Judgments - Rees (Respondent) v Darlington Memorial Hospital NHS Trust (Appellants)

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    135.  The inability of the owner of the unwanted foal to claim from the negligent vet the cost of rearing the foal seems to me to raise no particular difficulty or issue of principle. The difficulty produced by cases like McFarlane and the present case is because the originally unwanted progeny is a human being, not an animal, and because, for very deeply ingrained cultural and, for some, religious reasons, human life, whether that of babies, children, adults in the prime of life or the aged and whether normal or associated with disability, is regarded by society generally and by the law as uniquely precious and as incapable of valuation in monetary terms. And the relationship between the originally unwanted but, once born, loved and cherished baby and his or her parents and siblings cannot be put into any monetary scale of benefit and detriment.

    136.  Nonetheless it must be recognised that the parents' costs and expenses in looking after and providing for the originally unwanted baby until his or her maturity do result from the decision of the parent or parents to keep the child. If the parents decided, for example, to place the child with an adoption society with a view to adoption, they would not incur those costs and expenses. Nor would they incur them if, for whatever reason, the mother had had her unwanted pregnancy terminated. Most parents, I am sure, would not regard their decision to keep and rear their baby as representing a choice. It would seem to them inevitable that this is what they would have to do. The owner of the unwanted foal, they would say, has a true choice. There is no reason why he should keep the foal and if he decides to do so he must accept the adverse as well as the beneficial consequences of doing so. But the choice, if that is the right word, facing the parents of the originally unwanted baby is not comparable. For a mix of cultural, moral and religious reasons the parents of every baby are expected to accept a responsibility for the baby and its well being that has no parallel in the case of the unwanted foal. The law, indeed, reinforces these reasons with its own expectations of and duties imposed on parents in relation to the children born to them. It is, in my opinion, reasonable for parents who have produced an originally unwanted baby to say that they regard themselves as having had no choice but to keep the child as a member of their family and raise him or her to the best of their ability.

    137.  But this conclusion does not itself answer the question: why should the negligent doctor be liable for the economic consequences of the parents' decision to keep and rear the child, reasonable, praiseworthy and socially valuable though that decision no doubt was? As to causation, the doctor's negligence was undoubtedly a causa sine qua non of the costs in question and was a reasonably foreseeable consequence of the pregnancy notwithstanding that it resulted from an independent decision of the parents to keep the child. And the pregnancy was the outcome the avoidance of which had been the reason for seeking the doctor's services. These considerations suggest that the answer to the question should favour the claimant.

    138.  But there are two further considerations which seem to me to be of importance and, in the end, determinative. First, there is no escaping that it is a feature of these cases that the expenses sought to be recovered from the negligent doctor have been, or will be, necessarily accepted by the parents of the child as the price to be paid for having the child as a member of their family. It has not been asserted by any parent in any of the cases to which your Lordships have been referred that the price was not worth paying. The value to the parents and the other family members of having the child as a member is not capable of valuation, either at a particular snapshot of chosen time or over the period until the child reaches maturity. Is it right to charge the defendant with the costs and expenses of providing the parents with something of unique value but incapable of valuation? The account of detriment and benefit, into which would go the costs of rearing the child on one side and, at least, the child benefit allowance on the other, would be incomplete without anything to represent the value of what was being acquired by the expenditure. The impossibility of drawing up a balance fair to both sides seems to me a strong argument why no balance should be drawn up at all. And, finally, the placing of a money value on the net detriment to the child's parents of having to rear the child would, it seems to me, be inconsistent with the status of the child as a valued and loved member of the family. I regard these considerations as having a weight that requires a departure from the conclusion to which the normal application of tortious damages rules would lead.

    139.  In McFarlane somewhat different reasons were given by different members of the Appellate Committee for concluding that the parents could not claim damages for the cost of rearing their healthy and much loved baby. I am not in disagreement with the reasons they expressed and have reached the same conclusion. In my opinion, however, it is important to recognise that the conclusion is not that which the normal application of established tortious damages principles would lead to. It is an exception based upon a recognition of the unique nature of human life, a uniqueness that our culture and society recognise and that the law, too, should recognise. It seems to me to be an acceptable irony that the conclusion is the same conclusion as that which would have been reached in the case of the unwanted foal, but reached by an entirely different route.

    140.  If I am right in concluding that the unanimous decision in McFarlane was correct and that the decision was not reached by applying normal principles of damages but by constructing an exception to those principles based upon a recognition of the uniqueness of every human being and, therefore, of every baby whether wanted or unwanted, the question then arises whether the present case falls within that exception.

    141.  The only relevant factual difference between McFarlane and the present case is that in the present case the mother is blind. Her blindness was the reason why she wanted a sterilisation operation to be performed on her. She doubted her ability to look after her baby if she were to bear one. But, due to the doctor's negligence, she did bear one and, on the footing that McFarlane bars her recovery as damages of the ordinary expenses of looking after her child, she seeks damages to reimburse herself for the extra costs she will incur on account of her blindness.

    142.  My Lords, in my opinion the mother's visual disability does not take the case out of the exception to normal principle established by McFarlane. Her baby, too, is a healthy and much loved baby. She has not said, and would not say, that her baby's presence in her household is not a joy and a delight. But it has caused her to incur expenses and will, no doubt, continue for some years to do so. However, all the features of McFarlane that justify creating an exception from normal principle are present, too, in this case. The mother need not have kept her baby but decided to do so. I do not imagine that she ever felt that she had a real choice. There is no doubt that her baby adds value to her life and that the value is not capable of assessment in monetary terms. A balance sheet of detriment and benefit caused by the doctor's negligence cannot be drawn up.

    143.  The majority in the Court of Appeal treated this case as justifying, on account of the mother's blindness, an exception to McFarlane. An exception to an exception is apt to produce messy jurisprudence and for all the reasons so cogently expressed by Waller LJ in his dissenting judgment in the Court of Appeal, the creation of an exception in the present case would lead to further exceptions. The exception that McFarlane constitutes is based on a recognition of the uniqueness of a human being. The principle on which McFarlane is based cannot be limited to the particular circumstances peculiar to that particular case and I do not think the mother's disability in the present case can justify a departure from the basis on which McFarlane was decided. I suspect that underlying the majority decision in the Court of Appeal lies the thought that McFarlane was wrong and a desire to limit its effect as much as possible. In my opinion, however, McFarlane was correctly decided and the basis of the decision should be applied in the present case.

    144.  I should mention Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266. In Parkinson a sterilisation operation on the claimant was negligently performed. As a result the claimant conceived when she thought, and hoped, she was unable to do so. She declined to have her pregnancy terminated although warned that the child might be born with a disability. The child was born with severe disabilities. The claimant claimed damages for negligence. The Court of Appeal, following McFarlane up to a point, held that she was entitled to recover damages for the costs of providing for her child's special needs relating to his disabilities but was not entitled to recover the basic costs of his ordinary maintenance.

    145.  The question how the McFarlane principle should be applied to a case in which the mother is healthy but the child is born with a disability is not one which needs to be resolved on this appeal. In my opinion, however, a distinction may need to be drawn between a case where the avoidance of the birth of a child with a disability is the very reason why the parent or parents sought the medical treatment or services to avoid conception that, in the event, were negligently provided and a case where the medical treatment or services were sought simply to avoid conception. Parkinson was a case in the latter category. In such a case, where the parents have had no particular reason to fear that if a child is born to them it will suffer from a disability, I do not think there is any sufficient basis for treating the expenses occasioned by the disability as falling outside the principles underlying McFarlane. The striking of the balance between the burden of rearing the disabled child and the benefit to the parents of the child as a member of their family seems to me as invidious and impossible as in the case of the child born without any disability.

    146.  Moreover, the immediate cause of the extra expenses is the child's disability, not the doctor's negligence. In Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012 evidence was given to the effect that the chance of a baby being born with a congenital abnormality was between one in 200 and one in 400 (see Waller LJ at p 1019). Waller LJ's reference to this statistic was cited by Brooke LJ in Parkinson in support of his conclusion that the birth of a child with abnormalities was a reasonably foreseeable consequence of the negligent failure to carry out a sterilisation operation successfully.

    147.  My Lords, I have some doubts about this conclusion. The possibility that a child may be born with a congenital abnormality is plainly present to some degree in the case of every pregnancy. But is that a sufficient reason for holding the negligent doctor liable for the extra costs, attributable to the abnormality, of rearing the child? In my opinion it is not. Foreseeability of a one in 200 to 400 chance does not seem to me, by itself, enough to make it reasonable to impose on the negligent doctor liability for these costs. It might be otherwise in a case where there had been particular reason to fear that if a child were conceived and born it might suffer from some inherited disability. And, particularly, it might be otherwise in a case where the very purpose of the sterilisation operation had been to protect against that fear. But on the facts of Parkinson I do not think the Court of Appeal's conclusion was consistent with McFarlane.

    148.  For the reasons I have given I would allow this appeal. But, like my noble and learned friends Lord Bingham of Cornhill and Lord Millett, I am not sure that the recovery by the respondent of nothing for the frustration of her expectation that her sterilisation operation would safeguard her against conception satisfies justice. She was owed a duty of care in the carrying out of the operation. She was entitled to the benefit of the doctor's contractual obligation to his NHS employers to carry out the operation with due care. It is open to the court to put a monetary value on the expected benefit of which she was, by the doctor's negligence, deprived (c/f Farley v Skinner [2002] 2 AC 732). I would respectfully agree with Lord Bingham's suggestion that she be awarded £15,000. So I, too, while allowing the appeal, would substitute an award of £15,000 as a conventional sum to compensate the respondent for being deprived of the benefit that she was entitled to expect.

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Prepared 16 October 2003