Cattanach & Anor v Melchior & Anor

[2003] HCATrans 562

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B22 of 2002

B e t w e e n -

STEPHEN ALFRED CATTANACH and THE STATE OF QUEENSLAND

Appellants

and

KERRY ANNE MELCHIOR and CRAIG MELCHIOR

Respondents

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2003, AT 10.04 AM

(Continued from 12/2/03)

Copyright in the High Court of Australia

t2/tk
GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours, may I deal quickly with some loose ends.  Your Honours will have noted what appears to be a statement as to Professor Markesinis’ view of the German position in paragraph 62 of our written submissions with, alas, no precise citation.  That comes about by reason of its source.  May I hand up the documents which provides that material.  What I am handing up to your Honours includes, as it appears, it is an electronic publication, a note in more or less italic print at the foot of the last page.  That print is too small for me to read easily.  I have had it reproduced in larger print and that is what appears as the first page of the bundle I hand up to your Honours.  I do not want to say anything further about it.

GLEESON CJ:   Does this mean that the Germans would distinguish between claim in contract and a claim in delict?

MR WALKER:   It would appear that there are points at which that distinction does emerge.  However, it does not appear that that is a distinction which matters for the supposed policy question as to whether there is anything in German positive law requiring non-recovery of such damages.  We have drawn it to attention not because we put it to the forefront of our argument but because it is slightly at odds with the material drawn to your Honours’ attention by our learned friends’ written submissions and it certainly does not support the proposition that Germany takes a position consistent with the appellant’s submissions to the contrary.

The next matter requires me again to apologise for the solecism of yesterday in relation to special damages.  May I simply draw to your Honours’ attention a discussion of what might be called the terminological, perhaps even the conceptual, issues which are given rise to by those terms general and special damage.  Conveniently, a summary of those matters can be found in McGregor on Damages starting at paragraph 19 and continuing to about paragraph 23.

In Paff v Speed 105 CLR to which your Honour Justice Gummow drew attention yesterday in the judgment of Sir Wilfred Fullagar, in particular at page 558 to 559, there is a discussion which certainly justifies my alteration of what I said yesterday to the following extent.  The claim before your Honours is, to use the expression of Sir Wilfred Fullagar, economic loss – see paragraph 2 of our written submissions in this Court.

It was, of course, in that case – a case of personal injury – not pure economic loss at all.  It was what might be called economic loss consequential upon a wrongdoing and part and parcel of that which required compensation in the ordinary common law manner.

The second matter to be pointed out is that that means that, rather than this case being about special damages, as I so roundly and wrongly said yesterday, it is partly about special damages and it is partly about an item in the general damages, but it is wholly about expenditure – past expenditure and future expenditure.

CALLINAN J:   Mr Walker, could I just ask you a question.  The fact that the female respondent wished to undergo a sterilisation procedure has no moral overtones or anything of that kind.  It is perfectly legal for her to do that.

MR WALKER:   Yes, and proper.

CALLINAN J:   And proper, yes.  Now, why should there be any distinction between that and her undergoing a legal abortion after the child is conceived but before the confinement?  Why should there be any distinction?  Why should one not say that she had failed to mitigate?

MR WALKER:   Why should not one say?

CALLINAN J:   Yes.

KIRBY J:   That is a very grave decision for any person to take.

CALLINAN J:   I do not doubt that it is a grave decision.  It is a decision that I might have a very strong view about myself.  But, in principle, why should there be a distinction?

KIRBY J:   But even people who support choice would acknowledge that it is a very grave decision for a woman to take, or a couple to take.

MR WALKER:   Yes.

CALLINAN J:   Many people would say sterilisation itself is a very, very grave decision.  I know views differ on these matters, but some people would say that.

MR WALKER:   There is the world of difference ‑ and this is not to enter upon religious differences at all ‑ there is the world of difference materially and humanly between preventing conception and altering what would otherwise be the natural course after conception.

CALLINAN J:   Why?

MR WALKER:   In the one case it can be said that there is no new life ever brought into being, and in the other case the controversy arises as to whether a new life has been brought into being.

CALLINAN J:   Many, many people would not draw that distinction; I might, but many people would not.

MR WALKER:   The regulation of the termination of pregnancy, whether by statute or by court decisions or in the interstices of court decisions is, in our submission, a demonstration of the very concern that there is a difference between contraception and abortion; a difference which is comprehended by an appreciation that as the time of normal gestation goes along it becomes less and less viable to pretend that there has not been a new life created.

CALLINAN J:   You are really asking the Court to impose a moral disapprobation when you, on the other hand, tell us that questions of morality or public policy are irrelevant in this matter.

MR WALKER:   The first and most important aspect of my answer to you, however, has to be this.  This case was never fought as if the availability of lawful abortion was an issue between the parties, factually or legally.  There is nothing in the record of this case which would permit this Court even to venture in, on any expression of opinion, as to what my client could or could not have done according to law.

CALLINAN J:   Well, Mr Walker, if it were to be raised it would have to be raised, I would have thought, by the defendant, as a matter of mitigation, the onus being on the defendant to prove the failure to mitigate.

MR WALKER:   That is the first thing as to why it is not an issue in this case.  The second thing is that, as we would say, properly, both in accordance with legal principle and in what might be called proprieties, the State has expressly disavowed that argument.  Thirdly, the authorities in other countries, including McFarlane, and like the curate’s egg we say it is good in part, dismisses that as an appropriate way by which a chain of causation can be broken, whether one talks in terms of a duty to mitigate or simply in terms of a novus actus.

CALLINAN J:   I am not too sure abut that last matter.  It seems to me to involve a moral judgment and yet, as to the rest of your case, you have to say, “Do not make moral judgments”.

MR WALKER:   No, your Honour, it is not moral.  It is a matter of that degree of empathy which a Bench has to exercise when answering the question raised about a plaintiff’s conduct as he, she or it behaved reasonably with respect to steps which may have mitigated the loss.  In that question “acting reasonably”, particularly with personal conduct in a case of this kind, it is not to intrude morality about which there may be severe social controversy to observe that it is not reasonable to ask somebody who was prepared to carry a child to term, nonetheless, to be treated in the law as someone who should have “acting reasonably” not done so.

I referred yesterday in passing to Rogers v Whitaker.  The particular reference with which your Honours of course are well familiar is at 175 CLR 487 and, in particular, we wish to draw to your Honours’ attention and rely in this case on the way in which this Court described the consideration:

that a person is entitled to make his own decisions about his life”.

in the context of that case.  The epithet chosen in the quotation approved by the Court was “paramount”, “the paramount consideration”.  That then leads, of course, to the question of the interests sought to be protected and the interests infringed and, in particular, to some questions from your Honour the Chief Justice yesterday, whether one describes this as the interest in having reproductive choice honoured, that is, observed to the extent that careful medicine may be able to do so, or whether one describes it in some of the other ways that one finds, for example, in our written submissions in my address yesterday, these things remain true of it and taking choice of reproductivity as the example.

It involves seeking to protect on the woman’s part her body against an unwanted pregnancy and delivery with all that that entails, good or bad.  The bad is, of course, that which when infringed gives rise to the legal harm carrying in its train the right to common law damages.  It obviously involves, because it is reproductivity in question, not merely the first phase; it involves the succeeding phases, namely the baby, then the infant, then the child, then the adolescent.

The fact that it comes through in phases, of course, is entirely familiar to the law, to take the paradigm case of the two party, the two person personal injury case.  There is the acute phase of trauma, pain and suffering; there is the immediate recuperation; there is the long‑term rehabilitation; there is the enduring incapacity.  These too are phases, both qualitative and temporal and that is reflected exactly in this case as well.

The interest, however expressed in the various ways I have sought to deal with or have advanced, when infringed cannot, in our submission, by any description of the interest itself or the event which leads to its infringement or those things which constitute infringement leave out of account the financial consequences imposed morally, socially and, more importantly in this case, legally, upon parents to bear responsibility, including financial responsibility for the maintenance of the child.

Could I, in that connection, in particular, refer back again without taking your Honours to the particular passage in Kealey at page 740 of the report near f in the margin, a reference by Justice Lax to perhaps one of the pivotal parts of her reasoning, namely that nothing the defendant did had prevented the plaintiffs, her word “prevented” the plaintiffs, from discharging their responsibilities.  That shows how very different, apparently, the argument was in that case, certainly how very different the reasoning in that case is to the reasoning that we would urge on your Honours.

It is not a matter of whether the defendants have done anything to prevent my clients from discharging their responsibilities, including financial maintenance, that is the financial burden of maintenance.  The whole point is that by reason of the negligence a need to pay money which would not otherwise have existed has come about.  It is the reverse of the way in which Justice Lax put it.

May I then move to the way in which, at critical points, there can be error seen, in our submission, in some of the main approaches by the House of Lords in McFarlane.  Your Honours have already had reference to the article by Laura Hoyano, upon which your Honours do not need me further to expatiate.  In our submission, the following matters, however, deserve some extra emphasis.  The first one is the resort – apparently as an alternative to public policy, which is, by most of their Lordships, eschewed explicitly – a resort by way apparently of inarticulate premise to an imagined answer to an imaginary question to a person who is apparently the latter day equivalent of what I think Walter Bagehot first described as “the bald‑headed man at the back of the omnibus” in about 1867. 

The first thing to be said is, it is not, in our submission, as to the existence in law of a duty, or as to the existence in law of something in the nature of an immunity, or as to the existence in law of something in the nature of a bar to the recovery of a particular kind of damage – it has never been a recognised legal technique to conduct what might be called a Gallup poll.  It is difficult to imagine a body, particularly an organ of government such as this Court, less well adapted to the conduct of Gallup polls than this Court. 

KIRBY J:   Yes, but it is not at all unusual to see reference to the so‑called reasonable man or reasonable person.  That is just the person on the Underground, is it not?

MR WALKER:   It is not merely unusual but it is unheard of for that to be the reason in law for an answer in law as to, for example, the existence of a duty, an immunity or a bar.  Indeed, had the law taken that view about the role of this imaginary interlocutor with a court, then it is very difficult to see why juries were not the sole arbiters of questions of the existence of a duty.

GLEESON CJ:   Is a reference to the person on the Underground anything more than a politically correct way of referring to what used to be called the “reasonable man”?

MR WALKER:   It is the gender free aspect of it.  It may be politically correct.  The London Underground, one could be thought, may commit other errors not so politically correct as to the south‑east of England as opposed to other parts of Great Britain ‑ ‑ ‑

GLEESON CJ:   The fundamental problem is, is it not, that we live in a multicultural, which I understand by definition to mean multi‑value, pluralist society.

MR WALKER:   Yes.

GLEESON CJ:   So that deciding contestable moral questions by reference to what any particular person would think about them loses its validity.

MR WALKER:   It does.  It is also ‑ ‑ ‑

KIRBY J:   That merely means we have to be careful about picking up cases in other jurisdictions and saying that therefore applies here.

MR WALKER:   Yes.  As a heuristic device, it also suffers from a familiar defect.  It is not something about which by demonstration logically, either by material outside the assertion with which one is trying to meet, and certainly from any material used in the advancement of the assertion one is trying to meet, it is not possible to falsify.  “I say”, says a person, be they counsel or judge, “that the answer by the person on the London Underground to this question would be X.”  If it strikes a cord with the audience of such a statement, then it is so.  If it does not strike a cord, then it is rejected as the kind of material from the Bar table which is simply wasted time.  In our submission, it does not become intellectually more respectable – and I say this with the greatest of respect – when it is contained in a judgment.  It is not something which is capable of testing, let alone of falsification, by any of the material mustered and displayed in support of it in the reasons for judgment.  That, in our submission, is a sure sign that it is not at one with the usual methods of judicial demonstration of the correctness of the result the judge has attempted to reach.

Allied with illegitimate resort of that kind, which, in our submission, cannot merely be dismissed as literary, rhetorical or homely reference, is a quite different and much more conceptual reference to two values about which your Honours has heard a deal yesterday, so‑called corrective as opposed to so‑called distributive justice.  It is not possible within the text, and it would be illegitimate to go outside the text, to give your Honours a precise explication of those terms but it would appear, we submit, that the contrast is intended to be drawn between the party against party dispute resolution, which is characteristic of corrective justice, the identification of a wrongdoing by a wrongdoer, and the need for reparation in favour of the wronged victim by the wrongdoer – corrective justice – whereas on the other hand distributive justice compares the outcome in principle of one kind of case, such as is before the Court, with the outcome in principle of another kind of case allied so as to make comparison sensible.  Thus, for example, the reference to the previous decisions of the House of Lords themselves, certainly not ultimately persuasive in this Court now since Tame and Annetts, in relation to the recovery for nervous shock, differentiating between relatives watching television and police officers being at the scene.

In our submission, whatever else distributive justice may mean, comparison by reference to coherence or instinctive reaction or, perhaps more correctly, intuitive response to the different outcomes of different cases is something which, in our submission, would ordinarily be part and part of corrective justice and it would come in particularly at the duty question.  If a duty is not owed in Case X, should it be owed in Case Y?  What are the similarities and differences between Case X and Case Y?  That is the tool of incremental and analogical reasoning.  It is not, in our submission, to be called an alternative approach and because this case does not raise the duty question, it is of no use in solving the problem in this case.

Alternatively or further, distributive justice has Posnerian overtones, allocating ‑ ‑ ‑

KIRBY J:   What is wrong with that?

MR WALKER:    ‑ ‑ ‑ I was about to say, allocating ‑ ‑ ‑

KIRBY J:   Justice McHugh always brings Posner down and I am surprised is not here today.

MR WALKER:    ‑ ‑ ‑ allocating liability to what might be called the most efficient source of recompense or, perhaps more accurately, that person who may most efficiently act so as to eliminate or avoid the risk in the future. 

CALLINAN J:   How can judges who swear to do equal justice between rich and poor possibly subscribe to that theory?

MR WALKER:   Yes, quite so.  We would simply add to the materials your Honours already have on that by way of emphasis again and, with respect, your Honour Justice Gummow’s comments in Perre v Apand, particularly at 198 CLR 242 to 243 in paragraph 171.

KIRBY J:   I will just go on pretending that insurances had nothing to do with the great expansion of imperial negligence, I will just go on pretending.

MR WALKER:   Surely not, your Honour.  However, for those of us who pay premiums, it can no longer be said with ease in all areas, least of all medicine, that insurance, as it were, has thrown a soft blanket over the deterrent effect of findings against individual tortfeasors.

CALLINAN J:   Every empire ultimately crumbles, Mr Walker.

MR WALKER:   Yes, and, as I say ‑ ‑ ‑

KIRBY J:   It is attacked from outside.

MR WALKER:    ‑ ‑ ‑ it can no longer be said because the burden is supposed shared by insurance, it can no longer be said that a judgment against an individual tortfeasor who happens to be insured is deprived of that deterrent effect which the basic ideal of corrective justice, that is, restorative justice has been thought for hundreds of years to convey.  In our submission, that is an evergreen value and is not to be passed over in preference to the vague and, in our submission, entirely unsatisfactory notion of distributive justice.

Your Honours, while in McFarlane, could I remind your Honours of another of the approaches characteristic of the way in which the outcome was reached in that case.  It is best illustrated in Lord Clyde at page 103 of the report, [2000] 2 AC just between letters C and D.  There one finds, for example, this confusion of areas of discourse in the language and concept of value and the inappropriate rhetorical question addressed, as it were, to a parent in the position of my clients.  His Lordship said:

Furthermore, in order to pursue such a claim against the risk of such a set-off, a parent is called upon in effect to prove that the child is more trouble than he or she is worth in order to claim. 

That is a powerful reason, of course, against the set-off, total or partial, to which my address was directed in part yesterday.  I do not say anything more about that.  It is, however, a good example of the inappropriate rhetorical question which is at the heart of the appellant’s case.

That brings me to the question your Honour Justice McHugh raised yesterday a question different from the way the appellants have framed the matter but which requires confrontation.  Is this a case about an immunity, new in the sense that it has not hitherto appeared in the books.  Your Honour, in particular, started with the example of advocate’s immunity, and your Honour the Chief Justice added, judicial immunity.  The catalogue perhaps should be completed or at least swelled by reference to the immunity of parliamentarians, jurors, witnesses, to some extent arbitrators, certainly judges and advocates to the extent that that is correct, that is at common law.  One can add by way of a parallel, if seeking to understand policy behind it, the very common form of statute enacted as part of the political movement in relation to the legal immunity of the Crown by which statutory officers, other officers of State and government employees are from time to time granted forms of immunity such as, for example, when they are bone fide carrying out the functions committed to them.

KIRBY J:   But these are all public law purposes?

MR WALKER:   Quite so.

KIRBY J:   Your client cannot invoke that or the appellant cannot invoke that?

MR WALKER:   Quite so.  They can all be seen – certainly all the common law ones but also obviously the statutory ones – as being in the public interest, and all of them that I have named, all of them so as to enhance the functionality – in some cases, extreme cases, to permit the operations of an organ of government in the public interest.  Even advocate’s immunity needs to be justified, I would respectfully submit, in terms like that.

If that is correct, of course, the only comparison with the steriliser’s immunity, with which I am dealing, is of a perverse contrast.  The functionality of the desired sterilisation, the functionality of holding a professional to a standard of care which it is conceded by the appellants did become imposed upon the surgeon, would be to no degree at all enhanced by the law pronouncing that if he or she behaves negligently, there will not be the most obvious financial consequence brought home – sheeted home to the wrongdoer, but the victim will have to bear that loss.  In our submission, that is an adequate reason why this Court should reject, if this Court, against our submission, were to regard it as properly before this Court, the notion of any such immunity.

The second reason why there should be no such finding is, of course, that immunities abolish the very notion of there being a duty.  I do not mean that they abolish a duty, they prevent a duty from arising.  They do not attach in law in the following fashion, namely, there is a duty of parliamentarians owed to individuals not to defame them in debate.  However, there may not be damages awarded even though a court may adjudicate the existence of the duty and the breach of it .

GUMMOW J:   The highway rule used to be expressed as an immunity?

MR WALKER:   Yes.  That, too, fits what I have said about the catalogue earlier.  It is a function of government.  It is thought to have enhanced its functionality, different conditions, different results in terms of the so‑called highway immunity.  Indeed, one can see Brodie as a vindication of the principle I have put this morning because the majority of the Bench decided that the functionality required no such response by the common law.

Your Honours, the deterrent effect, therefore, of the tort of negligence, that is, the vindication of the fact of a wrong and the ordering of reparation by the wrongdoer in favour of the victim, would be, were there any such amenity, in this case interrupted at a point which, in our submission, would be offensive to elementary notions of tort liability.  It would not say, there is no grievance actionable; it would rather say, there is a grievance actionable, because there was a duty of the familiar kind, a duty which will be pleaded in relation to the steriliser in exactly the same way as it will be pleaded for the same doctor when he or she delivered a baby.  Pleaded in exactly the same way as to the general terms of the standard of care.

In our submission, the perversity of the result is to single out some, but not all, of the financial consequences, the economic loss, as being recoverable.  That is, of course, to draw a line, and while the province of the common law is to draw lines, nothing in the appellants’ argument, drawing on any of the authorities as to control mechanisms, even the pure economic loss cases, justifies why a line should be drawn where it has been drawn.  Rather, the argument depends on socially controversial propositions about the benefit of a child as a universal fiction, which certain plaintiffs, in certain contexts, cannot be heard to deny.

In our submission, by reason of the controversial nature of that, well demonstrated by the powerful dissents and contrary decisions, here an elsewhere, well demonstrated by the reasons of the trial judge and the majority in the Court of Appeal in this case, this is not the stuff of public policy or legal policy which this Court can, as it were, decide by taking sides.  On the other hand, there is an organ of government, namely the

parliaments of the country, which are entirely well adapted to take just that kind of decision.

KIRBY J:   That has not been the view of all those American judges; they have taken sides, one side or the other, but they have taken sides, they have done their duty in solving the case.

MR WALKER:   Your Honour, the duty is to decide cases according to law and the burden of my submission is that the technique used by those judges, a technique described, in our submission, correctly criticised by many of the dissents, is to draw a line, not by reference to any rule of law or recognised judicial technique, but by instincts of repugnancy alone.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with some administrative, as it were, matters.  Your Honour Justice Kirby asked about the position in relation to social security and, in particular, I think, something about the circumstance in which a young person might not be able to obtain some benefits until 25 if that person had supporting parents.  Your Honour, the availability of material ‑ ‑ ‑

KIRBY J:   This was on the relevance of 18 as distinct from 25, and I think you ‑ ‑ ‑

MR JACKSON:   Yes, that is so.  We have given your Honours – I hope your Honours do not mind my doing it this way – the summary of the benefits that are available and your Honours will see, in particular, at, I think, pages 11 to 13, but in particular page 11, you will see a “Newstart Allowance” in the left‑hand column and then a “Youth Allowance” in the right‑hand column.  The conditions of eligibility for each of them are there set out.  I do not know that I need to say any more about them, but your Honours will see, for example, the position which seems to be, in relation, for example, to the youth allowance, that they have to be Australian residents:

aged 16 to 24 . . . generally be in full‑time study;

- Students aged 25 or over . . . remaining in the same course.

And a couple of other categories are set out there.

That is the first thing, your Honours.  The second aspect concerns the position in relation to European law.  The extract from the work that my learned friend gave your Honours this morning is one from a book that was about to be published.  The book has in fact now been published under a slightly different name, “The German Law of Torts”, and we have given your Honours copies of the relevant parts of it.  Could I refer to page 179 – that is, “The German Law of Torts:  A Comparative Treatise”.  Page 179, about point 6 on the page, there is a reference to “The position in private law” and then in the next paragraph there is a reference to the fact that the same issue has been decided, in effect, differently by the Constitutional Court on the one hand and the Court dealing with non‑constitutional matters on the other. 

KIRBY J:   Do you know if McFarlane was taken to the European Court of Human Rights? 

MR JACKSON:   Your Honour, I think the answer is no, but I will endeavour to check it. 

KIRBY J:   If you would. 

MR JACKSON:   Your Honours, we have also given a reference to a quite useful book by Von Bar, called “The Common European Law of Torts”, volume one, which was published I think in 1998.  Your Honours will see a discussion of the position at that point and, in particular, if I could refer to paragraphs 581 through to 583. 

Your Honours, may I move on to the matters with which I wish to deal by way of reply.  One short matter is this.  In relation to what was the finding of negligence, your Honours will appreciate that this issue was the subject of appeal to the Court of Appeal.  There was considerable analysis of the actual basis on which the primary judge had arrived at her conclusion and the view taken by the Court of Appeal appears from Justice Thomas at page 306 paragraphs [130] to [132].  I took your Honours to those earlier and I shall not go back to them, but that is where your Honours will find the essence of it.

Your Honours, may I move then to the observations have been made in relation to Benham v Gambling [1941] AC 157. In passing, I think it was said, although perhaps the exact word was abused, that a gloomy view was taken of life by Viscount Simon. I will take your Honours to the passages in a moment, but if one looks at the observations that Viscount Simon made at page 166 about point 3 and page 167 about point 6, to which I will come a little later, one really sees that he is recognising that it is difficult to predict what the future holds and hardly surprisingly, perhaps, in the case of a decision made not long after the conclusion of the Battle of Britain where the Houses of Parliament had suffered some damage. Your Honours, could I go to page 167 about point 6 where his Lordship said:

The main reason, I think, why the appropriate figure of damages should be reduced in the case of a very young child is that there is necessarily so much uncertainty about the child’s future that no confident estimate of prospective happiness can be made.

Prospective happiness is speaking in a sense of what is on the previous page described as “life’s fitful fever” and the reality, your Honours, was, if one goes to the next page, page 168, about the fourth line:

The truth, of course, is that in putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the jury or judge of fact is attempting to equate incommensurables.

About point 9 on the same page he said it is really:

incapable of being measured in coin of the realm with any approach to real accuracy.

Your Honours, what emerges from it in a sense, is perhaps the right answer so far as there might be one, would be that there should be nothing under that head, but amounts have been awarded for years, so an amount was determined.  But there is, your Honours, an analogy with a case of this kind in relation to the future.  It is a very, very difficult to predict one way or the other.

The next matter with which I wish to deal is the argument of what benefits should or should not be taken into account.  Your Honours, in our submission the argument of the respondent takes too narrow a view of the factors which are taken into account in assessing damages for personal injury.  Your Honours, if one takes the fishing trip, as it were, one can see that the benefit of that is taken into account.  That can be seen, your Honours, from the discussion of these aspects in the joint reasons of Justices Gibbs and Stephen in Sharman v Evans (1977) 138 CLR 563. In particular, your Honours, it is a passage which goes from page 575 through to page 583. May I endeavour to take your Honours to the relevant parts as briefly as I can.

Your Honours will see at the bottom of page 575 they proceeded to deal with “compensation for lost earning capacity” and, in particular, “an examination of deductions which should be made in assessing that compensation.” Your Honours will then see at the top of the next page they leave aside the “lost years” question.  Then your Honours will see in the first new paragraph on that page, they speak of the fact:

there is included in the award of damages –

an amount –

for future nursing and medical care the plaintiff’s entire cost.  There will be overcompensation if damages for loss of earning capacity are awarded in full without regard for the fact that the plaintiff is already to receive as compensation the cost of her future board and lodging, a cost which but for her injuries she would otherwise have to meet –

I will not read out the remainder of the paragraph but we would refer your Honours to the whole of that paragraph.  Then their Honours say in the next paragraph that:

Although it is only the cost of board and lodging which, unless subject to deduction in this way, will lead to actual double compensation there are other items which require consideration –

One sees then, your Honours, if one goes to the first new paragraph on page 577, that they leave aside, for the moment, the “lost years” question.  They say in the next paragraph, third line:

no reduction is to be made . . . for the cost of maintaining oneself and one’s dependants unless an element of double compensation would otherwise intrude –

I should have noticed in the previous paragraph your Honours will see in relation to earning capacity one takes off the expenditure involved in earning that, or bringing the capacity to fruition.

KIRBY J:   But the very fact that their Honours are talking about double compensation, that being their concern, seems to indicate that they are, as it were, looking at it category by category.  I may be wrong but I have never heard a case argued and never seen a decision written which says that because a worker is injured and gets special damages or loss of earning capacity for that injury that therefore you offset the fact that he does not have to answer an alarm every morning and can stay at home and read a book.  I have never seen that argued.  They are different categories.

MR JACKSON:   Your Honour, what I was going to say was this, that if one goes to the next page, one sees this issue or an issue akin to the one your Honour has raised discussed at pages 578 and following.  You will see at the first paragraph on 578 it is said:

The present plaintiff is now denied many of the opportunities for pleasure‑giving expenditure, as distinct form what may be regarded as expenditure on maintenance . . . Are the savings in expenditure, thus involuntarily thrust upon her –

to reduce the damages, and they say, no, because there may not be:

a corresponding non‑expenditure.

But then, your Honours, at the bottom of the page in the penultimate paragraph:

Of course, when damages for the loss of amenities come to be considered regard must be had to such pleasures as the plaintiff is capable of enjoying –

Your Honours will see the way in which that is dealt with in that paragraph and in the next paragraph on page 579.  Now, it is right to say that they say the way in which to deal with that is to say it is something that goes to the question of loss of earning capacity – I am sorry ‑ ‑ ‑

McHUGH J:   Loss of amenities.

MR JACKSON:   Pain and suffering and loss of amenity.  I am sorry, your Honour, I am getting excessively enthusiastic about it.  The point I want to make about it is that it is taken into account.  It may be set aside one element of the quantification of damages, but in the end, your Honours, one is talking about a lump sum figure which is the award at the end of the day because – and I will come to this in just a moment – one is talking about an award of damages in respect of the one cause of action.

KIRBY J:   You just would have thought that you would have seen much more development of this in the hundreds and thousands of cases that you would have had the proposition, “Well, you have to offset the benefits that have come from leisure or not having to go to work”, and yet I have never seen that and I have never seen any discussion of it in the case books.  Maybe barristers have not urged it on courts.

MR JACKSON:   Your Honour sees it, for example, at the top of page 579.  I am not suggesting that it goes to the calculation of loss of earning capacity.  What I am saying is that it is taken into account in the manner there referred to.  Your Honours, what I was going to say was that one does, in the end, come back to an assessment of a figure.

McHUGH J:   With respect, that does seem to be a loose way of thinking because in a case like Sharman you have three heads of damage, including loss of earning capacity, loss of amenities and what pleasures you are still capable of or may be able to buy because of your money are taken into account under the determination of your damages for loss of amenities, but they do not go to answer your loss of earning capacity and that is what is relevant here.

MR JACKSON:   Your Honour, loss of earning capacity, as such, has been dealt with.  Your Honour is speaking, no doubt, about economic loss.

McHUGH J:   Yes, I am talking about economic loss.

MR JACKSON:   Your Honour, in relation to economic loss – and this is the point I am going to seek to make – what one is talking about here is a case where there was really one cause of action.  The question was, what damages were recoverable in respect of that cause of action?  It is really quite a different case, if I may say so, with respect, from that which was being discussed in Public Trustee v Zoanetti 70 CLR 266 and, your Honours, one can see from that case, in particular at page 277, that what there was was that the statute created two separate rights. One right was the Lord Campbell’s Act type of right, and that was a right given which involved pecuniary loss.

However, in South Australia – as it was well ‑ known – there was also created a separate right, a right given as solation to the, to put it shortly, widow, a right of a different kind, and the question was whether because the death brought about that amount, the amount calculated in accordance with the statute, that was an amount to be taken into account in the pecuniary calculation in the Lord Campbell’s Act action.

Your Honours, in that regard one sees, at the bottom of page 277, before the passage which your Honour referred earlier, one sees the two descriptions of “injurious consequences”, being, as his Honour said:

The legislature has recognized them both, and in the case has treated the destruction of the interest as the proper subject of reparation sounding in money.

And he describes them as two different interests.  But in a case of this kind ‑ and that is where one sees the two interests and that is why two interests are being spoken of, for example, in the quotation from the restatement.  But here, your Honours, there is, in our submission, essentially one cause of action, one interest, one is assessing damages for that interest and, your Honours, in that regard, the situation is, in our submission, that in assessing the damages the interest which was being spoken of is the one throughout; it is a question of what damages can be awarded in respect of it.

McHUGH J:   It would be different if the plaintiff had claimed for future loss of amenities.  There is a claim for loss of amenities here, but you do not take any point about that.  If, for example, the mother said, “Well, for the next five years I am going to have to be doing this, looking after this child.  I am going to have to change nappies, I an going to have to bathe it, I have to do this, I have to do that”, you may be entitled to off-set against that, the pleasures of having the child, but that is not what the case is about; the case has no sentiment in it, it is a hard matter of dollars and cents.

KIRBY J:   Well, that is what the respondents want to make it but, as I understand it, you want to inject a little love into the case.  Deduct the love from the dollars.

MR JACKSON:   Your Honour, I do not want to wear a floral suit to do that, but could I just say, in fact, the Griffiths v Kerkemeyer award in this case was one that contained an award in respect of, I think, an hour a day for another 10 years, so there was an aspect of that in it, but, your Honour, I appreciate entirely that the amount that we contest in the proceedings is an amount which is a sum of money.  Having said that, the question ‑ ‑ ‑

HAYNE J:   That masks the fact that had there been a jury trial, the jury would have been asked to return a single general verdict.

MR JACKSON:   They may have been, your Honour, yes.

HAYNE J:   That would have been a proper – not the only, but a proper method of proceeding, in which they would have been instructed to stand back from the individual calculations they made and assess the global sum they arrived at against general standards.

MR JACKSON:   Yes, your Honour.

KIRBY J:   But the question is whether the judge in giving the instruction can add, “And ladies and gentlemen, in reaching that sum, you may take into account as a matter which is reducing of the total sum the fact that the baby, though unplanned, once born is greatly loved and gives much joy to the parents.”

MR JACKSON:   Yes.

HAYNE J:   Which invites attention to whether one or more interests is at stake in such an action.  Was one or more interests at stake in Sharman v Evans?  On one point of view, no.

MR JACKSON:   Only one, your Honour.  One sees in, I think, for example, Gamser v Nominal Defendant – what is said is that, of course, it is desirable – and it is speaking about the position of a judge – of course, it is desirable for the judge to divide the case up into its various heads of damage, so that, amongst other things, people can see what the judge has done, but at the end of the day one still has to take that step back.  It may be that it is much more difficult to demonstrate error sometimes, much easier sometimes to demonstrate error when that is done, but at the end of the day the question is whether the amount of dollars is an appropriate amount in respect of that injury.

Now, in this case, your Honours, one really has a circumstance, in our submission, where one does not have in respect of the case more than one cause of action.

KIRBY J:   Not many of the American cases have solved the problem in that way, have they?  That was the solution I thought in CES, but we did not have a lot of argument on the point as we have in this Court.  In the American cases, there are a handful of them who have solved it that way but not many. 

MR JACKSON:   Your Honour, what has happened, in a sense, in the American cases is that the debate tends to have been a question about the proper application of Article 920 in the American jurisprudence, about whether it should or should not apply.  But the cases in the end seem to be decided, not so much on that basis, but on the larger – if I can put it that way ‑ question of whether the damages under this head are recoverable. 

May I deal with a couple of other matters.  The expression “immunity” that your Honour Justice McHugh mentioned in passing – the phrase, of course, is not used in any technical sense, although I think in some of the American cases one can see it used just in describing the result.  Perhaps some such notion is perhaps implied in the references that one sees in, for example, judgments in McFarlane to what the doctor undertook to do. Your Honours will see that, for example – if I could give two references – [2002] AC at 76C, where your Honours will see in the last two sentences:

The doctor does not assume responsibility for those economic losses.

Et cetera.  And then one sees at page 91E ‑ ‑ ‑

CALLINAN J:   Why does the doctor not assume responsibility?  If the doctor assumes responsibility for any loss, why should economic losses be severed?

MR JACKSON:   Your Honour, it comes back in the end to the submission we were making earlier, that there is a difference because one is talking about life.  I will come back to that in just a moment if I may.  Your Honours, I was going to refer also to page 91 about E.  Your Honours, could I say also that considerable argument has been addressed on the fact that it is not illegal to have a sterilisation operation, no more illegal no doubt than to take the contraceptive pill.  But the cases recognise that, your Honours.  One sees that in for example, two references I gave already.  One is the start of Lord Hope’s reasons.  One is Justice Lax in Kealey, which is tab 30 at page 731.  One also sees it, your Honours, in the United States cases.  One example is Beardsley v Wierdsma, behind tab 24 at page 291.

GLEESON CJ:   There is probably no need for you to actually take us to take the ‑ ‑ ‑

MR JACKSON:   No, your Honour.

GLEESON CJ:   You can give us the references.

MR JACKSON:   Your Honours will see that referred to at page 291.

GUMMOW J:   What was the case again?

MR JACKSON:   Beardsley v Wierdsma.

GUMMOW J:   A lot of these United States cases arise out of interlocutory proceedings before ‑ advance of a jury trial, not appeals after a jury verdict.

MR JACKSON:   Some of them, your Honour, are .

GUMMOW J:   They certify questions, strike out counts, et cetera.

MR JACKSON:   Some of they are, your Honour, yes.  Some of them are simple appeals.  As one might expect, they cover the range of circumstances, in endeavours to isolate the issue and have it determined.  Your Honours, I was just going to say one other thing about it.  One should bear in mind in this context that ‑ ‑ ‑

GUMMOW J:   I am not conscious of any from a jury verdict, but anyhow we can look at that.

MR JACKSON:   Yes.  Your Honour, one should bear in mind that, for practical purposes, all the cases on this issue seem to come after the revolution – if I can put it that way – that was effected by the availability of easier contraception by the contraceptive pill.  Your Honours, could I say one other thing about that case, Beardsley, and that is at page 293 in the left column and your Honours will see that one of the expressions used in the left column is, halfway down:

We think that a child should not be viewed as a piece of property, with fact finders first assessing the expense and damage incurred because of a child’s life, then deducting the value of that child’s life.

Now, your Honours, could I just say in relation to that, one of the arguments that is advanced on behalf of our learned friends is that no principled reason is put forward against allowing this head of damages.  Your Honours, we would say that the reason why the set of damages is not available is that one is speaking about a human being and, your Honours, if I can put it, I do not mean to do it unduly brutally, but one cannot readily treat the claim or treat this head of damages as being similar to one for the cost of extra dog food, because a vet did not spay the dog properly; there is a different thing involved – a human being.

Your Honours, if one is looking for an intellectually respectable reason, one can see the degree of respectability in the fact that many judges of many appellate courts, have taken the view for which we contend.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter.

AT 11.02 AM THE MATTER WAS ADJOURNED