accepted that it was possible that she was already pregnant at the time of the consultation on 27 February 2001, but believed Mrs Toombes’ evidence that she did not have sexual intercourse at all until after the consultation. The second issue on causation was whether Mrs Toombes would have delayed attempts to conceive and taken the folic acid supplements: on this point, too, the Judge accepted the evidence of Mrs Toombes. It might be noted, however, that the Judge considered this “not a common situation”, namely that the couple had sought out a preconception consultation. Mrs Toombes had specifically asked about whether it would be safe to try for a family, and had herself raised the issue of folic acid with the Defendant. Given that breach of duty was found on that very point, it was perhaps unsurprising that the court found causation made out too.