Rees (Respondent) v Darlington Memorial Hospital NHS Trust (Appellants)
52. In expressing myself in that way I was adopting the approach to economic loss which was indicated by Lord Oliver of Aylmerton in Caparo Industries plc v Dickman  2 AC 605, 651 and in Murphy v Brentwood District Council  1 AC 398, 486 - 487. I share the view which Gleeson CJ expressed in Cattanach v Melchior, para 30, that the claim was one for the recovery of pure economic loss arising out of a relationship, liability for which has to be justified by showing that there was a duty of care to protect the claimants from that kind of harm. It has been suggested that it would be more accurate to say simply that it was for a head of loss which was not recoverable. There may indeed be other ways of expressing the point. I continue to think that Lord Oliver's formulation of the principle is acceptable in this context. But, as Lord Steyn has explained, the decision was at its heart founded in legal policy. This means that we are dealing with an area of the law where the responsibility for making choices about its development lies with the judges.
53. The question which has been raised in this case is whether McFarlane can be distinguished because the claimant is a seriously disabled person. The facts are different, of course, because the parents in that case were both free from disability, as was the child who had been born as a result of the Board's negligence. But the ratio of that decision needs to be examined as well, in order to discover whether this difference in the facts allows the conclusion to be drawn that in her case the extra costs of rearing a normal, healthy child which are due to her disability are recoverable.
The disabled child
54. It has already been held in Parkinson v St James and Seacroft University Hospital NHS Trust  EWCA Civ 530;  QB 266 that the case of a seriously disabled child can be distinguished and that, although the ordinary costs of rearing the child are not recoverable, the decision in McFarlane does not preclude recovery of the extra costs which are attributable to the child's disability. This point did not require to be examined in McFarlane. The Lord Ordinary, Lord Gill, emphasised at the outset of his opinion that the debate in that case was conducted on the basis that the child was a normal, healthy child: 1997 SLT 211, 212F. The position was unchanged when the case reached your Lordships' House, as can be seen from all the speeches.
55. I agree with the Court of Appeal that the question whether the extra costs of raising a seriously disabled child are recoverable raises a separate issue. In principle, these costs constitute an extra and distinct burden on the parent who has suffered damage as result of the tortfeasor's negligence. The task of identifying and setting off against each other all the many and various costs and benefits, both tangible and intangible, of raising a normal, healthy child throughout its childhood is an impossible one. As my noble and learned friend Lord Millett said in McFarlane, the advantages and disadvantages are inseparable.
56. But the scene changes if, following upon a wrongful or uncovenanted pregnancy (as to the use of these expressions, see J K Mason, Wrongful Pregnancy, Wrongful Birth and Wrongful Terminology, (2002) 6 Edin LR 46, at pp 47 and 65, note 77), the mother gives birth to a child who is seriously disabled and is likely to remain so throughout its childhood. Here too there is the inevitable mixture of costs and benefits, of blessings and detriments, that cannot be separated. One cannot begin to disentangle the complex emotions of joy and sorrow and the intangible burdens and rewards that will result from having to assume responsibility for the child's upbringing. But there is no getting away from the fact that the parent of a seriously disabled child is likely to face extra costs in her endeavour to make the child's upbringing as normal as possible.
57. A disabled child is likely to need extra care, and the provision of this care is likely to mean extra expenditure. As Professor Mason has observed in his helpful contribution to the debate on this subject, 6 Edin LR 46, at pp 58 and 64, love in the context of disability has to be backed by corresponding supportive resources. These resources cost money. The more disabled the child is, the more difficult it is to fulfil these obligations. I consider that, as a matter of legal policy, the Court of Appeal were right to hold that in principle these extra costs are recoverable. In Cattanach v Melchior, para 166, Kirby J said that to award these extra costs would reinforce views about disability and attitudes towards parents and children with physical or mental impairments that were contrary to contemporary Australian values reinforced by the law. The law in this country is just as alert to the need to eliminate discrimination on the ground of disability. But I do not, for my part, see any conflict between the policy which the law in that area has adopted and awarding damages for the extra costs that have to be incurred to enable a disabled child who has special needs to lead as normal a life as possible.
The disabled mother
58. Now we are faced with the difficult question whether the extra costs which will be incurred by a seriously disabled parent in rearing a normal, healthy child are recoverable. The issue did not arise in McFarlane. But I think that it can be taken to have been the unspoken assumption at all levels in that case that the child-rearing costs which the parents were seeking to recover were the costs which normal, healthy parents would incur when they were providing for their child's upbringing.
59. It has to be made clear that McFarlane was not decided on the basis that, if the child too was a normal and healthy one, there was a deemed equilibrium, as Hale LJ in Parkinson suggested:  QB 266, 292-293, paras 87-91. By this metaphor she meant that the benefits brought by the child were deemed sufficient to negative the claim for the costs of its upbringing:  QB 20, 25, para 10. This suggests that there was assumed to be an equal distribution on either side of benefits and disadvantages. With respect, however, that reads too much into the decision. No calculation of that kind was attempted or even contemplated. It was considered that a calculation aimed at achieving a fair result, taking everything into account, was impossible.
60. Nevertheless it is true to say that, if one assumes that the child and the parent are normal and healthy when one is contemplating the advantages and disadvantages that will flow from the child's birth, an element of symmetry is inherent in the exercise. The symmetry lies in the assumption that the parent and the child are both normal and healthy. It is disturbed if one is driven to assume that either the parent or the child is affected by a serious disability. Once one accepts, as I would do, that the extra costs of rearing a seriously disabled child are recoverable it may thought that to deny the recovery of extra costs by the seriously disabled parent would be to introduce a distinction between these two cases which was arbitrary and unreasonable.
61. But the risks of a decision which is arbitrary and unreasonable are not all one way. It may indeed be difficult, as Lord Millett points out, to isolate the extra costs which are due to the parent's disability from the financial benefits which, over time, will result from bringing up the child within the disabled person's family. How, it may be asked, can these extra costs be identified if the benefits and disadvantages of rearing a normal and healthy child are incalculable? It has also been suggested that it is difficult to justify making an exception in favour of the seriously disabled parent when others such as the exhausted and depressed mother who already has more children than she can cope with cannot recover the extra costs of rearing which are attributable to her special circumstances. These were the points which troubled Waller LJ in the Court of Appeal. It led him, in a careful and helpful opinion, to dissent from the decision that in principle these extra costs were recoverable:  QB 20, 34 - 35, paras 52-55.
62. It seems to me that the first of these difficulties raises a question of fact rather than a question of principle. Great care must be taken to avoid passing on to the tortfeasor costs which are attributable simply to the fact of the parent's disability. It is the extra out-of-pocket expenses which the seriously disabled parent has to incur when she is confronted by the ordinary tasks of child-rearing after making due allowance for any anticipated financial benefits, and those costs only, that are in issue here. Her situation has to be compared with that of the normal, healthy parent. One can say, as in the case of a seriously disabled child, that a seriously disabled parent who has special needs is likely to require help if her child is to have a normal upbringing and that this is likely to lead to extra expenditure. Here again I do not see any conflict between the policy which the law has adopted about discrimination on the ground of disability and awarding damages for the extra costs that have to be incurred to enable a parent who has special needs to provide her child with as normal a life ass possible. I agree with Robert Walker LJ that the care that may be needed in sorting out what costs are and are not so attributable should not deter us from allowing the possibility of recovery, which is all that is being asked for by way of a preliminary issue at this stage:  QB 20, 32, para 41.
63. The second point, however, is more troublesome and I confess that I have not found it easy to find a clear answer to it. I agree with Lord Millett that as a general rule the parent's motive for not wanting any, or any more, children is irrelevant. On balance however I have come to the view that the fact that the child's parent is a seriously disabled person does provide a ground for distinguishing McFarlane and that it would be fair, just and reasonable to hold that such extra costs as can be attributed to the disability are within the scope of the tortfeasor's duty of care and are recoverable.
64. It is suggested that to make an exception in favour of the seriously disabled parent would undermine the basis of the decision in McFarlane to such an extent that it would open the door to claims for extra child-rearing costs by disadvantaged parents generally. The question then is, are there sound reasons for making an exception only in the case of serious disability?
65. Disadvantages which are the result of the parent's choice of life-style prior to the unwanted conception can be said, without hesitation, to fall into an entirely different category. So too, although this is a harder case, are disadvantages that flow from circumstances beyond the parent's control such as social deprivation, racial discrimination or family breakdown. The decision in McFarlane applies across the board, to every healthy and normal parent, in whatever social or family condition they may find themselves. The seriously disabled parent is in a different category. It is the inescapable fact of her disability which marks the case of the seriously disabled parent out from these cases. The fact that this category too must be applied across the board, irrespective of the social or family situation in which the parent finds herself, indicates the fundamental nature of the characteristic that gives rise to it. Her social or family circumstances may, of course, affect the amount of the costs that can be considered to be recoverable. But it is the inescapable fact that the seriously disabled parent cannot, however hard she tries, do all the things that a normal, healthy parent can do when carrying out the ordinary tasks involved in a child's upbringing that place this parent's case into distinct category.
66. I would also take into account this further factor. In the Court of Appeal Robert Walker LJ referred to the developing law as to disability:  QB 20, 32, para 41. He suggested that this should help to overcome the problems in defining what is and what is not a disability. I would prefer to regard the developing law on this subject as a guide to the general direction the common law should take when it is considering what it should do in cases of serious disability as a matter of legal policy.
67. There has been a good deal of activity in the field of employment law and in the law relating to discrimination generally. Discrimination in the employment field on grounds of disability presents unique challenges to legislators, as Mummery LJ pointed out in Clark v Novacold Ltd  ICR 951, 954 E - G. Section 1(1) of the Disability Discrimination Act 1995 provides that a person has a disability for the purposes of that Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. But this is subject to various qualifications and exceptions in Schedule 1. Guidance under section 3 of that Act has been issued by the Secretary of State and there is also a Code of Practice. The decision of the Employment Appeal Tribunal in Goodwin v Patent Office  ICR 302 illustrates the complex exercise that may have to be undertaken when the statutory definition is applied to the facts with the assistance of this additional material. Further legislation will be needed to give effect by 2 December 2006 to that part of Council Directive 2000/78/EC (OJ, L303/16, 2 December 2000) which, in laying down a general framework for equal treatment in employment and occupation, deals with discrimination on grounds of age and disability: see the second paragraph of article 18.
68. It is the main thrust of this legislation rather than the detailed definitions that I would look to for guidance. The respect and value which the law places on every life extends to everybody irrespective of whether they are born with or without disabilities. But, as the legislation shows, the law also faces up to the fact of disability and to the risk of discrimination and disadvantage that it gives rise to. Its aim is to provide civil rights for disabled people whose impairment affects their ability to carry out normal day-to-day activities. By allowing the seriously disabled parent to recover the extra costs of child-rearing which are due to her disability the law will be doing its best to enable her to perform this task on equal terms with those who are not affected by her impairment.
69. What then does one mean, in this context, when one refers to serious disability? I would prefer to rely on the flexibility of the common law. Each case must be taken on its own facts. The temptation to find a handicap where there is none must be resisted. I have referred to the parent in whose favour the exception exists as "seriously disabled". The word "serious" is important. The normal incidents of an otherwise healthy life must be held to be covered by the McFarlane principle. As for the word "disability", I would take the requirement of need as the guiding principle. Is the mental or physical characteristic which distinguishes the case from that of the normal, healthy parent of such a kind that extra costs will need to be incurred if the child is to receive a normal and proper upbringing? In the present case the genetic condition from which the claimant suffers suggests that, when the facts are examined, the answer to this question will be in the affirmative.
A conventional sum?
70. I should like to add that I have not overlooked Lord Millett's suggestion that the proper outcome in all these cases would be to award the parents a modest conventional sum for the denial of their right to limit the size of their family - or, as he now puts it, to compensate them for the injury to their autonomy. I was not attracted by this suggestion when he made it in McFarlane, and I have to confess, with respect, that I am not attracted by it in this case either. I agree with Gleeson CJ's observation in Cattanach v Melchior, para 23 that it would be more accurate to say that parents have the freedom to choose, and therefore to limit, the size of their family. To describe this freedom as a right - or, as Lord Millett now suggests, as the loss of an opportunity which is the proper subject of compensation by way of damages - seems to me beg many questions which are not answered in his analysis. But that is not the only reason for the difficulty which I have in accepting this suggestion.
71. The award of a conventional sum is familiar in the field of damages for personal injury. Conventional sums are awarded as general damages for typical injuries such as the loss of a limb or an eye or for the bereavement that results from the loss of a child or parent in the case of a fatal accident. This is the means by which the court arrives, as best it can, at a figure for the damage suffered which is incapable of being calculated arithmetically: Kemp and Kemp, The Quantum of Damages, vol 1, para 1-003. The sum which it awards has been described by Lord Denning MR in Ward v James  1 QB 273, 303 as "basically a conventional figure derived from experience and from awards in comparable cases": see also Wright v British Railways Board  2 AC 773, 777D per Lord Diplock. The award is conventional in the sense that there is no pecuniary guideline which can point the way to a correct assessment: Lim Poh Choo v Camden and Islington Area Health Authority  AC 174, 189G-H per Lord Scarman. But financial loss does not present the same problem. It is capable of assessment in money. So it has never been the practice to resort to a conventional sum as a means of compensating the claimant for that part of the loss that falls under the head of special damages.
72. To take just one example, the distinction between these two heads of loss has been recognised by section 1 of the Damages (Scotland) Act 1976, as amended by section 1 of the Damages (Scotland) Act 1993, which defines the rights of relatives of a deceased person in Scots law. The relatives' claims for loss of support and funeral expenses are dealt with in section 1(3). Members of the deceased's immediate family may then be awarded under section 1(4), without prejudice to any claim under section 1(3), such sum as the court thinks just by way of compensation for distress and anxiety, grief and sorrow and the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died. This is the equivalent of an award of damages for bereavement under section 1A of the Fatal Accidents Act 1976, which was inserted by section 3(1) of the Administration of Justice Act 1982, except that the amount of the award is left to the court and not fixed, as it is in England and Wales, by statutory instrument.
73. The award of a conventional sum to parents for the loss of the right, or the opportunity, to limit the size of their family would perform a similar function to the award of a conventional sum under section 1(4). It would deal with that part of the parents' claim that fell into the category of general damages. But it would not deal - nor, as Lord Millett has explained, would it be designed to deal - with that part of the claim resulting from the loss of the right that fell into the category of special damages. The splitting up of a claim of damages into these two parts in order to allow recovery of one part and deny recovery of the other part is a novel concept and it seems to me, with respect, to be contrary to principle. If damages are to be awarded at all, the aim must be to put the injured parties into the same position as far as money will allow as if they had not sustained the wrong for which they are being compensated: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 per Lord Blackburn. That rule would be broken if we were to assume that the loss of the right to limit one's family was capable of being compensated for by an award of damages and then to say that the parents' award was to be restricted by law to a conventional sum to compensate them only for their general damages. It would also be broken if we were to say - contrary to my assumption - that the conventional sum was intended to give them something for their financial loss also. It would deny them the opportunity of attempting to establish the true value of that part of their claim according to the compensatory principle.
74. Lord Bingham seeks to escape from this problem by asserting that the conventional award which he favours would not be, and would not be intended to be, compensatory. It would not be the product of calculation nor would it be nominal, but would afford some measure of recognition of the wrong done. This approach seems to me to depart from the principle which has always guided the common law in its approach to the assessment of damages. He does not suggest that the award is intended to be punitive. If it is not, and the case is not one for an award that is purely nominal, what basis can there be for it other than the compensatory principle? Both Lord Millett and Lord Scott use language which suggests that they are seeking to arrive at a figure which would compensate the parents for being deprived of the loss of opportunity or of the benefits which they were entitled to expect. Lord Nicholls does not use the same language, but his brief treatment of the issue leaves me in doubt as to the basis for it. The lack of any consistent or coherent ratio in support of the proposition in the speeches of the majority is disturbing. It underlines Lord Steyn's point that the examination of the issue at the oral hearing was cursory and unaccompanied by research. Like him, I cannot agree with the description of the new rule by Lord Bingham and Lord Nicholls as a "gloss" on the decision in McFarlane.
75. Then there is the problem of arriving at an appropriate figure for a conventional sum which was not at risk of being seen by the parents as derisory. The figure which Lord Millett suggested in McFarlane seems to me to invite that criticism. I doubt whether the larger figure that is now being suggested removes this difficulty. We are in uncharted waters, as there are no previous awards for the loss of this right to which we can look in order to discover the parameters. But it would be wrong to ignore the current level of awards in actions of damages for personal injury. To take just one recent example, the Inner House of the Court of Session has held, having regard to the recent level of jury awards for bereavement (jury awards are still competent in Scotland in actions of damages for personal injuries: Court of Session Act 1988, section 11(a)), that the parents of an adult son who was killed in a flying accident should be awarded £20,000 each under section 1(4) of the Damages (Scotland) Act 1976 for their bereavement: Shaher v British Aerospace Flying College Ltd, 2003 SLT 791. How is one to measure the loss of the right to limit the size of one's family against an award of that kind, bearing in mind the far-reaching and long-lasting effect that the birth of the uncovenanted child will have on the life of the parent? It seems to me that a much closer examination of the general level of awards in these and other similar cases would be needed before one could come up with a figure that one could even begin to regard as appropriate. In my respectful opinion it would not be right for your Lordships, without guidance from judges sitting at first instance, to attempt to carry out that exercise.
76. Lord Bingham has given, as one of his reasons for applying the new rule without differentiation to cases whether either the child or the parent is, or claims to be, disabled the acute difficulty of the task of quantifying the additional costs attributable to disability. As I have already said, I agree with Robert Walker LJ that care would be needed in sorting out what costs are and are not so attributable. But to describe the task as one of acute difficulty seems to me to be an overstatement. Lord Bingham then says that the difficulty is highlighted by the inability of the respondent to give any realistic indication of the additional costs she seeks to recover. But I think that this may be quite unfair to the respondent, as all that was being asked for at this stage was an answer to the preliminary issue whether the recovery of costs was a possibility. We have no means of knowing whether the additional costs in her case can or cannot readily be identified, as this question was not explored at first instance or in the Court of Appeal nor was it focused as an issue in this appeal.
77. I am left with the uneasy feeling that the figure which is to be established by the new rule will in many cases, and especially in this one, fall well short of what would be needed to satisfy Lord Millett's aim, which Lord Scott adopts, of compensating the parents for the wrong that has been done to them. The issue is, as Lord Steyn says, hugely controversial and I agree with him that its creation - which would surely then have been the product of much more study and research than has been given to its creation in this case by the majority - ought to have been left, preferably with the benefit of a report by the Law Commissions, to Parliament.
78. I would allow the respondent's claim to proceed. I would dismiss the appeal.
79. The claimant, Ms Karina Rees, is a young woman in her early thirties who suffers from the genetic condition of retinitis pigmentosa. Since the age of two she has been blind in one eye and has limited vision in the other eye; she is severely visually handicapped. In recent years her vision had deteriorated and she had given up work. She felt that her eyesight would bar her from properly looking after a child and she was anxious about health matters and frightened by the thought of labour and delivery. She had great difficulty in finding a suitable method of contraception and she came to a very definite decision that she did not want and would never want to give birth to a child. She was referred by her general practitioner to a consultant gynaecologist at Darlington Memorial Hospital and when she saw the consultant she told him of her visual handicap and of the concerns and fears which had led her to the decision that she would never want to give birth to a child. With this knowledge of her concerns and of her decision the consultant performed a sterilisation operation on the claimant on 18 July 1995. The appellant hospital trust admits that the operation was performed negligently and that the right fallopian tube was not adequately occluded. In July 1996 the claimant's son Anthony was conceived and he was born on 28 April 1997. His father had no desire to be involved with him and the claimant is a single mother who is bringing up Anthony alone. It is accepted for the purposes of this appeal that Anthony is a healthy child.
80. In September 1999 the claimant commenced proceedings against the hospital trust claiming damages for negligence in respect of the sterilisation operation and she sought to recover the costs of bringing up Anthony to his majority. The costs which she claimed included the costs which would be incurred by a mother who was not disabled in the bringing up of a child and she also claimed the extra costs that would be incurred by her as a result of her severe visual disability.