A single mother who is almost blind has won the right to compensation for bringing up a baby born after a failed sterilisation operation.
The landmark case departs from a recent decision by the House of Lords which declared that couples could not be compensated for unplanned children because their birth must always be regarded as a "blessing" and not a "burden".
Karina Rees, 30, who has brought up her four-year-old son, Anthony, with the help of her parents and social workers, now stands to be awarded a six-figure sum in damages.
The Court of Appeal ruled yesterday that she should be compensated not just for the pain and suffering of the birth, but also the extra care of looking after the child that could be attributed to her disability.
Miss Rees, from Darlington, County Durham, who was born with the genetic disorder retinitis pigmentosa, is blind in her left eye and has only one sixth of normal vision in her right. She underwent a sterilisation at the Darlington Memorial Hospital in 1995, but one of her fallopian tubes was not fully tied, and she discovered in October the following year that she was pregnant.
The hospital admitted the sterilisation was negligently performed but disputed the level of compensation.
Her counsel, Robin de Wilde, had told the court she was "adamant" that she wanted the operation because her visual handicap made her doubt her ability to cope with a baby.
In November 1999 the House of Lords ruled against a Scottish couple, George and Laura McFarlane, who claimed against Tayside Health Board for childcare costs after a negligent vasectomy. It was held that the damages recoverable would be limited to £5,000 as compensation to Mrs McFarlane for the pain of the delivery. Nothing was payable to cover the cost of raising a healthy child.
But in yesterday's case Mr de Wilde argued that Miss Rees faced many extra childcare costs because of her handicap, and was in a different position to a healthy parent. Lady Justice Hale, sitting with Lord Justice Robert Walker and Lord Justice Waller, said the law had limited the doctor's responsibility because of the incalculable benefit the child was presumed to bring. But she said that that "incalculable benefit" must be weighed against the request for a sterilisation.
"There is nothing unfair, unjust or unreasonable," said Lady Justice Hale, "in holding that the surgeon assumes a more extensive responsibility for the consequences, at least where he knew of the disability and that this was the reason why she wished to avoid having a child."
The court upheld the appeal against a ruling of the High Court sitting in Newcastle, which had refused to award Miss Rees any money to cover the cost of bringing up her son, Anthony, who was born in 1997.
Her views were supported by Lord Justice Robert Walker. But Lord Justice Waller, dissenting, said: "I believe that ordinary people would think that it was not fair that a disabled person should recover when mothers who may in effect become disabled by ill-health through having a healthy child would not."
Lady Justice Hale said there was no difference between a high-flying career woman whose sterilisation fails or a poor single mother. But she added: "There is, however, a crucial difference between them and a seriously disabled parent."
She said a handicapped parent would need help feeding, bathing, clothing, supervising, playing with, reading to and taking their child to school if they were to avoid having the child taken away by social services.
"That is the distinction between an able-bodied parent and a disabled parent who needs help if she is to be able to discharge the most ordinary tasks involved in the parental responsibility which has been placed upon her as a result of the defendant's negligence."
The amount of damages will be assessed at a later hearing.Reuse content