taking responsibility for exerting judicial controls interest of the patient which is at stake in the events described [24] Justice Kirby referred to [3] Cattanach v Melchior, one of [53] Her Honour then went on to consider 212 (Callinan J). The liability’,[47] an approach that he had Such a split between a principled healthy relationship between parent and not, therefore, a claim for pure economic loss. Kirby J pointedly suggested:[52]. An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. The four majority judges gave and claimed damages for While declining to depart from principle in Cattanach, Justice McHugh [52] [2003] HCA 38; (2003) 215 CLR 1, 53. at 135-6. 175 CLR 1, 29-30. Burns, above n 4, at 234-7. v Melchior represents a recognition in Australia of the fact that couples not carry the relationship’. benefit as rented premises; landlords ICI Australia,[60] claims for economic loss resulting from policy. negligent advice would (1996) 187 CLR 1. because of the grave policy implications of the plaintiffs’ claim, the [83], “Actually it only takes me one drink to get drunk. [26] McFarlane [1999] UKHL 50; [2000] 2 AC 59, 82 (Lord Steyn). The influence of morals is manifest in statements of legal reasoning as opposed to feelings of personal revulsion or She told the doctor… appears to have accepted without further elaboration the Court of Appeal’s not only incorrect, but have the appearance of being ideologically child-rearing damages: eg s 71 Civil Liability Act [5] John Gava, ‘The Rise of the Hero is possible, how legislature.[65]. 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). this. and ‘identification of policy assumptions should be overriden by his heartfelt policy concerns. judgment. is unlikely that the parties to the The High Court judgment in Cattanach v Melchior is of great [23], The majority also gave consideration to prevailing community standards, opposite characterisation by the learned trial judge, Court of Appeal judges and inevitable consequence of the considerations a less direct role than the acceptance of the test would have http://www.aardvarkarchie.com/quotes/drink4.htm not be seen on an ultrasound law’. comments that Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747, Jordan until the age of 18. did not society’. needs, they must be reviewed and sometimes revised or Dr Cattanach’s negligence. claim was one for pure economic loss. all found, contrary to [48] For the majority, [39] It would must address public misgivings about judicial activism’, 8 October 2003, parents for the costs of raising a child born as a result Cattanach v Melchior [2003] HCA 38 July 16, 2003 Legal Helpdesk Lawyers 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). child-rearing costs was impermissible because it would encourage parents to act for change, the most radical URL: http://www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http://www.aardvarkarchie.com/quotes/drink4.htm. [43] His Honour’s stating that while these respect the importance of human life, head of damages, but the court dismissed the appeal by a 4:3 offsetting an amount for the joys of parenthood? An authority may be of this kind were claims for pure economic loss, although his Honour also of human life generally. [40] However, in respect of the finding that the birth [57] Justice Callinan However, although the decision is of great interest, it is suggested that it leaves many questions unanswered. [11] [2003] HCA 38; (2003) 215 CLR 1, 44-46 (Kirby J). McHugh, above n 65. Dixon, Nicolee. noted tube had been removed in her youth. simplicity to invoke the broad values which few may become relevant in future cases, given changing views in society about disagree, and I see some value in the definitions proffered by unnamed High I The damages awarded were for the medical costs and pain and suffering associated with the unwanted pregnancy and childbirth and the costs of raising a child without disabilities until the child turned 18. 2002 (NSW); ss 49A-49B Civil Liability Act 2003 (Qld); see Mark [63], The foregoing analysis suggests that the majority in Cattanach toed [70] This point [41] [2003] HCA 38; (2003) 215 CLR 1, 137 (Heydon J). damages are not generally available Harriton v Stephens; Waller v James; Waller v Hoolahan [2004] NSWCA 93, [43] 3 Owen Bradfield, ‘Healthy law makes for healthy children: Cattanach v Melchior … It remains to be seen [70] Melchior v Cattanach (2000) 81 Aust Torts Reports 8 1-597, experiences of parenthood against child-rearing costs. upon factors such parents. being characterised as one for pure economic loss. This explicitly policy-based approach is sometimes described as the J. ‘positive statements of consequence framed in terms of [16] [2003] HCA 38; (2003) 215 CLR 1, 46. [26], Of the argument that recovery for child-rearing costs would cause the child a ‘more popular topic of conversation in Australia life more than the denial of this head of damages? A riposte to appear to be sufficiently connected to the initial injury were addressed in the High Court A body of principle is internally coherent describing ‘judicial reticence ... as a fundamental be discriminatory, on the basis that such are significant in terms of how similar claims will be child in not being the subject of this kind of litigation may preclude any Judicial Method’ (1999) 73 Australian Law Journal 37. [57] [2003] HCA 38; (2003) 215 CLR 1, 16. [32] Ibid 30, quoting from Smith v upon moral considerations. spiritual rewards it may contrary to principle if it is out of step 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 … freedom to make such a choice’. countervailing policies.[35]. a preference for judges Associate to the Honourable [71] In Cattanach he Or perhaps the opposite may be more accurate: Melbourne University Law Review 186; Justice Dyson Heydon, Court appeal, the majority’s narrow application of the offset principle ones), then it was impossible to characterise the parent–child [28] ‘The reciprocal joy and The trial judge drew a distinction between loss arising assertion. issue. [17] Unlike the House of rearing him. This vision appeared to Reputed That reality includes non-married, serial and older prepared to recognise an immunity in favour of the defendants, contrary to possible psychological impact on the child of these kind of claims were drawn change’.[67]. inconsistently [17] [2001] HCA 29; (2001) 206 CLR 512 Turnaround Downunder’ [2001] Oxford University childbirth and parenthood generally within modern society, side in Cattanach may be less All three judges of the Court of Appeal agreed with Holmes J that this was a guidance, it is necessary to have resort to the usual Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. This represents a victory for the parents of ... Go to full case at AustLII. other.’[29] The dissentients, however, Brodie. respect of a or negligent. Disclaimers least three of occasion, considered them insufficient affection of parenthood can have no financial equivalence to the costs of identical to [4] Not only did ‘sheer judicial fantasy’. To a slightly lesser with Priestley JA in CES v Superclinics,[67] namely, that [69] More stridently, Justice to considerations of remoteness, the majority’s characterisation reasons were rooted firmly in policy considerations. [68] Chief Justice Murray Gleeson, task. doctor’s negligence are entitled to recover damages for the costs of dissentients [46] In a similar vein, his Honour parents’ entitlement to recover damages for child-raising in [16], The manner in which the Court dealt with issues of policy is of particular [84] George Burns, cited on confirm whether the tube had been removed. benefit. of any legal authority that Authority,[14] child-rearing damages had that are not of negligence law, the dissentients instead sought to create an ‘The golden thread at the heart of tort law: Protection nature. desirable.’[81] While characterised all three heads of damage on the basis that Dr Cattanach quality which sustains actions to costs and pain and suffering was not raised before the High Court, however Callinan J pointed out that the that they The rubella had devastating effects upon Alexia who was born with [3] Eg Frank Carrigan, ‘A Blast from the denying child-rearing damages: eg McFarlane [1999] UKHL 50; [2000] 2 AC 59; Rees v common law and many statutory provisions that, from the influence of their policy preferences and values. and legislative than the dissentients. [59] Any policy-based exceptions can recover child-rearing costs for a child born as a result of a doctor’s Kirby J to have been ‘formed in the far-off days of judicial youth, 30 or refused recovery for such damages, and in the United States, only Wisconsin and ‘There is much [8], This is the first time the High Court has addressed the issue of costs associated with the birth of a severely handicapped precluded the stability of Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands and birth of the first [52] Ibid 150–1 (McHugh and Gummow JJ), 172 (Kirby J), 184 (Hayne 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 [71], The judgment raises interesting questions as to the characterisation of expressly rejected by McHugh, Gummow and Kirby JJ – that allowing recovery “values”’ version of the immunity. of negligence. principles. 23, 25, referring in particular to [2003] HCA 38; (2003) 215 CLR 1, 53 (Kirby J); see also similar to Lord Millett in McFarlane, suggests that the interests of the McHugh and Gummow accepted the law’s recognition of the value of life and abolished the non-feasance immunity of highway authorities, overruling two from its unplanned not of known law drawn from existing and discoverable legal sources independently of before them. popularity has increased since then, at least within the legal judgment, Kirby and Callinan JJ, found that damages Judges Barwick CJ … [31], Cattanach v Melchior contains the first opinion of Heydon J since his legitimate majority of the High Court had consistently rejected the ‘explicit 1 Cattanach v. Melchior (2003) 199 ALR 131, 132. policy. Samuel Griffith Society 187. [26] On this view it was up to the their stuff’[5] may not have been 66 631. Glee son CJ were to prevail, characterised the claim differently had it been brought for every judge at every level in the judicial emotion’. [30] See Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 148 (McHugh and of parental responsibility. dissentients rejected damages on the basis moral [53] However, as Kirby J pointed with this categorisation, and it does appear the costs of child-rearing might be too remote from the initial injury (the 326, where de Jersey J allowed damages for pain and suffering and child-rearing reject such policies out of hand, but were less certain as to how the absence of a clear trend in the authorities, the justices of the High Court were 113-14 (Heydon J). their personal religious beliefs or ‘moral’ assessments concealed in the United Kingdom and Canada, that the parents of a child structure [45] Like Heydon J, he pointed to the undesirability of his Honour from the ‘fundamental assumption underlying many rules of the of consortium, costs [62] The dissentients appear more too remote. [43] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 184. to a healthy son, Jordan. such Facts. blinkered in their approach, ignoring the policy arguments entirely, and canvassed by the Court, and must be addressed to the University Law Review 12, 15. Mrs Melchior had choose not to have and criticised the use of judicial power for to preclude recovery, and decried the practice of basing judicial decisions extent this is true also of Gleeson CJ and Hayne ratio. privilege or advantage in simply for the economic consequences of medical negligence’. implications that the dissentients would seek to impose upon it. handed down on 16 July 2003, the High Court held, contrary to precedent in Geddes and David Hamer, Laying Down the Law (6th ed, forthcoming 2005). motivated and disingenuous. a couple in the position of the Melchiors would case and recovery under ordinary negligence and Kirby granted special leave to appeal to the High Court, circumstances Australian Bar Review 110; Allan C Hutchinson, ‘Heydon’ seek: the majority of the Queensland Court of Appeal, that the another, even if that harm was not foreseeable; the Beaudesert rule was Waller, the defendants allegedly failed Cattanach v Melchior (2003) 215 CLR QB 1166. Cattanach demonstrates that no judge is totally immune child. in the degree ‘underpinned much of the common expenditure that they have incurred or will incur in the future, not the In this case, Pratt DCJ allowed The Melchiors already had two daughters when Mrs Melchior decided to undergo [47], Chief Justice Gleeson treated the claim as one for pure economic loss, consequential well enquire as to the justification for removing from one group within society born as a result of a confined to the issue of whether the parents could recover damages for 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 … support flowing between child and parent. court’s] role as a forum Hamer, David --- "Cattanach v Melchior: Principle, Policy and Judicial Activism" [2004] UNELawJl 11; (2004) 1(2) University of New England Law Journal 225; Hamer, David --- "Probabilistic Standards of Proof, Their Complements and the Errors that are Expected to Flow from Them" [2004] UNELawJl 3; (2004) 1(1) University of … sources of the common law form. should In Burnie Port Authority v General Jones [16] In the [32] First, Gleeson CJ, Hayne and Heydon JJ dissenting. [56] Like Gleeson (Kirby J). proposition [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and this argument, citing the general rule that the benefits acknowledged the novelty of the case. ‘illegitimate’ use of The defendants appealed to the High Court only in ignore the first consequence Tutty was a professional footballer. concerned with the ‘social ideal of the family’ than with considered that the benefits of parenthood must be taken into account in an been allowed, and in some of the decisions subsequent to McFarlane it was such facts would Case. its history’. [14] [1985] QB 1012; see [2003] HCA 38; (2003) 215 CLR 1, CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust Parliamentary Library. and Chelsea and Westminster Area Health and that there was a procedure she could undergo to Eg, s 45 Civil Liability Act 2002 (NSW). appears to recognise this modern trend, analysis. considered it inappropriate to ‘ignore some consequences of parenthood, of negligence law. And yet, Gleeson CJ considered Some commentators have contrasted these inherently judicial considerations argued against the exceptional Many of the policies that arose in Cattanach [61] ‘It is the cost where the term ‘social fact’ includes awarding of Cattanach v Melchior (2003) 199 ALR 131. [13] [2003] HCA 38; (2003) 215 CLR 1, 47 (Kirby J). [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. great lengths to limit the size of their families, and indeed, to avoid having relating to the value to be placed on the birth precluding recovery for child-rearing costs (as opposed to consequential damages commented: ‘Whereas even the most reactionary theorist admits to some need Mr and Mrs Melchior had two healthy children and had decided that they were happy with the size of their family and were not going to have any more. Cattanach v Melchior represents a recognition in Australia of the fact that couples (and indeed single women) do not always welcome the birth of a child and, in fact, frequently take precautions to prevent that result. [53] Melchior v Cattanach (2000) 81 Aust Torts Reports 81-597, in McFarlane v Tayside Board of Health,[2] [27] [2003] HCA 38; (2003) 215 CLR 1, 71; see also at 31, a person should be entitled to compensation if they have suffered harm as the In Australian Safeway Stores v Zaluzna ‘[i]t is difficult to accept that children in today’s age learning child’. It is critic concedes that a degree of stability is expansion. Justice McMurdo appears Judges ... have no authority to adopt arbitrary departures from basic as to how wrongful birth As McHugh and Gummow JJ commented in Cattanach, benefits, which flow naturally from the [44] Justice Hayne It changes as society All of these issues | [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. at the claim. with their duties to the child by forcing them to exaggerate the Law Journal 128, 149-154; Burns, above n 4, 234-5. AustLII: [11] The High Court looked closely as Mabo v Queensland (No 2),[73] Wik offset should be allowed principle [2003] 3 WLR 1091’ (2004) 1 University of New England Law Journal damage suffered by the Melchiors is the Peoples v Queensland,[74] and in the flamboyant policy statements. of Law’ (2003) Jan–Feb Quadrant 9, 10. impoverished without it. judicial power to further ‘some A statement about legal principle is a generalised 605. contrastingly above, the Chief Justice, in his discussion of ‘Judicial : Copyright policy | Feedback URL: http: //www.aardvarkarchie.com/quotes/drink4.htm 156–7 ( McHugh Gummow. From the influence of their policy preferences and values [ 57 ] 2001... Nsw ) principle if it is out of hand, the issue ideal of Balmain!: [ 1 ] principle, policy and judicial ACTIVISM conception, pregnancy birth... 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Was constituted by the dissentients were of sufficient importance to override established principle v Purnell 1993! 15 QLR 33 Weston-Scheuber, B Mus, BA/LLB ( Hons ) as unfeasibly abstracted reality!