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An Alexandrian approach to the knotty problem of wrongful pregnancy: Rees v Darlington Memorial Hospital NHS Trust in the House of Lords.
Alasdair Maclean BSc (Hons), MBBS, PGDipLaw, M.Jur
Lecturer in Medical LawThe School of Law
University of Glasgow
Glasgow G12 8QQ
a.maclean@law.gla.ac.uk
Copyright © Alasdair Maclean, 2004
First published in Web Journal of Current Legal Issues.
Summary
In this commentary, I examine the House of Lords judgment in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309. I briefly summarise the facts and judgments and then consider the implications both for wrongful pregnancy case law and suggest that the decision leaves open to challenge the Court of Appeal decision in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2001] 3 All ER 97. I also suggest that, although not sufficiently justified by the majority, their decision to award a conventional sum is justifiable. I also consider the two more general issues that arise from the case. I briefly note the unexplicated distinction their Lordships draw between legal and social policy. I also consider the role that distributive justice has played in the continuing saga of wrongful pregnancy case law.
Contents
Introduction
The last time a wrongful pregnancy claim reached the House of Lords was in
1999 and the House’s decision caused both consternation and
uncertainty.(1) In McFarlane v
Tayside Health Board [2000] 2 AC 59, HL, the pursuers claimed compensation
for the costs arising from the gestation and birth of an unwanted healthy child
conceived as a consequence of the defenders negligence. The House of Lords held
that the McFarlanes could recover general damages for the pain, discomfort and
inconvenience as well as the costs arising out of the pregnancy. However, the
maintenance costs were pure economic loss and not recoverable. Each of their
Lordships delivered different judgments, but if a single principle can be found
it is that making the doctor liable for the costs of raising the child was not
just. Although only made explicit in two of their Lordship’s judgments, it
is arguable that this unifying principle is distributive
justice.(2)
One of the problems caused by the McFarlane case was the difficulty
in predicting how the courts would apply the decision when faced with a wrongful
pregnancy case in which the child was born with a disability. The Court of
Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust
[2001] EWCA Civ 530; [2001] 3 All ER 97 answered this by allowing
recovery for the additional costs associated with the child’s disability.
Again the decision is analysable in terms of distributive justice and both
Brooke and Hale LJJ relied on the principle. Although some of the judges sitting
in the Court of Appeal were clearly unhappy with the McFarlane
judgment,(3) an acceptable status quo
might have been reached were it not for the unpredicted scenario that engendered
the Rees case.(4)
The Facts
The claimant in Rees suffered a progressive condition causing
blindness, which made her worry about her ability to look after a child. Because
of this concern, she underwent a sterilisation, which failed. She gave birth to
a healthy child, and the respondents accepted liability for negligence. However,
the High Court case determining the preliminary issue was not heard until after
both the McFarlane and Parkinson judgments. The issue was decided
against the claimant who appealed to the Court of Appeal. By a 2:1 majority, the
Court of Appeal found for the claimant.
The Court of Appeal Judgments
Hale LJ relied on her ‘deemed equilibrium’ analysis of McFarlane, which she first constructed in Parkinson. This model treated the McFarlane decision as creating a balance between the maintenance costs and the benefits of a healthy child, with each cancelling out the other. This allowed Hale LJ to argue that anything upsetting that balance and causing additional expense would allow recovery. In Rees, the mother’s disability created an additional ‘need’ that tipped the balance: allowing recovery simply re-established the equilibrium by putting her ‘in the same position as her able-bodied fellows’ (Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [23]). Walker LJ rejected the ‘deemed equilibrium’ model, but allowed recovery, which was ‘fair, just or reasonable’ and an acceptable extension of the Parkinson decision (Ibid. at [41]). The dissenting judge, Waller LJ, also rejected the ‘deemed equilibrium’ model and, in a judgment focused on the claimant’s need, he argued that: ‘On the basis of distributive justice I believe that ordinary people would think that it was not fair that a disabled person should recover when mothers who may in effect become disabled by ill-health through having a healthy child would not’ (Ibid. at [54]).
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The House of Lords Decision
The Trust appealed and the House of Lords, by a bare majority, allowed the
appeal. Following Lord Millett’s judgment in McFarlane,
the majority argued that the policy arguments in McFarlane retained their
force and it would be unjust to allow recovery for the maintenance costs of a
healthy child whether or not the parent was disabled. Instead, the majority
suggested that the real wrong was the harm done to the mother’s autonomy.
Lord Millett described the loss as the ‘denial of an important aspect
of... personal autonomy, viz the right to limit the size of their family’
(Op cit, at 1129 [123]). Lord Bingham characterised it more precisely. He
stated: ‘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’ (Ibid. at 1097 [8]). The majority, therefore,
added what they described as a ‘gloss’ to the McFarlane
judgment and awarded £15,000 in general damages for this infringement of
parental autonomy.
Discussion
This case raises a number of issues, some of which are relevant primarily
to wrongful pregnancy and, by analogy to wrongful birth cases. Other issues have
a more general relevance. There is insufficient space here to go into these
issues in any depth but I will highlight those I believe to be important and I
will indicate the possible implications of the case. I will start with the
issues mainly relevant to wrongful pregnancy.
There were two points on which all of their Lordships agreed. First, they unanimously rejected Hale LJ’s ‘deemed equilibrium’: McFarlane had decided that the maintenance costs could not be weighed against the benefits flowing from the birth of a new child, which were impossible to measure. While their Lordships were correct in rejecting the model as a flawed interpretation of McFarlane, it had provided a logical explanation of why the extra costs associated with a disability should be recoverable. Considering the argument from McFarlane: the benefits of a new child are immeasurable and the consequence of this is that they cannot be offset against the maintenance costs. The House of Lords in McFarlane concluded from this that, because the benefits and detriments could not be weighed then the claimants should recover in full or not at all and it was unjust to allow them to recover in full. Unless one is prepared to argue that having a disabled child is not - as a matter of policy - a blessing, which might be interpreted as devaluing the disabled, then the calculation is no more possible for the birth of a disabled child than it is for the birth of a healthy child. The costs arising from the disability are simply additional maintenance costs and, if the detriments cannot be weighed against the benefits then simply increasing the detriments cannot change that: if x cannot be balanced against y then nor can x be balanced against y + z.
The problem with the rejection of the deemed equilibrium is demonstrated by Lord Hope’s argument. After emphasising that the benefits and burdens of a disabled child are as entangled as those of a healthy child, while acknowledging the extra costs associated with a disability, but being committed to rejecting the deemed equilibrium, Lord Hope is left without any justification for allowing the additional costs. His response is to argue that, instead of an ‘equilibrium’ there was ‘an element of symmetry... inherent in the exercise... [which] lies in the assumption that the parent and the child are both normal and healthy ’ (Ibid. at 1110-1111 [60]). This argument has the air of sophistry and it is submitted that, in this context, ‘equilibrium’ and ‘symmetry’ are synonymous and Lord Hope’s argument should be rejected.
The second point of agreement was that the McFarlane judgment was correct and, even had they thought otherwise, it would be wrong to overturn such a recent decision of a differently constituted House.(5) In Rees, Lord Steyn characterised the ratio of McFarlane as reliant on the impossibility of weighing the benefits and detriments of the birth of a healthy child, and Lord Millett’s point that it would be ‘morally offensive’ for society ‘to regard a normal healthy child as more trouble and expense than it is worth’. When coupled with the principle of distributive justice, or the ‘fair, just or reasonable’ test – which is arguably just distributive justice by another name – the result was that the maintenance costs of a healthy child could not be recovered (Ibid. at 1102 [28-29]). In McFarlane, Lord Steyn determined the distributive justice argument by reference to the supposed view of the traveller on the Underground (Op cit, at 82). It is impossible from this to determine the exact end point by which a fair distribution should be measured. However, it is arguable that the subsequent Court of Appeal hearings of Parkinson and Rees were determined on the basis of need.(6) This reliance on a needs-based distributive justice argument has been undermined by the majority’s decision in Rees, which applies in all cases where the child is healthy. If that point is considered in conjunction with the previous argument about the lack of balance to be tipped by the extra costs arising from a disability, it is arguable that parents should no longer be able to recover where the child is disabled. Certainly, Lords Bingham, Nicholls and Scott argued that the award of a conventional sum was equally appropriate in the case of a disabled child (Op cit, at 1097, 1099, 1135 [9, 18, 145]), but Lord Millett’s judgment was unclear on the issue. Since the point is obiter to the decision, their Lordships’ arguments are not determinative and the Court of Appeal remains free to follow Parkinson.(7) However, should they do so, the defendants may well feel that they have good grounds for appeal thus encouraging further litigation.
Rees also opens up the question of whether those cases in which the purpose of the medical intervention (sterilisation or abortion) was specifically intended to avoid the birth of a disabled child should be decided differently (Ibid. at 1135 [145] per Lord Scott). Mason (2002) argues that, in these wrongful birth cases, where the woman is specifically seeking to avoid the birth of a disabled child, there is a greater proximity between the doctor and the costs arising from the disability. However, the principle of distributive justice, rather than the issue of proximity, has determined the wrongful pregnancy cases. Because many of the same distributive arguments will be relevant, even if it is argued that greater proximity acts as a counterweight to the principles of distributive justice, the issue of recovery in wrongful birth cases has at least been reopened by Rees.
The final point that is primarily relevant to wrongful pregnancy cases, but which may have implications for other cases where the wrong may be characterised as an infringement of autonomy, was the majority’s decision to award a conventional sum in general damages as recognition of that wrong. The dissenting judges rejected this and both Lords Steyn and Hope devoted a significant part of their judgments to present a powerful criticism of the decision. Lord Steyn argued that the award of a conventional sum was not a ‘gloss’ on McFarlane but a ‘radical and most important development which should only be embarked on after rigorous examination of competing arguments’. The majority provided no authority for the award, it had been implicitly rejected by the majority in McFarlane, there had been no opportunity for the lower courts to consider such an approach and it was beyond the ‘limits of permissible creativity for judges’ that was a ‘backdoor evasion of the legal policy enunciated in McFarlane’ and was, therefore, the remit of Parliament and not the courts (Ibid. at 1107-1108 [40-47]). Lord Hope agreed with Lord Steyn, adding that describing the freedom to restrict the size of one’s family as a right begged many questions and awarding damages without the aim of returning the injured party to their pre-tort position undermined the general aim of tort law. Because of these and other problems with such an award, it was a development that was ‘hugely controversial’ and should be left to Parliament (Ibid. at 1114-1116 [73-77]).
It is submitted that this criticism is undeserved and was, perhaps, a consequence of the tangled knot that had resulted from the initially intuitive use of distributive justice. While the Court of Appeal judges were well intentioned in their attempt to alleviate the harshness of McFarlane, their use of distributive justice simply gave the decisions an air of arbitrariness, which was highlighted by Waller LJ’s dissenting judgment in the Court of Appeal hearing of Rees and noted in the House of Lords. Lord Steyn, for example, acknowledged that: that ‘there is an element of arbitrariness involved in holding that only the disabled mother of a healthy and normal child can claim damages’ (Ibid. at 1105 [38]). Despite noting that ‘it is of prime importance that the law avoid arbitrariness’ he was ‘persuaded that the injustice of denying to such a seriously disabled mother the limited remedy of the extra costs’ (Ibid. at 1105-1106 [38-39]). If avoiding an arbitrary law is of ‘prime importance’, it must at least be arguable that it is preferable to maintain a system of formal justice in which everyone knows where they stand and the law is predictable, rather than to develop an uncertain system in which individual decisions depend explicitly on the prejudiced intuitions of the judge. The McFarlane judgment, however, was harsh and arguably unfair on the parents. It is understandable, therefore, that seeing a wrong committed with the consequential harm going entirely uncompensated would cause their Lordships to raise Alexander’s sword and cleave the Gordian knot tied with the rope of distributive justice.
The majority’s bold stroke, while understandable, is still open to the criticism that it was an illegitimate step for their Lordships to take. Lord Steyn’s point that it was beyond the ‘permissible creativity’ of a judge may be difficult to entirely rebuke given that it is a matter of degree and there is no clear line marking the boundary between what is permissible and what is forbidden. However, there are a number of reasons that would support an argument that the move was acceptable. To begin with, the award of general damages itself is accepted as reasonable and may be granted to compensate for the ‘diminution of value’ resulting from a ‘loss of amenity’. Such an award is available at the top of the scale to permanently unconscious claimants. While the Law Commission was against such an award they recommended retaining it because of the level of support received from respondents (1998 p 6-9).(8) One of the main reasons underlying the support was the: ‘unconscious victim’s complete loss of amenity’, and ‘[f]ailure to recognise this would be to undervalue and trivialise their experiences’(Ibid. p 7, para. 2.23).
Although loss of amenity is not synonymous with loss of autonomy, because autonomy may enhance or enable enjoyment of life, loss of autonomy is subsumed by loss of amenity. Thus, English law already recognises a diminution of autonomy as a suitable basis for the award of a conventional sum. If this argument is not accepted then consider the relevance of the Human Rights Act 1998 (HRA). This Act effectively incorporates the European Convention on Human Rights and Article 8 of this Convention protects the individual’s right to a private and family life. It is not particularly contentious to argue that this would include the right to determine the size of one’s own family, constrained - of course – by nature’s generosity. Since, under s 6(1)-(3), the courts are supposed to develop the law in accordance with the HRA (Wadham et al 2003, p 12), any infringement of a protected right should be compensated irrespective of whether the complaint involves a pleaded breach of the HRA. In Cornelius v De Taranto[2001] EMLR 12, 329 (at 344, [66]) for example, the court held that damages for a breach of confidence should be more than nominal because it involved a protected right.(9) Thus, it is submitted that, even though the justification for a conventional sum was not fully explicated, it is a defensible award.
If the legal rule determined by McFarlane is that no award of damages may be made to cover the maintenance costs of a healthy child then the award of a conventional sum for loss of autonomy is not precluded. Calling it a ‘gloss’ may be an understatement, but it is a smaller step than the arbitrary award to cover the costs arising from the parent’s disability. The beauty of such an award is that it makes no unjustly arbitrary distinction between the claimants, all of whom will receive the same award. It will also make it considerably easier to come to an out of court settlement since there will be no need to haggle over the projected expenses of raising a child or the impact of a disability on those costs. It is, however, a bold but risky strategy. It is bold because, with one stroke, it destroys the knotty tangle weaved by the courts’ ill-considered use of distributive justice. It is risky because it may end up pleasing no one, except perhaps the NHS. Given the potential costs involved in raising a child, the parents of a healthy child may still feel hard done by. Disabled parents may feel aggrieved because the comparatively small award is unlikely to meet the additional costs incurred because of their disability. Those in favour of a full award in line with corrective justice principles may feel that the solution fails to do justice and those who believe McFarlane was a wholly just decision may feel that the judgment has been undermined.(10)
The case raises two issues of more general interest. First, their Lordships explicitly referred to a reliance on ‘legal policy’, which they differentiated from ‘social policy’: it being legitimate for the courts to rely on legal policy but not social policy. This is intriguing because, in Rees, four of their Lordships argued that the decision in McFarlane relied on legal policy (Op cit at 1095 [6] per Lord Bingham; 1102 [29] per Lord Steyn; 1109 [52] per Lord Hope; 1124 [105] per Lord Millett).(11) However, in McFarlane, only Lord Millett explicitly referred to ‘legal policy’, while the others either shied away from policy or denied its relevance. Lord Millett rather unhelpfully explained that (Op cit at 108):
There were two points on which all of their Lordships agreed. First, they unanimously rejected Hale LJ’s ‘deemed equilibrium’: McFarlane had decided that the maintenance costs could not be weighed against the benefits flowing from the birth of a new child, which were impossible to measure. While their Lordships were correct in rejecting the model as a flawed interpretation of McFarlane, it had provided a logical explanation of why the extra costs associated with a disability should be recoverable. Considering the argument from McFarlane: the benefits of a new child are immeasurable and the consequence of this is that they cannot be offset against the maintenance costs. The House of Lords in McFarlane concluded from this that, because the benefits and detriments could not be weighed then the claimants should recover in full or not at all and it was unjust to allow them to recover in full. Unless one is prepared to argue that having a disabled child is not - as a matter of policy - a blessing, which might be interpreted as devaluing the disabled, then the calculation is no more possible for the birth of a disabled child than it is for the birth of a healthy child. The costs arising from the disability are simply additional maintenance costs and, if the detriments cannot be weighed against the benefits then simply increasing the detriments cannot change that: if x cannot be balanced against y then nor can x be balanced against y + z.
The problem with the rejection of the deemed equilibrium is demonstrated by Lord Hope’s argument. After emphasising that the benefits and burdens of a disabled child are as entangled as those of a healthy child, while acknowledging the extra costs associated with a disability, but being committed to rejecting the deemed equilibrium, Lord Hope is left without any justification for allowing the additional costs. His response is to argue that, instead of an ‘equilibrium’ there was ‘an element of symmetry... inherent in the exercise... [which] lies in the assumption that the parent and the child are both normal and healthy ’ (Ibid. at 1110-1111 [60]). This argument has the air of sophistry and it is submitted that, in this context, ‘equilibrium’ and ‘symmetry’ are synonymous and Lord Hope’s argument should be rejected.
The second point of agreement was that the McFarlane judgment was correct and, even had they thought otherwise, it would be wrong to overturn such a recent decision of a differently constituted House.(5) In Rees, Lord Steyn characterised the ratio of McFarlane as reliant on the impossibility of weighing the benefits and detriments of the birth of a healthy child, and Lord Millett’s point that it would be ‘morally offensive’ for society ‘to regard a normal healthy child as more trouble and expense than it is worth’. When coupled with the principle of distributive justice, or the ‘fair, just or reasonable’ test – which is arguably just distributive justice by another name – the result was that the maintenance costs of a healthy child could not be recovered (Ibid. at 1102 [28-29]). In McFarlane, Lord Steyn determined the distributive justice argument by reference to the supposed view of the traveller on the Underground (Op cit, at 82). It is impossible from this to determine the exact end point by which a fair distribution should be measured. However, it is arguable that the subsequent Court of Appeal hearings of Parkinson and Rees were determined on the basis of need.(6) This reliance on a needs-based distributive justice argument has been undermined by the majority’s decision in Rees, which applies in all cases where the child is healthy. If that point is considered in conjunction with the previous argument about the lack of balance to be tipped by the extra costs arising from a disability, it is arguable that parents should no longer be able to recover where the child is disabled. Certainly, Lords Bingham, Nicholls and Scott argued that the award of a conventional sum was equally appropriate in the case of a disabled child (Op cit, at 1097, 1099, 1135 [9, 18, 145]), but Lord Millett’s judgment was unclear on the issue. Since the point is obiter to the decision, their Lordships’ arguments are not determinative and the Court of Appeal remains free to follow Parkinson.(7) However, should they do so, the defendants may well feel that they have good grounds for appeal thus encouraging further litigation.
Rees also opens up the question of whether those cases in which the purpose of the medical intervention (sterilisation or abortion) was specifically intended to avoid the birth of a disabled child should be decided differently (Ibid. at 1135 [145] per Lord Scott). Mason (2002) argues that, in these wrongful birth cases, where the woman is specifically seeking to avoid the birth of a disabled child, there is a greater proximity between the doctor and the costs arising from the disability. However, the principle of distributive justice, rather than the issue of proximity, has determined the wrongful pregnancy cases. Because many of the same distributive arguments will be relevant, even if it is argued that greater proximity acts as a counterweight to the principles of distributive justice, the issue of recovery in wrongful birth cases has at least been reopened by Rees.
The final point that is primarily relevant to wrongful pregnancy cases, but which may have implications for other cases where the wrong may be characterised as an infringement of autonomy, was the majority’s decision to award a conventional sum in general damages as recognition of that wrong. The dissenting judges rejected this and both Lords Steyn and Hope devoted a significant part of their judgments to present a powerful criticism of the decision. Lord Steyn argued that the award of a conventional sum was not a ‘gloss’ on McFarlane but a ‘radical and most important development which should only be embarked on after rigorous examination of competing arguments’. The majority provided no authority for the award, it had been implicitly rejected by the majority in McFarlane, there had been no opportunity for the lower courts to consider such an approach and it was beyond the ‘limits of permissible creativity for judges’ that was a ‘backdoor evasion of the legal policy enunciated in McFarlane’ and was, therefore, the remit of Parliament and not the courts (Ibid. at 1107-1108 [40-47]). Lord Hope agreed with Lord Steyn, adding that describing the freedom to restrict the size of one’s family as a right begged many questions and awarding damages without the aim of returning the injured party to their pre-tort position undermined the general aim of tort law. Because of these and other problems with such an award, it was a development that was ‘hugely controversial’ and should be left to Parliament (Ibid. at 1114-1116 [73-77]).
It is submitted that this criticism is undeserved and was, perhaps, a consequence of the tangled knot that had resulted from the initially intuitive use of distributive justice. While the Court of Appeal judges were well intentioned in their attempt to alleviate the harshness of McFarlane, their use of distributive justice simply gave the decisions an air of arbitrariness, which was highlighted by Waller LJ’s dissenting judgment in the Court of Appeal hearing of Rees and noted in the House of Lords. Lord Steyn, for example, acknowledged that: that ‘there is an element of arbitrariness involved in holding that only the disabled mother of a healthy and normal child can claim damages’ (Ibid. at 1105 [38]). Despite noting that ‘it is of prime importance that the law avoid arbitrariness’ he was ‘persuaded that the injustice of denying to such a seriously disabled mother the limited remedy of the extra costs’ (Ibid. at 1105-1106 [38-39]). If avoiding an arbitrary law is of ‘prime importance’, it must at least be arguable that it is preferable to maintain a system of formal justice in which everyone knows where they stand and the law is predictable, rather than to develop an uncertain system in which individual decisions depend explicitly on the prejudiced intuitions of the judge. The McFarlane judgment, however, was harsh and arguably unfair on the parents. It is understandable, therefore, that seeing a wrong committed with the consequential harm going entirely uncompensated would cause their Lordships to raise Alexander’s sword and cleave the Gordian knot tied with the rope of distributive justice.
The majority’s bold stroke, while understandable, is still open to the criticism that it was an illegitimate step for their Lordships to take. Lord Steyn’s point that it was beyond the ‘permissible creativity’ of a judge may be difficult to entirely rebuke given that it is a matter of degree and there is no clear line marking the boundary between what is permissible and what is forbidden. However, there are a number of reasons that would support an argument that the move was acceptable. To begin with, the award of general damages itself is accepted as reasonable and may be granted to compensate for the ‘diminution of value’ resulting from a ‘loss of amenity’. Such an award is available at the top of the scale to permanently unconscious claimants. While the Law Commission was against such an award they recommended retaining it because of the level of support received from respondents (1998 p 6-9).(8) One of the main reasons underlying the support was the: ‘unconscious victim’s complete loss of amenity’, and ‘[f]ailure to recognise this would be to undervalue and trivialise their experiences’(Ibid. p 7, para. 2.23).
Although loss of amenity is not synonymous with loss of autonomy, because autonomy may enhance or enable enjoyment of life, loss of autonomy is subsumed by loss of amenity. Thus, English law already recognises a diminution of autonomy as a suitable basis for the award of a conventional sum. If this argument is not accepted then consider the relevance of the Human Rights Act 1998 (HRA). This Act effectively incorporates the European Convention on Human Rights and Article 8 of this Convention protects the individual’s right to a private and family life. It is not particularly contentious to argue that this would include the right to determine the size of one’s own family, constrained - of course – by nature’s generosity. Since, under s 6(1)-(3), the courts are supposed to develop the law in accordance with the HRA (Wadham et al 2003, p 12), any infringement of a protected right should be compensated irrespective of whether the complaint involves a pleaded breach of the HRA. In Cornelius v De Taranto[2001] EMLR 12, 329 (at 344, [66]) for example, the court held that damages for a breach of confidence should be more than nominal because it involved a protected right.(9) Thus, it is submitted that, even though the justification for a conventional sum was not fully explicated, it is a defensible award.
If the legal rule determined by McFarlane is that no award of damages may be made to cover the maintenance costs of a healthy child then the award of a conventional sum for loss of autonomy is not precluded. Calling it a ‘gloss’ may be an understatement, but it is a smaller step than the arbitrary award to cover the costs arising from the parent’s disability. The beauty of such an award is that it makes no unjustly arbitrary distinction between the claimants, all of whom will receive the same award. It will also make it considerably easier to come to an out of court settlement since there will be no need to haggle over the projected expenses of raising a child or the impact of a disability on those costs. It is, however, a bold but risky strategy. It is bold because, with one stroke, it destroys the knotty tangle weaved by the courts’ ill-considered use of distributive justice. It is risky because it may end up pleasing no one, except perhaps the NHS. Given the potential costs involved in raising a child, the parents of a healthy child may still feel hard done by. Disabled parents may feel aggrieved because the comparatively small award is unlikely to meet the additional costs incurred because of their disability. Those in favour of a full award in line with corrective justice principles may feel that the solution fails to do justice and those who believe McFarlane was a wholly just decision may feel that the judgment has been undermined.(10)
The case raises two issues of more general interest. First, their Lordships explicitly referred to a reliance on ‘legal policy’, which they differentiated from ‘social policy’: it being legitimate for the courts to rely on legal policy but not social policy. This is intriguing because, in Rees, four of their Lordships argued that the decision in McFarlane relied on legal policy (Op cit at 1095 [6] per Lord Bingham; 1102 [29] per Lord Steyn; 1109 [52] per Lord Hope; 1124 [105] per Lord Millett).(11) However, in McFarlane, only Lord Millett explicitly referred to ‘legal policy’, while the others either shied away from policy or denied its relevance. Lord Millett rather unhelpfully explained that (Op cit at 108):
Legal policy... is not the same as public policy, even though moral
considerations may play a part in both. The court is engaged in a search for
justice, and 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.
Although it is important to examine the concept of legal policy in more detail, I intend to explore this in another article, and space does not permit a full consideration at this point.
Although it is important to examine the concept of legal policy in more detail, I intend to explore this in another article, and space does not permit a full consideration at this point.
The final issue is the relevance and application of distributive justice in
tort law, which is primarily a system of corrective justice. Following on from
the use of distributive justice to deny recovery in White v Chief Constable
of South Yorkshire Police[1999] 2 AC 455 (per Lords Hoffmann,
Browne-Wilkinson and Steyn), Lord Steyn again explicitly relied on that
principle to deny recovery in McFarlane (Op cit at 82-83). Lord
Hope also referred to distributive justice as a limiting principle, while Lord
Slynn relied on the Caparo v Dickman [1990] 2 AC 605 duty-criterion that
it was ‘fair, just or reasonable, which is arguably distributive justice
by another name.(12) It may also be
argued that both Lord Millett’s and Lord Clyde’s judgment were
informed by ideas of distributive justice, although neither make explicit
reference to the principle. In the subsequent Court of Appeal cases,
distributive justice arguments are relied on to allow recovery, in
Parkinson (Op cit e.g. at 104 per Brooke LJ), where the child was
disabled, and in the Court of Appeal hearing of Rees (Op cit at
[22] per Hale LJ), where it is the parent who was disabled. The principle was
again relied on – although not always explicitly - by the minority in the
House of Lords hearing of Rees, to argue that the disabled parent should
recover for the additional costs. In fact, six of the seven judges constructed
arguments around distributive justice or the effectively synonymous ‘fair,
just or reasonable’ criterion (Op cit at 1095, 1098, 1102, 1111,
1122, 1129 [6, 13, 29, 63, 97, 121].
While it is arguable that a system of corrective justice is predicated on distributive justice principles applied to outcome responsibility (Honoré 1995 at 83), using those principles to limit the application of corrective justice, once that system is established, requires further justification. Space precludes a full discussion of these issues,(13) however, it is arguable that any limitation of liability is analysable in terms of distributive justice. Furthermore, the ‘fair, just or reasonable’ criterion, which has become an accepted part of English law,(14) is now being acknowledged as expressing distributive justice principles. Since limiting liability has long been a part of deciding cases in tort, it is more open of the judges to refer explicitly to distributive justice. This openness has exposed some of the difficulties in applying such a general principle to specific cases. Perhaps the biggest problem is in determining the endpoint used to decide whether the particular distribution is fair. In McFarlane, Lord Steyn clouds the issue by appealing to the moral intuition of the traveller on the Underground (Op cit, at 82). In the Court of Appeal, especially Hale LJ’s judgments, the endpoint appears to be based on need.(15) The trouble with reliance on need is that it would also support recovery because the parents are socially disadvantaged. This is recognised by Waller LJ, the dissenting judge in the Court of Appeal hearing of Rees (Op cit, at [53-55]).
In the House of Lords, the minority - who would have allowed recovery where the parent is disabled - acknowledged the strength of Waller LJ’s arguments and even recognised that to allow recovery in the present case would create an arbitrary law. The minority felt, however, that such arbitrariness was a price worth paying for the possibility of justice in this case (Op cit, at 1111 [61] per Lord Hope; 1105-1107 [38-39] per Lord Steyn). An arbitrary law, however, is an unjust law and the minority’s approach would sacrifice formal justice for arbitrary satisfaction of substantive justice. For Lord Millett, this approach was ‘destructive of the concept of distributive justice’ (Op cit, at 1128-1129 [121-122]).(16) This unhappy state of affairs, which is solved by the majority’s Alexandrian sword stroke, is caused by the inconsistent and ill-thought-out reliance on distributive justice. If applied consistently with McFarlane, the principle would arguably result in recovery being denied in all wrongful pregnancy (and perhaps wrongful birth) cases, irrespective of any disability. If applied consistently with the Court of Appeals’ approach then McFarlane is undermined and the court is forced to adopt the role of a benefits agency. The point here is not that the courts are necessarily wrong to turn to distributive justice when trying to fairly apply principles of corrective justice, but that if such an appeal is made then it must be applied consistently and coherently, which requires a far more rigorous approach than the judges have taken.
Top | Contents | Bibliography
Conclusion
In Rees, the majority in the House of Lords cleaved the Gordian knot
created by the use of distributive justice in the previous wrongful pregnancy
cases. The knot was the consequence of the judges manipulating the principle
in order to justify their intuitive judgments and was exacerbated by the constraints
on the Court of Appeal arising from McFarlane. The majority’s
decision, to award a conventional sum for the harm done to the claimant’s
autonomy, was insufficiently explained by their Lordships. However, as I have
argued, their approach is capable of justification, although the decision
itself, while softening the potential harshness of McFarlane, risks
not pleasing anyone.
Rees is important, both for the limited area of wrongful pregnancy/birth
and for its wider implications for tort law more generally. As far as wrongful
pregnancy is concerned, the case reopens the issue of whether recovery will
be allowed for the extra costs associated with the care of a disabled child.
The majority’s decision throws into doubt the Court of Appeal’s
decision in Parkinson. While that case has not been overturned it is
certainly open to challenge and the spectre of another House of Lords case
looms large. This uncertainty also extends to the wrongful birth cases.
The wider implications of the case concern the meaning and use of legal policy
and the ever more explicit reliance on an insufficiently explicated and inconsistently
interpreted principle of distributive justice. While reliance on this principle
may be necessary if tort liability is to be limited, and while the greater
openness of making explicit this reliance is laudable, use of distributive
justice in this way needs to be subject to more critical intellectual rigour
if it is to allow the development of a just law that is predictable because
it is both coherent and consistent.
Bibliography
J.E. Cameron-Perry, ‘Return of the burden of the
“blessing”’ (1999) 149 NLJ 1887
T. Honoré, ‘The Morality of Tort Law – Questions and Answers’ in: D.G. Owen (ed.) (1995) Philosophical Foundations of Tort Law (Oxford: Clarendon Press) 73
The Law Commission Report No 257 Damages for Personal Injury: Non-Pecuniary Loss (1998). Available at: http://www.lawcom.gov.uk/files/lc257.pdf (Accessed 20th November 2003).
A.R. Maclean, ‘McFarlane v Tayside Health Board: A Wrongful Conception in the House of Lords’ [2000] 3 Web JCLI, available at: http://webjcli.ncl.ac.uk/2000/issue3/maclean3.html (accessed 25 November 2003)
J.K.Mason ‘Wrongful Pregnancy, Wrongful Birth and Wrongful Terminology’ (2002) 6 Edinburgh Law Review 46.
T. Honoré, ‘The Morality of Tort Law – Questions and Answers’ in: D.G. Owen (ed.) (1995) Philosophical Foundations of Tort Law (Oxford: Clarendon Press) 73
The Law Commission Report No 257 Damages for Personal Injury: Non-Pecuniary Loss (1998). Available at: http://www.lawcom.gov.uk/files/lc257.pdf (Accessed 20th November 2003).
A.R. Maclean, ‘McFarlane v Tayside Health Board: A Wrongful Conception in the House of Lords’ [2000] 3 Web JCLI, available at: http://webjcli.ncl.ac.uk/2000/issue3/maclean3.html (accessed 25 November 2003)
J.K.Mason ‘Wrongful Pregnancy, Wrongful Birth and Wrongful Terminology’ (2002) 6 Edinburgh Law Review 46.
R. Mullender, ‘Corrective justice, distributive justice, and the law
of negligence’ (2001) 17(1) Professional Negligence 35.
J. Wadham, H. Mountfield, A. Edmunds, (3rd Edition, 2003) Blackstone’s Guide to the Human Rights Act 1998 (Oxford: Blackstone’s Press).
J. Wadham, H. Mountfield, A. Edmunds, (3rd Edition, 2003) Blackstone’s Guide to the Human Rights Act 1998 (Oxford: Blackstone’s Press).
Endnotes
(1) See, Maclean, A.R.
‘McFarlane v Tayside Health Board: A Wrongful Conception in the House of
Lords’ (2000) 3 WJCLI, available at:
http://webjcli.ncl.ac.uk/2000/issue3/maclean3.html
(accessed 25 November 2003); Cameron-Perry, JE ‘Return of the burden of
the “blessing”’ (1999) 149 NLJ
1887.
(2) McFarlane v Tayside Health Board [2000] 2 AC 59 at 82-84 per Lord Steyn; and at 96 per Lord Hope. Lord Slynn (at 76) relied on the ‘fair, just and reasonable’ test, which is perhaps simply an implicit appeal to distributive justice. Note that Lord Millett has also argued that the ‘fair, just or reasonable’ test ‘expresses the same idea’ as distributive justice: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 344 [105].
(3) Hale LJ’s attitude is apparent from her judgments in Parkinson v St James and Seacroft University Hospital [2001] EWCA Civ 530; [2001] 3 All ER 97, and the Court of Appeal hearing of Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, CA.
(4) See Lord Steyn’s comment in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 325 [36].
(5) See, for example, Lord Millett’s judgment: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 343 [102-103].
(6) See, for example, Hale LJ’s argument in, Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [22].
(7) See also Douglas, G. ‘Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52’ (2004) 34 Fam. Law 22, at 23.
(8) Such an award had been approved by the House of Lords in West v Shephard [1964] AC 326.
(9) This aspect of the case was upheld on appeal without comment: (2002) 68 BMLR 62, CA.
(10) Lord Steyn referred to the award as ‘a backdoor evasion of the legal policy enunciated in McFarlane’: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 328 [46].
(11) See Lord Hope’s comment in McFarlane v Tayside Health Board [2000] 2 AC 59 at 95 where he states that: ‘If the law is unsatisfactory, the remedy lies in the hands of the legislature’; see also Lord Clyde at 100.
(12) See McFarlane v Tayside Health Board [2000] 2 AC 59 at 76 per Lord Slynn; and at 96 per Lord Hope. Note that Lord Millett has also argued that the ‘fair, just or reasonable’ test ‘expresses the same idea’ as distributive justice: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, at 344 [105].
(13) For just such a discussion, see: Mullender, R. ‘Corrective justice, distributive justice, and the law of negligence’ (2001) 17(1) Professional Negligence 35.
(14) This is not true in Australian law, which has rejected the Caparo test: Melchior v Cattanach [2003] HCA 38, at [121-122] per Kirby J.
(15) See, e.g. Parkinson v St James and Seacroft University Hospital [2001] 3 All ER 97 at 125; and Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [22].
(16) Lord Millett’s comment was directed at the Court of Appeal’s decision but is equally applicable to the minority’s judgments in the House of Lords.
(2) McFarlane v Tayside Health Board [2000] 2 AC 59 at 82-84 per Lord Steyn; and at 96 per Lord Hope. Lord Slynn (at 76) relied on the ‘fair, just and reasonable’ test, which is perhaps simply an implicit appeal to distributive justice. Note that Lord Millett has also argued that the ‘fair, just or reasonable’ test ‘expresses the same idea’ as distributive justice: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 344 [105].
(3) Hale LJ’s attitude is apparent from her judgments in Parkinson v St James and Seacroft University Hospital [2001] EWCA Civ 530; [2001] 3 All ER 97, and the Court of Appeal hearing of Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, CA.
(4) See Lord Steyn’s comment in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 325 [36].
(5) See, for example, Lord Millett’s judgment: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 343 [102-103].
(6) See, for example, Hale LJ’s argument in, Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [22].
(7) See also Douglas, G. ‘Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52’ (2004) 34 Fam. Law 22, at 23.
(8) Such an award had been approved by the House of Lords in West v Shephard [1964] AC 326.
(9) This aspect of the case was upheld on appeal without comment: (2002) 68 BMLR 62, CA.
(10) Lord Steyn referred to the award as ‘a backdoor evasion of the legal policy enunciated in McFarlane’: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, 328 [46].
(11) See Lord Hope’s comment in McFarlane v Tayside Health Board [2000] 2 AC 59 at 95 where he states that: ‘If the law is unsatisfactory, the remedy lies in the hands of the legislature’; see also Lord Clyde at 100.
(12) See McFarlane v Tayside Health Board [2000] 2 AC 59 at 76 per Lord Slynn; and at 96 per Lord Hope. Note that Lord Millett has also argued that the ‘fair, just or reasonable’ test ‘expresses the same idea’ as distributive justice: Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, at 344 [105].
(13) For just such a discussion, see: Mullender, R. ‘Corrective justice, distributive justice, and the law of negligence’ (2001) 17(1) Professional Negligence 35.
(14) This is not true in Australian law, which has rejected the Caparo test: Melchior v Cattanach [2003] HCA 38, at [121-122] per Kirby J.
(15) See, e.g. Parkinson v St James and Seacroft University Hospital [2001] 3 All ER 97 at 125; and Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88, [22].
(16) Lord Millett’s comment was directed at the Court of Appeal’s decision but is equally applicable to the minority’s judgments in the House of Lords.