0370 270 6000

Parkinson v St James and Seacroft University Hospital NHS Trust

25 April 2001
The issues

Negligently Performed Sterilisation – Recovery Of Damages For The Cost Of Providing For The Upbringing Of The Resultant Child

The facts

In 1993 the mother had undergone sterilisation. The procedure had been performed negligently and was unsuccessful. 10 months later she conceived her fifth child. She was warned that it might be born with a disability. She chose not to have a termination. The child was born with severe communication and behavioural problems. It was admitted that the child could not be treated for the purposes of the case as “a healthy” child.

The decision

Brooke LJ considered the case law notably McFarlane v Tayside Health Board H.L. in which the Court of Appeal dismissed the claim for economic loss being the costs of bringing up a healthy child conceived after the father’s failed vasectomy.

1. The Court had been referred to a decision of the Supreme Court of Florida, Fassoulas v Ramey which allowed an exception to the rule in McFarlane on the basis that the costs of “special upbringing%u2026%u2026 associated with a deformed child%u2026.” were recoverable. In this case the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s negligence.

2. There was a limited group of people who might be affected by the negligence namely the Claimant and her husband.

3. There was no difficulty in principle in accepting the proposition that the surgeon had assumed responsibility for the foreseeable economic consequences of performing his services negligently.

The purpose of the operation had been to prevent further children being born including children with congenital abnormalities and the surgeon’s duty of care was strictly related to that purpose.

Between Emeh v Kensington and Chelsea and Westminster and McFarlane parents had been in a position of being able to obtain the special upbringing costs associated with rearing a child with a serious disability in these circumstances.

4. An award of compensation limited to special upbringing costs associated with rearing a child with a serious disability was fair and reasonable within Caparo.

If principals of distributive as opposed to corrective justice were employed, most people would regard it as fair and reasonable that the Claimant should be compensated in respect of the extra expenses involved.

Focus on...

Legal updates

Court of Appeal confirms exclusive English jurisdiction clause in excess liability policies in Canadian pipeline dispute

On 10 June 2022 the Court of Appeal upheld an anti-suit injunction granted in favour of insurers by Mr Justice Jacobs in September 2021 restraining proceedings from being brought in Canada and enforcing the exclusive English jurisdiction clause in excess liability policies.

View

Blogs

Payment Fraud landscape shaped by technology in 2021

Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.

View

Legal updates

Gosden and another v Halliwell Landau and another [2021] EWHC 159 (Comm)

This claim addressed the question, of when the date for assessment of damages in cases of negligence should be determined and shows that when appropriate the Courts will depart from the default position.

View

Legal updates

Assessing the scope of employers liability – Chell v Tarmac

These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up