Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52

A severely visually impaired woman underwent a negligently performed sterilisation and gave birth to a healthy child. She claimed child-rearing costs, including extra costs due to her disability. The House of Lords upheld McFarlane, refused such costs, but created a £15,000 conventional award for loss of autonomy.

Facts

Ms Karina Rees suffered from retinitis pigmentosa, leaving her blind in one eye and with severely limited vision in the other. Concerned that her disability would prevent her from properly looking after a child, and anxious about pregnancy and childbirth, she decided never to have children and opted for sterilisation.

In 1995 she was referred by her GP to a consultant gynaecologist at Darlington Memorial Hospital. The consultant was informed that she was partially sighted, that her sight had deteriorated and that she was adamant she did not want children. He performed a sterilisation operation on 18 July 1995, but negligently failed adequately to occlude the fallopian tubes. Ms Rees, unaware of the failure, became pregnant in July 1996 and gave birth to a healthy child, Anthony, in April 1997. Anthony’s father took no part in his upbringing; Ms Rees, a single mother, cared for him with help from her family.

Ms Rees sued the NHS Trust for negligence, claiming (i) the ordinary costs of bringing up Anthony and (ii) additional costs of child care said to be incurred because of her severe visual disability. Negligence was admitted.

A High Court deputy judge, applying McFarlane v Tayside Health Board, held she could not recover any child-rearing costs. The Court of Appeal majority, however, relying on Parkinson v St James and Seacroft University Hospital NHS Trust, held that while McFarlane precluded ordinary upbringing costs, a disabled parent could in principle recover the extra costs of bringing up a child that were attributable to the parent’s disability. Waller LJ dissented.

The Trust appealed to the House of Lords, arguing that the Court of Appeal’s approach conflicted with McFarlane. Ms Rees supported the Court of Appeal’s reasoning but also invited the House to reconsider McFarlane and allow full upbringing costs.

Issues

1. Whether to depart from McFarlane

The first question was whether the House should use the 1966 Practice Statement to depart from McFarlane and allow parents of a healthy child born after negligent sterilisation to recover the full costs of upbringing.

2. Recoverability of child-rearing costs where the parent is disabled

If McFarlane stood, the key issue was whether a disabled parent could nonetheless recover the additional costs of bringing up a healthy child which would not be incurred by a healthy parent and which were attributable to the parent’s disability.

3. Status of Parkinson (disabled child)

The House also had to consider the status and reasoning of Parkinson, which had held that, although ordinary upbringing costs remained irrecoverable, extra costs attributable to the child’s disability were recoverable.

4. Conventional award for loss of autonomy

A further question, raised by Lord Millett’s suggestion in McFarlane, was whether the Court could award a fixed conventional sum to mark the denial of the parent’s ability to limit the size of her family (i.e. interference with autonomy), over and above damages for pregnancy and birth.

Judgment

Refusal to depart from McFarlane

All members of the House accepted that, on orthodox principles of causation and foreseeability, the negligent medical advice or procedure had caused the pregnancy and birth, and that the financial costs of bringing up a child were a foreseeable consequence. However, the majority (Lord Bingham, Lord Nicholls, Lord Millett and Lord Scott) held that McFarlane should not be reopened.

They emphasised the Practice Statement constraints: stability and certainty in the law require more than a change in judicial opinion to overturn a recent, fully reasoned decision of the House on a controversial question already subjected to extensive analysis. Lord Steyn reviewed R v Knuller (Publishing, Printing and Promotions) Ltd and Fitzleet Estates Ltd v Cherry to illustrate that the House should not revisit a recent decision simply because a differently constituted committee might prefer the dissenting view.

The majority reaffirmed the core reasoning of McFarlane: the cost of raising a healthy child is not recoverable because fairness, reasonableness and legal policy – including notions of distributive justice – make it inappropriate to treat the birth of a healthy child as compensatable economic loss. Lord Nicholls noted that recoverability of damages is bounded by considerations of fairness and reasonableness rather than mechanical application of causation rules, and that making the NHS fund the entire cost of bringing up such children would be disproportionate and out of step with societal values.

Lord Millett reiterated his earlier view that:

“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.”

Lord Hope and Lord Hutton agreed that McFarlane was correctly decided and, even if there were doubts, it should not be revisited so soon.

Disabled parent and recovery of extra upbringing costs

The House divided on whether Ms Rees could recover extra child-rearing costs attributable to her blindness.

Majority view: no recovery of upbringing costs, even for a disabled parent

Lord Bingham, Lord Nicholls, Lord Millett and Lord Scott held that Ms Rees could not recover any costs of bringing up her healthy child, whether ordinary or “extra” costs linked to her disability.

Lord Bingham accepted that Ms Rees had suffered a legal wrong and that the loss was not merely the physical discomfort of pregnancy and childbirth but the denial of the opportunity to live her life as she had planned, free from parental responsibilities. Nonetheless, he considered it unfair and anomalous to tie liability to disability when the negligence had caused the birth, not the disability. He was concerned that the Court of Appeal’s approach would create anomalies, encourage parents to exaggerate or emphasise disability, and be extremely difficult to quantify in a welfare state that already provided disability-related support.

Lord Millett reasoned that McFarlane had already decided that the costs of bringing up a healthy child are not recoverable, even where reasonably incurred. Those costs vary widely with each family’s circumstances, including income, lifestyle, employment and available family support. To treat increased costs due to parental disability as recoverable would, in his view, impermissibly convert the action into one for damages for the parent’s disability itself, which the defendant had not caused. He stressed that it was impossible in principle to disentangle costs attributable to the child’s birth from those attributable to the parent’s pre-existing disability, since they were “a single cost with composite causes”.

Lord Scott took a similar view. He saw McFarlane as creating an exception to ordinary damages principles grounded in the unique status of human life and the impossibility of valuing a child’s presence in the family. The mother’s blindness did not displace that reasoning; the same “unique” considerations applied to a disabled mother with a healthy, loved child. He warned that creating an “exception to an exception” for disabled parents would produce “messy jurisprudence” and lead to further ad hoc exceptions.

Lord Nicholls considered that once the law had decided that the costs of bringing up a healthy child were irrecoverable, introducing an exception for disabled parents or children would create inescapable anomalies. The variety of family circumstances meant that discretionary, means-tested awards would be unsustainable. A uniform, modest lump sum was preferable.

Minority view: disabled parent may recover extra costs

Lord Steyn, Lord Hope and Lord Hutton agreed that McFarlane was correct and should stand, but they would have upheld the Court of Appeal in allowing a disabled parent to claim the additional costs of rearing a healthy child that were attributable to the parent’s serious disability.

Lord Steyn regarded the case as a “truly hard” one involving competing, reasonable arguments. He found Waller LJ’s examples of hardship in non-disability cases powerful but concluded that the injustice of denying a seriously disabled mother any compensation for disability-related extra costs outweighed concerns about arbitrariness. He saw this as a legitimate, though limited, extension of Parkinson and consistent with the law’s increasing recognition of disabled persons as requiring special consideration.

Lord Hope analysed Parkinson and agreed with it, distinguishing between ordinary child-rearing costs (irrecoverable) and extra costs attributable to a child’s serious disability (recoverable) as a matter of legal policy. He then extended that reasoning to disabled parents. He accepted that care was needed to avoid awarding damages for the disability itself, but considered that:

“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.”

He concluded that it was fair, just and reasonable to treat those extra costs as within the scope of the duty of care, drawing support from the developing body of disability discrimination legislation and the aim of enabling disabled people to participate in normal life on equal terms.

Lord Hutton similarly held that while McFarlane precluded claims by healthy parents for the costs of bringing up a healthy child, it should not apply where the mother herself was disabled. He regarded the disabled mother’s position as sufficiently distinct to fall outside the exception created by McFarlane, and saw the case as returning to the general principle that a claimant may recover all damages directly flowing from a negligent breach of duty.

Status of Parkinson

The House did not expressly overrule Parkinson, but the reasoning of the judges diverged:

• Lord Steyn, Lord Hope and Lord Hutton approved Parkinson, accepting that extra costs attributable to a disabled child can be recovered as an exception distinct from McFarlane.
• Lord Bingham proposed applying a uniform conventional award in all such cases, whether parent or child was disabled, which would, in practical effect, supersede the approach in Parkinson.
• Lord Millett questioned whether Parkinson was consistent with McFarlane, but considered it unnecessary formally to decide the point in this appeal.
• Lord Scott expressed doubts about Parkinson in situations where there had been no particular reason to fear a disabled child, suggesting that mere statistical foreseeability of congenital abnormality did not justify imposing liability for disability-related costs.

Creation of a conventional award for loss of autonomy

The majority fashioned a new remedy: a fixed conventional sum to recognise the wrong done to Ms Rees in being denied the ability to limit her family size and to live her life as planned.

Lord Bingham considered that, although full child-rearing costs were irrecoverable, it was unfair that a parent in Ms Rees’ position should receive nothing beyond damages directly related to pregnancy and birth. He thought that to speak only of a lost “freedom to limit the size of one’s family” masked the real loss:

“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.”

He endorsed Lord Millett’s earlier suggestion in McFarlane of a conventional award, but increased the figure to £15,000, to be added to any pregnancy and birth damages. He stressed that the award would not be compensatory in the usual, calculated sense, but would provide “some measure of recognition of the wrong done”.

Lord Millett elaborated that the proper outcome in all such cases was to award a modest conventional sum by way of general damages “for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family”. In his view:

“The loss of this opportunity, whether characterised as a right or a freedom, is a proper subject for compensation by way of damages.”

He favoured a purely conventional, non-variable figure, and agreed with Lord Bingham’s figure of £15,000.

Lord Scott also supported a £15,000 conventional award to compensate Ms Rees for being deprived of the benefit of a properly carried out sterilisation, drawing analogy with valuation of non-pecuniary contractual benefits in cases such as Farley v Skinner.

Lord Nicholls accepted that an award of some amount should be made to recognise the legal wrong and endorsed the £15,000 sum as an “arbitrary” but fair gloss on McFarlane.

Strong dissent on the conventional award

Lord Steyn and Lord Hope strongly opposed the creation of this conventional award. Lord Steyn considered it a “radical and most important development” undertaken without adequate argument, research or lower court consideration. He doubted that judges possessed authority to create such a remedy, noted the absence of domestic or foreign precedent, and saw the approach as a “backdoor evasion” of the legal policy in McFarlane, better left to Parliament and possibly the Law Commissions.

Lord Hope questioned whether the award could be reconciled with the compensatory principle articulated in Livingstone v Rawyards Coal Co. He accepted that conventional figures are used for non-pecuniary loss (e.g. bereavement), but argued that this had never been the method for dealing with what is essentially financial loss. He found problematic both the theoretical basis of the award and the selection of an appropriate figure without guidance, warning that the proposed sum might fall well short of compensating for the claimed loss of opportunity while still undermining principle. He rejected Lord Bingham’s description of the new rule as a mere “gloss” on McFarlane.

Implications

The decision reaffirms and entrenches McFarlane as the governing authority on “wrongful conception” claims involving healthy children. The core rule is that, following negligent sterilisation or contraceptive advice, the costs of bringing up a healthy child are not recoverable, whether the claim is framed in contract or tort, and irrespective of parental disability.

For practitioners, the case confirms that attempts to characterise certain child-rearing expenses as “extra” or “disability-related” on the parent’s side will not succeed: such costs remain outside the scope of recoverable loss where the child is healthy. While Parkinson remains an authority for disabled children, its precise status is complicated by the differing emphases in the speeches and by Lord Bingham’s preference for a single, conventional award approach.

Most significantly, the majority introduce a novel conventional award of £15,000 to mark the denial of reproductive autonomy, to be recoverable in all such cases involving healthy children, regardless of disability. This award is expressly non-compensatory in the traditional sense and rests on a legal policy judgment about recognising personal autonomy within the law of negligence.

The split within the House underscores tensions between corrective justice (compensation flowing from causation and foreseeability) and legal policy limits based on distributive justice, moral valuation of human life and the coherence of the tort system. The dissenting opinions highlight concerns about judicial law-making at the boundary of tort and social policy, and suggest that any broader reform of such claims is more suitably undertaken by Parliament.

Overall, Rees both consolidates the restriction on recovery of upbringing costs for healthy children and marks an important, if controversial, development in recognising loss of autonomy as a distinct head of non-pecuniary loss in English tort law.

Verdict: Appeal allowed. The orders of the Court of Appeal and the deputy High Court judge were set aside. Ms Rees was held not entitled to recover any costs of bringing up her child but was awarded a conventional sum of £15,000 to recognise the loss of her ability to limit the size of her family.

Source: Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52