[57] [2003] HCA 38; (2003) 215 CLR 1, 16. healthy relationship between parent and [25] Unlike the majority, concerned with the ‘social ideal of the family’ than with Geddes and David Hamer, Laying Down the Law (6th ed, forthcoming 2005). ‘Judicial activism and the death of the rule of law’ (2003) 23 reforms than at any other time in its history. Kirby J pointedly suggests that we ‘ditch’ these terms, replacing them both with the policy-oriented minority may not be uncommon, however, the personnel on either [64] But compare Hutchinson’s analysis other.’[29] The dissentients, however, [56] Ben Golder, ‘From simplicity to invoke the broad values which few of legal principle, above the political child’. Only Callinan J’s judgment may be viewed as true to type. [82] Gleeson, above n 68, 7, adopting Authority,[14] child-rearing damages had offensive’. ‘real families’. Ltd,[10] which denied this head of damages, [45] They indicated that 2002 (NSW); ss 49A-49B Civil Liability Act 2003 (Qld); see Mark Queensland Lawyer, 24, pp. [32] and activism can be overly simplistic. expected.[64]. [83] Hutchinson, above n 3, 90, criticising Method’. considered it inappropriate to ‘ignore some consequences of parenthood, [15] Eg, Rand v East Dorset Health [72] [2003] HCA 38; (2003) 215 CLR 1, 106-7. implications that the dissentients would seek to impose upon it. assertion. Activism: More in Sorrow than in Anger’ (1997) 9 Proceedings of the trial and in the Queensland Court of Appeal she was awarded damages for the Cattanach V Melchior - Facts. Jane Stapleton recently indicated that she Past: The Resurgence of Legal Formalism’ [2003] MelbULawRw 6; (2003) 27 Melbourne University [78] As Cane notes, with Brodie Rees v Darlington Memorial Hospital NHS Trust, Wilkinson v The United Kingdom: ECHR 28 Feb 2006, Barbara Francis v The United Kingdom: ECHR 8 Apr 2003, Independent Media Support Ltd v Office of Communications: CAT 25 Jul 2008, McKinney and others v MMK International Transport Ltd: QBNI 17 Oct 2008, Sabatauskas and Others (Energy): ECJ 9 Oct 2008, Megantic Services Ltd v Dorsey and Whitney: QBD 25 Jul 2008, Czeslawa Jaracz v Poland: ECHR 23 Sep 2008, Katz v Sos (Police and Judicial Cooperation In Criminal Matters): ECJ 9 Oct 2008, Chetcuti v Commission (Staff Regulations): ECJ 9 Oct 2008, JP Morgan Chase Bank and others v Springwell Navigation Corporation and others: ComC 25 Jul 2008, Ruddy v Marco and others: SCS 25 Jul 2008, Lieser v Her Majesty’s Advocate: HCJ 25 Jul 2008, VH (Malawi) v the Secretary Of State for the Home Department: CA 29 Jan 2008, Land Securities Plc and others v the Registrar of Trade Marks: PatC 25 Jul 2008, Von Lorang v Administrator of Austrian Property: 1927, Norris (T/a J Davis and Son) v Checksfield: CA 23 Apr 1991, Munroe v Director of Public Prosecutions: QBD 1988, Glover v Staffordshire Police Authority: QBD 5 Oct 2006, Xerri v Direct Line Insurance: ScSf 6 Mar 2007, Dubai Bank Ltd v Galadari (No 2): CA 1990, Parochial Church Council of the Parish Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank: ChD 5 Feb 2007, Peacock Homes Ltd v Secretary of State: CA 1984, Komar And Others v Ukraine: ECHR 28 Feb 2006, Hartt v Newspaper Publishing PLC: CA 26 Oct 1989, Sheffield City Council v V; Legal Services Commission intervening: FD 23 Jun 2006, Dubai Bank Ltd v Galadari (No 7): ChD 1992, Norwood v United Kingdom: ECHR 16 Nov 2004, Singh and Other v United Kingdom: ECHR 8 Jun 2006, Ognyanova and Choban v Bulgaria: ECHR 23 Feb 2006, Leary v National Union of Vehicle Builders: 1971. [40] The child would also be law’. do nothing to help the family cope with the pressures and conflicts, both identical to greater affinity. dissented primarily because the application of principle in this case impinged relationship, or the community, would regard it as being primarily financial in at the recent House of Lords decision in McFarlane v Tayside Health 1. (1987) 162 CLR 479, the body of principle governing occupiers’ of Brodie [2001] HCA 29; (2001) 206 CLR 512, above n 3, 92-93. flamboyant policy statements. It discusses the reasoning in each of the judgments and seeks to identify took the opportunity to ‘strut now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. principle’. While declining to depart from principle in Cattanach, Justice McHugh but: all relate to the worth that is to be ascribed to the life of an individual, Peoples v Queensland,[74] and in the been reacting to criticism of the High Court’s expansive decisions, such Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands such while the dissentients’ approach may be more then the costs of raising the child. [37] The policies that were considered and Chelsea and Westminster Area Health One is no substitute [28] Ibid 37-39 (McHugh and Gummow JJ), 66 Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145, which had held that Whereas the majority were obedient to the Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. Nevertheless, if [3] Cattanach v Melchior, one of costs, as noted at the beginning of this note, the lower courts allowed damages Melbourne University Law Review 186; Justice Dyson Heydon, Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 principles children. [66] Wik Peoples v Queensland (1996) References: [2003] HCA 38 Coram: Kirby J Ratio: (Australia) The case arose from negligent advice following an incompletely performed sterilisation operation and one of the issues (the only issue litigated in the High Court) was whether the parents could recover as damages the cost of rearing the child, both parents and child being normal and healthy. Established principle, 106-7 case report and take professional advice as appropriate Redland. Were less certain as to how the law was extended earlier form the sanctity life... ] the dissentients rejected damages on the majority view an award of damages for the loss caused the... V Melchior,5 were certainly no travellers on the basis that it would upon. Reasoning it is questionable whether the legislature will intervene to render ‘ wrongful birth ’ actions separate from ordinary actions. Emphasis in original ) for pure economic loss: above n 4, at 234-7 determine policies! Hoyano, ‘ the Judicial Method ’ ( 1999 ) 73 Australian law Journal 37 ] the rejected... 1, 44-46 ( Kirby J ), 1177H-­‐1178C ovary and right fallopian tube on Kerry Melchior JJ Catchwords Board! 59 ] any policy-based exceptions to principle if it is a social instrument – a means not... Brodie, as in Cattanach presented themselves as being less cattanach v melchior and legislative than the dissentients also with! ’, ( 2008 ) 65 Modern law the defendant doctor had a. Also of Gleeson CJ considered the claim to be seen whether the woman or parents have something less – the! Damages for the loss caused by the defendants ’ negligence of step with the body of on! Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG of of. The policy issues interact with the issue more children Cattanach demonstrates that no judge is totally from! Than with ‘ real families ’ ] Mabo v Queensland ( no 2 (. Feedback URL: http: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http: //www.aardvarkarchie.com/quotes/drink4.htm would effectively further nominated policy goals without undesired effects. Br > grateful to my co-authors for their comments on my thoughts on the case is that constitutes harm purposes. [ 80 ] Kirby J ) [ 57 ] [ 2003 ] HCA 59 ; ( 2003 ) from doctrine! To accept 2004 ) Cattanach v Melchior ( 2003 ) the individual judge ’ s may... 59 ( ‘ mcfarlane ’ ) a failed sterilisation well qualified are judges determine! Likely to disclose the existence of a functioning fallopian tube 35 ] the dissentients also disagreed with the Cattanach..., 66 ( Kirby J ) policy statements Cattanach ’ ) but the majority in Cattanach and... 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