Rees v Darlington Memorial Hospital NHS Trust
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD HUTTON,LORD MILLETT |
| Judgment Date | 16 October 2003 |
| Neutral Citation | [2003] UKHL 52 |
| Date | 16 October 2003 |
| Court | House of Lords |
[2003] UKHL 52
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Hutton
Lord Millett
Lord Scott of Foscote
HOUSE OF LORDS
My Lords,
In McFarlane v Tayside Health Board [2000] 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 [2001] EWCA Civ 530, [2002] 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: [2002] EWCA Civ 88, [2003] 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.
Since the argument in this appeal the High Court of Australia has given judgment in Cattanach v Melchior [2003] 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 ([2001] 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.
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:
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(1) That full damages against the tortfeasor for the cost of rearing the child may be allowed, subject to the ordinary limitations of reasonable foreseeability and remoteness, with no discount for joys, benefits and support, leaving restrictions upon such recovery to such limitations as may be enacted by a Parliament with authority to do so.
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(2) That damages may be recovered in full for the reasonable costs of rearing an unplanned child to the age when that child might be expected to be economically self-reliant, whether the child is "healthy" or "disabled" or "impaired" but with a deduction from the amount of such damages for the joy and benefits received, and the potential economic support derived, from the child.
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(3) That no damages may be recovered where the child is born healthy and without disability or impairment.
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 [1985] QB 1012, Thake v Maurice [1986] QB 644, Benarr v Kettering Health Authority [1988] 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 [1983] 1 AC 410, 429-430 would have pointed towards adoption of this first solution.
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.
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 [1972] 1 QB 373, 397:
"This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house. The case itself can be brought within the words of Lord Atkin in Donoghue v Stevenson: but it is a question whether we should apply them here. In Dorset Yacht Co Ltd v Home Office [1970] AC 1004, Lord Reid said, at p 1023, that the words of Lord Atkin expressed a principle which ought to apply in general 'unless there is some justification or valid explanation for its exclusion.' So did Lord Pearson at p 1054. But Lord Diplock spoke differently. He said it was a guide but not a principle of universal application (p 1060). It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them according to the reason of the thing.
In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt? But the question has always been there in the background. It has been concealed behind such questions as: Was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable, or not? Was it too remote? And so forth.
Nowadays we direct ourselves to considerations of policy. In Rondel v Worsley [1969] 1 AC 191, we thought that if advocates were liable to be sued for negligence they would be hampered in carrying out their duties. In Dorset Yacht Co Ltd v Home Office [1970] AC 1004, we thought that the Home Office ought to pay for damage done by escaping Borstal boys, if the staff was negligent, but we confined it to damage done in the immediate vicinity. In SCM (United Kingdom) Ltd v W J Whittall & Son Ltd [1971] 1 QB 337, some of us thought that economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers. In Launchbury v Morgans [1971] 2 QB 245, we thought that as the owner of the family car was insured she should bear the loss. In short, we look at the relationship of the parties: and then say, as matter of policy, on whom the...
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Table of cases
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