Rees v Darlington Memorial Hospital NHS Trust

The House of Lords considered whether a parent who is seriously disabled and who bears a healthy child following negligently performed sterilisation may recover the costs of raising the child. The majority held that the decision in McFarlane v Tayside Health Board [2000] 2 AC 59 — that parents of a healthy child cannot recover the costs of rearing that child — should be followed. However, by a narrow majority the House recognised a limited, conventional award to mark the legal wrong occasioned by negligent sterilisation and ordered payment of £15,000 to the claimant. The court declined to allow recovery of the ordinary costs of child-rearing, but the majority signalled that compensation by way of a conventional sum for the denial of the opportunity to limit family size was appropriate.

Background and facts:

• Ms Karina Rees, seriously visually disabled, underwent a sterilisation operation in 1995. The procedure was negligently performed and she subsequently conceived and gave birth to a healthy son, Anthony, in 1997.
• Ms Rees claimed damages including the costs of bringing up Anthony to majority, comprising both ordinary child-rearing costs and additional costs said to flow from her disability.

Procedural history: The claim began in the County Court, progressed to the High Court where a preliminary issue was decided against recovery of child-rearing costs (deputy judge Stuart Brown QC, May 2001), and reached the Court of Appeal which allowed the claimant to recover extra costs attributable to the mother’s disability (Parkinson v St James and Seacroft University Hospital NHS Trust was also considered). The House of Lords heard the appeal from the Court of Appeal (EWCA Civ 88).

Nature of the claim / relief sought (i): damages in negligence for failed sterilisation; primary relief sought was recovery of costs of raising a healthy child, including additional costs said to be attributable to the mother’s disability.

Issues framed by the court (ii):

• whether the House should depart from McFarlane v Tayside Health Board;
• whether the Court of Appeal’s approach in Parkinson (allowing extra costs for a disabled child) should be treated as determinative;
• whether a seriously disabled parent may recover the additional child-rearing costs attributable to the parent’s disability.

Court’s reasoning and outcome (iii): the majority reaffirmed McFarlane’s central ratio that the ordinary costs of rearing a healthy child are not recoverable because those costs cannot be sensibly balanced against the incalculable benefits of parenthood. The House declined to create a general rule permitting recovery of child-rearing costs for a disabled parent, but a majority accepted that the injustice of leaving a victim of negligent sterilisation without any wider remedy meant a modest conventional award was appropriate to recognise the wrong done. The House therefore allowed the appeal of the hospital trust against the Court of Appeal’s order that extra costs be recoverable, set aside the Court of Appeal's orders and the deputy judge's order, but substituted a conventional award of £15,000 to the claimant.

Appeal allowed. The House adhered to McFarlane v Tayside Health Board and held that the costs of bringing up a healthy child are not recoverable; the Court of Appeal's decision that a disabled parent could recover additional child-rearing costs was set aside. By a narrow majority the Lords substituted a conventional award of £15,000 to recognise the wrong occasioned by negligent sterilisation while avoiding the difficulties of assessing full child-rearing costs.

Appeal from the Court of Appeal (Civil Division) (EWCA Civ 88; reported [2003] QB 20). Preliminary issue heard in the High Court by Mr Stuart Brown QC (May 2001) where the claimant was held not entitled to recover child-rearing costs. The Court of Appeal allowed the claimant in part; the House of Lords allowed the hospital trust's appeal and substituted a conventional award of £15,000.