House of Lords, in
four-to-three vote, holds, citing U.S. and other authorities, that disabled mother
who bore healthy child because of negligent sterilization operation is not
entitled to have National Health Service pay costs of bringing up child
The claimant, Ms. Karina Rees, is
a single woman now 31 years of age and unable to work. She is suffering from a
severe and progressive visual disability -- a genetic condition known as
retinitis pigmentosa. Since the age of two she has been sightless in one eye
and has limited vision (6/36) in the other. She is seriously impaired visually
and there is evidence of continuing deterioration of her condition.
Feeling unable to carry out the
usual duties of a mother and afraid that she might become pregnant, Ms. Rees
wished to be sterilized. She made her wishes known to a gynecologist consultant
employed by the defendant, Darlington Memorial Hospital NHS Trust. He carried
out a sterilization operation, but negligently failed to occlude the right
fallopian tube. Unaware of this, Ms. Rees later became pregnant and, in April
1997, she gave birth to a normal healthy boy named Anthony.
Ms. Rees then sued the defendant hospital, alleging that she was entitled to receive damages to cover the cost of rearing Anthony to adulthood. In May 2001, a judge of the first instance court held, as a preliminary matter, that Ms. Rees was not entitled to recover any part of the costs of bringing up Anthony. Claimant took an appeal. A majority of the Court of Appeal (Civil Division) ruled that she could recover the additional expenses she would have to put forth to the extent that they were imputable to her disability.
The hospital took that decision to the House of Lords. It contended before seven Lords of Appeal that it was at war with a previous decision of the House, namely McFarlane v Tayside Health Board [2000] 2 A.C. 59. In McFarlane the House was dealing with the healthy, normal married parents of a healthy child who decided they did not want any more children than the four they already had. When a fifth healthy child arrived as the result of a negligent vasectomy advice, the House decided that the parents could not recover in tort for the cost of its upbringing. At the same time, the House did conclude that the lower courts may award a modest solatium in respect of the pain and suffering of the unwanted pregnancy and childbirth. The House allows the present appeal, reversing the Court of Appeal in a four-to-three vote.
In the McFarlane situation, the
present Appellate Committee discerns three plausible approaches to a woman in
Ms. Rees’ predicament. The first is that the courts may allow her full damages
against the tortfeasor for the cost of rearing the child, subject to the usual
limitations of reasonable foreseeability with no discount for joys, benefits
and support, leaving restrictions upon such a recovery to such as a Parliament
with authority to do so may enact. Secondly, the courts could authorize the
recovery of damages in full for the reasonable costs of rearing an unplanned
child to the age when that child might be expected to be financially self‑reliant,
whether or not the child is “healthy” or “disabled” or “impaired”. (This
solution would make room for a deduction for the joy and benefits received, and
for the potential financial support to be derived from the child.) The third
solution would be to bar any recovery of the long term expenses of upbringing
where the child has entered the world in good health and without disability or
impairment.
The lead majority opinion does not “find it surprising that [the first] solution has been supported by the line of English authority which preceded McFarlane (...), by decisions of the Hoge Raad in the Netherlands and the Bundesverfassungsgericht in Germany (...) and now by a majority of the High Court of Australia [in Cattanach v Melchior, [2003] H.C.A. 38.].” [¶ 4]
Moreover, six American state courts have adopted the second approach. Neither side here, however, has supported this choice. “While it would be possible to assess with some show of plausibility the likely discounted cost of rearing a child until the age when the child might reasonably be expected to become self‑supporting, any attempt to quantify in money terms the value of the joys and benefits which the parents might receive from the unintended child, or any economic benefit they might derive from it, would, made when the child is no more than an infant, be an exercise in pure speculation to which no court of law should lend itself.” [¶ 5]
“It is indeed hard to think that, if the House had adopted the first solution discussed above, its decision would have long survived the first award to well‑to‑do parents of the estimated cost of providing private education, presents, clothing and foreign holidays for an unwanted child (even if at no more expensive a level than the parents had provided for earlier, wanted, children) against a National Health Service found to be responsible, by its negligence, for the birth of the child. In favouring the third solution, holding the damages claimed to be irrecoverable, the House allied itself with the great majority of state courts in the United States and relied on arguments now strongly supported by the dissenting judgments ... in Melchior.” [¶ 6]
According to the instant
majority, the crux of McFarlane’s third choice was that the House had been
loath to view a child, even if unwanted, as an economic burden and nothing
more. It recognized that the courts could not quantify the rewards that
parenthood, even if involuntary, might or might not bring. The Lords also felt
that to award potentially very large damage amounts to the parents of a normal,
healthy child against a National Health Service always in need of funds to meet
pressing demands would affront, and rightly so, the community’s sense of how to
allocate public resources. Finally, in McFarlane, the Lords were well aware how
hostile to House practice it would have been to upset such a four-year-old and
unanimous decision.
The House, therefore, reaffirms the applicability of McFarlane to Ms. Rees’ case --subject to one qualification. It supposes that the English courts should not look upon an unwanted child as nothing more than a financial liability and that any effort to count the costs of bringing up a child against the impalpable rewards of parenthood is unacceptably conjectural. The fact does remain, however, that the medical experts have legally wronged the parent of a child born following a negligently done vasectomy or sterilization, or after careless guidance on the effects of such a procedure.
An award relating only to the unwanted pregnancy and birth neither gave enough credit, nor did justice, to the loss of Ms. Rees’ freedom to limit the size of her family. Accordingly, in all such cases, the courts should provide a conventional non-compensatory award of L 15,000 to give some recognition to the wrongful injury and loss, over and above the award for the pregnancy and birth expenses.
The following passage from one of the dissenting opinions catches the essence of their rationale on one of the central issues. “On balance ... I have come to the view that the fact that the child’s parent is a seriously disabled person does provide a ground for distinguishing McFarlane and that it would be fair, just and reasonable to hold that such extra costs as can be attributed to the disability are within the scope of the tortfeasor’s duty of care and are recoverable.” [¶ 63]
“Disadvantages which are the result of the parent’s choice of life‑style prior to the unwanted conception can be said, without hesitation, to fall into an entirely different category. So too, although this is a harder case, are disadvantages that flow from circumstances beyond the parent’s control such as social deprivation, racial discrimination or family breakdown. The decision in McFarlane applies across the board, to every healthy and normal parent, in whatever social or family condition they may find themselves. The seriously disabled parent is in a different category.”
“It is the inescapable fact of her disability which marks the case of the seriously disabled parent out from these cases. The fact that this category too must be applied across the board, irrespective of the social or family situation in which the parent finds herself, indicates the fundamental nature of the characteristic that gives rise to it. Her social or family circumstances may, of course, affect the amount of the costs that can be considered to be recoverable. But it is the inescapable fact that the seriously disabled parent cannot, however hard she tries, do all the things that a normal, healthy parent can do when carrying out the ordinary tasks involved in a child’s upbringing that place this parent’s case into distinct category.” [¶ 65]
Citation: Rees v. Darlington Memorial Hospital N.H.S. Trust, [2003] U.K.H.L. 52, [2003] All E.R. (D) 271 (House of Lords, Oct. 16).
