Rees v Darlington Memorial Hospital NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,Lord Justice Robert Walker,Lord Justice Waller |
| Judgment Date | 14 February 2002 |
| Neutral Citation | [2002] EWCA Civ 88 |
| Docket Number | Case No: B3/2001/1205 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2002 |
[2002] EWCA Civ 88
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(MR STUART BROWN QC)
Lord Justice Waller
Lord Justice Robert Walker and
Lady Justice Hale
Case No: B3/2001/1205
Robin de Wilde QC and Joseph P O'Brien (instructed by Messrs Blackett Hart & Pratt Solicitors) for the Appellant
Jeremy Stuart-Smith QC (instructed by Eversheds) for the Respondent
This is an appeal from the ruling of Mr Stuart Brown QC, sitting as a deputy judge of the High Court, on a preliminary issue. The claimant seeks damages for a sterilisation operation which was negligently performed, following which she gave birth to a son. The issue is whether she is entitled to recover any, and if so which, of the costs of bringing him up. The point raised is novel and important: this is the first, and so far as the researches of counsel have revealed, the only such case involving a disabled mother whose reason for not wanting a child was that her disability would make it difficult for her to look after and bring him up properly.
The agreed facts
The material parts of the agreed statement of facts may be summarised as follows:
(a) The claimant suffers from a genetic condition known as retinitis pigmentosa. Since the age of two she has been blind in one eye and has only limited vision in the other. She is severely visually handicapped.
(b) The referral letter from her GP to the consultant who carried out the operation informed him that she was registered partially sighted, her vision had deteriorated over previous years and she had recently given up work, she had great difficulty in finding a suitable method of contraception, she was adamant that she did not want and would never want children, she felt that her eyesight would bar her from looking after children, she was anxious about health matters and scared at the thought of labour and delivery.
(c) When she saw the consultant, she remained adamant, and told him that her very poor eyesight made it very difficult for her to look after a baby.
(d) The sterilisation was performed on 18 July 1995. The right fallopian tube was not adequately occluded.
(e) Her son Anthony was conceived in July 1996 and born on 28 April 1997. His father has no desire to be involved with him. There is a risk that he has inherited retinitis pigmentosa but it is low.
Unfortunately the agreed facts go no further. We know that the claimant is bringing up Anthony herself with the help of her mother and other relatives who live nearby. We have been told that she does not cook because she feels it to be too dangerous but she does try to dress him. We can only imagine the sort of difficulties facing them both. We have no evidence as to how, if at all, it is more costly for the claimant to look after Anthony than it would be for a mother who does not have her disability.
Proceedings were begun in September 1999. Negligence was admitted. The House of Lords gave judgment in McFarlane v Tayside Health Board [2000] 2 AC 59 in November 1999. They held that the parents could not claim the costs of bringing up a healthy child born as a result of a failed sterilisation. This case was transferred to the High Court for determination of the preliminary issue in November 2000. This court decided the case of Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2001] 3 WLR 376 in April 2001. It held that such a parent could claim the extra costs of bringing up a disabled child. The deputy judge decided the preliminary issue against the claimant on 16 May 2001. It is understandable that the parties felt at the time that the matter could be dealt with by way of a preliminary issue. In retrospect, and given that liability was admitted, it might have been easier to determine the legal issues in the context of concrete evidence of what might be involved.
The issue and arguments
The issue is very simple to state but difficult to resolve: does the House of Lords' decision in McFarlane mean that none of the costs of bringing up a healthy child can ever be claimed whatever the circumstances or can it be distinguished in the particular circumstances of this case? We have not been presented with any statistics but it is safe to assume that these circumstances are unusual. The experience of the 15 years in which these claims were recognised in both English (and then Scottish) law does not suggest that negligent sterilisations are common. The novelty of the present claim suggests that the proportion of those where the parent has sought sterilisation because of a disability which is likely to hamper her ability to bring up a child will be small.
Mr de Wilde QC, for the mother, was, as the judge put it, 'somewhat coy' about precisely what he sought to recover. His primary case before the judge was that he should have the full costs of bringing up Anthony, on the basis that McFarlane had no application at all to this case. It was only his secondary case that, by analogy with Parkinson, he should have the extra costs attributable to the mother's disability. This is perhaps unsurprising, as the decision in Parkinson was handed down only shortly before the hearing before the judge. But it meant that no great thought had been given to what those extra costs might be and how they might or might not be different from those incurred by any parent faced with having to look after a child she never meant to have. This problem featured heavily in the reasoning of the judge and in the arguments of Mr Stuart Smith QC for the defendant before him and again before us. Mr de Wilde did eventually concede before us that he was seeking only those extra costs, but again without precise definition or particulars.
The argument for the mother was put in two ways, relying respectively upon the reasoning of Brooke LJ and myself in Parkinson. Brooke LJ identified five techniques derived from recent decisions of the House of Lords for determining whether to uphold a claim for financial loss in situations 'outside the normal run of cases involving physical injury or physical damage'. He pointed out that there was no longer a single correct test. As Sir Brian Neill had said in BCCI v Price Waterhouse (No 2) [1998] PNLR 564, at 586F, 'if the facts are properly analysed and the policy considerations are correctly evaluated, the several approaches will yield the same result'. Brooke LJ summarised the five techniques thus: (i) whether the defendant had assumed responsibility for the services rendered so as to be liable for the economic consequences if he performed them negligently; (ii) what the purpose of the services was; (iii) whether it was legitimate to take the law forward one further step by analogy with established categories of liability; (iv) whether, given foreseeability and sufficient proximity, it was fair just and reasonable to hold the defendant responsible for the losses in question; and (v) whether the principles of distributive justice would provide a more just solution to the problem than an approach founded solely upon principles of corrective justice (see para 26).
Applying those techniques to the facts of Parkinson, he concluded that they permitted recovery of the special costs of rearing a disabled child by the following route (see para 50): the birth of a disabled child was a foreseeable consequence of negligently performing the operation; there was a very limited group of people who might be affected by the negligence; there was no difficulty in principle in accepting the proposition that the surgeon should be deemed to have assumed responsibility for these foreseeable and disastrous consequences; the purpose of the operation was, among other things, to prevent these; this was not a radical step into the unknown, given the experience of the 15 years before McFarlane; foreseeability and proximity were therefore established and given the financial and emotional drain associated with the extraordinary care required by a disabled child, the award of the special upbringing costs involved would be fair just and reasonable; and ordinary people would believe that an award limited to those extra costs would be just. He could find nothing in the majority reasoning in McFarlane to preclude that result.
Mr de Wilde therefore argues that each of those propositions, applied by Brooke LJ in Parkinson, can be applied to this case. Indeed, in some respects they might be thought to apply even more strongly: the birth of any child is an even more foreseeable consequence of the negligence than is the birth of a disabled child; the only person who could be affected, if the claim is limited to the extra costs occasioned by the disability, is the mother herself; the main purpose of the operation was to prevent just that; the surgeon knew all about it; hence their proximity is particularly close; he assumed responsibility for preventing this particular woman from having a child and could easily be taken to assume responsibility for the particular financial consequences to her of having the child; it is surely fair just and reasonable that a surgeon should be held responsible for these costs and any ordinary person would think it so.
In addition to the reasons given by Brooke LJ in Parkinson I took the view that the underlying reason why their lordships had concluded that the costs of bringing up a healthy child were not recoverable was that the law, if not the parents, had to conclude that a child brings benefits as well as...
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