Rees (Respondent) v. Darlington Memorial Hospital NHS Trust (Appellants)

Following negligent sterilisation, the ordinary and additional costs of bringing up a healthy child are irrecoverable, whether or not the parent is disabled. The benefits and burdens of parenthood cannot appropriately be valued by ordinary compensatory calculation.

Nevertheless, the parent has suffered a legal wrong affecting personal autonomy and the opportunity to plan family life. A conventional award of £15,000 may therefore be made, in addition to damages associated with pregnancy and birth. The award is fixed, requires no proof of financial loss and applies without differentiation based on disability of the parent or child.

The claimant, who had a severe visual disability, underwent a negligently performed sterilisation and subsequently gave birth to a healthy child. The hospital trust admitted negligence. She claimed the ordinary costs of upbringing and additional costs attributable to her disability.

A deputy High Court judge held that no upbringing costs were recoverable under McFarlane v Tayside Health Board [2000] 2 AC 59. The Court of Appeal, by a majority, reversed that decision and allowed recovery in principle of disability-related additional costs: [2002] EWCA Civ 88; [2003] QB 20.

The central questions were whether the House should depart from McFarlane and whether a disabled parent could recover the additional cost of raising a healthy child.

1. Appeal allowed by a majority of four to three. Lord Bingham, Lord Nicholls, Lord Millett and Lord Scott held that the claimant could not recover either the ordinary costs of bringing up her healthy child or additional costs attributed to her disability. Lord Steyn, Lord Hope and Lord Hutton dissented on that issue and would have permitted the claim for disability-related additional costs to proceed.
2. All seven Law Lords declined to depart from McFarlane v Tayside Health Board [2000] 2 AC 59. Its operative rule was that the cost of bringing up a normal, healthy child following negligent sterilisation or advice is irrecoverable. The House regarded that recent unanimous decision as founded on legal policy, fairness and reasonableness. The benefits and burdens of parenthood could not appropriately be weighed in money.
3. Per Lord Bingham, Lord Nicholls, Lord Millett and Lord Scott, parental disability did not justify an exception. Such an exception would create arbitrary distinctions between disabled parents and other parents whose personal circumstances made child-rearing unusually burdensome. It would also require courts to separate costs caused by the child's birth from costs caused by the pre-existing disability.
4. Per Lord Bingham, with Lord Nicholls, Lord Millett and Lord Scott agreeing in the result, a conventional award of £15,000 should recognise the legal wrong and the loss of the opportunity to live and plan family life as intended. It was not an assessment of upbringing costs and required no calculation of financial loss. Lord Steyn and Lord Hope considered that this novel award lacked a principled compensatory basis and should be left to Parliament.
5. Lord Steyn, Lord Hope and Lord Hutton considered serious parental disability a principled ground for recovering proven extra out-of-pocket costs. In their view, the disability had to create a need for additional expenditure so that the child could receive a normal upbringing. This reasoning did not command a majority.
6. The Court of Appeal and High Court orders were set aside. Judgment was entered for the claimant for £15,000, with written submissions on costs invited.

1. House of Lords: By a majority of four to three, allowed the hospital trust's appeal, set aside the orders below and substituted judgment for £15,000: [2003] UKHL 52 .
2. Court of Appeal: By a majority, allowed the claimant's appeal and held that additional upbringing costs attributable to her disability were recoverable in principle: [2002] EWCA Civ 88 ; [2003] QB 20 .
3. High Court: Stuart Brown QC, sitting as a deputy judge, held that McFarlane barred recovery of any upbringing costs.
4. Darlington County Court: Proceedings were commenced there and later transferred to the High Court.