House of Lords
|Session 2002 - 03
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Rees (Respondent) v Darlington Memorial Hospital NHS Trust (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Darlington Memorial Hospital NHS Trust (Appellants)
THURSDAY 16 OCTOBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Rees (Respondent) v. Darlington Memorial Hospital NHS Trust (Appellants)
 UKHL 52
LORD BINGHAM OF CORNHILL
1. In McFarlane v Tayside Health Board  2 AC 59 a husband and wife, themselves healthy and normal, sought to recover as damages the cost of bringing up a healthy and normal child born to the wife, following allegedly negligent advice on the effect of a vasectomy performed on the husband. Differing from the Inner House of the Court of Session (1998 SLT 307), the House unanimously rejected this claim. A factual variant of that case reached the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust  EWCA Civ 530,  QB 266: the mother, who had undergone a negligently performed sterilisation operation, conceived and bore a child who was born with severe disabilities. Following McFarlane, the Court of Appeal held that the mother could not recover the whole cost of bringing up the child; but it held that she could recover the additional costs she would incur so far as they would be attributable to the child's disabilities. There was no appeal from that decision. The present case raises a further factual variant of McFarlane. The claimant in these proceedings (Ms Rees) suffers a severe and progressive visual disability, such that she felt unable to discharge the ordinary duties of a mother, and for that reason wished to be sterilised. She made her wishes known to a consultant employed by the appellant NHS Trust, who carried out a sterilisation operation but did so negligently, and the claimant conceived and bore a son. The child is normal and healthy but the claimant's disability remains. She claimed as damages the cost of rearing the child. The Court of Appeal (Robert Walker and Hale LJJ, Waller LJ dissenting) held that she was entitled to recover the additional costs she would incur so far as they would be attributable to her disability:  EWCA Civ 88,  QB 20. The appellant NHS Trust now challenges that decision as inconsistent with McFarlane. The claimant seeks to uphold the decision, but also claims the whole cost of bringing up the child, inviting the House to reconsider its decision in McFarlane.
2. Since the argument in this appeal the High Court of Australia has given judgment in Cattanach v Melchior  HCA 38. That case arose from negligent advice following an incompletely performed sterilisation operation and one of the issues (the only issue litigated in the High Court) was whether the parents could recover as damages the cost of rearing the child, both parents and child being normal and healthy. The trial judge upheld that claim and her decision was affirmed by a majority of the Court of Appeal of the Supreme Court of Queensland ( QCA 246) and by a bare majority of the High Court. I have found the judgments of the High Court of particular value since, although most of the arguments deployed are not novel (as they could scarcely be, given the volume of litigation on this subject in many different countries), the division of opinion among the members of the court gives the competing arguments a notable sharpness and clarity.
3. It is convenient to begin by considering McFarlane. In that case there were, as it seems to me, broadly three solutions which the House could have adopted to the problem then before it. (I can, for present purposes, omit two of the solutions which Kirby J listed in paragraph 138 of his judgment in Melchior but gratefully adopt his formulation of the remaining three, while altering their order). They were:
4. An orthodox application of familiar and conventional principles of the law of tort would, I think, have pointed towards acceptance of the first of these solutions. The surgeon whose allegedly negligent advice gave rise to the action was exercising his professional skill for the benefit of the McFarlanes who relied on it. The foreseeable result of negligent advice would be the birth of a child, the very thing they wished to avoid. No one can be unaware that bringing up a child has a financial cost. All members of the House accepted that the surgeon owed a duty of care to the McFarlanes, and the foreseeable result was that which occurred. Thus the proven violation of a legal right would lead to a compensatory remedy. I do not find it surprising that this solution has been supported by the line of English authority which preceded McFarlane (Emeh v Kensington and Chelsea and Westminster Area Health Authority  QB 1012, Thake v Maurice  QB 644, Benarr v Kettering Health Authority  138 NLJ 179), by the Inner House in McFarlane itself (1998 SLT 307), by decisions of the Hoge Raad in the Netherlands and the Bundesverfassungsgericht in Germany (see Keuleneer, Androulidakis-Dimitriadis and Pozzo, European Review of Private Law 2:241-256, 1999) and now by a majority of the High Court of Australia. Faithful adherence to the precepts articulated by Lord Scarman in McLoughlin v O'Brian  1 AC 410, 429-430 would have pointed towards adoption of this first solution.
5. The second solution has been adopted in 6 state courts in the United States (see La Croix and Martin, "Damages in Wrongful Pregnancy Tort Actions", in Ireland and Ward, Assessing Damages in Injuries and Deaths of Minor Children (2002) 93, 97-98, quoted by Callinan J in his judgment in Melchior, paragraph 287). But this solution did not commend itself to any member of the House in McFarlane or any member of the High Court in Melchior, it was not supported by counsel in the present appeal and the objections to it are in my opinion insuperable. While it would be possible to assess with some show of plausibility the likely discounted cost of rearing a child until the age when the child might reasonably be expected to become self-supporting, any attempt to quantify in money terms the value of the joys and benefits which the parents might receive from the unintended child, or any economic benefit they might derive from it, would, made when the child is no more than an infant, be an exercise in pure speculation to which no court of law should lend itself. I need say no more of this possible solution.
6. The five members of the House who gave judgment in McFarlane adopted different approaches and gave different reasons for adopting the third solution listed in paragraph (3) above. But it seems to me clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy). This is not a criticism. As Lord Denning MR said in Dutton v Bognor Regis Urban District Council  1 QB 373, 397:
The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child (even if unwanted) as a financial liability and nothing else, a recognition that the rewards which parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a National Health Service always in need of funds to meet pressing demands would rightly offend the community's sense of how public resources should be allocated. Kirby J was surely right to suggest (in paragraph 178 of his judgment in Melchior) that:
It is indeed hard to think that, if the House had adopted the first solution discussed above, its decision would have long survived the first award to well-to-do parents of the estimated cost of providing private education, presents, clothing and foreign holidays for an unwanted child (even if at no more expensive a level than the parents had provided for earlier, wanted, children) against a National Health Service found to be responsible, by its negligence, for the birth of the child. In favouring the third solution, holding the damages claimed to be irrecoverable, the House allied itself with the great majority of state courts in the United States and relied on arguments now strongly supported by the dissenting judgments of Gleeson CJ, Hayne and Heydon JJ in Melchior.
7. I am of the clear opinion, for reasons more fully given by my noble and learned friends, that it would be wholly contrary to the practice of the House to disturb its unanimous decision in McFarlane given as recently as 4 years ago, even if a differently constituted committee were to conclude that a different solution should have been adopted. It would reflect no credit on the administration of the law if a line of English authority were to be disapproved in 1999 and reinstated in 2003 with no reason for the change beyond a change in the balance of judicial opinion. I am not in any event persuaded that the arguments which the House rejected in 1999 should now be accepted, or that the policy considerations which (as I think) drove the decision have lost their potency. Subject to one gloss, therefore, which I regard as important, I would affirm and adhere to the decision in McFarlane.
8. My concern is this. Even accepting that an unwanted child cannot be regarded as a financial liability and nothing else and that any attempt to weigh the costs of bringing up a child against the intangible rewards of parenthood is unacceptably speculative, the fact remains that the parent of a child born following a negligently performed vasectomy or sterilisation, or negligent advice on the effect of such a procedure, is the victim of a legal wrong. The members of the House who gave judgment in McFarlane recognised this by holding, in each case, that some award should be made to Mrs McFarlane (although Lord Millett based this on a ground which differed from that of the other members and he would have made a joint award to Mr and Mrs McFarlane). I can accept and support a rule of legal policy which precludes recovery of the full cost of bringing up a child in the situation postulated, but I question the fairness of a rule which denies the victim of a legal wrong any recompense at all beyond an award immediately related to the unwanted pregnancy and birth. The spectre of well-to-do parents plundering the National Health Service should not blind one to other realities: that of the single mother with young children, struggling to make ends meet and counting the days until her children are of an age to enable her to work more hours and so enable the family to live a less straitened existence; the mother whose burning ambition is to put domestic chores so far as possible behind her and embark on a new career or resume an old one. Examples can be multiplied. To speak of losing the freedom to limit the size of one's family is to mask the real loss suffered in a situation of this kind. This is that a parent, particularly (even today) the mother, has been denied, through the negligence of another, the opportunity to live her life in the way that she wished and planned. I do not think that an award immediately relating to the unwanted pregnancy and birth gives adequate recognition of or does justice to that loss. I would accordingly support the suggestion favoured by Lord Millett in McFarlane (at p 114) that in all cases such as these there be a conventional award to mark the injury and loss, although I would favour a greater figure than the £5,000 he suggested (I have in mind a conventional figure of £15,000) and I would add this to the award for the pregnancy and birth. This solution is in my opinion consistent with the ruling and rationale of McFarlane. The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.
9. I would for my part apply this rule also, without differentiation, to cases in which either the child or the parent is (or claims to be) disabled:
(1) While I have every sympathy with the Court of Appeal's view that Mrs Parkinson should be compensated, it is arguably anomalous that the defendant's liability should be related to a disability which the doctor's negligence did not cause and not to the birth which it did.
(2) The rule favoured by the Court of Appeal majority in the present case inevitably gives rise to anomalies such as those highlighted by Waller LJ in paragraphs 53-54 of his dissenting judgment.
(3) It is undesirable that parents, in order to recover compensation, should be encouraged to portray either their children or themselves as disabled. There is force in the points made by Kirby J in paragraphs 163-166 of his judgment in Melchior.
(4) In a state such as ours, which seeks to make public provision for the consequences of disability, the quantification of additional costs attributable to disability, whether of the parent or the child, is a task of acute difficulty. This is highlighted by the inability of the claimant in this appeal to give any realistic indication of the additional costs she seeks to recover.
10. I would accordingly allow the appeal, set aside the orders of the Court of Appeal and of the Deputy Judge, and order that judgment be entered for the claimant for £15,000. I would invite the parties to make written submissions on costs within 14 days.LORD NICHOLLS OF BIRKENHEAD
11. In this appeal, as in the recent case of McFarlane v Tayside Health Board  2 AC 59, your Lordships' House has to make a decision concerning the development of the law in a field which is highly controversial and, therefore, exceedingly difficult. What should be the policy of the law on the award of damages when an unwanted pregnancy occurs, and an unintended child is born, following professionally negligent medical procedures or advice? Should the doctor or the hospital be required to pay the cost of bringing up the child to an age when he will be self-supporting?
12. The parent's claim in this type of case can be stated simply. The negligent doctor committed a legal wrong towards the parent, and the precise event the parent sought to avoid then happened: the birth of a child. On ordinary legal principles the foreseeable adverse financial consequences of a legal wrong may expect to be borne by him who committed the wrong. Here the cost of bringing up the child was foreseeable and, indeed, may have been one of the very reasons why the parent sought to avoid pregnancy.
13. This argument is forceful. But it is important to keep in mind that the law's evaluation of the damages recoverable for a legal wrong is not an automatic, mechanical exercise. Recoverability of damages is always bounded by considerations of fairness and reasonableness: see Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5)  UKHL 19;  2 AC 883, 1090 - 1091, paras 69-70. So the answers to the questions I have stated calls for an assessment of what is fair and reasonable in cases of this nature.
14. Judges of course do not have, and do not claim to have, any special insight into what contemporary society regards as fair and reasonable, although their legal expertise enables them to promote a desirable degree of consistency from one case or type of case to the next, and to avoid other pitfalls. But, however controversial and difficult the subject matter, judges are required to decide the cases brought before the courts. Where necessary, therefore, they must form a view on what are the requirements of fairness and reasonableness in a novel type of case.
15. In McFarlane v Tayside Health Board  2 AC 59, your Lordships' House held unanimously that a negligent doctor is not required to meet the cost of bringing up a healthy child born in these circumstances. The language, and to some extent the legal reasoning, employed by each of their Lordships differed. But, however expressed, the underlying perception of all their Lordships was that fairness and reasonableness do not require that the damages payable by a negligent doctor should extend so far. The approach usually adopted in measuring recoverable financial loss is not appropriate when the subject of the legal wrong is the birth of an unintended healthy child and the head of claim is the cost of the whole of the child's upbringing.
16. I have heard nothing in the submissions advanced on the present appeal to persuade me that this decision by the House was wrong and ought to be revisited. On the contrary, that the negligent doctor or, in most cases, the National Health Service should pay all the costs of bringing up the child seems to me a disproportionate response to the doctor's wrong. It would accord ill with the values society attaches to human life and to parenthood. The birth of a child should not be treated as comparable to a parent suffering a personal injury, with the cost of rearing the child being treated as special damages akin to the financially adverse consequences flowing from the onset of a chronic medical condition.
17. But this is not to say it is fair and reasonable there should be no award at all except in respect of stress and trauma and costs associated with the pregnancy and the birth itself. An award of some amount should be made to recognise that in respect of birth of the child the parent has suffered a legal wrong, a legal wrong having a far-reaching effect on the lives of the parent and any family she may already have. The amount of such an award will inevitably have an arbitrary character. I do not dissent from the sum of £15,000 suggested by my noble and learned friend Lord Bingham of Cornhill in this regard. To this limited extent I agree that your Lordships' House should add a gloss to the decision in McFarlane v Tayside Health Board  2 AC 59.
18. Once it is decided that damages do not include the cost of bringing up a healthy child, anomalies such as those noted by Waller LJ in the Court of Appeal in the present case become inescapable if an exception is made when either the child or the mother is disabled. The personal circumstances where this problem arises will vary so widely that what is fair and reasonable in one set of family circumstances, including the financial means of the family, may not seem so in another. But awards of damages of this nature cannot sensibly be made by courts on a discretionary or means-tested basis. The preferable approach is an award of a lump sum of modest amount in all circumstances.
19. For these reasons, and also the reasons given by Lord Bingham of Cornhill, I would allow this appeal, and set aside the orders of the Court of Appeal and of Stuart Brown QC sitting as a deputy High Court judge. In response to the preliminary issue I would declare that the claimant is not entitled to recover any of the costs of bringing up the child Anthony, but she is entitled to payment of £15,000.
I. A Disabled Mother and a Failed Sterilisation.
20. Ms Karina Rees is now 31 years of age. She suffers from a genetic condition known as retinitis pigmentosa. Since the age of two she has been blind in one eye and has limited vision (6/36) in the other. She is severely visually handicapped.
21. In 1995 Ms Rees consulted her general medical practitioner with a view to undergoing a sterilisation procedure. The GP referred her to a consultant gynaecologist at the Darlington Memorial Hospital. The referral letter to the consultant explained that:
When Ms Rees saw the consultant, she told him that she did not want to have children. She told him that her very poor eyesight would make it very difficult for her to look after a baby.
22. On 18 July 1995 the consultant performed the sterilisation operation. He did not adequately occlude the fallopian tubes. Ms Rees was unaware that the sterilisation operation had failed.
23. In July 1996 Ms Rees became pregnant. On 28 April 1997 she gave birth to a son, Anthony. His father has no desire to be involved with him. There is a risk that Anthony has inherited retinitis pigmentosa but it is low. Anthony is a healthy and normal child. Very little is known about the impact of Ms Rees' disability on the way in which she cares for Anthony. The Court of Appeal was, however, told that she is bringing up Anthony herself with the help of her mother and other relatives who live nearby. The Court of Appeal was also told that Ms Rees does not cook because she feels it to be too dangerous but that she does try to dress the child.
II. The Proceedings Below.
24. On 21 September 1999 Ms Rees issued proceedings in the Darlington County Court claiming damages for negligence arising out of the failure of the sterilisation operation. By her amended particulars of claim she claimed the cost of bringing up Anthony to his majority which costs would include expenses that would be common to the upbringing of Anthony by a mother who was healthy and expenses that would be incurred by her as a result of her visual handicap. By its defence the NHS Hospital Trust admitted that the sterilisation operation was performed negligently but it denied liability for any part of the cost of bringing up Anthony. The case was transferred to the High Court. On 1 May 2001 Mr Stuart Brown QC, sitting as a deputy judge of the High Court, heard a preliminary issue. The purpose of the preliminary issue was to determine whether Ms Rees was in principle entitled to recover any part of the cost of bringing up Anthony in the light of the decision of the House of Lords in McFarlane v Tayside Health Board  2 AC 59. In McFarlane this House had decided that parents of a healthy child, born after negligent sterilisation advice, could not recover in tort the cost of bringing up the child. At the same time the House held that a modest solatium in respect of the pain and suffering associated with pregnancy and childbirth may be awarded. On 16 May 2001, the judge held that Ms Rees was not entitled to recover any part of the costs of bringing up Anthony.