AD v East Kent Community NHS Trust

Where negligence results in the birth of a healthy child, the ordinary costs of upbringing, maintenance and education are not recoverable as damages. This remains so where the mother cannot care for the child and another relative assumes the practical and financial burden. The claim cannot be recast as the value of substituted care. The distinction is between ordinary costs and additional expenditure caused by a disability. A relative providing gratuitous care has no independent cause of action. Applying the principle in McFarlane and related authority, the Court of Appeal dismissed the appeal.

The claimant, who had longstanding mental impairment, alleged that negligent psychiatric care led to her pregnancy and the birth of a healthy child. The child was brought up by the claimant’s mother under a residence order. The claimant claimed damages for her own physical and psychiatric injuries and for the child’s upbringing, maintenance and education.

Cooke J decided the preliminary issue in favour of the Trust, holding that the latter costs were not recoverable. The appeal concerned whether the rule in McFarlane applied where the mother was unable to care for the child and a grandmother had assumed that responsibility.

Appeal dismissed. Lord Justice Judge gave the judgment of the court.

1. The court was bound by McFarlane v Tayside Health Board and the subsequent Court of Appeal authorities. The governing principle was that the ordinary costs of caring for and bringing up a healthy child were not recoverable, even where identifiable expenditure could be proved. Greenfield v Irwin confirmed that the same principle applied to a mother’s loss of earnings incurred by giving up work to care for a healthy child.
2. The claimant’s disability did not convert the ordinary costs of rearing a healthy child into additional costs. Her grandmother had assumed the emotional and financial responsibilities which would otherwise have fallen on the claimant, but the underlying costs remained the same ordinary costs considered in McFarlane. The fact that the claimant retained statutory parental responsibility under the Children Act 1989 and the Child Support Act 1991 did not alter the practical analysis.
3. The court distinguished the potential recovery of additional costs arising from a child’s or parent’s disability, as discussed in Parkinson v St James and Seacroft University Hospital NHS Trust and Rees v Darlington Memorial Hospital NHS Trust. No additional disability-related expense was pleaded. If the claimant had been caring for the child herself and her disability had caused additional expenditure, Rees would have applied.
4. The claim could not be treated as a claim by the grandmother for substituted care. Under Hunt v Severs, a relative providing voluntary services has no independent cause of action. The present claim was brought by the mother, and the costs were not recoverable under the authorities.
5. The court rejected the absolute suggestion that the child could never provide any benefit to her mother, since future affection might provide comfort. That observation did not affect the rule governing recovery of ordinary upbringing costs.

The appeal was dismissed with costs. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 1872, the court dismissed the appeal, ordered costs to be assessed and refused permission to appeal to the House of Lords.
2. High Court (Queen’s Bench Division): Cooke J decided the preliminary issue on 24 May 2002, holding that the claimant was not entitled to recover the child’s upbringing, maintenance and education costs, and granted permission to appeal.