Rees (Respondent) v Darlington Memorial Hospital NHS Trust (Appellants)
25. When the matter came before the Court of Appeal it had before it not only the decision of the House in McFarlane but also the subsequent decision of the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust  QB 266 where it was held that in a failed sterilisation case the extra costs of discharging parental responsibility towards a disabled child is unaffected by McFarlane and can in principle be recovered. There was no appeal against this decision. On 14 February 2002 by a majority the Court of Appeal (Hale and Robert Walker LJJ, with Waller LJ dissenting) allowed the appeal of the claimant and held that a disabled parent is entitled to recover those "extra" costs involved in discharging his or her responsibility to bring up a healthy child which are attributable to and incurred as a result of the fact of the parent's disability: Rees v Darlington Memorial Hospital NHS Trust  QB 20. Unfortunately, there was no information before the Court of Appeal as how, if at all, it is more costly for the claimant to look after Anthony than it would be for a mother who does not have her disability.
III. The Issues Before the House.
26. The agreed issue before the House reads as follows:
Despite this formulation of the issue, the case for the claimant at the hearing before the House appeared to be restricted to seeking to recover the extra cost involved in discharging her responsibility for bringing up a healthy child which are incurred as a result of her disability. The House has the same meagre information before it as the Court of Appeal had. There is in particular no information before the House as to how, if at all, it is more costly for the claimant to look after Anthony than it would be for a mother who does not have the disability. In what has been a complex case this has proved to be a difficulty.
27. It is necessary to explain the framework of the appeal in more detail. First it was submitted on behalf of the claimant that the House wrongly decided McFarlane. If this challenge succeeds, it is common ground that the claimant is entitled to succeed and the appeal of the NHS Trust Hospital must be dismissed. If it fails, other issues arise. The second issue, relevant by analogy and not direct application, is whether the decision in Parkinson, which laid down that the case of a disabled child falls outside the scope of the principle laid down in McFarlane, was correct. The answer to this question has some bearing on the ultimate decision in the instant case. The third question is then whether the majority in the Court of Appeal in the present case correctly held that the decision in McFarlane does not preclude recovery by a disabled parent of a healthy child of the extra cost of caring for the child.IV. The Challenge To The Decision in McFarlane.
28. I do not propose to undertake the gruesome task of discussing the judgments in McFarlane. But it is necessary to explain briefly what was decided in McFarlane. It was held that the cost of parents caring for a healthy and normal child, born as a result of negligent sterilisation advice, was not recoverable in tort. There was undoubtedly divergence between the reasoning in the speeches. Subject to Lord Millett's view that a modest conventional sum - he mentioned £5,000 (at 114) - could be awarded there was unanimity on the outcome of the principal claim for the cost of bringing up the child. There is a clear ratio. Moreover, despite differences in reasoning, two features were crucial. First, in monetary terms it is impossible to calculate the benefits of avoiding a birth and having a healthy child. In Parkinson  QB 266 Hale LJ sought to rationalise the decision in McFarlane by saying that it depended on a deemed equilibrium theory: 292-293, paras 87-91. That is not a correct interpretation of McFarlane. Instead the emphasis was squarely on the impossibility of undertaking a process of weighing the advantages and disadvantages. The second feature was explained by Lord Millett as follows (113 H - 114 A):
These I believe to be themes which led the Law Lords sitting in the case to reject the claim for the cost of bringing up the healthy child: see Lord Slynn of Hadley, at 75C and 76C; my judgment, at 83D-E; Lord Hope of Craighead, at 97C-D; Lord Clyde, at 103 B-D; Lord Millett, at 111C-D.
29. That brings me to the question what the foundation of this reasoning was. For my part the answer is clear. The House did not rest its decision on public policy in a conventional sense: Lord Slynn of Hadley, at 76D; my judgment, at 83D-E; Lord Hope of Craighead, at 95A; Lord Clyde, at 100A-C; and Lord Millett, at 108A-C. Instead the Law Lords relied on legal policy. In considering this question the House was bound, in the circumstances of the case, to consider what in their view the ordinary citizen would regard as morally acceptable. Invoking the moral theory of distributive justice, and the requirements of being just, fair and reasonable, culled from case law, are in context simply routes to establishing the legal policy.
30. Now I turn to the question whether this conclusion was reached on the basis that there was absence of a duty of care in respect of the cost of bringing up a healthy and normal child or whether the decision was made on the basis that this head of loss is not recoverable. This question arises because there was undoubtedly a duty of care to the extent that the mother was allowed to recover for pain and suffering associated with the pregnancy and childbirth. Some Law Lords thought that an absence of a duty of care was the correct analysis and others thought it was a matter of irrecoverability of a head of loss. In my opinion the former view is entirely orthodox: see Lord Hope of Craighead, 95E-96D: see also Lord Slynn of Hadley, at 76B-C; and my judgment, at 83D - E. On the other hand, the latter is an equally valid explanation: Lord Clyde, at 105E-F; and Lord Millett, at 113H-114B. One is perhaps in the area of conceptualistic thinking - what some overseas writers have impolitely called professors' law. Provided that one is clear about the foundation and reach of the legal policy involved, the difference in method is not of great importance. In this case the two concepts yield the same results.
31. It is now necessary to consider how an invitation to depart from a decision of the House should be approached. Practice Statement (Judicial Precedent)  1 WLR 1234, which announced that such a course was possible, was in no sense an open sesame for a differently constituted committee to prefer their views to those of the committee which determined the decision unanimously or by a majority. That would be a licence not appropriate to final decision-making by a supreme court. In R v Knuller (Publishing, Printing and Promotions) Ltd  AC 435 Lord Reid considered the point. He observed (at 455):
This led the House to refuse to depart from a decision given eleven years earlier even if it had been wrong. In Fitzleet Estates Ltd v Cherry  1 WLR 1345 the House returned to the point. There was an invitation to the House to depart from a majority decision (by 3:2) in a previous case decided eleven years before. Lord Wilberforce observed (with the express agreement of Lord Salmon and Lord Keith) (1349):
Viscount Dilhorne and Lord Edmund-Davies gave speeches along the same lines. None of this detracts from the power of the House to depart from a previous decision where there are cogent reasons to do so. Without trying to be exhaustive, I would mention that a fundamental change in circumstances such as was before the House in Miliangos v George Frank (Textiles) Ltd  AC 443, or experience showing that a decision of the House results in unforeseen serious injustice, may permit such a departure.
32. The issue in McFarlane was a profoundly controversial one. Ultimately, there was a choice to be made between eminently reasonable competing arguments. The House carefully examined the earlier domestic case law. The House embarked on an extensive review of the comparative jurisprudence. It is not suggested that this examination did not reveal the range of feasible solutions. The subsequent decision in Cattanach v Melchior  HCA 38 (16 July 2003) where by a 4:3 majority the High Court of Australia decided in favour of recovery merely underlines the controversiality of the problem and the range of views on the subject. In McFarlane the House examined the applicable principles and relevant analogies in great depth. It is not argued that the House overlooked any arguments of substance. Rather counsel for the claimant invites the House to say that the Law Lords in McFarlane made the wrong choice. For my part it would be entirely wrong for the House, differently constituted today, to depart from McFarlane even if some Law Lords had been persuaded that they would have decided the case differently.
33. Having listened to the argument of counsel for the claimant that McFarlane was wrongly decided - an argument somewhat less detailed and rigorous than was before the House in McFarlane - I have to say I am satisfied that the House came to the correct conclusion four years ago. The comparative review before the House showed that, although the subject is controversial and that the solutions vary, the decision in McFarlane is probably that followed in a majority of jurisdictions. There has been academic criticism of McFarlane. There is disagreement among writers about the correctness of the outcome: see, for example, Tony Weir, A Casebook on Tort, 9th ed (2000), p 131; Joe Thomson, "Abandoning the Law of Delict? McFarlane v Tayside Health Board in the Lords" 2000 SLT 43; Laura C H Hoyano, "Misconceptions about Wrongful Conception" (2002) 65 MLR 883. Accepting that the subject is a highly controversial one, the decision of the House, rooted as it was in morality, justice and legal policy, represented the least bad choice. For my part the decision in McFarlane was a sound one.
V. Parkinson: A Disabled Child.
34. Throughout the speeches in McFarlane runs the strong emphasis on the birth of a healthy and normal child. The opinions show that the House was fully alive to the different considerations which arise if the child is seriously disabled. But the case then before the House did not require a decision on such a case.
35. When the issue involving a disabled child came before the Court of Appeal in Parkinson the ruling was unanimous that such a case is not affected by McFarlane. While not wishing to endorse everything said in the detailed judgments of Brooke and Hale LJJ, I agree with the decision. The legal policy on which McFarlane was based is critically dependent on the birth of a healthy and normal child. That policy does not apply where the child is seriously disabled physically and/or mentally. In such cases normal principles of corrective justice permit recovery of compensation for the costs of providing for the child's needs and care relating to his disability but not for the basic costs of his maintenance.
VI. Rees: The Disabled Mother.
36. The position of a disabled mother who gives birth to a healthy and normal child was not considered in McFarlane. And to the best of my knowledge the Law Lords did not have it in mind at all. What the House would have said if in McFarlane the claim was by a seriously disabled mother, who had told the surgeon that due to her incapacities she would be unable to look after a child, is a matter of speculation. But the House must now grapple with this difficult case.
37. Unlike the position of the disabled child, it is not possible to regard the disabled mother of a healthy and normal child as unaffected by the principle in McFarlane. On the contrary, an award of damages in the present case is only possible if an exception is created. That this is so becomes even clearer if one considers the grounds of legal policy which underpin McFarlane as I have explained them.
38. In a powerful dissenting judgment in Rees, Waller LJ explained why he regarded such an exception as unacceptable I set out the core of his reasoning. He observed, at pp 34 -35, paras 52-55:
The examples given by Waller LJ in paras 53 and 54 are telling. I would accept that there is an element of arbitrariness involved in holding that only the disabled mother of a healthy and normal child can claim damages. Since it is of prime importance that the law must avoid arbitrariness this creates a serious difficulty.
39. On the other hand, there is great force in the observations of Robert Walker LJ. He held, at p 32, para 41:
How is this tension between cogent arguments pulling in opposite directions to be resolved? In jurisprudential and positive law terms this is a truly hard case. It is unrealistic to say that there is only one right answer. But a decision must be made, and that decision must represent the best available choice and hopefully a decision defensible as delivering justice. For reasons which are apparent from this opinion it is logically not straightforward to treat the present case as simply an extension of Parkinson. On the other hand, I consider (like Hale and Walker LJJ) that the law should give special consideration to the serious disability of a mother who had wanted to avoid having a child by undergoing a sterilisation operation. I am persuaded that the injustice of denying to such a seriously disabled mother the limited remedy of the extra costs caused by her disability outweighs the considerations emphasised by Waller LJ.
VII. A conventional award
40. Lord Bingham has explained why he favours a conventional award of £15,000 in the present case. His opinion makes clear that to this extent he would depart from McFarlane in the case of a healthy and normal child. He has further observed that he would apply this rule, without differentiation, to cases in which either the child or the parent is (or claims to be) disabled. This involves overruling the majority of the Court of Appeal in the present case. It also involves overruling the Court of Appeal decision in Parkinson against which there was no appeal. The other opinions in the present case speak for themselves.
41. As Lord Bingham has said the suggestion was first made by Lord Millett in McFarlane (at p 114). It is true that none of the members of the majority in McFarlane discussed the point. It was, of course, not an issue at all in McFarlane. But it would be wrong to assume that the majority did not consider it. Like Lord Hope I considered it but found it unacceptable. And without doubt that was also the position of Lord Slynn and Lord Clyde. The proposal for a conventional award therefore runs counter to the views of the majority in McFarlane. Now the idea appeals to a narrow majority of a differently constituted Appellate Committee. This does not mean that the point cannot be re-examined but it certainly suggests that the matter should be examined with great care and due observance of the usual procedures.
42. In Parkinson the idea of a conventional award was not raised at all. It could, of course, have been raised as an alternative. The reason was no doubt that after McFarlane it was thought that this avenue was no longer open.
43. In the present case the idea of a conventional award was not raised at first instance or in the Court of Appeal. For my part it is a great disadvantage for the House to consider such a point without the benefit of the views of the Court of Appeal. And the disadvantage cannot be removed by calling the new rule a "gloss". It is a radical and most important development which should only be embarked on after rigorous examination of competing arguments.
44. It is clear from the agreed statement of facts and issues, as well as the printed case of the parties, that the idea of a conventional award was not an issue in the present case until the oral hearing. It is true that questions along these lines were put in oral argument but the examination of the issue was cursory and unaccompanied by research.
45. No United Kingdom authority is cited for the proposition that judges have the power to create a remedy of awarding a conventional sum in cases such as the present. There is none. It is also noteworthy that in none of the decisions from many foreign jurisdictions, with varying results, is there any support for such a solution. This underlines the heterodox nature of the solution adopted.
46. Like Lord Hope I regard the idea of a conventional award in the present case as contrary to principle. It is a novel procedure for judges to create such a remedy. There are limits to permissible creativity for judges. In my view the majority have strayed into forbidden territory. It is also a backdoor evasion of the legal policy enunciated in McFarlane. If such a rule is to be created it must be done by Parliament. The fact is, however, that it would be a hugely controversial legislative measure. It may well be that the Law Commissions and Parliament ought in any event, to consider the impact of the creation of a power to make a conventional award in the cases under consideration for the coherence of the tort system.
47. I cannot support the proposal for creating such a new rule.
VIII. The Conclusion and Disposal.
48. While I am troubled by the wholly unparticularised nature of the claim I would allow the claim of Ms Rees to be pursued. For avoidance of doubt I add that the cases mentioned by Waller LJ, at pp 34 - 35, paras 53 and 54 of his judgment are on the wrong side of the line drawn in McFarlane and I would not extend the exception to such cases.
49. I would dismiss the appeal of the NHS Hospital Trust.
LORD HOPE OF CRAIGHEAD
50. My noble and learned friend Lord Steyn has summarised the facts of this case, and I gratefully adopt his account of them. I cannot improve upon his masterly analysis of the decision of this House in McFarlane v Tayside Health Board  2 AC 59 that the costs of rearing a normal and healthy child were not recoverable. I also agree with him, for all the reasons that he has given, that it would be wrong for the House now to depart from McFarlane even if some of your Lordships had been persuaded that they would have decided the case differently.
51. When I was giving my reasons for the decision in McFarlane I said that the value which was to be attached to the benefits which would have to be set off against the costs of rearing the child were incalculable:  2 AC 59, 97. I did not base my decision on a belief that it was morally repugnant to award damages for the birth of a healthy child. As Gleeson CJ observed in Cattanach v Melchior  HCA 38 (18 July 2003), para 6, the fundamental value which is attached to human life is an ethical, not an economic, concept and the problem which had to be addressed was legal, not theological. It was the insuperable problem of calculation that was the critical point in the decision so far as I was concerned. If, as I believe, it is impossible to measure the benefits, it must follow that no value can properly be arrived at for the balance that would need to be struck between the costs and the benefits to arrive at a figure which could be awarded as damages. The conclusion which I drew was that, for this reason, these costs must be held to fall outside the ambit of the duty of care which was owed to the pursuers by the persons who carried out the procedures in the hospital and the laboratory.