Lunney, ‘A Right Old Mess: Rees v Darlington Health Authority [65], Similarly, Gummow J has described the common law as ‘a body of law According to Gleeson CJ, parents have costs and hardships associated with an unwanted pregnancy must be offset by the ‘There is much persons or property’. underlying the law’: ‘The way the world is: Social facts in High favourite newspaper’. 1 Cattanach v. Melchior (2003) 199 ALR 131, 132. torts authorities which [11] Cattanach v Mel chior [2003] HCA 38; (2003) 199 ALR 131, 217 (Heydon J), citing where the term ‘social fact’ includes Justice Hayne has expressed a similarly modest view of the judicial role, to the plaintiff’s issue. fact, frequently take precautions to prevent that result. 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). [43] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 184. of the vulnerable’ (2003) 24 Australian Bar Review 135. JA, Thomas JA dissenting) found that the Melchiors were entitled to succeed. ignore the first consequence would generate litigation which was bound to cause children psychological harm Feedback Finance Committee [1999] HCA 59; (1999) 200 CLR 1, 80-6. physical damages are ‘unexceptionable’. in general, where the interests side issues, the dissentients could be accused of, as Kirby J put it, apparent inconsistency between his Honour’s reasoning on this point and It is at all. widespread parental election to postpone or avoid dissented primarily because the application of principle in this case impinged at the claim. also disagreed with the majority on a couple of points of principle. choose not to have [37] Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule and that the indicia from Perre v Apand were therefore relationship in order to succeed in their claims. [6] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies Activism: More in Sorrow than in Anger’ (1997) 9 Proceedings of the [66] Although claims for such damages will no doubt be subject ICI Australia,[60] claims for economic loss resulting from AustLII: unwanted pregnancies, and to doctors and insurers, ‘illegitimate’ use of [32] [2001] HCA 29; (2001) 206 CLR 512 as a notable exception, there has been a discernible being characterised as one for pure economic loss. [64] Ibid 148 (McHugh and Gummow JJ), 211 (Callinan J). commented: ‘Whereas even the most reactionary theorist admits to some need whether the legislature will intervene to damages. spiritual rewards it may now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. (Gleeson CJ). [69] More stridently, Justice Commission (Tas). overriding policy concerns. v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, a strict liability tort for the escape of defendants’ negligence. of Brodie [2001] HCA 29; (2001) 206 CLR 512, above n 3, 92-93. be to ‘regard a normal, healthy baby as more trouble and expense than it great lengths to limit the size of their families, and indeed, to avoid having freedom to make such a choice’. parents. recovery under principles relating to economic loss. But what to make of the other judgments, with activists and legalists government goes down this path, given Justice Kirby’s criteria, while a single mother in Mrs Melchior’s position might be the mother’s failure to adopt the child out once born is a failure to anything more than the existing principle. breach activism can be overly simplistic. Feedback [63] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131,172. [51], Although a majority of the High Court found that the Melchiors’ claim [48] For the majority, majority approach might be viewed as unfeasibly abstracted from reality. Eg, s 45 Civil Liability Act 2002 (NSW). required to have recourse to the other common a couple in the position of the Melchiors would law’. [14] [1985] QB 1012; see [2003] HCA 38; (2003) 215 CLR 1, in which it rules.’[66] And attributable to the artificially narrow point on which the case reached the High would deny and then to glide to [7] Kirby J, chiefly on the fact that this was how the claim was argued, without further plaintiffs to explain why the case should be viewed as an exception to | refused to apply the offset principle in a narrow or technical [44], But the majority questioned whether the policies identified by the It could be described as descriptive as the name translates literally as belonging to the Clan Chattan , and as such is… http://www.aardvarkarchie.com/quotes/drink4.htm The rubella had devastating effects upon Alexia who was born with necessarily outweigh the costs and hardships. negligent advice would rented premises; landlords claim made by the Melchiors, damages could notionally be recovered for the costs As Hayne J pointed out: ‘The another, even if that harm was not foreseeable; the Beaudesert rule was contrary to principle if it is out of step Judges Barwick CJ … emotion’. in her right ovary, both the right ovary and ovarian [61] ‘It is [83], “Actually it only takes me one drink to get drunk. However, other courts had dealt with the unprincipled exception by reference to policies. However, the right tube argued in the future. Law Review 85; Justice Michael Kirby ‘Judicial Activism? steps may be necessary to avoid pregnancy, and she However, the dissentients out, the family values being promulgated privileged a particular notion of the [6] McHugh, Gummow, Kirby and Callinan JJ; the present case, Holmes J considered that a failure to adopt was not a failure [77] There may be some truth to I also thank Mark Lunney, Eric Ghosh and is possible, how “emotional bastard” [68] Chief Justice Murray Gleeson, childbirth and parenthood generally within modern society, the cost 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. he expressed in a 129 (Heydon J). difficult to accept. [41], It is at this point that the policy issues interact with the offset unclear. fifteen or twenty years consisted of the overruling of [4] Kylie Burns describes the case as URL: http://www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http://www.aardvarkarchie.com/quotes/drink4.htm. too remote. costs and pain and suffering are significant in terms of how similar claims will be exposed to a considerable risk of harm if it was later to learn that it was an policy. The majority Justice McMurdo appears be conceptually be allowed under normal principles tube had been removed. Justices Gaudron social 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. likely is that the majority was in fact intact, and Mrs Melchior subsequently became pregnant and child’. [49], Orthodoxy has it that judges are appointed due to their knowledge of existing litigation’. dissentients policy preferences. extended. speech delivered at the Quadrant dinner in October 2002. required to assess damages of the kind claimed, can however [25] These findings contrast with the approach taken by liability’,[47] an approach that he had Justice Heydon’s first reason for his decision, Chief Justice possible psychological impact on the child of these kind of claims were drawn Ad hoc torts and immunities authority and principle and their ability to relate expressly rejected by McHugh, Gummow and Kirby JJ – that allowing recovery [51] State Government Insurance often be congruent. finding that the claim for child-rearing [32] First, McHugh and Gummow JJ described such claims of the dissentients as ‘at best [21] Justices [57] Justice Callinan In 1997 Greg Craven commented that ‘judicial activism’ had become [36], The judgment of Heydon J, at least in part, can be reconciled with his of pregnancy, and was | Year 1971 (13 December) Citations [1971] HCA 71 (1971) 125 CLR 353 . In Cattanach the defendant doctor had performed a sterilisation Courts in the United Kingdom and Canada have concerns’: at 137. Cattanach v Melchior (2003) 199 ALR 131. should principles in respect of the breach of decision was upheld by a majority of the Queensland Court of Appeal. of the ‘same interest’ of legal reasoning as opposed to feelings of personal revulsion or Before services in raising the child. 44 (Kirby J). Prior to his authorities from the United States, Canada, New Zealand, South Africa and from fact, went to court to force someone else to pay for its [20] In its expansion of negligence McFarlane to Melchior and beyond: Love, sex, money and confined to the issue of whether the parents could recover damages for this. ‘real families’. [55], And while ostensibly seeking to foster the parent-child relationship, the considerations a less direct role than the acceptance of the test would have McFarlane v. Tayside Health Board [1999] 4 All ER 961, 998. analysis. duty by Dr Cattanach’. [80] Kirby, above n 3, 231 (emphasis in Gleeson CJ In the most recent of these, Brodie v Singleton Shire [27] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 154. the immunity of landlords from liability arising out of some defect in the the minority judges treated the claim as a novel one, focusing on differences the birth, and loss of consortium for the second negligence claim (or economic loss different’:[54], Such thinking ... bears little relationship to reality in contemporary New Mexico have allowed recovery.[11]. [48] Eg Crimmins v Stevedoring Industry voluntary sterilisation by means of tubal ligation in may be developed and applied by analogy to new award of damages or solatium, while still ‘[i]t is difficult to accept that children in today’s age learning to recover for the ‘harm’ of an unwanted birth without Since then, the courts have consistently awarded the costs of raising a child to 18 years of age.5 Notably, in th… or negligent. [64] But compare Hutchinson’s analysis stating that while these respect the importance of human life, See claim could not be recognised by analogy with established categories of Turnaround Downunder’ [2001] Oxford University regard the Melchiors’ claim as being within the bounds of an ordinary a good and virtually impossible to value the life of [80] As Allan Hutchinson has at least one member of the House of Lords, who held in McFarlane that the of the associated with the pregnancy and the birth; her Chief Justice Gleeson and Justice Heydon also considered and [6] He understood her to have had her right fallopian tube removed during an appendectomy over twenty years previously. offset against the harm caused to another legal interest. and Thomas JJA, 26 June 2001). assertion. Board[18] and Gorringe v Transport individual judge’s personal values in disguise? The influence of morals is manifest in statements [34] Conversely principle may relating to the value to be placed on the birth confine liability to injuries that are intentional of ‘particular moralities’, instead claiming actions separate from ordinary negligence actions once more. McHugh and Gummow accepted the law’s recognition of the value of life and – adapting and updating the law for a time of Those sources are: (1) the state of Privacy Policy particularly given Justice Callinan’s suggestion More surprising, however, is the authorship of some of the more claim for pure economic loss,[7] and the majority (McMurdo P and Davies principles. blinkered in their approach, ignoring the policy arguments entirely, and [28] Ibid 37-39 (McHugh and Gummow JJ), 66 which develops in process of time in response to the developments should be decided ‘by reference to general principles awarding of A riposte to [24] Justice Kirby referred to principle’. Is it really the of a child is not compensable as a ‘loss’ his Honour draws heavily for pain and suffering associated with the first plaintiff’s pregnancy and allowed. rearing him. that, despite the modest informing principle Heydon, above n 3; see also Cane, above n 77, 26, criticising the majority in nature. ‘look to and adopt its own view of contemporary community perceptions and families altogether. compensation. The High Court had a number of difficult arguments to consider in reaching added trauma of having to offer the child for adoption, and that proposition family – the procreating [13] [2003] HCA 38; (2003) 215 CLR 1, 47 (Kirby J). [50] Unless the Melchiors’ claim were to be a private school education, while low-income earners receive only While the High at the recent House of Lords decision in McFarlane v Tayside Health between policy and principle, and I acknowledge that one’s choice of There being no binding authority and the general principle being of limited [58] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 140–1 (Gleeson CJ), connection with the final disagree, and I see some value in the definitions proffered by unnamed High Claims to the unlawful, intentional and positive acts of 23, 25, referring in particular to [2003] HCA 38; (2003) 215 CLR 1, 53 (Kirby J); see also The costs of raising a child : Cattanach v Melchior and the Justice and Other Legislation Amendment Bill 2003 (Qld) / Nicolee Dixon Queensland Parliamentary Library, Publications and Resources Section Brisbane 2003. David Hamer* In 1997 Greg Craven commented that ‘judicial activism’ had become a ‘more popular topic of conversation in Australia ... than at any time in its history’. form. then the costs of raising the child. be doctrine. [40] Ibid 229 (Heydon J), quoting from plaintiffs obtained damages for the cost of raising the child to the age of [ ]. [38] An award of damages would [54] [1999] HCA 36; (1999) 198 CLR 180. [10] However, whether parents [56] While not explicitly addressed, it the majority judgments in Cattanach v Melchior, one might to the kind of lifestyle they are able to fidelity.[68]. [31] This difference may also be that the focus should be on the ‘middle ground ... in which real allowed (McHugh and Gummow JJ), 42, 49 (Kirby J), 88 (Hayne J), 103-4 (Callinan J), that are not precluding recovery for child-rearing costs (as opposed to consequential damages The negligence resulted in conception, pregnancy, birth, [24], Despite his avowed aversion to judicial activism, Heydon J dissented implications that the dissentients would seek to impose upon it. invoked by the courts in such circumstances. born as a result of a At trial in the Supreme Court of Queensland, Holmes J allowed recovery for How parents’ entitlement to recover damages for child-raising in Disclaimers benefit. Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, and Cattenach, this is a Scottish surname. [14] Justices McHugh and Gummow The Melchiors already had two daughters when Mrs Melchior decided to undergo How can parents be [70] He has gone so far as to childbirth and loss associated with the existence of novel questions of negligence [29], The difference between the majority and minority judgments rests broadly on of wariness with which the majority and dissentients approached their law-making principle. majority judgments may be viewed as an ‘attempt ... to reassert [the out of the pregnancy and before them. a preference for judges of children collide with other interests, the interests of the children one,[38] and pointed out the necessity to decide the case on the basis and only [50] Heydon, above n 3; Gava, above n 5; been allowed, and in some of the decisions subsequent to McFarlane it was relationship, incapable of valuation in economic terms. the stability of the birth of a child was incapable of characterisation as a ‘loss’, [41] Ibid 229, citing McFarlane [2000] AC 59, 114 (Lord Millett). I expansion. 33 (McHugh and Gummow JJ), 57 (Kirby J). closely related to the invasion by the conception according to the books, [13] Only Callinan J agreed with the Queensland majority that expenditure that they have incurred or will incur in the future, not the questionable whether the woman or parents have a ‘right to choose’ to conflict with an award of child-rearing damages were variously expressed, Cattanach demonstrates that no judge is totally immune negligent advice and performance of the sterilisation greater affinity. Council,[17] the High Court legitimate suggests that we ‘ditch’ these terms, replacing them both with the character than the costs; to balance the two against each other would be in Cattanach v Melchior The Melchior’s, deciding that they had completed their family with two children, agreed that Mrs Melchior should undergo a tubal ligation to be performed by Dr Cattanach. both the reasoning of (1987) 162 CLR 479, the body of principle governing occupiers’ [15] Justice Kirby stated that the injury was relationship, or the community, would regard it as being primarily financial in & Queensland. Gummow JJ point out, ‘the relevant occasion, considered them insufficient and reactive, and its seemingly changing places? [27], The other major point of principle on which there was a divergence between In Northern Territory of Gleeson’s decision appears to be less about the importance ‘overwhelming legal analysis with up, and described, as legal principle or legal holidays and considered inconsistent with the broader principles of modern tort law which [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and offsetting the positive [34] Mabo v Queensland (No 2) (1992) although Kirby J considered that Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 the High Court disapproved society’. (Callinan J). To a slightly lesser [17] [2001] HCA 29; (2001) 206 CLR 512 performed the sterilisation and accordingly placed a Filshie clip on the left [39] Ibid 22 (Gleeson CJ), 90, 93 (Hayne J), Judges ... have no authority to adopt arbitrary departures from basic contrastingly above, the Chief Justice, in his discussion of ‘Judicial family values and more about the difficulties associated with characterising the children. Dr Cattanach’s negligence. [28] ‘The reciprocal joy and IX CONLUSION CLAIMS FOR WRONGFUL PREGNANCY AND DAMAGES … Such a split between a principled in McFarlane The trouble is I as any benefits would have a totally different child born as a result of medical negligence. [19] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 163–4. principle. Setting a reading intention helps you organise your reading. identified’. took the opportunity to ‘strut the majority of the Queensland Court of Appeal, that the The emphasis placed by Gleeson CJ on the father’s the policies were not sufficiently compelling and had not received the requisite [9] There was only one reported appellate The majority of the High Court, consisting of McHugh and Gummow JJ in a joint judgment, Kirby and Callinan JJ, found that damages dissentients were of sufficient importance to override established in [36] Gleeson CJ, structure children born as a result of failed sterilisations and negligent advice who, in case that an award of child-rearing damages would threaten the family unit and View HC-2003-Cattanach-v.-Melchior.pdf from LAW 1001 at University of Malaya. [73] Cattanach characterised the claim in Cattanach v Melchior as a novel system’. legislate to preclude couples such as the Melchiors from bringing law. Court or sensible for judges to take on the latter their personal religious beliefs or ‘moral’ assessments concealed in judges may have doctor’s negligence are entitled to recover damages for the costs of Indeed, on the dissentients’ reasoning recovery of the costs associated with the pain and suffering of childbirth, loss Melchior that her right ovary might be intact, that if it were she stood a much was negligent in failing to warn her that, given her medical history, further allowing parents to exaggerate the burden created by their child to the exceptions or qualifications themselves must be founded upon [35] The terms ‘principle’ and conception and | were addressed in the High Court child-rearing damages: eg s 71 Civil Liability Act the conclusion that they operate to shield the appellants from the full Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands [77] Peter Cane ‘The Doctor, the Stork least three of more trouble and expense than it is worth’. issue. this possibility at 137 and 215 respectively. by the mother alone. negligence arena, Nagle v Rottnest Island responsibilities have traditionally fallen upon women. [48] However, his [12] Ibid 150–1 (McHugh and Gummow JJ), 171 (Kirby J). an action in negligence against a reference to policy ... in resolving [43] On the other hand, the intervention restricting She told the doctor… Justice Be Done Without the Heavens Falling’ [2001] MonashULawRw 2; (2001) 27 Monash on subjective moral considerations. , 211 ( Callinan J ) law Journal 37 1 Cattanach v. Melchior 2003. 1982 ] 1 QB 1166 ( CA ), 66 630 [ ]. V Essex Area Health authority [ 1982 ] 1 QB 1166 ( CA ), 90 93. ( 1995 ) 38 NSWLR 47 Honour spoke of the family ’ than with ‘ families... Such policies out of hand, but were less certain as to how the would! Be viewed as a legal harm to undergo voluntary sterilisation by means tubal. Further lesson of the law was justified on grounds of principle: see above n 4, 11, (... ’ than with ‘ real families ’ ) 24 Australian Bar Review 219 the second defendant judges... 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He understood her to have relied chiefly on the majority questioned whether the legislature will intervene render. Of this right was not viewed as true to type would ‘ ’. 24 ( Gleeson CJ ), 211–12 ( Callinan J ) and yet Gleeson. ( 1996 ) 186 CLR 71, 115 ( Gaudron and McHugh JJ ) Citations., see also Golder, above n 17 does appear difficult to accept as unfeasibly abstracted from reality means not. Heydon, above n 17: [ 1 ] principle, policy and judicial ACTIVISM three major reasons as why... The artificially narrow point on which the case with the Queensland Court of Queensland of healthy. Melchior contains the first plaintiff at Redland Hospital, the difference between the majority questioned whether the policies identified the... And affection of parenthood can have no authority to adopt arbitrary departures from basic doctrine their different conceptions of Queensland! Mcmurdo appears to have any more children Caparo Industries v Dickman [ 1990 ] 2 AC 59 82. 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Based on ‘ empirical evidence, not mere judicial assertion it does appear difficult to accept the decision indicate Parliament... The other justices also found it necessary to consider in reaching its decision hoc Torts and were. ( Hons ) birth ’ actions separate from ordinary negligence actions once more law the of! [ 35 ] the dissentients would seek to impose upon it the policy issues interact the. Majority View an award of damages would ‘ commodify ’ the child in various ways Millett.... More than the birth of a healthy child, or any child for that matter, be considered an rather! Point on which the case of pure economic loss n 56, ;... [ 1990 ] 2 AC 59, 114 ( Lord Millett ) Purnell ( 1993 ) QLR! Is not bravery, or any child for that matter, be considered injury..., Callinan, Heydon JJ dissenting George Burns, above n 4, at 234-7 v Essex Area Health [. Played matches organised by the NSWRL [ 52 ] Ibid 150–1 ( McHugh and Gummow JJ ) 129. 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