Parkinson v St James & Seacroft University Hospital NHS Trust

The Court of Appeal held that a claimant may recover damages for the extra costs of caring for and bringing up a child where the child's significant disabilities were a foreseeable consequence of negligent sterilisation. The court confirmed that the ordinary costs of raising a healthy but unwanted child remain non-recoverable. The recoverable head is limited to the additional or "special" upbringing expenses attributable to the disability, not the basic maintenance of a normal child.

This is an appeal by the defendant health authority and a cross-appeal by the claimant from a Queen's Bench Division (Longmore J) preliminary ruling. The negligence alleged arises from a failed sterilisation which resulted in the claimant conceiving and giving birth to a child, partly disabled. The preliminary issue was whether the claimant could recover (a) costs of providing for the child's special needs arising from disability and (b) basic maintenance costs of the child. The central legal question was the scope of recoverable economic loss where pregnancy and the child's disabilities result foreseeably from negligent medical services, in the light of the House of Lords decision in McFarlane v Tayside Health Board [2000] 2 AC 59.

1. Outcome: Appeal and cross-appeal dismissed. The Court of Appeal (Brooke LJ, Hale LJ and Sir Martin Nourse) unanimously upheld the judge's conclusion that extra costs attributable to a child's significant disability are recoverable, but the basic costs of raising a healthy child are not.
2. Ratio and reasoning:
   1. The court applied the contemporary multi-faceted approach to duty in negligence (including foreseeability/proximity/Caparo fairness and the assumption-of-responsibility and incremental approaches) rather than a single rigid test. [2001] EWCA Civ 560
   2. The birth of a child with congenital abnormalities was held to be a foreseeable consequence of negligent sterilisation; therefore causation and foreseeability are satisfied for disability-related losses. (Brooke LJ)
   3. There is a legally recognisable distinction between ordinary maintenance costs of a healthy child and extraordinary or special upbringing costs caused by significant disability. The latter represent foreseeable, onerous economic burdens which a negligent surgeon may be required to meet. (Brooke LJ; Hale LJ)
   4. The House of Lords' decision in McFarlane does not preclude recovery of special disability-related upbringing expenses. McFarlane establishes that ordinary child-rearing costs are excluded by a deemed equilibrium of benefits and burdens, but its speeches leave open claims for extraordinary costs associated with disability. (Brooke LJ)
   5. What counts as a "significant" disability is a matter for judicial evaluation on the facts. The term includes severe behavioural and mental disabilities as well as physical impairments. Minor defects and ordinary childhood risks are excluded.
   6. Standard causation and novus actus principles apply: disabilities caused by an intervening event after conception may break the chain of causation and defeat liability. Ordinary rules of contributory negligence apply where appropriate.
3. Practical guidance:
   • Recovery is limited to special expenses attributable to the disability and to a reasonable temporal limit (the judge addressed a 15 year period in the preliminary ruling as appropriate on the assumed facts).
   • Courts should assess whether a disability is sufficiently significant by reference to established statutory definitions used for social services (see Children Act 1989 definitions) and by examining the extent of extra care and cost required.
4. Orders: Appeal dismissed with costs. Application for leave to appeal to the House of Lords refused.

• Court of Appeal (Civil Division): Appeal from the Queen's Bench Division (Longmore J) determined on a preliminary issue. The Court of Appeal dismissed the appellant's appeal and the claimant's cross-appeal. [2001] EWCA Civ 560
• Queen's Bench Division: Preliminary ruling by Longmore J (11 December 2000) on recoverability of special upbringing costs and basic maintenance (decision under appeal).