Cattanach & Anor v Melchior & Anor
[2003] HCATrans 559
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 WEDNESDAY, 12 FEBRUARY 2003, AT 10.16 AM
(Continued from 11/2/03)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, may I ‑ ‑ ‑
CALLINAN J: Mr Jackson, could I just ask you a question before you begin. The claim in contract has gone, nobody apparently suggests that it remain. The claim, therefore, now seems to be for negligent misstatement. Is that correct?
MR JACKSON: Yes.
CALLINAN J: But there was no misstatement in fact made to the husband, is that right?
MR JACKSON: I think that is so, your Honour, yes, none made to the husband.
CALLINAN J: I noticed in the statement of claim there is a duty pleaded in respect of him but the award, of course, is made, I think, jointly to the respondents, is that correct?
MR JACKSON: Yes, your Honour.
CALLINAN J: Do you have anything to say, then, about the apparent absence of any statement to the husband and as to the existence of any duty owed to him in the circumstances?
MR JACKSON: Well, your Honour, because the mother was a party to the proceedings, your Honour would appreciate that whilst there might be a theoretical difference, I suppose, it was as a practical matter academic to take that point as a point in terms of the ultimate form of the ‑ ‑ ‑
CALLINAN J: Well, if she was going to get the damages, it would not matter.
MR JACKSON: Yes, if ‑ ‑ ‑
CALLINAN J: It may be important to us as a matter of principle.
MR JACKSON: Quite, your Honour.
CALLINAN J: It seems to be, arguably at least, an extension that a non‑recipient of the statement cannot cover damages.
MR JACKSON: Yes. Your Honour, so far as the father is concerned, it falls within the class of cases where, although persons suffer loss, they do not have an entitlement to sue. May I indicate a little more what I mean by that? One sees, for example, in the case of, say, wrongful death that the wrongful death of a father may have the effect that the persons who are his wife and children live in circumstances which are much reduced in consequence of that, but apart from a statutory cause of action they do not have one.
One sees also circumstances where injury to, for example, a person who is conducting a business has the result that the person is brought to a situation where, say, in a wheelchair and has to be looked after and whilst there might be a Griffiths v Kerkemeyer claim that that person has, a daughter, for example, who gives up working and goes to look after someone who may well be an irritable customer, as it were, does not have a separate cause of action. Your Honours, those examples are referred to by, I think, Lord Goddard and Lord Porter in the case to which I adverted yesterday.
McHUGH J: Best v Fox.
MR JACKSON: In Best v Fox, yes, and your Honours will see those – they are relatively short judgments, but those examples appear there. The situation, your Honour ‑ and I adverted to this yesterday ‑ so far as a grandparent is concerned seems to be exactly the same, a grandparent who comes to look after children.
CALLINAN J: I think the evidence was, was not it, that Mr Melchior was ambivalent about the operation, anyway?
MR JACKSON: He was ambivalent about having a vasectomy, I think.
CALLINAN J: No, I thought the first one he – am I wrong about that, am I? I thought there may have been a reference to that in Justice Holmes’ decision, but do not worry about it now, Mr Jackson. In any event, there does not seem to be any evidence of a representation or a misstatement to him. That seems to be right, does not it?
MR JACKSON: I think that is so, your Honour, yes.
GLEESON CJ: On a point you just mentioned, do I take it that the principles that apply in this case, whatever they might be, whether you are right or Mr Walker is right or there is some intermediate situation, would apply in precisely the same way to a claim by a husband who had had a vasectomy?
MR JACKSON: Yes, your Honour. McFarlane is a failed vasectomy case and it would be difficult to draw a distinction in the end, your Honour. Your Honours, I was dealing yesterday with the Canadian decisions. May I conclude what I wanted to say about those? The decision which discusses the issue is, as I submitted earlier, Kealey v Berezowski which is behind tab 30. That is a decision of Justice Lax. That was a failed sterilisation case in which the judge’s discussion of the issue commences at page 731.
May I mention in passing, your Honour, in response to something your Honour the Chief Justice mentioned yesterday, the question your Honour asked, “Are there cases in the United States, I think, dealing with the relevance of the purpose for which the operation is sought?” The ones we have been able to find are in fact referred to, to which there is some reference, are actually referred to in Justice Lax’s reasons for judgment.
Your Honours will see at page 731 that in the part of the reasons that goes from a through to g, her Ladyship discusses the fact that the authorities amply illustrate there is no approach which is free from difficulty. Your Honours will see her discussion commencing on that page and going through to about h.
KIRBY J: Is the Ontario Court the old Supreme Court of Ontario, is it?
MR JACKSON: Your Honour, as I understand it, yes, the Supreme Court of Ontario, a judge sitting alone.
KIRBY J: I think that therefore Justice Lax is her Honour. I think they adopted that for the new judges of the Ontario Court. We just would not want to give her her wrong title.
MR JACKSON: No, your Honour, there should not be at any laxness in these matters. I accept what your Honour says immediately. Your Honour, could I just say that if one goes to page 731, at the bottom of the page commencing h, her Honour says:
However, it is also true that the notion of family however configured, whether nuclear or extended, whether partnered or single, whether heterosexual or same‑sex, whether conventional or unconventional, remains the central and cherished structure in our lives. And, for the most part, children figure very prominently at its core ‑
I will not read out the remainder of the paragraph but may I submit that is a value which is as relevant in Australia as it is in Canada. Your Honours will see that her Honour then, at about page 732 between letters d and f, refers to the fact:
On the other hand, children are regarded undeniably by the state as beneficial and it is the loss of a child, not the birth of a child, which, in law, is a compensable wrong. Both views, contrary though they may be, are supported not only by pubic policy but also by pubic sentiment. Accordingly, it falls to tort law to attempt to determine whether this is a compensable loss. This requires a fuller understanding of the nature of the loss and the legal principles –
et cetera. At the bottom of that page she adverts to the fact that the claim analogous to one of pure economic loss and your Honours will see that developed at the bottom of that page and through to the top of the next page.
KIRBY J: The word “analogous” being used because of the fact that there is some physical impact on the plaintiff, is that a correct understanding?
MR JACKSON: Probably, your Honour, she is saying – and that seems to be developed a little at the top of the next page:
However here, the care costs are claimed in the absence of any injury to the child although they are sought for her benefit.
Your Honours, one notes in passing, of course, that there is no obligation on a successful plaintiff to expend the money for the benefit of the child.
GLEESON CJ: The “her” is the child there referred to, is it?
MR JACKSON: Yes, your Honour.
CALLINAN J: Well that is the Griffiths v Kerkemeyer point really, is it not?
MR JACKSON: Well it is, your Honour.
CALLINAN J: It has been the basis of criticism of Griffiths v Kerkemeyer.
MR JACKSON: Indeed, your Honour, yes, and I think Grincelis v House, particularly in recent times, but could I just say, your Honours, just in passing in relation to Griffiths v Kerkemeyer ‑ and I will come to this a little later ‑ what one does see in relation to heads of damage, if I can put it that way, is that a very significant part of the development of the law of tort has been the resolution of questions whether particular types of damage are recoverable and one example is the Griffiths v Kerkemeyer type of damage.
Now, your Honours, that is a question one can describe as a question of legal policy, judicial decision, development of the common law, however one chooses to do it, but the fact of the matter is that, as one sees from Griffiths v Kerkemeyer, Kars v Kars, Grincelis v House, that issue is one which is a determination by the court of what the law should be in relation to what damages are recoverable.
Your Honours, may I come back to Kealey v Berezowski at page 733. Your Honours will see in the next paragraph that there is a discussion of what is described as the “total recovery” approach and it is referred to particularly around letter d as being one which:
depends then on the strict application of the foreseeability doctrine without regard to whether or not the “injury”, in this case, the birth of a healthy child, bears any relationship to the wrongdoing or to the legally protected interest. It assumes, counter intuitively, that the birth of a healthy child can constitute an injury.
From that paragraph, if I could pass over to page 736, and could I mention in passing that your Honours will see – and this is in response to what your Honour the Chief Justice asked me – there is a reference to Hartke v McKelway, a case which contains some reference to the purpose of the failed sterilisation, and also I think some of the other cases are there referred to. But if I could move on to page 740, your Honours will see one comes, in a sense, to the conclusions at d:
What it comes down to is this. There is a cause of action against a physician for negligently performing a sterilization which results in an unplanned pregnancy. If a child is born as a result of that pregnancy, this does not, in itself, constitute a harm which inevitably leads to damages for child‑rearing costs –
Then after the quotation:
The particular damage sustained in this case is an unplanned and undesired pregnancy. There is no damage caused by the defendant’s negligence which prevents Ashley’s parents from fulfilling their responsibilities to her or compromises in any way the relationship of mutual support and dependency –
Your Honours will see the remainder of the paragraph. Could I go on to say, your Honours, if one reads the succeeding paragraph on that page and through to page 741, and, in a sense, the whole of page 741, inevitably one sees that a choice is being made by her Honour and what is taken into account is the nature of the result of the failure of the sterilisation procedure.
GLEESON CJ: But what is the legal relevance of the statement on line d on page 741 that Ashley has been born into a family which “can afford to raise her”?
MR JACKSON: That is because, your Honour, her Honour adopts the view which is reflected in the next paragraph that the purpose of the sterilisation may be relevant to the question whether there should be an award of the damages, a question it does not need to resolve in the particular case because one of the possibilities that she moots in that regard is the possibility that the reason for the sterilisation was because of inability to support another child. In the particular case what she was saying was that it is a :
family which has welcomed her, loves her –
and then one comes to the last part –
can afford to raise her.
That seems to be directed to the fact that the issue of what would be the position if they could not afford did not need to be resolved.
HAYNE J: Is the principle for which you contend, in fact, a somewhat wider principle, namely that the parent of a healthy child cannot be heard to deny that the benefits of parenthood outweigh the economic cost?
MR JACKSON: Your Honour, it can be put in that way. It is ‑ ‑ ‑
KIRBY J: That is a little bit like the person of ordinary fortitude then, is it not, that a person of ordinary fortitude cannot be heard to assert that they have suffered nervous shock? This Court by majority in Tame has rejected that approach – by majority.
MR JACKSON: Well, your Honour, I appreciate that that is the decision of the Court in that case, but all I would seek to say about it is that one really is not comparing like with like in the sense of saying in the Tame type of situation one is saying what is the extent of the obligation. True it is one is saying in one way here, what is the extent of the obligation, who are the persons ‑ ‑ ‑
KIRBY J: I will tell you why I think it is a little bit like. First of all, that old principle appears to have been rested on a public policy cut-off point because otherwise it would go too far; and, secondly, it could be said that the foundation of the public policy for which you are arguing here is that a person will not be heard to say that the birth of a healthy child is other than a joy and a person of ordinary fortitude and ordinary, decent moral sensibility in our society will not be heard to come to a court and say, “I want damages for this failed operation and the source of my damages is the birth of a baby who is healthy and who I agree has given me joy and other happiness.”
MR JACKSON: Well, your Honour, perhaps I could just say this, that really what one tends to see being said, for example, in Kealey v Berezowski is what appears in the last sentence, around b on page 732, which is where her Honour says:
In short, the love, companionship, affection and joy which a child brings is thought to so outweigh the burdens that we bridle at the thought that the law could be so foolish as to regard this as a ‑ ‑ ‑
GUMMOW J: That is too wide, is it not? That would not support the decision in that case because damages was allowed for the birth.
MR JACKSON: I am sorry, your Honour, the ‑ ‑ ‑
GUMMOW J: But is not your policy statement too wide?
MR JACKSON: It is, your Honour, but it depends on what one is talking about by the “this”.
GUMMOW J: Yes.
MR JACKSON: The context in which she is speaking is not that she is speaking about the cost of the pain, suffering and so on of the birth but, rather, the maintenance thereafter.
HAYNE J: It seems to me that a way of analysing the argument that you have advanced, Mr Jackson, is that it proceeds by four steps. First, you distinguish between the physical and emotional effects on the mother and the financial consequences for the parents following the birth of the child. Step two, seems to me, might be understood as being to assume or consider that being a parent is a good thing and that a parent should have a good relationship with a child which will be of mutual value to the parent and the child. The third step seems perhaps to be that because of the second step you assume that the benefits of being a parent either are sufficient to equal, perhaps sufficient to outweigh, the expenditure of time and money in child rearing. The fourth step seems to be, to say, that as a matter of public policy parents are not to be permitted to deny the validity of step three.
MR JACKSON: Your Honour, that is certainly one way of analysing what we say. Now, of course, involved in that is the making of one, perhaps two assumptions but, your Honours, they are, in our submission, assumptions which reflect a value to be placed on life.
HAYNE J: Or an assumption about society’s values in respect of family?
MR JACKSON: Your Honour, it is in a sense in respect of family but the reason why one is able to use that description of it comes about because the issue is always arising in relation to events brought about by birth which, needless to say, involves a ‑ ‑ ‑
GUMMOW J: They are brought about by negligence?
MR JACKSON: Quite, your Honour.
GUMMOW J: This is all an absolution of a defendant who otherwise is a tortious misfit.
MR JACKSON: Your Honour, one can characterise it in a number of ways and the ability to characterise things in more than one way is not necessarily the wrong thing, but can I just say in relation to ‑ ‑ ‑
HAYNE J: But so, too, can the same point be made where public policy precludes enforcement of certain contracts. You are absolving a contract breaker.
MR JACKSON: Yes.
GUMMOW J: That is what we were worried in Fitzgerald v Leonhardt, amongst other cases.
MR JACKSON: Your Honour, inevitably, questions of public policy, if I can put it that way, do involve considerations which are likely to have the result that private good – if I can use that expression very loosely – is, whilst taken into account, not necessarily the prevailing aspect of it.
GUMMOW J: Yes, but what I am saying is that step four that Justice Hayne was putting to you requires elaboration of it: “shall not be heard” when, where, in what sort of circumstances? Ever, in any court or in any case?
MR JACKSON: Cannot recover, to put it shortly, cannot sue or cannot recover in respect of that damage. That is what I had understood his Honour to be saying.
GLEESON CJ: Or cannot claim to have suffered compensable loss?
MR JACKSON: That is putting it exegetically, in a sense, what I was seeking to say, yes.
GLEESON CJ: Or cannot say, “I have spent all this money on food and clothing and education and I have nothing to show for it, except a person”?
MR JACKSON: Yes, your Honour, that is – with whom my relations, for example, may be up and down.
GUMMOW J: But the public policy does not operate just at large, does it? It operates with a view to statutory responsibilities upon parents.
MR JACKSON: There are, of course, statutory responsibilities.
GUMMOW J: That perhaps seems to me is the starting point if one is going to worry about public policy.
MR JACKSON: Yes. One sees the obligation and we have referred to it in our written submissions. The Child Support (Assessment) Act, section 3, sets out the basic proposition that the parents of a child are required to maintain – have an obligation to maintain the child and the working out of that tends to come from the Family Law legislation and we have given your Honours the references. But, that being so, there is a statutory obligation on parents and what, effectively – and I do not mean to say this in any particularly critical way – what is involved in the recovery from the hospital – or the hospital or the surgeon – is the amount of that statutory obligation, perhaps, your Honour. I say “perhaps” because there does not seem to be any necessary correspondence between the amount that would be recovered or the amount that pursuant to the statutory obligation would have to be expended and for the same length of time.
GUMMOW J: That is one of the things that worries me.
MR JACKSON: Yes.
GUMMOW J: But given the statutory obligation, what is there against the policy of the statute which says this parent, having this obligation, is forbidden to, as it were, shift the funding burden to a tortfeasor?
MR JACKSON: Your Honour, the statute does not really deal one way or the other with that issue. The statute creates an obligation but it does not resolve the further question.
GUMMOW J: Of course it does not, but we are talking about public policy.
MR JACKSON: No, I appreciate that, your Honour.
GUMMOW J: The best judges of that are the legislatures over the road.
MR JACKSON: Your Honours, may I say this. It is right to say, as I think your Honour ‑ two of Your Honours, I am sorry, in Luton v Lessels said that at an early point there was not an obligation on parents to maintain a child, but of course as a practical matter that has not been so for many years, but also something enforced by the criminal law provisions, to which we have referred in our written submissions.
GLEESON CJ: Is the statutory obligation on the parent to support the child the reason for limiting the damages to the costs of rearing the child to the age of 18? There are plenty of children who are a financial burden on their parents well beyond the age of 18.
MR JACKSON: Yes.
GLEESON CJ: Why is it limited in that way?
MR JACKSON: Well, your Honour, the simple but inadequate answer in particular cases that is that is what was claimed, and the reason why 18 was selected no doubt is because that is the age of majority. One of the difficulties with the notion of there being amounts recoverable in respect of this type of loss is that there seems ‑ I am sorry, I will start again, your Honour. There are really two possibilities I suppose. One is that one says that the ambit of the obligation, the ambit of the possible damages, is to be the same as that provided for by statute because the statutory obligation is really what provides an entitlement, or is the foundation of an entitlement in some way.
GLEESON CJ: That is what I am interested in. Is that the element of loss? Is that the nature of the financial harm, not just that you have assumed a natural obligation but that the financial burden involved is imposed by law?
MR JACKSON: Your Honour, can I just say that is not really the way in which the case has been put, and it is not the way that one really sees any of the decisions in favour of the respondents’ case founding on that basis. The difficulty in endeavouring to found it on that basis is that one really comes to a situation ‑ I am sorry. I should say the decision in South Africa I think limits it to that. I will come to that in a moment. But leaving that aside, the difficulty in adopting that view is that if that is the source of the obligation, if in fact the damages are to reflect the creation of the statutory obligation, then that would be the limit of the damages. Of course, one would have a situation where a person who otherwise would seem to be in the same position as say a father, say grandparent, who had to look after children where the parents say were killed in a car crash, would not have the entitlement to recover because the statutory base would be gone. On the other hand, Your Honour, it would mean that the limit of what could be recovered was what would be provided for by the statute and as the cases tend to demonstrate what – I am sorry, I will start again, your Honours. The cases tend to demonstrate if one is going to allow the damages then presumably the damages are the loss reasonably sustained, and there would not seem to be a particular reason why that would be the minimal basis. Your Honour, I do not know that I ‑ ‑ ‑
KIRBY J: Just following up the Chief Justice’s question, the milieu of statute in which the common law public policy would be developed here is not simply State law; there is Federal law and, as I understand it, the social services legislation has been amended to impose upon parents obligations to maintain children up to, I think, the age of 25.
MR JACKSON: Your Honour, I was referring to the Commonwealth Child Support Act, which, without going to the detail of the obligation, I was simply seeking to say that one does see an obligation created there.
KIRBY J: Is that to age 25? I think we are talking about a different statute, because my understanding is a young person cannot get social security payments, except in highly exceptional circumstances, below the age of 25. They have to be able to show that their parents will not support them. These were recent amendments and I would like to know what that legislation is.
MR JACKSON: Yes, I am sorry, your Honour. The statutory obligation to support – I could have this checked. I do not think the statutory obligation to support goes to 25. I think there is a disqualification on the child for particular things unless it can demonstrate that the parent will not or cannot support.
KIRBY J: It is a de facto – to the same consequence. If you can find the name of that statute, I would be interested to find that.
MR JACKSON: Yes, your Honour.
KIRBY J: Was the amount allowed up to the end of the 17th year and, as it were, up to the 18th birthday of the child, or it was not beyond the 18th birthday?
MR JACKSON: Your Honour, what it was for ‑ ‑ ‑
KIRBY J: It was just a little ambiguous when I read it in the passage, but I will assume, unless I am told otherwise, that it is up to the 18th birthday.
MR JACKSON: It was a full 18 years, as we understand it, your Honour, and in the introductory part that one sees at page 219, in describing what is referred to, you will see – this is the second paragraph:
Year one is, therefore, when Jordan is aged nought to one
And then year 18, which is referred to on page 243 – you will see the total costs for year 18 there set out. So covered until the 19th birthday.
GUMMOW J: Mr Jackson, we had better know specifically about these statutory provisions. I know they are footnoted but ‑ ‑ ‑
MR JACKSON: Perhaps if I give your Honour a piece of paper saying what it is.
GUMMOW J: Yes. I have an idea that the Commonwealth Act cuts out at 16, that the Act considered in Luton v Lessels cuts out at 16. I may be wrong.
MR JACKSON: Your Honour, there may have been some changes.
GLEESON CJ: There may be Queensland legislation too which would operate in favour of a child in relation to obligations of maintenance and support.
MR JACKSON: Well, again, your Honour, may I check that rather than give your Honours a ‑ ‑ ‑
GUMMOW J: There is a provision in the Queensland Criminal Code that ‑ ‑ ‑
MR JACKSON: Yes. There is, I think, your Honour, an early decision under the Queensland Criminal Code dealing with it.
GUMMOW J: Yes. Justice Callinan and I had a leave application on a recent case which we refused, in any event, on that section.
MR JACKSON: Your Honours, there appear to be two other potentially relevant decisions in Canada since Kealey v Berezowski. May I deal with them very briefly? The first is Mummery v Olsson. It is behind tab 31. It is a decision of Justice Forestell in the Ontario Superior Court and essentially what your Honours will see at page 21 – the page number is at the top right‑hand corner – in paragraph [75] he referred to the damages claimed which included:
(2) the costs of rearing the healthy child –
He discusses the two decisions, Kealey and then McFarlane and then at paragraph [79] said he was:
in agreement with the reasoning expressed –
but he went on to say at paragraph [86] that:
the Kealey decision rejects child rearing costs as does the McFarlane decision –
The reasoning in both was valid, to put it shortly. Now, your Honours, the other decision is Y(M) v Boutros behind tab 32.
GUMMOW J: This Ontario Superior Court is a provincial court, is it not?
MR JACKSON: I think so, yes.
GUMMOW J: In other words province appointed judges.
MR JACKSON: Yes, your Honour. Now, your Honour, the Alberta Court of Queen’s Bench, Justice Rawlins, dealt with the issue at page 482, paragraph 129 and following. Your Honours, I will not go through the detail of it. May I just say that after discussing the reasons in both McFarlane and in Kealey the judge said at page 486 paragraph 147 that - your Honours will see he refers to the history of it and then your Honours will see that a little further on ‑ in paragraph 148 I should have said, halfway through paragraph 148, he said:
Further, I reject the reasoning of Lax J. in Kealey, where she determined that a claim for child rearing costs may be allowed where the family sought the sterilization because it was financially burdened . . . I find no merit in that ‑ ‑ ‑
GLEESON CJ: This judge would have gone further than Justice Lax in denying the entitlement to compensation.
MR JACKSON: Yes, which is the burden of the majority of the American decisions, of course. Your Honours, those essentially are the Canadian decisions. Could I come then, your Honours, to McFarlane [2002] 2 AC 59? Your Honours, that is a case, as I have submitted earlier, of a failed vasectomy. Now, your Honours, it is right to say that the actual decision reflected a number of different strands of thought, sometimes not altogether unusual in multiple member final courts.
CALLINAN J: Mr Jackson, but they all adopt Caparo, do they not, with one exception?
MR JACKSON: Your Honour, they do. They all refer to it.
CALLINAN J: With some additions. I think one of their Lordships spoke about distributive justice.
MR JACKSON: Yes.
CALLINAN J: I think, apart from Lord Millett, they all said Caparo was applicable.
MR JACKSON: Yes, your Honour, I think it is right to say that. Could I just endeavour to summarise what essentially seem to be the bases for decision. One sees Lord Slynn at page 75F, where your Honours will see that he says:
The real question here is more fundamental.
And your Honours will see that, going to the end of that paragraph, he puts it as being a question of the extent of the duty of care which is owed to the husband and wife. No doubt, your Honours, that should, in a sense, be read in an English context in the sense that the English decisions tend a little – I think your Honour Justice McHugh was saying yesterday – to treat duty of care as perhaps more divisible into separate parts in relation to each of the heads of damage or types of damage claimed. That is the context in which he is speaking. The conclusion at which he arrives your Honours will see at page 75H, going through to page 76, and essentially he arrives at the conclusion to the same effect as the majority of American decisions.
GUMMOW J: Yes, but D on 76 just strikes one as a bit odd, that is all.
MR JACKSON: Yes, your Honour, public policy must have different meanings in different countries.
GUMMOW J: I think so.
MR JACKSON: Your Honour, I do not attempt to describe what the meaning of it is – legal policy, your Honour. Your Honour, Lord Steyn, page 79F ‑ ‑ ‑
GUMMOW J: Well, he has discovered a new form of traveller.
MR JACKSON: Your Honour, I suppose the old ones have to change at some point but ‑ ‑ ‑
KIRBY J: It is impressive to think that their Lordships are travelling on the Underground.
GUMMOW J: He has also discovered distributive justice.
MR JACKSON: A lot of them seem to ride bicycles.
McHUGH J: But it is more surprising that the Underground traveller now determines the duty of care. Hitherto, the Underground traveller may have determined the standard of care ‑ ‑ ‑
KIRBY J: Or the damages.
McHUGH J: ‑ ‑ ‑ but it is the first time I have ever heard of contributing to determining the duty of care.
KIRBY J: But I do not know. Is that so surprising, if the duty of care is ultimately according to a standard of reasonableness, that the standard of the ordinary hypothesised person is referred to in order to, as it were, distance it from the opinion of the judge and say, “This is the opinion not just of myself; this is the opinion of the community as to what is reasonable”?
MR JACKSON: Your Honour, it seems to me, as was the man on the Clapham omnibus, a description of someone who is thought to be the reasonable person. It is very difficult to describe ‑ ‑ ‑
GLEESON CJ: It is a rhetorical form of objectifying a view about reasonableness, is it not?
MR JACKSON: It is, your Honour, and one sees in the Modern Law Review article to which your Honour Justice Gummow referred yesterday that having referred adversely and to the fact that the, I think, 55 times the word “normal healthy child” is used, then the reference to the person on the Underground, as is used in the article, many times indeed in a pejorative way.
McHUGH J: But the man on the Clapham omnibus was dealing with the standard of care in the context of the duty existing. Here Lord Steyn invokes the underground traveller to determine whether there is a duty of care. The next step, I suppose, would be to say, “Should the underground traveller think that an employer should owe a duty of care or an occupier owe a duty of care to a invitee?” That is not the way the law is developed.
KIRBY J: We cannot let lay people have anything to say about these matters, this must only be judges who define these questions.
McHUGH J: It is a control device. Duty of care is a control device. Winfield thought that you need not have a duty of care. The Roman lawyers did not have a duty of care.
MR JACKSON: Your Honour, what he is speaking of and your Honour, it is simply this: if one looks at what was said at page 82 about it, what he is saying is, about letter A:
It is possible to view the case simply from the perspective of corrective justice.
GUMMOW J: Yes, what does that mean?
MR JACKSON: Well, “corrective justice”, your Honour, seems to mean ‑ ‑ ‑
GUMMOW J: It assumes we all know. I do not know at the moment.
MR JACKSON: Your Honour, it seems to mean what should be paid in effect by a tortfeasor. I will not use the word “penalty”, but what the tortfeasor should pay in order to deter others from doing the same thing. Your Honour, it is phrase that has ‑ ‑ ‑
McHUGH J: Not necessarily to deter. It is used in the context of compensation, is it not? Corrective justice means that a person who without lawful excuse or authority injures another ought to compensate that person, as opposed to distributive justice which seeks to distribute burdens and losses, according to some standard.
MR JACKSON: Yes.
GLEESON CJ: Whether he is right or wrong, I should have thought the most challenging paragraph of his reasoning is on page 82 commencing at E. That really brings it back, he says, to morality.
MR JACKSON: That is so, your Honour, and could I just say one thing before going to it. Your Honours, it is not unusual, although it does not happen all the time, of course, to see, for example, the phrase “corrective justice” used and one sees in this Court. Your Honour Justice McHugh was using it in Esanda Finance Corporation v Peat Marwick Hungerfords 188 CLR 241 and the discussion that your Honour had there at pages 282 to 286 was really, if I may say so, with respect, to distributive justice because what your Honour was saying was who should bear the losses and there was quite a lengthy discussion about it and it demonstrates, in our submission, that it is not inappropriate to take into account matters of that kind.
But coming back, your Honours, to page 82E, what is set out there, your Honours, is in the end the central question in a sense. Is it right for the Court to take some account of the moral answer to the question or the justice of the case. We would submit that his Lordship is perfectly right in saying what he says in relation to that aspect at that part of the case.
Your Honours will then see in the next page, page 83c, he says:
The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches.
Your Honours will then see that view expressed in the next two paragraphs, and perhaps it is just a paraphrase and a conclusion in the end, but it is the nature of things that sometimes conclusions are difficult to express rather more fully than to say them. He relies on two things. Distributive justice on the one hand, as he describes it, on the other hand the argument of coherence, which appears in the next paragraph, including the quotation from Trindade and Cane.
GLEESON CJ: What is the kind of claim that he is talking about on page 83 in the paragraph commencing with the words “This conclusion”?
MR JACKSON: Your Honour, that is a claim by the child itself. The child claiming, for example, that because of negligence in the birth or in something leading to the birth of the child the child was somehow disabled. Now, the question ‑ ‑ ‑
GLEESON CJ: Is that what he means by “disadvantaged”, disabled?
MR JACKSON: I am sorry, your Honour, disadvantaged, maybe intellectually or maybe physically.
GLEESON CJ: I am wondering is he talking about a case, for example, in which a child who has been born following a negligently failed sterilisation procedure claims damages against the doctor saying, “I’ve got these terrible parents”.
MR JACKSON: I do not think he was intending to refer to that, your Honour.
GLEESON CJ: Is that a possibility?
MR JACKSON: Well, your Honour, in terms of the possibility of it happening, yes, it is. In terms of the success of such litigation, it should fail. We have given a reference, your Honours, to three ‑ ‑ ‑
CALLINAN J: Mr Jackson, can I just ask you, how does distributive justice work in a case like this? I do not quite follow what the law is saying there.
KIRBY J: I do not quite know what it is.
MR JACKSON: Your Honour, it is an expression which, as we would understand it, is simply a shorthand way of saying, “Look at the nature of the losses involved, look at the negligence that is involved, look at the persons who are potentially liable to bear the expenses” ‑ ‑ ‑
CALLINAN J: And make the richest pay.
MR JACKSON: What class of persons overall should pay, yes.
GUMMOW J: But should, having regard to what criteria?
MR JACKSON: Well, your Honour, I suppose in the end it comes down to looking at the nature of the particular issue, looking to see, for example, the extent to which there might be indeterminate liability in the ultra mares sense, matters of that kind, many matters of the general nature considered in the judgments in Perre v Apand, and the effect that it might have upon each of the persons who are potentially liable to bear the expense.
GLEESON CJ: Is distributive justice a label for the sort of “policy” considerations that some judges often talk about in relation to vicarious liability?
MR JACKSON: Yes, your Honour, that would fall within the description.
CALLINAN J: I think Justice McHugh discusses it in Esanda, does he not?
MR JACKSON: Yes, your Honour. I think without using the term “distributive justice”.
CALLINAN J: But, Mr Jackson, I do not know how judges can apply distributive justice, judges who are sworn to do equal justice between rich and poor. In the end it is just making it the one who can best bear it pay, is it not?
KIRBY J: It is making the one who is liable in law who is best able to pay, pay.
MR JACKSON: It is possible, your Honour, to describe it in a number of different ways. If I could just go back to what your Honour said, the judicial oath. Of course, it is to do with equal justice. It is a question of the content of justice, I suppose. In that regard it is, of course, justice according to law but one does have the situation where in dealing with a final Court of Appeal in a common law jurisdiction of just applying the common law.
The common law is not just something of application, it is something of creation. It can grow larger or smaller. It really has always, in our submission, been something that takes into account who is to bear liability. For example, if one takes cases such as the escape of things – things of that kind. Those are issues that turn, to a degree, on views which are, in a sense, contemporary views. It is right, in our submission, to say, as Lord Steyn said at page 83C:
The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven.
GLEESON CJ: Can I just take you back to this word “disadvantage” which is puzzling me? I have difficulty in accepting that it means or is limited to disabled. If you look at the quotation from the work on The Law of Torts in the following paragraph it uses the expression:
a claim . . . of the child, whether healthy or disabled, is rejected.
MR JACKSON: Yes.
GLEESON CJ: That seems to comprehend a claim by a healthy child who has been born into a disadvantaged family, a child saying, “I am poor”.
MR JACKSON: Your Honour was asking me about the word “disadvantaged” a little further up on the same page which related to McKay v Essex Area Health Authority. That seems to have been a case of a child born disabled as a result of rubella and that is what his Honour is there speaking about but he then goes on to a larger proposition, simply picking up what was said by Trindade and Cane. It is very difficult indeed to work out, in a sense, what, in our submission, really, credible claim could be made by a child by virtue of its own birth.
Now, that has been dealt with in three cases, I think, which were heard together in the New South Wales Supreme Court. Your Honours will see those referred to I think behind tab 4 in our bundle of materials, Edwards v Blomeley. I think only one of them is there but it is the principal decision.
GUMMOW J: Just before we leave Lord Steyn, could we just go back to page 82E for a minute, the last sentence there:
Instinctively, the traveller –
What is that about? Some process of reasoning? It does not sound like it.
MR JACKSON: Your Honour, all I can say about it really is this, that what he is endeavouring to put in perhaps pedestrian language, is the view that that is what is, in a sense, reasonable or what the ‑ ‑ ‑
GUMMOW J: But this is a person who determines whether there is a tort, whether there is a cause of action or whether there is a duty of care.
MR JACKSON: Your Honour, I do not suggest that it is necessarily the right way to describe it. What I am saying, however, is that all that he is doing is to say one has to look at the focus of what is the just distribution of burdens and losses among members of society. If you ask people who are reasonably reflective of the ordinary person, the view they would take is this, and that is a view ‑ ‑ ‑
GUMMOW J: The view they take on what information?
McHUGH J: Exactly. That is the point that Justice Davies makes in the Court of Appeal. He says, the question is loaded; Lord Steyn’s question is loaded. Put a bit more information into it and you get a different answer.
MR JACKSON: Well, your Honour, what we would say about it is that one should not really hang the judgment, as it were, by the paragraph. If one is looking at the end, no one is suggesting this Court is bound by it. What I have been seeking to say ‑ ‑ ‑
GUMMOW J: Perhaps you are encouraging us to. Take it as a guiding light.
MR JACKSON: Well, take it as a light which shows, one of a number of lights around the world, your Honour, that broadly speaking, show the same type of illumination.
McHUGH J: Yes, I think instinct is a bad guide. Instinctively I would feel that the ordinary Australian person thinks that there should be a remedy for any form of harm suffered by another individual irrespective of the negligence.
HAYNE J: At least when that ordinary Australian is himself injured.
CALLINAN J: It just demonstrates the diversity of opinion, because, with respect to Justice McHugh, I take a different view.
MR JACKSON: Your Honour, these are things in which there have been diverse views and some of these things are not matters that are really capable of – your Honours, I will put it this way. In the end one does have to arrive at a conclusion on the issue. What we would seek to say about it really is that for a variety of reasons, sometimes better expressed than others – sorry, better but sometimes more attractively expressed, sometimes where one might agree with the conclusion but not the reason, but in the end the conclusion has been reached that this head of damages is not recoverable. Now, your Honour, that does not mean we have to justify every word that is used by every judge in every court, from the House of Lords to Alaska, in arriving at that conclusion.
GLEESON CJ: What has happened to this case of Edwards? Has it gone on appeal?
MR JACKSON: I do not know, actually, your Honour, but I am sure it has not been resolved. I do not think anything further in fact has happened to it. There were three cases actually, altogether. Your Honours, I was going to go – and if I may do so very quickly – to Lord Hope. Your Honours will see at page 89D, that he referred to the case as being one as “a claim for economic loss” and at page 95, about letter A, he said:
In the light of the very different solutions which have been adopted in these various jurisdictions it is, I think, possible to draw these conclusions.
Now, your Honours will see he sets out a number of matters, including between B and C:
But in the field of economic loss, foreseeability is not the only criterion –
He refers again to “proximity” and an “attachment” for being “fair, just and reasonable” ‑ ‑ ‑
KIRBY J: See, there are the resonances of the old Anns doctrine and the Caparo doctrine that allow you to face up squarely to the policy question.
MR JACKSON: Well, that is the approach taken in the ‑ ‑ ‑
GUMMOW J: They face up to it, but then they just jump.
HAYNE J: We are never told why it is fair, why it is just, why it is reasonable.
KIRBY J: Well, we then say it has to be incremental, and dress it up in some other word. However, I have lost that one, Mr Jackson, so I have to face up to it.
GLEESON CJ: Well, I am not so sure. The Caparo formula might be one thing, but the Caparo decision is another thing. If we were confronted with a case of the kind that they were confronted with in Caparo, we, using our own techniques, would have to face up to the same kind of issue – that is, where do you draw the line?
MR JACKSON: Yes, your Honour, and ‑ ‑ ‑
GLEESON CJ: It is plainly foreseeable that investors will rely upon an auditor’s report. Nothing could be more obvious.
MR JACKSON: Well, your Honour, that then comes to a question of how that and Esanda would tie up together, in a sense. Could I also say that if one goes to page 96, at the bottom of the page, his Lordship speaks of the principles being “very general and necessarily imprecise”, and then says at the bottom of the page:
I do not think that this approach can be reconciled with the fact that the loss claimed under this head is pure economic loss –
and then refers to, in effect, the requirement that there be proximity:
and the attachment of liability for the harm must be fair, just and reasonable.
Your Honours will see then that he, again, arrives at the conclusion in the next two substantive paragraphs. He speaks of it being a “loss of a kind” which is not recoverable. Lord Clyde, at page 99H, said that:
The only issue appears then to be one about the existence and extent of loss which the pursuers have sustained as a result of that breach.
He speaks of it plainly as a matter of “loss”. Your Honours will then see that he does the same at page 100, between G and H:
the extent of the damages to which in the circumstances the defenders are liable in law.
One sees then at page 102E that he turns to consider:
the question whether the pursuers have sustained any loss which the law would recognise.
If I could move on from there to page 104, he speaks at the bottom of page 104 of:
the solution to . . . be found by consideration of the basic idea which lies behind –
the type of claim:
“you should as nearly as possible –
et cetera, and your Honours will see then, between B and C, he says that:
The result of the decision of the Inner House is the pursuers have the enjoyment of a child, unintended but not now unwanted, free of any cost to themselves and maintained at the expense of the defenders.
Your Honours will see the remainder of that paragraph, and then in the next paragraph:
The situation in the present case is a peculiar one.
Your Honours, that is so. This is an unusual type of case:
Without surrendering the child the pursuers cannot realistically be returned to the same position as they would have been in had they not sustained the alleged wrong.
He then refers, between F and G, to the fact that:
The restitution which the law requires is a reasonable restitution –
and at the bottom of that page says:
even if a sufficient causal connection exists the costs of maintaining the child goes far beyond any liability which in the circumstances of the present case the defenders could reasonably have thought they were undertaking.
He refers at the top of the next page to the question of “proportionality” and again to a:
reasonable relationship between the fault and the claim ‑ ‑ ‑
CALLINAN J: Mr Jackson, you do not embrace an “offsetting benefits” test, do you?
MR JACKSON: We do as an alternative, your Honour. I will come to that.
CALLINAN J: What do you do then in the case of the good provider who dies, but was a dreadful, overbearing husband and the widow is relieved from the emotional stress of living with him, because that is the way it is put in some of the cases? The emotional joys of a child offset the disadvantages of the cost of rearing the child.
MR JACKSON: I am sorry, I did not quite follow what your Honour was putting to me about the ‑ ‑ ‑
CALLINAN J: What do you do in the case of the overbearing husband who is absolutely dreadful to live with, but he is a good provider, so when he dies the widow is no longer subjected to an overbearing husband? She is relieved from that emotional burden. Do you offset that against the money that he would have provided had he lived?
GLEESON CJ: There is much to be said for the view that it is the policy of the law that a husband is a blessing, even if nobody believes it.
CALLINAN J: I suppose the answer is the statute seems to give the financial benefit so it is probably the end of that.
MR JACKSON: I was not clear whether your Honour was speaking about an action brought by the mother for the wrongful burden, as it were, or an action brought by the mother in respect of the death of her husband.
CALLINAN J: The latter, Mr Jackson. I think the statute provides the answer.
MR JACKSON: Yes, your Honour, it provides a measure.
CALLINAN J: It does not say anything about offsetting the benefit.
MR JACKSON: No. Your Honours, I am sorry I have taken a little while with this. If I could go to Lord Millett. Your Honours will see at page 109A he refers to the case as being one where it does not really matter whether it is characterised as “economic loss” or “pure or consequential”. He has regarded the distinction as being “technical”. Then, your Honours, at page 110, at the bottom of the page, he refers to the:
often cited passage in Public Health Trust v Brown –
and to the fact that:
was followed in Cockrum v Baumgartner –
and at the end of the paragraph, at about 111D, refers to the fact:
There is something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation.
He referred at the bottom of the page to the observation of your Honour Justice Kirby in CES where your Honour said that:
the child’s existence –
was not –
the damage in the action. The birth of the child is simply the occasion by which the negligence of the respondents manifests itself in the economic injury –
and then went to adopt that in part, but not much, with respect, saying:
This is correct as far as it goes, but it does not take us very far –
and then went on to say, as your Honours will see in the remainder of that paragraph at the top of page 112, that the two were, in a sense, inseparable and that is the submission I was making the other day.
Your Honours, will see then at page 113, at the bottom of the page, in a passage which commences in the last three lines and goes through to page 114D, that he sets out what ultimately seems to lie behind his view. The first is that he says, as is obvious really, that it is in a sense incorrect to regard the birth of the child as simply the benefit, simply the blessing. It may be it is a mixed blessing and brings a number of emotional relationships and emotional consequences but, your Honours, essentially, it is part of the human experience. What we would submit he said in that regard is, we would submit, good sense.
Your Honours, I was going to go to New Zealand. I have been there in part, your Honours, and may I go there very quickly. As I said yesterday, there is the accident compensation legislation, but such dicta as there are are against recovery. Could I take your Honours to Re Z for a moment, tab 33. I have taken your Honours to this yesterday to indicate the relevant provision which is immediately under the heading “Decision” on page 162. Now, your Honours will see then at page 164 that the judge said, about a third of the way down the page:
As I see it in the present claim the Hearing Officer held that the cut‑off line should be drawn between expenses relating to the pregnancy and birth, and expenses relating to the care and maintenance of a growing child. In view of the terms of s121(1) I consider that this is a proper place to draw the line.
Your Honours will then see the observation that he adopted from Lord Justice Griffin in McLoughlin v O’Brian saying then:
Those words were said in the context of a tort claim, where the issue was whether –
and your Honours will see he went on to deal with that. Your Honours, the issue was dealt with more fully in the case behind tab 34, XY v Accident Compensation Corporation, where in the High Court Justice Jeffries dealt with the issue. At the bottom of page 379 he said, in the last five lines:
It is a dispute about losses in much the same way as Udale . . . was a dispute about damages after admission of liability for negligence. However the issue is decided by construction of the section of the statute not the common law.
He then went on to the section. But your Honours will see observations that are presently germane at the next page, page 380 in the second paragraph on that page and your Honours will see that he expresses the view – and it is a long passage which goes, in effect, to the end of the reasons for judgment –it is somewhat tentatively expressed, no doubt, that there was no injury by having a normal healthy child and, on the one hand, that it was not very appropriate to describe the costs as being expenses or losses.
Now, finally, your Honours, may I just mention the case behind tab 35 which was a case in which ‑ ‑ ‑
KIRBY J: It is really a direct import of religious notions into the decision, is it not? He is really applying the parables of the Bible, of the New Testament of the Christian Bible.
MR JACKSON: Yes, your Honour, that is so. It would not be the ‑ ‑ ‑
KIRBY J: Perhaps that is possible in New Zealand which is a less multicultural society than we are.
MR JACKSON: Well, I do not know, your Honour. With respect, I am not sure about that. It may be differently multicultural but it is pretty multicultural so ‑ ‑ ‑
KIRBY J: It is multicultural, but it is less religious diversity, I would think.
MR JACKSON: Your Honour, with respect, I am not sure about that. The population of New Zealand consists of two major races, if I can put it that way.
KIRBY J: But they are all Christians.
MR JACKSON: But also many people who have migrated to there from the islands of the Pacific, much influenced by western missionaries in the 19th century and many of whom are heavily involved in or support many religions. But ‑ ‑ ‑
KIRBY J: It is a long time since I have seen references to applying the parables of the Bible in Australian courts
GLEESON CJ: Jaensch v Coffey.
MR JACKSON: I am sorry, your Honour.
GLEESON CJ: The story of Dives and Lazarus, “Who is my neighbour”.
McHUGH J: Or Donoghue v Stevenson.
KIRBY J: Yes, that is 1932.
GLEESON CJ: Jaensch v Coffey was much more recent. I am sure that a lot of people who read that would know who Justice Deane was talking of when he mentioned the feast in Dives.
CALLINAN J: Justice Kirby referred to the New Testament itself in Perils of the Sea Case.
KIRBY J: I do not think it was the ratio of my decision. It is just a literary illusion that I put in to wake people up.
MR JACKSON: Your Honour, I am sorry. Your Honour, perhaps the same as Justice Jeffries’ usage.
Your Honour, what I was going to say about the last of the cases, the case behind the next tab which is tab 35, SGB v WDHB, is a case where, as your Honours will see in paragraph [37] on page 424 the judge simply took the view that the case should not be struck out at that point on the basis of pre‑empting a trial court from determining what damages should be awarded. Your Honours will see that he refers to this case, to McFarlane, to CES. The case has not been heard in New Zealand, as we understand.
KIRBY J: Of course, in a case like this, we have to keep in mind that New Zealand is still subject to Privy Council appeals and, therefore, naturally there is a high level of deference to House of Lords decisions and McFarlane is referred to on 417 and we are not in the same relationship now.
MR JACKSON: Of course, your Honour. Not equally. Of course, one has seen a number of New Zealand judges themselves are or have been members of the judicial committee.
KIRBY J: You make a fair point I think, that if you scan the horizon of all these cases, especially in the United States, that there is a very high preponderance of judicial opinion which supports your primary proposition.
MR JACKSON: Yes.
KIRBY J: All these clever people who have looked at this issue in so many jurisdictions, with so many backgrounds, so many different attitudes, have embraced what you are urging on us.
MR JACKSON: Your Honour, that is the point we seek to make. One jurisdiction that has decided the other way is the Supreme Court of Appeal in South Africa in Mukheiber v Raath 1999 (3) SA at 1085. It is behind tab 36. Your Honour, as we understand it in South Africa there are in effect two highest courts, one being the Supreme Court, the constitutional court as it were of South Africa which deals with constitutional issues, then the ‑ ‑ ‑
KIRBY J: This is the old appellate division?
MR JACKSON: Yes.
KIRBY J: It is a very distinguished court.
MR JACKSON: This is the highest court in non‑constitutional matters. Your Honours, the view had earlier been taken in South Africa that in contract such damages were recoverable. That is the decision which is referred to in paragraph [1] of the reasons at page 1068; that is Administrator, Natal v Edward. The case before the court in Mukheiber was in tort. There is considerable discussion of the liability aspect. Then your Honours will see at paragraph 43 on page 1079:
The role and ambit of public policy . . . was considered by this Court in Edward. The action was based on breach of contract.
Your Honours will see that the reference to “claim (a)”, the cost of supporting and maintaining that child up to the age of 18 years, and as is apparent from the end of that paragraph, that had been allowed.
Now, your Honours, the court then discusses the question whether the same situation should obtain in tort. This was a case, I might observe in passing, which was a representation case because the finding was that the doctor had represented that he had carried out a sterilisation operation when he had not done so at all. Your Honours will see that the various aspects of it are discussed and then the conclusion is arrived at, at the bottom of page 1081 where your Honours will see, at about I:
It was foreseeable . . . In principle he is, by virtue of considerations of public policy, not protected against such a claim . . . But the claim cannot be unlimited. His liability can be no greater than that which rests on the parents to maintain the child according to their means and station in life, and lapses when the child is reasonably able to support itself.
Your Honours will see then the ultimate conclusion in paragraph [52].
KIRBY J: As you say in your written submissions, they simply declare what they say is the outcome and they do not really justify or explain it in any detail.
MR JACKSON: Your Honour, that is a fair criticism of many of the judgments both ways, I suspect, but the fact that one has – I am sorry, I will say these things – it is in an issue in which it is perhaps difficult to articulate the reasons on some occasions but, on the other hand, one does see a considerable unanimity of view. What we would say is that the issue is one on which obviously differing views may be taken and have been taken but there is, we would submit, a significant preponderance of views in other jurisdictions against recovery.
Could we refer your Honours to what Justice Thomas said in volume 2 at page 316, paragraph [169] where he endeavoured to summarise various considerations that had been referred to and then at about line 18 said:
Perhaps not all of these considerations are persuasive, although in my view most of them are. Considered as a whole they provide a strongly persuasive and rational basis in favour of recognising a rule such as the “limited damages rule”.
Could I return then to a two aspects of a matter raised yesterday in relation to other areas of damage where some questions can arise. One aspect was that raised by your Honour Justice Hayne, “in what other types of cases does one see set‑offs?” I mentioned yesterday the question of fraud and misrepresentation cases and they are cases where commonly money is paid over or an obligation undertaken in return for something which is of lesser value and if the course of rescission is not or cannot be adopted but damages are claimed what one does have to do is set‑off the value of what is obtained against what has to be paid, the Potts v Miller theory.
In the area of personal injuries, the whole aspect of the jurisprudence in that area which deals with what benefits provided by third parties have to be in effect set‑off against damages is concerned with that question. They are the types of cases referred to in this Court and in, I think, two perhaps earlier cases, The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 and Redding v Lee (1983) 151 CLR 117. Again, your Honours, speaking about personal injury cases, one cannot in assessing loss of earning capacity, at least in respect of special damages – I am sorry, I will start again – in respect of loss of earning capacity leave out of account amounts actually earned after the injury will usually arise – of what is usually dealt with as special damages
Turning to another aspect, your Honours, there are some other rules which limit the types of damages available. Your Honour Justice McHugh referred yesterday to Wilkinson v Sporting Life Publications 49 CLR 315 in relation to illegality in relation to defamation cases where something is sought in relation to such a business. One sees, too, if I could simply give your Honours a reference to a decision in Meadows v Ferguson (1961) VR 594, a person who was, if I could perhaps use the argot, a penciller to a bookie – a starting price bookmaker – operating from a lane was not able to recover his loss of income for engaging in that activity on Saturday afternoons, I think, as a matter of special damages on the basis of illegality. You will see that at pages 596 to 598.
Again, your Honours, although it no doubt looks a little bit like Swiss cheese, one does have today – one does have the impecuniosity principle which comes from the Leisbosch, Dredger Case and the decisions following that.
As we submitted earlier, your Honours, the whole development of the law relating to damages for personal injuries has been by allowing or not allowing, or putting a cap on, damages recoverable under particular heads, the Griffiths v Kerkemeyer damages being an obvious example. Your Honours, finally in relation to that, the present circumstances, in our submission, are relatively unusual, one is talking about the consequences of bringing into being human life.
Your Honours, may I move on then to the remainder of our submissions, and if I could do so, I hope relatively expeditiously, and do it by reference to our written submissions, starting at paragraph 32. Your Honours, will see paragraphs 32 to 36. I do not want to repeat them or the matters in the footnotes, but may I just say that the observations of Justice Lax in Kealey v Berezowski at pages 731 and 732, to which I went earlier, remain germane and as do those of Lord Millett in McFarlane at pages 113 and 114. Your Honours, it may well be that to adopt the principle of no damages for the cost of bringing up the healthy child, involves the court in expressing a value, or giving effect to a value, but that is, in our submission with respect, that is what courts are for, to say, in an appropriate case, the law does or does not go so far.
Could I come then, your Honours, to paragraphs, in effect, essentially, 39 to 43, dealing with the question of calculation of damages. Your Honours, in paragraph 39 we say that we accept that no doubt the number of dollars, which represent likely outgoings, can be calculated, as they have been in this case, readily enough, but there is a significant question whether one could take into account other matters. If all that can be taken into account are financial aspects, then the result would be that there would be an entitlement to, what was described by Justice Thomas in his classification as, full recovery.
If one is to take into account other matters, then the result would either be that the costs of child rearing would be excluded from damages, as we have submitted, or there would be a setoff of the benefits of parenthood. Your Honours, we would submit that to treat the amount recoverable as being only calculated by reference to the costs of bringing up the child really allows nothing for the overall experience of paternity or maternity and custody, and that is a benefit, we would submit, in the sense of a normal human experience. We refer your Honours to the quotation from Lord Hope in paragraph 41 of our written submissions.
Could we also say, your Honours, as we have put in paragraph 42, that one of the features, of course, is that the value of the benefit may be differently regarded by different parents. One has a situation, of course, where one parent may be perfectly happy to have the child, the other not. Your Honours, it does seem a curious situation if, for example, the mother did not want to claim - the father did - in the case of the failed sterilisation.
McHUGH J: This reduction would have to depend upon the Court’s assumption as to some statistical relationship between child and parent, because when most of these cases were brought, you would not have the faintest idea how a child will turn out.
MR JACKSON: Your Honour, could I say in relation to that, if one goes to the view that it is possible to have, in effect, a set‑off of benefits, then what you have on the one hand is, in effect, a sum of money, that being the amount that is worked out that it is going to cost, and then one would have to make an assessment based on the evidence in the particular case.
McHUGH J: I understand the way it is put and, I do not know, it may be fair, just or reasonable or it may not be, but it does not seem to me to have the slightest thing to do with legal principle as hitherto understood. I mean if a coalminer at Cessnock is so seriously injured that he cannot ever work again and he says, “Well, I can’t work and I am going to go down to Port Stephens and enjoy the benefits of living at Port Stephens”, you do not take that into account and say, “Your damages ought to be reduced for that” or “that your wages ought to be offset against your claim for loss of wages”.
MR JACKSON: One is talking about a really quite different thing, your Honour, a different thing because you are talking about the position of the individual and, your Honour, I do not know that I can put it differently from saying that if one is comparing in a case like that the position before, the position after, if one does not take into account those things to which your Honour is referring, the reason why they are not taken into account is as a matter of legal public policy.
McHUGH J: Not as a matter of legal policy because as a matter of principle they are not there. This case is a cashbox claim. The plaintiffs say, “Every week the money in our cashbox is reduced as a result of your negligence. Corrective justice requires that you correct the harm that you have done and you will replenish our cashbox.” Now, that seems to me, whatever the man on the Underground might think, a reasonable claim.
MR JACKSON: Your Honour has a view about it, no doubt, but when one opens or closes the cashbox, one moves to the next room where there is not some chattel that has been bought or not bought but a child, and your Honour cannot leave out of account the fact that what is there is in the end another person.
McHUGH J: Take many single women, the very idea of a child in the next room might be something that would cause them considerable distress and say, “You should not be there.” What happens in that particular case? Does the court have to determine whether or not, having regard to this particular plaintiff’s personality, it is likely to be a boon or a burden, or does one look at this on some assumption, what Holmes used to call “you can’t helps”, that you cannot help thinking that every child is a boon?
MR JACKSON: What your Honour put to me really involves two aspects. One aspect is that, in circumstances of that kind, it may be that if the mother’s condition is such that it is something which is – I use the term “psychiatric”, but it is something that flows on from the birth, a form of depression, for example – something that one could classify – then that is something on which, as the law stands, she would be entitle to recover for. What one is talking about is something else, really, and that is the costs of bringing up the child. It is in relation to that: either there is, on our first submission, not to be recovery, or, if one takes a different view, then the difficulties in the relationship would be a matter to be taken into account in arriving at the conclusion of what should be the ultimate amount that is payable.
McHUGH J: But this very idea that children are a benefit is very much, I suspect, a late or mid‑twentieth century conception. Certainly, children were not generally regarded as benefits by upper class families in England in the last century. Lord and Lady Randolph Churchill did not seem to regard their children as any great benefits. They hardly ever saw them.
MR JACKSON: Well, I suspect, your Honour, they were not on the underground.
McHUGH J: No.
KIRBY J: What a great benefit one turned out to be.
MR JACKSON: Yes. Your Honour, you are right. There are many cases like that, and, if I may say so with respect, to select someone of that kind does not really ‑ ‑ ‑
McHUGH J: Well, I know it does not, but it just shows this assumption that everybody thinks children are a boon.
GUMMOW J: The people that Dr Marie Stokes went around and talked to in the East End would not have thought there was a boon in having a ninth child, probably, in the 1920s.
MR JACKSON: Well, your Honour, no doubt ‑ ‑ ‑
KIRBY J: I think this is getting a bit out of touch with reality, though, with a child’s smile that melts virtually everybody. There might be a few misanthropes and exceptions.
MR JACKSON: Your Honour, could I say, in relation to what your Honours have said, that no doubt there are individual views, and the variety of views that one has seen in the large number, say, of United States cases indicates that there are differing views. But what one does see from it all is that, when it comes to actually deciding the cases in many jurisdictions across a nation as diverse as the United States - when one sees the observations made in New Zealand, when one sees the observations or the conclusions – perhaps if I could put it more happily, the conclusions arrived at by the House of Lords, they all, in our submission, reflect a view of the law and a view which, in our submission, is an appropriate view of what the policy of the law should be.
HAYNE J: The question for us is which paradigm do we adopt, children are never a benefit, children are always a benefit or it depends from case to case?
MR JACKSON: Yes, that is so, your Honour.
HAYNE J: I think we have run round it several times, have we not?
MR JACKSON: Indeed, your Honour. Your Honour, there are a couple of other things I wanted to say, if I may.
KIRBY J: But there would be an intermediate position and that is that children are generally a benefit and if you want to show that they are not you have to bring some evidence that suggests they are not. In this case the parents, very properly and honestly, said, “It was unplanned, but the child is a joy to us”.
MR JACKSON: Yes. I think what your Honour was putting to me was really a question of burden of proof within Justice Hayne’s third category in a sense. Your Honours, could I refer, I think, just to a couple of other matters. One concerns what is in our written submissions in paragraph 53 and, your Honours, what we would seek to say about that is that it is perfectly right to say that sterilisation and contraception have become much more publicly acceptable and that fact is recognised in the decisions. One sees it, for example, in Kealey v Berezowski at pages 731, 732 and in the observations of Lord Hope, for example, in McFarlane at page 84.
Your Honours, could I just say something in relation to the question of social security which is referred to in paragraphs 62 and following of our written submissions. We are not suggesting that damages in this case should be reduced by any sum. What we are saying is what we set out in paragraph 62, namely that if the Court does state the principles in a manner adverse to our contentions it should leave open the possibility for some set‑off for these amounts in other cases. The amounts are not insubstantial and it was not attempted to quantify them in detail in this case, but broadly speaking and such evidence that there was ‑ ‑ ‑
McHUGH J: You are happy to leave it under general contingencies?
KIRBY J: They vary greatly from one State to another in Australia as we found in De Sales. One day we will have to look at that and in New South Wales it is pretty standard at 15 per cent and in that case I think we were told in Western Australia it is about 5 per cent and in Queensland it looks as though it is 3 or 4 per cent or something like that.
MR JACKSON: Could I just say that your Honours are happy to leave it as contingency. The answer really is that the issue does not need to be resolved at all. All we are saying is that the Court should flag that there is such an issue.
CALLINAN J: Mr Jackson, is there anything in De Sales that helps your case that it is distasteful to be making an assessment of the prospects of remarriage in the same way as it is distasteful to be assessing damages in respect of the birth of a child?
MR JACKSON: An analogy, your Honour, but I would not want the rubber band to be drawn too far. Your Honours, could I just say something in relation to the relief. The relief which we seek principally is that the judgment be varied in the manner which we have set out in paragraph 67(a) of our written submissions. If the Court were to take the view that the damages should be assessed in some other way, then it will be a matter for the Court to decide what to do. The basis on which the case was conducted, in effect, by both sides, was that in relation to these sums it was all or nothing, but it would be a matter for our learned friends if the Court were to decide some other basis was appropriate to seek a new trial on the question of that aspect of damages.
Could I just note, your Honours, that under the Uniform Civil Procedure Rules in Queensland Rule 770(3) provides that:
A new trial may be ordered for a part of a decision without interfering with another part of the decision.
Your Honours, we rely, of course on our written submissions, but subject to that those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Solicitor.
MR MEADOWS: May it please the Court. The respondents contend in this case that the claim should be resolved by the application of the general compensatory or restitutionary principle in forming the award of damages for tortious negligence. This they say in paragraph 10 of their submissions. If that were to occur, this case would involve a novel application of that principle. Whilst tubal ligation may not be new, hitherto at least in this country, it has not been possible for the parents of a child born as a result of the negligent performance of tubal ligation to recover the cost of supporting the child.
KIRBY J: That is not quite right, is it? In CES Justice Priestley agreed that there should be ‑ that was a misdiagnosed pregnancy, but the principle would be the same, that there should be recovery up to the point where he thought the child should have been adopted out.
MR MEADOWS: Yes, that is true in that case, but there is no clear authority, we would say, in a case such as this. Our submission is that an award of damages for the cost of raising a child until adulthood would represent neither an incremental nor coherent development in the law of torts. In assessing this question, in our submission, consideration should be given as to those cases where an award of damages should be made to a parent. In doing that, it is of assistance to look at the historical basis upon which a parent has been able to recover from a tortfeasor expenses incurred in the case of a child injured as a result of the act or omission of a tortfeasor.
Historically, such claims have been limited to recovery of the cost of medical expenses and the cost of caring for the child, costs for which the parents have been held to be legally responsible. Initially, such damages were recovered by way of an action per quod servitium amisit ‑ in other words, an action for the loss of the child’s services. The action was one by which a father sought compensation for the loss of the services provided by the child. In that way it was seen that the medical expenses incurred by the father could also be recovered if the father was legally obliged to pay them. Our submissions in that respect can be found in paragraphs 16 through to 18 of our submissions.
It was subsequently suggested that an alternative rationale for the recovery by the father was his legal obligation to pay for the medical treatment of an injury suffered by his child as a result of a negligent act or omission.
An authority for that can be found in the judgment of Mr Justice Pape in Lloyd v Lewis [1963] VR 277 and, in particular, at pages 279 to 281, where his Honour analyses the development of the law in this particular area and at page 283 concludes, in relation to the case of a parent and an infant child, that:
No such question can arise as between parent and child, for I think it undoubted that a defendant who by his negligence injures a child must be taken to have foreseen that there is in existence some person owing a legal duty to the child to provide medical attention for it if it be injured.
In this context, although in a rather different context, we would also draw the Court’s attention to a useful discussion of these principles in another Victorian case of Scott v Bowyer [1998] 1 VR 207 and, in particular, in the judgment of the court at pages 213 to 215. So even if the question of loss of services is no longer the linchpin of an action for recovery of medical expenses for which the parents are legally liable, the respondents’ case, if accepted, would differ from this action in one important ‑ ‑ ‑
GUMMOW J: Of course it would, but so what? You seem to be setting up a straw man. Mr Walker’s case is not all about an incremental development of the action per quod.
MR MEADOWS: Well, what we are saying your Honour is that, historically, the only right of recovery parents had in respect of children was the action per quod servitium amisit as developed, where the child was injured and the parents were required to incur medical expenses for which they were legally responsible. The parents have never had, historically, any other claim in respect of a child.
GUMMOW J: That is right. So?
MR MEADOWS: And here the respondents ‑ ‑ ‑
GUMMOW J: In respect of an injury to a child.
MR MEADOWS: In respect of an injury to a child. Here we are confronted ‑ ‑ ‑
GUMMOW J: They had actions in tort, as Barnardo’s Case shows, against somebody who took the child out of their custody, for example. It was an action of tort.
MR MEADOWS: It is an action in tort.
GUMMOW J: It was an action in tort against the third party who in broke in upon their custody by taking the child away.
MR MEADOWS: Quite so, your Honour.
GUMMOW J: Well, we could sit here ruminating on all of that, but how is it going to help?
MR MEADOWS: Well, in our submission, in order for the law to develop so that the parents of a child can recover damages, it should be an incremental and coherent development.
KIRBY J: But they are suing for their own loss. They are not suing for the injury to the child?
McHUGH J: It is not a derivative action. It is a personal action.
MR MEADOWS: Here it is, your Honour.
McHUGH J: Yes.
MR MEADOWS: But the parents are suing for their own loss, as they are ‑ ‑ ‑
KIRBY J: That is a very important point of distinction from the principle you are urging?
MR MEADOWS: The parents were suing for their own loss, namely the medical expenses that they were obliged to incur. Here, of course, as you rightly point out, we are dealing with a different situation. It is a case which involves or requires the child to be treated as a long term disability ‑ and I do not mean to be offensive in saying this – but as a long term disability or damage sustained by the mother as a result of a personal injury sustained by her as a result of the negligence of a medical practitioner.
KIRBY J: That is one way to look at it. The other way is the way Justice McHugh put it, it is not a long term damage to the mother. It is a long term damage to the cashbox?
MR MEADOWS: Cashboxes do not have claims and damages, only injured parties.
KIRBY J: Well, it is to the mother in respect of the cashbox?
MR MEADOWS: Yes. So in order for the cashbox to be affected one has to see the child as a long term disability or long term damage.
McHUGH J: No, the damage lies in the outgoings?
MR MEADOWS: That is right.
McHUGH J: You may categorise this as a pure economic loss case, if you like, or as a claim for special damages arising out of the outgoings as a result of this negligence on the part of the defendant?
MR MEADOWS: Well, with that case you are very close to the type of claim that I was alluding to in relation to the action per quod servitium amisit.
McHUGH J: No, look, with great respect, there is not the slightest relationship between the two. The action per quod requires the parents to prove a breach of duty owed to the child. Here the plaintiff sues for breach of duty owed to them and for damage suffered by them. It is not a derivative action. It is a personal and direct action.
MR MEADOWS: But normally, if we are talking about the cost of future care and the cost of future treatment and things of that kind, that is built into the plaintiff’s claim in respect of the injuries that are suffered by the plaintiff. Here – and if one accepts that a child cannot bring an action for wrongful life ‑ the child therefore could not recover those damages into the future. What is sought to be done here is to overcome that difficulty and to transfer the ability to claim for those costs to the parents, and specifically the mother, we would say.
But coming back to my point, we say that it does involve the child being treated as a long-term disability which is productive of on-going economic loss. In this case, the case has been conducted on the footing that the economic loss will be sustained until the child attains the age of 18 years, but, in theory, it could at least be for the length of the mother’s life if the child was a dependant for the whole of the mother’s life, which may be beyond 18 years.
So to come back to my primary point, this would be a novel development of the law and one which does not represent an incremental or
coherent advancement of the law in relation to the award of damages for tortious negligence.
It is also interesting to contemplate, we would submit, the situation in Griffiths v Kerkemeyer. If we come back to the wrongful life action, if it were available, it would not be the parents who would have the ability to recover for the care or the gratuitous care which might be provided to the child. That would be something which would be included in the award of damages which would be available to the child.
McHUGH J: But there is nothing anomalous about that. I mean, at the Bar I was in cases where a wife claimed only for general damages and her husband had an action for quad in which he claimed for the cost of medical expenses and so on. The wife could have claimed in her action.
MR MEADOWS: But she could also claim for the cost of the gratuitous services that might be provided by the husband or some other family member and in the wrongful life action, that would be something that would be available to the children. The reason why the principal in Griffiths v Kerkemeyer was developed was because the person providing the gratuitous services did not have a claim in their own right for the provision of those services. So, we would say, the parents in this case do not have a claim in their own right for the costs of bringing up the child. If it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor.
MR KOURAKIS: If the Court pleases, the submissions that I put to the effect that there ought to be a reduction in the recoverable damages for the benefit of raising the child are put in the alternative. Primarily, we support the submissions, in effect, that expenditure on nurturing a child is not a loss. But if one accepts as the starting premise to this alternative submission that the loss is recoverable, a second premise to the submission is that the parents who have decided neither to adopt nor abort the child accept that the child will be the source of substantial benefit.
GUMMOW J: Why does that follow? I just do not understand that.
MR KOURAKIS: In my submission, because it would simply be unreasonable for a parent who says “I have received no benefit thus far, I expect never to receive any benefit” to have not adopted the child out. It is not an appropriate form of care for the child.
KIRBY J: Just as well Justice Gaudron is not here. She described that as the most heartless submission she had ever heard when it was put up in CES.
MR KOURAKIS: If your Honour pleases, no, because in those cases where the decision is made not to adopt the child out, it must be because of a recognition that over time the bonds of parental affection will, in fact ‑ ‑ ‑
GUMMOW J: Why? There is a multitude of motives and thoughts that go through people’s minds in these social situations.
MR KOURAKIS: If your Honour pleases, if ‑ ‑ ‑
GUMMOW J: It is not a question of drawing out as a syllogism.
MR KOURAKIS: If your Honour pleases, if the position that is taken is that I as a parent hate this child, or will never receive any benefit from it, but will keep the child because of a moral or religious conviction that adoption is wrong, well, that is a position that might be taken. But the question is whether the ‑ ‑ ‑
GUMMOW J: There are all sorts of intermediate possibilities.
MR KOURAKIS: If your Honour please, there are.
GUMMOW J: We are talking about people and the conduct of their lives.
MR KOURAKIS: Your Honour, the distinction I seek to draw is between those, if you like, maintenance defaulters, who make the decision not to meet their financial responsibilities, those single parents who find abhorrent the thought of a child in the room next door. Those situations will not come before the court as this case does, where the parents have made the decision that as much as the child was unexpected, in the long term, their assessment will coincide with society’s assessment as to the benefits of the child. In any event, irrespective of why the decision is made, there is in these cases good reason for the courts to find and proceed on the basis that keeping the child and nurturing it will involve substantial benefit.
The next question that arises is whether or not there should be a reduction. In my submission, it is quite appropriate for there to be a reduction, because without the reduction the plaintiff is, in effect, overcompensated, enjoying the substantial benefit of keeping the child and receiving compensation from the defendant. In those cases, the defendant is, in effect, unfairly burdened. It is put against that proposition that the interests are different, that is, that the benefit received is a benefit which is put to the emotional side rather than the cashbox side. In support of that proposition, both his Honour Justice Davies in the court below and the respondents in their submissions refer to Public Trustee v Zoanetti, a decision of this Court.
In that case, it was contended that the damages awarded by way of solatium should be offset as against the damages claimed for loss of dependency. The simple answer to that question, with respect, is that both claims being statutory claims, construction of the statute revealed that it was intended to convey both benefits without reduction, and, in the end, that is the reasoning which his Honour Justice Dixon used to support the eventual finding that there was to be no reduction. At page 278 – and if your Honours please, his Honour Justice Dixon’s reasons from Zoanetti have been photocopied and provided earlier – his Honour dealt with a more general question before he came to deal with a consideration of the terms of the statute itself.
Your Honours will see from the first paragraph on page 278 that his Honour, on the basis of general principle, dealt with the proposition that damages awarded on one claim should not in principle be reduced as against the damages awarded in another claim. That, of course, is not the offsetting principle for which we contend. It is the second paragraph at page 278 that deals with whether account ought to be taken for a benefit conferred by the wrongdoer’s act on a “separate interest”. In this case, there are substantial differences and distinctions, quite apart from just what a separate interest is.
GUMMOW J: This section 920, is that in the same form in the secondary statement?
MR KOURAKIS: I do not know, if your Honour pleases. That section has been considered, in American cases, both for support or reduction for benefits and to deny it.
GUMMOW J: Yes, but the American cases talk about the secondary statement. It is the same section number in both it seems.
MR KOURAKIS: Yes. Now, your Honours, in my submission the appropriate principle to apply is to offset benefits where there is a strong causal connection between the loss and the benefit. In this case, the wrongdoer’s act both creates the loss, if it be that, but also the circumstances in which the benefit is conferred. Moreover, that loss and benefit duality arises as a result of the decision of the plaintiff to keep the child. So those acts, both the wrongdoer’s act and the independent act then of the plaintiff, both bring to the plaintiff the cost and the benefit. That interrelationship, in my submission, is sufficient to categorise those interests as being in the same interests or, at the very least, makes it just for there to be an offset.
Your Honours, can I just deal briefly with matters or examples of not allowing onsets in the statutory claims for death raised by your Honour Justice McHugh yesterday and Justice Callinan this morning. As to the claim for solatium where the breadwinner has been relieved of the obligation to support a dependent spouse not being so offset, in my submission the answer to that really comes down to a construction of the statute which on its construction intended to convey or allow claims in both interests irrespective of the loss or gain in the other.
As to the claim for solatium in the case where a spouse is relieved of the burden of the overbearing spouse, then again the answer lies in the statute where it has been held it is only pecuniary losses and benefits which are assessed and weighed one off against the other. If the surviving spouse had been, for example, paying for psychiatric treatment to deal with the burden – and that might be assessable as a pecuniary benefit – but the thrust of the submission I make is that those cases, that is whether there is an offset or not in the statutory claim area, really do come down to an assessment of the statute rather than elucidating any broader principle which denies the submission I make about offsetting benefits where there is a close interrelationship between the cost and the benefit.
KIRBY J: Is there any principle in this Court that supports that proposition, that you can offset against what one might call special damages, general damage benefits or benefits in the nature of general damages?
MR KOURAKIS: No, your Honour. The only authority for the proposition are in cases like this and, indeed, your Honour’s judgment in CES and references ‑ ‑ ‑
KIRBY J: Well, if there is nothing in the authority, what is the guiding principle of legal policy or legal principle?
MR KOURAKIS: Compensation should simply make good the loss, and that requires a balance of loss and benefit, the limit to that being ‑ ‑ ‑
McHUGH J: That is subject to the general principle that if there are two separate interests affected by a wrongful act you cannot set off the benefit against the injury to the other.
MR KOURAKIS: If your Honour pleases, in my submission, that principle can justly be made subject to that observation that where there is a close causal connection between the loss and the benefit, irrespective of those things going to separate interests, the cashbox, if you like, and the emotional interest, that the cardinal principle, which is not to overcompensate, allows reduction on that basis.
McHUGH J: You will certainly be setting off new lines of inquiry in personal injury actions. You have to weigh up what personal benefits injured people get to be weighed against their losses.
MR KOURAKIS: If your Honour pleases, not so, and, indeed, the Port Stephens permanent holiday example and, indeed, my learned friend Mr Walker’s example of the benefit of reading the book and not taking those into account will not be affected by this principle, in my submission, because simply on a factual basis it must be recognised that those benefits are insignificant or, at least, set off against the benefit which is derived from productive engagement in the workforce and, in my submission, the opportunity to take the holiday and to read the book is probably more valued by those in busy employment or engaged in productive employment than those who are facing permanent idleness because of the incapacity.
McHUGH J: I do not think there would be too many blue‑collar workers who would agree with that submission.
MR KOURAKIS: In my submission, the satisfaction which is obtained from productive employment is not limited to forms of favour, if your Honour pleases.
KIRBY J: I see two consequential problems. One of them is how you put a money value on the benefit of a child. How does one even approach that valuation?
MR KOURAKIS: If your Honour pleases, my submission is that all one needs to do is approximate the difference between the cost or expenditure, if you like, and the benefit and I will come to a submission in a moment as to how that might be obtained by applying a percentage discount.
KIRBY J: The second problem would be how do you then allow for countervailing counter burdens, that is to say, the inability to have holidays, the inability to buy a new car, have a new home, which may be one of the reasons behind sterilisation decisions, to improve consumer benefits?
MR KOURAKIS: If your Honour pleases ‑ and again I will come to that in a moment ‑ those are factors which detract from the enjoyment of the benefit of the child and the more that there exist objective factors which compromise the capacity of the parents to enjoy the benefits of the child then the smaller any percentage reduction to the expenditure will be – and I will elaborate on that in a moment. But, your Honours, just dealing with the question of benefits, in Hoad’s Case, a decision of the New South Wales Court of Appeal, a farmer who bought a new tractor to be able to bring in his last crop had the cost of the new tractor reduced by the extra benefit in obtaining it.
Now, your Honours, they are interests in the same cashbox I accept, but in this case, where there is such an inextricable connection between the benefit and cost of raising a child, one has to ask why is it that in the case of the tractor the court will allow a reduction for the material value of the tractor, but in the case of something which, in my submission, is accepted as having inherently greater value in the hierarchy of values, not accept any reduction at all.
Now, your Honours, just turning to that question raised by your Honour Justice Kirby, and that is the question of how one assesses the benefits of the child, can I just say that the proposition that the question can be approached by applying a percentage discount is not new. In loss of earning capacity cases one can either have two ledgers, one in which you calculate what the worker would have earned, but for the injury, and another one that shows what the worker will be able to earn and only earn because of the injury and calculate the difference.
The alternative approach which just as often best approximates the loss is to consider what the worker would have earned, but for the injury, and apply a percentage discount which is assessed on the basis of the extent of the disability.
Now, when one comes to the costs of raising the child and a reduction for that, in my submission, if it is shown that the family will suffer significant financial burdens or impositions on the lifestyle that they had planned, then that is a factor which one can say is likely to detract from the benefit of having a child and accordingly, the percentage reduction that would be applied to the costs of raising the child would not be as great.
Indeed, her Honour Justice Lax in Kealey v Berezowski hinted at such a position, accepting that the loss might be claimable at least where the financial burden is so great that the legal obligation to care for the child is compromised. The proposition that I put would allow for a more flexible approach than allowing compensation only in that extreme case.
On the other hand, a family that is financially better off will have an initial claim which is higher because it would be expected that their expenditure would be greater, but the finding could be made that because of that financial support the family will be in a better position to enjoy the benefits. These matters are only approximations, but they are sources of matters which can be considered. A disabled child ‑ ‑ ‑
KIRBY J: Can I ask you the brutal question? I am sitting there, I have come to the calculations Justice Holmes did and I then have an instruction from this Court, “You must, of course, deduct from the amount in special damages or money terms a proper amount for the joys that come with a healthy child”. Now, I have to then do it. How do I do it?
MR KOURAKIS: Your Honour, the first thing is to start to make the decision which in the end is a decision which will have to be made for the first time either by this Court or by courts if recovery is accepted as to whether one starts up with a high or a low discount, and that question will depend on the value which is given – the extent to which society’s valuation of the benefit of human life is accepted or, on the other hand, the family’s – the parents’ assessment when they sought the sterilisation is accepted.
If one starts off with the parents’ assessment, then the percentage discount will start off being very low and then adjusted for such factors as those which I have mentioned. If one accepts society’s valuation of the life of the child, the percentage discount will start high but then will be affected by such factors as the financial burden, whether there is a disability, whether the parent is disabled and the consequent difficulty that causes. A discount would be allowed for the possibility that a beneficial relationship between parent and child will not subsist for their joint lives. Those matters can be factored in, but one needs a starting point. The starting point is one which has to depend on a choice between the parents’ assessment of value or society’s.
KIRBY J: But could you give me a ballpark figure in this case? I am sitting there with Justice Holmes’ admirable and careful judgment, I have reached that point and I just do not know quite what to do because I feel a sense of distaste to put a value on the life of a young child and yet I am told by the High Court that I have to do it. Now, what do I actually do?
MR KOURAKIS: If your Honour pleases, the proposition for which I contend is that the percentage will be low. In this case, it will be found that as much as it was hoped the child would not arrive, the child is being supported for adequately. It has been welcomed. Society places a high value on it. There should be a high percentage discount of the costs to reflect the value and the benefits derived from raising and nurturing a human life.
McHUGH J: It cannot depend on what value society puts on it, can it? Surely, it must depend, if your argument has any justification, on what the particular parents think about the matter.
MR KOURAKIS: If your Honour pleases, there is no obvious equivalent between pain and suffering in the awards which are given, but the awards in money terms are not decided by the plaintiff’s assessment of what it is worth. In the end, a decision has to be made as to how it fits in and, your Honour, the law might recognise the parents’ assessment as the starting point and, accordingly, apply very little discount, because the parent had assessed that it would rather have the money than the child; it might adopt it from a different perspective. But in the end ‑ ‑ ‑
McHUGH J: How does Benham v Gambling fit into that? I mean in Benham v Gambling the House of Lords held that the loss of expectation of life called only for a nominal sum, and this Court dealt with the same problem in, I think, Sharman v Evans and it was a very low sum. I cannot remember. It was £500, I think, in Benham v Gambling. So that was a shortened expectation of life. Life was not a boon is all you can derive from the House of Lords decision. It was not worth much.
MR KOURAKIS: If your Honour pleases, there is some incongruity, I accept that, but this case, and these cases, are nonetheless different because one is considering the benefit which is derived from the family or by the parents in raising the child rather than the benefit to the plaintiff himself or herself of their continued life.
If your Honours please, in the end, if there is no basis upon which to allow and account for the benefits, if the reduction proposals which have been proposed in these submissions are thought to be too complex or too problematic, then, in my submission, the fundamental position we come back to is that to allow full recovery would be to overcompensate the plaintiff by leaving out of account what society and most people will see as inherently very valuable and to overcompensate the plaintiff at the expense of already overly scrapped health budgets in my submission gives rise to a further policy reason over and above those advanced already for denying the claim.
In short, it is unfair or unreasonable to impose the legal burden of compensation for the expenditure in circumstances where there are not mechanisms to prevent and effect that overcompensation and ignoring what most would accept as something inherently valuable.
If your Honours please, can I just make two other submissions that arise out of matters that have come from Mr Jackson’s submissions. Firstly, as to the public policy basis to deny that expenditure is a loss. The common law itself has always accepted that the death of a human being could not be complained of as an injury and that is an indication of a principle of the law which applied to an injury, in my submission, on policy grounds, much criticised and later removed by statute, but, nonetheless, a principle which went to whether an injury sounded in recoverable loss.
As to the other exception related to illegal earnings already adverted to, it is accepted that a legality is an obvious reason for intervention on policy grounds, but, in my submission, it suffices in terms of allowing the
approach of saying expenditure on human life is not lost; that is, the intrusion of policy. It is an obvious ground, but the importance is that it recognises that the court will deny that an injury amounts to a recoverable loss on policy grounds and the question then becomes again, for reasons already advanced, why the expenditure on nurturing a child should not be regarded as a recoverable loss.
Finally, if your Honours, please, the final observation I make, is this, that a consequence of limiting the duty to the parent who received the advice or the treatment, must be, in my submission then, that the award will be limited by the earnings or potential earnings of that spouse. If this is a claim for economic loss, simply the cashbox, then the recoverable claim for expenditure cannot exceed the loss that would be suffered by the particular parent. If the Court pleases.
GLEESON CJ: Thank you. Yes, Mr Walker.
MR WALKER: May it please, your Honours. Your Honours, as Justice Kirby has said, it is a misanthrope indeed whose heard is not melted by the smile of a child. One can go further when the baby first looks at you and laughs, then you have gone for all money. That is sentimental and, in our submission, bordering on saccharine approach, is one of the two possible explanations for the underpinning of the appellants’ argument. That is, that it is in the nature of things a normative statement about a happy society one assumes rather than a description of nature as it actually has existed and continues to exist, that ‑ ‑ ‑
KIRBY J: But you would not think all those clever judges would have fallen for saccharin?
MR WALKER: Yes, we so submit, your Honour. There are many who did not and there are many who can only be described as tart in their response to those sentiments and your Honours have had your attention drawn to a number of powerful dissents as well as a smaller number of powerful majority reasons to that effect.
McHUGH J: I must say I regard the action as distasteful, as I would imagine most plaintiffs who have to bring them would regard them as distasteful.
MR WALKER: Quite so, your Honour.
McHUGH J: But it seems to be a question whether or not you apply a legal principle or you let it be affected by sentiment.
MR WALKER: Yes. Distaste is not confined to cases where, in effect, you are saying, “I did not look to the expense of maintaining this child whom, of course, I love and will nourish. There is the distasteful part. But there are other cases, of course, which are equally distasteful such as a proud man pointing to his crippled or incapable state, including, of course, depression and the like. That is fairly distasteful for plaintiffs as well.
CALLINAN J: Judges have to evaluate distasteful situations all the time.
MR WALKER: All the time, all the time. In our submission, taste should play no part in the so-called public policy arguments which have imbued the decisions in this case, notwithstanding protestations to the contrary. The second possibility is one which will not delay your Honours long. It would be wrong if your Honours were delayed by it. That is the possibility now eschewed and, with great respect, properly so by the State of Queensland who have never argued this point, namely that there is something in itself wrong, wrong within the cognisance of a common law bench in sterilisation in seeking to deny one of the possible consequences of certain forms of sexual intercourse. That is gone, but it is clear, of course, that it is a relatively modern development that society not only does not punish efforts surgical in nature to sterilise, but positively provides it, funds it publicly and funds publicly research into doing it better.
In our submission, that is a development social of a kind that this Bench can take judicial notice of as every bench to whose work you have been taken in this argument has taken notice of it, that sterilisation is not put as being in any sense contra bonos mares. Once that be established, just as the first chamber of the cour de cassation in Perruche found, certain things follow in relation to what might be called policy arguments. In Perruche, of course, as your Honours have seen, the reasoning commenced with the law of the republic, that is, the positive enactment which regulated the availability of abortion on demand.
From that the learned judges developed the proposition that the law thereafter of delict could not construct a public policy which denied the legitimacy of the choice provided by that positive enactment of the republic. In our submission, though that of course is not an isolated example, Perruche provides the proper answer to the kind of public policy argument with which your Honours have been pressed.
The first thing is of course that, as your Honours are aware, what started humbly enough as l’arrêt Perruche rapidly became l’affaire Perruche. It became a cause célèbre, a controversy and it involved tick‑tack of a very competitive nature between the judicial and legislative arms of government in that country.
KIRBY J: We would have to be a little careful, would we not, because France is not a country of the common law and, therefore, their ways of reasoning ‑ they got rid of the common law that existed in the kingdom when they had their revolution.
MR WALKER: Unquestionably, but it would be, in our submission, not consistent with the common law to suggest that what is called public policy or social values is something cognizable by or within the intellectual and decisional capacity of only common law judges. That is why the House of Lords did find it, at least some of them, useful, as other courts have done, to look at what non‑common law, non‑Anglo‑Saxon jurisprudence has done in relation to this matter.
Now, in our submission, for all the reasons your Honour Justice Kirby has just touched upon, in fact error will be compounded if one seeks to apply as if they were decisions that ought to be followed, decisions in non‑common law countries in relation to how liability should be limited, how damages should be limited but, in our submission, there is nothing to choose between the enunciation of so‑called policy arguments by Germans and Frenchmen compared with Americans or Canadians
It is our submission that there is nothing preternaturally common law about the public policy discussions with which your Honours have been pressed. In our submission, as we put in writing, much of them are in the nature of assertion, most of them rest on certain normative assumptions, most of them deliberately universalise something which is fictitious and all of them ultimately, in our submission, depart from the realm of legal reasoning.
Your Honours, in our submission the difficulty of all of the jurisprudence which is ranked against us, the difficulty and the error which has been committed by those clever people, to adopt your Honour Justice Kirby’s expression, is that the loss or harm or injury ‑ those words are not equivalent but they are words one finds ‑ has been elliptically and erroneously described in the following ways, all of which are sentimentally tendentious and intellectually fallacious. The first is they call it the birth. The second they say it is the child. The third they say it is the existence of the child. Some of them even go so far as to say, if their words are read literally, that it is the experience of having the child.
GLEESON CJ: What do you say it is?
MR WALKER: It is the circumstances which involve the payment of money to fulfil a need which would not have existed but for the wrong. In our submission, it is fundamental, elementary common law reasoning, of a kind to which we draw attention in our written submissions, which makes this case straightforward, and which at no point involves the distasteful stigmatising of a child as a legal injury or harm, or having a child as in itself a loss.
HAYNE J: You fasten upon one consequence of the negligence: expenditure.
MR WALKER: For this argument, I fasten upon that consequence, and ‑ ‑ ‑
HAYNE J: Why do you ignore all other consequences?
MR WALKER: I do not ignore them. May I say we take them into account in two different ways. The first is that we have already received damages for some of the consequences of the legal wrong, and they are not challenged. So we do not ignore them. To put it vulgarly, we have pocketed them. The second is, of course, we seek to press damages for the one consequence which your Honour Justice Hayne has identified, because that is the one which is in question in this Court. The third way we deal with it is to observe (a) how this litigation has been framed, and (b) then how in principle the law should deal with the so‑called setoff argument. In short, those two explanations of how we deal with what has sometimes been called the setoff or countervailing benefit point is as follows.
As to the way in which this litigation has been fought, your Honours have seen at the beginning of our written submissions, particularly paragraph 4, what needs to be observed about the limits of the issue fought ‑ indeed, not merely technically, but substantively, the limits on the issues supposedly before this Court pursuant to a grant of special leave, on a notice of grounds of appeal which does not raise, in the alternative or at all, the notion of some cutback of recovery if the appellants do not succeed totally.
GLEESON CJ: Is that a convenient time, Mr Walker?
MR WALKER: May it please your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
GLEESON CJ: Yes, Mr Walker.
MR WALKER: I come, then, to the second reason why it is not correct to say that our argument leaves out of account, that is, ignores, other consequences of the negligence other than the cost of looking after my client’s son until the end of his 18th year. The first, of course, is contained in our written submissions in what I hope is an unqualified concession and a submission as t what the correct principle must require. Your Honours will have seen in paragraphs 36 and 49 of our written submissions the concession that had there been any such case by the defendant and had there been any evidence then of course those benefits which can be calculated by whatever process of estimate and actuarial adjustment is required which would flow by reason of the son being in their care must of course be taken into account against that head of damage which calculates the cost of his care.
HAYNE J: You speak of “benefits” but what you refer to in 36 is financial benefit.
MR WALKER: Yes.
HAYNE J: Yes.
MR WALKER: The epithet is critical because this is a financial claim, as you have seen from the way in which we have described the claim before this Court in paragraphs 1 and 2 of our written submissions. That is the first matter which demonstrates that there has been no ignoring in our case of other consequences. Not only have we not ignored those consequences, we embrace the fact that they should have been taken into account had they been shown to exist.
As my learned friend has said this morning, this is not a case which will require any deduction on that account. They do not claim it. It is not part of the special leave application, not part of the grant, not part of the notice of the grounds of appeal and there was no attempt by the defendant to fight the point but in principle, of course, they are right.
The next reason, which completes what I have to say about not having ignored those other consequences, is to be found, of course, in those parts of our written submissions which address what has been variously called the offset, or set-off or countervailing benefit point. They are paragraphs 35 to 39 and 56 and 57 of our written submissions.
The critical matter there is a matter which is well highlighted by the near analogy we have drawn in writing to decisions under Lord Campbell’s Act and we have, in particular, drawn attention in our written submissions to the Public Trustee v Zoanetti 70 CLR. My learned friend the Solicitor‑General for South Australia has already taken your Honours to the actual page to which I would like to return briefly, page 278. It has been said, not only by my learned friend, that Zoanetti may not be of much guidance because it is, of course, a case of statutory interpretation, but the first paragraph on that page rather suggests that that is to underestimate the effect of what Sir Owen was saying. He himself says as follows:
The rule under Lord Campbell’s Act requiring that, in estimating the pecuniary injury –
if I might interpolate, that is, the financial compensation required –
caused by the death of the deceased, the benefits accruing must be considered as well as the benefits lost as a result of the death is no more than a specific application of a principle governing the ascertainment of loss arising from a given occurrence in every case of legal responsibility.
It transcends, in short, mere statutory interpretation. And then the critical part, still part of the general statement by his Honour:
But when there are two interests adversely affected you cannot treat recompense for one as a gain arising from the occurrence and operating in relief of the loss of or injury to the other interest.
The injury to my clients’ interest in this case was being put into a circumstance which they had avowedly sought to avoid, namely responsibility for a child, and it is said against us, “As a result of that, you have a child”. That, in our submission, fits exactly what Sir Owen says are the two interests which cannot be offset one against the other. Then, significantly, his Honour turns to the then ‑ ‑ ‑
HAYNE J: Sorry, you have lost me. What do you say are the two interests?
MR WALKER: The two interests are, the interest we had when my client, the first respondent, went to the doctor, was to avoid having the responsibility of another child.
HAYNE J: Yes, that was the objective. I do not know whether it is an interest in the relevant sense, but it is the objective. Yes?
MR WALKER: The law will protect her interest in having her legitimate, lawful request for sterilisation performed carefully. She has an interest in the careful discharge of the professional duties descending, as a matter of common law, upon the doctor, including advice as to risks and safety upon her request being accepted by the doctor for sterilisation. That interest has been infringed by the negligence found. That infringement of interest has exposed her to the economic consequence which she had sought to avoid. It has, of course, also brought in train the child she loves.
The same thing, of course, can be said about a Lord Campbell’s Act claim, “I have lost my provider but, look, I have obtained some money.” Question: “Can the statutory head, a solatium, for the loss of the provider be offset against the financial pecuniary consequences of the loss of the provider so that the very thing which causes one loss to be suffered is said also to reduce the other?”
Now, Sir Owen there quotes from the then version of the restatement. In answer to your Honour Justice Gummow that sentence is, I think, either verbatim or virtually so, still found in the comment in the current version. If I may hand up a copy for your Honours of the current version of section 920.
KIRBY J: It may be that it is a good analogy, but ultimately the work that is to be done in Zoanetti is to interpret the Compensation (Relatives) Act ‑ what the purpose of Parliament was – whereas our purpose here is to derive a principle of the common law.
MR WALKER: Your Honours, the particular sentence is found on page 510 of that print, under the heading “Illustrations” and “b. Limitation to same interest.” There is the sentence which resembles that quoted by Sir Owen. I will not read to your Honours the passage extensively from the restatement. It contains illustrations which, in our submission, demonstrate the correctness of the proposition that there has to be a tolerable likeness, that is, like with like, for any setoff to be permitted.
The way in which we would urge this Court to see it as a matter of principle is as follows. The only benefits or favourable consequences following upon, and as a result of, a tort which are to be taken into account in ultimately the monetary measure of the damages – the one damages figure to be awarded – are those which themselves contribute to meeting one of the needs created by that tort. That is a principle which, in our submission ‑ ‑ ‑
GUMMOW J: Sorry, could you say that again, Mr Walker?
MR WALKER: The only benefits or favourable consequences of a tort which require to be taken into account by way of deduction in the monetary exercise producing one figure for damages are those which actually contribute to meeting one of the needs created by the commission of the tort.
KIRBY J: But that is not the way it is normally put. Is it not normally put that its purpose is to, so far as money can, put the person who has been the subject of the tort into the position that he or she would have been but for the tort.
MR WALKER: But it flows from that, your Honour, with great respect.
KIRBY J: Yes, the higher principle, and that is the higher principle ‑ ‑ ‑
MR WALKER: Yes, it is.
KIRBY J: ‑ ‑ ‑ to which the appellant and the solicitors have argued. They say if there is a benefit that, perhaps unintended, that has flown from the tort, you have to take that into account in the overall consequence.
MR WALKER: There is no case that says you have to take into account every benefit or favourable consequence that flows from the tort, none at all.
KIRBY J: But if you remember the concept, the concept is to put the person in the position as far as money can.
MR WALKER: May I trace through, your Honour, why that elementary principle, which is the higher principle, in fact is the one that gives rise to the particular application of it and its requirements in the formulation I have offered to this Court? When the tort has been committed that has injured somebody certain needs are created by reason of the tort, needs which did not exist beforehand. Many of them require money in order that they be met, the retainer, for example, of specialised services to take an obvious example. But many an injury frees people, to use a somewhat sardonic term, from the requirement to go to work every day and it remains, facetiousness aside, a decided benefit to be able to enjoy leisure.
But that is not, in our submission, any answer to the claim that to be fully recompensed – this is not solatium or solace, this is recompense – to be fully recompensed for the likely cost of providing those services which would not have been needed but for the tort which are required because, so far as money can, they are necessary in order to put you in the position you would have been in but for the tort. You can never be put back in that position, but you need these specialised services.
If there was a deduction from them, on account of the fact that now you can reside by Port Stephens and not go to work underground in Cessnock day after day, or you can read novels instead of having to go to chambers, then, in our submission, you are in fact as a matter of law preventing the principle so far as money can be put in the position you were et cetera because you have designedly given less than is necessary to meet the creative need. The test of those which must be taken into account by deduction and those which must not be taken into account by way of deduction surely goes back to the functional requirement of damages in the first place to put you, so far as money can, in the position, et cetera, et cetera.
Just as a solatium by way of deduction for the joy of a child will not permit you more readily to feed the child – fine words butter no parsnips – equally, in the case of the injured workman, the money deducted for the superior lifestyle, reading by the shores of Port Stephens, will do nothing to make up for the lost revenue, the lost income which the ruined capacity for work has left him wanting.
So, in our submission, the simple test which will explain all the illustrations in the restatement and will certainly explain Zoanetti and, in our submission, goes back to the elementary principles which Justice Kirby has with respect correctly called attention, is that one asks in order to test for the likeness which will lead to deductibility, does the one in fact go to meet the need for which the other is required as a matter of law as compensatory damages, as opposed to a solatium. That is why of course we concede that head of deduction by way of government benefit, child endowment and the like because that money direct goes ‑ to use another expression already in the argument in this case ‑ into the cashbox, but the joy of the child goes into no cashbox. Converting it to money makes it even worse and, in our submission, a form of irony, bearing in mind what has been said time and time and time again about the incalculable nature of that, and thus the need to adopt merely conventional sums particularly if one takes a homogenising result across all cases, across all people.
KIRBY J: We did not really get any suggestion or help as to how one would even go about calculating what the money would be. How would one work it out? Somebody has to face up to the practical problems, unless you have an arbitrary rule, which is the business of Parliament not of a court normally.
MR WALKER: Yes.
HAYNE J: How do you assign a value to the pain and suffering of someone who has broken a leg?
MR WALKER: Your Honour anticipated my very next point which was going to include that example and also the way the common law has avowedly imposed a conventional, nominal or very modest, depending upon the jurisdiction, sum for loss of expectation of life. May I now turn to that matter. The first thing is it will not help me to stand before your Honours and say it will be invidious or difficult or impossible or incongruous for a court to be faced with the valuation of the joy of the child because, for the reasons Justice Hayne has pointed out, other things which cannot in truth be measured by money have been the subject of awards in the nature of solatium rather than financial recompense as part of compensatory damages for too long for that argument to survive, if I put it as generally as that.
Our argument of course is not about the invidiousness or difficulty of even a conventional sum for the joy of a child but rather says there is no set‑off because the joy of a child provides nothing towards the need created by the tort of pain for the child, whereas, the government benefit coming from the child does get deducted because it does go to contribute to meeting that need and compensatory damages in tort, for the reasons drawn to attention by Justice Kirby, starts with the elementary proposition that they must, in financial terms, do what money can do to restore the position, the restorative aspect of damages.
HAYNE J: What is the difference in principle between the assessment of the value to be assigned to “the joy of a child” and the second plaintiff’s damages for loss of consortium valued at $3000?
MR WALKER: As to the (a), conventional, and, (b), arbitrary nature of the exercise we would respectfully submit no real defence. That is why, of course, we do not rely upon either the artificiality or the incongruity of the exercise, let alone its invidiousness. We do not rely upon that as why there should not be a set‑off.
HAYNE J: But what lurks behind the cases against you seems to be the notion that the convention should be adopted that the value of the benefit of a child equals, if not outweighs, the financial cost of maintenance.
MR WALKER: Your Honours, in our submission, that proposition need only be stated to question its commonsense in terms of financial reality. It is not the case that they are even the same areas of discourse. We use the words, “worth, value, cost, benefit and burden” in totally different areas of discourse and, in particular, those dicta in the cases to which you have been taken which pose rhetorically the question, “What, after all, is that child worth?” or, “Is the value of this child off‑set by the cost of bring‑up the child?” are questions which commit the error of using expressions of “estimation of value, worth or cost” as if they were talking about equivalent concepts. The worth of a life is not to use that word in anything like the same way as “the worth of that painting”.
KIRBY J: I think you are trivialising the argument. The argument was not what the baby or the child is worth, it is what the joy to parents, what the countervailing pleasure and happiness and fulfilment they secure from the birth of the child.
MR WALKER: It is what the judges have said though, your Honour. Your Honour, I am not trivialising the argument. I am quoting from cases which have asked that question.
KIRBY J: Do not worry about the cases. We have to solve this for ourselves.
MR WALKER: May it please your Honours.
KIRBY J: In terms of principle, as I see it, the argument is not what the worth of the life is, that would truly be offensive, but, what is the countervailing benefit that the parent ‑ though the pregnancy was unplanned it has happened and therefore you have to look to how things have actually fallen out and therefore you have to take into account against the loss the joy and benefits that the parents secure.
McHUGH J: But is that really the principle? Is not the real principle that it is only those benefits which directly relate to the interest affected that requires consideration or assessment? Take this very case; could it be suggested that, on the other side, it should be taken into account, in this case, child endowment?
MR WALKER: Yes, it could be.
McHUGH J: Well, the authorities would be against it, would they not? Cases like Espagne’s Case, Redding’s Case, any of those cases.
MR WALKER: Your Honour, I have put the argument in principle, if the payment can be seen to be one which is brought about because you have the responsibility of a child, that, in our submission, it needs to be taken into account against your claim for the cost of providing for the child.
KIRBY J: You accept that; you say that is in the same financial world that the joy or the pleasure is in a different realm of discourse? That is your argument, is it not?
MR WALKER: Yes, that is an illustration of the like.
McHUGH J: But what about the contract of insurance? You do not take that into account.
MR WALKER: No, that is a different question, in our submission.
McHUGH J: You do not take into account the fund raised by neighbours to compensate ‑ ‑ ‑
MR WALKER: No, but there are idiosyncratic reasons in each of the examples your Honour gives as to why the common law has turned its face against what might have been a logical extension of the general rule.
GLEESON CJ: How do you identify the interest of your clients that was affected?
MR WALKER: As your Honours have seen in our written submission, paragraph 22, there is a variety of ways in which it can be expressed perhaps differing according to the level of generality selected. The one which, in our submission, most closely provides the appropriate guidance to this present question of available damages, is that it was the interests of my clients that the professional duties associated with the requested sterilisation be performed carefully, so as to provide them with the benefit of those services, which, of course, are the greatly reduced prospect of becoming responsible for a child. Now, the factual finding here is that theirs is not a conception, which came about from what might be called the “background failure rate”.
GLEESON CJ: But is that an elaborate way of saying that the relevant interest is their financial interests?
MR WALKER: Ultimately, the responsibility for the child, in the issue before this Court now narrowed down, is the financial one. That is not the only one, of course, which is why this is not really ‑ ‑ ‑
HAYNE J: Was the first respondent’s interest an interest in bodily integrity of a particular form?
MR WALKER: Part of her interest is that, your Honour. Bodily integrity is, in this case, an excessively general phrase for her interest, but her interest is in having surgical intervention upon her body, together with the therapeutic advice and counselling, which is an integral ‑ and I stress integral, part of the matter ‑ which is why we say this is not really to be seen just as a negligent misstatement case. The whole thing is part and parcel: the clipping, the counselling, pre and post.
GUMMOW J: The Americans call it, control over her reproductive future, do they not?
MR WALKER: Yes.
GLEESON CJ: And has she not been compensated for that?
MR WALKER: No, because what she ‑ ‑ ‑
GLEESON CJ: Except in so far as it relates to her financial interests.
MR WALKER: Yes.
GLEESON CJ: That is why it has been said that we are just talking about a cashbox at this stage.
MR WALKER: Yes, but that does not make this a claim, in any of the sensible use of the expression, for pure economic loss. This is a claim for special damages. This is what this case is. It is not pure economic loss in any relevant sense of that expression.
GLEESON CJ: Like out-of-pocket expenses.
MR WALKER: Yes, this is the special damages part of the claim when you are asking for a quadriplegic what are the architectural alterations, what is the live‑in care necessary, what will be the other matters, for example, of companionship and the like.
HAYNE J: And the analysis made in that context of future economic loss by reference to loss of earning capacity rather than earnings is not an analysis that finds an analogy here?
MR WALKER: Probably not, your Honour, that is there is no interest injured in this case before this Court – and I stress before this Court – which really resembles the diminution of earning capacity. The interest which was injured in this case in relation to the claim still before this Court is the interest to have had something happen in a particular way which the court has found as a matter of fact, beyond challenge now in this Court, had it been done, would have resulted in what they after all sought, what the first respondent told the doctor she wanted: no more children.
GLEESON CJ: The claim is for expenses that they wanted to be spared.
MR WALKER: That is right. That they wanted to be spared, that they requested to be spared, that the appellants undertook, albeit apparently not contractually, to provide and which they negligently did not provide. Now, in our submission, seen in that light, which is the only light available from the conduct of the case below, this does not deserve any special title. This is simply that part of the claim, an ordinary claim in negligence against a professional for special damages.
KIRBY J: Could I ask you how – first of all, as I understand it, in the Court of Appeal all of the judges considered that this was a case of economic loss or analogous to economic loss. Am I wrong in that?
MR WALKER: No, your Honour is right. Indeed, I think I can say against myself that it is really the former. They described it as a pure economic loss case, wrongly, with respect.
KIRBY J: And can I ask you to explain why, if you have the theory that this is just part of the loss of the plaintiffs, you divided the case off at trial and it has been dealt with under separate heads? You made your claim and it is separately assessed by Justice Holmes in respect of the actual damage, and then you have a separate claim for each of the plaintiffs for the economic loss component. Does that not indicate that these were separate counts, separate ‑ ‑ ‑
MR WALKER: I do not speak from a lot of practical experience, but from reported cases and from appeal books it is crystal clear that in a case of this kind it is extremely usual – indeed, good order would require one to divide up your claim. You have your general damages, you have your out‑of‑pockets and you have your estimations of future financial or economic loss.
KIRBY J: Yes, well that might well be so. Now, that is not the division that was made because the first compensation included what one might call special damages components that may ‑ ‑ ‑
MR WALKER: I am sorry, your Honour. I am not saying these are the only special damages claimed, but this is one of the items of special damage, and that is all it is. It is just part of the overall claim and it is one of the items, the biggest item, of special damages claimed. Your Honour is quite right, with respect. The issue before this Court does not, as it occurs, divide into all the special damages which were in question in the case, not at all, simply the largest single item in them.
KIRBY J: Do you say, therefore, that the division was merely one of convenience in order to conceptualise differently the truly controversial aspect of the case?
MR WALKER: Yes, quite so and a matter of convenience which would be reflected in any case in any event, be it controversial or not. In other words, special damages related to the provision of bandages will, of course, be separately proved, and identifiably so, from special damages for the provision in the future of a new wheelchair. In other words ‑ ‑ ‑
McHUGH J: It is attractive but I am not sure it is right. I must confess I spent good deal of yesterday thinking about whether this was really a claim for special damages or was really a separate count for pure economic loss. I still have not got a clear view in my mind. I do not think in the circumstances it makes much difference in this case.
MR WALKER: Can I seek to persuade your Honours that it is as I have put it ‑ ‑ ‑
CALLINAN J: But everybody would make an economic loss claim in as concrete terms as possible which would always involve the attribution of as precise sums as possible to various components of damage.
MR WALKER: Yes, quite so. So the round figure comes in certain familiar parts of the general damages, in particular, pain and suffering and loss of amenity of life and then the startlingly precise figures, usually spuriously precise, come with the estimations of future expenditure.
CALLINAN J: That is what was the result of a decision here in Perre v Apand. The case had to go back for the assessment of those sorts of components as precisely as possible.
MR WALKER: There is nothing remarkable about your Honour’s award being divided into subheadings as the argument proceeded differently. Causation of loss alone will in some cases require separate treatment in principle, but they are all just part of the compensatory or in some cases the solatium damages which are sought. We are talking about compensatory damages only and, as it happens, we are talking about one item in the list of claimed special damages.
McHUGH J: What has concerned me and what still concerns me is this: in the ordinary special damages case one is making a claim for expenditure that is the result of something about the plaintiff, it might be pharmaceuticals, it might be medical expenses, but here the child having been born, the claim is now about reimbursement of the cost of supporting the child and I still have not got it clear in my own mind as whether it is a claim for economic loss or a claim for special damages.
CALLINAN J: But, Mr Walker, are not special damages almost always ‑ indeed they may always be, can you assist me – ascertainable losses, past losses by the time of the trial?
MR WALKER: Some will be past and some will be future, your Honour.
GUMMOW J: Is that right?
CALLINAN J: No, that is not right, is it, no.
GUMMOW J: I am looking at Sir Wilfred Fullagar’s judgment in Paff v Speed ‑ ‑ ‑
McHUGH J: Dissent.
GUMMOW J: Yes, that may be, nevertheless – in 105 CLR at 558.
MR WALKER: Which I cannot bring to mind, I am afraid, your Honour, I am sorry.
Your Honours, nomenclature aside ‑ ‑ ‑
GUMMOW J: It bears out what Justice Callinan was putting to you.
MR WALKER: ‑ ‑ ‑ nomenclature aside, there were claims in this case for heads of expenditure, actual past expenditure, reimbursement, if you like ‑ ‑ ‑
CALLINAN J: The trouble about the future is, they are never precisely ascertainable. The child might die.
MR WALKER: Yes, estimates, your Honour.
CALLINAN J: And I think therefore, with all due respect ‑ I was not aware of the dictum to which Justice Gummow referred, but it strikes me as very attractive.
MR WALKER: Your Honours, may I then move to meet that in this fashion. The head of damages which is before this Court is a head of damages reached in two ways as you have seen from the references we have given in our written submissions in paragraph 2. A relatively small part of the claim is for reimbursement of payments already made. The larger part of the claim is by way of an estimate, lump sum, with the appropriate adjustments of payments which, as a matter of probabilities it is said, my clients will become responsible up until the end of their son’s 18th year, with all the assumptions and inexactness that what I have just said involves, including of course survival up to the end of his 18th year and continued responsibility up until the end of the 18th year.
GLEESON CJ: That just reflects the fact that the case came on fairly quickly?
MR WALKER: Yes.
GLEESON CJ: If the case had been commenced in a jurisdiction where there are long delays ‑ ‑ ‑
MR WALKER: It would all be known.
GLEESON CJ: ‑ ‑ ‑it could all be known. That cannot affect the quality of the claim?
MR WALKER: No, and that is my point. That is a hearing date point and a hearing date point is not going to determine, in principle, in our submission, anything about the availability of damages for past expenditure and estimate of future liability or future responsibility. And, of course, it is a common thing, in all personal injuries cases, where there is only the plaintiff to be concerned with, for there to be exactly the same division.
Now, if I am wrong in submitting to your Honours that they are all items of special damage (a) I apologise and (b) the nomenclature will not matter because in both cases the damages are claimed by whatever label they travel in the law to make good in the one case an actual expenditure and in the other case a probable expenditure, both having themselves arisen in order to meet a need created as a result of the wrong.
Now, that variation of the formulation which is our real case then leads to the next matter I wish to put particularly in response to some questions by your Honour the Chief Justice yesterday in relation to one of the core questions in the case concerning what I think your Honour called “unintended or unexpected expenditures, outgoings of money and what if any relation they bore by way of identity, contrast or merely coincidental similarity with what the law would see as a compensable loss.” In our submission, that is a fundamental question. Our answer, however, draws upon elementary matters.
The elementary matter is that the purpose of damages at common law is to place the plaintiff so far as money can, and using the tools available of the common law which happen importantly to include estimation, in the position the plaintiff would have been in but for the wrong.
GLEESON CJ: Do you mean financial position?
MR WALKER: I start first with the general proposition and then I move to the more particular. When it comes to a claim of the kind before this Court now, which is purely financially in nature, that part of our claim for damages being purely financial in nature ‑ ‑ ‑
GUMMOW J: Perhaps you have to think again about what the interest was. I said they were interested in controlling a reproductive future, which may be partly true, but to control it for economic reasons.
MR WALKER: Yes.
HAYNE J: Do you not have to conduct your interest analysis in a way that reveals why it was undertaken?
MR WALKER: Your Honour, it is tempting for us to delude ourselves that we do not have to do that.
HAYNE J: What I have in mind is the passage in Emerson v Magendantz in the dissenting opinion about eugenic, therapeutic or an interest of conserving family resources, economic.
MR WALKER: Yes. Can I try to meet that this way. It does not appear that the appellants put to the forefront of their reasoning anything against our claim, given the facts of how it arose, which has anything to do with the motivation of seeking the sterilisation. In other words, but for one reference, to which we have made answer in writing, it would not appear that there is any veiled criticism, social or otherwise, of the motivation of the sterilisation being sought in this case, and the motivation in this case is best summed up by saying “two is enough” and certainly includes, as the courts below have held, the economic motivation.
Pausing there, in our submission the common expression “family planning” is one which at its forefront has the possibility that people do not wish to have more than a certain amount of children, not because they do not like children, not because they think the next one will not be as good as the ones before, but because they think their resources and their legitimate individual choices about how to conduct their lives will make that a better outcome for them, and the one they desire and pay money to achieve.
HAYNE J: But surely the most common case is one in which there is a whole raft of reasons, in among which will be economic considerations commonly.
MR WALKER: Can I complicate the matter perhaps against myself, I hope not ultimately, and add this to your Honour’s observation. Let it be assumed, as must quite often be the case, that what is called a therapeutic sterilisation is counselled and currently obtained – therapeutic in the sense it is necessary for the woman’s health. One of the many ways in which someone may resign themselves to what at the time may be seen as a tragedy because they wanted more children is of course that they replan their lives, take different career decisions. In fact perhaps, as is slightingly said of women at home, go back to work, that is go out to work somewhere better remunerated. Now, that may mean that after the original motivation for the sterilisation circumstances occur – and this does complicate the matter – which mean that it is now a desired economic state of affairs that the sterilisation was effective, for example.
Why we would delude ourselves perhaps into hoping that it does not matter is principally because there are limits the courts ought to observe as to their own capacity to divine human motive into neat categories and it is probably better realistically to accept that there will be mixed motives and that the most robust cross‑examination, far from revealing the truth, may merely torture the matter.
If that be correct, then it need simply be observed that there will be a difference between the cases where the plaintiff never had any concern about the cost of a child, if that can be established, and all other cases. However, I would take the coward’s way out and say that in our case we have the economic motive overt, and the appellants do not seem to say that that is any disqualifying feature. There is no, as it were, denigration of that below eugenic or therapeutic motivation, so as to say that it is mere lifestyle, and lifestyle is not the stuff of individual choice to be protected by the law.
Rather they say, and we embrace and urge on this Court, that sterilisation being an individual choice, both of one person but quite often of two people together as a couple, which the law will protect by, in our submission, clearly counting a contract to achieve it enforceable, then there is no reason why the law would not recognise a duty of care. The duty of care is conceded in this case and does not seem to be challenged one iota. The only question therefore is whether it matters why you sought the sterilisation.
Now, eugenic and therapeutic cases raise a problem which does not arise in what I will call economic or lifestyle cases. Your Honours have seen the discussion. In our submission, they ought to await another day with real facts. But the difficulties, shortly stated, are these, and they are formidable difficulties in the way of recovery. In both cases, an adverse ‑ I will call it “health outcome” – is the motivation for seeking the sterilisation. In the eugenic case, the health or state of the infant; in the therapeutic case, the health of the mother.
If, by negligence, there is conception, gestation and delivery in the one case of a perfect child, and in the other case without mishap to the mother, it is, of course, in those cases, quite difficult to understand, even on an interests analysis – perhaps especially on an interests analysis – it is difficult to see why there has been any infringement. Which is why, in this case, we locate the proper level of specificity for the definition of the interest of my clients as being the interest to have a procedure sought and agreed to be provided to achieve sterilisation so as not to become responsible for – so as not to have any more – children, as their act of choice in reproductivity.
GLEESON CJ: But that assumes the reason is relevant.
MR WALKER: Your Honour, I fear I have been dancing around that point. My first submission is because of the difficulty of mixed motives, the reason need not be relevant. My second, and much more important, submission is that in this case, the reason being economic, the interest infringed being ‑ ‑ ‑
GUMMOW J: It was not purely economic.
MR WALKER: No, of course not.
GUMMOW J: Looking at paragraph [4] of the trial judge’s judgment.
MR WALKER: No, and I think we have drawn to attention in paragraph 7 of our written submissions one of the typical idiosyncratic matters that will arise in motivation. There was, in this case, ironically, a eugenic reason which, to some degree, influenced the second respondent. It was a eugenic reason which was completely fallacious. In our submission, the question therefore arises as to whether, rather than building a jurisprudence about motivation for sterilisation, whether one should not simply say, in common with other areas, so that there is nothing special to this area, ask “What is the interest which has allegedly been infringed?” and then ask whether the plaintiff’s position is one which requires compensation for the position said to constitute an infringement.
If the interest in a eugenic sterilisation was to have a procedure carried out so that a defective child would not be born, then no interest has been infringed, we would submit, by a beautiful baby being born. It may be the same for exactly the same reasons in the case of a therapeutic sterilisation, although, of course, in that case there may well be mental phenomena between conception and safe delivery which themselves could render the matter actionable.
GLEESON CJ: Mr Walker, your manner of expressing the interests seems to come very close to an expression of motive. I can understand somebody speaking of financial interest, I can understand somebody speaking of interest in bodily health or physical integrity, but the way you put it sounds like a description of the reason somebody did something.
MR WALKER: We would substitute, rather, the notion of object and it is, in our submission, clearly the object of everybody voluntarily seeking professional services – and here is the resemblance or close alliance of this case to a contract case – from a professional. It is clearly their interest and object to obtain it in accordance with reasonable standards of care. In our submission, the interest in this dealing, voluntary dealing, consensual dealing, is when doctor and patient and the husband of whom the doctor had explicit awareness and understood the consequences for the husband as well. In our submission, it is clear that their interest, essentially financial, was to prevent a child being born for whom they would become responsible. Now, morally it would suffice, as it happens, legally, is also available in this case at this time.
So, in answer to your Honour the Chief Justice, undoubtedly somebody’s motive in approaching a doctor can be described in terms which approach a description of the object eventually desired to be achieved through the doctor’s services but that does not mean that one does not have an interest in the proper discharge of the professional services. Indeed, that is the interest protected, classically, by the tort of negligence.
The interest, in our submission, in this case, can also be defined in a number of different ways, none inconsistent each with the other, but rather varying at levels of generality. As has already been said, the first respondent clearly had an interest that things not be done to her body in a way which would disappoint the expectations she had for the consent she had given and the counselling she had received and the choice she eventually made.
GLEESON CJ: But if you want to speak, for example, of a woman’s interest in control over her reproductive future, an aspect of that interest is in not having to justify why she wants a sterilisation procedure.
MR WALKER: Yes, your Honour.
GLEESON CJ: An aspect of that interest is in being able to say to somebody who asks, “Why did you have this done?”, “That is none of your business.”
MR WALKER: “Mind your own business.” Yes. That, of course, was part of the debate in the French court where one of the provisions, the earliest provision for lawful termination, was just that: no man could interfere, no doctor could interfere, simply in conscience refuse to do it; the woman had, as it were, the absolute right unexaminable.
In our submission, in our community, so far as reproductive choice is concerned, that position has been fully reached and that the law has no part in either using the slightly sneering tone “lifestyle” or, for that matter, putting everything on the mercenary line of saying it is economic, let alone purely economic or merely economic, in describing what later, in retrospect, after cross‑examination is said to have been either the motivating, the dominant motivating, the pervading motivating factor.
For those reasons, in our submission, it would be better if, at least directly, motivation played no part in recoverability of these heads of damage, but I am bound to observe that the case which is not before this Court, namely therapeutic or eugenic sterilisation, does raise problems quite different from any that are raised in this case which are not dealt with in the way in which I have tried to deal with the matter in our case.
GLEESON CJ: But is not the logical conclusion of saying motivation does not come into it, it is an interference with a woman’s interest in controlling her reproductive future, that you cannot treat this as a cashbox case because it is not a cashbox issue.
MR WALKER: Reproductive future is a cashbox issue, although not only a cashbox issue. As a matter of literature alone will inform your Honours, it is probably the most common reason, particularly in the past, for wanting, to use the parlance, to limit one’s family if one does not have resources sufficient to go around sufficiently well.
In our submission, the whole rise of family planning and everything that that old expression conjures up very largely is a matter of economics. They have not chosen to deny themselves yet more joy and yet more companionship. What they have chosen is to devote their limited resources, no doubt partly out of love, to a smaller number.
GLEESON CJ: Suppose a plaintiff said, “I’m not financially in any kind of difficulties at all. I have four children and I can afford to have a fifth child, but my motive is that I don’t think I can give proper attention to the other four.”
MR WALKER: Yes, “I am doing badly enough for the present four. I don’t want a fifth.”
GLEESON CJ: Yes. Now, what is the consequence of that on a claim for the cost of rearing the fifth?
MR WALKER: In our submission, your Honour, it will be a rare case where things are so starkly summarised at the end of the evidence. If, at the end of the evidence, one could be really satisfied that that was the peculiar motivation of everybody, that is mother and father, who might have a claim, then it may well be that that case will raise a difficulty not present in this case because your Honour posits a case where economics, resources played absolutely no part in the decision.
GLEESON CJ: I think that was the Canadian case, was it not? Did not the woman in the Canadian case say, “This body has had enough children, full stop”. She did not advance as an explanation for having the sterilisation procedure that she could not afford it.
MR WALKER: No. In our submission, it would be an error to think that our case depends upon any allegation of not being able to afford something; this is a case about choice, and choice which is legitimate. That is, no common law decision and no statute has ever said it is wrong to seek sterilisation, it is wrong to have only two children and it is particularly wrong to have only two children if you are well off.
GLEESON CJ: That was the Canadian case, was it not?
MR WALKER: Not quite, your Honour. Certainly the court does not say, in the Canadian case, Kealey v Berezowski, that it was wrong to seek the limit at all; to the contrary.
GLEESON CJ: No, I am not suggesting that. I am saying the explanation that the woman gave for her desire to go through a sterilisation procedure had no financial aspect to it, did it?
MR WALKER: I think that is fair. Certainly there was no claim, as it were, that the decision was motivated by a desire not to spend money on any more children.
GLEESON CJ: And I would imagine there is nothing unusual about that.
MR WALKER: Not at all. In our submission, that is one of the reasons why motivation does not matter and that this is a case about consequences of an interest being infringed which, whether it is simply an interest in having a sterilisation performed and counselled carefully or whether it is of interest to have no more children - and that the reality is that the sterilisation is sought in order to have no more children - the consequence is plainly a mixture of consequences of which the financial one before this Court is one. There is no argument in this case about remoteness of connection or a problem with causation; all that is conceded.
GLEESON CJ: But your argument would still be the same if the financial aspect was absent.
MR WALKER: Yes. That is my point about why, deluded as we may be, in our submission, motivation should play no part as a matter of principle. Again, I have to note that there needs to be a case with facts in order to test the absoluteness of what I have just said in relation to a therapeutically eugenic sterilisation. This is not a case which really enables that to be done and, in particular, there is none of the evidence by which one would be able to say this has been characterised as a therapeutic sterilisation, but look at what the evidence actually says.
The example I have already given of the reconciliation to a sterilisation, which would not have happened but for therapeutic or eugenic motivation, that reconciliation involving choices about economic dispositions, is a classic example as to why the consequence may include, and should include, financial loss, even although financial or housekeeping expenditure played no part in the initiation of the sterilisation. But that is not our case. We are in more of a mainstream case where we did not get to say, “Mind your own business”; motivation was talked about and motivation is talked about in a way which directly involves the avoidance of the responsibility, including its economic consequences.
Your Honours, that then comes to the way in which one might approach the Chief Justice’s question in relation to unintended or unexpended expenditure. Why should they be, how can they be, what relation do they bear to compensable loss? Can I pick up first the example with which that question was accompanied, namely, the delinquent partner who in breach of mandate becomes excitable at an auction and buys property over the limit set by agreement. On the assumption my learned friend made in responding to the same example, namely, that the price at that auction was in fact the fair price so as to constitute the value for the purposes of the litigation. Then, in our submission, it is clear that that unintended, unexpected and indeed contrary to instructions expenditure does not cause any loss for the following reason. But for the wrong £100 would have been bid and not paid or alternatively, £100 would have been bid and obtained a product worth £100. By reason of the wrong £200 has been bid and has obtained a product worth £200 on the assumption we have both made. Nothing, therefore, has happened except a conversion of one form of property held by the partners into another form of property held by the partners. There could be no compensable loss by reason of that unintended or unexpected expenditure. A wrong, there has no doubt been.
CALLINAN J: Mr Walker, you do not seem to be too keen to embrace what the primary judge and two judges in the Court of Appeal said about Perre v Apand?
MR WALKER: Your Honour has seen how I deal with it in writing. Your Honour’s summary is ‑ ‑ ‑
CALLINAN J: I was quite impressed by the way they saw a degree of unanimity in the case that a lot of textbook writers say has escaped them.
MR WALKER: Yes, your Honour, it is ‑ ‑ ‑
CALLINAN J: They had no trouble applying it, Mr Walker.
MR WALKER: Yes, Perre v Apand is treated as a univocal source in the decisions below, though, that is ‑ ‑ ‑
CALLINAN J: I think they demonstrated it to a considerable extent that that is so, I thought.
MR WALKER: Yes. I think in fact you will find, your Honour, in my written submissions that we do embrace – adopt the way in which Perre v Apand is deployed, paragraph 20 ‑ ‑ ‑
CALLINAN J: A little bit tentatively, Mr Walker.
MR WALKER: Well, there is an “if”. If it is to be deployed then the way it is deployed, we say in paragraph 20, is correct.
KIRBY J: Which paragraph is it?
MR WALKER: Paragraph 20. In paragraph 19, on the other hand, we point out that there are legitimate matters to be pointed out as to why Perre v Apand may not be seen as simply and solely the controlling authority in this case. The use we would make of it in summary – and this is a use which is reflected in the reasons below – is that in a case about what might be called “control mechanisms” and in a case which is a fortiori the present because it did involve pure economic loss, the touchstones which your Honours variously employed to draw the line, were touchstones, all of which are applied to this case favourably to our argument. But the very distinction between a pure economic loss case, as that was, and our case, and the commercial setting of that case, as opposed to the non‑commercial, that is, the professional and medical and personal setting of this case, counsels caution which we have tried to reflect in the wording of our paragraphs 19 and 20. In particular, as we say in the third sentence in paragraph 19 of our written submissions, Perre v Apand was familiarly fought as a pure economic case as raising the question of the ‑ ‑ ‑
CALLINAN J: No. There was an argument but it was not dealt with. It was unnecessary for the court to deal with it. It was that there was a kind of physical injury, in the sense that the whole of the land was affected and that you could equate that with a physical blight, and that there was a physical injury. I do not think it was necessary for the Court to deal with it. I touched on it myself.
MR WALKER: Well, as your Honours will observe from our written submissions, we do not shrink from embracing the higher tests of so‑called pure economic cases in this case, and Perre v Apand is the way in which we try to meet that challenge.
CALLINAN J: You will win hands down here if Perre v Apand is applicable, will you not?
MR WALKER: Yes.
CALLINAN J: You would say that, would you not?
MR WALKER: Yes. Of course another important point of distinction between Perre v Apand and this case which reflects perhaps on the way in which the issues in this case, particularly in this Court, have emerged, is that in Perre v Apand there was absolutely no inhibition about your Honours speaking in terms of the duty of care and how far it extended. We are not using locutions of that kind in this case for reasons found in the history of the argument. The duty does not seem to have been in contest.
Now there is no contest as to its breach; nor – and remarkably so and importantly for the status of our present claim – is there any dispute that there are general and special damages properly awarded once granted duty and breach. Rather, this is a case which we submit is novel, as your Honours have read, where it is said that the line to be drawn is not a duty line, is not an illegality line, but is a line which goes to a kind of loss concededly very foreseeable, concededly obvious, concededly at the very heart of the concern ‑ I use that word deliberately instead of “interest” ‑ of my clients to avoid.
McHUGH J: I am not sure that the rationale of cases like Perre v Apand has much, if anything, to do with a case like this. Central to the notion of negligence is the notion that the failure to take care has to vary, or the standard of care has to vary according to the type of harm that is likely to be suffered. Negligence law gives effect to a policy that the constraints on freedom of action have to be proportional to the interest that is likely to be harmed. Now, in a pure economic ‑ ‑ ‑
MR WALKER: Yes. Could I cavil with one aspect of what I think ‑ if I have heard correctly. I do not think, with respect, the cases say that the duty is there but the standard attenuates as you move closer to the mythical indeterminate class, rather that the duty ceases before you get to that point.
McHUGH J: That is why the law distinguishes between the pure economic loss cases and the physical injury cases.
MR WALKER: Yes.
McHUGH J: It takes the view that a defendant’s freedom of action has to be proportioned to the interest which the defendant’s activities are infringing or may harm.
MR WALKER: And to pick up, with respect, the language Justice Callinan has invited me to consider, it must be hands down for us in relation to the surgeon and this husband and wife. There is no conduct of his, freedom of professional work by him, which is in the slightest degree, in social or legal terms, entrenched upon or cramped by reason of what we would seek to impose by the claim we make for this kind of damages. Nor, for that matter, is it an appropriate comment, as madam Justice Lax made in Kealey, that it is out of proportion because it is a mistake of a few millimetres. A mistake of a few millimetres in surgery for which somebody is highly trained and paid because it is conducted in millimetres, is of course the difference between sterilisation and not. The notion that it is only the grossest orthopaedic procedure that could give rise to damages for the upkeep of a person rather than a delicate surgery is only to be stated to be rejected.
CALLINAN J: How would you get on with microsurgery now which is done under great magnification now?
MR WALKER: But, your Honour , the law does not say “Because this was the difference between 1 millimetre and another, therefore there is no duty”. The law probably will say, “We ought to be sensible in a court room with clean hands. We ought to be very careful about too lightly saying there has been negligence.”
CALLINAN J: It would be much less than a millimetre even involved these days in much surgery, particularly microsurgery.
MR WALKER: Quite so, but as your Honour appreciates, there will be as a corollary, of course, careful attention to the warning given beforehand. But, in our submission, when one comes to consider any of the Perre factors, including in particular the one that your Honour Justice McHugh has raised, there is simply no difficulty in seeing favourable answers for my clients. Now, we concede, as one will have seen from the way we express paragraphs 19 and ‑ ‑ ‑
McHUGH J: Subject to one thing and that is that in certain situations where there may be a failure to take care, nevertheless, the law will not impose liability because the conduct takes place in a particular social context. Barristers cannot be sued, for example, no matter how careless they are, for their conduct in court ‑ ‑ ‑
KIRBY J: So far.
MR WALKER: Can I quote you?
McHUGH J: ‑ ‑ ‑ and governments have immunities ‑ ‑ ‑
GLEESON CJ: And judges.
McHUGH J: ‑ ‑ ‑ and judges. Now, one of the things that has been exercising my mind in this case is whether or not that sort of notion intrudes in this case in some way so that although from one sense the ‑ ‑ ‑
MR WALKER: Sterilisers have immunity, that is what it would amount to.
McHUGH J: Well, yes, it may.
MR WALKER: It does not sound anything like “judges have immunity”, in our submission.
McHUGH J: No. They may have immunity up to a certain extent.
MR WALKER: But why?
GLEESON CJ: Particularly if the basis of their proposed immunity is the inestimable value of human life.
MR WALKER: The analogy there is immediately obvious, your Honour, but ‑ ‑ ‑
KIRBY J: But we have crossed that rubicon because the issue of the future care and the breach is not in contest.
MR WALKER: Yes, and damages. This is not a case about whether damages flow, this is a case about whether a particular item of damages ‑ ‑ ‑
KIRBY J: This particular head of damage is very much in contest.
MR WALKER: Quite. May I return to that matter of immunity which is a new concept in the argument of this case later. It has not been argued, I am not aware of any of the decided cases which talk in terms of immunity and none of the ‑ ‑ ‑
McHUGH J: That may not be the most accurate description of it, but what I am really saying or suggesting is that maybe there is no legal liability, that is what Mr Jackson argues, in respect of the support of a child who is the product of a botched sterilisation procedure.
MR WALKER: Yes, can I simply flag two matters which I will probably touch on when I come back to that matter. The first is that that will raise in another and acute fashion an argument simply not addressed yet on the appellants’ side or by the interveners as to why it is once one went into the fraught area of generalisations about joys, benefits, blessings and the like, that one keeps insisting on the epithet “normal and health”, blasé about the direct implication, indeed at points the explicit assertion, that a child with a club foot is not so to be described or, worse, that there is going to be a continuum upon which red turns to blue.
In our submission, they are problems which show a contradiction at the heart of the argument against us based, as it is, on the so‑called sanctity of life and the joy which is every child because, in our submission, there is nothing legally – that is there is no legal talisman which this Court can seize upon to say that club feet can be looked after, cleft palates can be looked after, but what does one do about mild retardation? What does one do about severe retardation? What do you do, and do you get an intervention from the Royal Society for the Blind, what do you do about the blind, many of whom would much resent being described as anything other than a boon to society and a blessing to their parents? None of those are addressed at all.
In our submission, as soon as one went to immunity on the basis that what a steriliser seeks to prevent is itself such a good thing that failing tortiously or otherwise tortiously to prevent it should not be actionable, then you have to confront this question, does that apply in the case of a failed eugenic sterilisation?
In our submission, the arguments of the appellants are every which way on the point and understandably because there are more than matters of taste involved. They almost openly volunteer in their written submission, as we have noted in our written submission in response, that it may be a different case for the disabled child, or to use the old‑fashioned and unattractive term, “a defective child”.
KIRBY J: Do you deal anywhere with the possible argument for inventing a public interest intervening immunity with the great costs that one reads about in the Ipp Report and so on of gynaecological and obstetric performance?
MR WALKER: Insurance policies, no, your Honour.
KIRBY J: Is that a relevant matter?
MR WALKER: Yes, it is relevant.
KIRBY J: I mean, one reads that it is difficult to secure obstetricians and gynaecologists, especially for public hospitals, and that this is a really large cost area and people are going out of practice.
MR WALKER: It is not especially public hospitals; it is the reverse.
KIRBY J: You say it is not a special ‑ ‑ ‑
MR WALKER: Not especially public hospitals, no. Indemnities are provided in many cases, and this is a political matter which arises as a fiscal response to market reactions to corrective justice. Now, I say “corrective” in the sense of the recompense which comes as a result of the elementary propositions of common law upon which this case is based.
KIRBY J: So the Court sails on and applies the logic of the common law, although it knows that that too will be struck down by the Ipp Report or some other report like it.
MR WALKER: One thing the Court does not do is shape the common law by reference to the Ipp Report. That would be to take the Ipp Report as being quite contrary to what it purports to do.
KIRBY J: Is it an indication of where public policy lies?
MR WALKER: Absolutely not. It is a contribution in a highly controversial area, and whatever public policy is, as a matter of judicial technique, one rough and ready but reliable indicator of what values not to use as so‑called public policy on the Bench is when it is a subject of current, lively dispute of a controversy of a kind that involves ethicists, other social polemicists and parliamentarians.
GLEESON CJ: And conflicting assertions of fact.
MR WALKER: Conflicting assertions of fact, and statistics which come from a smorgasbord where you can pick and choose. In our submission, if public policy is to be used from time to time in the shaping of the common law – and whatever one calls it something of that nature is contained in the books which record the making of the common law – that is, the law reports ‑ then it ought not ever be by choice of a kind which could realistically and fairly be called partisan during a current reigning or raging controversy. In our submission, that is exactly what would be happening in this case. And all the judges, or most, regardless of the side they line up with on this issue, observe that there is much to be said on the other side.
KIRBY J: I think that is probably what Justice Lax had in the back of her mind when she talked of it a few millimetres. I mean, in this case, but for a sentence – “Of course, I have to tell you that there is always a chance that this operation may not render you sterile, and therefore you should check this and before you fail to take contraceptive measures you should ensure that the operation has been completely successful in securing you from any possibility of future children”.
MR WALKER: It is no mark of the unlikelihood of recovery or the impropriety of common law recovery – it is no mark that the wrong took a short time to accomplish. It is the drastic effect it had on people’s conduct and the consequences in its train that, in our submission, the court which decides disputes between parties – I stress, between parties – in this case, tortfeasor and victims, and that is what the Court’s eye should be on, rather than on the fact that – as it were, to exclaim “Goodness, gracious, look what a few words have brought in their train”. Many of the most powerful words are the briefest and the most pithy.
To return to the problem, however, about unintended or unexpected expenditures and why they might be compensable loss, the next example we would proffer to test the way in which we put this argument is as follows, a familiar one in the law that rarely comes to the courts because of the lay misunderstanding it usually reveals, in chambers or the office. “I was told” says a homebuilder, “that this house could be completed – my architect told me that this house could be completed for $X,000. This house cannot be completed for $X,000. No one could possibly complete it or $X,000.”
Now, if there really is a homebuilder who believes what builders and architects say about estimates of cost and they can prove reliance the question is, “Have they lost anything?” – “a tort claim, negligent professional advice estimating the cost of the building you want.” Now, at the end of the building, if it has been done, and they have the building that costs that much with whatever effect on its value that costing that much has, had the wrong not been committed they would have been told, “No way you will build this for X – no way at all”. How, with respect, have they suffered by that unintended or unexpected expenditure?
Then we come to a case which is much closer to this one which stands on the other side of the line. Again, this case, in common with the first two, shows the expenditure getting full value – full value. The quadriplegic who needs fulltime live‑in nursing assistance - there is no family and you need live‑in nursing assistance and that is going to require board and lodging and you manage to retain a terrific nurse, full value for the modest wages and certainly full value for her board and lodging. There is no doubt that there is in contractual social reasonable terms a full value given for every dollar paid out, just like the house, just like the painting bought at the auction for too much money – for over the mandated price.
Your Honours, the difference between the cases are that, but for the wrong, the quadriplegic plaintiff would not need live-in nursing assistance and the expenditure is necessary in order to supply that need, which was created by the wrong. That, in our submission, is the simple explanation, as a matter of elementary common law principle, as to why the unintended expenditure in this case for which we claim in this argument falls into the category as it happens of a head of loss.
GLEESON CJ: What the nurse does is nurse a bodily injury or take care of the consequences of bodily injury. If that is analogous to the present case, it is because the existence of the child is analogous to an injury.
MR WALKER: No. It is because the existence of the child brings in its train a need to spend money which would not have needed to be spent but for the negligence. It never requires the equation of a child with a tumour, a child with a broken spine.
GLEESON CJ: But that is the same with the first two examples you gave.
MR WALKER: No, your Honour, with respect. The first two examples are not cases where there was a need created by the wrong, which was why the unexpected or unintended expenditure was made, in neither case. There was no need to have the better painting; there was no need, created by the wrong, of having the house that does cost that much to be built.
GLEESON CJ: One possible difference is that in the case of the first two examples, in front of the word “value”, without changing the meaning of anything you said, you could insert the word “market”.
MR WALKER: Yes, and the answer would vary if market moves.
GLEESON CJ: And that is the respect in which you enter into a completely different discourse when you are talking about the value of a child.
MR WALKER: Yes. There is no market for children.
HAYNE J: It seems to push your argument to the rather simpler: the mother has incurred a legal liability which otherwise she would not?
MR WALKER: Yes, now the responsibility is used and probably appropriately, bearing in mind the statutory language in question. “Liability” perhaps should not be used because of the particular technical connotations it has. One could use “duty” so long as you made it clear that you were not necessarily looking for an enforceable duty. None of that matters in this case because as my learned friend has observed – it is contained in his written submissions – there are in force both at State and at Commonwealth level statutes which place the responsibility for the maintenance of the child – they are in different terms somewhat – upon my clients – both of my clients.
CALLINAN J: Justice Thomas was impressed by that, too, of course?
MR WALKER: Yes.
CALLINAN J: That cannot be an answer because that obligation or duty remains in the case of a child injured by a tortfeasor but that obligation does not absolve the motorist who has run down the child for paying for the extra cost of bringing up that child because of the injury?
MR WALKER: Quite so.
GLEESON CJ: But the point at issue comes to this, does not it? You say the mother has incurred a legal responsibility which she would not otherwise have incurred. Mr Jackson says, “That is the truth but it is only part of the truth.” And you say, “But it is the only part of the truth that is relevant”?
MR WALKER: To the common law, in the investigation of what is necessary so far as money can, to put the plaintiff in the position she would have been in but for the wrong because the benefit, the joy – and I will come back to making that into money in a moment – that the joy cannot supply any part of the need created, just as the leisure of the injured workman cannot supply any of the lost revenue from not being able to work, just as everyone has read of, some people have heard, people who claim that they have never been happier and closer to God than in their last six months after they are diagnosed with a fatal disease.
Now, no one would dream, surely, in cases where the contracting of that disease was actionable, that one should for a moment cross‑examine these people or put to the trial judge that against the damages for the nursing necessary for the last six months of life, should just give some allowance for near safety ness or for the beatific state that undoubtedly some people attain when they know they are in their last months, and though that may sound a melodramatic example, it is no more remote from reality than what is said blithely about both pregnancy and childbirth on the one hand and having a child on the other. Now, your Honours, it may be that it is Lady Justice Hale who should be read in Rees and in Parkinson concerning the pregnancy childbirth aspects of that in particular, but one thing which arises as a curiosity in this case, it may cut against us and not just for us is this: it is conceded, and indeed it would appear that it is reasoned in the overseas decisions and below that whatever difficulties the present claim before your Honours may have there are no difficulties in the claim with respect to the gestation, that is the pregnancy, the delivery, and it would appear with varying outcomes, what is called the “layette” – I am unable to tell you when a “layette” stops, your Honour, whether it is the difference between booties and shoes, who knows, and even what are called “pushchairs” and the like, no difficulty with them.
Now, it is only Lord Millett, on our reading of the authority, that says, “If you grant this premise about joys, blessings and benefits, then why anything for pregnancy and childbirth?” – nothing.
But Lord Millett is not embraced in this Court by the appellants and has not been the subject of any jurisprudence that we are aware of, certainly none relied upon by the appellants, to support a nil recovery. Now, the law cannot be made by concession of an appellant – we accept that – but there is a powerful indicator that what is going on in this case is an attempt by a method not yet identified to draw a line in damages notwithstanding easy and obvious foreseeability in commonsense causation in a case where it is conceded the duty extends to the fact which gives rise to that expenditure. The fact is the responsibility for a child.
May I give to your Honours in that respect two propositions which make the difficulty even more clear. The first is that it is simply not true, any more true than that every child is a joy – it is simply not true that every pregnancy or childbirth is an injury. Again, ordinary knowledge of the world, or literature, will tell your Honours that for some women they have never been healthier than during their pregnancy and they have certainly never been happier. Some women, even if one could believe it, unassisted by modern medicine, will swear – although this is usually after the event – that the birth itself was one of the best things they have ever experience, nearly spiritual, ecstasy, et cetera. Mere men, with respect, find it difficult to say more than simply observe these utterances, but they are utterances which can no more be ignored in this discourse than can the utterances by the naysayers to the proposition that every child is a joy.
Now, nothing in the reasoning suggests why it is that the pregnancy is to be treated as an injury because it is appreciated, presumably by the mostly masculine Benches, that it can be inconvenient and hurt and carries huge dangers. Nothing is said as to why that in principle means that it is obviously compensable, notwithstanding that for many people it turns out very well and it is a very happy experience, but the financial consequences of the responsibility to the child is not compensable.
The second proposition is perhaps another dramatic example with which the appellants’ argument simply does not cope. Again, concentrating on this basal premise they have that one is not to be heard to deny that a child is a joy, benefit, blessing, et cetera, and going to the case, the fact, as the Chief Justice has pointed out, that some of these things about the future may have become known facts of the past by the time the trial arrives, what happens to the case first of the perfect child stillborn or dying as a result of the birth, a phenomenon which still occurs? The child is perfect. The obstetrician performs valiantly, no negligence. The child dies. The child was conceived after a sterilisation sought, we will say, for all the reasons that might motivate a sterilisation. Is it seriously to be suggested that there is a kind of immunity to be granted to the tortfeasor doctor who led to what can only be described as a tragic episode in that woman’s life – and let me add for extra measure psychiatric illness as a result of the whole experience – that there is either an offset against her damages necessary for the nursing she needs or the lost wages she suffered by reason of the joy of her child, or that there should be no damages at all because she has had the joy of a child?
Now, if the case cannot deal with that example, how does it deal, for example, with the case where the child has in fact died – born beautifully healthy, but has in fact died not long after birth? By an accident, perhaps. Does the offset for the joy of that child become diminished because by the time of the trial one knows that this was not joyful, it was only too brief? For example.
KIRBY J: Well, it is not diminished. It just does not have the same duration – by facts that have fallen in before the trial and can therefore be proved.
MR WALKER: Well, your Honour, that then raises the question, how would you measure this? I then turn to the next point: the conversion into money of this notion of the joy or benefit of a child.
GLEESON CJ: Just before you get into that exercise, Mr Walker, how long do you expect to require to complete your submissions?
MR WALKER: About an hour, I think, your Honour.
GLEESON CJ: Mr Jackson, how long do you think you will be in reply?
MR JACKSON: About 15 minutes, your Honour.
GLEESON CJ: All right. Well, counsel in the next case will have noticed those estimates of time. We will sit tomorrow from 10 o’clock until 1, and then from 2 until 4. We will expect counsel in the next case and counsel for the parties and counsel for the interveners to agree between themselves overnight on a division of time and let us know what that is tomorrow morning when we commence the case. Yes, Mr Walker.
MR WALKER: Your Honour Justice McHugh has raised, before the adjournment, the approach which can historically be traced, including 1941 in the House of Lords, in relation to a value being put on a shortened expectation of life. As, I think, has been observed this afternoon in argument, in Sharman v Evans (1977) 138 CLR 563, the approach taken ‑ and I simply give the example of Chief Justice Barwick – it happens to be at page 568. That called for the inclusion only of a nominal sum. Your Honours will of course also recall – and if I simply give you a reference to – the more extended discussion of the difficulties of legal adjudication in this area to be found in Sir Victor Windeyer’s reasons in Skelton v Collins (1966) 115 CLR 94, the discussion in particular commencing at page 130 and continuing for the next page or so.
What emerged from that was that not by way of any deduction ‑ this was a deduction ‑ but for the solatium in question, not compensatory but a solatium that there needed to be a conventional and modest or very modest sum only. It had to do with life. It did not have to do with the worry of contemplating its shortening. It had to do with the expectation of life.
In our submission, there are difficulties in the arguments put by the appellants simply as a matter of the more or less arbitrary or conventional across-the-board approach taken, on the one hand, in loss of expectation of life and, on the other hand, argued for in this case. It is about $105,000, I think, the claim which is before your Honours. It is said to be of an order which is either axiomatically or, as it happens in this case, swamped by the joy of the child, the benefit of having the child. That bears a most uneasy comparison with the figures for truncating your own life, your own life being truncated. So the benefit of the child on the appellant’s argument is measurably to the point of ultimately being immeasurably greater than that which is conventionally awarded a modest sum only for the expectation of your own life being shortened.
Now, if there is anything called the sanctity of life which is a common law principle, and we have submitted that there is not, then it is not one which would give rise to such peculiar results and, in our submission, if anything, the common law’s concern for individual rights would not likely so skew the proportion between the benefit of another life in one’s own life, that is, the benefit of the child, and your own life itself. Now, the difficulties of the monetisation of these matters and the difficulties or limits of what judges can or should do was discussed in an article which Sir Victor Windeyer refers to in a passage in Skelton v Collins. If I can hand up to your Honours ‑ I will not take your Honours to it at all, but it is the article by Professor Kahn-Freund commenting upon Benham v Gambling in the November 1941 No Volume 5 of the Modern Law Review, starting at page 81. In our submission, that is an article which presciently demonstrates the difficulties when once a court enters into the area monetising something which Sir Otto called at one point, I think, happiness.
HAYNE J: Does that confront the Court, then, with the choice of ignore it or adopt the solution for which Mr Jackson contends?
MR WALKER: Yes, yes and ‑ ‑ ‑
HAYNE J: Why ignore it? Can you state in point form why ignore it?
MR WALKER: I want to come at it from two directions. The first is to deal with the proposition that it leads to no recovery. Why is that not right?
KIRBY J: I did not get that last word. I am losing a few words of yours.
MR WALKER: I am sorry. May I first deal with the proposition that it, namely, the benefit of the child, leads to no recovery on the head of financial expenditure of the kind we claim. The first point is that the way that argument is put against us, and it is also found reflected in some of the speeches in the House of Lords, as noted in our written submissions, is that the benefit, joy, blessing of a child is incalculable, but rather than incalculable being used simply as a colourful way of saying “very great”, it is meant literally, namely, it cannot be calculated.
Now, the first answer, we say, is but the same is true of the detriment constituted by past pain and suffering. That is a conventional solatium approach. It is quite impossible to calculate in money what it is. But the common law regards with indifference those problems and awards in any event. That is the first thing. Now, that answer, of course, is an answer that might seem to be a good foundation for the argument, then make an allowance; name the figure, it will not swamp it, but make an allowance. I will come back to that.
Continuing, what should it not swamp? If it swamps, then the court will have said as follows. The tortfeasor has created a need which would not have existed but for the wrong. It is a need which can be filled only with money – payment for food, the building of a bedroom. The court finds that that need needs compensation and the court says, “If I give you money for that compensation and I don’t take away from that the money’s worth of having a child, you will be overcompensated and therefore you get nothing.” So that the court will have solemnly started by saying, “There is a need needing to be compensated”, calculated the amount necessary to compensate and then said, “There is something else convertible to money by the common law approach which, swamping that, renders your recovery nil.” Or, alternatively, the court says because it is incalculable against the loss that can be calculated, the cost of filling the need created by the wrong, cannot be performed, needs to be performed in justice to avoid overcompensation, and the law confesses the impossibility and gives up the task and denies all recovery. Now, it seems that the latter ‑ ‑ ‑
KIRBY J: There seems to be a flaw in that. I do not know where the flaw is, but it seems to be a flaw to say that because it is likely to be so very big, then it is very difficult to calculate and therefore we will not try.
MR WALKER: There is a flaw in it. The first reason why it is flawed is that it admits of a set-off, it talks about a set-off, which contravenes the principle about which Sir Owen Dixon wrote in Zoanetti, where two most unlike things are being compared or, as we prefer to put it to your Honours, as a matter of principle, it behaves as if the monetary equivalent of the benefit of a child is something which you can take down to the grocers in order to fulfil the need created by the wrong, namely, to pay for the groceries, and you cannot take those things down to the grocer and the court has not given you any money on account of it, nor does the defendant give you any money on account of it.
So that, in our submission, it simply contravenes the basic principle of the calculation of damages that allowance has to be made for correlative benefits to the extent that they flow from – that is, they constitute – an aspect of the interest which is infringed. That is why we make the concession, I repeat, concerning payments to help you defray the cost of feeding a child.
McHUGH J: Kahn‑Freund puts it well at page 85 of that article where he says:
The function of damages in this case is, roughly, to restore the plaintiff to the financial position in which he would have been if the damaging event had never occurred. The compensation is commensurate to the asset lost –
that is the asset lost, the critical ‑ ‑ ‑
MR WALKER: Yes. Now, may I next turn to the second of the tasks or challenges that Justice Hayne has set me? Why, your Honour asks, should it not be taken into account if it simply does not swamp?
HAYNE J: No, my question was, why ignore it?
MR WALKER: Why ignore it? Can I deal with it in two stages? I simply want to refer to an argument I have put earlier today so as not to repeat myself as to why it does not get taken into account by way of a deduction. First, logically I have dealt with why does it not swamp? Second, why does it not come off the top while not swamping, and there I wish to interpolate this, that if, contrary to all our submissions, the Court were to regard this as a matter which ought to come off the top, as it were, then, by analogy with the avowedly arbitrary approach with respect to consortium, loss of expectation of life, it should be a very modest arbitrary sum and presumably it should be the same for everyone, more or less.
Now, if that was so, as I say if the Court were against me on my other arguments, that is where, in principle, one would end up, but of course that leads to the position that by reason of the sanctity of life and this incalculable benefit something relatively tawdry is apparently going to be attached as a price tag, to use some of the language of the American cases, to this child.
There is a line in the Florida case which is quoted in one of the authorities to which my learned friend took you today which reminds you of the song, “How much is that little doggie in the window?”, thought to be a useful, rhetorical addition to the argument against our position, how would anyone respond to – this is the quotation embedded in Mason v Western Pennsylvania to which your Honours were taken. It is the quotation from the much cited Florida case of Brown from 1984. I am sorry, it is in Cockrum v Baumgartner 477 NE 388 - I do apologise to your Honours - and the quoted passage includes the question:
On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster.
Now, in our submission, that is a form of reasoning which demonstrates the complete jumbling of two entirely different areas of discourse. No one is buying a child. No one has sold a child. Children do not have monetary value.
GUMMOW J: They used to sell them in the United States as slaves, do not forget.
MR WALKER: Your Honours, as one read some of these cases one wondered whether it was because of, or despite of that history.
GUMMOW J: Dominated by region, though, that culture ‑ ‑ ‑
McHUGH J: And Posner has been demonised by his article which argued that instead of public adoptions they should have a market for buying and selling children.
MR WALKER: If it is ever to be understood as simply as that, your Honour, then demonising would be too good for him.
CALLINAN J: Dean Swift had a view about the saleability of children too.
MR WALKER: Jonathan Swift, I think, had a much more practical short‑term solution which would have solved the wants, I think, of both parties to the transaction. The child would have been spared the rigours of life and others would have been fattened.
GUMMOW J: That was the Irish problem you were solving.
MR WALKER: That was the Irish problem, yes. We then come to the question, “Why should it be ignored?” My first response is, as in my written submission, that you do not ignore it, you deal with it by its own set‑off exercise. Your Honour has seen that, in particular, in Justice Holmes’ reasons to which we draw attention in our written submissions. At that point your Honours will forgive me if I now engage in what we have criticised, namely, the uttering of dubious propositions about ‑ ‑ ‑
GUMMOW J: Where are we going, Mr Walker?
MR WALKER: Your Honour, this is the cancelling‑out argument which picks up the like with like and takes it now to the non‑financial aspect. That is, against the joys of children everyone protests there are also the sorrows, et cetera, that travail, as well as the pleasure. That is equally incalculable particularly at a time when most of these cases will be fought, namely, the child is still very young. They are like and like. If you are talking about any monetisation you would monetise each of those at the incalculable, that is, $?!. They cancel each other out. Thereafter, they need not be taken into account in counting money towards damages. That is the first answer.
The second answer is to borrow somewhat and indirectly from De Sales v Ingrilli and to point out that certain exercises which have in the past been thought to call for judicial estimation in moneys worth ought not to be carried out for reasons, ultimately, of the incapacity of the court, satisfactorily, that is in a way which meets appropriate standards of reasoning – cannot satisfactorily result in a figure. In our submission, for even more cogent reasons than those which appeal to the majority in De Sales v Ingrilli the ascertainment of a $ value, which is the whole exercise in question, for the benefit of the child should not be attempted.
In that sense it is ignored. Of course, it is not jurisprudentially ignored, it is attended to and treated as something which does not affect either the availability of this head of damages, that is, no swamping, or the deduction from the head of damage or any other way in which it might prevent recovery such as leading to the imposition from on high of an immunity for those engaged in sterilisation, presumably also abortion, that is termination, and presumably all forms of sterilisation.
Your Honours, the next matter to which we wish to turn was our learned friend’s reliance upon the New Zealand statutory decision XY v AC, the 1984 decision of Mr Justice Jeffries. In our submission, that is a decision which reveals some of the fallacies which, in our submission, ought to be avoided by this Court. At page 380 of volume 2 of (1984) NZFLR to which my learned friend took you, your Honours will see the way in which the ratio emerges in that case, halfway down page 380, as follows – remembering that his Honour was talking about a statutory question. Halfway down:
This Court does not find that our supreme legislative body intended to stigmatise possibly the highest expression of love between human beings, that of a mother for her child, as a continuing injury to her by making compensation payable during dependency.
Now that, in our submission, is one of those errors of definition of the loss or the harm or the injury which lies at the base of these questions. No one would claim, no one could sensibly say that being brought into a relation of love with one’s child is itself an injury. Indeed, we go further in the opposite direction. It is because whether instinctively or culturally one loves the child, that no one reads the Criminal Code which imposes obligation on you to maintain them, or at least many do not, and it is why most people do not need to be driven by positive enactments to pay for their children, but the law says by positive enactment you do have to pay for your children. The combination, in short, of the tie with your child plus the cultural, social and legal milieu is precisely what leads to the obligation, responsibility or expenditure which is our head of damage.
KIRBY J: But the guiding principle in this case is what the judge says at 380. He says he is looking for the purpose of the legislature:
The Court does not find that our supreme legislative body intended to stigmatise
and so on. So it is really a statutory question ‑ ‑ ‑
MR WALKER: That is why I drew to attention those words because this is statutory interpretation, but there is nothing in the statute which would have permitted either side to have put that proposition.
KIRBY J: That is not our problem, is it?
MR WALKER: No, it is not.
KIRBY J: And I have to tell you, Mr Walker, that I am a little shaken that since CES there have been all these American and other cases and, though, their explanations are varied and often core, overwhelmingly they are against your proposition.
MR WALKER: Yes, but this is not a poll, this is not a ballot.
KIRBY J: You say it is not a problem?
MR WALKER: No, it is not a poll or a ballot.
KIRBY J: I know it is not a poll but they have all faced very similar questions as to the one that is now before this Court, and what can you say in answer to the overwhelming force of common law authority? You can pick and choose amongst the words of particular statutes but overwhelmingly the reaction is a bit like that one in the London Underground.
MR WALKER: I am going to come to that in just one moment, your Honour, and it is partly because of the weakness of that approach that, in our submission, decisions based upon it or matters like it ought to be rejected by this Court as providing sound guidance, that there is weakness in the approach and, yes, the weakness has been much repeated. That does not make it any less weak.
To put it another way, one would look beyond the numbers of people uttering a proposition to the intellectual force of the proposition to assess its quality.
Your Honours, in this case Mr Justice Jeffries approached it on the basis that the pregnancy and birth were an injury, but that they ceased to be so upon delivery of the child. Healed or returned to normalcy is the approach taken. But healed injuries remain of course compensable, and the injury and birth was compensable in that case. It does not explain for a moment as to why the financial consequences flowing from the wrong, all of which are conceded to be foreseeable, would not have been treated in precisely the same way as the pregnancy and delivery, itself called in the statutory terms an injury.
GLEESON CJ: There is perhaps an internal inconsistency in that paragraph. If you look at the fifth sentence beginning with the words “To name”, it seems inconsistent with the sentence that you later read, unless you take the view that regeneration commences with birth.
MR WALKER: Yes. That is an important matter. That is of course Lord Millett’s point, one assumes. It is not spelt out very much in Lord Millett’s speech, but when his Lordship takes the logic to the point of denying recovery for anything, even including the pregnancy and the childbirth, there is, with great respect, an attractive consistency to the reasoning, but it is a consistency of reasoning that leads, in our submission, to a somewhat shocking result: that someone who did not want pregnancy and childbirth, with everything that brings in its train; traditionally, if one likes, biblically seen as the travail of women, who did not want it ‑ who went to somebody who said he would do what can be done carefully to stop it is, nonetheless, to be denied because, though she did not wish to participate in the regeneration of the species, it is a blessing to her that against her will she did.
As I say, unless there is veiled underneath all of this some disapproval of certain forms of sexual intercourse or unless there is some other form of illegality or morality argument, it is, in our submission, quite impossible in a time of approved legitimated government‑funded family planning, including sterilisation, to see the regeneration of the species as something that should prevent recovery for anything. But logically, if it is to prevent recovery at all, then the conception, the gestation and the delivery are surely the climax events in the regeneration of the species, not sending the child off to school at 14 or 15 or paying for the first motor car at 17. They are not necessary for the regeneration of the species.
GLEESON CJ: There may be an element of incongruity between treating the regeneration of the species as the highest value recognised by law with public support of sterilisation.
MR WALKER: Yes, and, in our submission, it is quite impossible to point to common law cases of currency which rank values protected by the law which would include an item called regeneration of the species in competition with the freedom of choice, the autonomy, which was spoken of in Rogers v Whitaker, upon receipt of proper medical advice and the like, as to how to behave with respect to one’s own body. At page 581, as ‑ ‑ ‑
KIRBY J: That also goes under the Ipp Report.
MR WALKER: I think all I can say is, yes. But that is not how the common law is shaped.
KIRBY J: In fact, when I looked at it, I saw about 10 of the authorities of this Court were swept away by that report.
MR WALKER: At least.
KIRBY J: But you say that is something that is completely irrelevant.
MR WALKER: Absolutely, particularly in a federation. There is one common law in this country, but there may be very different State and Territory legislative responses. Page 381 of XY: as your Honour Justice Kirby has pointed out, there there is, if only in literary terms, a resort to parable. We make no complaint about the use of parable. It can be most instructive, if only for its cultural reference. However, it is the reasoning of what his Honour there says with respect to the unintended or unexpected expenditure – to return to the expression of your Honour the Chief Justice ‑ with which we do take issue.
The notion there is that the charitable act of the Good Samaritan should not be regarded as a loss. It is one which, in our submission, bears no analogy whatever with a financial responsibility being an aspect of the parental responsibility sought to be avoided by someone going to a professional professing to be able carefully to carry out a procedure calculated most likely to avoid it. There is no analogy at any point, in our submission, not least because the notion of the thief owing a duty to the Samaritan is one which is completely unexplored, either in scripture or in this case. The reference to adoptive parents, in particular, demonstrates that whatever else his Honour was doing there, he was not analysing the position of the relation between tortfeasor, payer of money, and the object of the payment of money.
Your Honours, I made reference earlier this afternoon in passing to the position of the doctor in this case with respect to my client, the second respondent. I did not give you then a reference to that evidence. It is in volume 1 of the appeal book, 197 to 198. I will not take your Honours to it now. It is to complete the references to the evidence necessary. That is where the doctor’s express awareness of the likely effect of his mistake upon the husband is spelled out.
May I now move briefly in relation to the second respondent, husbands, or, in other cases such as vasectomies, wives, in relation to some matters that your Honours raised with my learned friend. It needs at once to be volunteered by us that it will be another case, perhaps with some differences even of outcome if and when there is a vasectomy case and a claim is made by a woman who was not in the offing, as it were, at the time the vasectomy was sought and obtained. That will raise a very serious and important question in relation to the duty.
So we are not here to put an argument that it follows, as it were, in Garden of Eden style that for every Eve there will be an Adam and that the claims will always come for pairs of people. That could not be right and the example of a vasectomy and a later sexual partnership, perhaps years down the track, is one which highlights the difficulties which may arise. But nothing in our argument upon which we seek the favourable decision of this Court would preclude looking afresh at that matter if and when it ever arises.
That also represents a qualification to what would otherwise be agreement, respectfully, with our learned friend that it may be the case of a vasectomy ought to be treated the same way as this case, in answer to your Honour the Chief Justice. We would simply caution this, that it is not at all the same thing when one considers the possibility of future partners. The same thing, of course, applies to the case of what I will call a subsequent husband or partner in a female sterilisation. In short, what this case presents, and all this case requires decision on, concerns the husband whose existence is known, the husband whose involvement in the decision was a fact and the husband whose vulnerability to the wrong advice about unprotected sexual intercourse was also appreciated by the doctor. The vulnerability of the husband as a known personage for this patient is why it does not matter, in answer to Justice Callinan.
CALLINAN J: It might be different if it were a negligent misstatement case, but it is a professional negligence case.
MR WALKER: Yes. That is why it does not matter in this case that the advice given, as an integral part of the overall services, was not, so far as the evidence shows, ever vocalised in the presence of my clients’ second respondent and we simply need to make it very clear that we do not claim the facts of this kind or the decisions of this kind, could ever or should ever call for determination of a category of case extending beyond the known husband, the known vulnerability.
KIRBY J: Could you give me, just on one point of fact, did not the appellant give some evidence that he had a screed or some document, or was that in another case that I read that that was done? Was there any common form ‑ ‑ ‑
MR WALKER: I think your Honour is thinking about another – one of the many reported cases.
KIRBY J: Yes, in Rosenberg the dentist had such a document, but I thought I had read somewhere that there was such a document in this case, but ‑ ‑ ‑
CALLINAN J: It would be very surprising if the doctor did not, if the procedure occurred before or after Rogers v Whittaker. It did, did it not? It was after 1992, I think.
MR WALKER: Yes.
KIRBY J: Well, in any case, we have the finding that there was not advice and so it is rather pointless, but I was going to ask how that was reconciled, but you say there was not such a document in this case.
MR WALKER: There was no brochure.
CALLINAN J: And Mr Jackson did not seek to draw any distinction between the respondents, as I understand it.
MR WALKER: No and, with respect, properly so given the admittedly exiguous, but nonetheless clear facts by which the husband was mentioned by the wife to the doctor and the husband was conceded by the doctor, at the passage to which I have given the page references, to have been vulnerable – my word – to incorrect report or advice, including a vulnerability which is financial, explicitly so. Now that is why, of course, in paragraph 21 of our written submissions, by a process similar to that which was carried out by their Honours below with respect to Perre v Apand, we also offer to your Honours a comparison with the more recent observations by your Honours in Tame, in particular, and, though by a different route, of course, and in different respects, the conclusion is the same, namely, there is nothing in this Court’s reasoning in Tame, of which my clients’ claim falls foul, assuming that there is any usefulness in looking at that case, which happens to be, of course, a recent case about, what some people call, control mechanisms in the recoverability of damages in negligence. Is that a convenient time, your Honour.
GLEESON CJ: Go on. We will set until 4.30 pm.
MR WALKER: Thank you, your Honour. In relation as well to the husband and wife, that is, the respondents jointly, your Honours will have seen that the statutory provisions in question indifferently impose the responsibility on both parents.
CALLINAN J: Mr Walker, you say in paragraph 21 this is a “case of negligent sterilisation”, whereas it is not really, is it? It is a case of negligent professional advice, as found.
MR WALKER: Your Honour, it is excessive shorthand for us to say “negligent sterilisation”, but I defend it thus.
CALLINAN J: In a sense, I surprised that there was not a finding of that, Mr Walker, but in fact there was not.
MR WALKER: No, there was not. I defend it in this way: sterilisation is more than the service of occluding fallopian tubes; it also includes proper counselling beforehand and, if necessary, report afterwards, in light of the observation or, in this case, non-observation, at the operation, of what needs to be done in order to make this a sterilisation rather than simply perhaps an obstacle to conception, which is incomplete. In other words, it was not consistent with the duty of care – again see Rogers v Whittaker – simply for the surgeon to be adept at occluding fallopian tubes with Filshie clips; the surgeon had to accompany that, first with ensuring that consent to that procedure was obtained on the basis of adequate information, obviously about success rates and the like, and, second, if something was noticed untoward during the operation, and in this case the inability, non-negligent, to find the other fallopian tube, which may or may not have been removed, according to a long ago childhood recollection, that should have been the subject, as her Honour found and as the Court of Appeal upheld, of better report, if you like, advice, that it was.
All of that is part of sterilisation. That is why we jib slightly the description of this case as a negligent misstatement case. It is true, there was a misstatement and that it is the particular of negligence upon which we succeeded at trial, but it is in truth a falling short of the professional standard of care imposed as a result of and obtaining throughout the whole course of, in all its stages, the sterilisation sought and agreed to be provided by the surgeon.
Your Honours, during the course of argument, I think adding to what was said in the written submissions on behalf of the appellants, my learned friend responded to a question from your Honour Justice Gummow to the effect that contract would be dealt with the same way, that is, there would be a non‑recognition by the common law in contract to the point of a prohibition on recovery of this head of damage. The awkwardness of my phrasing is because it is difficult to see what juristic head of non‑enforceability is being invoked by such an answer. This was a lawful contract to achieve a lawful object, with not the slightest taint of anything in the nature of public policy, as it is understood in the law of contract, which would either allow losses to lie where they fall or more realistically to forbid it as the origin of a cause of action. There is no remoteness problem. Hadley v Baxendale is fulfilled very obviously.
There must be some other doctrine that my learned friend is drawing upon, perhaps as yet innominate, of a kind that raises the same problems that has been exercising me since your Honour Justice McHugh raised the question of immunity in tort along the lines of public interest.
GUMMOW J: I think he has to attach a public policy arrived at the first limb of Hadley v Baxendale.
MR WALKER: Yes. Now, your Honours will have noticed that in ‑ ‑ ‑
GUMMOW J: In fact, if he does not do that he has public policy operating differently in contract and tort, which seems quite capricious.
MR WALKER: Yes.
GUMMOW J: It would be a pretty bodgie public policy if it operated that way.
MR WALKER: Yes. Coherence between tort and contract is a very unsafe banner for me to march under. I do not ‑ ‑ ‑
GUMMOW J: Not in this case, because this is a Hedley Byrne case.
MR WALKER: I do not. But what I was about to say was there are notoriously points at which, whether by way of direct comparison or an obvious contrast, tort and contract do, in our submission, contribute to each other’s development.
GUMMOW J: Well, Hill v Van Erp is an example.
MR WALKER: And when professional services have been provided pursuant to request, particularly when they are professional services of a kind that require sufficiently informed consent, and when the contractual term would be virtually indistinguishable from the tortious duty of care then, in our submission, the law would think very hard before it distinguished between other aspects of a grievance arising on the one hand out of tort and on the other hand out of contract.
In paragraph 13 of our written submissions, with respect to the tort claim before this Court, we try to demonstrate that there were only in theory two ways to success for the appellants. One, an articulation of the relevant general principle of common law in a way which excluded this claim. That has not been attempted. Two, demonstration that the law contains a special exception from the general rule, that is but for which the general rule would give recovery, covering this case. The same would be true for the reasons that your Honour Justice Gummow has raised in argument. The same would be true, we submit, in the case of the contract example to which my friend gave the response. There would have to be a rule of law hitherto unperceived, we are bold enough to submit, whereby the rule in Hadley v Baxendale is the point at which matters of public policy intrude rather than at the point of the making of the contract as something out of which a cause of action may arise.
In our submission, it is very difficult indeed to posit any contract case which has given rise to that kind of problem. It is quite distinct from the banal problem of illegality raised by somebody who wants damages for no longer being able to be a highwayman, or damages for no longer being able to be a bank robber. They are utterly distinct, unremarkable propositions which have nothing to do with the present case. As at every turn, our friends have disavowed any suggestion that seeking the sterilisation was bad or, in a contract, that making a contract for that outcome was making a contract for something which was unnatural and should be disapproved by the court, regardless of the fact that remarkably the court would have upheld the contract had the surgeon sued for his fee.
So, in our submission, the contract case, which the Court nonetheless should be careful not to preclude as to findings of general principle, at least as a matter of argument and comparative reasoning, is one which strongly conduces in favour of our case. In particular, it highlights the legitimacy of the aim of the request my clients made for sterilisation. May I then move to the question of the judicial technique used, in particular, in the House of Lords, because if the House of Lords ‑ ‑ ‑
GUMMOW J: Well, I have worked out Lord Millett, I think. He is the only Chancery Judge there and what he is saying, I think, at 114 is you cannot approbate and reprobate.
MR WALKER: Yes, I think that is right. Now, may I say about that and allied argument of a kind in particular that your Honours heard from my friend, the learned Solicitor-General for South Australia, this is not a case where the appellants argue that there should have been adoption or termination. This is not a case of choice in any real sense and, in our submission, I can simply adopt the reasons, including your Honour Justice Kirby’s reasons in CES, with respect to that without spending further time on it. More to the point, the appellants do not say that should have happened and when one of the appellants is the State of Queensland, in our submission, it is of high significance that it is not sought to be argued on behalf of the State that here there was either a causation problem or some other difficulty raised by the failure of my clients to give away their third child one way or the other.
Your Honours, in answer to your Honour Justice Gummow, the remarkable thing about Lord Millett’s conclusion is, as it were, the consolation he provides at the foot of his Lordship’s speech on pages 114 to 115, having been the only judge that we found that follows logically through that there be no damages for anything with respect to the pregnancy and the delivery, his Lordship nonetheless says ‑ ‑ ‑
HAYNE J: His Lordship assigns a conventional sum to it, does he not? I see that is ‑ ‑ ‑
MR WALKER: There are two heads of damage. The first is loss of your choice as to reproductivity and that is a conventional sum. I have no more to say about that. We have not sought it.
KIRBY J: That is just made up by the judges, is it?
MR WALKER: Yes.
KIRBY J: Maybe you can do that in the House of Lords.
MR WALKER: I use the more polite language of arbitrary and conventional. It is clear from the books that the common law does that on occasion. I cannot say it cannot be done, but that does not mean it is the most satisfying way in which to solve a problem which some say is novel. Of course, we say nothing in this case is novel.
Now, the second head of damages that Lord Millett would apply is a head of damages which sits rather peculiarly and is, of course, completely financial in nature. You thought you had completed your family. You did not keep the pram – these are my words, of course – in the garage. You would need to buy a new pram. You can get that. If you gave it away
because you thought, misled by the negligence, that you could get rid of it now, you did not have to keep it.
In our submission, there is no logic in allowing recovery on that and not allowing recovery for the fact that you are going to have all sorts of special equipment for mother and child physically related in the most gruesome and intimate fashion to the physical realities of gestation and birth which is certainly not going to be kept in the garage from the first two times.
CALLINAN J: You might cash up an endowment policy and spend it on a holiday that otherwise you would have kept aside to educate the child.
MR WALKER: Your Honour, jokes aside, that is a good example of the kind of subsequent adjustment to a sterilisation, as you thought it was effective, for whatever motivation you originally sought it which makes the seeking of financial consequences, as we do, entirely appropriate. But, in our submission, there is a major defect of logic certainly at the end of Lord Millett’s speech.
GLEESON CJ: We will adjourn, now, Mr Walker, until 10.00 am tomorrow.
AT 4.33 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 13 FEBRUARY 2003
Key Legal Topics
Areas of Law
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Negligence & Tort
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Family Law
Legal Concepts
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Damages
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Causation
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Duty of Care
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Negligence
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Remedies
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