In July 2011, AAA, a mother of two, consulted the family planning clinic of Aga Khan University Hospital for an appropriate contraceptive to prevent her from having any more children. At the clinic, she was advised to choose “implanon”, a method consisting in an implant that would prevent conception for three years from the date of insertion. AAA decided to choose this contraceptive method and the same day the staff at the clinic did the procedure, inserting the implanon into her left upper inner arm under local anesthesia. After the procedure, she was assured that the implanon was in place and that she was free to have sexual intercourse with her husband without using a condom, and that she would not conceive for three years.
In August 2012, AAA missed her period and went to the clinic where testing confirmed that she was indeed pregnant. Further tests at the clinic revealed that there was no implanon implanted in her arm.
AAA submitted a petition before the High Court of Kenya, claiming that the failure to implant the implanon led to her subsequent pregnancy and the birth of her baby. She argued that these events were the result of the Clinic’s negligence and that she had suffered emotional pain, distress, psychological damage, physical incapacity, and financial hardship. She therefore sought appropriate damages for these harms, including the cost of bringing up the child, (shelter, care, food, clothing, entertainment and education, medical and general welfare) from the date of birth until the child attains the age of 18 years. She further testified that the unwanted pregnancy caused a strain on her marriage, as her husband believed she lied about getting the implant, and that the birth of the child significantly increased the family’s delay expenses, which they were not prepared for or expecting.
No defense was presented by the Clinic’s representatives and an interlocutory judgment was entered on May 14, 2014.
The Court noted that this was a unique case in the jurisdiction, and that there was little precedent to rely upon. Considering comparable court decisions from other jurisdictions, such as England, the Court noted that the previous approach undertaken by courts in such jurisdictions only compensated the claimant for pain, suffering, loss of amenities, and loss of consortium. Historically, courts would award damages for the upbringing of the child only if the child was born with congenital abnormalities, while for healthy babies, public policy dictated that the joy derived by parents in bringing up a child cancelled out the compensation that could otherwise be awarded.
However, the Court recognized that more recently, tribunals had moved away from this policy and started awarding compensation for the cost of raising an unexpected child until the age of majority. The Court referred to the Emeh v. Kensington and Chelsea and Westminster Area Health Authority (1985), which held that “the compensable loss suffered by the Plaintiff as a result of the negligence in performing that operation extended to any reasonably foreseeable financial loss directly caused by her pregnancy” and that there was no rule of public policy preventing the plaintiff from recovering in full the financial damage sustained. Therefore, the plaintiff in Emeh was entitled to damages for “loss of future earnings, maintenance of the child up to trial, maintenance of the child in the future, Plaintiff’s pain and suffering up to the time of trial, and future loss of amenity and pain and suffering, including the extra care that the child would require. . .” Mitigating factors which could reduce an award would include “the value of the child’s aid, comfort and society to the parents.”
The Kenyan High Court also referred to the Supreme Court of Minnesota in the case Sherlock v. Stillwater Clinic (1977), where the latter established that the costs of raising a child resulting from wrongful conception and birth are a direct financial injury to parents and that it would be short-sighted in today’s society to say that the long term and enduring benefits of parenthood exceeded these costs. Further, leaving aside moral and ethical considerations, public policy should not deny parents’ recovery of damages. The court in that case further recognized that family planning is an integral part of modern marital relationships and that public policy had changed in line with statutes promoting family planning.
The High Court of Kenya held that medical practitioners owed a duty of care to clients to provide family planning services according to the professional standards expected of them. It further held the clinic to be vicariously liable for the negligence of its medical staff.
The Court held that damages were awardable (where appropriate) for each of the following claims:
- Pain and suffering, including psychological damage, mental distress and anguish;
- Costs of antenatal care and delivery services; and
- Expenses/costs related to care and upbringing of the child (medical, shelter, food, education, clothing, entertainment, etc.) from birth until the age of 18 years.
Nevertheless, the High Court did not award any damages for the costs related to antenatal care and delivery because AAA failed to specify and prove these “special damages” which had to be precisely detailed. The Court therefore awarded general damages under pain and suffering and expenses related to care and upbringing of the child claims.
It is important to highlight that in determining the amount of damages for pain, suffering, and loss of amenities, the Court distinguished awards made in England by considering the comparable standard and costs of living in the Republic of Kenya. The Court also noted that AAA did not testify to experiencing any “particular undue pain or difficulty, prenatal, natal, or ante-natal.”
On the other hand, in determining the amount of damages regarding the costs of care and upbringing of the child, the Court balanced the claimed damages with the joy and society that the parents will have in bringing up their child. The Court also noted that the new child was a girl, while the two previous children were boys. It also considered that the parents had failed to provide evidence substantiating the quantum of the damages claimed. It accordingly reduced the damages awarded under that claim, against the AAA claim. Therefore, the Court awarded general damages, but special damages were denied.