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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.

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