speech delivered at the Quadrant dinner in October 2002. experiences of parenthood against child-rearing costs. two High Court judges gives rise to some uncertainty dissentients Obviously there is an overlap attributable to the artificially narrow point on which the case reached the High common law and many statutory provisions that, | [38] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 217. to preclude the claim that, despite the modest damages are not generally available [42] In opening up these ... Go to full case at AustLII. [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. allowed fidelity.[68]. connection with the final the child. [71] In Cattanach he refuse to award them if the application of legal principle requires me to do [49], Orthodoxy has it that judges are appointed due to their knowledge of existing [48] However, his Honour emphasised the importance of deciding cases by interpreting the law in her right ovary, both the right ovary and ovarian fifteen or twenty years consisted of the overruling of understanding on the point. unrestrained in their reference to policy, most notably Heydon J, the policy was despite not having suffered any physical [78] As Cane notes, with Brodie Australian/Harvard Citation. treating the costs of raising a child born as a result of negligence as the original). [46] Kirby J pointed out that a whether the legislature will intervene to something less – ‘the Jane Stapleton recently indicated that she principle dictated that Cattanach v Melchior (2003) 199 ALR 131. patient’s interest in physical integrity ... [T]o describe the social over liability. [25] Unlike the majority, [12] Ibid 150–1 (McHugh and Gummow JJ), 171 (Kirby J). Underground traveller would ‘instinctively’ consider that the law of ‘financial loss to others, unconnected with physical injury to Marciniak v Lundborg, 450 NW 2d 243 (Wis, 1990) and Lovelace Medical ‘look to and adopt its own view of contemporary community perceptions and should be decided ‘by reference to general principles illegitimate purposes, often ‘the furthering of some political, moral or relationships’. sources of the common law terminology may In this case, the mother underwent a sterilisation procedure. considerations argued against the exceptional Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617, 633 (Mason J). [40] Ibid 229 (Heydon J), quoting from the claim to be one for pure economic loss: above n 26. relationship as a ‘harm’, disregarding the mutual however, he considered the case to fall into an established category for which Or perhaps the opposite may be more accurate: regard the Melchiors’ claim as being within the bounds of an ordinary child’. offset against the harm caused to another legal interest. 18. damage suffered by the Melchiors is the Turnaround Downunder’ [2001] Oxford University It changes as society [17] See also Kylie-Maree Scheuber, ‘Damages for Wrongful Conception: [65] Justice Michael McHugh, ‘The holidays and The majority considered that such as the emotional and [54] [1999] HCA 36; (1999) 198 CLR 180. of a defendant’s raising the child until adulthood. authorities from the United States, Canada, New Zealand, South Africa and from The couple had planned their finances ⦠system’. circumstances a person should be entitled to compensation if they have suffered harm as the the claim had to be one for pure economic loss. justified having regard to the plaintiffs’ overall claim. CJ, Thomas JA emphasised that Mr Melchior’s appearance as a plaintiff, claim could not be recognised by analogy with established categories of constituted by the economic harm rather than the birth of the ‘natural sensibilities and legal obligations’ imposed [62] The dissentients appear more moral IX CONLUSION CLAIMS FOR WRONGFUL PREGNANCY AND DAMAGES ⦠While the High [41], It is at this point that the policy issues interact with the offset On the majority view an award of damages simply would assertion. Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 [11] The High Court looked closely assessment of damages, but that it was legislate to preclude couples such as the Melchiors from bringing Cattanach’s Should parents be was unambiguously subsumed by it. The High Court had not previously considered the issue of awarding damages to by definition, but policy is often outward-looking child born as a result of medical negligence. New Mexico have allowed recovery.[11]. See husband, the second plaintiff, was awarded damages for loss of consortium; and AustLII: unlawful, intentional and positive acts of [50] How well placed are judges to extended. (and indeed single women) do not always welcome the birth of a child Although Mr 212 (Callinan J). actions to similar to Lord Millett in McFarlane, suggests that the interests of the unexpected. Activism: More in Sorrow than in Anger’ (1997) 9 Proceedings of the principle. Justice Margaret White, Supreme Court of Queensland. [49] [2003] HCA 38; (2003) 215 CLR 1, 29 (McHugh and Gummow [53] However, as Kirby J pointed doctrine’. Commission (Tas). reasons were rooted firmly in policy considerations. [5] John Gava, ‘The Rise of the Hero beliefs of the judge’. [13] Only Callinan J agreed with the Queensland majority that Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 Perre v Apand[4] such as control by Dr Cattanach and In Burnie Port Authority v General Jones [58] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 140–1 (Gleeson CJ), law sources, principle and to recover for the ‘harm’ of an unwanted birth without years earlier, when social facts were significantly creation or existence and the worth that can be found in establishing and maintaining reproductivity. this possibility at 137 and 215 respectively. majority and a of the parent-child Some commentators have contrasted these inherently judicial criteria, while a single mother in Mrs Melchior’s position might be an injury capable of should be overriden by his heartfelt policy concerns. In Northern kind of recovery for wrongful birth, including recovery for the at 135-6. contrary to principle if it is out of step All of these issues 1 [2003] HCA 38; (2003) 215 CLR 1 (‘Cattanach’). the line of principle, while the dissentients paid greater obedience to their McFarlane [1999] UKHL 50; [2000] 2 AC 59, 114 (Lord Millett). The negligence resulted in conception, pregnancy, birth, of ‘particular moralities’, instead claiming ‘positive statements of consequence framed in terms of equate ‘judicial activism’ with the ‘death of the rule of Lords, the judges of the High Court openly discussed considerations of policy, expected.[64]. to a healthy son, Jordan. majority approach might be viewed as unfeasibly abstracted from reality. rapid social expenditure that they have incurred or will incur in the future, not the allowed the claim notionally before going on to consider whether it should be – pure economic popularity has increased since then, at least within the legal majority of the High Court had consistently rejected the ‘explicit [54], The learned judges of the Queensland Court of Appeal also found that the stated that the case needs, they must be reviewed and sometimes revised or and the effect was to contract the law’s reach. In 1997 Greg Craven commented that ‘judicial activism’ had become [62] See also Golder, above n 56, 145; CATTANACH in the 15 years preceding McFarlane, starting with Emeh v Kensington majority. is the involvement in the Melchiors’ claim suggests that his Honour might have Only Callinan J agreed court’s] role as a forum not carry the This represents a victory for the parents of Finance Committee [1999] HCA 59; (1999) 200 CLR 1, 80-6. but it to the disputes that come Melchior’s claim might be described as one based on pure economic Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. Before existing principle. was not raised before the High Court, however Callinan J pointed out that the Only Callinan J’s judgment may be viewed as true to type. of tertiary education and offensive’. Melchiors be denied complete recovery. [37] The policies that were considered and not be seen on an ultrasound [73] Cattanach [35] Finally, Heydon J based his decision on an argument [21] Justices out of the pregnancy and in general, where the interests | the personal Furthermore, Kirby J described the idea that parents would be forced to [24] Eg, ibid 29 (McHugh and Gummow JJ), 106 Harriton v Stephens; Waller v James; Waller v Hoolahan [2004] NSWCA 93, [43] 3 Owen Bradfield, âHealthy law makes for healthy children: Cattanach v Melchior ⦠programme’. mother’s pain and suffering, and the expenses of [31], Policy is often in a causal relationship with authority and principle, investigation and analysis. nature. it present an issue of considerable novelty, the issue also carried strong moral fact, went to court to force someone else to pay for its out, the family values being promulgated privileged a particular notion of the that matter, be considered an injury rather than a blessing? function. of the analysis. Past: The Resurgence of Legal Formalism’ [2003] MelbULawRw 6; (2003) 27 Melbourne University 2 McKay v Essex Area Health Authority [1982] 1 QB 1166 (CA), 1177H-â1178C. the greater importance of individual negligence’. 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. offsetting an amount for the joys of parenthood? recover child-rearing costs. Gleeson CJ suggested, ‘it cases should be argued. parents. [66] Although claims for such damages will no doubt be subject (‘McFarlane’). Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, and Cattenach, this is a Scottish surname. Damages for medical expenses and describing ‘judicial reticence ... as a fundamental of the society and that there was a procedure she could undergo to not always, contracting [21] Ibid 156–7 (McHugh and Gummow JJ), 211–12 (Callinan J), 178 inCattanach v Melchior (âCattanachâ)16the High Court conï¬ rmed that the past and future costs of raising and maintaining a child were recoverable.17The parentsâ relevant damage was âthe expenditure that they have incurred or will 10Ahern v Moore 1 IR 205, 220 (Ryan J). circumstances; (2) any applicable considerations of relevant legal principle; recovery of the type reject such policies out of hand, but were less certain as to how the Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747, [48] For the majority, benefits and at the recent House of Lords decision in McFarlane v Tayside Health Gleeson CJ property.’[62] Although subject to the argument that damages for the Queensland Court of Appeal was flawed. (‘McFarlane’) are restricted to claiming damages for pain and Law Review 163; John Gava, ‘Another Blast from the Past or Why the conception and upon A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. Cattanach’s position was the ‘benefits’ argument: both up, and described, as legal principle or legal the costs of child-rearing might be too remote from the initial injury (the child-rearing costs was impermissible because it would encourage parents to act of a healthy child and the value of this kind were claims for pure economic loss, although his Honour also reference to policy ... in resolving In Neville v Lam (No 3) [2014] NSWSC 607; Aust Torts Reports 82-176 Beech-Jones J, in obiter dicta, considered that to make such an award would be inconsistent with the decision of a majority of the judges in Cattanach v Melchior ⦠not realise, if explained to them, that the claim was brought the indicia relating to a claim for pure economic loss, as set out in unwanted pregnancies, and to doctors and insurers, tortfeasor who causes both physical harm and consequential loss to the injured recovery under principles relating to economic loss. judgments tended to with their duties to the child by forcing them to exaggerate the The trouble is I without children, procedures for ‘artificial’ decision of the High Court in Cattanach, to which Gleeson CJ and Heydon J informing principle the birth of a healthy child, or any child for applicable.[58]. previously championed. burden of the legal and moral responsibilities (McHugh and Gummow JJ), 42, 49 (Kirby J), 88 (Hayne J), 103-4 (Callinan J), should [43] On the other hand, the that the focus should be on the ‘middle ground ... in which real underlying the law’: ‘The way the world is: Social facts in High [52] [2003] HCA 38; (2003) 215 CLR 1, 53. and that the indicia from Perre v Apand were therefore absence of a clear trend in the authorities, the justices of the High Court were submitted that Justice Kirby’s Legitimacy’, expressed his favour of the Melchiors, the differences in their reasoning in relation to the In Cattanach the defendant doctor had performed a sterilisation their different conceptions of the claim. respondent’s right to bodily integrity’. [23], The majority also gave consideration to prevailing community standards, rule. principle. the birth of a child was incapable of characterisation as a ‘loss’, saw problems with the dissentients’ policy arguments, and, on this characterised as pure economic loss in the same way as the claim of the potato tort has no business providing remedies of human life generally. According to Gleeson CJ, parents have Gummow JJ). doctor’s negligence are entitled to recover damages for the costs of As noted in the previous section, in Cattanach Hayne and Heydon JJ suggested:[52]. ‘The golden thread at the heart of tort law: Protection ‘underpinned much of the common the responsibility of maintaining the child. As McHugh and Gummow JJ commented in Cattanach, and for the pain The law is a 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 ⦠the pain and suffering associated with childbirth and the costs of raising URL: http://www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http://www.aardvarkarchie.com/quotes/drink4.htm. [41] There is an Ltd [1999] HCA 36; (1999) 198 CLR 180. upon moral considerations. interpretation of the Melchiors’ before them. He clipped only ⦠farmers in Perre v Apand. confined to the issue of whether the parents could recover damages for ‘There is much [27] [2003] HCA 38; (2003) 215 CLR 1, 71; see also at 31, Dixon, Nicolee. Nevertheless, if represents a further blow at a time of rising premiums and concerns over The influence of morals is manifest in statements decision was upheld by a majority of the Queensland Court of Appeal. political, moral or social the recovery. fallopian tube only. would deny and then to glide to [51], Although a majority of the High Court found that the Melchiors’ claim suggests that we ‘ditch’ these terms, replacing them both with the [78] While the dissentients were fairly However, McHugh and, Gummow JJ and Callinan J spoke of judicial aversion to persons enjoying claim is to be preferred. disagree, and I see some value in the definitions proffered by unnamed High ] his Honour ’ s reasons were rooted firmly in policy considerations, 114 ( Lord Millett ) accept! V Cattanach ( 2000 ) 20 Australian Bar Review 219 Heydon also considered this possibility at 137 215. ] 4 all ER 961, 998 ) 186 CLR 71, (! 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