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Rees v Darlington Memorial Hospital NHS Trust, House of Lords, 16 October 2003

22 October 2003
The issues

Medical negligence – unwanted child – recovery of costs of upbringing – duty of care.

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 mother claimed for the cost of bringing up Anthony. The Court of Appeal concluded that whilst the principle in McFarlane -v- Tayside Health Board prevented her from recovering the costs of bringing up a healthy child, she could recover the extra costs, which were attributable to her disability. The Defendant Trust appealed. The Claimant cross-appealed to seek the whole costs of bringing up the child, inviting the House to reconsider its own decision in McFarlane. The case was heard by a 7-man house.

The decision

The decision of the House of Lords in McFarlane in its unwillingness to regard a child even if unwanted as a financial liability and nothing else, was a policy decision which had also invoked the notion of distributive justice, together with the consciousness of the necessity of protecting the viability of the National Health Service at a time of multiple demands.

2. The decision of the House of Lords only 4 years ago should not be disturbed and it would be wholly contrary to the practice of the House so to do. To overturn McFarlane would reflect no credit on the administration on the law if a line of English authority were to be disapproved in 1999 and reinstated in 2003 with no reason for the change beyond a change in the balance of judicial opinion.

3. However, Lord Bingham had a concern, namely that even having regard to distributive justice and policy, the Claimant had suffered a legal wrong and there should be some recompense. He favoured a conventional award (as suggested by Lord Millett in McFarlane) in respect of the injury and loss in addition to the award for the pregnancy and birth. Lord Millett had suggested £5,000.00. He suggested £15,000.00. It was undesirable that parents in order to recover compensation should be encouraged to portray either their children or themselves as disabled. The Court of Appeal’s decision gave rise to anomalies such as those highlighted by Lord Justice Waller in his dissenting Judgment (eg a case of a rich but disabled parent in the Claimant’s position as opposed to a poor but able-bodied parent) and that in any event the quantification of additional costs attributable to disability was a task of acute difficulty.

4. Lords Nicholls and Scott agreed with Lord Bingham, including the suggestion of the “conventional” award. Lord Millett also agreed including the award of the conventional sum.

5. Appeal therefore allowed and the Judgment of the Court of Appeal replaced with a conventional award of £15,000.00.

6. Lords Steyn, Hope and Hutton all dissented, Lord Steyn on the basis that the law should give special consideration to the serious disability of a mother who had wanted to avoid having a child by undergoing sterilisation. The decision in McFarlane had been made on the policy grounds that it was impossible to calculate the benefits of avoiding a birth and having a healthy child and that the law should take the birth of a normal baby to be a blessing not a detriment. But these factors were outweighed by the injustice of denying the limited remedy of extra costs caused by the Claimant’s disability. Lord Hope dissented on the basis that the fact that the child’s parent was a seriously disabled person provided a ground for distinguishing McFarlane, as did Lord Hutton.

7. It should be noted that all 7 Law Lords, including the 3 dissenting Law Lords declined in any event to depart from the decision of the House of Lords in McFarlane.

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