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

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    106.  Another and more technical difference of approach is detectable in the speeches. Lord Clyde and I considered that the question was directed to the admission of a new head of loss. Others considered that the question was whether the loss claimed was within the scope of the duty of care. In my opinion this is merely a difference of exposition. In some cases it is more illuminating to approach the question from one end; in other cases from the other. In Caparo Industries plc v Dickman [1990] 2 AC 605 Lord Bridge of Harwich said, at p 627:

    "It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless. 'The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it:' see Sutherland Shire Council v Heyman, 60 ALR 1, 48, per Brennan J."

In Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Lord Hoffmann said, at p 211:

    "A duty of care such as the valuer owes does not however exist in the abstract. A plaintiff who sues for breach of a duty imposed by the law (whether in contract or tort or under statute) must do more than prove that the defendant has failed to comply. He 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."

    107.  Each of those cases raised an issue of causation. In neither case was it a factual issue, for there was no doubt that the loss was sustained as a direct result of the negligent information which the defendant had supplied. But the law does not hold a person liable for all the foreseeable consequences of his actions. So the question in each case was one of responsibility: was the defendant legally responsible for the loss which his negligence had caused? There was nothing unusual, however, in the nature of the loss; indeed it was commonplace - financial loss arising from a bad investment. The difficulty arose from the causal relationship between the defendant's negligence and the loss sustained by the plaintiff. The solution lay in recognising that a person is only liable for loss which falls within the scope of his duty of care.

    108.  The problem in a case of wrongful pregnancy is not the same. There is no difficulty about causation, whether as a matter of fact or of legal responsibility. The pregnancy and birth of a child are the very things which the defendants are employed to prevent. It is impossible to say that consequential loss falls outside the scope of their duty of care. They are accordingly liable for the normal and foreseeable heads of loss, such as the mother's pain and suffering (and where appropriate loss of earnings) due to the confinement and delivery. The novelty of the claim in McFarlane lay in one particular head of damage - the cost of bringing up a healthy child. The House considered it to be morally repugnant to award damages for the birth of a healthy child. It makes for easier exposition to identify the issue by reference to the head of damage rather than the duty of care. It also has the added advantage that identifying the ratio of McFarlane in this way may make it simpler to find the answer to the question raised by the present case.

    109.  In a lecture to the Personal Injury Bar Association's Annual Conference in 2003 Sir Roger Toulson, Chairman of the Law Commission, described the ratio of McFarlane as follows:

    "Although at a detailed level there are therefore significant differences between the judgments, at a broader level two features dominate them. These are, first, the incalculability in monetary terms of the benefits to the parents of the birth of a healthy child; and, secondly, a sense that for the parents to recover the costs of bringing up a healthy child ran counter to the values which they held and which they believed that society at large could be expected to hold."

    110.  I agree with this analysis, which accurately represents my own reasoning and, I believe, that of other members of the Committee. I said, at pp 113- 114:

    "In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth."(Emphasis added).

    111.  In subsequent cases Hale LJ has developed the idea that the decision in McFarlane rested on a theory of "deemed equilibrium". With respect, such a theory cannot be extracted from any of the speeches; on the contrary, it is entirely inconsistent with them. To say that something is incalculable or cannot be weighed at all is quite different from saying that it is deemed to weigh the same as something else. To say, as I did, that

    "society itself must regard the balance as beneficial"

is quite different from saying that the balance must be treated as level.

    112.  McFarlane decides that the costs of bringing up a normal, healthy child must be taken to be outweighed by the incalculable blessings which such a child brings to his or her parents and do not sound in damages. Parkinson decides that the additional costs of bringing up a disabled child are recoverable in damages. It may be that strict logic demands a different answer. A disabled child is not "worth" less than a healthy one. The blessings of his or her birth are no less incalculable. Society must equally "regard the balance as beneficial". But the law does not develop by strict logic; and most people would instinctively feel that there was a difference, even if they had difficulty in articulating it. Told that a friend has given birth to a normal, healthy baby, we would express relief as well as joy. Told that she had given birth to a seriously disabled child, most of us would feel (though not express) sympathy for the parents. Our joy at the birth would not be unalloyed; it would be tinged with sorrow for the child's disability. Speaking for myself, I would not find it morally offensive to reflect this difference in an award of compensation. But it is not necessary for the disposal of the present appeal to reach any conclusion whether Parkinson was rightly decided, and I would wish to keep the point open. It would in any case be necessary to limit the compensation to the additional costs attributable to the child's disability; and this may prove difficult to achieve without introducing nice distinctions and unacceptable refinements of a kind which tend to bring the law into disrepute. For the reasons I gave in my speech in McFarlane I would not for my part wish to distinguish between the various motives which the parties might have for desiring to avoid a pregnancy.

    113.  However that may be, the decision of the Court of Appeal in the present case is not a legitimate extension of Parkinson, but an illegitimate gloss on McFarlane. The conventional approach to damages would allow the costs of bringing up a healthy child, but only so far as they were reasonable. Costs which are incurred unreasonably are not recoverable. So what McFarlane decides is that the costs of bringing up a healthy child, even though reasonably incurred, are not recoverable.

    114.  Such costs are infinitely variable. They will differ as between one family and another. They will vary, not only according to the needs of the individual child, but according to the circumstances of the parents and other members of the family. They may be greater in the case of a single parent, and less where there are grandparents or siblings to fetch and carry and help with the care of the child. They may be greater where the mother chooses or has to go out to work and so must employ a child minder or home help. They may be very great if the mother is a highly paid professional woman or works at a job which takes her frequently away from home; or if the family is accustomed to private health care or education. All these factors, which are referable to the personal circumstances of the child's family and not to those of the child, go to increase the costs which are reasonably incurred in bringing up the child. But McFarlane teaches that none of these costs are recoverable in the case of a healthy child, however reasonably they may be incurred. In principle, the same must be true of the disabled parent. To the extent that her disability has any effect, it increases the amount of the costs which she reasonably incurs in bringing up the child, costs which are nevertheless not recoverable.

    115.  It is, with respect, no answer to say that the disabled parent has no choice in the matter; and that if a mother's disability makes it impossible for her to look after the child, she must perforce employ someone to do it for her. The normal, healthy parent may also have no real choice in the matter. A single mother with no disability allowance may have no choice but to go out to work. A mother who, like the old woman who lived in a shoe, has "so many children she doesn't know what to do" may have no choice but to employ someone to look after them. A family which has already resorted to private health care and private education for the existing children cannot realistically choose to do less for their latest child. By contrast, a disabled mother may have a husband, parents and other members of the family to give support and look after the child. There is no relevant difference between costs which are "necessary" and those which are "reasonable", even if it were practicable to attempt to draw it; but it cannot be drawn on the line which distinguishes the disabled parent from the normal, healthy one.

    116.  There is another consideration. A child who is born disabled is disabled throughout his or her childhood. Likewise a disabled parent is disabled throughout his or her child's childhood. But there is a significant difference. The factors which make it appropriate to award compensation for the birth of a disabled child are present throughout; those which appear to make it appropriate to award damages for the birth of a healthy child to a disabled parent gradually disappear to be overtaken by the advantages. Once the child is able to go to school alone and be of some help around the house, his or her presence will to a greater or lesser extent help to alleviate the disadvantages of the parent's disability. And once the child has grown to adulthood, he or she can provide immeasurable help to an ageing and disabled parent.

    117.  It is a mistake to assume that, because the costs attributable to the disability are "extras" whether the disabled party is the child or the parent, there is any symmetry. It is true that McFarlane was concerned with a normal, healthy baby born to normal, healthy parents, though this group includes parents who for one reason or another could ill afford to have to look after another child. We expressly confined our decision to the case of a healthy child because we recognised that the case of a disabled child might be distinguishable. But, speaking for myself, I made no assumptions about the health or other characteristics of the parents. I considered their circumstances to be irrelevant. It was enough that they did not want or could not properly look after another child. I expressly said that their motives for not wanting another child were irrelevant. I still regard this to be the case.

    118.  Disability is a misfortune, and it is the mark of a civilised society that it should provide financial assistance to the disabled. The United Kingdom discharges this responsibility by payment of disability allowance. But this is the responsibility of the state and is properly funded by general taxation. It is not the responsibility of the private citizen whose conduct has neither caused nor contributed to the disability. McFarlane teaches that the costs of bringing up a healthy child by an unimpaired parent do not sound in damages. Whatever we may say to the contrary, an award of the "extra" costs which are attributable to the fact that the parent is disabled is an award of damages for the disability.

    119.  It is accepted that care must be taken not to award damages for the parent's disability. An immediate difficulty is that the costs which are attributable to the parent's disability cannot be disentangled from those which are attributable to the birth of the child. If the parent is unable through disability to look after her healthy child, she must employ someone to do so. How are those costs to be characterised? They must be due at least in part to the birth of the child, and in part to the parent's disability. It is impossible to separate the two elements. They are not different components of the cost, but a single cost with composite causes.

    120.  But even if they could be separately identified it would not help, for in principle no part of the costs is recoverable. This is what marks the difference between the present case and Parkinson. Where it is the child who is disabled the costs are attributable either to the birth of the child or to the fact that the child is disabled. The former are not recoverable; the latter are. Where it is the mother who is disabled they are attributable either to the birth of the child or to the fact that the mother is disabled. There is no third possibility. To the extent that they are due to the birth of the child McFarlane precludes recovery and to the extent that they are not due to the birth of the child, the causal link with the wrong is broken and the defendants are not liable for them in any case. The fact that the mother is disabled aggravates the financial consequences of the birth of a healthy child, and the birth of a healthy child aggravates the financial consequences of the mother's disability. The former is the defendants' responsibility but does not sound in damages and the latter is not the responsibility of the defendants at all.

    121.  In my opinion, principle mandates the rejection of the parent's claim. But in this case principle also marches with justice. The decision of the majority of the Court of Appeal is destructive of the concept of distributive justice. It renders the law incoherent and is bound to lead to artificial and indefensible distinctions being drawn as the courts struggle to draw a principled line between costs which are recoverable and those which are not. In his powerful dissenting judgment Waller LJ drew attention to the absurdities which would result from drawing the line in entirely the wrong place. He said, at [2003] QB 20, 34 - 35:

    "53 Let me address some examples, I hope not too extreme. If one takes the facts to be that a woman already has four children and wishes not to have a fifth; and if one assumes that having the fifth will create a crisis in health terms, unless help in caring for the child was available. She cannot recover the costs of caring for the child which might alleviate the crisis, as I understand McFarlane's case. I would have thought that her need to avoid a breakdown in her health was no different from the need of someone already with a disability, and indeed her need might be greater depending on the degree of disability. Does she, or ordinary people, look favourably on the law not allowing her to recover but allowing someone who is disabled to recover?

    "54 If one were to add that the lady with four children was poor, but the lady with a disability was rich—what then? It would simply emphasise the perception that the rule was not operating fairly. One can add to the example by making comparisons between possible family circumstances of the different mothers. Assume the mother with four children had no support from husband, mother or siblings, and then compare her with the person who is disabled, but who has a husband, siblings and a mother all willing to help. I think ordinary people would feel uncomfortable about the thought that it was simply the disability which made a difference."

    122.  I can see no answer to these criticisms. In my opinion, principle, common justice and the coherence of the law alike demand that the line be drawn between those costs which are referable to the characteristics of the child and those which are referable to the characteristics of the parent. I agree with Waller LJ that ordinary people would think it unfair that a disabled person should recover the costs of looking after a healthy child when a person not suffering from disability who through no fault of her own was no better able to look after such a child could not. I can identify no legal principle by which such a distinction could be defended.

    123.  I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damages, not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law. The loss of this right is not an abstract or theoretical one. As my noble and learned friend Lord Bingham of Cornhill has pointed out, the parents have lost the opportunity to live their lives in the way that they wished and planned to do. The loss of this opportunity, whether characterised as a right or a freedom, is a proper subject for compensation by way of damages.

    124.  I made this suggestion in McFarlane, but it was not taken up by any one else. As I see it, it was neither accepted nor rejected, and I do not think it right to say that the point was decided. The majority did not consider it at all, at least expressly, perhaps because it was wrongly thought to be an alternative to the award of damages for the mother's pain and suffering. It was not, for I would have awarded it to both parents. In my opinion the point is still open for consideration without the need to depart from the decision in McFarlane.

    125.  The award of a modest sum would not, of course, go far towards the costs of bringing up a child. It would not reflect the financial consequences of the birth of a normal, healthy child; but it would not be meant to. They are not the proper subject of compensation for the reasons stated in McFarlane. A modest award would, however, adequately compensate for the very different injury to the parents' autonomy; moreover it would be available without proof of financial loss, and so would not attract the distaste or moral repugnance which was the decisive factor in McFarlane. In that case I suggested that the award should not exceed £5,000 in a straightforward case. On reflection, I am persuaded that the figure should be a purely conventional one which should not be susceptible of increase or decrease by reference to the circumstances of the particular case. I agree with the figure of £15,000 which Lord Bingham has suggested.

    126.  I would allow the appeal and substitute an award of £15,000 as a conventional sum.

    LORD SCOTT OF FOSCOTE

My Lords,

    127.  In this appeal your Lordships have been invited to re-consider the decision of the House in McFarlane v Tayside Health Board [2000] 2 AC 59 and, second, to consider whether the principle established by that decision is determinative of the issue arising in the present case. It is, therefore, necessary to try to identify the principle underlying McFarlane.

    128.  The McFarlane case was one in which a married couple decided that they did not want any more children. So the husband, Mr McFarlane, underwent a vasectomy, or so he thought. After the operation had been carried out, Mr McFarlane submitted sperm samples for examination by the surgeon who had carried out the operation. The surgeon advised Mr and Mrs McFarlane that the samples showed the vasectomy had been successful and that they no longer needed to take contraceptive measures. This advice was acted on by Mr and Mrs McFarlane but unfortunately was wrong. Six months or so later Mrs McFarlane became pregnant and subsequently gave birth to a healthy baby who, although originally unwanted, became a much loved member of the McFarlane family. Mr and Mrs McFarlane sued for damages in negligence. It may be that the vasectomy had been negligently carried out but they based their claim on the surgeon's negligent representation that Mr McFarlane's sperm counts were negative. This negligent advice was, indeed, the only basis on which Mrs McFarlane could have based an action. The McFarlanes claimed damages for Mrs McFarlane's pain, suffering and distress attributable to the unwanted pregnancy and the trauma of childbirth and also for the costs they would incur in raising the child to adulthood. Nothing, for present purposes, turns on the former damages claim. The House held, unanimously that the McFarlanes were not entitled to the latter.

    129.  It is helpful, to me at least, to start with a review of the general principles that apply to damages. The basic rule of damages, whether in contract or in tort, was expressed by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25. He said, at p 39, that damages should be

    "…. that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."

    130.  In applying this principle there is often, however, a difference depending on whether the claim is a contractual one or a claim in tort. In general, where a claim is based on a breach of contract, the claimant is entitled to the benefit of the contract and entitled, therefore, to be placed in the position, so far as money can do so, in which he would have been if the contractual obligation had been properly performed. But where the claim is in tort, there being no contract to the benefit of which the claimant is entitled, the claimant is entitled to be placed in the position in which he would have been if the tortious act, the wrong, had not been committed. The difference in approach is often important in cases where the claim is based on negligent advice or negligent misrepresentation. If the defendant was under a contractual obligation to give competent advice, the claimant is entitled to be put in the position he would have been in if competent advice had been given. But if the defendant owes no contractual obligation to the claimant and the case is brought in tort, the claimant must be put in the position he would have been in if no advice had been given at all.

    131.  I have mentioned this difference in approach to claims in contract and claims in tort in order to clear it out of the way. For it has, in my opinion, no relevance at all in cases based on professional advice or services given by professionals. There are two reasons for this. First, if a professional, whether a doctor, a lawyer or any other professional, provides professional advice or services to a client on a non-contractual basis, the professional owes to the client a professional duty of care in doing so. In the case, for example, of a doctor working in the National Health Service and advising or treating an NHS patient, the advice or services are provided by the doctor pursuant to his contractual arrangements with the NHS, not pursuant to any contract with the patient. But the intention and purpose of those arrangements is that the doctor's services be made available to NHS patients. That being so, the extent of the duty of care owed to each NHS patient and the extent of the doctor's liability, and his NHS employer's vicarious liability, if the doctor is in breach of that duty, cannot in my opinion be any different from the extent of the duty and of the liability for any breach of duty that would apply in the case of a private patient with whom the doctor had a contractual relationship. The NHS patient is entitled to the benefit of the contractual duty owed by the doctor pursuant to his contract with his NHS employers. (c/f White v Jones [1995] 2 AC 207 where the disappointed beneficiaries, suing in tort, were placed by way of damages in the position they would have been in if the negligent solicitor had properly discharged his duty to his client, the testator).

    132.  Alternatively, applying the traditional approach to tortious damages, it can be said that if, in a case like McFarlane, no representation at all had been made by the surgeon about Mr McFarlane's post-vasectomy fertility, the McFarlanes would not have assumed that contraceptive measures were unnecessary, would have taken suitable precautions and would have been in exactly the same position as they would have been in if a correct representation about his fertility had been made. Similarly, in a case like the present one, if a sterilisation operation had not been carried out on the respondent by the negligent doctor, the respondent would either have continued to take contraceptive measures or she would have had a sterilisation operation carried out by some other doctor. In either case her baby would, on a balance of probabilities, not have been conceived.

    133.  Accordingly, as it seems to me, the answer to the McFarlane case, to the present case and to each of the other like cases to which your Lordships have been referred does not depend on whether the claim is a contractual or a tortious one. The same result must be reached whether the claimant was a private patient or an NHS patient. In every case the claimant, having established negligence, is entitled, as a matter of general principle, to be placed in the same position he or she would have been in if the professional advice or services had been competently provided. So in every case this general principle of damages would require the claimant to be placed in the position he or she would have been in if the baby had not been born.

    134.  It is at this point that, as it seems to me, the application of general principle becomes difficult. It becomes difficult because the consequence of the negligence is the birth of a human being and because assessments about the value or the burden of a particular human life are impossible. These difficulties have to be grappled with, and I will come back to them, but before doing so I want to consider how the damages issue would look if analogous professional negligence had occurred in a context that did not involve these difficulties. Suppose the owner of a two year old colt decided to have the colt gelded and engaged a veterinary surgeon (a vet) to carry out the operation. The vet operates on the colt and advises the owner that the operation has been successful. In the belief that that is so the owner allows the gelding, as he believes the colt to have become, to graze in a paddock with some mares. But the operation has been negligently performed, the colt succeeds in getting one of the mares in foal, the condition of the mare is not discovered until it is too late to do anything about it and in due time the mare gives birth to a healthy foal. The mare is not damaged by the experience but the owner sues the vet for damages. Negligence is not in issue. For what damages would the vet be liable? An account of detriment and benefit would need to be drawn up. Veterinary costs occasioned by the mare's unwanted pregnancy and the birth of the foal would be recoverable. But what else? Special circumstances might, subject to remoteness rules, justify special claims; but leave special claims aside. What about the costs of rearing the foal to maturity? The proposition that the defendant vet would be liable for such costs seems absurd. It is instructive to ask oneself why that is so. It is absurd, in my opinion, because the owner of the foal does not have to keep it. Its unexpected and originally unwanted arrival would present him with a number of choices. He could have the foal destroyed as soon as it was born. But this would be an unlikely choice for the foal would be likely to have some value and it would cost very little to leave it with its dam until it could be weaned. Or the owner could decide to keep the foal until it could be weaned and then to sell it. Or he could decide to keep it until, as a yearling or a two year old, it had reached a little more maturity and then sell it. Or he could try and add value to it by breaking it in, schooling it and then selling it. Or he could keep it for his own use. Each of these choices, bar the first, would have involved the owner in some expense in rearing the foal. But the expense would be the result of his choice to keep the foal. Moreover, the expense of rearing the foal would have to be set against the value of the foal. The owner could not claim as damages reimbursement of the expenses without bringing into account the benefit.

 
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