Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88 (14th February, 2002)

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Cite as: [2002] 2 WLR 1483, [2003] QB 20, [2002] 2 All ER 177, [2002] 1 FCR 695, [2002] 1 FLR 799, [2002] EWCA Civ 88, 65 BMLR 117

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Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88 (14th February, 2002)

		Neutral Citation Number: [2002] EWCA Civ 88
		Case No: B3/2001/1205

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)

Royal Courts of Justice
Strand,
London, WC2A 2LL

14th February 2002

B e f o r e :

LORD JUSTICE WALLER
LORD JUSTICE ROBERT WALKER
and
LADY JUSTICE HALE
____________________

	KARINA REES	Appellant
	V
	DARLINGTON MEMORIAL HOSPITAL NHS TRUST	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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____________________

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
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Lady Justice Hale:

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 costs. As the latter might be calculated but the former could not, they had to be assumed to cancel one another out, whether or not they did so in fact. I called this a ‘deemed equilibrium’. By this metaphor I meant simply that the benefits brought by the child were deemed sufficient to negative the claim brought in McFarlane, which was for the ordinary costs of bringing up a healthy child. Understandably, however, Mr de Wilde argues that, if the disability of the child can upset that equilibrium, so too can the disability of the parent.

The contrary argument advanced by Mr Stuart Smith is this. Everyone who seeks a sterilisation has, it can be assumed, a good reason for wanting to avoid having a child: the obvious examples are a risk to the health of the mother or of any prospective child, having enough children already, wanting to go back to work to improve the family’s finances, feeling unable to cope either physically or financially with another mouth to feed. Indeed, at least three of these applied to the Parkinson family. Yet these parents can claim nothing for having to look after a healthy child they did not, at least initially, want to have. Why should a mother whose reason is her own disability be treated any differently?

This is a powerful argument which impressed the judge. He regarded her losses as no different in kind from those suffered by a high-flying career woman who would have to give up her job or engage expensive child care or by a struggling single mother whose whole life (and that of her other children) might be ruined by the extra burden of care. Hence the analogy with the handicapped child was less than complete. To single out this one type of case as an exception to the general rule, or as upsetting the ‘deemed equilibrium’, would be ‘to re-embark on the slippery slope of trying to evaluate benefit and burden’.

McFarlane

It must be remembered that the rule laid down by the House of Lords in McFarlane is itself an exception to what would otherwise be the normal rule. Their lordships gave different reasons for making it. There is no need here to repeat the masterly analysis of their reasoning in Brooke LJ’s judgment in Parkinson. They were united in their reluctance to ascribe these to public or social policy. By this I take it they meant such utilitarian arguments as were debated at first instance in Thake v Maurice [1986] QB 644 and Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098. Rather, they appealed to legal policy. By this I take it they meant the values implicit in such legal concepts as what is ‘fair, just and reasonable’, or ‘restitution’, or simply ‘justice’.

Thus, Lord Slynn stated (at 75G) that the question was not simply one of quantification but of liability, ‘of the extent of the duty of care which is owed to the husband and wife’. The doctor had a duty of care but it did not follow that it included the costs of rearing the child. It was not fair, just and reasonable to impose upon him liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. But it is difficult to discern why he thought that this was not fair, just and reasonable. He had already rejected the direct application of the ‘benefits rule’ (at 75B):

“to reduce the costs by anything resembling a realistic or reliable figure for the benefit to the parents is well-nigh impossible unless it is assumed that the benefit of a child must always outweigh the cost which, like many judges . . . , I am not prepared to assume.”

He concluded simply that ‘The doctor does not assume responsibility for those economic losses’ (at 76C).

Lord Steyn relied upon the Aristotelian distinction between corrective justice and distributive justice, although he also said that ‘if it were necessary to do so, I would say that the claim does not satisfy the requirement of being fair just and reasonable’ (at 83D). His reasons were much clearer. Although he did not regard the ‘set-off’ of benefits against detriments as the correct legal analysis, the ‘many and undisputed benefits’ which the parents had derived and would derive from the child were ‘relevant in an assessment of the justice of the parents’ claim’ (at 81H to 82A). The ordinary person, embodied in the traveller on the underground, would

“. . . have in mind that many couples cannot have children and others have the sorrow and burden of looking after a disabled child. The realisation that compensation for financial loss in respect of the upbringing of a child would necessarily have to discriminate between rich and poor would surely appear unseemly to them. It would also worry them that parents may be put in the position of arguing in court that the unwanted child, which they accepted and care for, is more trouble than it is worth. Instinctively, the traveller on the underground would consider that the law of tort has no business to provide legal remedies consequent upon the birth of a healthy child, which all of us regard as a valuable and good thing.” (at 82C to E)

Lord Hope relied upon the benefits of bringing the child up within the family, both in the short and the longer term. He concluded (at 97C to E) that

“. . . it would not be fair just or reasonable, in any assessment of the loss caused by the birth of the child, to leave those benefits out of account. Otherwise the pursuers would be paid far too much. They would be relieved of the cost of rearing the child. They would not be giving anything back to the wrongdoer for the benefits. But the value which is to be attached to those benefits is incalculable. The costs can be calculated, but the benefits, which in fairness must be set against them, cannot. The logical conclusion, as a matter of law, is that the costs to the pursuers of meeting their obligations to the child during her childhood are not recoverable as damages. It cannot be established that overall and in the long run, those costs will exceed the value of the benefits. This is economic loss of a kind which must be held to fall outside the ambit of the duty of care which was owed to the pursuers . . . ”

Lord Clyde, on the other hand, hesitated to adopt the approach formulated in terms of the existence of a duty to avoid causing damage of a particular kind. He found it difficult to analyse the claim for maintenance as a separate obligation. He too rejected the direct application of the offsetting principle, because the losses and benefits were of ‘a quite different character’. The answer for him lay in the ‘basic idea which lies behind a claim for damages in delict, that is the idea of restitution’ (at 104H). Having the enjoyment of a child free of any cost to themselves did not accord with the idea of restitution or an award of damages which did justice between the parties.

Lord Millett also rejected the direct offsetting the costs against the benefits in the individual case. The choice was between allowing no recovery on the basis that the benefits must be taken as outweighing any loss or allowing full recovery on the basis that the benefits, being incalculable and incommensurable, must be left out of account. He opted for the former. Society had to regard the balance as beneficial. It was morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth. The advantages and disadvantages of parenthood were inextricably bound together. ‘Nature herself does not allow the parents to enjoy the advantages and dispense with the disadvantages’ (at 114C).

Hence, all their lordships rejected the application of the rule that any benefits should offset the costs in an individual case. But with the possible exception of Lord Slynn, they all relied upon the benefits of having a healthy child as an important element in arriving at a just result. At least three of them concluded that the law should always assume that the benefits outweighed the sort of costs which were claimed in that case.

Conclusions

All of their lordships’ discussion was on the basis that the child was healthy, and therefore that the costs were those of bringing up a healthy child. It did no violence to their reasoning to conclude in Parkinson that the extra costs of bringing up a disabled child altered the justice of the case. In McFarlane the parents were no different from any others in their ability actually to look after the child. They may not have wanted to do so initially. It may have been a financial struggle for them to do so. But in terms of the actual care required by the child, they were as well able to provide this as any other parent. Their lordships did not consider the position of a parent who might be different.

For the reasons that I explained at considerable length in Parkinson, the principal detriment suffered by anyone who becomes a parent against their will is the legal and factual responsibility to look after and bring up the child. The out of pocket expenditure on food, clothes, travel, education, pocket money, and much more, is only the consequence of that responsibility. I would be the first to recognise and acknowledge that that responsibility brings with it great joys and great compensations. As their lordships said, the task of carrying out any real balancing exercise in any individual case is both impossible and invidious. The parents who spend the most on their child may in fact get much less pleasure, let alone much less long term benefit, from that investment. The parents who have little money to spend but a great deal of love and attention to give may get much more. But who can say? That is why they must be assumed to cancel one another out. That is why the high-flying career woman whose sterilisation fails is in no better position than the hard-pressed single parent.

It is probably safe to assume that the ordinary person would be more sympathetic to the hard-pressed single parent than to the high-flying career woman. But they differ from one another only in their financial circumstances and the law does not usually regard this as relevant. There is, however, a crucial difference between them and a seriously disabled parent. These able-bodied parents are both of them able to look after and bring up their child. No doubt they would both benefit from a nanny or other help in doing so. But they do not need it in order to be able to discharge the basic parental responsibility of looking after the child properly and safely, performing those myriad essential but mundane tasks such as feeding, bathing, clothing, training, supervising, playing with, reading to and taking to school which every child needs. They do not need it in order to avoid the risk that the child may have to be taken away to be looked after by the local social services authority or others, to the detriment of the child as well as the parent. That is the distinction between an able-bodied parent and a disabled parent who needs help if she is to be able to discharge the most ordinary tasks involved in the parental responsibility which has been placed upon her as a result of the defendant’s negligence.

Hence I would conclude that, just as the extra costs involved in discharging that responsibility towards a disabled child can be recovered, so too can the extra costs involved in a disabled parent discharging that responsibility towards a healthy child. Of course we can assume that such a parent benefits, and benefits greatly, from having a child she never thought she would have. We can and must assume that those benefits negative the claim for the ordinary costs of looking after and bringing him up. But we do not have to assume that it goes further than that. She is not being over-compensated by being given recompense for the extra costs of child care occasioned by her disability. She is being put in the same position as her able-bodied fellows.

In real life it is impossible to separate the doctor’s assumption of responsibility for preventing pregnancy from the assumption of responsibility for preventing parenthood and the parental responsibility it brings. The two go hand in hand just as pregnancy and childbirth go hand in hand. The law has limited the doctor’s responsibility because of the incalculable benefit the child must be presumed to bring. But if that incalculable benefit is put at risk by the very fact which led the parent to ask for the sterilisation, there is nothing unfair, unjust or unreasonable in holding that the surgeon assumes a more extensive responsibility for the consequences, at least where he knew of the disability and that this was the reason why she wished to avoid having a child.

All this is predicated on the assumption that there will be some extra costs which are attributable not to the fact of having a child to bring up but to the fact that the mother is severely visually handicapped. We do not have any evidence of that. They are bound to vary with the nature of the disability and what the individual mother can and cannot do. But assessing these does not take us down the slippery slope of comparing benefit and burden, because the ordinary benefits and burdens have already been taken out of the account. Just as there is considerable experience and expertise in assessing the special needs of disabled children, there is also considerable experience and expertise in assessing the special needs of disabled adults, including disabled parents. Some special equipment and adaptations to the home may be needed, as may some assistance with necessary tasks which the mother cannot do. That is very far from shifting the burden of child care onto someone else: the object is to compensate for those things for which compensation will be needed if both mother and child are to enjoy the benefits of living together as a family. It would be ironic indeed if a rule based upon the assumed benefits to a parent (let alone a child) of having a child to bring up were applied in such a way as to preclude them enjoying that benefit at all.

Thus I would allow the appeal and substitute a ruling that the mother may claim those extra costs, if any, of bringing up her child as are attributable to her disability.

Lord Justice Robert Walker:

I have had the advantage of reading in draft the judgments of Hale LJ and Waller LJ. I would say at the outset that I agree with Hale LJ’s observations (in paragraphs 3 and 4 of her judgment) that the direction for the trial of a preliminary issue can be seen, with hindsight, as regrettable. It would have been better to consider the legal issues with the benefit of findings of fact as to the circumstances in which Anthony Rees is being cared for and brought up.

I agree with Waller LJ that this is obviously a difficult area. But this court is not short of authoritative guidance. There is the decision of the House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59, which is binding on this court. We are also bound by this court’s decision in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 WLR 376. Parkinson was followed (by a similarly but not identically constituted court) in Groom v Selby (18 October 2001) [2001] EWCA 1522. On this appeal counsel for the NHS Trust did not submit that Parkinson was inconsistent with the House of Lords’ decision in McFarlane or that it ought not to be followed.

In their judgments in Parkinson Brooke LJ and Hale LJ very closely analysed the five speeches delivered in McFarlane. It is unnecessary to repeat their analysis but I draw attention to some salient points. Although their lordships disavowed any intention of deciding the case on the grounds of public (or social) policy, there is a strong moral element in the basis of the decision. This appears most clearly in the speeches of Lord Steyn and Lord Millett, in passages which have often been cited but which bear repetition.

Lord Steyn said at p.82 E-G:

“My Lords, to explain decisions denying a remedy for the cost of bringing up an unwanted child by saying that there is no loss, no foreseeable loss, no causative link or no ground for reasonable restitution is to resort to unrealistic and formalistic propositions which mask the real reasons for the decisions. And judges ought to strive to give the real reasons for their decision. It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice. That is of course, a moral theory. It may be objected that the House must act like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But judges’ sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law.”

Lord Millett said at pp.113H-114B:

“In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense that it is worth.”

Lord Millett’s emphatic reference to a “normal, healthy baby” is echoed in most of the other speeches. All or most of the references are set out in the judgments in Parkinson and I need not repeat them. The point is summed up in paragraph 87 of Hale LJ’s judgment in Parkinson:

“At the heart of it all is the feeling that to compensate for the financial costs of bringing up a healthy child is a step too far.”

There is not the same intuitive feeling that it would be exorbitant compensation to award damages for financial burdens which are the direct consequence of the disability of a child who is born disabled after a failed sterilisation, and which would not be incurred in consequence of the birth of a normal, healthy child. The court’s moral intuition to refuse recovery in the case of a healthy child is given legal substance and effect either by applying the three-stage Caparo test (see Caparo Industries v Dickman [1990] 2 AC 605) or by an approach which enquires into the surgeon’s assumption of responsibility (see the analysis in Brooke LJ’s judgment in Parkinson, especially at paragraphs 26 and 33 to 42). By contrast it does not offend the Caparo test to hold a surgeon responsible for financial burdens uniquely referable to the disability of a disabled child whose birth was a foreseeable consequence of the surgeon’s negligence.

After reading Hale LJ’s draft judgment in this appeal I formed the view, largely in agreement with the reasoning in her judgment, that there would also be no offence to the Caparo test in permitting recovery of damages for the financial burdens of bringing up a child uniquely referable to the disability of a woman who, because of her disability, has decided that she should not have a child, and has explained that reason to her consultant. (On this point I do respectfully question Lord Millett’s view, in McFarlane at pp.109 H – 110 F, that the parents’ reasons for wishing to avoid childbirth are immaterial and that medical advisers would not normally enquire about them. If, as in this case, the reasons are communicated to the consultant – and presumably passed on to the surgeon if different - they may be relevant to the issue of the surgeon’s assumption of responsibility.)

I cannot however accept the ‘deemed equilibrium’ theory set out in Hale LJ’s judgment in Parkinson at paragraphs 87 to 91 (and mentioned in paragraph 10 of her judgment in this case). It is an attractive and convenient theory in the sense that it enables expenses uniquely referable to disablement (whether of mother or child) to be seen as economic loss unrelieved by any countervailing benefit or advantage. If costs and benefits (in the absence of disablement) are assumed to be equal, costs uniquely referable to disablement are economic loss which ought to be recoverable in full.

In Parkinson Hale LJ (at paragraph 90) said that the solution of deemed equilibrium, as well as having attractions, was binding on this court. I respectfully doubt whether it is binding. Lord Slynn (at p.75B) went no further than to say that he was not prepared to assume that the benefit of a child must always outweigh the cost. Lord Steyn referred to the question of benefits and burdens several times in his discussion of the authorities, but ultimately based his decision on distributive justice. Lord Hope (at p.97B) recognised that a child brings benefits as well as costs, but used the impossibility of calculating the benefits as part of the basis for his conclusion on the Caparo test. Lord Clyde was against any set-off (at p.103 B-C):

“It may be that the benefit which a child represents to his or her parent is open to quantification, but there is no principle under which the law recognises such a set off. A parent’s claim for the death of a child is not offset by the saving in maintenance costs which the parent will enjoy. Nor, as was noted by the discussion in the present case, is the loss sustained by a mineworker who is rendered no longer fit for work underground offset by the pleasure and benefit which he may enjoy in the open air of a public park”

Lord Millett saw the choice as being (at p.111 F-G)

“ ... between allowing no recovery on the basis that the benefits must be regarded as outweighing any loss, and allowing full recovery on the basis that the benefits, being incalculable and incommensurable, must be left out of account.”

In my view this appeal can and should be allowed, to the limited extent indicated in the judgment of Hale LJ, without the need to rely on a principle of deemed equilibrium. Subject to the points raised in the judgment of Waller LJ, to which I must turn, I would base my decision on there being nothing unfair, unjust, unreasonable, unacceptable or morally repugnant in permitting recovery of compensation for a limited range of expenses which (when specified and proved) will be found to have a very close connection with the mother’s severe visual impairment, and nothing to do with the blessings which the birth of her healthy son may have brought her.

Waller LJ has expressed doubts about the equilibrium theory and it will be apparent that I share those doubts. Apart from that Waller LJ is concerned about the making of exceptions to the principle established in McFarlane and of transgressing the boundaries which the House of Lords set in that case. I share those concerns, and I recognise that wherever the boundary is set, there will always be cases close to one or other side of the boundary illustrating “the imperfect reality of the way the law of torts actually works” (Lord Hoffmann in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at p.504 A).

In McFarlane the House of Lords was concerned (on the main claim for damages) with a claim for the total cost of bringing up a normal, healthy child. Lord Steyn made clear both at the beginning of his speech (at p.77 B-C) and at the end (at p.84 A-B) that his speech was addressed to that pleaded claim, and the other speeches (with the possible exception of that of Lord Slynn) were to similar effect. They do not address the special problem of a disabled child or that of a disabled mother.

Waller LJ draws attention to the case of a woman with several children who is not disabled but whose physical and mental health and family circumstances may be so fragile that the birth of another child (even though healthy) would be a disaster for her. It is hard to see how, consistently with McFarlane, she could claim substantial damages for child care costs following negligent sterilisation, and it hardly makes the position more satisfactory to say (by way of explanation) that she could not prove any such costs which were uniquely referable to the fact that she was physically exhausted and emotionally depressed. (If she was the parent who had undergone the sterilisation operation, and her health was shown to have deteriorated in consequence of pregnancy and childbirth, she might have a remedy for personal injuries.)

But these difficulties should not in my view deter this court from allowing the possibility of recovery (which is all it is, on the preliminary issue) in circumstances which, as I see it, are not covered by McFarlane and are a legitimate extension of Parkinson. Disabled persons are a category of the public whom the law increasingly recognises as requiring special consideration (the Disability Discrimination Act 1995 is an important landmark) and the developing law as to disability should (as Hale LJ explained in Parkinson at paragraph 91) avoid the sort of definitional problems which Lord Hoffmann referred to in Frost at 510B.

For these reasons I agree with Hale LJ that the appeal should be allowed to the limited extent which she proposes.

Lord Justice Waller :

I have read the judgment of Lady Justice Hale in draft. I can gratefully accept the statement of facts and her identification of the issue. I am however unable to agree with her conclusion.

That the court is in a difficult area needs no emphasis. The area is peculiarly difficult because, as was recognised by a majority in McFarlane v Tayside Health Board [2000] 2 AC 59, on normal principles the claim there for damages for bringing up a healthy child born as a result of the negligence of a surgeon, would succeed. (see paragraph 76 of Lady Justice Hale’s judgment in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 with which I respectfully agree). This to my mind is emphasised by the fact that if one follows the route advocated by Brooke LJ for reaching the conclusion he did, as to why the extra costs of bringing up a disabled child should be recoverable, at paragraph 50 of his judgment, sub-paragraphs (i) to (v) would, (adapted to deal with the position of a healthy child) point to a conclusion of liability. It is only when the court has to consider whether it is “fair, just or reasonable” under his subparagraph (vi) and/or whether applying the principles of distributive justice under his subparagraph (vii), whether it is “fair for the law to make an award” of the extra expenses, that any distinction can be drawn. So on his route the position comes down simply to this. Liability in both situations would by normal principles be established, but the court is entitled to take the view that it is fair to allow the recovery of the extra costs of looking after a disabled child, even though it takes the view that it is not fair to allow the recovery of the costs of looking after a healthy child.

Once the court begins to disallow recovery, although normal principles would allow recovery, and once the court starts to consider the making of exceptions to that decision, - we are, as I see it, truly in the area of distributive justice as identified in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. The costs of recovering the expenses of looking after a healthy child born through the negligence of a surgeon, are costs which the court has said should not be recovered, and if that is the boundary that a court has set, it is important that the court does not make exceptions to that rule, which would seem to be unjust to the persons unable to recover as a result of that rule.

Lady Justice Hale in Parkinson came to the view that a mother could recover the extra costs of bringing up a disabled child by a route different from that adopted by Brooke LJ, as well as agreeing with the reasons of Brooke LJ. Sir Martin Nourse agreed with both judgments, and thus, I accept, also adopted the additional route which my Lady used. It is this route which forms a part of her judgment in this case.

She suggested in Parkinson that at the heart of the House of Lords decision in McFarlane was the concept that “a healthy child brings benefits as well as costs; it is impossible accurately to calculate those benefits so as to give a proper discount; the only sensible course is to assume that they balance one another out”. She pointed out that some would challenge the assumption that the benefits did cancel out the costs, and she was not happy with the notion that a child was being treated as a commodity of benefit to parents, but she concluded that “The solution of deemed equilibrium also has its attractions, and is in any event binding upon us. Indeed it provides the answer to many of the questions in this case….” (paragraph 90).

Adopting this concept her conclusion in Parkinson was that since such equilibrium related to the benefits of having a healthy child being weighed against the costs of bringing up a healthy child, that left room for the recovery of damages for the extra costs of bringing up a disabled child. (see paragraph 90 of Lady Justice Hale’s judgment in Parkinson).

In her judgment in this case once again Lady Justice Hale would seek to use the concept of deemed equilibrium (see paragraph 23). This time she would suggest that the extra costs of a disabled mother in bringing up her child was not in the calculation that their Lordships in McFarlane were carrying out.

My difficulty is that I do not find it easy to extract from the speeches of a majority of their Lordships in McFarlane that they necessarily thought in terms of an “equilibrium” with precise quantities on either side of the balance. Indeed, it seems to me that at 74H Lord Steyn is saying that one cannot do that exercise, and one sees in the speech of Lord Hope a description of the benefits of having a healthy child; and then him saying that the “value which is to be attached to these benefits is incalculable”. That does not suggest to me that he is saying there is an equilibrium. It seems to me that it is the concept of incalculability of the benefits which leads to the conclusion that costs of care should not be recoverable. If anything it is because in some cases the benefit might be such as to provide a substantial balance in favour of benefits when weighed against the costs of care that leads to the result that the costs of care should not be recoverable.

I stress that it does not follow that I am disagreeing with the decision in Parkinson (by which of course in any event we are bound). What in McFarlane their Lordships were concerned with was a healthy child and not a disabled child. There was thus, I accept, room to reach the conclusion that was reached that it was fair, just, and reasonable to award the extra costs.

Where the court is concerned with the birth of a healthy child, it seems to me that before contemplating the making of an exception to the general rule established by McFarlane one must examine with even greater care (if that is possible) whether any exception is justified, because (as I have stressed) the House of Lords were concerned with the award of damages in relation to the birth of a healthy child. In that context one must take into consideration how such an exception would be perceived by others who, as already stated, would have recovered damages on normal principles but will not recover because of the McFarlane decision, or, perhaps more accurately, one must take into account how the ordinary person would perceive the fairness of the exception.

Let me address some examples, I hope not too extreme. If one takes the facts to be that a woman already has 4 children and wishes not to have a fifth; and if one assumes that having the fifth will create a crisis in health terms, unless help in caring for the child was available. She cannot recover the costs of caring for the child which might alleviate the crisis, as I understand McFarlane. I would have thought that her need to avoid a breakdown in her health was no different from the need of someone already with a disability, and indeed her need might be greater depending on the degree of disability. Does she, or ordinary people, look favourably on the law not allowing her to recover but allowing someone who is disabled to recover?

If one were to add that the lady with four children was poor, but the lady with a disability was rich – what then? It would simply emphasise the perception that the rule was not operating fairly. One can add to the example by making comparisons between possible family circumstances of the different mothers. Assume the mother with four children had no support from husband, mother or siblings, and then compare her with the person who is disabled, but who has a husband, siblings and a mother all willing to help. I think ordinary people would feel uncomfortable about the thought that it was simply the disability which made a difference.

If a disabled person has a healthy child, and finds that she can, contrary to her anxieties, cope with that child with the help of family and others, I would have thought that in Lord Hope’s words the benefits of having that child would be incalculable. It is the fact that such benefits of having that healthy child are incalculable which it seems to me leads to the result that the court simply should not give damages for the birth of that child. It is because the court is simply not prepared to go into a calculation which involves weighing one aspect against the other which in my view should bring about the conclusion that it is not fair, just, and reasonable that a disabled person should recover when other mothers in as great a need cannot. On the basis of distributive justice I believe that ordinary people would think that it was not fair that a disabled person should recover when mothers who may in effect become disabled by ill-health through having a healthy child would not.

I would thus be in favour of dismissing the appeal.

Order: Appeal allowed; application for permission to appeal to House of Lords refused. Order as per agreed minute order. (Order does not form part of the approved judgment)

© 2002 Crown Copyright

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