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Rees v Darlington Memorial Hospital NHS Trust

18 February 2002
The issues

Medical negligence – unwanted child – recovery of costs of upbringing

The facts

The mother was handicapped being blind in one eye and with limited vision in the other. She was described as severely visually handicapped. She did not want children. She feared that she would be unable to look after them. She was sterilised in July 1995. The operation was negligently carried out and in July of the following year her son Anthony was conceived and born in April 1997. The mother was left to bring the child up alone, other than with the help of her own mother and other relatives. Negligence was admitted.

The decision

1. McFarlane -v- Teeside held that parents could not claim the costs of bringing up a healthy child born as the result of a failed sterilisation. In Parkinson -v- St James & Seacroft University Hospital NHS Trust, it was decided that a parent could claim the extra costs of bringing up a disabled child.

2. The issue before the Court of Appeal was whether the decision in McFarlane meant that none of the costs of bringing up a healthy child could ever be claimed whatever the circumstances. (In other words, the Court of Appeal were faced with the precise reverse of the situation in Parkinson i.e. disabled mother, healthy child).

3. Lady Justice Hale noted that the House of Lords’ decision in McFarlane was itself an exception from the ordinary cautious rules. She noted that the justification for that exception was varied save that all of their Lordships “were united in their reluctance to ascribe” their reasons “to public or social policy”. In particular, Lord Steyn relied on the distinction between “corrective justice” and “distributive justice”. All of the judgments however were on the basis that the child was healthy and that costs were therefore those of bringing up a healthy child. It was not therefore contrary to McFarlane to decide in Parkinson that the extra costs of bringing up a disabled child “altered the justice of the case”. Parkinson proceeded on the basis that effectively the decision in McFarlane amounted to an acceptance that the joys of parenthood and the expenses cancelled each other out (what Lady Justice Hale called the “deemed equilibrium” theory).

4. However, there was no question of overcompensating in the context of that deemed equilibrium. The “additional” recompense she would receive would be the extra cost of childcare occasioned by her disability. She was therefore being put in the same position as an able bodied mother. She should be allowed to recoup the extra costs that are attributable not to having a child to bring up but to the fact that the mother is severely visually handicapped.

(Walker LJ agreed but Waller LJ dissented. In so doing he refused to accept the conception of the deemed equilibrium. Rather, he concluded that the costs of care were not recoverable in McFarlane because their Lordships found that they were incalculable.

He concluded that since this case dealt with a healthy child, it came within the general rule established by McFarlane. He felt that before allowing such an exception from that general rule it was necessary “to take into account how the ordinary person had perceived the fairness of the exception” and he took the interesting example of a rich but disabled parent in the Claimant’s position and a poor but able bodied parent. Accordingly, he dissented.

Appeal allowed on a majority.

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