Rees v. Darlington Memorial Hospital NHS Trust, (2003) 313 N.R. 135 (HL)

• Case Date: October 16, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 313 N.R. 135 (HL)

Rees v. Darlington Hospital (2003), 313 N.R. 135 (HL)

MLB headnote and full text

Temp. Cite: [2003] N.R. TBEd. DE.011

Rees (respondent) v. Darlington Memorial Hospital NHS Trust (appellant)

([2003] UKHL 52)

Indexed As: Rees v. Darlington Memorial Hospital NHS Trust

House of Lords

London, England

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Millett and Lord Scott of Foscote

October 16, 2003.

Summary:

The plaintiff, Rees, had a severe and pro­gressive visual disability. She felt that she would be unable to raise a child and arranged to be sterilized. She made her situation known to the doctor who performed the sterilization. The sterilization was carried out negligently and she subsequently had a healthy son. The plaintiff sued the hospital for the cost of rearing the child, including a claim for the additional costs she would in­cur in raising the child with regard to her handicap. A preliminary issue was referred to the High Court to determine whether the plaintiff was in principle entitled to recover any part of the cost of bringing up the child in light of the decision of the House of Lords in McFarlane v. Tayside Health Board (1999). In McFar­lane, the court held that parents of a healthy child, born after negli­gent sterilization advice, could not recover in tort the cost of bringing up the child, but that a modest solatium for pain and suffering associated with pregnancy and childbirth may be awarded.

The High Court held that the plaintiff was not entitled to recover any part of the costs of bringing up the child. The plaintiff ap­pealed.

The Court of Appeal allowed the appeal and held that the plaintiff, as a disabled parent, could recover the additional costs she would incur in bringing up the child which were attributable to or incurred as a result of her disability. The hospital appealed, relying on the McFarlane decision. The plaintiff argued that the court should overrule or not apply or follow the McFarlane decision in these circumstances.

The House of Lords unanimously agreed that the decision in McFarlane should not be disturbed. The majority of the court, per Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Millett and Lord Scott of Foscote, however, held that although the entire costs of child rearing were not recov­erable, a disabled parent in this situation was entitled to a conventional award which was noncompensatory in nature and in all cases set at £15,000. As a result, the court allowed the appeal, set aside the decision of the Court of Appeal and awarded the plaintiff £15,000. The minority of the court, per Lord Steyn, Lord of Craighead and Lord Hutton, would have dismissed the appeal and allowed the plaintiff's claim to proceed. The minority disagreed with the notion of fixing a conventional award as done by the major­ity.

Damage Awards - Topic 645

Torts - Injury to the person - Wrongful pregnancy, birth or life - [See Damages - Topic 2543 ].

Damages - Topic 2543

Torts affecting the person - Wrongful pregnancy, birth or life - The plaintiff had a severe and progressive visual disability - She felt that she could not raise a child and on this basis arranged to be sterilized -The sterilization was carried out negli­gent­ly and she subsequently had a healthy child - The plaintiff sued the hospital for dam­ages - An issue arose respecting whether the plaintiff could recover any part of the cost of bringing up the child in light of the decision of the House of Lords in McFar­lane v. Tayside Health Board (1999) - In McFarlane the court held that parents of a healthy child in such a situation could not recover in tort the cost of bringing up the child - The House of Lords unanimous­ly agreed that the decision in McFarlane should not be disturbed - The majority of the court held, however, that although the entire costs of child rearing were not re­coverable, a disabled parent in this situ­ation was entitled to a conventional award which was noncompensatory in nature and in all cases set at £15,000.

Cases Noticed:

McFarlane et al. v. Tayside Health Board, [2000] 2 A.C. 59; 250 N.R. 252 (H.L.), consd. [paras. 1, 11, 24, 50, 81, 100, 127].

Parkinson v. St. James and Seacroft Uni­versity Hospital NHS Trust, [2001] EWCA Civ 530; [2002] Q.B. 266 (C.A.), refd to. [paras. 1, 25, 54, 87, 100, 144].

Cattanach v. Melchior, [2003] HCA 38 (Aus. H.C.), affd. [2001] Q.C.A. 246 (Queensland S.C.), refd to. [paras. 2, 32, 51, 103].

Emeh v. Kensington and Chelsea and Westminster Area Health Authority, [1985] Q.B. 1012 (C.A.), refd to. [paras. 4, 146].

Thake v. Maurice, [1986] Q.B. 644 (C.A.), refd to. [para. 4].

Benarr v. Kettering Health Authority (1988), 138 N.L.J. 179, refd to. [para. 4].

McLoughlin v. O'Brian, [1983] 1 A.C. 410, refd to. [para. 4].

Dutton v. Bognor Regis Urban District Council, [1972] 1 Q.B. 373, refd to. [para. 6].

Kuwait Airways Corp. v. Iraqi Airways Co. et al., [2002] 2 A.C. 883; 291 N.R. 1 (H.L.), refd to. [para. 13].

R. v. Knuller (Publishing, Printing and Promotions) Ltd., [1973] A.C. 435, refd to. [paras. 31, 102].

Fitzleet Estates Ltd. v. Cherry, [1977] 1 W.L.R. 1345 (H.L.), refd to. [paras. 31, 86, 102].

Miliangos v. Frank (George) Textiles Ltd., [1976] A.C. 443 (H.L.), refd to. [para. 31].

Caparo Industries v. Dickman et al., [1990] 2 A.C. 605; 108 N.R. 81 (H.L.), refd to. [paras. 52, 84, 106].

Murphy v. Brentwood District Council, [1991] 1 A.C. 398; 113 N.R. 81 (H.L.), refd to. [para. 52].

McFarlane v. Tayside Health Board, [1997] S.L.T. 211, refd to. [para. 54].

Clark v. Novacold Ltd., [1999] I.C.R. 951, refd to. [para. 67].

Goodwin v. Patent Office, [1999] I.C.R. 302, refd to. [para. 67].

Ward v. James, [1966] 1 Q.B. 273, refd to. [para. 71].

Wright v. British Railways Board, [1983] 2 A.C. 773, refd to. [para. 71].

Lim Poh Choo v. Camden and Islington Area Health Authority, [1980] A.C. 174, refd to. [para. 71].

Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25, refd to. [paras. 73, 129].

Shaher v. British Aerospace Flying College Ltd., [2003] S.L.T. 791, refd to. [para. 75].

Banque Bruxelles Lambert SA v. Eagle Star Insurance Co. - see South Australia Asset Management Corp. v. York Man­agement Ltd.

South Australia Asset Management Corp. v. York Management Ltd., [1997] A.C. 191; 199 N.R. 366 (H.L.), refd to. [paras. 84, 106].

Fassoulas v. Ramey (1984), 450 So.2d 822 (Fla. S.C.), refd to. [para. 89].

Hadley v. Baxendale (1854), 9 Exch. 341, refd to. [para. 105].

White et al. v. Jones et al., [1995] 2 A.C. 207; 179 N.R. 197 (H.L.), refd to. [para. 131].

Farley v. Skinner, [2002] A.C. 732; 278 N.R. 47 (H.L.), refd to. [para. 148].

Authors and Works Noticed:

Hoyano, Laura C.H., Misconceptions about Wrongful Conception (2002), 65 M.L.R. 883, generally [para. 33].

Ireland and Ward, Assessing Damages in Injuries and Deaths of Minor Children (2002), pp. 93, 97, 98 [para. 5].

Kemp and Kemp, The Quantum of Dam­ages, vol. 1, para. 1-003 [para. 71].

Keuleneer, Androulidakis-Dimitriadis and Pozzo, European Review of Private Law (1999), pp. 2:241 to 2:256 [para. 4].

La Croix and Martin, Damages in Wrong­ful Pregnancy Tort Actions in Ireland and Ward, Assessing Damages in Injuries and Deaths of Minor Children (2002), pp. 93, 97, 98 [para. 5].

Mason, J.K., Wrongful Pregnancy, Wrong­ful Birth and Wrongful Terminology (2002), 6 Edin L.R. 46, pp. 47 [para. 56]; 58, 64 [para. 57]; 65, note 77 [para. 56].

Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234, generally [paras. 31, 86, 102].

Thomson, Joe, Abandoning the Law of Delict? McFarlane v. Tayside Health Board in the Lords, 2000 SLT 43, gen­erally [para. 33].

Weir, Tony, A Casebook on Tort (9th Ed. 2000), p. 131 [para. 33].

Counsel:

Not disclosed.

Agents:

Not disclosed.

This appeal was heard by Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Hut­ton, Lord Millett and Lord Scott of Foscote, of the House of Lords. The decision of the House was delivered on October 16, 2003, when the following opinions were filed:

Lord Bingham of Cornhill - see paragraphs 1 to 10;

Lord Nicholls of Birkenhead - see para­graphs 11 to 19;

Lord Steyn - see paragraphs 20 to 49;

Lord Hope of Craighead - see paragraphs 50 to 78;

Lord Hutton - see paragraphs 79 to 99;

Lord Millett - see paragraphs 100 to 126;

Lord Scott of Foscote - see paragraphs 127 to 148.