Judgments - Rees (Respondent) v Darlington Memorial Hospital NHS Trust (Appellants)

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    81.  At the trial of a preliminary issue Mr Stuart Brown QC, sitting as a deputy judge of the High Court, held that he was bound by the decision of this House in McFarlane v Tayside Health Board [2000] 2 AC 59 to hold that the claimant was not entitled to recover damages for any of the costs of bringing up her son. On appeal the Court of Appeal (Robert Walker and Hale LJJ, Waller LJ dissenting) held that the claimant was entitled to damages to compensate her for the extra costs incurred by her in bringing up her son attributable to her disability, and the hospital trust now appeals to the House against that decision.

McFarlane v Tayside Health Board

    82.  In McFarlane a married couple with four children decided that they did not want any more children and that the husband should undergo a vasectomy. A vasectomy operation was performed by a surgeon employed by the defendant health board and five months later the surgeon informed the husband that his sperm counts were negative and that contraceptive measures were no longer necessary. The parents acted on that advice and subsequently the wife became pregnant and after a normal pregnancy and labour gave birth to a healthy child whom the parents loved and cared for as an integral part of their family. Both parents were also in good health. Both parents sued the health board for negligence, the mother claiming damages for the physical discomfort suffered by her in her pregnancy, confinement and delivery and both parents also sued for the financial costs of caring for and bringing up the child. The Outer House of the Court of Session dismissed the pursuers' action on the ground that a normal pregnancy and labour could not constitute personal injuries for which damages were recoverable and that the benefits of parenthood transcended any financial loss incurred by the parents in looking after and bringing up their child. The Second Division of the Inner House of the Court of Session reversed that decision and held that the wife was entitled, if negligence were established, to damages for the physical effects of pregnancy and childbirth. The Second Division further held that in accordance with the conventional principles of delict law the parents would be entitled to recover the costs of bringing up the child and that there were no public policy grounds to disentitle the parents from recovering such costs.

    83.  The House decided, Lord Millett dissenting, that the wife was entitled to general damages for the pain suffering and inconvenience of pregnancy and childbirth and, Lord Clyde dissenting, to special damages for extra medical expenses, clothing and loss of earnings associated with the pregnancy and birth. The House further held that the parents were not entitled to recover damages for the costs of bringing up the child. Each member of the Appellate Committee delivered a speech and there was some degree of difference in the reasons given for the decision. Lord Slynn of Hadley (at p 76B-D) and Lord Hope of Craighead (at p 97D-E) held that it would not be fair, just or reasonable to impose a duty of care on the employees of the health board giving rise to liability for the cost of bringing up the child. Lord Steyn (at p 83D-E) held in reliance on principles of distributive justice that the tort law of Scotland and England does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor. He further observed that if it were necessary to do so, he would say that the claim did not satisfy the requirement of being fair, just and reasonable. Lord Clyde held (at p 105B-F) that to award damages for the cost of bringing up the child would not constitute reasonable restitution as it would not take into account the benefit to the parents of having a loved and healthy child. Lord Millett stated (at p 108C) that the court is engaged in a search for justice, and that this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper, and he held (at p 114B) that society itself must regard the balance of advantages and disadvantages in having a normal, healthy baby as beneficial. It would be repugnant to its own sense of values to do otherwise, and it is morally offensive to regard a normal, healthy baby as more trouble and expense than it was worth.

    84.  In holding that it would not be fair, just or reasonable to impose a duty of care giving rise to liability for the cost of bringing up the child, Lord Slynn and Lord Hope were applying the principle stated by Lord Oliver of Aylmerton in Caparo Industries plc v Dickman [1990] 2 AC 605, 633B that before imposing a duty of care the law requires "that the attachment of liability for harm which has occurred be 'just and reasonable'", and the related principle stated by Lord Hoffmann in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, 211H that the plaintiff must show "that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered."

    85.  Both Caparo and Banque Bruxelles were cases where no physical harm caused by the alleged breach of duty intervened between it and the financial loss which had been suffered, and in Banque Bruxelles Lord Hoffmann stated at 213C: "Normally the law limits liability to those consequences which are attributable to that which made the act wrongful", and it would appear to be clear that the costs of bringing up the child were, in accordance with conventional principles, attributable to the wrongdoing of the hospital staff. I think it was for this reason that Lord Clyde stated at [2000] 2 AC 59, 102 A and D:

    "the issue raised in the appeal is not properly one of the existence or non-existence of a duty of care …. The present case is concerned with the extent of the losses which may properly be claimed in the circumstances of the case, rather than with the existence or non-existence of a liability to make reparation."

    However, as my noble and learned friend Lord Steyn observes in his speech, this is a point in the area of conceptualist thinking. What is important is that the two concepts, the one stated by Lord Slynn and Lord Hope, the other by Lord Clyde, yield the same result, and in my opinion the fundamental principle underlying the speeches in McFarlane is that it would not be fair, just or reasonable to award damages for the cost of bringing up a healthy child.

The issues on this appeal

    86.  Two principal issues arise on this appeal. The first issue is whether the House should depart from the decision in McFarlane. Mr de Wilde QC, for the respondent, submits that the House is entitled to depart from the decision pursuant to Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 and that the House should do so because the decision was contrary to well-established principles of tort law. My Lords, I reject that submission. I consider that the decision was right. Even if I considered that the decision was erroneous, I would be of opinion for the reasons given by the House in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345 that the House should not depart from the decision.

    87.  The second issue is, if the decision in McFarlane stands as good law, does it require a court to hold, as did the deputy High Court judge, that damages cannot be recovered in the present case where the single mother, unlike the mother in McFarlane, is seriously disabled. This is the issue which I now turn to consider, but before doing so I think it is relevant to make a further observation. I think it is clear, as stated by Hale LJ in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, 288D and Waller LJ in the Court of Appeal in the present case [2003] QB 20, 33B that in McFarlane the House recognised that on normal principles of tort law the claim for the cost of bringing up the child would succeed. Lord Millett stated, at p 107B:

    "The defenders do not deny that they are responsible for having supplied the information in question, that Mr and Mrs McFarlane were entitled to rely on it, that it was incorrect, and that they were under a duty to take reasonable care to ensure that it was correct. Nor do they deny that, if they failed to do so, then they would normally be liable for all the foreseeable consequences of its being wrong: see Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, 214, per Lord Hoffmann."

And, at p 109C:

    "Catherine's conception and birth are the very things that the defenders' professional services were called upon to prevent. In principle any losses occasioned thereby are recoverable however they may be characterised."

See also Lord Slynn, at p 70H and Lord Hope, at p 90B.

The decision of the Court of Appeal in Parkinson

    88.  In deciding the second issue a further point which has to be considered is whether Parkinson was correctly decided. In that case the sterilisation operation was negligently carried out and the claimant later conceived and gave birth to a child who was born with severe disabilities. Longmore J held that the claimant was entitled to recover damages for the costs of providing for her child's special needs relating to his disabilities but not for the basic costs of his maintenance, and this decision was upheld by the Court of Appeal.

    89.  In his judgment Brooke LJ based his decision that the appeal of the health trust should be dismissed on the ground that it was fair, just and reasonable to award the claimant compensation for the extra expenses associated with bringing up a child with significant disabilities. At p 282G, he cited the judgment of the Supreme Court of Florida in Fassoulas v Ramey (1984) 450 So 2d 822 that:

    "There is no valid policy argument against parents being recompensed for these costs of extraordinary care in raising a deformed child to majority. We hold these special upbringing costs associated with a deformed child to be recoverable."

He then stated:

    "Unless we are bound by authority to the contrary, I find this argument persuasive."

And, at p 283C he stated:

    "an award of compensation which is limited to the special upbringing costs associated with rearing a child with a serious disability would be fair, just and reasonable; (vii) if principles of distributive justice are called in aid, I believe that ordinary people would consider that it would be fair for the law to make an award in such a case, provided that it is limited to the extra expenses associated with the child's disability."

    90.  In her judgment Hale LJ gave consideration to the right to physical autonomy at p 284 and discussed conception, pregnancy and childbirth as an invasion of bodily integrity at p 285. Having discussed the judgment in McFarlane she stated at p 292E:

    "At the heart of it all is the feeling that to compensate for the financial costs of bringing up a healthy child is a step too far. A child brings benefits as well as costs; it is impossible accurately to calculate those benefits so as to give a proper discount; the only sensible course is to assume that they balance one another out."

And, at p 293C:

    "The solution of deemed equilibrium also has its attractions and is in any event binding upon us. Indeed, it provides the answer to many of the questions arising in this case. The true analysis is that this is a limitation on the damages which would otherwise be recoverable on normal principles. There is therefore no reason or need to take that limitation any further than it was taken in McFarlane's case. This caters for the ordinary costs of the ordinary child. A disabled child needs extra care and extra expenditure. He is deemed, on this analysis, to bring as much pleasure and as many advantages as does a normal healthy child. Frankly, in many cases, of which this may be one, this is much less likely. The additional stresses and strains can have seriously adverse effects upon the whole family, and not infrequently lead, as here, to the break-up of the parents' relationship and detriment to the other children. But we all know of cases where the whole family has been enriched by the presence of a disabled member and would not have things any other way. This analysis treats a disabled child as having exactly the same worth as a non-disabled child. It affords him the same dignity and status. It simply acknowledges that he costs more."

At the end of her judgment she stated, at p 295A:

    "94 …The difference between a normal and a disabled child is primarily in the extra care that they need, although this may bring with it extra expenditure. It is right, therefore, that the parent who bears those extra burdens should have a claim.

    95 Longmore J considered that such a claim would not 'stick in the gullet'. I agree. Whatever the commuter on the Underground might think of the claim for Catherine McFarlane, it might reasonably be thought that he or she would not consider it unfair, unjust or disproportionate that the person who had undertaken to prevent conception, pregnancy and birth and negligently failed to do so were held responsible for the extra costs of caring for and bringing up a disabled child.

    96 For those reasons, as well as those given by Brooke LJ, I would dismiss this appeal."

Sir Martin Nourse agreed with both judgments.

    91.  In my opinion the decision of the Court of Appeal in Parkinson was right. In McFarlane the House confined its considerations to the case of the birth of a healthy child and expressed no opinion in relation to the birth of a child with disabilities. In that case the House considered that it was not fair, just or reasonable to award damages for the costs of bringing up a healthy child. But in my opinion it is fair, just and reasonable to award damages for the extra costs of bringing up a disabled child and I am in agreement with the observation of Robert Walker LJ in relation to Parkinson in his judgment in the present case, [2003] QB 20, 30G:

    "There is not the same intuitive feeling that it would be exorbitant compensation to award damages for financial burdens which are the direct consequence of the disability of a child who was born disabled after a failed sterilisation, and which would not be incurred in consequence of the birth of a normal, healthy child."

The decision of the Court of Appeal in this case

    92.  In the instant case Robert Walker LJ stated the basis of his decision as follows, at p 32B:

    "I would base my decision on there being nothing unfair, unjust, unreasonable, unacceptable or morally repugnant in permitting recovery of compensation for a limited range of expenses which (when specified and proved) will be found to have a very close connection with the mother's severe visual impairment, and nothing to do with the blessings which the birth of her healthy son may have brought her."

He further stated, at p 32G that the circumstances of Karina Rees's case are not covered by McFarlane's case, that an award to her would be a legitimate extension of the decision in Parkinson, and that disabled persons are a category of the public whom the law increasingly recognises as requiring special consideration.

    93.  Hale LJ also held that the appeal of Karina Rees should be allowed. At pp 27H - 28A, she stated that all the discussion in the judgments in McFarlane was on the basis that the child was healthy and the costs were those of bringing up a healthy child. In her opinion it did no violence to the reasoning in McFarlane to conclude in Parkinson that the extra costs of bringing up a disabled child altered the justice of the case. In McFarlane in terms of the actual care required by the child, the parents were as well able to provide such care as any other parents and the House had not considered the position of a parent in a different position. Earlier in her judgment, at p 25 E she had referred to the concept of deemed equilibrium upon which she had relied in her judgment in Parkinson and she stated, at pp 28G -29A:

    "Hence I would conclude that, just as the extra costs involved in discharging that responsibility towards a disabled child can be recovered, so too can the extra costs involved in a disabled parent discharging that responsibility towards a healthy child. Of course we can assume that such a parent benefits, and benefits greatly, from having a child she never thought she would have. We can and must assume that those benefits negative the claim for the ordinary costs of looking after and bringing him up. But we do not have to assume that it goes further than that. She is not being overcompensated by being given recompense for the extra costs of child care occasioned by her disability. She is being put in the same position as her able-bodied fellows."

    94.  However both Robert Walker LJ, at p 31D and Waller LJ, at p 34D questioned the validity of the concept of deemed equilibrium on the ground that, as expressed by Waller LJ, in McFarlane the members of the House did not think in terms of an equilibrium with precise quantities on either side of the balance. In my respectful opinion this non-acceptance of the concept was justified for the reason stated by Waller LJ.

    95.  Waller LJ dissented from the opinion of the majority of the court that Karina Rees should recover the extra costs of bringing up her child on the ground that such a ruling would constitute an exception to the general rule established by McFarlane, and that such an exception would not be fair and reasonable when the difficulties of a mother who was not disabled but who faced other severe difficulties and problems was compared with the difficulties of Karina Rees. He gave as an example a woman who already had four children and wished not to have a fifth, and for whom the birth of a fifth child would create a crisis in health terms unless help in caring for the child was available. The Lord Justice concluded his judgment by stating, at p 35D:

    "It is because the court is simply not prepared to go into a calculation which involves weighing one aspect against the other which in my view should bring about the conclusion that it is not fair, just, and reasonable that a disabled person should recover when other mothers in as great a need cannot. On the basis of distributive justice I believe that ordinary people would think that it was not fair that a disabled person should recover when mothers who may in effect become disabled by ill-health through having a healthy child would not."

Conclusion

    96.  The difficulties posited by Waller LJ place in sharp focus the problem which arises on this appeal, but I find myself in respectful agreement with the opinion of Robert Walker LJ, at p 32G that these difficulties should not deter the courts from deciding that a disabled mother is entitled to recover compensation for the extra costs of bringing up her child.

    97.  My reasons for so holding, which have been foreshadowed in the views which I have already expressed, can be stated shortly. As I have said, I consider that the decision in McFarlane was grounded on the principle that it is not just, fair or reasonable to award damages to healthy parents for the costs of bringing up a healthy baby; the House did not consider the position where the mother was disabled. In my opinion where the mother is disabled it is not unjust, unfair or unreasonable to award damages for the extra costs of bringing up the child. In considering whether damages should be awarded there is, in my view, a clear distinction between a disabled mother and a mother in normal health. It is right, in my opinion, to recognise and give effect to this distinction in laying down a principle to guide courts of first instance notwithstanding that a mother who is not disabled may face the serious difficulties described by Waller LJ. The fact that hard cases can be pointed to very close to the line which divides recovery from non-recovery does not invalidate the principle itself.

    98.  Secondly, there are two ways of stating the decision of the Court of Appeal in this case. It can either be said that the decision creates an exception to the principle established by McFarlane, or it can be said that McFarlane created an exception, in the case of the birth of a healthy baby to healthy parents, to the principle that where there is a breach of duty causing physical harm, all the damages directly flowing from that breach of duty can be recovered. As I have stated, I think that the members of the House recognised that under the general principles applicable to the recovery of damages for negligent breach of duty the McFarlane parents would have been entitled to recover damages. Therefore, whilst to some extent the matter is one of terminology, I would hold that McFarlane created an exception to the general principles, that that exception does not apply to a disabled child or to a disabled mother, and that accordingly the McFarlane decision does not bar the mother from recovering in this case.

    99.  Accordingly, for the reasons which I have given, I would dismiss this appeal.

LORD MILLETT

My Lords,

    100.  In McFarlane v Tayside Health Board [2000] 2 AC 59 your Lordships were called upon to consider for the first time the extent to which damages are recoverable for the birth of an unintended child following a wrongful pregnancy. By this is meant a pregnancy which is consequent upon a failed sterilisation, whether it has been performed negligently or the parents have been negligently informed that it has been successful. The House held that the parents could not recover the costs of bringing up a normal, healthy child. In Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 the Court of Appeal held that the additional costs of bringing up a disabled child were recoverable. The question in the present case is whether the additional costs of bringing up a normal, healthy child which are attributable to the fact that one of the parents is disabled are similarly recoverable.

    101.  Your Lordships are therefore asked to decide whether the present case is a legitimate extension of Parkinson or is governed by the overriding principle established in McFarlane. The respondent sought to avoid this question by inviting the House to depart from its decision in McFarlane.

    102.  The principles which guide the House in deciding whether to depart from a previous decision of its own are well established and have been repeatedly stated: see Practice Statement (Judicial Precedent) [1966] 1 WLR 1234; R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435, 455 per Lord Reid; and Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349 per Lord Wilberforce. As Lord Wilberforce said in the last-mentioned case:

    "It requires much more than doubts as to the correctness of [the previous decision] to justify departing from it."

    103.  The established criteria are nowhere near satisfied in the present case. I would not depart from the unanimous decision of the House in McFarlane even if, after further reflection, I thought that it was wrong. But I am not persuaded that it was. I have heard nothing in the arguments presented to us which was not considered in McFarlane. All aspects of the question and the reasoning of the final appellate courts in numerous jurisdictions (which were seldom unanimous) were exhaustively canvassed. Experience has not shown there to be unforeseen difficulties in application; nor has it shown that the decision is productive of injustice. It has not been universally welcomed by academic writers; nor has it been universally condemned. The most that can be said is that the decision was controversial; and that was evident from the most casual reading of the comparative case law. If further evidence were needed, it is provided by the recent decision of the High Court of Australia in Cattanach v Melchior [2003] HCA 38, which was reached by a majority of four to three. Quot judices tot sententiae. Despite the diversity of opinion, the judgments cover familiar ground and contribute no new insight.

    104.  McFarlane was a case of negligent sterilisation advice. It decided that the costs of bringing up a normal, healthy child are not recoverable. Negligence was not admitted - that issue remained to be tried - but the appeal was brought on the pleadings and negligence had to be assumed. The defenders conceded that they were responsible for having given the advice in question and that they were under a duty to take reasonable care to ensure that it was correct. They acknowledged that they would normally be liable for all the foreseeable consequences of its being wrong. They accepted that Mrs McFarlane's pregnancy and the child's birth were the direct and foreseeable consequences of the advice being wrong. Causation was not in issue. On conventional legal reasoning Mr and Mrs McFarlane would be entitled to recover damages which represented the full extent of the financial and other losses consequent upon Mrs McFarlane's pregnancy and the birth of their child, including the costs of bringing her up.

    105.  The House nevertheless unanimously held that the costs of bringing up the child were not recoverable. In their speeches the individual members of the Appellate Committee all based this conclusion on legal policy, though they expressed themselves in different terms. My noble and learned friend Lord Steyn spoke of distributive justice; he asked himself what would be morally acceptable to the ordinary person. Others spoke of what was "fair, just and reasonable" - which expresses the same idea. I spoke openly of legal policy. At p 108, I said:

    "The admission of a novel head of damages is not solely a question of principle. Limitations on the scope of legal liability arise from legal policy, which is to say 'our more or less inadequately expressed ideas of what justice demands' (see Prosser and Keeton on Torts, 5th ed (1984), p 264). This is the case whether the question concerns the admission of a new head of damages or the admission of a duty of care in a new situation. Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases."

Others too made it clear that this was not the same as public policy in the traditional sense of that expression. It would not have been contrary to public policy to award damages to the pursuers in McFarlane any more than it would be contrary to public policy to award damages for breach of contract beyond the limits imposed by the rule in Hadley v Baxendale (1854) 9 Exch 341. But in both cases the denial of damages rests upon policy considerations.

 
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