Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530

A mother sued for negligent sterilisation resulting in the birth of a child with significant disabilities. The Court of Appeal held that while the ordinary costs of raising a healthy child are not recoverable, the additional costs associated with the child's disability are.

Facts

The claimant, Ms Parkinson, a mother of four, underwent a sterilisation operation performed by a surgeon employed by the defendant NHS Trust. The procedure was carried out negligently. Subsequently, she became pregnant and gave birth to her fifth child, Christopher. Christopher was born with significant disabilities, including autism and behavioural difficulties, although these were not caused by the negligence but were an ordinary risk of any pregnancy. Ms Parkinson brought a claim for damages to cover the costs of raising the child. The trial judge, relying on the House of Lords’ decision in McFarlane v Tayside Health Board, awarded only general damages for the pain and suffering of pregnancy and birth but rejected the claim for the financial costs of the child’s upbringing.

Issues

The central legal issue on appeal was whether a parent could recover damages for the financial costs of raising a child with a disability, where the child was born following a negligently performed sterilisation. This required the Court to determine whether the principle established in McFarlane, which prevented recovery for the costs of raising a healthy child, should be extended to cover the additional costs attributable to a child’s disability.

Judgment

The Court of Appeal unanimously allowed the appeal, holding that the additional costs of raising a disabled child were recoverable. The judges distinguished the case from McFarlane on grounds of public policy and fairness.

Lord Justice Brooke

Brooke LJ reasoned that it was fair, just, and reasonable to impose liability for the extra costs associated with a child’s disability. He stated that the birth of a disabled child was a foreseeable consequence of the pregnancy. He distinguished the financial burden from that of raising a healthy child, which the House of Lords in McFarlane had deemed to be offset by the ‘blessings’ of parenthood. He concluded:

In my judgment, if a surgeon undertakes the sterilisation of a woman, and she is anxious for the operation for socio-economic reasons, it is foreseeable that if the operation is performed so negligently that she becomes pregnant she will suffer damage and that part of that damage will be the cost of bringing up a child. If the child is born with a disability, the financial consequences will be greater. In my judgment it would be fair, just and reasonable to impose on the surgeon a liability to pay for the extra expense of bringing up such a child.

Lady Justice Hale

Hale LJ (as she then was) provided a detailed analysis, framing the recoverable damage as the unwanted pregnancy and birth, not the child itself. She argued that the policy reasons underpinning the McFarlane decision did not apply with the same force to the costs of disability. While raising a healthy child involves a mix of benefits and burdens which the law treats as incalculable, the additional responsibilities of caring for a disabled child are of a different nature.

For those reasons, it seems to me that the ‘fair, just and reasonable’ test applies differently to the two sorts of claim. The policy objections to the recoverability of the costs of a basic upbringing should not prevent the recovery of the additional costs of bringing up a significantly disabled child. These are not outweighed by the benefit of the child’s existence, because a court can and should value the additional costs of bringing up a disabled child. These are something over and above the costs of bringing up a healthy child.

Implications

This landmark decision modified the principle from McFarlane v Tayside Health Board. It established a legal distinction in ‘wrongful birth’ claims between the non-recoverable costs of raising a healthy child and the recoverable ‘extra’ costs associated with a child’s disability. The ruling affirmed that the additional financial burden of caring for a disabled child was a foreseeable head of damage arising from a negligent sterilisation. This created a new avenue for compensation in clinical negligence cases, though the distinction it drew between healthy and disabled children proved controversial and was later revisited by the House of Lords in Rees v Darlington Memorial Hospital NHS Trust.

Verdict: The appeal was allowed. The claimant was entitled to recover damages representing the special upbringing costs associated with her child’s disability, with the case being remitted for assessment of those damages.

Source: Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530