Authored By: Sophia Haley
University of Manchester
Rees v Darlington Memorial NHS trust [2004] 1 AC 309 (HL)
This case concerns a claim for damages after a negligently performed sterilisation led to the birth of a healthy child
Previous case law
Before turning to the facts of the case, it is important to outline the key cases the court relied upon in reaching its decision. One of the key cases the court relied upon was McFarlane v Tayside Health Board (McFarlane) in which an able-bodied claimant underwent a vasectomy which was found out to have been carried out negligently, resulting in the birth of a healthy child. In this case, The House of Lords held that parents could not recover the costs of raising a healthy born child. Another significant case that arose was Parkinson v St James and Seacroft University Hospital NHS Trust which involved a claimant who underwent a negligently performed sterilisation operation which consequently led to a birth of a child with disabilities, this case introduced an important exception to the previous precedent in McFarlane, recognising that if a birth results in the consequence of a disabled child, limited recovery costs may be allowed.
Parties involved
The parties involved were Karina Rees and Darlington Memorial Hospital
Facts of the Case
This case arose following an incomplete performed sterilisation. The claimant in this case was Ms Rees (Karina Rees) and the defendant was Darlington Memorial Hospital. Ms Rees was visually handicapped, diagnosed at the age of two with ‘Retinitis Pigmentosa’, causing her blindness in one eye and limited vision in the other. In 1995, Ms Rees visited her general medical practitioner to undergo a sterilisation procedure, however the doctor the sterilisation operation had failed. However, Ms Rees was unaware of this. In July 1996, Ms Rees became pregnant and gave birth to a son in 1997. Although the child was born healthy, there was a risk that he may inherit retinitis pigmentosa. However, this risk is low. She raised the child with the assistance of her mother and relatives; the father has no desire to be involved in the child’s upbringing.
In 1999, Ms Rees issued proceedings in the Darlington County Court claiming damages for negligence from the failure of the sterilisation operation. She argued that the hospital’s mistake led to the birth of her son, and thus she should be paid in damages the costs of raising him. These costs included both regular parenting expenses and extra costs because Ms Rees was visually impaired. The NHS Hospital Trust admitted that the operation has been done negligently, however denied any responsibility in the costs of raising the child.
The Court of Appeal had ruled that the recovery for the costs of raising the child were available, however shortly after proceedings were issued, in November 1999, the House of Lords, relying on McFarlane held that post birth losses were not recoverable and the House decided then that the costs for rearing a child were unavailable in cases where the child was born healthy.
On the 1st of May 2001, the High Court considered a preliminary issue of whether Ms Rees has any right to claim child rearing costs. However, Following the McFarlane ruling, it was decided that Ms Rees could not claim any of those costs.
Ms Rees appealed this decision to the Court of Appeal; however, it was decided by the majority that Ms Rees could not recover the additional costs of raising the child that was specifically to do with her disability, however she could claim the additional costs directly related to her disability in raising Anthony.
The Claimant then appealed the decision to the House of Lords on the basis that it was inconsistent with previous case authority. The House of Lords unanimously affirmed the previous ruling of McFarlane in which those costs of raising a healthy child after negligent sterilisation is irrecoverable. However, the House of Lords also recognised a loss of reproductive autonomy and introduced a conventional award of £15,000.
Legal Issues raised
The case of Rees raises complex issues surrounding autonomy, wrongful birth claims and public policy considerations. The key legal issues that arise was in the case where a mother has a physical disability however the child is born healthy, were damages recoverable in situations where a ‘wrongful birth’ arises out on negligence. Additionally, the second issue raised was whether a claimant was entitled to damages for the loss of personal autonomy caused by medical negligence.
Arguments of the Claimant
Ms Rees argued that the hospital negligently performed a sterilisation procedure that failed that consequently led to the birth of a child depriving her of her autonomy which was exacerbated by her disability, thus she claimed that the Hospital had breached their duty of care and she should be awarded for damages, departing from the decision in McFarlane and Tayside due to her particular circumstances.
Legal reasoning (Ratio Decidendi)
The court decided that reproductive autonomy could be recognised, however, the majority held that public policy considerations precluded the award of damages for raising a healthy child. One of the issues concerning policy considerations was the unwillingness to regard a child as a financial liability. Lord Millett affirmed that “society must regard the birth of a healthy child as a benefit” as it would be morally offensive not to do so. Additionally, there was the ‘floodgates concern’, in which allowing such an award against the National Health Service (NHS) would offend the community’s sense of how public resources should be allocated, indeed both Lord Bingham and Millet voiced their concern in McFarlane about straining the already burdened system of the NHS. Moreover, the recognition of autonomy through a nominal sum was intended to compensate for the loss suffered by the claimant as in Lord Bingham’s words, the claimant has been deprived of the choice “to live the life the way she wished and planned”. Thus to properly reflect a loss of such, Lord Millett’s suggestion in McFarlane of a conventional award for a recognition of the harm done was applicable. Furthermore, to depart from McFarlane’s ruling would be inconsistent and unfair, indeed Waller LJ argued that it would seem inconsistent that a women with a pre-existing disability should get compensation if an able-bodied impoverished woman (as in McFarlane) would not, indeed, Waller LJ’s judgement in Rees alludes to this stating “Assume the mother with four children who had no support from husband, mother or siblings, and then compare her with the person who is disabled, but who has a husband, siblings and a mother all willing to help. I think ordinary people would feel uncomfortable about the thought that it was simply disability which made a difference”. Thus, the ratio decidendi in this case was that, while child-rearing expenses remain irrecoverable, a parent in such circumstances is entitled to compensation for the infringement of their personal autonomy in reproductive decision making.
Dissenting opinions
Whilst the majority agreed on such an issue, some judges disagreed on some of the outcomes in Rees. Concerning child rearing costs, Lord Steyn believed there was some arbitrariness in saying only parents of disabled children (as in Parkinson) can claim extra costs. Lord Hope further questioned if disability related costs of upbringing are recoverable for the child, then why is it not for the parent?. Lord Hope further alludes that children bring both “blessings and burdens” which can’t be separated. Indeed, the burdens associated with raising a child was mentioned by Lord Millett in the judgment of McFarlane precluding that a child “requires an astonishing amount of equipment”, recognising the subsequent burdens that can arise from the birth of a child. Moreover, Lord Steyn and Hope disagreed with the ‘conventional award’ due to concerns over arbitrary decision making and confusing the legal framework and leading to inconsistent decisions.
Significance of the case (conclusion)
The case of Rees highlights important aspects regarding the value of tort law. It reflects what the law regarding negligence considers to be ‘fair just and reasonable’ in wrongful birth claims. It reveals tort’s view of children as a blessing and additionally shows the court’s concern for public policy in an attempt to protect society with a focus on distributive justice with not creating excessive burden on public resources, such as the NHS. Moreover, it’s recognition of the “loss of autonomy” reflects an important milestone with the law adapting to modern standards. Many scholars have applauded Rees for being an important step to recognise interference with patient autonomy. Autonomy is a fundamental value in contemporary society, specifically reproductive autonomy, thus aligning with modern human rights principles enshrined under Article 8 of the European Convention of Human Rights, this case reflects the common law adapting with the modern changing times. However, some may argue the decision in Rees also reflects an outdated view of the value of children, perhaps ignoring the many ‘burdens’ that come with raising a child. In conclusion, Reesreflects a variety of complex views on the subject of ‘wrongful birth’ in medical negligence, however the case is significant not only due to clarifying the limitations of child-rearing costs in wrongful birth claims but because it reveals an important recognition of a fundamental value; the autonomy of individuals.
