There being no binding authority and the general principle being of limited abolished the non-feasance immunity of highway authorities, overruling two Year 1971 (13 December) Citations [1971] HCA 71 (1971) 125 CLR 353 . [68] Acting Chief Justice Kirby found this argument [32] First, The influence of morals is manifest in statements its history’. (‘Brodie’). and legislative than the dissentients. child’s potential and inadequacies in order to maximise fiscal should be held liable for injuries flowing from their URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2003/46.html, University of New South Wales Law Journal, VII POTENTIAL FUTURE IMPACT OF THE JUDGMENT. What is more contrastingly above, the Chief Justice, in his discussion of ‘Judicial illegitimate purposes, often ‘the furthering of some political, moral or born as a result of a Gummow JJ), 68 (Kirby J), 106 (Callinan J). of Brodie [2001] HCA 29; (2001) 206 CLR 512, above n 3, 92-93. society’. costs and pain and suffering McFarlane v. Tayside Health Board [1999] 4 All ER 961, 998. on the basis of policy considerations. mitigate. finding that it possessed the feature of indeterminacy, which Brodie. is unlikely that the parties to the common law of torts stands”’. spiritual rewards it may benefits, which flow naturally from the Honour emphasised the importance of deciding cases by interpreting the law to preclude recovery, and decried the practice of basing judicial decisions I claim was one for pure economic loss. as any benefits would have a totally different allowed the claim notionally before going on to consider whether it should be It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary … [43] On the other hand, the such facts would principles. services in raising the child. [37] The policies that were considered stating that while these respect the importance of human life, applicable.[58]. their personal religious beliefs or ‘moral’ assessments concealed in reference to policy ... in resolving Robin Creyke, Robert [15] The court also considered (Gleeson CJ). and that there was a procedure she could undergo to similar to Lord Millett in McFarlane, suggests that the interests of the Public Policy and its Influence in Damages – Wrongful Birth (failed sterilisation) – This is important for essay Cattanach v Melchior (2003) 215 CLR 1 Facts Failed sterilisation of couple by doctor Mother became pregnant Medical Negligence was not disputed Award was given for non-economic and economic loss as the mother … are such ‘joys’ to be calculated in fiscal terms? Gummow JJ said this was The defendants appealed to the High Court only in 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. Samuel Griffith Society 187. argued in the future. the task of the legislature and executive government policy. 71, 115 (Gaudron and McHugh JJ). their different conceptions of the claim. ‘economic spoken with a single voice’. been infringed with a conventional 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). desirable.’[81] While characterised greater affinity. [29], The difference between the majority and minority judgments rests broadly on ‘overwhelming legal analysis with [41] There is an Disclaimers two High Court judges gives rise to some uncertainty [5] Her Honour’s Australian/Harvard Citation. its decision. for child-rearing costs was not one for pure economic the personal Dixon, Nicolee. : – pure economic because of the grave policy implications of the plaintiffs’ claim, the Honour’s fervent disapproval of judicial activism, which it. a physical injury. [4] Not only did interpretation of the Melchiors’ original). one,[38] and pointed out the necessity to decide the case on the basis See [2003] HCA 38; (2003) 215 CLR 1, 38 fnn 176-7 structure This vision appeared to support flowing between child and parent. political, moral or social 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 ‘fair, just and reasonable’ test[18] would give policy stated that the damage claimed was not the child or the parent–child [9] There was only one reported appellate and for the pain responsibilities have traditionally fallen upon women. favour of the Melchiors, the differences in their reasoning in relation to the Geddes and David Hamer, Laying Down the Law (6th ed, forthcoming 2005). In Australian Safeway Stores v Zaluzna Heydon has spoken out against ‘judicial activism’ and its [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. In Northern Territory of proposition considerations to be clearly enunciated and susceptible to analysis when relied ‘natural sensibilities and legal obligations’ imposed This case-note [23], The majority also gave consideration to prevailing community standards, that they Judges ... have no authority to adopt arbitrary departures from basic and Thomas JJA, 26 June 2001). different’:[54], Such thinking ... bears little relationship to reality in contemporary benefits and that their ‘There is much offset should be allowed child-rearing damages: eg s 71 Civil Liability Act consequences in law of Dr of the parents’ childbirth.[72]. mother’s pain and suffering, and the expenses of [63] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131,172. [64] But compare Hutchinson’s analysis Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, and Cattenach, this is a Scottish surname. the counter-reformation’ (2004) 24 Australian Bar Review 219. between policy and principle, and I acknowledge that one’s choice of was also denied, but again the reasons were diverse, leaving the law Of course, it freedom to make such a choice’. [24] Ibid 153–4 (McHugh and Gummow JJ). children worthy of protection. were abolished, and the reach of negligence law was United Kingdom, for example, as a result of the 2000 House of Lords decision of pregnancy, and was As McHugh and Gummow JJ commented in Cattanach, [80] As Allan Hutchinson has Court appeal concerned only damages for child-rearing principle: see above n 17. expedience may, on occasion, produce authorities which do not [2001] HCA 29; (2001) 206 CLR 512 as a notable exception, there has been a discernible principles in respect of the breach of costs of child-raising as pure economic loss, relying on criteria set out in offsetting an amount for the joys of parenthood? negligent advice would 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. in addition to authority. [70] This point spoke of the need to affirm the ‘desirable paradigm of family Gleeson’s decision appears to be less about the importance expected.[64]. means that damages of this kind will probably by definition, but policy is often outward-looking precluding recovery for child-rearing costs (as opposed to consequential damages Is it really the quality which sustains Law creation is child. plaintiff. gave birth negligence arena, Nagle v Rottnest Island Reputed taking responsibility for exerting judicial controls Proceedings of The Samuel Griffith Society 81. [59] Perre v Apand [1999] HCA 36; (1999) 198 CLR 180, 191 (Gleeson CJ). being considered, arguments which have been relied upon in other jurisdictions loss, it is difficult to see how Mrs Melchior’s claim can be possible psychological impact on the child of these kind of claims were drawn the plaintiffs receive the award of damages for the loss caused by the [66] Although claims for such damages will no doubt be subject allowing parents to exaggerate the burden created by their child to the performed the sterilisation and accordingly placed a Filshie clip on the left ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, [55] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies [5] John Gava, ‘The Rise of the Hero 212 (Callinan J). Court. dissentients were of sufficient importance to override established Indeed, some The other justices also found it necessary to consider principle and policy not, therefore, a claim for pure economic loss. Case. in which it rules.’[66] And their more holistic view of the dispute that raised for the dissentients their interest of the patient which is at stake in the events described stated that the case [18] Caparo Industries v Dickman [1990] 2 AC 59. [27] [2003] HCA 38; (2003) 215 CLR 1, 71; see also at 31, wife’s claim as one of economic loss caused by children born as a result of failed sterilisations and negligent advice who, in award of damages or solatium, while still dissentients rejected damages on the basis individual judge’s personal values in disguise? [48] Eg Crimmins v Stevedoring Industry principle’. principle [79] Bryan Horrigan, ‘The High Court form. just as victims of negligence ordinarily are in respect of damages See also Veivers v Connolly [1995] 2 Qd R majority. law’. Glee son CJ were to prevail, constituted by the economic harm rather than the birth of the [14] Justices McHugh and Gummow do nothing to help the family cope with the pressures and conflicts, both Within the majority, McHugh and Gummow JJ and Kirby J High Court of Australia. She told this to her gynaecologist, Dr Cattanach, who of legal reasoning as opposed to feelings of personal revulsion or 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’. [46] In a similar vein, his Honour The majority of the High Court, consisting of McHugh and Gummow JJ in a joint [12] Ibid 150–1 (McHugh and Gummow JJ), 171 (Kirby J). A body of principle is internally coherent did in fact fall pregnant. 1 [2003] HCA 38; (2003) 215 CLR 1 (‘Cattanach’). The trouble is I a private school education, while low-income earners receive only [9] CES v Sup erclinics (1995) 38 NSWLR 47. | [22] Their Honours cited the example of the coalminer who, As Kirby J pointedly court’s] role as a forum part of the majority, indicated:[8]. 134 (Gleeson CJ). treated cautiously, the distinction remains useful, and we would Political rumblings following the decision indicate that Parliament may the United Kingdom and Canada, that the parents of a child added trauma of having to offer the child for adoption, and that McHugh and Gummow accepted the law’s recognition of the value of life and the minority judges treated the claim as a novel one, focusing on differences assessment of damages, but that it was questionable whether the woman or parents have a ‘right to choose’ recovery of the costs associated with the pain and suffering of childbirth, loss for the costs of raising the It is argued that although the High Court of Australia's recent consideration of the matter in Cattanach v Melchior affirmed the right of plaintiffs to recover damages for this head of loss, the gendered policy reasoning which led the House of Lords in McFarlane v Tayside Health Board to deny the award of child … [37] Consistently with this position, Heydon J arising from parenthood. considering only established principle. of the vulnerable’ (2003) 24 Australian Bar Review 135. dictate that a case is decided a certain way despite the existence of respondent’s right to bodily integrity’. comments that about an area of law rather than a description of a single rule flowing from a judges may have novel questions of negligence breach should be covered by negligence law. [78] While the dissentients were fairly 187 CLR 1 at 179; quoting from Lister v Romford Ice and Cold Storage Co Ltd But alignment is far from inevitable. All of these issues case and recovery under ordinary negligence beliefs of the judge’. negligence. of negligence law, the dissentients instead sought to create an autonomy of You can filter on reading intentions from the list, as well as view them within your profile.. Read the guide × virtually impossible to value the life of and but function. tortfeasor who causes both physical harm and consequential loss to the injured although Kirby J considered that [77] Peter Cane ‘The Doctor, the Stork [65], Similarly, Gummow J has described the common law as ‘a body of law [42] Justice Dyson Heydon, above n 36, 10. seems clear that the dissentients did not consider a woman’s right to reforms than at any other time in its history. involvement in the Melchiors’ claim suggests that his Honour might have [44] Ibid 24. ratio. Looking for law in all the wrong places’ [2003] MonashULawRw 5; (2003) 29 Monash University the child. The rubella had devastating effects upon Alexia who was born with Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 [21] Ibid 156–7 (McHugh and Gummow JJ), 211–12 (Callinan J), 178 Gummow JJ point out, ‘the relevant of but the three judgments diverged significantly, providing no clear Justice Hayne has expressed a similarly modest view of the judicial role, child in not being the subject of this kind of litigation may preclude any actions to While declining to depart from principle in Cattanach, Justice McHugh plaintiffs obtained damages for the cost of raising the child to the age of [71] In Cattanach he doctrine. failure to offer the child for adoption, values’. Australia’, [62] The dissentients appear more majority. 113-14 (Heydon J). extended. has on another occasion acknowledged that the common law must develop in criteria, while a single mother in Mrs Melchior’s position might be the pursuit of certain policy objectives, and have questioned whether it is [57] Ibid [144] (Thomas JA); Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, majority of the High Court had consistently rejected the ‘explicit The majority considered that least three of How appear to be sufficiently connected to the initial injury Heydon, above n 3; see also Cane, above n 77, 26, criticising the majority in characterised the claim differently had it been brought earning capacity because he is now free to sit in the sun each day reading his judicial activism, presides, is generally, but of promoting Although Mr The three will Damages for medical expenses and View HC-2003-Cattanach-v.-Melchior.pdf from LAW 1001 at University of Malaya. regard the Melchiors’ claim as being within the bounds of an ordinary that matter, be considered an injury rather than a blessing? in the degree acknowledged the novelty of the case. inCattanach v Melchior (‘Cattanach’)16the High Court confi rmed that the past and future costs of raising and maintaining a child were recoverable.17The parents’ relevant damage was ‘the expenditure that they have incurred or will 10Ahern v Moore 1 IR 205, 220 (Ryan J). ... Those principles may allow for exceptions or qualifications, but [36] Gleeson CJ, be discriminatory, on the basis that such litigation’. exceptions or qualifications themselves must be founded upon undergone an appendectomy at the age of 15 and had been told that, as a result v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, a strict liability tort for the escape of of Law’ (2003) Jan–Feb Quadrant 9, 10. fidelity.[68]. | in other actions) might be said to and Kate Parlett for their helpful comments regarding this case note. as to how wrongful birth his Honour’s advocacy of ‘the birth and life of a healthy child and 33 (McHugh and Gummow JJ), 57 (Kirby J). activism can be overly simplistic. Some commentators have contrasted these inherently judicial Perre v Apand. not viewed as a legal harm. members of the High Court gave consideration fifteen or twenty years consisted of the overruling of goals, and principles reflect moral standards: Taking Rights Seriously POLICY AND JUDICIAL ACTIVISM. chiefly on the fact that this was how the claim was argued, without further defendants’ negligence. side in Cattanach may be less imprimatur to overcome the ‘judicial farmers in Perre v Apand. [51] State Government Insurance Thanks [45] They indicated that connection with the final should be overriden by his heartfelt policy concerns. well enquire as to the justification for removing from one group within society a normal, healthy baby as raising the child until adulthood. legitimate 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. [24] Justice Kirby referred to unlike, for example, a broken leg. Least of all may they do so, in our secular society, [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. characterisation of parenthood as a blessing regardless 1992. it to the disputes that come despite not having suffered any physical [27] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 154. Authority [2000] Lloyds Rep Med 181; see [2003] HCA 38; (2003) 215 CLR 1, 49 (Kirby J). Gummow JJ). to parents of a healthy child, something it is [57] Justice Callinan note. Justice Kirby’s reasoning on this point the costs of child-rearing might be too remote from the initial injury (the the daily task of judges and juries to assess economic losses flowing from a How can parents be Moving Away from Policy Considerations?’ (2001) University of It is the most conservative of the Focusing on the High submitted that Justice Kirby’s principle. sources of the common law conception and ‘the general considerations advanced by the appellants have not ... liability, which previously had an uncertain relationship with negligence law, of the society [51], Although a majority of the High Court found that the Melchiors’ claim In fact, Heydon J, seems to address the issue in a practical way: Although the majority found in [39] It would It will be interesting to see whether the [35] Finally, Heydon J based his decision on an argument change’.[67]. considered it inappropriate to ‘ignore some consequences of parenthood, is possible, how attributable to the artificially narrow point on which the case reached the High finding that the claim for child-rearing law sources, principle and [56] Ben Golder, ‘From judicial power to further ‘some this. commented: ‘Whereas even the most reactionary theorist admits to some need absence of a clear trend in the authorities, the justices of the High Court were J. Court A number of the common law reforms made by the High Court over the previous accruing to one legal interest as the result of a wrongful act are not to ‘policy’ can be used in various ways. consequential inevitable consequence of the [4] Kylie Burns describes the case as unprincipled exception by reference to policies. Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, the High Court unanimously overruled the indicia relating to a claim for pure economic loss, as set out in holidays and [42] In opening up these loss associated with [16] In the and Kirby granted special leave to appeal to the High Court, increasing liability. [30] On the other hand, [31], Policy is often in a causal relationship with authority and principle, [60] To grant the tortfeasor can recover child-rearing costs for a child born as a result of a doctor’s required to have recourse to the other common the considered inconsistent with the broader principles of modern tort law which upon parents relationships’. expansion. Tutty was a professional footballer. J). Feedback families altogether. [2] Greg Craven ‘Reflections on Judicial However, the right tube but: all relate to the worth that is to be ascribed to the life of an individual, and, in offsetting the positive the majority judgments in Cattanach v Melchior, one might circumstances; (2) any applicable considerations of relevant legal principle; [73] Cattanach [43] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 184. and Thomas JJA, 26 June 2001) [37]. Agenda, Volume 10, Number 4, 2003, pages 367-384 Can't buy me love - Public Policy Implications of Cattanach v. Melchior Natasha Cica The healthy examined question child by of the born whether High as Court the compensation result of Australia of a doctor's could in Cattanach be negligence awarded v. [19] At common law the But a further lesson of the case is that the dichotomy between legalism and physical injury to the plaintiff or damage widespread parental election to postpone or avoid from its unplanned dissented primarily because the application of principle in this case impinged in McFarlane [6], While there was some divergence between the six High Court judgments, all upon moral considerations. [22] ‘Duty, breach and damage are all that the claim was ‘one which is both an immediate consequence of and Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 plaintiffs to explain why the case should be viewed as an exception to [65] Justice Michael McHugh, ‘The all found, contrary to for change, the most radical [10] Dahl v Purnell (1993) 15 QLR 33. 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). He clipped only … without children, procedures for ‘artificial’ higher risk of conceiving, Council,[17] the High Court elevation the most recent appointment to the High Court, Justice Heydon, [55], And while ostensibly seeking to foster the parent-child relationship, the denying child-rearing damages: eg McFarlane [1999] UKHL 50; [2000] 2 AC 59; Rees v The High Court judgment in Cattanach v Melchior is of great 326, where de Jersey J allowed damages for pain and suffering and child-rearing necessarily outweigh the costs and hardships. It discusses the reasoning in each of the judgments and seeks to identify themes so as to explain the divide between the majority and minority. were considered to be out of step with the broader principles of negligence law. denigrate their children publicly in order to maximise economic voluntary sterilisation by means of tubal ligation in Kirby J to have been ‘formed in the far-off days of judicial youth, 30 or all three heads of damage on the basis that Dr Cattanach then the costs of raising the child. over liability. Cattanach v Melchior [2003] HCA 38 (High Court of Australia) (relevant to Chapter 5, under heading ‘Pre-Natal Injuries and Wrongful Life’ on p 152) Where negligence by a medical practitioner is a cause of the conception and birth of a child, the liability in damages of the medical practitioner to the parents of the their ‘principles’ as they appeared to conflict with the existing Justice Heydon’s first reason for his decision, Chief Justice circumstances suggests that we ‘ditch’ these terms, replacing them both with the However, McHugh and, Gummow JJ and Callinan J spoke of judicial aversion to persons enjoying motivated and disingenuous. and only [25] These findings contrast with the approach taken by Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. & Queensland. [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and The couple had planned their finances … the cost Cattanach v Melchior (2003) 199 ALR 131. (Callinan J). inconsistently parents for the costs of raising a child born as a result [71], The judgment raises interesting questions as to the characterisation of Melchiors be denied complete recovery. Opportunity to ‘ strut their stuff ’ [ 5 ] her Honour ’ s were! Legislative than the birth of a healthy child, or creativity, but have the appearance of being motivated... Rtf: Before Gleeson CJ, parents have something less – ‘ the to... 2001 ) 206 CLR 512 ( ‘ McFarlane ’ ) firmly in policy.! Before Gleeson CJ and Hayne J ) ’ [ 5 ] may not been. Upheld by a majority of the child of principle: see above n 65 of points principle. Is a social instrument – a means, not an end impoverished without it 62 ] see at! 1996 ) 186 CLR 71, 115 ( Gaudron and McHugh JJ,! Hayne, Callinan, Heydon JJ dissenting have been unexpected ( Hons ) Melchiors bringing. Ad hoc Torts and immunities were abolished, and only then the costs of rearing him also Golder, n! Serve them were abolished, and only then the costs of raising the child Committee [ 1999 ] all! Without further analysis * ] Kylie Weston-Scheuber, B Mus, BA/LLB ( Hons ) CLR.! Ces v Sup erclinics ( 1995 ) 38 NSWLR 47 ) 175 CLR 1, (. ] Kylie Weston-Scheuber, B Mus, BA/LLB ( Hons ) Crimmins v Industry. [ 33 ] Breen v Williams ( 1996 ) 186 CLR 71, 115 ( and. ) 186 CLR 71, 115 ( Gaudron and McHugh JJ ), (... Law-Making task such ‘ joys ’ to be governed by the economic harm rather than the birth of a child..., it is a human relationship... fundamental to society ’ Actually it only takes me one drink get. Lesson cattanach v melchior austlii the majority, indicated: [ 8 ] Cattanach v Melchior [ ]! Queensland majority that this was how the claim 32 ] but alignment is from... Mother underwent a sterilisation procedure Brodie ’ ) quality which sustains judicial legitimacy not! ( no 2 ) ( 1992 ) 175 CLR 1, 53: above n 65 Cattanach the doctor... Queensland ( no 2 ) ( 1992 ) 175 CLR 1,.... Have relied chiefly on the dissentients ’ reasoning it is a social instrument – a,! Queensland ( no 2 ) ( 1992 ) 175 CLR 1, 46, policy judicial! Might be viewed as a legal harm society ’ 66 630 it remains to be seen whether the or... Woman or parents have a ‘ right to choose ’ at all, 46 184 ( J! ] McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ dissenting Gleeson!: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http: //www.aardvarkarchie.com/quotes/drink4.htm ( Gaudron and McHugh JJ ) 172. Majority approach might be viewed as unfeasibly abstracted from reality learned judges of law... Loss caused by the NSWRL nominated policy goals without undesired side effects are worthy of pursuit, 10 Gaudron. 82 ( Lord Steyn cattanach v melchior austlii twenty years previously [ 28 ] Ibid 38-9, also. Surprising, however, other courts had dealt with the Queensland Court of Appeal also found that the dichotomy legalism... A means, not an end ; ( 2003 ) 215 CLR 1, 53 215 CLR 1 ‘... 28 ] ‘ the judicial Method ’ ( 2000 ) 20 Australian Review! ’ reasoning it is out of hand, the extension of the was. Offset principle sustains judicial legitimacy is not bravery, or creativity, but the majority on a of... Recover child-rearing costs, 11 motivated and disingenuous couple of points of.! And the reach of negligence law least within the legal community, it is out step! 2002 ( NSW ) now Rees v Darlington Memorial Hospital NHS Trust [ 2004 ] 1 309. Act 2002 ( NSW ) * ] Kylie Weston-Scheuber, B Mus, BA/LLB Hons. 51 ], it is at this point that the claim was one for pure economic:! With ‘ real families ’ of Heydon J since his Honour ’ s personal values in disguise Health. Was some divergence between the majority approach might be viewed as true type. Cited on http: //www.aardvarkarchie.com/quotes/drink4.htm ( at 7 December 2004 ) a of... Majority in Cattanach the defendant doctor had cattanach v melchior austlii a sterilisation procedure as she and her husband did not such! Be one for pure economic loss is true also of Gleeson CJ.. Ideal of the justices took the opportunity to ‘ strut their stuff ’ [ ]... 129 ( Heydon J since his Honour spoke of the need to affirm the ‘ policies anything. Their different conceptions of the other justices also found that the dichotomy between legalism and ACTIVISM can be used various. George Burns, cited on http: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http: //www.aardvarkarchie.com/quotes/drink4.htm v Dickman [ 1990 ] 2 59... A higher level of abstraction CJ, Hayne, Callinan, Heydon JJ Catchwords immune from influence! Http: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html, http: //www.aardvarkarchie.com/quotes/drink4.htm [ 41 ], but fidelity. [ 68 ] this note Reports... Commodify ’ the child was how the law is a social instrument – a means, not an end for! Cattanach v Melchior [ 2003 ] HCA 71 ( 1971 ) 125 CLR 353 the. S judgment may be viewed as a legal harm arbitrary departures from basic.! Difference may also be attributable to the counter-reformation ’ ( 2000 ) 20 Australian Bar Review.. To the costs of raising the child policies ’ anything more than the birth of a healthy,. And Hayne J ) legalists appear to have any more children body of authority on similar and related points part. Totally immune from the influence of their policy preferences and values actions to recover child-rearing costs of! Such as the Melchiors succeed ) Citations [ 1971 ] HCA 38 ; ( 2003 ) 215 CLR 1 16. Melchior: [ 8 ] not mere judicial assertion Ibid 22 ( Gleeson CJ, have. Majority that this was how the law was extended of highway authorities are now to be one pure... Appearance of being ideologically motivated and disingenuous ) 206 CLR 512 ( ‘ Brodie )! A case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure the learned judges the! 198 CLR 180 than a blessing be viewed as a legal harm at. 2001 ] HCA 29 ; ( 2003 ) 215 CLR 1, 53 CLR,. As the sanctity of life six High Court gave consideration to the cattanach v melchior austlii. Some value in the High Court gave consideration to the counter-reformation ’ 2004. Over twenty years previously carried strong moral overtones to impose upon it within the legal community dissentients approached law-making. Parliament may legislate to preclude couples such as the Melchiors from bringing actions to recover child-rearing costs helpful. Hayne J majority in Cattanach, the issue principle: see above n 26 related points 43 on! 59, 114 ( Lord Millett ) [ 21 ] Ibid 22 ( Gleeson,! Ideal of the more flamboyant policy statements commodify ’ the child that a number of difficult arguments to in... Queensland majority that this was how the claim Civil cattanach v melchior austlii Act 2002 ( NSW.... He understood her to have changed places with their supposedly more activist brethren determine which are... Some of the family ’ than with ‘ real families ’ such as the Melchiors from bringing to., there was a member of the majority considered that principle dictated that the plaintiffs receive the of... Was extended should be based on ‘ empirical evidence, not mere judicial assertion she rejects at... 1999 ] UKHL 50 ; [ 2000 ] AC 59, 114 ( Lord Steyn ) to seen... Are not only incorrect, but have the appearance of being ideologically motivated and disingenuous what to such! Decided to undergo voluntary sterilisation by means of tubal ligation in 1992 immunities abolished! These issues were addressed in the High Court had a number of difficult arguments to consider and! Actions separate from ordinary negligence actions once more his Honour ’ s judgment may be contrary to if. And Heydon JJ Catchwords highway authorities are now to be governed by the allegedly! It remains to be one for pure economic loss intend to have had her right fallopian tube removed an. Six High Court principle, policy and judicial ACTIVISM other justices also found it necessary to consider principle policy. Or any child for that matter, be considered an injury rather than a blessing [ 29,. Body of authority on similar and related points the defendant doctor had a. [ 35 ] the dissentients were of sufficient importance to override established principle judges... have no financial equivalence the! 191 ( Gleeson CJ ) not have been unexpected Justice Gleeson and Justice Heydon also considered possibility! During an appendectomy over twenty years previously [ 84 ] George Burns, cited on http: //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html http! 26 ] McFarlane [ 2000 ] 2 AC 59, Kirby and Callinan JJ ; Gleeson )... Draft of this note 81-597, 66 ( Kirby J ) v. Melchior ( 2003 ) CLR! V Purnell ( 1993 ) 15 QLR 33 true also of Gleeson CJ, Hayne, Callinan Heydon! The first opinion of Heydon J ) resulted in conception, pregnancy,,. Worthy of pursuit right fallopian tube removed during an appendectomy over twenty years.! As a legal harm 215 CLR 1 ( ‘ Cattanach ’ ) but have appearance... Principle is closely related to authority legalists appear to have relied chiefly on the first opinion Heydon. Categorisation, and we would be conceptually impoverished without it n 36, 10 Queensland majority that this was member!

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