Parkinson v St James & Seacroft University Hospital NHS Trust

Facts

Mrs Parkinson underwent a sterilisation operation at a hospital run by the defendant NHS trust. The operation was performed negligently and she conceived. She gave birth to a child who had severe disabilities. The disabilities were not caused by the negligence. She claimed damages for the costs of bringing up the child, including the additional costs of caring for the disabilities.

Issue

Whether, following the House of Lords decision that the ordinary costs of raising a healthy child cannot be recovered after a negligent sterilisation, a parent can recover the additional costs of raising a child who is born with a disability.

Held

The claim for the extra costs of caring for the disabled child, over and above the ordinary costs of upbringing, succeeded; the ordinary costs remained irrecoverable.

Ratio

• Where a negligent failure of contraception results in the birth of a child with a significant disability, the parent may recover the additional costs of providing for the disability, because the rationale for refusing the ordinary costs of a healthy child does not apply to those extra costs.
• The ordinary costs of raising the child continue to be irrecoverable, and the recoverable sum is limited to the extra expenditure and care caused by the disability.

The judgments

Key reasoning

• The McFarlane decision rests on the view that the benefits of a healthy child outweigh or cannot be set against the costs of raising it, and that the law should not treat the birth of a healthy child as a legal harm.
• That view cannot be extended to the extra costs of disability, because the parent suffers a real loss in the additional care and expense, and fairness requires that the defendant who negligently caused the birth bear them.
• The defendant's duty was to protect the parent from the consequences of an unwanted pregnancy, and those consequences include the heavier burden of a disabled child, which was within the scope of that duty.

Where it fits in the module

The FHS topic on the Congenital Disabilities (Civil Liability) Act 1976 deals with the position of a child born with a disability caused by a prenatal wrong, and Parkinson shows the complementary question of a parent's own claim when disability is not caused by the defendant. The case should be read alongside McFarlane v Tayside Health Board [2000] 2 AC 59 and with the later decision of the House of Lords in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, which allowed a conventional sum for a disabled mother who had a healthy child. It poses the question of whether the law's refusal to recognise a healthy child as damage can be reconciled with recovery for disability costs.

Criticisms

• The distinction between ordinary and extra costs is difficult to justify, because if the birth of a child is not a legal harm in the McFarlane sense, the arrival of a disabled child cannot be a different kind of harm.
• The defendant's negligence did not cause the disability, so allowing recovery for it sits uneasily with the requirement that the defendant should be liable only for harm that is within the risk it was under a duty to guard against.
• The line leaves the court needing to quantify the extra costs by comparison with a hypothetical healthy child, which is artificial and difficult to apply.
• The decision exposes the inconsistency of the law, since the parent can recover for disability but not for the ordinary burden of care, which shows the incoherence of the McFarlane rule itself.