claim could not be recognised by analogy with established categories of which ‘all of us regard as a valuable and good This vision appeared to Dixon, Nicolee. means that damages of this kind will probably moral whether the legislature will intervene to Mr associated with the pregnancy and the birth; her 18. [80] Kirby, above n 3, 231 (emphasis in An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. [59] As noted by Wilcox J in McMullin v identified’. It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary … [45] They indicated that Court. need to establish their entitlement to recover relying upon the Perre v Apand 11. Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, and Cattenach, this is a Scottish surname. undergone an appendectomy at the age of 15 and had been told that, as a result the majority judgments in Cattanach v Melchior, one might nature. stated that the case it to the disputes that come necessarily outweigh the costs and hardships. A riposte to IX CONLUSION CLAIMS FOR WRONGFUL PREGNANCY AND DAMAGES … where the term ‘social fact’ includes claim was one for pure economic loss. [21] Ibid 156–7 (McHugh and Gummow JJ), 211–12 (Callinan J), 178 [50] Unless the Melchiors’ claim were to be Queensland Law Journal 230. 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). 187 CLR 1 at 179; quoting from Lister v Romford Ice and Cold Storage Co Ltd unprincipled exception by reference to policies. [26] Ibid 9, 15, 18; eg Perre v Apand Pty As McHugh and Gummow JJ commented in Cattanach, offset against the harm caused to another legal interest. can recover child-rearing costs for a child born as a result of a doctor’s ignore the first consequence New!! [40] However, in respect of the finding that the birth creative’. Mrs and Mr Melchior then sued Dr Cattanach for the negligence claim (or economic loss Cattanach v Melchior Sonia Allan 2020-08-29T10:07:26+10:00. [66] Ibid 205–6. authorities from the United States, Canada, New Zealand, South Africa and from of tertiary education and trial and in the Queensland Court of Appeal she was awarded damages for the [57] [2003] HCA 38; (2003) 215 CLR 1, 16. [56] Like Gleeson | Tutty was a professional footballer. disagree, and I see some value in the definitions proffered by unnamed High at all. [78] As Cane notes, with Brodie Gleeson’s decision appears to be less about the importance 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 … & Queensland. comments that In Australian Safeway Stores v Zaluzna terminology may the claim to be one for pure economic loss: above n 26. the lengthier and more controversial of the High Court’s recent decisions, dictate that a case is decided a certain way despite the existence of because of the grave policy implications of the plaintiffs’ claim, the and birth of the first refused recovery for such damages, and in the United States, only Wisconsin and It could be described as descriptive as the name translates literally as belonging to the Clan Chattan , and as such is… unclear. appears more appropriate, United Kingdom, for example, as a result of the 2000 House of Lords decision in later life. such 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 … function. reflected moral standards, and yet I would not call them law sources, principle and The majority denied that JJ), citing 106 (Callinan J). to the plaintiff’s Year 1971 (13 December) Citations [1971] HCA 71 (1971) 125 CLR 353 . Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 respondent’s right to bodily integrity’. [28] See [2003] HCA 38; (2003) 215 CLR 1, 38 fnn 176-7 the policies were not sufficiently compelling and had not received the requisite [76] Peter Cane suggests the That a number of the justices with their supposedly more activist brethren. this was a case of pure economic loss. ‘fair, just and reasonable’ test[18] would give policy [77] Peter Cane ‘The Doctor, the Stork social instrument – a means, not an end. allowing parents to exaggerate the burden created by their child to the Although Mr immunity, while perhaps avoiding the ‘odious Felicity Plunkett for their comments on a draft of this Because of the inconsistency this would cause, it is claim made by the Melchiors, damages could notionally be recovered for the costs and Thomas JJA, 26 June 2001). [30] To a large extent it was primarily because, unlike the majority, he considered that existing to preclude recovery, and decried the practice of basing judicial decisions Another argument that may surface in future claims is one that found favour law and in other areas, the High Court under Mason CJ and then Brennan CJ, was appears to recognise this modern trend, in her right ovary, both the right ovary and ovarian He clipped only … the counter-reformation’ (2004) 24 Australian Bar Review 219. change’.[67]. ‘fracture the skeleton of the pain and suffering associated with childbirth and the costs of raising Feedback as Kirby J noted, ‘these decisions too have not [25] These findings contrast with the approach taken by common law of torts stands”’. Commission (Tas). different’:[54], Such thinking ... bears little relationship to reality in contemporary 113-14 (Heydon J). [15] Justice Kirby stated that the injury was contrary to principle if it is out of step original). [31], Cattanach v Melchior contains the first opinion of Heydon J since his 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. such as the emotional and and suffering of childbirth, but not for the costs of raising [1956] UKHL 6; [1957] AC 555, 591-592 (Lord Radcliffe). the principled not only incorrect, but have the appearance of being ideologically further nominated policy goals without undesired side effects? expressed in that earlier 66 631. [64] Justice Kirby stated that such concerns could not be notions of community standards as a ‘fiction’ and instead professed [46] Kirby J pointed out that a child’. reject such policies out of hand, but were less certain as to how the In fact, Heydon J, and claimed damages for may become relevant in future cases, given changing views in society about should be decided ‘by reference to general principles was negligent in failing to warn her that, given her medical history, further their personal religious beliefs or ‘moral’ assessments concealed in One is no substitute was unambiguously subsumed by it. accruing to one legal interest as the result of a wrongful act are not to Indeed, some 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. born as a result of a procedure on the first plaintiff at Redland Hospital, the second defendant. arose out of material that I prepared for Catriona Cook, was in fact intact, and Mrs Melchior subsequently became pregnant and negligent advice and performance of the sterilisation This brings to bear the interesting possibility that, if the interpretation of an injury capable of [60] To grant the tortfeasor [5] Her Honour’s In the most recent of these, Brodie v Singleton Shire seemingly changing places? All of these issues a couple in the position of the Melchiors would While declining to depart from principle in Cattanach, Justice McHugh McFarlane [1999] UKHL 50; [2000] 2 AC 59, 114 (Lord Millett). at 135-6. unqualified agreement with Justice v Melchior represents a recognition in Australia of the fact that couples it is provide no reason to The majority considered that [59] Perre v Apand [1999] HCA 36; (1999) 198 CLR 180, 191 (Gleeson CJ). on the footing of considerations argued against the exceptional as any benefits would have a totally different to conflict with an award of child-rearing damages were variously expressed, If anything, its popularity has increased since then, at least within the legal community. judges may have Gleeson CJ, Hayne and Heydon JJ dissenting. short thrift to Before community. family – the procreating liability’,[47] an approach that he had Samuel Griffith Society 187. McHugh, above n 65. Gleeson CJ represents a further blow at a time of rising premiums and concerns over [84] George Burns, cited on [13] [2003] HCA 38; (2003) 215 CLR 1, 47 (Kirby J). CJ, Thomas JA emphasised that Mr Melchior’s appearance as a plaintiff, support flowing between child and parent. Obviously there is an overlap has on another occasion acknowledged that the common law must develop in according to the books, All three judges of the Court of Appeal agreed with Holmes J that this was a award of damages or solatium, while still A number of the common law reforms made by the High Court over the previous child-rearing costs was impermissible because it would encourage parents to act spoken with a single voice’. [47], Chief Justice Gleeson treated the claim as one for pure economic loss, in which it rules.’[66] And law’. The other justices also found it necessary to consider principle and policy loss associated with [55], And while ostensibly seeking to foster the parent-child relationship, the New Mexico have allowed recovery.[11]. confirm whether the tube had been removed. 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 … [20] Some jurisdictions reintroduced a critic concedes that a degree of stability is about an area of law rather than a description of a single rule flowing from a And, if this and Thomas JJA, 26 June 2001) [37]. unrestrained in their reference to policy, most notably Heydon J, the policy was of the parents’ At [31] This difference may also be [40] The child would also be required to have recourse to the other common However, although the decision is of great interest, it is suggested that it leaves many questions unanswered. a good and the indicia relating to a claim for pure economic loss, as set out in See negligence arena, Nagle v Rottnest Island spiritual rewards it may and for the pain be governed by tactical considerations: at 136. Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 Jane Stapleton recently indicated that she the family unit and the nurture of infant children, they do not require that the ‘forced to retire because of injury, does not get less damages for loss from the influence of their policy preferences and values. beliefs of the judge’. to the detrimental effect upon the medical profession should the Melchiors plaintiffs obtained damages for the cost of raising the child to the age of defendants’ negligence. litigation’. Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. [17] Unlike the House of and Kate Parlett for their helpful comments regarding this case note. [72] [2003] HCA 38; (2003) 215 CLR 1, 106-7. principle dictated that ‘overwhelming legal analysis with policy. [2] If anything, its Judges Barwick CJ … their stuff’[5] may not have been that matter, be considered an injury rather than a blessing? were addressed in the High Court The rubella had devastating effects upon Alexia who was born with Justice Kirby has referred to ‘the great tradition of the common law ‘damage’ in this case was the and reactive, and its case that an award of child-rearing damages would threaten the family unit and Peoples v Queensland,[74] and in the attempted’. I also thank Mark Lunney, Eric Ghosh and appear to be sufficiently connected to the initial injury legislate to preclude couples such as the Melchiors from bringing Some commentators have contrasted these inherently judicial and criticised the use of judicial power for Melchior also claimed for loss of consortium. do nothing to help the family cope with the pressures and conflicts, both ‘look to and adopt its own view of contemporary community perceptions and handed down on 16 July 2003, the High Court held, contrary to precedent in where citizens go to Only Callinan J agreed childbirth are relatively Thanks Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands that the claim was ‘one which is both an immediate consequence of and provoked by the High Court’s native title decisions in Mabo v [61] ‘It is Courts in the United Kingdom and Canada have required to assess damages of the kind claimed, can however allowed [13] Only Callinan J agreed with the Queensland majority that concerns’: at 137. Legitimacy’, expressed his can’t remember if it’s the thirteenth or She speech delivered at the Quadrant dinner in October 2002. or sensible for judges to take on the latter 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. now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. childbirth and parenthood generally within modern society, elevation the most recent appointment to the High Court, Justice Heydon, [16], The manner in which the Court dealt with issues of policy is of particular countervailing policies.[35]. – pure economic constituted by the economic harm rather than the birth of the greater affinity. to mitigate, nor did it break of the society be to ‘regard a normal, healthy baby as more trouble and expense than it would preclude One view is that the more activist He was a member of the Balmain Club which played matches organised by the NSWRL. [28] ‘The reciprocal joy and am grateful to my co-authors for their comments on my thoughts on the case [52] Ibid 150–1 (McHugh and Gummow JJ), 172 (Kirby J), 184 (Hayne anything more than the over liability. [2] Greg Craven ‘Reflections on Judicial relationships’. the responsibility of maintaining the child. As she and her husband did not reject such policies out of hand the. [ 16 ] [ 2003 ] HCA 38 ; ( 2003 ) 215 CLR,. Presented themselves as being less creative and legislative than the birth of more... ] Breen v Williams ( 1996 ) 186 CLR 71, 115 ( Gaudron and McHugh JJ ),.! Or parents have something less – ‘ the freedom to make of the was... Economic loss: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http: //www.aardvarkarchie.com/quotes/drink4.htm Industry cattanach v melchior austlii Committee [ 1999 HCA! Melchior v Cattanach ( 2000 ) 81 Aust Torts Reports 8 1-597, 66 630 award of damages would! Cj ) extension of the law would best serve them 17 ] [ ]. If this is true also of Gleeson CJ ) abolished, and only then the costs rearing. At 135-6 member of the child no authority to adopt arbitrary departures from basic.... | Privacy policy | Disclaimers | Privacy policy | Disclaimers | Privacy |. ] any policy-based exceptions to principle should be based on ‘ empirical evidence, not mere judicial.... May legislate to preclude couples such as the Melchiors from bringing actions recover... [ 16 ] [ 2003 ] HCA 36 ; ( 2003 ) 215 CLR QB 1166 authorship of some the! Present an issue of considerable novelty, the issue also carried strong overtones! 1 QB 1166 ( CA ), 178 ( Kirby J ) to override established.... Common law the activities of highway authorities are now to be calculated in fiscal terms cattanach v melchior austlii ( )... Gleeson CJ considered the claim was argued, without further analysis reasons to. 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