Parkinson v St James and Seacroft University Hospital NHS Trust

Following negligent sterilisation, a mother may recover the additional costs of caring for and bringing up a child with significant disabilities. The disability need not itself have been caused by the negligence. The birth of a child with congenital abnormalities is a foreseeable consequence of ineffective sterilisation, and liability for the additional disability-related costs is fair, just and reasonable.

Ordinary upbringing costs remain irrecoverable. That limitation treats disabled and non-disabled children as having equal worth while recognising their different needs. Significant disability includes mental and severe behavioural disabilities, but excludes minor defects and inconveniences. The statutory definition of a disabled child provides an appropriate guide.

Angela Parkinson underwent sterilisation at a hospital managed by the defendant NHS trust. The trust admitted that the procedure had been performed negligently. She subsequently conceived and gave birth to her fifth child, Scott, who had developmental and behavioural difficulties. For the preliminary issue, the trust accepted that he should not be treated as a healthy child. His precise disabilities remained disputed, and their existence was not attributed to any breach of duty by the trust.

Longmore J determined that Mrs Parkinson could recover the costs of providing for Scott's special needs and disability-related care, but could not recover his ordinary maintenance costs. The trust appealed against the first conclusion, and Mrs Parkinson cross-appealed against the second. Separate allegations of physical injury caused by the sterilisation procedure remained in issue.

The central question was whether the restriction on recovering the upbringing costs of a healthy child established in McFarlane v Tayside Health Board [2000] 2 AC 59 also prevented recovery of additional costs attributable to disability.

The appeal and cross-appeal were dismissed unanimously. The preliminary determination permitting recovery of disability-related additional costs, while excluding ordinary maintenance costs, was upheld.

1. Per Brooke LJ, whose reasons Hale LJ also adopted, the birth of a child with congenital abnormalities was a foreseeable consequence of negligent sterilisation. The potential claimants formed a closely connected and limited group. The surgeon's undertaking and the purpose of the operation supported responsibility for the foreseeable financial consequences of its negligent performance. Recovery limited to the additional costs associated with significant disability was fair, just and reasonable. It was consistent with both the established history of liability and considerations of distributive justice.

2. McFarlane v Tayside Health Board [2000] 2 AC 59 established the exclusion of ordinary upbringing costs. Its majority reasoning did not require the exclusion of additional disability-related expenditure. The cross-appeal seeking ordinary maintenance costs nevertheless failed: recovery extending beyond the additional costs would not be fair, just and reasonable.

3. Per Hale LJ, with Sir Martin Nourse agreeing, unwanted conception invaded bodily integrity and personal autonomy. Its foreseeable consequences included the responsibilities and financial costs of caring for a child. The restriction imposed by McFarlane limited damages otherwise recoverable on ordinary principles. Treating the ordinary advantages and disadvantages of parenthood as balancing one another left the additional disability-related burdens recoverable. This analysis accorded disabled and non-disabled children equal dignity and worth.

4. Significant disability included mental disability and severe behavioural disability, as well as physical disability. Minor defects and inconveniences were excluded. Brooke LJ agreed with Hale LJ that the definition in section 17(11) of the Children Act 1989 could be used to identify the relevant special needs.

5. As guidance on the causal limits of recovery, disabilities arising from genetic causes or foreseeable events during pregnancy or childbirth could qualify. A new intervening cause might exclude liability, and ordinary principles of contributory negligence remained applicable. The court did not determine any particular intervening-cause dispute.

6. Hale LJ tentatively considered that a father with sufficient proximity to the tortfeasor, who fulfilled his caring responsibilities, might also recover additional disability-related costs. That issue did not arise and remained undecided. The appeal was dismissed with costs subject to detailed assessment. Permission to appeal to the House of Lords was refused.

• Court of Appeal: In [2001] EWCA Civ 530 , dismissed the trust's appeal and Mrs Parkinson's cross-appeal. Upheld recovery of additional disability-related costs and the exclusion of ordinary maintenance costs. Permission to appeal to the House of Lords was refused.
• High Court, Queen's Bench Division: Longmore J, on 11 December 2000, determined the preliminary issue in favour of recovery of special-needs and disability-related care costs, but excluded basic maintenance costs. No citation for that judgment was supplied.