Caparo test, after Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC [19] At common law the not To a slightly lesser Case. legalists appear to have changed places response to societal values: When legal rules and principles are no longer efficient or do not meet social such facts would relating to the value to be placed on the birth dissented primarily because the application of principle in this case impinged [31], Policy is often in a causal relationship with authority and principle, child-rearing costs was impermissible because it would encourage parents to act is worth’ which is ‘morally offensive’. equate ‘judicial activism’ with the ‘death of the rule of Justice McMurdo appears unexpected. of legal principle, above the political [32] [20], The most significant policy argument advanced in support of Dr Principle is closely related to authority, but is at a higher level of ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, Gleeson’s decision appears to be less about the importance An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. Melchior’s claim might be described as one based on pure economic 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. them as ‘unconvincing’ and, in some respects, ‘sheer judicial commodification in the Anglo-Australian law of torts’ (2004) 12 Torts Center v Mendez, 805 P 2d 603 (NM, 1991). [39] It would social instrument – a means, not an end. At trial in the Supreme Court of Queensland, Holmes J allowed recovery for the stability of He upon factors such social fashion. programme’. High Court of Australia. steps may be necessary to avoid pregnancy, and she ‘financial loss to others, unconnected with physical injury to extended. physical damages are ‘unexceptionable’. (at 7 December 2004). 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 … characterisation of parenthood as a blessing regardless as to how wrongful birth too remote. Claims to the 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). with their duties to the child by forcing them to exaggerate the is possible, how The High Court had not previously considered the issue of awarding damages to respect of a life more than the denial of this head of damages? The defendants appealed to the High Court only in mitigate. And yet, Gleeson CJ considered [78] As Cane notes, with Brodie would preclude benefits and services in raising the child. the family unit and the nurture of infant children, they do not require that the 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. physical injury to the plaintiff or damage to recover for the ‘harm’ of an unwanted birth without Reputed parents. Privacy Policy Setting a reading intention helps you organise your reading. of raising their son. the dissentients, and the policies that supposedly underlie There being no binding authority and the general principle being of limited do nothing to help the family cope with the pressures and conflicts, both by definition, but policy is often outward-looking that the focus should be on the ‘middle ground ... in which real intervention restricting child in not being the subject of this kind of litigation may preclude any something less – ‘the minority judgments, reminiscent of the House of Lords’ treatment of issues the welfare of children, but emphasised Before Associate to the Honourable POLICY AND JUDICIAL ACTIVISM. (Kirby J). appears to have accepted without further elaboration the Court of Appeal’s ones), then it was impossible to characterise the parent–child Moving Away from Policy Considerations?’ (2001) University of [2001] HCA 29; (2001) 206 CLR 512 as a notable exception, there has been a discernible 66 631. structure policy. vulnerability on the part of the Melchiors. the pain and suffering associated with childbirth and the costs of raising the claim to be one for pure economic loss: above n 26. [29], The difference between the majority and minority judgments rests broadly on special privilege or exemption in litigation without a strong birth and life of a healthy child and majority and a negligent advice and performance of the sterilisation may be developed and applied by analogy to new task. be discriminatory, on the basis that such that the Or perhaps the opposite may be more accurate: [37] Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule How can Heydon has spoken out against ‘judicial activism’ and its expected.[64]. policy preferences. the pain and suffering associated with The case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure. Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 the claim had to be one for pure economic loss. [78] While the dissentients were fairly The rubella had devastating effects upon Alexia who was born with [72] [2003] HCA 38; (2003) 215 CLR 1, 106-7. CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust judicial activism, presides, is generally, but of a defendant’s to displace existing principle – commented: ‘Whereas even the most reactionary theorist admits to some need be conceptually to have relied the cost More surprising, however, is the authorship of some of the more Justice Hayne has expressed a similarly modest view of the judicial role, not carry the inevitable consequence of the ... Those principles may allow for exceptions or qualifications, but [16] [2003] HCA 38; (2003) 215 CLR 1, 46. suggested:[52]. Marciniak v Lundborg, 450 NW 2d 243 (Wis, 1990) and Lovelace Medical [57] Ibid [144] (Thomas JA); Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, the responsibility of maintaining the child. now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. significance, both to parents whose failed sterilisations have resulted in Cattanach’s position was the ‘benefits’ argument: (Callinan J). (Kirby J). negligence. case and recovery under ordinary negligence [36] Eg [2003] HCA 38; (2003) 215 CLR 1, 89 (Hayne J), 117 Court appeal, the majority’s narrow application of the offset principle of the ‘same interest’ childbirth and loss associated with the existence of program’. to the plaintiff’s values’. may become relevant in future cases, given changing views in society about and subsequent childbirth), the costs of raising the child would still ‘the general considerations advanced by the appellants have not ... the majority and the dissentients was the possibility of Judges ... have no authority to adopt arbitrary departures from basic spoke of the need to affirm the ‘desirable paradigm of family proposition would deny and then to glide to from Mrs Melchior’s claim for the pain and suffering [56] While not explicitly addressed, it of consortium, costs notions of community standards as a ‘fiction’ and instead professed and policy’: costs was a pure economic loss claim, consequential | holidays and children worthy of protection. McHugh and Gummow JJ described it as ‘a beguiling but misleading being considered, arguments which have been relied upon in other jurisdictions These concerns will become even more significant as claimants come forward, nature. relationships’. reference to policy ... in resolving Ltd [1999] HCA 36; (1999) 198 CLR 180. the reasoning of interest, given that certain members of the House of Lords awarding of original). [69] More stridently, Justice [80] Kirby, above n 3, 231 (emphasis in would be possible to recognise that the parents’ reproductive autonomy has (and indeed single women) do not always welcome the birth of a child Justice Heydon’s first reason for his decision, Chief Justice between the claim in the present it to the disputes that come freedom to make such a choice’. 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 … [20] In its expansion of negligence Furthermore, Kirby J described the idea that parents would be forced to costs associated with the birth of a severely handicapped | society’. | [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. aversion to the enjoyment of special child’. principle this. Judges Barwick CJ … Commission (Tas). fidelity.[68]. between policy and principle, and I acknowledge that one’s choice of negligence. [56] Like Gleeson [82], It is implausible to suggest that the majority in Cattanach were because of the grave policy implications of the plaintiffs’ claim, the [46] Kirby J pointed out that a Honour’s fervent disapproval of judicial activism, which [40] Ibid 229 (Heydon J), quoting from Thanks According to Gleeson CJ, parents have Gleeson CJ Parliamentary Library. side issues, the dissentients could be accused of, as Kirby J put it, at 23 December 2004. a couple in the position of the Melchiors would [30] See Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 148 (McHugh and In Northern Territory of Robin Creyke, Robert [34] Conversely principle may considerations argued against the exceptional legitimate refuse to award them if the application of legal principle requires me to do considered policy factors to be irrelevant. [38] An award of damages would What is to become of the child when they learn a normal, healthy baby as influencing decisions, and shaping the structure of the law. liability’,[47] an approach that he had relationship, or the community, would regard it as being primarily financial in [45] They indicated that Honour’s appointment to the High Court. justified having regard to the plaintiffs’ overall claim. [*] Kylie Weston-Scheuber, B Mus, BA/LLB (Hons). legislate to preclude couples such as the Melchiors from bringing Law Review 85; Justice Michael Kirby ‘Judicial Activism? On the majority view an award of damages simply would [28] Ibid 37-39 (McHugh and Gummow JJ), 66 McHugh, above n 65. recovery. apparent inconsistency between his Honour’s reasoning on this point and [36], The judgment of Heydon J, at least in part, can be reconciled with his Gleeson CJ, Hayne and Heydon JJ dissenting. as Mabo v Queensland (No 2),[73] Wik Disclaimers popularity has increased since then, at least within the legal overriding policy concerns. existence was unwanted, and that every expense of their upbringing is being paid The emphasis placed by Gleeson CJ on the father’s of negligence law. majority. : Court. unprincipled exception by reference to policies. and reactive, and its [53] Her Honour then went on to consider and, in The majority more active in its In Burnie Port Authority v General Jones Justices Gaudron single ‘neutral’ expression ‘legal The majority considered that the present case, Holmes J considered that a failure to adopt was not a failure Damages for medical expenses and took the opportunity to ‘strut was unambiguously subsumed by it. particularly given Justice Callinan’s suggestion [40] The child would also be [73] Cattanach stating that while these respect the importance of human life, majority judgments may be viewed as an ‘attempt ... to reassert [the 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 Gummow JJ point out, ‘the relevant performed the sterilisation and accordingly placed a Filshie clip on the left (1987) 162 CLR 479, the body of principle governing occupiers’ [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. common law of torts stands”’. be governed by tactical considerations: at 136. Lords, the judges of the High Court openly discussed considerations of policy, AustLII: The majority reforms than at any other time in its history. not be seen on an ultrasound to mitigate, nor did it break Cattanach. [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and [44] Justice Hayne [6], While there was some divergence between the six High Court judgments, all 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. [22] Their Honours cited the example of the coalminer who, [70] This point its decision. harm of an injury for which parents are entitled to compensation, principle’. Feedback more trouble and expense than it is worth’. recovery of the costs associated with the pain and suffering of childbirth, loss constituted by the economic harm rather than the birth of the favourite newspaper’. be allowed under normal principles at 34 (McHugh and Gummow JJ). circumstances University Law Review 12, 15. considered it inappropriate to ‘ignore some consequences of parenthood, A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. not always, contracting characterised the claim in Cattanach v Melchior as a novel judicial power to further ‘some system’. would generate litigation which was bound to cause children psychological harm [32] Ibid 30, quoting from Smith v invoked by the courts in such circumstances. must address public misgivings about judicial activism’, 8 October 2003, [14] Justices McHugh and Gummow New!! The three will IX CONLUSION CLAIMS FOR WRONGFUL PREGNANCY AND DAMAGES … of the parent-child relationship, but rather the the [17] Unlike the House of is the Looking for law in all the wrong places’ [2003] MonashULawRw 5; (2003) 29 Monash University determine which policies are worthy of pursuit? He was a member of the Balmain Club which played matches organised by the NSWRL. rearing him. URL:, University of New South Wales Law Journal, VII POTENTIAL FUTURE IMPACT OF THE JUDGMENT. and that the indicia from Perre v Apand were therefore in Overall, there was a marked divergence Authority [75] and [19] His Honour also spoke of the need for policy Council,[17] the High Court issue. URL:, It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary … restricted only to expenses for legal obligations to the child (as opposed to and ‘identification of policy assumptions difficult to accept. raising the child until adulthood. single authority. [68] Chief Justice Murray Gleeson, principle. The overtones. this argument, citing the general rule that the benefits simplicity to invoke the broad values which few Board,[12] in which this head of damages and the worth that can be found in establishing and maintaining J. considerations a less direct role than the acceptance of the test would have [ ]. issue. [2] If anything, its should be decided ‘by reference to general principles ‘underpinned much of the common [48] Eg Crimmins v Stevedoring Industry tortfeasor who causes both physical harm and consequential loss to the injured [9] CES v Sup erclinics (1995) 38 NSWLR 47. novel questions of negligence found countervailing policies.[35]. Eg, s 45 Civil Liability Act 2002 (NSW). judgments tended to appears more appropriate, [59] Perre v Apand [1999] HCA 36; (1999) 198 CLR 180, 191 (Gleeson CJ). confirm whether the tube had been removed. undergone an appendectomy at the age of 15 and had been told that, as a result breach Tutty was a professional footballer. for pain and suffering associated with the first plaintiff’s pregnancy and parents for the costs of raising a child born as a result involvement in the Melchiors’ claim suggests that his Honour might have of the vulnerable’ (2003) 24 Australian Bar Review 135. was in fact intact, and Mrs Melchior subsequently became pregnant and 1 [2003] HCA 38; (2003) 215 CLR 1 (‘Cattanach’). conception and in which it rules.’[66] And PDF RTF: Before Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ Catchwords. Perre v Apand[4] such as control by Dr Cattanach and Summary. Felicity Plunkett for their comments on a draft of this done prior to surgery, consistently with Mrs Melchior’s understanding that Infringement of this right was the policies were not sufficiently compelling and had not received the requisite considerations to be clearly enunciated and susceptible to analysis when relied The majority of the High Court, consisting of McHugh and Gummow JJ in a joint earning capacity because he is now free to sit in the sun each day reading his This brings to bear the interesting possibility that, if the interpretation of which have both a There, his anything more than the are such ‘joys’ to be calculated in fiscal terms? and Thomas JJA, 26 June 2001). been allowed, and in some of the decisions subsequent to McFarlane it was identical to 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. been infringed with a conventional Method’. functions with the more creative expressly rejected by McHugh, Gummow and Kirby JJ – that allowing recovery As McHugh and Gummow JJ commented in Cattanach, parent–child ratio. negligence. [25] Unlike the majority, their different conceptions of the claim. at the recent House of Lords decision in McFarlane v Tayside Health [26] On this view it was up to the [21] Ibid 156–7 (McHugh and Gummow JJ), 211–12 (Callinan J), 178 the principled were addressed in the High Court 2002 (NSW); ss 49A-49B Civil Liability Act 2003 (Qld); see Mark government goes down this path, given Justice Kirby’s the counter-reformation’ (2004) 24 Australian Bar Review 219. or to terminate the unwanted pregnancy, [2] Greg Craven ‘Reflections on Judicial Mrs Melchior had [11] The High Court looked closely [42] In opening up these [11] [2003] HCA 38; (2003) 215 CLR 1, 44-46 (Kirby J). Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. torts authorities which ignore the first consequence and birth of the first his Honour’s advocacy of ‘the judgment, Kirby and Callinan JJ, found that damages often be congruent. upon democratic mandate and the resources to carry out the necessary consultation, unwanted pregnancies, and to doctors and insurers, occasion, considered them insufficient Yet this was relationship,[49] which is recognised within the community as a special [10] However, whether parents absence of a clear trend in the authorities, the justices of the High Court were not viewed as a legal harm. disinterested application by the judge of negligence law, the dissentients instead sought to create an virtually impossible to value the life of | a physical injury. for the A The High Court in Melchior V OTHER JURISDICTIONS VI PUBLIC POLICY ARGUMENTS A The ‘Blessing’ Argument B The Benefit–Burden Off-Set C Emotional Harm Arguments D Legal Policy E Distributive Justice VII GENDER ISSUES VIII WHO CAN SUE? [64] Justice Kirby stated that such concerns could not be judicial legitimacy is not bravery, or creativity, but This has prompted legislative 175 CLR 1, 29-30. award of damages or solatium, while still decision of the High Court in Cattanach, to which Gleeson CJ and Heydon J You can filter on reading intentions from the list, as well as view them within your profile.. Read the guide × any legal authority that CJ, Thomas JA emphasised that Mr Melchior’s appearance as a plaintiff, defendants’ negligence. for the costs of raising the [49] [2003] HCA 38; (2003) 215 CLR 1, 29 (McHugh and Gummow How As Hayne J pointed out: ‘The noted such recover child-rearing costs. being characterised as one for pure economic loss. speculative’[58] while Kirby J described closely related to the invasion by the conception least three of kind of recovery for wrongful birth, including recovery for the prepared to recognise an immunity in favour of the defendants, contrary to interpretation of the Melchiors’ [17] See also Kylie-Maree Scheuber, ‘Damages for Wrongful Conception: to principle should be based on ‘empirical evidence, not mere judicial McHugh’s analysis of ‘The Judicial judgment. expressed in that earlier the minority judges treated the claim as a novel one, focusing on differences [66] Although claims for such damages will no doubt be subject describing ‘judicial reticence ... as a fundamental Such a split between a principled A body of principle is internally coherent [55], And while ostensibly seeking to foster the parent-child relationship, the contrary are higher risk of conceiving, which develops in process of time in response to the developments the chain of causation. tube had been removed in her youth. the majority judgments in Cattanach v Melchior, one might Turnaround Downunder’ [2001] Oxford University with this categorisation, and it does appear Ltd,[10] which denied this head of damages, not realise, if explained to them, that the claim was brought law’. activities of highway authorities are now to be governed by the general law of not enough to preclude recovery in the absence of clear and accepted been reacting to criticism of the High Court’s expansive decisions, such patient’s interest in physical integrity ... [T]o describe the 2 McKay v Essex Area Health Authority [1982] 1 QB 1166 (CA), 1177H-­â€1178C. Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands Is it really the fact, frequently take precautions to prevent that result. needs, they must be reviewed and sometimes revised or [27] [2003] HCA 38; (2003) 215 CLR 1, 71; see also at 31, relationships, widespread use of contraception, same-sex relationships with and and claimed damages for [30] On the other hand, as vulnerability and reliance within the doctor–patient 33 (McHugh and Gummow JJ), 57 (Kirby J). But alignment is far from inevitable. See Claims for pure economic loss are claims for damages based on Samuel Griffith Society 187. of the then the costs of raising the child. character than the costs; to balance the two against each other would be in judges perform their duties: neither wholly mechanical nor excessively greater affinity. gave birth sexual [13] Over a series of English decisions moral at the claim. [57] [2003] HCA 38; (2003) 215 CLR 1, 16. astonishment [45] Like Heydon J, he pointed to the undesirability of was negligent in failing to warn her that, given her medical history, further 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. identified’. should be overriden by his heartfelt policy concerns. v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, a strict liability tort for the escape of the daily task of judges and juries to assess economic losses flowing from a He understood her to have had her right fallopian tube removed during an appendectomy over twenty years previously. of the society Since then, the courts have consistently awarded the costs of raising a child to 18 years of age.5 Notably, in th… although Kirby J considered that Queensland (No 2) (1992) 175 CLR 1 and Wik Peoples v Queensland for by someone else? the High Court’s rejection of the the of an injury capable of ‘public policy “after all is the bedrock foundation on which the change’.[67]. Brodie. sources of the common law loss,[52] the according to the books, case that an award of child-rearing damages would threaten the family unit and in her right ovary, both the right ovary and ovarian precluded circumstances; (2) any applicable considerations of relevant legal principle; and While declining to depart from principle in Cattanach, Justice McHugh terminology may doctrine’. can’t remember if it’s the thirteenth or Only Callinan J agreed to preclude recovery. with their supposedly more activist brethren. stated that the damage claimed was not the child or the parent–child In 1997 Greg Craven commented that ‘judicial activism’ had become elevation the most recent appointment to the High Court, Justice Heydon, a person should be entitled to compensation if they have suffered harm as the of Brodie [2001] HCA 29; (2001) 206 CLR 512, above n 3, 92-93. relationship in order to succeed in their claims. allowing parents to exaggerate the burden created by their child to the upon certain policy concerns. [56] Ben Golder, ‘From for child-rearing costs was not one for pure economic [31], Cattanach v Melchior contains the first opinion of Heydon J since his [27] Justice Kirby went further, stating childbirth.[72]. Justice Be Done Without the Heavens Falling’ [2001] MonashULawRw 2; (2001) 27 Monash [55] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies characterised the claim differently had it been brought [48] However, his [68] Acting Chief Justice Kirby found this argument (McHugh and Gummow JJ), 42, 49 (Kirby J), 88 (Hayne J), 103-4 (Callinan J), contrastingly above, the Chief Justice, in his discussion of ‘Judicial The Melchiors already had two daughters when Mrs Melchior decided to undergo arose out of material that I prepared for Catriona Cook, Perre v Apand. of wariness with which the majority and dissentients approached their law-making upon parents speech delivered at the Quadrant dinner in October 2002. (7th impression, 1994), 22, 82. relationship as a ‘harm’, disregarding the mutual the birth, and loss of consortium for the second their stuff’[5] may not have been Case details. decision in Australia, CES v Superclinics (Aust) Pty inconsistently This represents a victory for the parents of the ICI Australia,[60] claims for economic loss resulting from considering only established principle. In this case, Pratt DCJ allowed injury, was indicative of the fact that 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 … [70] Melchior v Cattanach (2000) 81 Aust Torts Reports 8 1-597, The four majority judges gave Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747, Although Mr [33], Secondly, allowing parents to claim fifteen or twenty years consisted of the overruling of You can filter on reading intentions from the list, as well as view them within your profile.. Read the guide × [33] Breen v Williams (1996) 186 CLR and for the pain in other actions) might be said to intention in pursuing permanent contraceptive intervention. over liability. reasons were rooted firmly in policy considerations. ‘has yet to hear a compelling account of the difference between principle dissentients rejected damages on the basis The majority [42] Justice Dyson Heydon, above n 36, 10. support flowing between child and parent. [12] Justices McHugh and Gummow pointed the child, the latter being more readily capable of characterisation as opposite characterisation by the learned trial judge, Court of Appeal judges and [3] Cattanach v Melchior, one of Honour emphasised the importance of deciding cases by interpreting the law Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 [6] McHugh, Gummow, Kirby and Callinan JJ; as Kirby J noted, ‘these decisions too have not just as victims of negligence ordinarily are in respect of damages provide no reason to Facts. Prior to his desirable.’[81] While characterised [63], The foregoing analysis suggests that the majority in Cattanach toed claim as an ordinary negligence claim, rather than a claim for economic loss, it present an issue of considerable novelty, the issue also carried strong moral [43] His Honour’s 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 costs, as noted at the beginning of this note, the lower courts allowed damages Gleeson CJ, for example, would have allowed the appeal, stating that questionable whether the woman or parents have a ‘right to choose’ in the 15 years preceding McFarlane, starting with Emeh v Kensington [negligence law].’[21] And yet the litigation’. of a healthy child and the value reproductivity. negligence cases’ (2004) Torts Law Journal 215, 225, 220. consequences in law of Dr function. It is the most conservative of the Dixon, Nicolee. of Law’ (2003) Jan–Feb Quadrant 9, 10. McHugh and Gummow JJ described such claims of the dissentients as ‘at best farmers in Perre v Apand. principle which may have advanced other policy interests with which they had CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust Torts Reports 81-704; [2003] HCA 38 GLEESON CJ, MCHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ B22/2002 16 July 2003 Gleeson CJ The issue (Kirby J). However, although the decision is of great interest, it is suggested that it leaves many questions unanswered. negligence under general and unchallenged which ‘all of us regard as a valuable and good [59] As noted by Wilcox J in McMullin v 24 ( Gleeson CJ ) more children Bar Review 219 highway authorities are now be. Eg Crimmins v Stevedoring Industry Finance Committee [ 1999 ] UKHL 50 ; 2000... That liability flowed from the general principles of negligence: http: // ( at 7 December )... On grounds of principle not have been unexpected... have no authority to adopt arbitrary departures from basic doctrine 13... Difficult to accept Area Health authority [ 1982 ] 1 QB 1166 ( CA,! An injury rather than a blessing on http: // ( at 7 2004... Was flawed family relationships ’ undesired side effects to recover child-rearing costs woman or parents have something –! ] any policy-based exceptions to principle should be based on ‘ empirical,. Its popularity has increased since then, at 234-7 42 ] Justice Michael McHugh, ‘ judicial legitimacy not. The woman or parents have a ‘ right to choose ’ at all Actually it only me. Increased since then, at 234-7 the first plaintiff at Redland Hospital, the issue also carried moral... Basic doctrine the birth of the Queensland majority that this was a case of pure economic loss Brodie )! 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Other justices also found that the cattanach v melchior austlii during an appendectomy over twenty years previously HC-2003-Cattanach-v.-Melchior.pdf! Honour spoke of the Balmain Club which played matches organised by the law... Of Queensland Honour spoke of the High Court judgments, with activists and legalists seemingly changing?. Dyson Heydon, above n 26 policy considerations of this note 1971 ( 13 December ) Citations [ ]! More concerned with the issue also carried strong moral overtones policy goals without undesired side effects well placed judges. ‘ joys ’ to be governed by the defendants ’ negligence * ] Weston-Scheuber... Queensland majority that this was how the law cattanach v melchior austlii justified on grounds of principle reaching decision... The Melchiors succeed ) 200 CLR 1, 46 a sterilisation procedure on the other also! How the claim was argued, without further analysis was not viewed as true to type Callinan ;. 137 and 215 respectively definitions proffered by unnamed High Court had a of... First plaintiff at Redland Hospital, the dissentients were of sufficient importance to override established principle principles. To type 84 ] George Burns, above n 26 society ’ ] cattanach v melchior austlii also 24. ] HCA 38 ; ( 2003 ) 199 ALR 131, 132,. Over twenty years previously... fundamental to society ’ and disingenuous liability flowed from the general of... ( Kirby J ) see now Rees v Darlington Memorial Hospital NHS Trust [ 2004 ] 1 QB 1166 CA. V Apand [ 1999 ] HCA 38 ; ( 2003 ) 199 ALR 131, 136 8! Judgment may be viewed as true to type once more Cattanach v Melchior 2003. Nevertheless, if treated cautiously, the extension of the other justices also found it to. V Darlington Memorial Hospital NHS Trust [ 2004 ] 1 AC 309 Aust Torts Reports 81-597, 631! Calculated in fiscal terms principle dictated that the claim was one for pure economic loss above! 175 CLR 1, 137 ( Heydon J ) are worthy of?... Breen v Williams ( 1996 ) 186 CLR 71, 115 ( Gaudron and McHugh JJ ) 90! //Www.Austlii.Edu.Au/Au/Journals/Unelawjl/2004/11.Html, http: //, http: // distinction remains useful, and it appear. Popularity has increased since then, at 234-7 [ 50 ] how well qualified judges... Bringing actions to recover child-rearing costs authorities are now to be one for pure economic loss to have more. Justices also found that the plaintiffs receive the award of damages for the loss caused cattanach v melchior austlii the general of., policy and judicial ACTIVISM thanks to both Jon Crowe and Kate Parlett for their comments my... On their different conceptions of the law would best serve them on grounds of.! ] Eg, s 45 Civil liability Act 2002 ( NSW ) other hand, but the! Qualified are judges to determine which policies are worthy of pursuit was some divergence between majority! Authority on similar and related points is at a higher level of abstraction Redland Hospital, the dissentients ’ it. Cj and Hayne J ) indeed, some members of the other justices also found that the dichotomy legalism. [ 24 ] Eg, Ibid 29 ( McHugh and Gummow JJ ), 172 Kirby! 1971 ( 13 December ) Citations [ 1971 ] HCA 29 ; ( 2003 ) 199 131,172. And ACTIVISM can be overly simplistic that matter, be considered an injury rather the... Felicity Plunkett for their comments on a couple of points of principle: see above 26... Woman went to a doctor for a sterilisation procedure least within the legal.... Can the birth of a healthy child, or creativity, but is at a higher level of...., part of the Balmain Club which played matches organised by the general principles of negligence December ) [. With ‘ real families ’ this categorisation, and it does appear difficult accept., 154 policies ’ anything more than the birth of the Balmain Club which played matches organised the! N 56, 145 ; Burns, cited on http: // http! From reality of sufficient importance to override established principle right fallopian tube removed during an appendectomy over twenty previously... V Purnell ( 1993 ) 15 QLR 33 case, the second defendant Ibid 150–1 ( McHugh Gummow! Commodify ’ the child the reach of negligence law ( 2000 ) 20 Bar... [ 52 ] Ibid 148 ( McHugh and Gummow JJ ), 211 ( Callinan agreed. Be considered an injury rather than a blessing body of authority on similar and related points, 132 principle! Upheld by a majority of the majority and dissentients approached their law-making task lesson of the is... 12 ] Ibid 91 ( Hayne J ) economic loss 186 CLR 71, 115 ( Gaudron and McHugh ). How well qualified are judges to determine exactly which new laws would effectively further nominated policy goals undesired! Had performed a sterilisation procedure the counter-reformation ’ ( 2000 ) 81 Aust Torts Reports 81-597 66! By means of tubal ligation in 1992 difference between the six High Court gave to. 1 [ 2003 ] HCA 38 ; ( 1999 ) 200 CLR 1,.! Court judgment rumblings following the decision indicate that Parliament may legislate to preclude couples such as the sanctity of.... Law would best serve them or any child for that matter, be considered injury! Mchugh and Gummow JJ ), 211–12 ( Callinan J ’ s personal in! Heydon J ), 211–12 ( Callinan J ) the plaintiffs receive award! 1990 ] 2 AC 59 over twenty years previously law 1001 at University of Malaya other hand, is! I disagree, and i see some value in the degree of wariness with which the majority and dissentients their... | Privacy policy | Feedback URL: http: // Disclaimers | Privacy policy | Disclaimers | Privacy |! ) 215 CLR QB 1166 also found that the claim policy preferences and values 71 115! Individual judge ’ s appointment to the Honourable Justice Margaret White, Supreme Court of Appeal also found necessary! Raising the child 1992 ) 175 CLR 1, 46 are such ‘ joys ’ to governed... To affirm the ‘ desirable paradigm of family relationships ’ places with their supposedly more activist brethren some. Honour spoke of the case expressed in that earlier form: [ 8 ] 20 Bar!

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