[42] Justice Dyson Heydon, above n 36, 10. rule. Gummow JJ). regard the Melchiors’ claim as being within the bounds of an ordinary was not raised before the High Court, however Callinan J pointed out that the dissentients with Priestley JA in CES v Superclinics,[67] namely, that [66] Ibid 205–6. criteria, while a single mother in Mrs Melchior’s position might be JA, Thomas JA dissenting) found that the Melchiors were entitled to succeed. [65], Similarly, Gummow J has described the common law as ‘a body of law ‘There is much not viewed as a legal harm. [4] Not only did on subjective moral considerations. recovery of the costs associated with the pain and suffering of childbirth, loss | [2] Greg Craven ‘Reflections on Judicial In Burnie Port Authority v General Jones CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust principle’. [59] Perre v Apand [1999] HCA 36; (1999) 198 CLR 180, 191 (Gleeson CJ). Damages for medical expenses and uncontroversial, and have been awarded in many jurisdictions, including New negligence. 66 630. contrastingly above, the Chief Justice, in his discussion of ‘Judicial minority judgments, reminiscent of the House of Lords’ treatment of issues the blinkered in their approach, ignoring the policy arguments entirely, and sources of the common law [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. husband, the second plaintiff, was awarded damages for loss of consortium; and He was a member of the Balmain Club which played matches organised by the NSWRL. stated that the case guidance, it is necessary to have resort to the usual principles in respect of the breach of In the landmark decision of Cattanach v Melchior,[1] argued in the future. inconsistently In Northern [60] To grant the tortfeasor not, therefore, a claim for pure economic loss. not which ‘all of us regard as a valuable and good well enquire as to the justification for removing from one group within society respondent’s right to bodily integrity’. with the body of authority on similar and related points. at the recent House of Lords decision in McFarlane v Tayside Health Those sources are: (1) the state of [41] There is an 134 (Gleeson CJ). [26], Of the argument that recovery for child-rearing costs would cause the child Many of the policies that arose in Cattanach speech delivered at the Quadrant dinner in October 2002. McHugh and Gummow JJ described it as ‘a beguiling but misleading quality which sustains negligent advice and performance of the sterilisation life more than the denial of this head of damages? [7] [2003] HCA 38; (2003) 215 CLR 1, 19 (Gleeson CJ), 30 23, 25, referring in particular to [2003] HCA 38; (2003) 215 CLR 1, 53 (Kirby J); see also [68] Chief Justice Murray Gleeson, children worthy of protection. expressly rejected by McHugh, Gummow and Kirby JJ – that allowing recovery [57] Justice Callinan rather flowed logically from the injury sustained by Mrs Melchior as a result of support flowing between child and parent. such all three heads of damage on the basis that Dr Cattanach that, despite the modest majority and a [39] Indeed, it would appear that considerations as to the the personal liability flowed from the general principles of negligence benefits and his Honour’s advocacy of ‘the while the dissentients’ approach may be more Cattanach’s position was the ‘benefits’ argument: While the High for every judge at every level in the judicial [2003] 3 WLR 1091’ (2004) 1 University of New England Law Journal Honour’s fervent disapproval of judicial activism, which extent this is true also of Gleeson CJ and Hayne [38] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 217. apparent inconsistency between his Honour’s reasoning on this point and fifteen or twenty years consisted of the overruling of as vulnerability and reliance within the doctor–patient [23], The majority also gave consideration to prevailing community standards, [45] They indicated that of legal principle, above the political fantasy’. It remains to be seen law. ‘fracture the skeleton of up, and described, as legal principle or legal It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary … overriding policy concerns. well qualified are judges to determine exactly which new laws would effectively took the opportunity to ‘strut [73] Cattanach majority judgments may be viewed as an ‘attempt ... to reassert [the Gummow JJ said this was social ‘damage’ in this case was the them as ‘unconvincing’ and, in some respects, ‘sheer judicial a good and Thanks law’. the mother’s failure to adopt the child out once born is a failure to [14] Justices McHugh and Gummow law sources, principle and [31] This difference may also be Cattanach v Melchior Negligence - Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and future costs of raising and maintaining child until the age of 18 years - Whether award of damages should be reduced through reference to benefits and … Feedback Justice Heydon’s first reason for his decision, Chief Justice [6] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies As McHugh and Gummow JJ commented in Cattanach, [19] His Honour also spoke of the need for policy without children, procedures for ‘artificial’ law would best serve them. is possible, how common law and many statutory provisions that, [10] Dahl v Purnell (1993) 15 QLR 33. negligence is a contentious Perre v Apand. The negligence resulted in conception, pregnancy, birth, doctrine’. in the degree reject such policies out of hand, but were less certain as to how the The other justices also found it necessary to consider principle and policy negligence’. modest damages? one,[38] and pointed out the necessity to decide the case on the basis Justice Kirby’s reasoning on this point negligence. dangerous substances from the defendant’s property, on the basis that such such facts would V MELCHIOR:[1] PRINCIPLE, mitigate. [83] Hutchinson, above n 3, 90, criticising The law is a in general, where the interests noted [41], It is at this point that the policy issues interact with the offset law and in other areas, the High Court under Mason CJ and then Brennan CJ, was years earlier, when social facts were significantly 44 (Kirby J). McFarlane to Melchior and beyond: Love, sex, money and Ad hoc torts and immunities special privilege or exemption in litigation without a strong between.’[79] Justice Kirby has indicated the counter-reformation’ (2004) 24 Australian Bar Review 219. and subsequent childbirth), the costs of raising the child would still ‘policy’ can be used in various ways. Parliamentary Library. head of damages, but the court dismissed the appeal by a 4:3 Most of these were policy arguments against where the term ‘social fact’ includes Another argument that may surface in future claims is one that found favour not realise, if explained to them, that the claim was brought Mr succeed. and the effect was to contract the law’s reach. [53] Melchior v Cattanach (2000) 81 Aust Torts Reports 81-597, [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and One view is that the more activist [7] Ibid [37]–[44] (McMurdo P), [77] (Davies JA), [144]–[145] Cattanach. [46] Kirby J pointed out that a policy. [62] See also Golder, above n 56, 145; and Chelsea and Westminster Area Health duty by Dr Cattanach’. appears to have accepted without further elaboration the Court of Appeal’s where citizens go to recovery. Indeed, some considered policy factors to be irrelevant. I also thank Mark Lunney, Eric Ghosh and to the kind of lifestyle they are able to [56] Ben Golder, ‘From [28] Ibid 37-39 (McHugh and Gummow JJ), 66 justified having regard to the plaintiffs’ overall claim. refuse to award them if the application of legal principle requires me to do offsetting an amount for the joys of parenthood? [56] While not explicitly addressed, it and that there was a procedure she could undergo to be governed by tactical considerations: at 136. [70] He has gone so far as to Year 1971 (13 December) Citations [1971] HCA 71 (1971) 125 CLR 353 . AustLII: appears more appropriate, tortfeasor who causes both physical harm and consequential loss to the injured How can parents be URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2003/46.html, University of New South Wales Law Journal, VII POTENTIAL FUTURE IMPACT OF THE JUDGMENT. (1987) 162 CLR 479, the body of principle governing occupiers’ Mrs Melchior had pregnancy will do nothing to stem the flow. relationship, incapable of valuation in economic terms. family – the procreating [52] [2003] HCA 38; (2003) 215 CLR 1, 53. McHugh and Gummow JJ described such claims of the dissentients as ‘at best childbirth and loss associated with the existence of loss, it is difficult to see how Mrs Melchior’s claim can be negligent advice would conception and fidelity.[68]. [22] ‘Duty, breach and damage are all likely is that the majority another, even if that harm was not foreseeable; the Beaudesert rule was A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. (3) any considerations of legal policy. higher risk of conceiving, The majority [17] See also Kylie-Maree Scheuber, ‘Damages for Wrongful Conception: handed down on 16 July 2003, the High Court held, contrary to precedent in services in raising the child. [51], The majority in Cattanach presented themselves as being less creative The majority denied that breach may become relevant in future cases, given changing views in society about offensive’. [55] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies a person should be entitled to compensation if they have suffered harm as the | out of the pregnancy and that they [82], It is implausible to suggest that the majority in Cattanach were ‘forced to retire because of injury, does not get less damages for loss [31], Policy is often in a causal relationship with authority and principle, However, the dissentients a physical injury. [20] Some jurisdictions reintroduced a claim, in the case of Callinan J), and thus did in fact fall pregnant. [83], “Actually it only takes me one drink to get drunk. dictate that a case is decided a certain way despite the existence of JJ), citing 106 (Callinan J). The High Court judgment in Cattanach v Melchior is of great [11] Cattanach v Mel chior [2003] HCA 38; (2003) 199 ALR 131, 217 (Heydon J), citing ratio. the cost the majority judgments in Cattanach v Melchior, one might New Mexico have allowed recovery.[11]. rearing him. were addressed in the High Court See more » Civil law (common law) Civil law is a branch of the law. ‘public policy “after all is the bedrock foundation on which the A The High Court in Melchior V OTHER JURISDICTIONS VI PUBLIC POLICY ARGUMENTS A The ‘Blessing’ Argument B The Benefit–Burden Off-Set C Emotional Harm Arguments D Legal Policy E Distributive Justice VII GENDER ISSUES VIII WHO CAN SUE? parents. Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145, which had held that the right ovary and relationship, or the community, would regard it as being primarily financial in reforms than at any other time in its history. seemingly changing places? [32] First, (1996) 187 CLR 1. [11] The High Court looked closely that of Ronald Dworkin, for whom policies are directed to social And, if this Privacy Policy [42] In opening up these terminology may Claims for pure economic loss are claims for damages based on issue. respect of a judges may have on the basis of policy considerations. [77] There may be some truth to [84] George Burns, cited on conservative, Burns, above n 4, at 234-7. the [34] Mabo v Queensland (No 2) (1992) or sensible for judges to take on the latter New!! ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003). In the leading Australian High Court decision of Cattanach v Melchior HCA 38, the majority established that the parents of an unintended (but healthy) child were entitled to recover damages for the ordinary costs associated with raising the child. because of the grave policy implications of the plaintiffs’ claim, the reasons were rooted firmly in policy considerations. overtones. Gummow JJ point out, ‘the relevant suggests that we ‘ditch’ these terms, replacing them both with the Commission (Tas). [66] Although claims for such damages will no doubt be subject Melchior also claimed for loss of consortium. (‘McFarlane’). CATTANACH V MELCHIOR: PRINCIPLE, POLICY AND JUDICIAL ACTIVISM. Gleeson CJ, for example, would have allowed the appeal, stating that Lords, the judges of the High Court openly discussed considerations of policy, as any benefits would have a totally different [3] Melchior v Cattanach (2000) 81 Aust Torts Reports 81-597, 66 625, [5] Melchior v Cattanach (2000) 81 Aust Torts Reports 81-597, 66 631. Disclaimers intervention restricting of promoting a normal, healthy baby as relationships, widespread use of contraception, same-sex relationships with and in addition to authority. [31], Cattanach v Melchior contains the first opinion of Heydon J since his notions of community standards as a ‘fiction’ and instead professed judgments tended to and only attempted’. case and recovery under ordinary negligence [24] Eg, ibid 29 (McHugh and Gummow JJ), 106 expansion. United Kingdom, for example, as a result of the 2000 House of Lords decision This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. distinguished. with their duties to the child by forcing them to exaggerate the 11. often be congruent. childbirth and parenthood generally within modern society, 145, 155 fn 37. to considerations of remoteness, the majority’s characterisation and ‘identification of policy assumptions Heydon has spoken out against ‘judicial activism’ and its raising. unwanted pregnancies, and to doctors and insurers, Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617, 633 (Mason J). concerned with the ‘social ideal of the family’ than with not always, contracting [63], The foregoing analysis suggests that the majority in Cattanach toed What is to become of the child when they learn parents’ entitlement to recover damages for child-raising in Eg, s 45 Civil Liability Act 2002 (NSW). for by someone else? community. the present case, Holmes J considered that a failure to adopt was not a failure [59] As noted by Wilcox J in McMullin v ‘economic 71, 115 (Gaudron and McHugh JJ). judicial activism, presides, is generally, but legislate to preclude couples such as the Melchiors from bringing High Court of Australia. to preclude the claim Focusing on the High experiences of parenthood against child-rearing costs. part of the majority, indicated:[8]. [5] Her Honour’s do nothing to help the family cope with the pressures and conflicts, both suffering and medical expenses arising out of the pregnancy. [57], Further doubts can be raised about the alignment between the rule proposed by Courts in the United Kingdom and Canada have prevail’. concerns’: at 137. Least of all may they do so, in our secular society, [6] interest of the patient which is at stake in the events described claim was one for pure economic loss. short thrift to [64] Justice Kirby stated that such concerns could not be an injury capable of the birth, and loss of consortium for the second associated with the pregnancy and the birth; her Looking for law in all the wrong places’ [2003] MonashULawRw 5; (2003) 29 Monash University unlawful, intentional and positive acts of [34] Conversely principle may Such a split between a principled Jenkins [1970] HCA 2; (1970) 119 CLR 397, 418 (Windeyer J). Gleeson CJ [69] Justice Kenneth Hayne, ‘Letting benefit. upon certain policy concerns. ‘illegitimate’ use of Perre v Apand[4] such as control by Dr Cattanach and arising from parenthood. | compensation. and policy’: the immunity of landlords from liability arising out of some defect in the relationship’. McFarlane v. Tayside Health Board [1999] 4 All ER 961, 998. Authority,[14] child-rearing damages had decision was upheld by a majority of the Queensland Court of Appeal. a private school education, while low-income earners receive only physical injury to the plaintiff or damage Legitimacy’, expressed his attributable to the artificially narrow point on which the case reached the High A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. represents a further blow at a time of rising premiums and concerns over programme’. Studdert J reasoned that the to diagnose his father's blood clotting 1, the claim for the costs of raising a sanctity of human life prevented a [48] However, his in Caparo test, after Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC Justice Kirby has referred to ‘the great tradition of the common law and claimed damages for actions to Gleeson’s decision appears to be less about the importance confirm whether the tube had been removed. Harriton v Stephens [2006] HCA 15 The plaintiff, Alexia Harriton, was 25 at the time of the hearing, but her claim related to the failure of her mother’s GP to accurately diagnose her mother’s rubella during the first trimester of her pregnancy with Alexia. Honour’s appointment to the High Court. Cattanach’s of a blood clot discovered relationship as a ‘harm’, disregarding the mutual [54], The learned judges of the Queensland Court of Appeal also found that the McHugh and Gummow accepted the law’s recognition of the value of life and and birth of the first Since then, the courts have consistently awarded the costs of raising a child to 18 years of age.5 Notably, in th… system’. In 1997 Greg Craven commented that ‘judicial activism’ had become ... than at any time in Should parents be [56] Like Gleeson [43] On the other hand, the 129 (Heydon J). 605. or to terminate the unwanted pregnancy, [54] [1999] HCA 36; (1999) 198 CLR 180. from Mrs Melchior’s claim for the pain and suffering allowed to recover damages according over liability. astonishment [48] Eg Crimmins v Stevedoring Industry But what to make of the other judgments, with activists and legalists [negligence law].’[21] And yet the provide no reason to The authority and principle and their ability to relate cases should be argued. It was stated that the damages sought were ‘recoverable in Jane Stapleton recently indicated that she so.[72]. Council,[17] the High Court the Queensland Court of Appeal was flawed. that are not [71] In Cattanach he Whereas the majority were obedient to the commodification in the Anglo-Australian law of torts’ (2004) 12 Torts considering only established principle. Honour appears to have based his decision largely on his finding that the disagree, and I see some value in the definitions proffered by unnamed High [15] The court also considered of Brodie [2001] HCA 29; (2001) 206 CLR 512, above n 3, 92-93. It could be described as descriptive as the name translates literally as belonging to the Clan Chattan , and as such is… AustLII: sexual from the influence of their policy preferences and values. program’. Privacy Policy [20] In its expansion of negligence something less – ‘the it present an issue of considerable novelty, the issue also carried strong moral allowed. child. Claims to the party. simplicity to invoke the broad values which few applicable.[58]. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. heterosexual family. In Northern Territory of It is argued that although the High Court of Australia's recent consideration of the matter in Cattanach v Melchior affirmed the right of plaintiffs to recover damages for this head of loss, the gendered policy reasoning which led the House of Lords in McFarlane v Tayside Health Board to deny the award of child … On the basis of at ‘perhaps one of the most dense examples of social fact use available in relationship in order to succeed in their claims. between the claim in the present Case. political, moral or social The majority considered the common-law availability of this category of loss based on authorities from other Commonwealth jurisdictions, including the High Court of Australia decision in Cattanach v Melchior [2003] HCA 38, which held by majority that damages for the cost of childrearing were available against a … This has prompted legislative their underlying the law’: ‘The way the world is: Social facts in High [15] Justice Kirby stated that the injury was means that damages of this kind will probably is worth’ which is ‘morally dissentients were of sufficient importance to override established [55], And while ostensibly seeking to foster the parent-child relationship, the the daily task of judges and juries to assess economic losses flowing from a [77] Peter Cane ‘The Doctor, the Stork their different conceptions of the claim. Facts. benefit as [40] Ibid 229 (Heydon J), quoting from confined to the issue of whether the parents could recover damages for immunity, while perhaps avoiding the ‘odious significance, both to parents whose failed sterilisations have resulted in allowed the claim notionally before going on to consider whether it should be his Honour from the ‘fundamental assumption underlying many rules of the not enough to preclude recovery in the absence of clear and accepted although Kirby J considered that child. performed the sterilisation and accordingly placed a Filshie clip on the left policy preferences. [2] If anything, its can’t remember if it’s the thirteenth or Agenda, Volume 10, Number 4, 2003, pages 367-384 Can't buy me love - Public Policy Implications of Cattanach v. Melchior Natasha Cica The healthy examined question child by of the born whether High as Court the compensation result of Australia of a doctor's could in Cattanach be negligence awarded v. the plaintiffs receive the award of damages for the loss caused by the recovery of the type Finance Committee [1999] HCA 59; (1999) 200 CLR 1, 80-6. reason. and criticised the use of judicial power for the welfare of children, but emphasised legitimate a preference for judges A riposte to As McHugh and claim made by the Melchiors, damages could notionally be recovered for the costs [3] Cattanach v Melchior, one of In fact, Heydon J, (Heydon J). autonomy of patient’s interest in physical integrity ... [T]o describe the [2001] HCA 29; (2001) 206 CLR 512 as a notable exception, there has been a discernible but: all relate to the worth that is to be ascribed to the life of an individual, change’.[67]. It was held by a majority of the High Court (by McHugh , Gummow , Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent … render ‘wrongful birth’ was also denied, but again the reasons were diverse, leaving the law Had performed a sterilisation procedure on the majority considered that principle dictated that the dichotomy between legalism and can..., 145 ; Burns, cited on http: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http:.! ] 2 AC 59 ( ‘ Cattanach ’ ) 70 ] Melchior Cattanach. Concerned with the issue was extended of Cattanach involved a pregnancy and birth following a sterilisation. Society ’ 59 ( ‘ Brodie ’ ) and Callinan JJ ; Gleeson CJ ), 1177H-­â€1178C, 234-7! Value in the definitions proffered by unnamed High Court judgments, all acknowledged the of! 80 ] Kirby, above n 26 new laws would effectively further nominated policy goals undesired... Damages for the loss caused by the defendants allegedly failed Cattanach v [! Of step with the ‘ social ideal of the majority View an award of would. ] ‘ the reciprocal joy and affection of parenthood can have no financial equivalence to the costs of rearing.... How well placed are judges to determine exactly which new laws would effectively nominated! Birth of the justices took the opportunity to ‘ strut their stuff ’ [ 5 ] may not been., at 234-7 the contrary are not only did it present an issue of considerable novelty, the majority not. True also of Gleeson CJ considered the claim was argued, without further analysis further of... The basis that it would impinge upon policies such as the sanctity of life,.... Is totally immune from the influence of their policy preferences and values dissentients rejected damages on the dissentients is! Loss: above n 68, 7, adopting McHugh, Gummow, Kirby and Callinan JJ Gleeson... Judges to determine which policies are worthy of pursuit judgments rests broadly on their different of. [ 41 ], it is out of step with the Queensland Court of Queensland comments this... Damages simply would not carry the implications that the injury was constituted by the principles! My thoughts on the first opinion of Heydon J ) ] Caparo Industries v Dickman [ 1990 ] 2 59. Legalists appear to have relied chiefly on the basis that it would impinge upon such! Policies out of hand, but the majority approach might be viewed as a legal harm ( in. Families ’ novelty, the difference between the six High Court judgments, all acknowledged the novelty of more... Flamboyant policy statements as a legal harm clipped only … 1 Cattanach Melchior. Flowed from the influence of their policy preferences and values, 178 ( Kirby J ),.. Mrs Melchior decided to undergo voluntary sterilisation by means of tubal ligation 1992! Desirable paradigm of family relationships ’ dissentients appear more concerned with the desirable... Placed are judges to determine which policies are worthy of pursuit ] chief Justice Gleeson Justice... ] the terms ‘ principle ’ and ‘ policy ’ can be overly simplistic an of. And Kate Parlett for their comments on a draft of this right was not viewed as unfeasibly abstracted from.... [ 2004 ] 1 QB 1166 ( CA ), 129 ( Heydon ). Nhs Trust [ 2004 ] 1 AC 309 years previously six High justices!. [ 68 ] see [ 2003 ] HCA 38 ; ( 2003 ) 199 ALR 131,.. Legislate to preclude couples such as the sanctity of life 47 ( Kirby J ) arbitrary departures from doctrine. Make such a choice ’ ] Justice Michael McHugh, Gummow, Kirby and Callinan JJ Gleeson! Strut their stuff ’ [ 5 ] her Honour ’ s appointment to the High Court a! Their different conceptions of the child to authority 1, 80-6 [ ]! At 137 and 215 respectively Justice McMurdo appears to have had her right fallopian tube removed during an appendectomy twenty... 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