Parkinson v St James & Seacroft University Hospital NHS Trust [2001] EWCA Civ 530

Key points

  • In cases of wrongful birth, parents are not able to recover the costs of upbringing and caring for a normal, healthy child from the health authority or doctor, since such claims do not satisfy the requirements of being fair, just and reasonable
  • However, parents might be entitled to an award of compensation for the extra expenses associated with bringing up a child with a significant disability, since the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s negligence

Facts

  • C, a mother of four children living with her husband, was referred by her doctor to a hospital managed and administered by Ds for a sterilisation operation
  • The operation was carried out negligently and ten months later C conceived a child
  • C was warned by a consultant at the hospital that the child might be born with a disability but she declined to have her
    pregnancy terminated
  • Thereafter her marriage broke down and her husband left the family home three months before she gave birth to herfifth child, who was born with severe disabilities
  • At the trial of a preliminary issue arising in the C’s action for damages against Ds the judge ruled that
    1. C was entitled to recover damages for the costs of providing for her child’s special needs relating to his disabilities
    2. C was not entitled to recover for the basic costs of his maintenance
  • Ds appeal against the first of the judge’s directions and the C appeals against the second

Held (Court of Appeal)

Dismissed both the Ds’ appeal and C’s cross-appeal

Brooke LJ

The Five Techniques in McFarlane’s

When in McFarlane’s case the House of Lords had to decide whether Mr and Mrs McFarlane should recover the cost of bringing up their healthy, albeit unwanted, daughter, there were five different legitimate techniques they might use in deciding whether the law should recognise the existence of a legally enforceable duty of care:

  1. Inquire whether the surgeon had assumed responsibility for the services he rendered so as to be liable for the foreseeable economic consequences if he performed those services negligently;
  2. Inquire what the purpose of the operation was, so that again the surgeon might be liable for the foreseeable economic consequences of his carelessness when performing an operation with that purpose;
  3. Adopt the incremental approach of looking for established categories of negligence and deciding whether it was legitimate to take the law forward one further step by analogy with those established categories;
  4. Apply the now familiar three-stage test propounded by Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605;
  5. Decide that reference to principles of distributive justice might provide a more just solution to the problem than an approach founded solely on principles of corrective justice.: [26]

“The important thing to note is that there is no longer a single “correct” test.” [27]

Brooke LJ’s Technique: [50]

“My route would be as follows:”

  • The birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s careless failure to clip a fallopian tube effectively
  • There was a very limited group of people who might be affected by this negligence
  • The surgeon should be deemed to have assumed responsibility for the foreseeable and disastrous economic consequences of performing his services negligently
  • The purpose of the operation was to prevent Mrs Parkinson from conceiving any more children, including children with congenital abnormalities, and the surgeon’s duty of care is strictly related to the proper fulfilment of that purpose
  • Parents in Mrs Parkinson’s position were entitled to recover damages in these circumstances for 15 years between the decisions in Emeh’s case and McFarlane’s case [2000] 2 AC 59, so that this is not a radical step forward into the unknown
  • Lord Bridge of Harwich’s tests of foreseeability and proximity are satisfied, and for the reasons given by the Supreme Court of Florida in Fassoulas v Ramey 450 So 2d 822 an award of compensation which is limited to the special upbringing costs associated with rearing a child with a serious disability would be fair, just and reasonable
  • If principles of distributive justice are called in aid, ordinary people would consider that it would be fair for the law to make an award in such a case, provided that it is limited to the extra expenses associated with the child’s disability

Significant disability?: [52]

  • What constitutes a significant disability for this purpose will have to be decided by judges, if necessary, on a case by case basis
  • The expression would certainly stretch to include disabilities of the mind (including severe behavioural disabilities) as well as physical disabilities
  • It would not include minor defects or inconveniences, such as are the lot of many children who do not suffer from significant disabilities

Limitations: [53] – [54]

  • This principle is concerned only with the loss that arises when the child’s significant disabilities flow foreseeably from his or her unwanted conception
  • A negligent surgeon should not, without more, be held liable for the economic consequences of the birth of a child with significant disabilities if the child’s disabilities were brought about between conception and birth by some “ultroneous cause”