Rees v Darlington Memorial Hospital

Facts

Karina Rees was severely visually impaired and did not want to bring up a child, because she believed her disability would make it difficult to do so. She underwent a sterilisation operation, which was negligently performed by a doctor at the defendant hospital, and she later conceived and gave birth to a healthy son. She sued for the costs of bringing him up, including the additional costs of child care attributable to her disability.

Issue

Whether the principle that the cost of raising a healthy child born after negligent sterilisation is not recoverable also applies where the parent is disabled, so that the extra costs of rearing a child are caused by the parent's disability; and what, if anything, may be recovered.

Held

By a majority, the claim for the costs of raising the child, including the additional costs due to the mother's disability, was not recoverable. However, the House awarded a conventional sum of 15,000 pounds in recognition of the mother's loss of the opportunity to live her life as a person who had chosen not to have children, as a result of the wrong done to her.

Ratio

• The costs of bringing up a healthy child born after a negligently performed sterilisation are not recoverable, and the rule is not displaced by the fact that the parent is disabled; the additional costs of rearing the child caused by the disability do not form a separate head of damage.
• A conventional award, which is not compensation for the cost of the child or for the birth, may be made to mark the wrong done to the claimant in denying her the opportunity to limit her family size as she chose.

The judgments

Key reasoning

• The earlier decision on the costs of raising a healthy child rests on the view that the law should not treat the birth of a child as an item of loss that can be measured against the benefits of parenthood, and an exception for disabled parents would be hard to confine.
• A distinction based on disability would be arbitrary, since many other characteristics of a parent make child-rearing more costly or difficult, and would require courts to decide who can be treated as less able to care for children.
• The breach of duty nevertheless had a real effect on the claimant, who lost the chance to control her family life, and this deserves recognition through a modest conventional sum.

Obiter

• Statements that the conventional sum was not intended to compensate for any pecuniary or non-pecuniary loss, and that it was a modest recognition of the wrong, rather than an award based on any proof of damage.

Where it fits in the module

In Tort (FHS), the Congenital Disabilities (Civil Liability) Act 1976 topic deals with liability for harm to the unborn child and the associated wrongful conception and wrongful birth claims. Rees is read with McFarlane v Tayside Health Board [2000] 2 AC 59, which established that the costs of raising a healthy child are not recoverable, and with the later case of Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, which allowed additional costs where the child was born disabled. The FHS debate concerns whether a conventional award fits the compensatory aim of tort, how the court should treat the interest in autonomy, and whether distributive justice or policy explains McFarlane.

Criticisms

• The conventional award breaks the principle that tort damages compensate proven loss, because it is a fixed sum that does not depend on the facts of the case.
• The court accepted that there was a wrong, but at the same time said there was no damage that could be compensated in the ordinary way, which is hard to reconcile with the requirement of damage in negligence.
• The refusal to recognise additional costs caused by the mother's disability, while allowing them where the child is disabled, treats comparable burdens differently without a principled reason.
• Critics argue that a figure of 15,000 pounds bears no clear relation to the interference with autonomy it purports to mark, and that it is a compromise rather than a principled measure.