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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 (16 October 2003)
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Cite as: [2003] UKHL 52, [2004] Fam Law 22, [2004] AC 309, [2003] 3 WLR 1091, [2003] 3 FCR 289, [2004] 1 FLR 234, [2003] 4 All ER 987, [2004] Lloyd's Rep Med 1, [2004] 1 AC 309, (2004) 75 BMLR 69, [2004] PIQR P14, [2004] Lloyds Rep Med 1

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JISCBAILII_CASE_TORT

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

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 52
on appeal from: EWCA Civ 88

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Rees (Respondent)

v.

Darlington Memorial Hospital NHS Trust (Appellants)

ON

THURSDAY 16 OCTOBER 2003

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Lord Hutton

Lord Millett

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)

[2003] UKHL 52

LORD BINGHAM OF CORNHILL

My Lords,

In McFarlane v Tayside Health Board [2000] 2 AC 59 a husband and wife, themselves healthy and normal, sought to recover as damages the cost of bringing up a healthy and normal child born to the wife, following allegedly negligent advice on the effect of a vasectomy performed on the husband. Differing from the Inner House of the Court of Session (1998 SLT 307), the House unanimously rejected this claim. A factual variant of that case reached the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266: the mother, who had undergone a negligently performed sterilisation operation, conceived and bore a child who was born with severe disabilities. Following McFarlane, the Court of Appeal held that the mother could not recover the whole cost of bringing up the child; but it held that she could recover the additional costs she would incur so far as they would be attributable to the child's disabilities. There was no appeal from that decision. The present case raises a further factual variant of McFarlane. The claimant in these proceedings (Ms Rees) suffers a severe and progressive visual disability, such that she felt unable to discharge the ordinary duties of a mother, and for that reason wished to be sterilised. She made her wishes known to a consultant employed by the appellant NHS Trust, who carried out a sterilisation operation but did so negligently, and the claimant conceived and bore a son. The child is normal and healthy but the claimant's disability remains. She claimed as damages the cost of rearing the child. The Court of Appeal (Robert Walker and Hale LJJ, Waller LJ dissenting) held that she was entitled to recover the additional costs she would incur so far as they would be attributable to her disability: [2002] EWCA Civ 88, [2003] QB 20. The appellant NHS Trust now challenges that decision as inconsistent with McFarlane. The claimant seeks to uphold the decision, but also claims the whole cost of bringing up the child, inviting the House to reconsider its decision in McFarlane.

Since the argument in this appeal the High Court of Australia has given judgment in Cattanach v Melchior [2003] HCA 38. That case arose from negligent advice following an incompletely performed sterilisation operation and one of the issues (the only issue litigated in the High Court) was whether the parents could recover as damages the cost of rearing the child, both parents and child being normal and healthy. The trial judge upheld that claim and her decision was affirmed by a majority of the Court of Appeal of the Supreme Court of Queensland ([2001] QCA 246) and by a bare majority of the High Court. I have found the judgments of the High Court of particular value since, although most of the arguments deployed are not novel (as they could scarcely be, given the volume of litigation on this subject in many different countries), the division of opinion among the members of the court gives the competing arguments a notable sharpness and clarity.

It is convenient to begin by considering McFarlane. In that case there were, as it seems to me, broadly three solutions which the House could have adopted to the problem then before it. (I can, for present purposes, omit two of the solutions which Kirby J listed in paragraph 138 of his judgment in Melchior but gratefully adopt his formulation of the remaining three, while altering their order). They were:

An orthodox application of familiar and conventional principles of the law of tort would, I think, have pointed towards acceptance of the first of these solutions. The surgeon whose allegedly negligent advice gave rise to the action was exercising his professional skill for the benefit of the McFarlanes who relied on it. The foreseeable result of negligent advice would be the birth of a child, the very thing they wished to avoid. No one can be unaware that bringing up a child has a financial cost. All members of the House accepted that the surgeon owed a duty of care to the McFarlanes, and the foreseeable result was that which occurred. Thus the proven violation of a legal right would lead to a compensatory remedy. I do not find it surprising that this solution has been supported by the line of English authority which preceded McFarlane (Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012, Thake v Maurice [1986] QB 644, Benarr v Kettering Health Authority [1988] 138 NLJ 179), by the Inner House in McFarlane itself (1998 SLT 307), by decisions of the Hoge Raad in the Netherlands and the Bundesverfassungsgericht in Germany (see Keuleneer, Androulidakis-Dimitriadis and Pozzo, European Review of Private Law 2:241-256, 1999) and now by a majority of the High Court of Australia. Faithful adherence to the precepts articulated by Lord Scarman in McLoughlin v O'Brian [1983] 1 AC 410, 429-430 would have pointed towards adoption of this first solution.

The second solution has been adopted in 6 state courts in the United States (see La Croix and Martin, "Damages in Wrongful Pregnancy Tort Actions", in Ireland and Ward, Assessing Damages in Injuries and Deaths of Minor Children (2002) 93, 97-98, quoted by Callinan J in his judgment in Melchior, paragraph 287). But this solution did not commend itself to any member of the House in McFarlane or any member of the High Court in Melchior, it was not supported by counsel in the present appeal and the objections to it are in my opinion insuperable. While it would be possible to assess with some show of plausibility the likely discounted cost of rearing a child until the age when the child might reasonably be expected to become self-supporting, any attempt to quantify in money terms the value of the joys and benefits which the parents might receive from the unintended child, or any economic benefit they might derive from it, would, made when the child is no more than an infant, be an exercise in pure speculation to which no court of law should lend itself. I need say no more of this possible solution.

The five members of the House who gave judgment in McFarlane adopted different approaches and gave different reasons for adopting the third solution listed in paragraph (3) above. But it seems to me clear that all of them were moved to adopt it for reasons of policy (legal, not public, policy). This is not a criticism. As Lord Denning MR said in Dutton v Bognor Regis Urban District Council [1972] 1 QB 373, 397:

Donoghue v Stevenson:

Dorset Yacht Co Ltd v Home Office

Rondel v Worsley

[1969] 1 AC 191

Dorset Yacht Co Ltd v Home Office

[1970] AC 1004

SCM (United Kingdom) Ltd v W J Whittall & Son Ltd

Launchbury v Morgans

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:

McFarlane

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.

I am of the clear opinion, for reasons more fully given by my noble and learned friends, that it would be wholly contrary to the practice of the House to disturb its unanimous decision in McFarlane given as recently as 4 years ago, even if a differently constituted committee were to conclude that a different solution should have been adopted. It would reflect no credit on the administration of the law if a line of English authority were to be disapproved in 1999 and reinstated in 2003 with no reason for the change beyond a change in the balance of judicial opinion. I am not in any event persuaded that the arguments which the House rejected in 1999 should now be accepted, or that the policy considerations which (as I think) drove the decision have lost their potency. Subject to one gloss, therefore, which I regard as important, I would affirm and adhere to the decision in McFarlane.

My concern is this. Even accepting that an unwanted child cannot be regarded as a financial liability and nothing else and that any attempt to weigh the costs of bringing up a child against the intangible rewards of parenthood is unacceptably speculative, the fact remains that the parent of a child born following a negligently performed vasectomy or sterilisation, or negligent advice on the effect of such a procedure, is the victim of a legal wrong. The members of the House who gave judgment in McFarlane recognised this by holding, in each case, that some award should be made to Mrs McFarlane (although Lord Millett based this on a ground which differed from that of the other members and he would have made a joint award to Mr and Mrs McFarlane). I can accept and support a rule of legal policy which precludes recovery of the full cost of bringing up a child in the situation postulated, but I question the fairness of a rule which denies the victim of a legal wrong any recompense at all beyond an award immediately related to the unwanted pregnancy and birth. The spectre of well-to-do parents plundering the National Health Service should not blind one to other realities: that of the single mother with young children, struggling to make ends meet and counting the days until her children are of an age to enable her to work more hours and so enable the family to live a less straitened existence; the mother whose burning ambition is to put domestic chores so far as possible behind her and embark on a new career or resume an old one. Examples can be multiplied. To speak of losing the freedom to limit the size of one's family is to mask the real loss suffered in a situation of this kind. This is that a parent, particularly (even today) the mother, has been denied, through the negligence of another, the opportunity to live her life in the way that she wished and planned. I do not think that an award immediately relating to the unwanted pregnancy and birth gives adequate recognition of or does justice to that loss. I would accordingly support the suggestion favoured by Lord Millett in McFarlane (at p 114) that in all cases such as these there be a conventional award to mark the injury and loss, although I would favour a greater figure than the £5,000 he suggested (I have in mind a conventional figure of £15,000) and I would add this to the award for the pregnancy and birth. This solution is in my opinion consistent with the ruling and rationale of McFarlane. The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.

I would for my part apply this rule also, without differentiation, to cases in which either the child or the parent is (or claims to be) disabled:

(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.

I would accordingly allow the appeal, set aside the orders of the Court of Appeal and of the Deputy Judge, and order that judgment be entered for the claimant for £15,000. I would invite the parties to make written submissions on costs within 14 days.

My Lords,

In this appeal, as in the recent case of McFarlane v Tayside Health Board [2000] 2 AC 59, your Lordships' House has to make a decision concerning the development of the law in a field which is highly controversial and, therefore, exceedingly difficult. What should be the policy of the law on the award of damages when an unwanted pregnancy occurs, and an unintended child is born, following professionally negligent medical procedures or advice? Should the doctor or the hospital be required to pay the cost of bringing up the child to an age when he will be self-supporting?

The parent's claim in this type of case can be stated simply. The negligent doctor committed a legal wrong towards the parent, and the precise event the parent sought to avoid then happened: the birth of a child. On ordinary legal principles the foreseeable adverse financial consequences of a legal wrong may expect to be borne by him who committed the wrong. Here the cost of bringing up the child was foreseeable and, indeed, may have been one of the very reasons why the parent sought to avoid pregnancy.

This argument is forceful. But it is important to keep in mind that the law's evaluation of the damages recoverable for a legal wrong is not an automatic, mechanical exercise. Recoverability of damages is always bounded by considerations of fairness and reasonableness: see Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883, 1090 - 1091, paras 69-70. So the answers to the questions I have stated calls for an assessment of what is fair and reasonable in cases of this nature.

Judges of course do not have, and do not claim to have, any special insight into what contemporary society regards as fair and reasonable, although their legal expertise enables them to promote a desirable degree of consistency from one case or type of case to the next, and to avoid other pitfalls. But, however controversial and difficult the subject matter, judges are required to decide the cases brought before the courts. Where necessary, therefore, they must form a view on what are the requirements of fairness and reasonableness in a novel type of case.

In McFarlane v Tayside Health Board [2000] 2 AC 59, your Lordships' House held unanimously that a negligent doctor is not required to meet the cost of bringing up a healthy child born in these circumstances. The language, and to some extent the legal reasoning, employed by each of their Lordships differed. But, however expressed, the underlying perception of all their Lordships was that fairness and reasonableness do not require that the damages payable by a negligent doctor should extend so far. The approach usually adopted in measuring recoverable financial loss is not appropriate when the subject of the legal wrong is the birth of an unintended healthy child and the head of claim is the cost of the whole of the child's upbringing.

I have heard nothing in the submissions advanced on the present appeal to persuade me that this decision by the House was wrong and ought to be revisited. On the contrary, that the negligent doctor or, in most cases, the National Health Service should pay all the costs of bringing up the child seems to me a disproportionate response to the doctor's wrong. It would accord ill with the values society attaches to human life and to parenthood. The birth of a child should not be treated as comparable to a parent suffering a personal injury, with the cost of rearing the child being treated as special damages akin to the financially adverse consequences flowing from the onset of a chronic medical condition.

But this is not to say it is fair and reasonable there should be no award at all except in respect of stress and trauma and costs associated with the pregnancy and the birth itself. An award of some amount should be made to recognise that in respect of birth of the child the parent has suffered a legal wrong, a legal wrong having a far-reaching effect on the lives of the parent and any family she may already have. The amount of such an award will inevitably have an arbitrary character. I do not dissent from the sum of £15,000 suggested by my noble and learned friend Lord Bingham of Cornhill in this regard. To this limited extent I agree that your Lordships' House should add a gloss to the decision in McFarlane v Tayside Health Board [2000] 2 AC 59.

Once it is decided that damages do not include the cost of bringing up a healthy child, anomalies such as those noted by Waller LJ in the Court of Appeal in the present case become inescapable if an exception is made when either the child or the mother is disabled. The personal circumstances where this problem arises will vary so widely that what is fair and reasonable in one set of family circumstances, including the financial means of the family, may not seem so in another. But awards of damages of this nature cannot sensibly be made by courts on a discretionary or means-tested basis. The preferable approach is an award of a lump sum of modest amount in all circumstances.

For these reasons, and also the reasons given by Lord Bingham of Cornhill, I would allow this appeal, and set aside the orders of the Court of Appeal and of Stuart Brown QC sitting as a deputy High Court judge. In response to the preliminary issue I would declare that the claimant is not entitled to recover any of the costs of bringing up the child Anthony, but she is entitled to payment of £15,000.

LORD STEYN

My Lords,

I. A Disabled Mother and a Failed Sterilisation.

Ms Karina Rees is now 31 years of age. She suffers from a genetic condition known as retinitis pigmentosa. Since the age of two she has been blind in one eye and has limited vision (6/36) in the other. She is severely visually handicapped.

In 1995 Ms Rees consulted her general medical practitioner with a view to undergoing a sterilisation procedure. The GP referred her to a consultant gynaecologist at the Darlington Memorial Hospital. The referral letter to the consultant explained that:

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.

On 18 July 1995 the consultant performed the sterilisation operation. He did not adequately occlude the fallopian tubes. Ms Rees was unaware that the sterilisation operation had failed.

In July 1996 Ms Rees became pregnant. On 28 April 1997 she gave birth to a son, Anthony. His father has no desire to be involved with him. There is a risk that Anthony has inherited retinitis pigmentosa but it is low. Anthony is a healthy and normal child. Very little is known about the impact of Ms Rees' disability on the way in which she cares for Anthony. The Court of Appeal was, however, told that she is bringing up Anthony herself with the help of her mother and other relatives who live nearby. The Court of Appeal was also told that Ms Rees does not cook because she feels it to be too dangerous but that she does try to dress the child.

II. The Proceedings Below.

On 21 September 1999 Ms Rees issued proceedings in the Darlington County Court claiming damages for negligence arising out of the failure of the sterilisation operation. By her amended particulars of claim she claimed the cost of bringing up Anthony to his majority which costs would include expenses that would be common to the upbringing of Anthony by a mother who was healthy and expenses that would be incurred by her as a result of her visual handicap. By its defence the NHS Hospital Trust admitted that the sterilisation operation was performed negligently but it denied liability for any part of the cost of bringing up Anthony. The case was transferred to the High Court. On 1 May 2001 Mr Stuart Brown QC, sitting as a deputy judge of the High Court, heard a preliminary issue. The purpose of the preliminary issue was to determine whether Ms Rees was in principle entitled to recover any part of the cost of bringing up Anthony in the light of the decision of the House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59. In McFarlane this House had decided that parents of a healthy child, born after negligent sterilisation advice, could not recover in tort the cost of bringing up the child. At the same time the House held that a modest solatium in respect of the pain and suffering associated with pregnancy and childbirth may be awarded. On 16 May 2001, the judge held that Ms Rees was not entitled to recover any part of the costs of bringing up Anthony.

When the matter came before the Court of Appeal it had before it not only the decision of the House in McFarlane but also the subsequent decision of the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 where it was held that in a failed sterilisation case the extra costs of discharging parental responsibility towards a disabled child is unaffected by McFarlane and can in principle be recovered. There was no appeal against this decision. On 14 February 2002 by a majority the Court of Appeal (Hale and Robert Walker LJJ, with Waller LJ dissenting) allowed the appeal of the claimant and held that a disabled parent is entitled to recover those "extra" costs involved in discharging his or her responsibility to bring up a healthy child which are attributable to and incurred as a result of the fact of the parent's disability: Rees v Darlington Memorial Hospital NHS Trust [2003] QB 20. Unfortunately, there was no information before the Court of Appeal as 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 her disability.

III. The Issues Before the House.

The agreed issue before the House reads as follows:

McFarlane v Tayside Health Board

[2000] 2 AC 59

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.

It is necessary to explain the framework of the appeal in more detail. First it was submitted on behalf of the claimant that the House wrongly decided McFarlane. If this challenge succeeds, it is common ground that the claimant is entitled to succeed and the appeal of the NHS Trust Hospital must be dismissed. If it fails, other issues arise. The second issue, relevant by analogy and not direct application, is whether the decision in Parkinson, which laid down that the case of a disabled child falls outside the scope of the principle laid down in McFarlane, was correct. The answer to this question has some bearing on the ultimate decision in the instant case. The third question is then whether the majority in the Court of Appeal in the present case correctly held that the decision in McFarlane does not preclude recovery by a disabled parent of a healthy child of the extra cost of caring for the child.

IV. The Challenge To The Decision in McFarlane.

I do not propose to undertake the gruesome task of discussing the judgments in McFarlane. But it is necessary to explain briefly what was decided in McFarlane. It was held that the cost of parents caring for a healthy and normal child, born as a result of negligent sterilisation advice, was not recoverable in tort. There was undoubtedly divergence between the reasoning in the speeches. Subject to Lord Millett's view that a modest conventional sum - he mentioned £5,000 (at 114) - could be awarded there was unanimity on the outcome of the principal claim for the cost of bringing up the child. There is a clear ratio. Moreover, despite differences in reasoning, two features were crucial. First, in monetary terms it is impossible to calculate the benefits of avoiding a birth and having a healthy child. In Parkinson [2002] QB 266 Hale LJ sought to rationalise the decision in McFarlane by saying that it depended on a deemed equilibrium theory: 292-293, paras 87-91. That is not a correct interpretation of McFarlane. Instead the emphasis was squarely on the impossibility of undertaking a process of weighing the advantages and disadvantages. The second feature was explained by Lord Millett as follows (113 H - 114 A):

But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

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.

That brings me to the question what the foundation of this reasoning was. For my part the answer is clear. The House did not rest its decision on public policy in a conventional sense: Lord Slynn of Hadley, at 76D; my judgment, at 83D-E; Lord Hope of Craighead, at 95A; Lord Clyde, at 100A-C; and Lord Millett, at 108A-C. Instead the Law Lords relied on legal policy. In considering this question the House was bound, in the circumstances of the case, to consider what in their view the ordinary citizen would regard as morally acceptable. Invoking the moral theory of distributive justice, and the requirements of being just, fair and reasonable, culled from case law, are in context simply routes to establishing the legal policy.

Now I turn to the question whether this conclusion was reached on the basis that there was absence of a duty of care in respect of the cost of bringing up a healthy and normal child or whether the decision was made on the basis that this head of loss is not recoverable. This question arises because there was undoubtedly a duty of care to the extent that the mother was allowed to recover for pain and suffering associated with the pregnancy and childbirth. Some Law Lords thought that an absence of a duty of care was the correct analysis and others thought it was a matter of irrecoverability of a head of loss. In my opinion the former view is entirely orthodox: see Lord Hope of Craighead, 95E-96D: see also Lord Slynn of Hadley, at 76B-C; and my judgment, at 83D - E. On the other hand, the latter is an equally valid explanation: Lord Clyde, at 105E-F; and Lord Millett, at 113H-114B. One is perhaps in the area of conceptualistic thinking - what some overseas writers have impolitely called professors' law. Provided that one is clear about the foundation and reach of the legal policy involved, the difference in method is not of great importance. In this case the two concepts yield the same results.

It is now necessary to consider how an invitation to depart from a decision of the House should be approached. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which announced that such a course was possible, was in no sense an open sesame for a differently constituted committee to prefer their views to those of the committee which determined the decision unanimously or by a majority. That would be a licence not appropriate to final decision-making by a supreme court. In R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435 Lord Reid considered the point. He observed (at 455):

Shaw v Director of Public Prosecutions

[1962] AC 220

Shaw's

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 [1977] 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 [1976] AC 443, or experience showing that a decision of the House results in unforeseen serious injustice, may permit such a departure.

The issue in McFarlane was a profoundly controversial one. Ultimately, there was a choice to be made between eminently reasonable competing arguments. The House carefully examined the earlier domestic case law. The House embarked on an extensive review of the comparative jurisprudence. It is not suggested that this examination did not reveal the range of feasible solutions. The subsequent decision in Cattanach v Melchior [2003] HCA 38 (16 July 2003) where by a 4:3 majority the High Court of Australia decided in favour of recovery merely underlines the controversiality of the problem and the range of views on the subject. In McFarlane the House examined the applicable principles and relevant analogies in great depth. It is not argued that the House overlooked any arguments of substance. Rather counsel for the claimant invites the House to say that the Law Lords in McFarlane made the wrong choice. For my part it would be entirely wrong for the House, differently constituted today, to depart from McFarlane even if some Law Lords had been persuaded that they would have decided the case differently.

Having listened to the argument of counsel for the claimant that McFarlane was wrongly decided - an argument somewhat less detailed and rigorous than was before the House in McFarlane - I have to say I am satisfied that the House came to the correct conclusion four years ago. The comparative review before the House showed that, although the subject is controversial and that the solutions vary, the decision in McFarlane is probably that followed in a majority of jurisdictions. There has been academic criticism of McFarlane. There is disagreement among writers about the correctness of the outcome: see, for example, Tony Weir, A Casebook on Tort, 9th ed (2000), p 131; Joe Thomson, "Abandoning the Law of Delict? McFarlane v Tayside Health Board in the Lords" 2000 SLT 43; Laura C H Hoyano, "Misconceptions about Wrongful Conception" (2002) 65 MLR 883. Accepting that the subject is a highly controversial one, the decision of the House, rooted as it was in morality, justice and legal policy, represented the least bad choice. For my part the decision in McFarlane was a sound one.

V. Parkinson: A Disabled Child.

Throughout the speeches in McFarlane runs the strong emphasis on the birth of a healthy and normal child. The opinions show that the House was fully alive to the different considerations which arise if the child is seriously disabled. But the case then before the House did not require a decision on such a case.

When the issue involving a disabled child came before the Court of Appeal in Parkinson the ruling was unanimous that such a case is not affected by McFarlane. While not wishing to endorse everything said in the detailed judgments of Brooke and Hale LJJ, I agree with the decision. The legal policy on which McFarlane was based is critically dependent on the birth of a healthy and normal child. That policy does not apply where the child is seriously disabled physically and/or mentally. In such cases normal principles of corrective justice permit recovery of compensation for the costs of providing for the child's needs and care relating to his disability but not for the basic costs of his maintenance.

VI. Rees: The Disabled Mother.

The position of a disabled mother who gives birth to a healthy and normal child was not considered in McFarlane. And to the best of my knowledge the Law Lords did not have it in mind at all. What the House would have said if in McFarlane the claim was by a seriously disabled mother, who had told the surgeon that due to her incapacities she would be unable to look after a child, is a matter of speculation. But the House must now grapple with this difficult case.

Unlike the position of the disabled child, it is not possible to regard the disabled mother of a healthy and normal child as unaffected by the principle in McFarlane. On the contrary, an award of damages in the present case is only possible if an exception is created. That this is so becomes even clearer if one considers the grounds of legal policy which underpin McFarlane as I have explained them.

In a powerful dissenting judgment in Rees, Waller LJ explained why he regarded such an exception as unacceptable I set out the core of his reasoning. He observed, at pp 34 -35, paras 52-55:

McFarlane's

McFarlane

McFarlane's

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.

On the other hand, there is great force in the observations of Robert Walker LJ. He held, at p 32, para 41:

McFarlane's

Parkinson's

[2002] QB 266

Parkinson's

Frost v Chief Constable of South Yorkshire Police

[1999] 2 AC 455

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.

While I am troubled by the wholly unparticularised nature of the claim I would allow the claim of Ms Rees to be pursued. For avoidance of doubt I add that the cases mentioned by Waller LJ, at pp 34 - 35, paras 53 and 54 of his judgment are on the wrong side of the line drawn in McFarlane and I would not extend the exception to such cases.

I would dismiss the appeal of the NHS Hospital Trust.

LORD HOPE OF CRAIGHEAD

My Lords,

My noble and learned friend Lord Steyn has summarised the facts of this case, and I gratefully adopt his account of them. I cannot improve upon his masterly analysis of the decision of this House in McFarlane v Tayside Health Board [2000] 2 AC 59 that the costs of rearing a normal and healthy child were not recoverable. I also agree with him, for all the reasons that he has given, that it would be wrong for the House now to depart from McFarlane even if some of your Lordships had been persuaded that they would have decided the case differently.

When I was giving my reasons for the decision in McFarlane I said that the value which was to be attached to the benefits which would have to be set off against the costs of rearing the child were incalculable: [2002] 2 AC 59, 97. I did not base my decision on a belief that it was morally repugnant to award damages for the birth of a healthy child. As Gleeson CJ observed in Cattanach v Melchior [2003] HCA 38 (18 July 2003), para 6, the fundamental value which is attached to human life is an ethical, not an economic, concept and the problem which had to be addressed was legal, not theological. It was the insuperable problem of calculation that was the critical point in the decision so far as I was concerned. If, as I believe, it is impossible to measure the benefits, it must follow that no value can properly be arrived at for the balance that would need to be struck between the costs and the benefits to arrive at a figure which could be awarded as damages. The conclusion which I drew was that, for this reason, these costs must be held to fall outside the ambit of the duty of care which was owed to the pursuers by the persons who carried out the procedures in the hospital and the laboratory.

In expressing myself in that way I was adopting the approach to economic loss which was indicated by Lord Oliver of Aylmerton in Caparo Industries plc v Dickman [1990] 2 AC 605, 651 and in Murphy v Brentwood District Council [1991] 1 AC 398, 486 - 487. I share the view which Gleeson CJ expressed in Cattanach v Melchior, para 30, that the claim was one for the recovery of pure economic loss arising out of a relationship, liability for which has to be justified by showing that there was a duty of care to protect the claimants from that kind of harm. It has been suggested that it would be more accurate to say simply that it was for a head of loss which was not recoverable. There may indeed be other ways of expressing the point. I continue to think that Lord Oliver's formulation of the principle is acceptable in this context. But, as Lord Steyn has explained, the decision was at its heart founded in legal policy. This means that we are dealing with an area of the law where the responsibility for making choices about its development lies with the judges.

The question which has been raised in this case is whether McFarlane can be distinguished because the claimant is a seriously disabled person. The facts are different, of course, because the parents in that case were both free from disability, as was the child who had been born as a result of the Board's negligence. But the ratio of that decision needs to be examined as well, in order to discover whether this difference in the facts allows the conclusion to be drawn that in her case the extra costs of rearing a normal, healthy child which are due to her disability are recoverable.

The disabled child

It has already been held in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266 that the case of a seriously disabled child can be distinguished and that, although the ordinary costs of rearing the child are not recoverable, the decision in McFarlane does not preclude recovery of the extra costs which are attributable to the child's disability. This point did not require to be examined in McFarlane. The Lord Ordinary, Lord Gill, emphasised at the outset of his opinion that the debate in that case was conducted on the basis that the child was a normal, healthy child: 1997 SLT 211, 212F. The position was unchanged when the case reached your Lordships' House, as can be seen from all the speeches.

I agree with the Court of Appeal that the question whether the extra costs of raising a seriously disabled child are recoverable raises a separate issue. In principle, these costs constitute an extra and distinct burden on the parent who has suffered damage as result of the tortfeasor's negligence. The task of identifying and setting off against each other all the many and various costs and benefits, both tangible and intangible, of raising a normal, healthy child throughout its childhood is an impossible one. As my noble and learned friend Lord Millett said in McFarlane, the advantages and disadvantages are inseparable.

But the scene changes if, following upon a wrongful or uncovenanted pregnancy (as to the use of these expressions, see J K Mason, Wrongful Pregnancy, Wrongful Birth and Wrongful Terminology, (2002) 6 Edin LR 46, at pp 47 and 65, note 77), the mother gives birth to a child who is seriously disabled and is likely to remain so throughout its childhood. Here too there is the inevitable mixture of costs and benefits, of blessings and detriments, that cannot be separated. One cannot begin to disentangle the complex emotions of joy and sorrow and the intangible burdens and rewards that will result from having to assume responsibility for the child's upbringing. But there is no getting away from the fact that the parent of a seriously disabled child is likely to face extra costs in her endeavour to make the child's upbringing as normal as possible.

A disabled child is likely to need extra care, and the provision of this care is likely to mean extra expenditure. As Professor Mason has observed in his helpful contribution to the debate on this subject, 6 Edin LR 46, at pp 58 and 64, love in the context of disability has to be backed by corresponding supportive resources. These resources cost money. The more disabled the child is, the more difficult it is to fulfil these obligations. I consider that, as a matter of legal policy, the Court of Appeal were right to hold that in principle these extra costs are recoverable. In Cattanach v Melchior, para 166, Kirby J said that to award these extra costs would reinforce views about disability and attitudes towards parents and children with physical or mental impairments that were contrary to contemporary Australian values reinforced by the law. The law in this country is just as alert to the need to eliminate discrimination on the ground of disability. But I do not, for my part, see any conflict between the policy which the law in that area has adopted and awarding damages for the extra costs that have to be incurred to enable a disabled child who has special needs to lead as normal a life as possible.

The disabled mother

Now we are faced with the difficult question whether the extra costs which will be incurred by a seriously disabled parent in rearing a normal, healthy child are recoverable. The issue did not arise in McFarlane. But I think that it can be taken to have been the unspoken assumption at all levels in that case that the child-rearing costs which the parents were seeking to recover were the costs which normal, healthy parents would incur when they were providing for their child's upbringing.

It has to be made clear that McFarlane was not decided on the basis that, if the child too was a normal and healthy one, there was a deemed equilibrium, as Hale LJ in Parkinson suggested: [2002] QB 266, 292-293, paras 87-91. By this metaphor she meant that the benefits brought by the child were deemed sufficient to negative the claim for the costs of its upbringing: [2003] QB 20, 25, para 10. This suggests that there was assumed to be an equal distribution on either side of benefits and disadvantages. With respect, however, that reads too much into the decision. No calculation of that kind was attempted or even contemplated. It was considered that a calculation aimed at achieving a fair result, taking everything into account, was impossible.

Nevertheless it is true to say that, if one assumes that the child and the parent are normal and healthy when one is contemplating the advantages and disadvantages that will flow from the child's birth, an element of symmetry is inherent in the exercise. The symmetry lies in the assumption that the parent and the child are both normal and healthy. It is disturbed if one is driven to assume that either the parent or the child is affected by a serious disability. Once one accepts, as I would do, that the extra costs of rearing a seriously disabled child are recoverable it may thought that to deny the recovery of extra costs by the seriously disabled parent would be to introduce a distinction between these two cases which was arbitrary and unreasonable.

But the risks of a decision which is arbitrary and unreasonable are not all one way. It may indeed be difficult, as Lord Millett points out, to isolate the extra costs which are due to the parent's disability from the financial benefits which, over time, will result from bringing up the child within the disabled person's family. How, it may be asked, can these extra costs be identified if the benefits and disadvantages of rearing a normal and healthy child are incalculable? It has also been suggested that it is difficult to justify making an exception in favour of the seriously disabled parent when others such as the exhausted and depressed mother who already has more children than she can cope with cannot recover the extra costs of rearing which are attributable to her special circumstances. These were the points which troubled Waller LJ in the Court of Appeal. It led him, in a careful and helpful opinion, to dissent from the decision that in principle these extra costs were recoverable: [2003] QB 20, 34 - 35, paras 52-55.

It seems to me that the first of these difficulties raises a question of fact rather than a question of principle. Great care must be taken to avoid passing on to the tortfeasor costs which are attributable simply to the fact of the parent's disability. It is the extra out-of-pocket expenses which the seriously disabled parent has to incur when she is confronted by the ordinary tasks of child-rearing after making due allowance for any anticipated financial benefits, and those costs only, that are in issue here. Her situation has to be compared with that of the normal, healthy parent. One can say, as in the case of a seriously disabled child, that a seriously disabled parent who has special needs is likely to require help if her child is to have a normal upbringing and that this is likely to lead to extra expenditure. Here again I do not see any conflict between the policy which the law has adopted about discrimination on the ground of disability and awarding damages for the extra costs that have to be incurred to enable a parent who has special needs to provide her child with as normal a life ass possible. I agree with Robert Walker LJ that the care that may be needed in sorting out what costs are and are not so attributable should not deter us from allowing the possibility of recovery, which is all that is being asked for by way of a preliminary issue at this stage: [2003] QB 20, 32, para 41.

The second point, however, is more troublesome and I confess that I have not found it easy to find a clear answer to it. I agree with Lord Millett that as a general rule the parent's motive for not wanting any, or any more, children is irrelevant. On balance however I have come to the view that the fact that the child's parent is a seriously disabled person does provide a ground for distinguishing McFarlane and that it would be fair, just and reasonable to hold that such extra costs as can be attributed to the disability are within the scope of the tortfeasor's duty of care and are recoverable.

It is suggested that to make an exception in favour of the seriously disabled parent would undermine the basis of the decision in McFarlane to such an extent that it would open the door to claims for extra child-rearing costs by disadvantaged parents generally. The question then is, are there sound reasons for making an exception only in the case of serious disability?

Disadvantages which are the result of the parent's choice of life-style prior to the unwanted conception can be said, without hesitation, to fall into an entirely different category. So too, although this is a harder case, are disadvantages that flow from circumstances beyond the parent's control such as social deprivation, racial discrimination or family breakdown. The decision in McFarlane applies across the board, to every healthy and normal parent, in whatever social or family condition they may find themselves. The seriously disabled parent is in a different category. It is the inescapable fact of her disability which marks the case of the seriously disabled parent out from these cases. The fact that this category too must be applied across the board, irrespective of the social or family situation in which the parent finds herself, indicates the fundamental nature of the characteristic that gives rise to it. Her social or family circumstances may, of course, affect the amount of the costs that can be considered to be recoverable. But it is the inescapable fact that the seriously disabled parent cannot, however hard she tries, do all the things that a normal, healthy parent can do when carrying out the ordinary tasks involved in a child's upbringing that place this parent's case into distinct category.

I would also take into account this further factor. In the Court of Appeal Robert Walker LJ referred to the developing law as to disability: [2003] QB 20, 32, para 41. He suggested that this should help to overcome the problems in defining what is and what is not a disability. I would prefer to regard the developing law on this subject as a guide to the general direction the common law should take when it is considering what it should do in cases of serious disability as a matter of legal policy.

There has been a good deal of activity in the field of employment law and in the law relating to discrimination generally. Discrimination in the employment field on grounds of disability presents unique challenges to legislators, as Mummery LJ pointed out in Clark v Novacold Ltd [1999] ICR 951, 954 E - G. Section 1(1) of the Disability Discrimination Act 1995 provides that a person has a disability for the purposes of that Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. But this is subject to various qualifications and exceptions in Schedule 1. Guidance under section 3 of that Act has been issued by the Secretary of State and there is also a Code of Practice. The decision of the Employment Appeal Tribunal in Goodwin v Patent Office [1999] ICR 302 illustrates the complex exercise that may have to be undertaken when the statutory definition is applied to the facts with the assistance of this additional material. Further legislation will be needed to give effect by 2 December 2006 to that part of Council Directive 2000/78/EC (OJ, L303/16, 2 December 2000) which, in laying down a general framework for equal treatment in employment and occupation, deals with discrimination on grounds of age and disability: see the second paragraph of article 18.

It is the main thrust of this legislation rather than the detailed definitions that I would look to for guidance. The respect and value which the law places on every life extends to everybody irrespective of whether they are born with or without disabilities. But, as the legislation shows, the law also faces up to the fact of disability and to the risk of discrimination and disadvantage that it gives rise to. Its aim is to provide civil rights for disabled people whose impairment affects their ability to carry out normal day-to-day activities. By allowing the seriously disabled parent to recover the extra costs of child-rearing which are due to her disability the law will be doing its best to enable her to perform this task on equal terms with those who are not affected by her impairment.

What then does one mean, in this context, when one refers to serious disability? I would prefer to rely on the flexibility of the common law. Each case must be taken on its own facts. The temptation to find a handicap where there is none must be resisted. I have referred to the parent in whose favour the exception exists as "seriously disabled". The word "serious" is important. The normal incidents of an otherwise healthy life must be held to be covered by the McFarlane principle. As for the word "disability", I would take the requirement of need as the guiding principle. Is the mental or physical characteristic which distinguishes the case from that of the normal, healthy parent of such a kind that extra costs will need to be incurred if the child is to receive a normal and proper upbringing? In the present case the genetic condition from which the claimant suffers suggests that, when the facts are examined, the answer to this question will be in the affirmative.

A conventional sum?

I should like to add that I have not overlooked Lord Millett's suggestion that the proper outcome in all these cases would be to award the parents a modest conventional sum for the denial of their right to limit the size of their family - or, as he now puts it, to compensate them for the injury to their autonomy. I was not attracted by this suggestion when he made it in McFarlane, and I have to confess, with respect, that I am not attracted by it in this case either. I agree with Gleeson CJ's observation in Cattanach v Melchior, para 23 that it would be more accurate to say that parents have the freedom to choose, and therefore to limit, the size of their family. To describe this freedom as a right - or, as Lord Millett now suggests, as the loss of an opportunity which is the proper subject of compensation by way of damages - seems to me beg many questions which are not answered in his analysis. But that is not the only reason for the difficulty which I have in accepting this suggestion.

The award of a conventional sum is familiar in the field of damages for personal injury. Conventional sums are awarded as general damages for typical injuries such as the loss of a limb or an eye or for the bereavement that results from the loss of a child or parent in the case of a fatal accident. This is the means by which the court arrives, as best it can, at a figure for the damage suffered which is incapable of being calculated arithmetically: Kemp and Kemp, The Quantum of Damages, vol 1, para 1-003. The sum which it awards has been described by Lord Denning MR in Ward v James [1966] 1 QB 273, 303 as "basically a conventional figure derived from experience and from awards in comparable cases": see also Wright v British Railways Board [1983] 2 AC 773, 777D per Lord Diplock. The award is conventional in the sense that there is no pecuniary guideline which can point the way to a correct assessment: Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, 189G-H per Lord Scarman. But financial loss does not present the same problem. It is capable of assessment in money. So it has never been the practice to resort to a conventional sum as a means of compensating the claimant for that part of the loss that falls under the head of special damages.

To take just one example, the distinction between these two heads of loss has been recognised by section 1 of the Damages (Scotland) Act 1976, as amended by section 1 of the Damages (Scotland) Act 1993, which defines the rights of relatives of a deceased person in Scots law. The relatives' claims for loss of support and funeral expenses are dealt with in section 1(3). Members of the deceased's immediate family may then be awarded under section 1(4), without prejudice to any claim under section 1(3), such sum as the court thinks just by way of compensation for distress and anxiety, grief and sorrow and the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died. This is the equivalent of an award of damages for bereavement under section 1A of the Fatal Accidents Act 1976, which was inserted by section 3(1) of the Administration of Justice Act 1982, except that the amount of the award is left to the court and not fixed, as it is in England and Wales, by statutory instrument.

The award of a conventional sum to parents for the loss of the right, or the opportunity, to limit the size of their family would perform a similar function to the award of a conventional sum under section 1(4). It would deal with that part of the parents' claim that fell into the category of general damages. But it would not deal - nor, as Lord Millett has explained, would it be designed to deal - with that part of the claim resulting from the loss of the right that fell into the category of special damages. The splitting up of a claim of damages into these two parts in order to allow recovery of one part and deny recovery of the other part is a novel concept and it seems to me, with respect, to be contrary to principle. If damages are to be awarded at all, the aim must be to put the injured parties into the same position as far as money will allow as if they had not sustained the wrong for which they are being compensated: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 per Lord Blackburn. That rule would be broken if we were to assume that the loss of the right to limit one's family was capable of being compensated for by an award of damages and then to say that the parents' award was to be restricted by law to a conventional sum to compensate them only for their general damages. It would also be broken if we were to say - contrary to my assumption - that the conventional sum was intended to give them something for their financial loss also. It would deny them the opportunity of attempting to establish the true value of that part of their claim according to the compensatory principle.

Lord Bingham seeks to escape from this problem by asserting that the conventional award which he favours would not be, and would not be intended to be, compensatory. It would not be the product of calculation nor would it be nominal, but would afford some measure of recognition of the wrong done. This approach seems to me to depart from the principle which has always guided the common law in its approach to the assessment of damages. He does not suggest that the award is intended to be punitive. If it is not, and the case is not one for an award that is purely nominal, what basis can there be for it other than the compensatory principle? Both Lord Millett and Lord Scott use language which suggests that they are seeking to arrive at a figure which would compensate the parents for being deprived of the loss of opportunity or of the benefits which they were entitled to expect. Lord Nicholls does not use the same language, but his brief treatment of the issue leaves me in doubt as to the basis for it. The lack of any consistent or coherent ratio in support of the proposition in the speeches of the majority is disturbing. It underlines Lord Steyn's point that the examination of the issue at the oral hearing was cursory and unaccompanied by research. Like him, I cannot agree with the description of the new rule by Lord Bingham and Lord Nicholls as a "gloss" on the decision in McFarlane.

Then there is the problem of arriving at an appropriate figure for a conventional sum which was not at risk of being seen by the parents as derisory. The figure which Lord Millett suggested in McFarlane seems to me to invite that criticism. I doubt whether the larger figure that is now being suggested removes this difficulty. We are in uncharted waters, as there are no previous awards for the loss of this right to which we can look in order to discover the parameters. But it would be wrong to ignore the current level of awards in actions of damages for personal injury. To take just one recent example, the Inner House of the Court of Session has held, having regard to the recent level of jury awards for bereavement (jury awards are still competent in Scotland in actions of damages for personal injuries: Court of Session Act 1988, section 11(a)), that the parents of an adult son who was killed in a flying accident should be awarded £20,000 each under section 1(4) of the Damages (Scotland) Act 1976 for their bereavement: Shaher v British Aerospace Flying College Ltd, 2003 SLT 791. How is one to measure the loss of the right to limit the size of one's family against an award of that kind, bearing in mind the far-reaching and long-lasting effect that the birth of the uncovenanted child will have on the life of the parent? It seems to me that a much closer examination of the general level of awards in these and other similar cases would be needed before one could come up with a figure that one could even begin to regard as appropriate. In my respectful opinion it would not be right for your Lordships, without guidance from judges sitting at first instance, to attempt to carry out that exercise.

Lord Bingham has given, as one of his reasons for applying the new rule without differentiation to cases whether either the child or the parent is, or claims to be, disabled the acute difficulty of the task of quantifying the additional costs attributable to disability. As I have already said, I agree with Robert Walker LJ that care would be needed in sorting out what costs are and are not so attributable. But to describe the task as one of acute difficulty seems to me to be an overstatement. Lord Bingham then says that the difficulty is highlighted by the inability of the respondent to give any realistic indication of the additional costs she seeks to recover. But I think that this may be quite unfair to the respondent, as all that was being asked for at this stage was an answer to the preliminary issue whether the recovery of costs was a possibility. We have no means of knowing whether the additional costs in her case can or cannot readily be identified, as this question was not explored at first instance or in the Court of Appeal nor was it focused as an issue in this appeal.

I am left with the uneasy feeling that the figure which is to be established by the new rule will in many cases, and especially in this one, fall well short of what would be needed to satisfy Lord Millett's aim, which Lord Scott adopts, of compensating the parents for the wrong that has been done to them. The issue is, as Lord Steyn says, hugely controversial and I agree with him that its creation - which would surely then have been the product of much more study and research than has been given to its creation in this case by the majority - ought to have been left, preferably with the benefit of a report by the Law Commissions, to Parliament.

Conclusion

I would allow the respondent's claim to proceed. I would dismiss the appeal.

LORD HUTTON

My Lords,

The claimant, Ms Karina Rees, is a young woman in her early thirties who suffers from the genetic condition of retinitis pigmentosa. Since the age of two she has been blind in one eye and has limited vision in the other eye; she is severely visually handicapped. In recent years her vision had deteriorated and she had given up work. She felt that her eyesight would bar her from properly looking after a child and she was anxious about health matters and frightened by the thought of labour and delivery. She had great difficulty in finding a suitable method of contraception and she came to a very definite decision that she did not want and would never want to give birth to a child. She was referred by her general practitioner to a consultant gynaecologist at Darlington Memorial Hospital and when she saw the consultant she told him of her visual handicap and of the concerns and fears which had led her to the decision that she would never want to give birth to a child. With this knowledge of her concerns and of her decision the consultant performed a sterilisation operation on the claimant on 18 July 1995. The appellant hospital trust admits that the operation was performed negligently and that the right fallopian tube was not adequately occluded. In July 1996 the claimant's son Anthony was conceived and he was born on 28 April 1997. His father had no desire to be involved with him and the claimant is a single mother who is bringing up Anthony alone. It is accepted for the purposes of this appeal that Anthony is a healthy child.

In September 1999 the claimant commenced proceedings against the hospital trust claiming damages for negligence in respect of the sterilisation operation and she sought to recover the costs of bringing up Anthony to his majority. The costs which she claimed included the costs which would be incurred by a mother who was not disabled in the bringing up of a child and she also claimed the extra costs that would be incurred by her as a result of her severe visual disability.

At the trial of a preliminary issue Mr Stuart Brown QC, sitting as a deputy judge of the High Court, held that he was bound by the decision of this House in McFarlane v Tayside Health Board [2000] 2 AC 59 to hold that the claimant was not entitled to recover damages for any of the costs of bringing up her son. On appeal the Court of Appeal (Robert Walker and Hale LJJ, Waller LJ dissenting) held that the claimant was entitled to damages to compensate her for the extra costs incurred by her in bringing up her son attributable to her disability, and the hospital trust now appeals to the House against that decision.

McFarlane v Tayside Health Board

In McFarlane a married couple with four children decided that they did not want any more children and that the husband should undergo a vasectomy. A vasectomy operation was performed by a surgeon employed by the defendant health board and five months later the surgeon informed the husband that his sperm counts were negative and that contraceptive measures were no longer necessary. The parents acted on that advice and subsequently the wife became pregnant and after a normal pregnancy and labour gave birth to a healthy child whom the parents loved and cared for as an integral part of their family. Both parents were also in good health. Both parents sued the health board for negligence, the mother claiming damages for the physical discomfort suffered by her in her pregnancy, confinement and delivery and both parents also sued for the financial costs of caring for and bringing up the child. The Outer House of the Court of Session dismissed the pursuers' action on the ground that a normal pregnancy and labour could not constitute personal injuries for which damages were recoverable and that the benefits of parenthood transcended any financial loss incurred by the parents in looking after and bringing up their child. The Second Division of the Inner House of the Court of Session reversed that decision and held that the wife was entitled, if negligence were established, to damages for the physical effects of pregnancy and childbirth. The Second Division further held that in accordance with the conventional principles of delict law the parents would be entitled to recover the costs of bringing up the child and that there were no public policy grounds to disentitle the parents from recovering such costs.

The House decided, Lord Millett dissenting, that the wife was entitled to general damages for the pain suffering and inconvenience of pregnancy and childbirth and, Lord Clyde dissenting, to special damages for extra medical expenses, clothing and loss of earnings associated with the pregnancy and birth. The House further held that the parents were not entitled to recover damages for the costs of bringing up the child. Each member of the Appellate Committee delivered a speech and there was some degree of difference in the reasons given for the decision. Lord Slynn of Hadley (at p 76B-D) and Lord Hope of Craighead (at p 97D-E) held that it would not be fair, just or reasonable to impose a duty of care on the employees of the health board giving rise to liability for the cost of bringing up the child. Lord Steyn (at p 83D-E) held in reliance on principles of distributive justice that the tort law of Scotland and England does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor. He further observed that if it were necessary to do so, he would say that the claim did not satisfy the requirement of being fair, just and reasonable. Lord Clyde held (at p 105B-F) that to award damages for the cost of bringing up the child would not constitute reasonable restitution as it would not take into account the benefit to the parents of having a loved and healthy child. Lord Millett stated (at p 108C) that the court is engaged in a search for justice, and that this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper, and he held (at p 114B) that society itself must regard the balance of advantages and disadvantages in having a normal, healthy baby as beneficial. It would be repugnant to its own sense of values to do otherwise, and it is morally offensive to regard a normal, healthy baby as more trouble and expense than it was worth.

In holding that it would not be fair, just or reasonable to impose a duty of care giving rise to liability for the cost of bringing up the child, Lord Slynn and Lord Hope were applying the principle stated by Lord Oliver of Aylmerton in Caparo Industries plc v Dickman [1990] 2 AC 605, 633B that before imposing a duty of care the law requires "that the attachment of liability for harm which has occurred be 'just and reasonable'", and the related principle stated by Lord Hoffmann in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, 211H that the plaintiff must show "that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered."

Both Caparo and Banque Bruxelles were cases where no physical harm caused by the alleged breach of duty intervened between it and the financial loss which had been suffered, and in Banque Bruxelles Lord Hoffmann stated at 213C: "Normally the law limits liability to those consequences which are attributable to that which made the act wrongful", and it would appear to be clear that the costs of bringing up the child were, in accordance with conventional principles, attributable to the wrongdoing of the hospital staff. I think it was for this reason that Lord Clyde stated at [2000] 2 AC 59, 102 A and D:

McFarlane

The issues on this appeal

Two principal issues arise on this appeal. The first issue is whether the House should depart from the decision in McFarlane. Mr de Wilde QC, for the respondent, submits that the House is entitled to depart from the decision pursuant to Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 and that the House should do so because the decision was contrary to well-established principles of tort law. My Lords, I reject that submission. I consider that the decision was right. Even if I considered that the decision was erroneous, I would be of opinion for the reasons given by the House in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345 that the House should not depart from the decision.

The second issue is, if the decision in McFarlane stands as good law, does it require a court to hold, as did the deputy High Court judge, that damages cannot be recovered in the present case where the single mother, unlike the mother in McFarlane, is seriously disabled. This is the issue which I now turn to consider, but before doing so I think it is relevant to make a further observation. I think it is clear, as stated by Hale LJ in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, 288D and Waller LJ in the Court of Appeal in the present case [2003] QB 20, 33B that in McFarlane the House recognised that on normal principles of tort law the claim for the cost of bringing up the child would succeed. Lord Millett stated, at p 107B:

Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd

[1997] AC 191

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

In deciding the second issue a further point which has to be considered is whether Parkinson was correctly decided. In that case the sterilisation operation was negligently carried out and the claimant later conceived and gave birth to a child who was born with severe disabilities. Longmore J held that the claimant was entitled to recover damages for the costs of providing for her child's special needs relating to his disabilities but not for the basic costs of his maintenance, and this decision was upheld by the Court of Appeal.

In his judgment Brooke LJ based his decision that the appeal of the health trust should be dismissed on the ground that it was fair, just and reasonable to award the claimant compensation for the extra expenses associated with bringing up a child with significant disabilities. At p 282G, he cited the judgment of the Supreme Court of Florida in Fassoulas v Ramey (1984) 450 So 2d 822 that:

He then stated:

And, at p 283C he stated:

In her judgment Hale LJ gave consideration to the right to physical autonomy at p 284 and discussed conception, pregnancy and childbirth as an invasion of bodily integrity at p 285. Having discussed the judgment in McFarlane she stated at p 292E:

And, at p 293C:

McFarlane's

At the end of her judgment she stated, at p 295A:

extra

Sir Martin Nourse agreed with both judgments.

In my opinion the decision of the Court of Appeal in Parkinson was right. In McFarlane the House confined its considerations to the case of the birth of a healthy child and expressed no opinion in relation to the birth of a child with disabilities. In that case the House considered that it was not fair, just or reasonable to award damages for the costs of bringing up a healthy child. But in my opinion it is fair, just and reasonable to award damages for the extra costs of bringing up a disabled child and I am in agreement with the observation of Robert Walker LJ in relation to Parkinson in his judgment in the present case, [2003] QB 20, 30G:

The decision of the Court of Appeal in this case

In the instant case Robert Walker LJ stated the basis of his decision as follows, at p 32B:

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.

Hale LJ also held that the appeal of Karina Rees should be allowed. At pp 27H - 28A, she stated that all the discussion in the judgments in McFarlane was on the basis that the child was healthy and the costs were those of bringing up a healthy child. In her opinion it did no violence to the reasoning in McFarlane to conclude in Parkinson that the extra costs of bringing up a disabled child altered the justice of the case. In McFarlane in terms of the actual care required by the child, the parents were as well able to provide such care as any other parents and the House had not considered the position of a parent in a different position. Earlier in her judgment, at p 25 E she had referred to the concept of deemed equilibrium upon which she had relied in her judgment in Parkinson and she stated, at pp 28G -29A:

However both Robert Walker LJ, at p 31D and Waller LJ, at p 34D questioned the validity of the concept of deemed equilibrium on the ground that, as expressed by Waller LJ, in McFarlane the members of the House did not think in terms of an equilibrium with precise quantities on either side of the balance. In my respectful opinion this non-acceptance of the concept was justified for the reason stated by Waller LJ.

Waller LJ dissented from the opinion of the majority of the court that Karina Rees should recover the extra costs of bringing up her child on the ground that such a ruling would constitute an exception to the general rule established by McFarlane, and that such an exception would not be fair and reasonable when the difficulties of a mother who was not disabled but who faced other severe difficulties and problems was compared with the difficulties of Karina Rees. He gave as an example a woman who already had four children and wished not to have a fifth, and for whom the birth of a fifth child would create a crisis in health terms unless help in caring for the child was available. The Lord Justice concluded his judgment by stating, at p 35D:

Conclusion

The difficulties posited by Waller LJ place in sharp focus the problem which arises on this appeal, but I find myself in respectful agreement with the opinion of Robert Walker LJ, at p 32G that these difficulties should not deter the courts from deciding that a disabled mother is entitled to recover compensation for the extra costs of bringing up her child.

My reasons for so holding, which have been foreshadowed in the views which I have already expressed, can be stated shortly. As I have said, I consider that the decision in McFarlane was grounded on the principle that it is not just, fair or reasonable to award damages to healthy parents for the costs of bringing up a healthy baby; the House did not consider the position where the mother was disabled. In my opinion where the mother is disabled it is not unjust, unfair or unreasonable to award damages for the extra costs of bringing up the child. In considering whether damages should be awarded there is, in my view, a clear distinction between a disabled mother and a mother in normal health. It is right, in my opinion, to recognise and give effect to this distinction in laying down a principle to guide courts of first instance notwithstanding that a mother who is not disabled may face the serious difficulties described by Waller LJ. The fact that hard cases can be pointed to very close to the line which divides recovery from non-recovery does not invalidate the principle itself.

Secondly, there are two ways of stating the decision of the Court of Appeal in this case. It can either be said that the decision creates an exception to the principle established by McFarlane, or it can be said that McFarlane created an exception, in the case of the birth of a healthy baby to healthy parents, to the principle that where there is a breach of duty causing physical harm, all the damages directly flowing from that breach of duty can be recovered. As I have stated, I think that the members of the House recognised that under the general principles applicable to the recovery of damages for negligent breach of duty the McFarlane parents would have been entitled to recover damages. Therefore, whilst to some extent the matter is one of terminology, I would hold that McFarlane created an exception to the general principles, that that exception does not apply to a disabled child or to a disabled mother, and that accordingly the McFarlane decision does not bar the mother from recovering in this case.

Accordingly, for the reasons which I have given, I would dismiss this appeal.

LORD MILLETT

My Lords,

In McFarlane v Tayside Health Board [2000] 2 AC 59 your Lordships were called upon to consider for the first time the extent to which damages are recoverable for the birth of an unintended child following a wrongful pregnancy. By this is meant a pregnancy which is consequent upon a failed sterilisation, whether it has been performed negligently or the parents have been negligently informed that it has been successful. The House held that the parents could not recover the costs of bringing up a normal, healthy child. In Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 the Court of Appeal held that the additional costs of bringing up a disabled child were recoverable. The question in the present case is whether the additional costs of bringing up a normal, healthy child which are attributable to the fact that one of the parents is disabled are similarly recoverable.

Your Lordships are therefore asked to decide whether the present case is a legitimate extension of Parkinson or is governed by the overriding principle established in McFarlane. The respondent sought to avoid this question by inviting the House to depart from its decision in McFarlane.

The principles which guide the House in deciding whether to depart from a previous decision of its own are well established and have been repeatedly stated: see Practice Statement (Judicial Precedent) [1966] 1 WLR 1234; R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435, 455 per Lord Reid; and Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349 per Lord Wilberforce. As Lord Wilberforce said in the last-mentioned case:

The established criteria are nowhere near satisfied in the present case. I would not depart from the unanimous decision of the House in McFarlane even if, after further reflection, I thought that it was wrong. But I am not persuaded that it was. I have heard nothing in the arguments presented to us which was not considered in McFarlane. All aspects of the question and the reasoning of the final appellate courts in numerous jurisdictions (which were seldom unanimous) were exhaustively canvassed. Experience has not shown there to be unforeseen difficulties in application; nor has it shown that the decision is productive of injustice. It has not been universally welcomed by academic writers; nor has it been universally condemned. The most that can be said is that the decision was controversial; and that was evident from the most casual reading of the comparative case law. If further evidence were needed, it is provided by the recent decision of the High Court of Australia in Cattanach v Melchior [2003] HCA 38, which was reached by a majority of four to three. Quot judices tot sententiae. Despite the diversity of opinion, the judgments cover familiar ground and contribute no new insight.

McFarlane was a case of negligent sterilisation advice. It decided that the costs of bringing up a normal, healthy child are not recoverable. Negligence was not admitted - that issue remained to be tried - but the appeal was brought on the pleadings and negligence had to be assumed. The defenders conceded that they were responsible for having given the advice in question and that they were under a duty to take reasonable care to ensure that it was correct. They acknowledged that they would normally be liable for all the foreseeable consequences of its being wrong. They accepted that Mrs McFarlane's pregnancy and the child's birth were the direct and foreseeable consequences of the advice being wrong. Causation was not in issue. On conventional legal reasoning Mr and Mrs McFarlane would be entitled to recover damages which represented the full extent of the financial and other losses consequent upon Mrs McFarlane's pregnancy and the birth of their child, including the costs of bringing her up.

The House nevertheless unanimously held that the costs of bringing up the child were not recoverable. In their speeches the individual members of the Appellate Committee all based this conclusion on legal policy, though they expressed themselves in different terms. My noble and learned friend Lord Steyn spoke of distributive justice; he asked himself what would be morally acceptable to the ordinary person. Others spoke of what was "fair, just and reasonable" - which expresses the same idea. I spoke openly of legal policy. At p 108, I said:

Prosser and Keeton on Torts

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.

Another and more technical difference of approach is detectable in the speeches. Lord Clyde and I considered that the question was directed to the admission of a new head of loss. Others considered that the question was whether the loss claimed was within the scope of the duty of care. In my opinion this is merely a difference of exposition. In some cases it is more illuminating to approach the question from one end; in other cases from the other. In Caparo Industries plc v Dickman [1990] 2 AC 605 Lord Bridge of Harwich said, at p 627:

Sutherland Shire Council v Heyman

In Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Lord Hoffmann said, at p 211:

Each of those cases raised an issue of causation. In neither case was it a factual issue, for there was no doubt that the loss was sustained as a direct result of the negligent information which the defendant had supplied. But the law does not hold a person liable for all the foreseeable consequences of his actions. So the question in each case was one of responsibility: was the defendant legally responsible for the loss which his negligence had caused? There was nothing unusual, however, in the nature of the loss; indeed it was commonplace - financial loss arising from a bad investment. The difficulty arose from the causal relationship between the defendant's negligence and the loss sustained by the plaintiff. The solution lay in recognising that a person is only liable for loss which falls within the scope of his duty of care.

The problem in a case of wrongful pregnancy is not the same. There is no difficulty about causation, whether as a matter of fact or of legal responsibility. The pregnancy and birth of a child are the very things which the defendants are employed to prevent. It is impossible to say that consequential loss falls outside the scope of their duty of care. They are accordingly liable for the normal and foreseeable heads of loss, such as the mother's pain and suffering (and where appropriate loss of earnings) due to the confinement and delivery. The novelty of the claim in McFarlane lay in one particular head of damage - the cost of bringing up a healthy child. The House considered it to be morally repugnant to award damages for the birth of a healthy child. It makes for easier exposition to identify the issue by reference to the head of damage rather than the duty of care. It also has the added advantage that identifying the ratio of McFarlane in this way may make it simpler to find the answer to the question raised by the present case.

In a lecture to the Personal Injury Bar Association's Annual Conference in 2003 Sir Roger Toulson, Chairman of the Law Commission, described the ratio of McFarlane as follows:

I agree with this analysis, which accurately represents my own reasoning and, I believe, that of other members of the Committee. I said, at pp 113- 114:

But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.