Rees (Respondent) v Darlington Memorial Hospital NHS Trust (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Darlington Memorial Hospital NHS Trust (Appellants)
THURSDAY 16 OCTOBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Rees (Respondent) v. Darlington Memorial Hospital NHS Trust (Appellants)
 UKHL 52
LORD BINGHAM OF CORNHILL
The policy considerations underpinning the judgments of the House were, as I read them, an unwillingness to regard a child (even if unwanted) as a financial liability and nothing else, a recognition that the rewards which parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a National Health Service always in need of funds to meet pressing demands would rightly offend the community's sense of how public resources should be allocated. Kirby J was surely right to suggest (in paragraph 178 of his judgment in Melchior) that:
It is indeed hard to think that, if the House had adopted the first solution discussed above, its decision would have long survived the first award to well-to-do parents of the estimated cost of providing private education, presents, clothing and foreign holidays for an unwanted child (even if at no more expensive a level than the parents had provided for earlier, wanted, children) against a National Health Service found to be responsible, by its negligence, for the birth of the child. In favouring the third solution, holding the damages claimed to be irrecoverable, the House allied itself with the great majority of state courts in the United States and relied on arguments now strongly supported by the dissenting judgments of Gleeson CJ, Hayne and Heydon JJ in Melchior.
(1) While I have every sympathy with the Court of Appeal's view that Mrs Parkinson should be compensated, it is arguably anomalous that the defendant's liability should be related to a disability which the doctor's negligence did not cause and not to the birth which it did.
(2) The rule favoured by the Court of Appeal majority in the present case inevitably gives rise to anomalies such as those highlighted by Waller LJ in paragraphs 53-54 of his dissenting judgment.
(3) It is undesirable that parents, in order to recover compensation, should be encouraged to portray either their children or themselves as disabled. There is force in the points made by Kirby J in paragraphs 163-166 of his judgment in Melchior.
(4) In a state such as ours, which seeks to make public provision for the consequences of disability, the quantification of additional costs attributable to disability, whether of the parent or the child, is a task of acute difficulty. This is highlighted by the inability of the claimant in this appeal to give any realistic indication of the additional costs she seeks to recover.
LORD NICHOLLS OF BIRKENHEAD
I. A Disabled Mother and a Failed Sterilisation.
When Ms Rees saw the consultant, she told him that she did not want to have children. She told him that her very poor eyesight would make it very difficult for her to look after a baby.
II. The Proceedings Below.
III. The Issues Before the House.
Despite this formulation of the issue, the case for the claimant at the hearing before the House appeared to be restricted to seeking to recover the extra cost involved in discharging her responsibility for bringing up a healthy child which are incurred as a result of her disability. The House has the same meagre information before it as the Court of Appeal had. There is in particular no information before the House as to how, if at all, it is more costly for the claimant to look after Anthony than it would be for a mother who does not have the disability. In what has been a complex case this has proved to be a difficulty.
IV. The Challenge To The Decision in McFarlane.
These I believe to be themes which led the Law Lords sitting in the case to reject the claim for the cost of bringing up the healthy child: see Lord Slynn of Hadley, at 75C and 76C; my judgment, at 83D-E; Lord Hope of Craighead, at 97C-D; Lord Clyde, at 103 B-D; Lord Millett, at 111C-D.
This led the House to refuse to depart from a decision given eleven years earlier even if it had been wrong. In Fitzleet Estates Ltd v Cherry  1 WLR 1345 the House returned to the point. There was an invitation to the House to depart from a majority decision (by 3:2) in a previous case decided eleven years before. Lord Wilberforce observed (with the express agreement of Lord Salmon and Lord Keith) (1349):
Viscount Dilhorne and Lord Edmund-Davies gave speeches along the same lines. None of this detracts from the power of the House to depart from a previous decision where there are cogent reasons to do so. Without trying to be exhaustive, I would mention that a fundamental change in circumstances such as was before the House in Miliangos v George Frank (Textiles) Ltd  AC 443, or experience showing that a decision of the House results in unforeseen serious injustice, may permit such a departure.
V. Parkinson: A Disabled Child.
VI. Rees: The Disabled Mother.
The examples given by Waller LJ in paras 53 and 54 are telling. I would accept that there is an element of arbitrariness involved in holding that only the disabled mother of a healthy and normal child can claim damages. Since it is of prime importance that the law must avoid arbitrariness this creates a serious difficulty.
How is this tension between cogent arguments pulling in opposite directions to be resolved? In jurisprudential and positive law terms this is a truly hard case. It is unrealistic to say that there is only one right answer. But a decision must be made, and that decision must represent the best available choice and hopefully a decision defensible as delivering justice. For reasons which are apparent from this opinion it is logically not straightforward to treat the present case as simply an extension of Parkinson. On the other hand, I consider (like Hale and Walker LJJ) that the law should give special consideration to the serious disability of a mother who had wanted to avoid having a child by undergoing a sterilisation operation. I am persuaded that the injustice of denying to such a seriously disabled mother the limited remedy of the extra costs caused by her disability outweighs the considerations emphasised by Waller LJ.
VII. A conventional award
40. Lord Bingham has explained why he favours a conventional award of £15,000 in the present case. His opinion makes clear that to this extent he would depart from McFarlane in the case of a healthy and normal child. He has further observed that he would apply this rule, without differentiation, to cases in which either the child or the parent is (or claims to be) disabled. This involves overruling the majority of the Court of Appeal in the present case. It also involves overruling the Court of Appeal decision in Parkinson against which there was no appeal. The other opinions in the present case speak for themselves.
41. As Lord Bingham has said the suggestion was first made by Lord Millett in McFarlane (at p 114). It is true that none of the members of the majority in McFarlane discussed the point. It was, of course, not an issue at all in McFarlane. But it would be wrong to assume that the majority did not consider it. Like Lord Hope I considered it but found it unacceptable. And without doubt that was also the position of Lord Slynn and Lord Clyde. The proposal for a conventional award therefore runs counter to the views of the majority in McFarlane. Now the idea appeals to a narrow majority of a differently constituted Appellate Committee. This does not mean that the point cannot be re-examined but it certainly suggests that the matter should be examined with great care and due observance of the usual procedures.
42. In Parkinson the idea of a conventional award was not raised at all. It could, of course, have been raised as an alternative. The reason was no doubt that after McFarlane it was thought that this avenue was no longer open.
43. In the present case the idea of a conventional award was not raised at first instance or in the Court of Appeal. For my part it is a great disadvantage for the House to consider such a point without the benefit of the views of the Court of Appeal. And the disadvantage cannot be removed by calling the new rule a "gloss". It is a radical and most important development which should only be embarked on after rigorous examination of competing arguments.
44. It is clear from the agreed statement of facts and issues, as well as the printed case of the parties, that the idea of a conventional award was not an issue in the present case until the oral hearing. It is true that questions along these lines were put in oral argument but the examination of the issue was cursory and unaccompanied by research.
45. No United Kingdom authority is cited for the proposition that judges have the power to create a remedy of awarding a conventional sum in cases such as the present. There is none. It is also noteworthy that in none of the decisions from many foreign jurisdictions, with varying results, is there any support for such a solution. This underlines the heterodox nature of the solution adopted.
46. Like Lord Hope I regard the idea of a conventional award in the present case as contrary to principle. It is a novel procedure for judges to create such a remedy. There are limits to permissible creativity for judges. In my view the majority have strayed into forbidden territory. It is also a backdoor evasion of the legal policy enunciated in McFarlane. If such a rule is to be created it must be done by Parliament. The fact is, however, that it would be a hugely controversial legislative measure. It may well be that the Law Commissions and Parliament ought in any event, to consider the impact of the creation of a power to make a conventional award in the cases under consideration for the coherence of the tort system.
47. I cannot support the proposal for creating such a new rule.
VIII. The Conclusion and Disposal.
LORD HOPE OF CRAIGHEAD
The disabled child
The disabled mother
A conventional sum?
McFarlane v Tayside Health Board
The issues on this appeal
And, at p 109C:
See also Lord Slynn, at p 70H and Lord Hope, at p 90B.
The decision of the Court of Appeal in Parkinson
He then stated:
And, at p 283C he stated:
And, at p 293C:
At the end of her judgment she stated, at p 295A:
Sir Martin Nourse agreed with both judgments.
The decision of the Court of Appeal in this case
He further stated, at p 32G that the circumstances of Karina Rees's case are not covered by McFarlane's case, that an award to her would be a legitimate extension of the decision in Parkinson, and that disabled persons are a category of the public whom the law increasingly recognises as requiring special consideration.
Others too made it clear that this was not the same as public policy in the traditional sense of that expression. It would not have been contrary to public policy to award damages to the pursuers in McFarlane any more than it would be contrary to public policy to award damages for breach of contract beyond the limits imposed by the rule in Hadley v Baxendale (1854) 9 Exch 341. But in both cases the denial of damages rests upon policy considerations.
In Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd  AC 191 Lord Hoffmann said, at p 211:
is quite different from saying that the balance must be treated as level.
LORD SCOTT OF FOSCOTE