Parkinson v St James and Seacroft University Hospital NHS Trust

In a negligent sterilisation claim, the ordinary costs of raising a healthy child remain irrecoverable under McFarlane v Tayside Health Board [2000] 2 AC 59. That limitation does not bar recovery of additional costs attributable to a significant disability. The disability may be physical, mental or severe behavioural, and may arise from genetic causes or foreseeable events during pregnancy or childbirth up to live birth. The court must assess foreseeability, proximity and whether liability is fair, just and reasonable, using the mutually supportive negligence approaches identified in the judgment. Minor defects and ordinary child-rearing costs remain outside recovery. Causation and contributory negligence principles continue to apply.

Mrs Parkinson underwent a laparoscopic sterilisation procedure which was admitted to have been performed negligently. She subsequently conceived and gave birth to Scott, who had significant developmental and behavioural disabilities. On a preliminary issue, Longmore J held that she could recover the costs of Scott’s special needs and care, but not his ordinary maintenance costs. The Trust appealed against the first ruling, and Mrs Parkinson cross-appealed against the second. The central issue was whether McFarlane v Tayside Health Board precluded recovery of additional child-rearing costs attributable to significant disability.

The Court of Appeal unanimously dismissed both the appeal and the cross-appeal.

1. Effect of McFarlane. The ordinary costs of bringing up a healthy child remained excluded by the binding limitation established in McFarlane v Tayside Health Board [2000] 2 AC 59. The deemed balance between the benefits and ordinary costs of parenthood did not justify extending that limitation to additional costs caused by significant disability.
2. Duty and recoverability. Brooke LJ held that there was no single correct test for difficult economic-loss cases. The court could use assumption of responsibility, the purpose of the service, incremental development, the threefold test in Caparo Industries plc v Dickman [1990] 2 AC 605, and distributive justice as mutually supportive approaches. The purpose of sterilisation was to prevent further conception, including conception of a child with congenital abnormalities. The relationship was sufficiently proximate, and liability for the additional costs was fair, just and reasonable.
3. Disability and causation. The approach in Emeh v Kensington and Chelsea Area Health Authority [1985] 1 QB 1012 supported foreseeability. Recoverable costs were confined to those attributable to a significant disability, including physical, mental and severe behavioural disabilities, and excluded minor defects or ordinary inconveniences. The relevant disability could arise from genetic causes or foreseeable events during pregnancy or childbirth up to live birth, unless a novus actus interveniens intervened. Ordinary causation and contributory-negligence principles continued to apply.
4. Concurring reasoning. Hale LJ agreed with the result and emphasised the invasion of bodily integrity, autonomy and caring responsibility caused by wrongful conception. She tentatively considered that a father who had sufficient proximity and actually undertook parental care might also recover the extra burden, but that issue did not arise for decision.

The order was appeal dismissed with costs subject to detailed assessment. Leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The Trust’s appeal and Mrs Parkinson’s cross-appeal were dismissed. The order was made with costs subject to detailed assessment, and leave to appeal to the House of Lords was refused: [2001] EWCA Civ 530.
2. Queen’s Bench Division: Longmore J decided the preliminary issue on 11 December 2000, allowing recovery of costs relating to the child’s special needs and care but excluding ordinary maintenance costs.