England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
Before THE HON MR JUSTICE COOKE

		Royal Courts of Justice Strand, London, WC2A 2LL
		Tuesday 17 December 2002

Lord Justice Judge:

This is the judgment of the court.

1. This litigation arises from the birth of a child, C, on 27 July 1998. Her father is unknown. Her mother, the claimant, A, was born on 16 March 1971. Her maternal grandmother, Mrs A, was born on 3 October 1950.
2. C is a healthy little girl. Her grandmother, now aged 52 years, is also fit and well. Unfortunately, the claimant suffers from mental instability, the result of brain damage caused by encephalopathic illness when she was five years old.
3. A has been intellectually impaired ever since, and her behaviour is "characterised by manic mood swings, aggression, temper tantrums, promiscuity and disinhibition". She is "sectioned" under s3 of the Mental Health Act 1983, and in March 1997, after a series of placements, she was transferred to a mixed psychiatric ward at St Martin's Hospital, Canterbury, which was run by the defendant NHS Trust.
4. According to the pleaded case, towards the end of October 1997, the claimant became pregnant "as a result of having sexual intercourse with an unknown patient". Although the word rape was mentioned in argument, nothing is known of the circumstances. When the claimant discovered her pregnancy, a "scan was carried out on 19 January 1998 [which] showed her to be eleven weeks and five days pregnant. The claimant decided not to have a termination, and her daughter was born on July 27 1998".
5. Shortly before the child's birth, after a case conference convened by social services, she was designated as a "child in need". Rather than arrangements for fostering or adoption, immediately after her birth, her grandmother applied to Canterbury County Court for a residence order. This was made on 31 July. Since then the child has been brought up by her grandmother, who has accepted responsibility for looking after her for the "foreseeable future".
6. It is not contended that A's inability to care for C was caused by the defendants. Her long-term problem preceded her admission to the hospital for which they were responsible. What is alleged is that the pregnancy and resultant birth of the child were caused by the defendants' negligence, while they were responsible for her psychiatric care. The factual matters alleged are in dispute, but for present purposes must be assumed to be correct.

"The defendants:

(a) Placed the claimant in a mixed psychiatric ward, when it was obviously unsuitable for her;

(b) Failed to place the claimant in a single-sex ward;

(c) Failed to arrange for the claimant to be sterilised or given some form of contraception to prevent her from becoming pregnant;

(d) Failed to solicit and obtain the claimant's consent to be sterilised or given some form of contraception to prevent her from becoming pregnant and / or, if it was refused, to seek the assistance of the court authorising her sterilisation or the provision of a suitable method of contraception;

(e) Failed to heed and act upon Mrs A's express concerns about the claimant's vulnerability, including the risk of her becoming pregnant;

(f) Failed to provide an adequate level of supervision of the claimant and in the ward generally, and

(g) Failed to prevent the claimant from becoming pregnant."

7. For completeness, we must add that the defendants have denied negligence. They contend that the claimant "was capable of deciding whether or not to engage in sexual intercourse and…whether or not to consent to contraceptive treatment", and that she was fully aware of the risks of pregnancy and the benefits of contraceptive measures, which she had elected not to use. The defendants also draw attention to the absence from the claimant's case of any assertion that she had no desire to become pregnant, or that the child was unwanted, or that she was unaware of the risk of pregnancy if contraception was not used. These are all matters which will be decided in due course at a full hearing. At the risk of repetition, we must proceed on the basis that the claimant's allegations are factually correct.
8. The loss consequent on the alleged negligence has two distinct ingredients. First, by paragraph 9, the claimant "suffered injury, namely the physical and psychological effects of the pregnancy, and the psychiatric trauma caused by her separation from and inability to bring up the child". Second, by paragraph 10, she "sustained loss and damage, namely the costs of the child's upbringing, maintenance and education", on the basis that effectively the mother is carrying out all these necessary functions for and on behalf of her daughter.
9. This is an appeal from a decision by Cooke J dated 24 May 2002 at the trial of the preliminary issue which was confined to the second ingredient of the alleged loss: "Whether the claimant is entitled to claim in respect of the child's upbringing, maintenance and education." Cooke J decided that the claimant was not so entitled, and gave her permission to appeal.
10. In reaching his decision, Cooke J was bound by the decisions and principles set out in three authorities. They are equally binding on us. These were: McFarlane v Tayside Health Board [2000] 2 AC59, Parkinson v St James and Seacroft University Hospital NHS Trust [2000] QB266 and Rees v Darlington Memorial Hospital NHS Trust [2002] 2WLR 1483. We understand that permission to appeal this third decision has been granted by the House of Lords.
11. The starting point is McFarlane. By a majority, the House of Lords held that, in view of the negligence which had attended a vasectomy operation carried out on the father, the mother, who gave birth to a healthy, normal child, was entitled to general damages for pain and suffering, and the inconvenience of pregnancy and childbirth, together with associated special damages. The House also held, unanimously, that the cost of caring for and bringing up the baby were not recoverable.
12. The skeleton arguments before us carefully analysed the reasoning process by which each member of the House of Lords came to a conclusion. We do not think it necessary to examine the different judgments: the principle is clear. If A were capable of bringing up her child, based on McFarlane, the claim pleaded in paragraph 10 would be unsustainable.
13. Since McFarlane, however, these issues have been reconsidered in this court. First, we must note Greenfield v Irwin [2001] WLR 1279. Following the birth of a healthy child, the mother made a claim for the loss of earnings sustained when she gave up work to care for and bring up her child. Although for the purposes of argument, the Court of Appeal was prepared to accept that the House in McFarlane was not consciously directing its attention to such a claim, the claim for these losses was held to fall within the McFarlane principle, and hence was unsustainable. For example, May LJ could discern no "material distinction between the costs of caring for and bringing up a child held to be irrecoverable in McFarlane, and the mother's claim for loss of earnings". Laws LJ thought it sufficient for the decision to reflect that the existence of a healthy child could not be categorised as a detriment sounding in damages. The argument before us makes it unnecessary to deal with the further distinction sought to be drawn with McFarlane, that the claim there was decided on the basis of economic loss resulting from negligent advice, rather than physical injury caused by negligent omission, as in Greenfield.
14. As we are here concerned with the birth of a healthy child, we need not consider the problems which might have arisen if C had been disabled at birth. In Parkinson and Groom v Selby [002]Lloyd's Rep Med 1, and a number of cases at first instance, a distinction was drawn between McFarlane, where a healthy child was born, and such cases. That said, Parkinson lends emphasis to the principle that the ordinary costs of rearing a child cannot be recovered: the admissible claim was directed to the "additional" costs arising from the child's disability.
15. In the present case, of course, unlike McFarlane and indeed Parkinson, the mother herself was disabled: so we must consider a further distinction with McFarlane. Inevitably, and rightly, therefore, our particular attention was focused on Rees, where the mother's vision was substantially impaired. Mr Yell pointed out to us that, notwithstanding the residence order, in this case the mother herself was not divested of her statutory parental responsibility for her child under the Children Act 1989, and the Child Support Act 1991. This responsibility may indeed have survived the residence order, but no one has suggested that in practical terms this responsibility is, or may become more than technical or theoretical, and, in any event, it extends to the normal obligation of maintenance and support of the child. Moreover, it is expressly pleaded that C will be brought up by her grandmother, who will be "looking after her for the foreseeable future", and the claimant herself claims damages for the psychiatric trauma "caused by her separation from and inability to bring up" her daughter. It is not alleged that the mother's disability will involve additional expense, beyond the cost inevitably involved in rearing a healthy child. Given that the House of Lords will be examining Rees, we shall not complicate the debate by adding any observations of our own. It is sufficient to record that, although the disability in this case arose from the mother's mental, rather than any physical infirmity, if she had been going to bring up her own child, and if further, her disability would have required her to incur additional cost while doing so, we should have been required to apply Rees.
16. To overcome the difficulty presented by the principle in McFarlane, Mr Nicholas Yell submitted that there was no logical basis for distinguishing between the severely incapacitated mother and the claimant, who is totally disabled from caring for her child. It was not "fair, just and reasonable", within the ambit of the Caparo principle, to hold that the prohibition created by McFarlane extended as far as this case, in which the grandmother had assumed the burden of care and support. He submitted that the birth of the child to this mother provided no benefit whatever to her: to the contrary, she was seeking an award of damages to compensate her for psychiatric illness caused by deprivation of the joys of motherhood. In this context, Hale LJ's metaphor of "deemed equilibrium" (see Parkinson, at paragraph 90, and Rees at paragraph 10) was apposite, because the birth of her child produced no benefits for the mother. Accordingly, and in summary, taking this mother as they found her (that is, unable through mental infirmity to care for her child), the costs of bringing the child up were "additional" or "extra" costs for the grandmother arising from the mother's total disability. During the course of his reply, Mr Yell suggested that the claim should be seen as the valuation of substituted care provided by another carer. However, he did not seek to amend paragraph 10(v), and suggested that this new approach to the claim was subsumed in the original pleading.
17. Despite Mr Yell's persuasive submissions, in reality, this mother is claiming as damages the entire cost of bringing up and supporting her healthy child on the basis that, although she could not recover such damages herself if she were fit and healthy (McFarlane), and could recover only the "extra" costs occasioned by her disability if she were partly disabled (Rees), she should now recover all these costs because her mother has fully accepted the responsibilities which would otherwise have fallen on her. In effect, her mother has replaced her in the life of her child, carrying both the emotional and financial burdens.
18. This is not a claim for damages either by the child herself, nor indeed by her grandmother. The principles which govern cases where a relative gratuitously provides care for an injured claimant are well understood. Damages are recoverable from the tortfeasor to the injured claimant for the reasonable value of such services, and are then held in trust for the benefit of the person providing the voluntary care (Hunt v Severs [994] 2AC356). Notwithstanding some of the difficulties about the concept of a trust created in these circumstances, for present purposes it is enough, but crucial, to notice that Lord Bridge, at p358, giving the judgment with which the other members of the House agreed, made clear that the person providing the voluntary services has no cause of action of her own.
19. As a matter of principle, therefore, we are required to focus on the sustainability of a claim by the mother for the cost of rearing her healthy child. It is illuminating to contrast the position of the mother, who has lost earnings as a result of giving up work to care for her injured child (the situation in Donnelly v Joyce [1974] QB454) with that of the mother, similarly losing earnings, in order to be at home to care for the healthy child born to her as a result of the defendant's negligence (as in Greenfield). Although some of Megaw LJ's observations in Donnelly about the basis of the mother's claim are no longer authoritative, no one doubts that the tortious defendant would be liable to pay damages to the injured child if his mother were to suffer loss of earnings in order to be at home to care for him. Nevertheless, as we have already seen, in Greenfield, losses sustained on the same basis (loss of earnings to be at home to care for a healthy child) were not recoverable by the mother who had been the victim of negligence by a hospital authority. The difference is not accidental: it reflects the principle that even if the birth of the child resulted from medical negligence, damages are not recoverable to compensate for the cost of rearing a healthy child, notwithstanding that identifiable expense can be established.
20. The cost of rearing C is not "additional" or "extra" in the sense envisaged in Parkinson and Rees. For all practical purposes, they are the same costs, now being borne by someone other than the mother, Mrs A, gratuitously providing for her granddaughter in the same way as the child's mother would have done, if she had been fit. As a head of damages, on the authorities, these costs are not recoverable as part of the mother's claim.
21. We must add that we do not accept that this child cannot and never will provide any possible benefit to her mother. It is not inconceivable that in years to come C will discover within herself a well-spring of affection for the mother who bore her, who, even in her continuing mental infirmity, will derive unanticipated comfort and strength from it. And if the claim could be advanced by Mrs A herself (which, for the reasons we have given, it has not and cannot) it would be invidious to attempt to put a money value on the benefit that she will derive from the joy of having her healthy granddaughter living with her and growing up in her home.
22. We naturally have great sympathy for Mrs A as well as considerable admiration for the way in which she has come to C's rescue and provided her with the love and care that she needs. We must, however, dismiss this appeal.
Order: appeal dismissed with costs to be assessed; permission to appeal to House of Lords refused; rest of order made in terms of agreed draft. (Order does not form part of the approved judgment)