Rees v Darlington Memorial Hospital NHS Trust

The exclusion of ordinary child-rearing costs established in [2000] 2 AC 59 does not bar recovery of additional costs caused by a parent's severe disability. Where the surgeon knew of the disability and that it was the reason for seeking sterilisation, disability-specific costs may be recoverable for a healthy child. Recovery is limited to proven extra costs, such as necessary assistance, equipment or adaptations. It does not extend to ordinary costs or transfer of parental care. The Court of Appeal treated this as a legitimate extension of [2001] EWCA Civ 530.

The claimant, who was severely visually disabled, underwent a negligently performed sterilisation after explaining that her disability made caring for a child difficult. She subsequently gave birth to a healthy son. Negligence was admitted, and the appeal concerned only the extent of recoverable upbringing costs.

The High Court, on a preliminary issue, ruled against the claimant on 16 May 2001. On appeal, she accepted that she sought only costs attributable to her disability. The central question was whether [2000] 2 AC 59 barred all costs associated with bringing up a healthy child, or permitted a distinction for disability-specific costs.

1. Disposition. By a majority, Hale LJ and Robert Walker LJ allowed the appeal to the limited extent proposed by Hale LJ. The claimant could claim any extra costs of bringing up her son attributable to her disability. Waller LJ dissented and would have dismissed the appeal. Permission to appeal to the House of Lords was refused.
2. Scope of McFarlane. The House of Lords decision in McFarlane concerned the ordinary costs of bringing up a normal, healthy child. The benefits of having such a child were treated as sufficient to exclude recovery of those ordinary costs. The decision did not address the special case of a severely disabled parent whose disability made ordinary parental tasks unusually difficult or unsafe.
3. Disability-specific costs. Hale LJ held that the ordinary benefits of parenthood could be assumed to negative the claim for ordinary upbringing costs, but did not negative additional costs caused by the mother's disability. The relevant distinction was between an able-bodied parent, who could discharge basic parental responsibilities without help, and a disabled parent who needed assistance to do so. The surgeon knew of the disability and its connection with the request for sterilisation. It was therefore fair, just and reasonable to treat the surgeon as assuming responsibility for the foreseeable disability-specific consequences.
4. Recovery remained confined to extra costs, if any, proved to result from the disability. They might include necessary assistance, special equipment or adaptations to the home. The award was not intended to transfer the whole burden of childcare to another person, but to enable mother and child to live together as a family.
5. Robert Walker LJ agreed in the result and largely in the reasoning, but did not rely on the deemed equilibrium theory. He considered that recovery was justified through the Caparo analysis or the surgeon's assumption of responsibility. The result was outside the scope of McFarlane and was a legitimate extension of Parkinson. Waller LJ considered that making an exception for a healthy child would offend distributive justice by treating other parents with comparable needs less favourably.

1. Court of Appeal (Civil Division). The appeal was allowed to the limited extent that the claimant could pursue extra upbringing costs attributable to her disability: [2002] EWCA Civ 88. Permission to appeal to the House of Lords was refused.
2. High Court, Queen's Bench Division. Mr Stuart Brown QC, sitting as a deputy judge, decided the preliminary issue against the claimant on 16 May 2001.