Cattanach & Anor v Melchior & Anor
[2003] HCATrans 557
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 TUESDAY, 11 FEBRUARY 2003, AT 12.00 NOON
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR C. NEWTON, for the appellants. (instructed by Deacons)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.E. ELIADIS, for the respondents. (instructed by Shine Roche McGowan)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS J.C. PRITCHARD, for the Attorney‑General for Western Australia, seeking leave to intervene in support of the appellant. (instructed by Crown Solicitor for the State of Western Australia)
MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, seeking leave to intervene on behalf of the Attorney‑General for South Australia. (instructed by Crown Solicitor for the State of South Australia)
GLEESON CJ: Mr Walker, your attitude towards the applications for intervention?
MR WALKER: Is as contained in our written submissions of 5 February. We oppose it and then make alternative submissions.
GLEESON CJ: Mr Solicitor for Western Australia, what do you say about the submission that if we were minded to grant leave to intervene, we should, at least provisionally, grant it on the basis that you are limited to your written submissions, unless something turns up in argument?
MR MEADOWS: There is one aspect of our written submissions which is not touched on by either of the parties and on which we would wish to address oral submissions.
GLEESON CJ: What is that aspect?
MR MEADOWS: It is to do with the relevance of the cause of action per quod servitium amisit in this context and it is this case being seen as a possible extension of that doctrine.
GLEESON CJ: So, subject to that, you are content to rest on your written submissions?
MR MEADOWS: We are, and we would not expect to take more than say 10 to 15 minutes.
GLEESON CJ: Thank you. Mr Solicitor for South Australia?
MR KOURAKIS: If your Honour pleases, only on the question of possible approaches to take into account benefit if the claim was to be allowed. We have put some written submissions in on that, but I would seek leave to elaborate briefly on those, again, perhaps 10 to 15 minutes.
GLEESON CJ: Mr Walker, what do you say?
MR WALKER: Your Honour, we maintain that in principle what is being sought is an opportunity to put submissions because a political personage, a polity, claims that it will be affected by a decision as to the common law.
KIRBY J: It is a political personage who is coming before us to put matters which it says is of general significance and it would not be a surprise to you that the sorts of matters that they put forward, all sorts of things that would go through your mind. So, why is it not better to have it out on the table?
MR WALKER: Because, in our submission, there is no principal distinction between their position and the position of a private corporation or a private individual.
KIRBY J: There is a huge distinction, they are a State of the Commonwealth of Australia.
MR WALKER: Your Honours, in my submission, as to affectation, a State is not in principle any different from the Australian Medical Association, a hospital, a corporation that owns hospitals, somebody who insures medical practitioners and medical practitioners themselves in relation to the profound effect which a decision as to the common law by this Court will have. The profound effect that decisions of this Court has on the common law is an aspect of the Court’s functioning. The Court functions, in our submission, best and adequately by a contest between parties. There is not, in our submission, any of the imperatives as they may be which operate so as to permit or make desirable intervention when constitutional or public law matters are before the Court.
KIRBY J: But the Medical Association and so on, they are sectional interests. The State is representing an aspect of the public interest in this country that has gone to the trouble to come along here and put some submissions which are supplementary and which certainly would be going in the mind of every one of the judges who has to decide the matter.
MR WALKER: Your Honour, I do not argue about the usefulness that the Court may derive from interventions from whomever. It will be the quality of the intervention rather than the badge of the intervener which, in our submission, marks it as useful or not. In our submission, simply as a matter of principle, there should not be such interventions. I do not wish to add, however, to that argument beyond what has been put in writing, otherwise I do not have anything to say by way of opposition to what my learned friends, the Solicitors, have said in relation to the scope of any spoken address. May it please the Court.
GLEESON CJ: Yes. On the basis as to the scope of the intervention that had been foreshadowed, leave is granted. Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, as is apparent from the written submissions, the central issue in the case is whether damages are recoverable in respect of the expenditure involved in raising a child – a normal healthy child, as described in the material – born in consequence of a sterilisation operation which failed. Your Honours have observed my learned friend say a moment ago profound changes in the common law. Our submission is that the judgment in the Court of Appeal, the subject of the appeal, itself brought about a change of a quite profound nature in the law.
Your Honours, the issue is one which arises in circumstances where the birth of the child is attributable to negligence of the doctor performing the operation and, vicariously, of the hospital, owned by the State in this case.
KIRBY J: Is that quite correct? It is not the burden of the child; it is the economic consequences of the negligence of your client, is it not?
MR JACKSON: Your Honour, that is one way of putting it. I am going to come to that in a few moments, if I may, but the real question is, if the birth of the child, or the existence of the child, is not itself something that can be categorised as a legal wrong, then the costs of bringing up the child are something that are tied up with that and do not fall, themselves, within a different category.
GLEESON CJ: Do you mean categorised as a legal wrong or categorised as an injury?
MR JACKSON: Injury, your Honour. Injuria, in a sense – injuria, yes.
GUMMOW J: This case was brought in contract as well, was is not? I am looking at page 247.
MR JACKSON: Your Honour, originally, I think, but the case in fact was dealt with only in tort. I will give your Honours the reference in just a moment, but in fact the case was dealt with only in tort.
GUMMOW J: Yes. I understand that.
CALLINAN J: Why was that, Mr Jackson?
MR JACKSON: Your Honour, I do not know, in the end, but that is ‑ ‑ ‑
GUMMOW J: It appears at 247, I think, of volume 2.
MR JACKSON: Yes. No contract with the public hospital, I am told, your Honour.
GUMMOW J: Yes. Paragraph [12] of the trial judge’s judgment. I was not too sure about it either.
MR JACKSON: Yes. Your Honour, that was the position at trial and the case is thereafter dealt with as a case purely in tort – no suggestion either way.
GUMMOW J: Yes, but it is one of those cases in tort that are close to a case in contract.
MR JACKSON: Oh, quite, your Honour, yes, but the position, your Honour, was that in the event the case was dealt with on that basis and it is not suggested that the case is one in contract. Your Honours, could I just say – I used the expression before, “whether the birth of the child was attributable to negligence of the doctor performing the operation”. Could I just say something about that in relation to this case and, your Honours, may I refer in that regard to our written submissions, paragraphs 8 to 10, commencing at page 2 of our written submissions. The point I would seek to make about it, your Honours, is this. This is not a case where the first appellant was negligent in the conduct of the operation. Indeed, the finding was to the contrary, and I will give your Honours the reference in just a moment.
What the negligence was was in failing to advise the respondent that he had not been able during the operation, absolutely, to confirm the absence of a right fallopian tube of which he had been told. He could not do it because it was hidden, your Honours, as your Honours will see, by bowel adhesions. I said, your Honours, that there was a finding of no negligence in relation to the actual conduct of the operation. Your Honours will see that adverted to by Justice Thomas in volume 2, page 306, paragraphs 130 through to 132. Your Honours will see, in particular, at the start of paragraph 130 that he observes upon the fact that:
The finding of negligence is based entirely upon a failure of the gynaecologist to tender further advice to Mrs Melchior after the sterilisation procedure had been performed.
And he goes down through that paragraph and the next two paragraphs and says at paragraph 133 that with some reservations he was not prepared to disturb the finding of negligence.
KIRBY J: Could you explain how ‑ the purpose of the respondent going to the doctor was to secure a sterilisation procedure.
MR JACKSON: Yes.
KIRBY J: She had had the earlier operation as a young girl.
MR JACKSON: Yes.
KIRBY J: That created the adhesion, made it difficult to see the other fallopian tube, and she told him certain things.
MR JACKSON: Yes.
KIRBY J: But would it not have been his obligation ‑ the whole point of the procedure being to secure sterilisation ‑ to have a look? Or, if you could not, to say, “Well, I couldn’t see”. It is the first that I am curious about.
MR JACKSON: Your Honour, the position was this. She went to see him and she told him of the earlier operation she had had when she was quite young. The operation that he carried out was one where all the signs were ‑ and he was acquitted, if I could use that expression, of negligence in this regard. It was a matter on which there was considerable evidence and many allegations, but evidence from people qualified in the area, and it was found that there was nothing that he did in relation to the operation that was negligent, and it was not negligent for him not to see what there was. It was covered over, and in the type of operation it could not be seen. So the negligence ‑ ‑ ‑
KIRBY J: There is no notice of contention or cross‑appeal so we just have to start form that basis.
MR JACKSON: Yes.
KIRBY J: You were denied special leave to appeal ‑ ‑ ‑
MR JACKSON: On this point, yes.
KIRBY J: ‑ ‑ ‑on the issue of liability.
MR JACKSON: Yes. So that was the nature of the negligence. It was in failing to advise her that he had not been able during the operation to confirm the absence of a right fallopian tube. Your Honours, the damages are in consequence of that failure to advise.
Your Honours, could I come then to the next aspect of it in a sense, and that is foreseeability and causation, and may I just say something about those. It was, no doubt, reasonably foreseeable that if the warning was not given to the first respondent that she might become pregnant with the consequence that a child might be born and someone would be likely to incur expenses in the bringing up of the child or, perhaps, the children.
Your Honours, I should also mention in passing that there are, of course, findings as to the causation of the pregnancy in this case which your Honours will see in volume 2 again in Justice Thomas’ reasons at the bottom of page 306 going over to page 307, paragraphs [134] through to [137] and effectively that is summarised at page 307 about line 30 where his Honour said that:
However, on the whole of the evidence it was clearly open to her Honour to take the view that Mrs Melchior would have done whatever was necessary to increase her chances of avoiding pregnancy, and that if the necessary advice had been given she would have submitted to further procedures and thereby have avoided the pregnancy.
McHUGH J: Having made those concessions, do you also concede that the mother had an actionable, physical wrong which warranted more than nominal damages?
MR JACKSON: Your Honour, I accept that she had. The word “concede” is a word of some enthusiasm, with respect, your Honour. I accept that the position was that she had, and we have not appealed from, the damages to which I am about to come.
McHUGH J: How can you make a case? Once that is conceded, you do not have a case.
MR JACKSON: We have, your Honour, and may I say in that regard ‑ ‑ ‑
McHUGH J: Unless one is going to take what I regard as the questionable approach of the House of Lords in dividing up each head of damage and saying, “You’ve got to be owed a duty in respect of each head of damage”?
MR JACKSON: Your Honour, I do not know, with respect, that is quite what the House of Lords did, but I do intend to come to that if I may. Your Honour, I wanted now, if I may, to go to the nature of the damages that were actually awarded with a view, really, to dealing, as it were, with an aspect of the point your Honour has just been putting to me and that aspect is that if one looks at the damages, what one sees from them is that all damages which were attributable to any physical injury or any physical interference with her condition were satisfied and one then has a situation that you have a child who themselves has suffered no injury.
Everything that the mother is entitled to in respect of her own injury has gone and it becomes then a question of whether it is appropriate - in our submission, it is inappropriate – to treat the case as a kind of “Willemstad” case where you tie on – you say you can tie on the economic loss to a physical injury, a physical injury, all the consequences of which to the person who has been injured have been satisfied.
GLEESON CJ: In whose favour were these damages awarded?
MR JACKSON: Your Honour, the damages awarded – they fell into three categories: they were awarded to the mother, they were awarded to the father and the damages now in question were awarded to them both. You will see that, your Honour, at page 267 at paragraph ‑ ‑ ‑
KIRBY J: But not to the child? The child brought no proceedings and was awarded no benefit.
MR JACKSON: No. You will see them, your Honours, at page 267 paragraph [81], where her Honour sets out a summary of the damages awarded and you will see a heading, “The first plaintiff’s damages”, that is the mother. I will come to the detail of them in a moment, your Honours. On the next page, a heading about line 14, “Second plaintiff’s damages”, that is the father. Then “First and second plaintiff’s damages”, about line 19 on the same page, and it is those damages, the last ones, that are in question in the case.
GLEESON CJ: These are joint victims of a tort?
MR JACKSON: Your Honour, may I come to that in just a moment. Presumably the judgment is intended to be one that is joint, in favour of both of them. The father, of course, had no injury himself. He got something for loss of consortium, but the father has no injury. Apart from the relationship between himself and the child, the situation would seem to be no different from that of a grandparent, for example, who brought up a child, whose parents had disappeared or died or were in prison or something of that kind. Your Honour, may I come to that in just a moment. They appear to be ones awarded jointly, your Honour.
GUMMOW J: What was the action pleaded by the husband?
KIRBY J: Loss of consortium.
GUMMOW J: It is a bit mysterious, is it not?
MR JACKSON: Your Honour, it is and the ‑ ‑ ‑
McHUGH J: Well, it does create a difficulty for the respondent if it is going to be regarded as a joint claim, because it could only succeed on some form of Hedley Byrne and there is a question as to what duty of care would be owed to the father in the circumstances.
MR JACKSON: Yes, your Honour. Your Honour, could I just say something in response to what your Honour just said. That is really what this case is and it is what this case is, in a sense, because once one leaves aside the finding, once one leaves aside any suggestion of negligence in the carrying out of the operation, the situation is that it is a case of not saying something in circumstances where, presumably, there is an obligation to say something. So it is all ‑ ‑ ‑
McHUGH J: But under the present law the mother has an obligation to support the child and it may be that the award of damages to the father is misconceived, as a matter of legal principle.
MR JACKSON: Well, both appear to have a statutory obligation to support the child but could I say, your Honour ‑ ‑ ‑
McHUGH J: That is right, but if the mother has an obligation to support, does it make any difference that the damages were awarded to the first and second plaintiffs, except as a matter of form?
MR JACKSON: What I was going to say about it was this. If one leaves aside the matter of form – we take no objection, of course, to the form of the order in that regard, but what we do say ‑ ‑ ‑
McHUGH J: But the form may be important, Mr Jackson, because of the necessity to determine what is the duty of care that is breached and this is a duty to protect against economic loss or, as it was in the case of the mother, a duty to protect against physical harm to her.
GLEESON CJ: It would make a difference if the father and mother got divorced, would it not?
MR JACKSON: I am sorry, your Honour, I had not really finished what I was going to say to you. Of course, it would, your Honour. What I was going to say was this: that we do not, in the proceedings, raise as a separate ground of appeal the fact that there should not have been an award in favour of the father but there should have been one in favour of the mother.
Leaving that aside, however, one does have a situation where, in our submission, the question of the nature of the obligation owed to both is a matter of importance. That is why – and perhaps, again, if I can come to this in a moment – one does have a situation where, in many respects, the obligation of the parent is one which is the same as the obligation of a grandparent who has taken over the care of, say, a child of badly drug‑affected parents – to take one example. Do they have a cause of action against the negligent hospital, for example? The other feature about it is that this is not a case where the nature of the claim is a claim based upon an obligation to provide support calculated in the way in which there is a statutory obligation to do so.
KIRBY J: The cause of action which seems to be pleaded in the amended statement of claim at 16 is just negligence, and then at 18, paragraph 15(h):
The first and second plaintiffs have both sustained the loss of enjoyment and amenity of their married life ‑ ‑ ‑
MR JACKSON: But, your Honour, one then gets subparagraph (i), that they “will jointly incur expenses” in rearing the child.
KIRBY J: But that is a consequence of (h), as I read it. I may be wrong. I though I read that the cause of action was for some form of loss of consortium – of the husband, that is.
MR JACKSON: Well, your Honour, if one looks at page 16 ‑ ‑ ‑
GUMMOW J: It has to start at 15, perhaps, actually. Paragraph 8.
MR JACKSON: Yes. The duty there expressed is a duty to exercise reasonable care in giving advice and counsel “in respect of the procedure”, and then paragraph (b) ‑ ‑ ‑
GUMMOW J: It is a duty to both of the plaintiffs.
MR JACKSON: Yes.
GUMMOW J: To do all these things in respect of the first plaintiff.
McHUGH J: But that was not the finding of the trial judge, was it? The finding of the trial judge was that the first appellant was negligent in failing to adequately inform the first respondent of the possibility that the sterilisation procedure might fail to be effective, because of the possibility of the continuing existence of the right fallopian tube.
MR JACKSON: Yes, your Honour. That is the way in which the finding was made. If one remains with the pleading for a moment, your Honours will see page 15, paragraph 8(b). Then one sees ‑ ‑ ‑
McHUGH J: Well, that is virtually the finding of the trial judge, is it not, 8(b)?
MR JACKSON: Yes, your Honour, except that the duty is expressed as a duty to both of them, in the opening words of paragraph 8. One then sees what appears in paragraph 10, and these appear to be the allegations relating to her own condition, that is, the operation and the psychological distress and so on. Then there is a reference in paragraph 11 to the “risk”. Paragraph 12, a failure to:
adequately disclose to the first plaintiff the existence of such risk or possibility of such pregnancy –
and that is expressed to be there to the first plaintiff. That is tied up with paragraph 14.
Then your Honours will see the allegation in paragraph 15 that both plaintiffs had “suffered loss and damage”. Paragraph (a) relates to the birth. Paragraph (b) says that the female plaintiff “underwent the pain and suffering associated with pregnancy”, et cetera. Your Honours will then see that she “suffered from depression”. In paragraph (d) the problem of the leg I will come to in a moment.
GLEESON CJ: Did the evidence indicate that they had other children?
MR JACKSON: Yes.
GLEESON CJ: Which of the plaintiffs paid for the support of the other children?
MR JACKSON: Your Honour, they had two other children. I will have to check for the answer to the second question your Honour asked, if I might.
GLEESON CJ: It is just that the allegation that the father suffered this economic loss seems to have been brought in by way of amendment and I wondered whether the occasion of the amendment was somebody coming to a realisation that, based on past practice, these expenses were likely to have been incurred by the husband rather than by the wife.
MR JACKSON: Your Honour, may I endeavour to give your Honour a better answer to that. Perhaps I would ‑ ‑ ‑
CALLINAN J: The other children were four and seven at the time of the operation, I think.
MR JACKSON: Yes.
KIRBY J: You have not appealed against the award of damages to the husband separately, the small amount that was awarded to him?
MR JACKSON: No. I had taken your Honours before to page 267. I was going to take your Honours to the damages that were awarded. Your Honours will see, if I could go to paragraph [81] under the heading “The first plaintiff’s damages”, she was awarded $30,000 for “Pain, suffering and loss of amenities” of life. Your Honours will see that aspect dealt with at page 262, paragraph [63] and, as her Honour said at the bottom of page 262, it involved the:
inevitably a degree of pain, discomfort, and inconvenience associated with any pregnancy and birth.
But, in addition, she:
suffered from thrombophlebitis in her right leg during the pregnancy.
That appears at page 264, paragraph [69]. Your Honours will see the last four lines of that paragraph really sum up the situation in relation to that.
In addition, your Honours, she had a vein problem in the left leg, and that appears also in the same paragraph, in the third line I think it is. Again, your Honours, some depression, paragraph [71] on page 264, and your Honours will see the summary which appears in paragraph [72] under this heading at page 265 and that is that she was awarded a total of $30,000 in respect of that head. That is the first head, your Honours.
HAYNE J: That, Mr Jackson, is the translation of the non‑economic into an economic measure, is it not?
MR JACKSON: Yes, it is. Now, your Honours, secondly – and if I could take your Honours to paragraph [81] in those reasons at page 267, taking you back to that page, you will see that amounts were awarded for both past and future economic loss and they are discussed at page 266, paragraphs [76] and [77]. Now, your Honours, what one sees in relation to them is that she had not been able to engage in a degree of work because of the pregnancy, and your Honours will see in paragraph [77] that in the future she was awarded $10,000 and that was based, in effect, on the fact that her left leg, in consequence of the pregnancy, might make it difficult for her to undertake employment involving standing.
Now, your Honours, if I could just pause to say, the award in respect of economic loss was economic loss caused to her by the pregnancy, that is, in consequence of her own disability. Thirdly, your Honours – and again going back to page 267, paragraph [81], past and future Griffiths v Kirkemeyer damages were awarded in a total, which if I could leave aside the interest component of it, was about $41,700. It is the total of the two figures, the $13,300 at the bottom of page 267 and the $28,400‑odd on the second line on page 268.
Now, that award reflected assistance with household duties, first of all, of three to four hours daily for four months following the birth, and an hour a day thereafter and for a further 10 years after trial. Now, your Honours, you will see that that claim – if I could take your Honours to paragraph [75] at page 265 ‑ was posited on the basis of two things. One was a need for additional assistance by reason of the left leg venous insufficiency – and I am referring particularly, your Honours, to the summary at the top of page 266, the second line – and secondly, the need for extra assistance posited by the presence of the child – brought about by the presence of the child.
Finally, your Honours – again, as appears from paragraph [81] –
there were special damages of $15,000-odd and they were in respect of the mother herself. You will see that at page 265, paragraphs [73] and [74]. Now, your Honours, what appears – I am sorry, to have taken a few moments to go that – from that, in our submission, is that all aspects of the condition of Mrs Melchior herself, and the consequences of her own condition, all consequences attributable to the pregnancy, were compensated for.
McHUGH J: Is that the proper analysis? She has to make out a cause of action. She alleges a Hedley Byrne-type duty, breach and damage, and she has proven physical damage. Why, apart from the rules concerning reasonable foreseeability of the damage and causation is she not entitled to recover the same, the whole of the damage? Take an ordinary motor car case. The drive is injured. He or she sues not only for personal injury but for damages for the loss or destruction of the motor vehicle. It is just assessed as one lot of damages. One does not worry about special rules about separate duties being owed. I have to tell you I just see this as a very simple case conceptually, a straightforward case.
MR JACKSON: Your Honour is no doubt right to say that the case is one which is on either view of it simple conceptually, but ‑ ‑ ‑
GLEESON CJ: The mother’s case or the father’s case?
MR JACKSON: Your Honour, the mother’s case. I was taking what your Honour Justice McHugh was putting to me.
McHUGH J: She suffers physical harm and she suffers economic harm. Why is it not all recoverable, subject to questions of reasonable foreseeability ‑ ‑ ‑
KIRBY J: Do you say that the pregnancy is not physical harm?
MR JACKSON: Your Honour, there is undoubtedly pain, suffering and inconvenience, to use the jargon expression, brought about in the pregnancy and birth. We do not suggest that is anything other than that. Some people still die in pregnancy ‑ in childbirth. It is a considerable event. But, your Honour, in relation to that what we say is that if one looks at every item of damages due to her own condition, every one of those items is one in respect of which she has been awarded damages.
McHUGH J: This is clever advocacy, but I really do not think it addresses the real issue.
MR JACKSON: Your Honour, I am trying to get there, your Honour.
McHUGH J: We are talking about being awarded for her condition seems to me not to answer the real question, as to whether she is compensated for the damage that she has suffered, physical and economic.
MR JACKSON: Your Honour, I appreciate that. What I am endeavouring to say, and I will endeavour to do so perhaps in a halting and incompetent way, is with respect that what one has is a situation where if one looks at an ordinary personal injuries case then what you recover for is your pain, suffering, loss of amenities of life. One recovers also for one’s economic loss brought about by one’s own condition. Now, all those things have been compensated for. What one has is economic loss brought about by the fact that there is another human being who is about ‑ and, your Honour, I use the expression “a normal healthy child” because no part of the damages are attributable to the fact that the child is in any way suffering from a disability or something that makes the child different from the ordinary child.
Now, your Honour, what I am going to say, and what we have set out in our submissions, is that essentially it is a question of whether damages of that kind are damages which are recoverable. Your Honour, we accept of course ‑ ‑ ‑
McHUGH J: But why? Because no duty is owed in respect of those damages because, it is not reasonably foreseeable, because of public policy or because there is some moral imperative about awarding such damages?
MR JACKSON: Because, your Honour ‑ and one can put it in a number of ways, but we say that their damages are not recoverable in respect of the cost of bringing up a child, a child being a human life. The negligence has brought into being a life. It is different from a case where a car has been damaged or someone themselves has suffered an injury. It is different, your Honour. I will come to ‑ ‑ ‑
McHUGH J: I can understand the legislature taking that view but as a matter of legal principle what is the objection to obtaining damages?
MR JACKSON: The objection, your Honour, is that it is a type of damage which is not available, and it is a type of damage not available because it all depends on there being damages given in respect of – however one cares to put it – the life of a human being having been brought into being.
GLEESON CJ: What was the case which - I think it was Sir Garfield Barwick – drew attention to the distinction between damage and damages? You can perhaps have a look over the luncheon adjournment.
MR JACKSON: Yes, I will, your Honour.
KIRBY J: Your answer to Justice McHugh’s question seems to be not that you are denying that there is a duty of care which has been breached in the happening of the pregnancy but that for some reason of legal policy though there has been a breach of the duty of care and though some damages can be recovered in respect thereof, namely for the pain and suffering, the layette and things of that kind, that there is a point reached where the law, for reasons of policy out of respect of human dignity or something of that kind, says so far and no further. You do not get other economic consequences though they flow directly and are foreseeable from the breach of the duty of care.
MR JACKSON: Yes. Your Honour is quite right. We accept the foreseeability of it in the relevant sense, if I could put it that way. What we do seek to say is really, essentially ‑ and one can go around and around the point, in a sense but it really comes down to what we have put in the second sentence at paragraph 24 of our written submissions, namely, that the birth of a normal human healthy child should not be regarded as a legal harm or wrong for which damages may be awarded.
HAYNE J: Can we tease that out a little? The focus of the debate is on the economic consequence of having a child. The economic consequences of having a child almost invariably would be negative, I would venture to suggest. Is that so?
MR JACKSON: No question about that, your Honour.
HAYNE J: These references to “normal healthy child”, et cetera, “blessing” it, however it is dressed up, seem to suggest that account must be taken of other human reasons for having children. If it was an economic decision, one would wonder how many of us would be here. Now, do we need to go in under this asserted policy? If we do, do we go in at that point?
MR JACKSON: Your Honour, perhaps I could put it this way. One starts with the position that what one is speaking about is a child, no special features in a sense – with no particular special features, a child who suffers no defects or injuries during the pregnancy or birth. You have a child in respect of whom no damages are sought in relation to injury or ill health on the child’s part. You have a child who has no demonstrated loss of earning capacity and there is no injury to the child giving rise to a need for care.
Now, your Honours, of course the child needs care, needs to be looked after, but that really is because the child is a child and, your Honour, it is at that point that one does get, in our submission, to the critical question and that is whether the birth of such a child does constitute something for which one can recover damages.
Now, your Honour, the reason why – and I am sorry I have taken a while to get to what your Honour is putting to me – in our submission, ultimately – and no doubt one can put it in a number of ways and put different emphases on different things – simply we would say the reason why one cannot is that the birth and the consequence of the birth of such a child do not constitute a legal harm for which damages are recoverable.
There is, if I could, in effect, paraphrase what has been said in some of the decisions, a difference between, for example, injury to a chattel, injury to an animal or something of that kind and one is speaking about the circumstance where one has a human being. Your Honour, I do not want to put it in particularly – there has been some suggestion in the judgments below that one is talking in religious terms, but people who have no belief in an afterlife may have a very strong belief in the value of the present one. It means more, perhaps, to them than to others.
So we would say ultimately it comes down to something that I suppose one would describe as a value, a value which is one to be applied, in our submission, by saying that in circumstances to which I have adverted it is not right to place a value, in effect, on the life of the child.
McHUGH J: Take a case where a State adoption agency negligently fails to examine a child who has Down Syndrome, or some other problem, and the child is then adopted out to parents. Why cannot the parents sue for the cost of supporting that child?
KIRBY J: The added costs.
MR JACKSON: Your Honour, in respect of the added costs, it may be that in circumstances of that kind, where it has been apparent that - if the cost element is one that has been regarded as significant, maybe they can, but, your Honour, one is not speaking in those circumstances really about quite the same thing.
McHUGH J: But why do you distinguish between the normal healthy child and the child who is not normal - the abnormal child?
MR JACKSON: Your Honour, I am not sure actually that we do, with respect. I think we have said in our written submissions and have indicated what the situation has been in relation to children who suffer from a disability, but a possible view is that if one has a child born with a disability, the same situation would obtain.
GLEESON CJ: Is that a convenient time, Mr Jackson?
MR JACKSON: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, may I deal first with the couple of matters that your Honour the Chief Justice was asking me about this morning. The first concerned the extent to which the evidence demonstrated who was paying for the bringing up of the children. This is adverted to, your Honours, as it were, at page 266 in volume 2, paragraph [76] of the reasons of the primary judge. Your Honours will see that in relation to her economic loss it discusses the situation, discusses her earnings and so on. The evidence, your Honours, when one actually goes to the actual evidence about the precise question, it is not really as clear as one might expect, perhaps.
There are two references, your Honours, in volume 1 in the oral evidence. At page 44, and the passage which really commences at the bottom of page 43, there is a reference in the last two questions and answers at the bottom of page 43 to the fact of his birth:
and life meant that you and your husband have made changes with respect to your daughters’ lives?---Yes.
And then she says:
what we had planned ‑ ‑ ‑
GLEESON CJ: I thought – I may have misunderstood – that we were told this morning that the other children were only aged three or four, or something.
MR JACKSON: Yes, your Honour. They were not ‑ ‑ ‑
GLEESON CJ: “There is nine years’ difference between our youngest daughter and Jordan”.
MR JACKSON: Well, your Honour, the position is we have set it out in paragraph 5 of our written submissions. The child, Jordan, was born on 29 May 1997 ‑ that is in paragraph 9 of our submissions – the reference is there. Then the earlier children – 1985, 1988. So, yes, your Honour, there was nine. Perhaps I misheard the question, but they are the ages.
GLEESON CJ: When the action was commenced in the first place, were there two plaintiffs?
MR JACKSON: I believe so, your Honour, yes. Again, I am sorry – I should have checked that, but I believe that to be the case. One reference then goes onto the top of page 44. The second reference is at page 124, and it is a passage which commences about line 5 on that page, going down and, looking at the left‑hand side of the page, going down to about line 28.
KIRBY J: Which page is this?
MR JACKSON: It is page 124, your Honour.
KIRBY J: Thank you.
MR JACKSON: That is in the oral evidence of the father. The second matter was, your Honour the Chief Justice asked for a reference to a decision and some observations of Chief Justice Barwick, I think. I think the case to which your Honour was referring was one in which some observations of his were in effect picked up in a later decision of the Court, the later one being Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522. At page 526 and 527, the bottom of the page, there is a quotation from some observations of Chief Justice Barwick in Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd. Then one sees the observation halfway down 527, in the joint judgment of the Court:
Dillingham makes it clear that “damage” in s. 5(1)(c) is not to be equated to the “damages” awarded by a court. In negligence, “damage” is what the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission –
and then a little further down:
Damages are awarded as compensation for each item ‑ ‑ ‑
GLEESON CJ: That is what I had in mind. We are not talking about damages here. We are talking about damage, are we not?
MR JACKSON: Yes. Your Honours, the third matter I wanted to deal with, if I may, comes back to a matter your Honour Justice McHugh was raising with me. There has not been, your Honours, acceptance either in the court below, or in a number of other cases, of the notion that damage of the nature presently in question should be treated as a consequence of physical injury to the mother in the sense that one sees in cases where physical injury causes economic consequences and accordingly they are recoverable. The general principle of course is that ‑ one can see it adverted to by, for example, Chief Justice Gibbs in Caltex v The Dredge “Willemstad” (1976) 136 CLR 529. Could I just perhaps read out to your Honours a very short passage from it. The relevant passage is at page 544, where his Honour said:
Of course it is clearly settled that where personal injury or physical damage to property has been caused by a negligent act, the damages which may be recovered include compensation for all pecuniary loss suffered as a result of the injury or damage.
Your Honours, no doubt it is a matter of how one classifies a particular thing but, in our submission, for the reasons I submitted earlier, one would not treat the damage in question here as suffered, to use those words, as a result of the physical injury to the female respondent.
Your Honours, could I also say – I said the court below in this case had taken a similar view. Your Honours will see that adverted to principally in the reasons of Justice Thomas which were relevantly adopted by the other members of the court in this regard. There are two references, your Honours, both in volume 2. First of all, page 309 paragraph 144. Your Honours, I will not read out the paragraph but his Honour deals with that aspect there and foreshadows a return to it later in his reasons.
HAYNE J: Do you adopt this process of classification that his Honour is there apparently engaging in?
MR JACKSON: The process of classification which we will adopt is simply to say that this is a claim for economic loss. I do not know that I need to go further in that respect.
HAYNE J: It seems to me once you accept that the claim is thus described, consequences follow adverse to your case.
MR JACKSON: Your Honour, what we would say in relation to the case is that it is one where it is perfectly possible to say that one can follow through the chain of consequences leading to the expenditures which will happen in relation to a child.
GLEESON CJ: But in what circumstances does unexpected or unintended expenditure amount to economic loss?
MR JACKSON: Your Honour, it depends, in a sense, where one starts from. If one is talking about something that is a physical injury to a person, then the economic loss of which one is speaking is the economic loss brought about by that person’s own injury and that usually is reflected in, in one way or another, a loss of earning capacity.
GLEESON CJ: But here the expenditure in question is providing food and clothing and shelter and education to another person.
MR JACKSON: Yes, your Honour.
GLEESON CJ: In what circumstances does incurring unintended or unexpected expenditure in providing food and clothing for somebody else amount to economic loss? In all circumstances? That is a possible answer.
MR JACKSON: Your Honour, it is a question first of all, I suppose, of – I will give your Honour a reference in just a moment to something in relation to what your Honour has just said – but it depends, of course, on taking a view that in a sense expenditure is of its nature an economic loss to the person who has to incur the expenditure. The correctness of that view is, in our submission, a difficult question perhaps but, in our submission, it should not be answered in a case such as the present. It would not ordinarily be something that one would treat as being an economic loss.
Could I give your Honours a reference in that regard to a discussion in a decision in New Zealand. Your Honours will have two volumes of accompanying materials. Now, in those your Honours will see that there are some New Zealand decisions which are referred to behind tabs 33, 34 and 35 and I think the one for which I am looking is behind tab 34.
Your Honours, in New Zealand, of course, there is legislation which provides for compensation for various types of personal injuries and the decisions turn on the particular legislation, of course. Your Honours will see, if I could go first to the decision behind tab 33, a decision in Re Z and it is a decision of Judge Blair, the relevant provision being set out at page 162 under the heading “DECISION”. It says:
Section 121(1) says that the Corporation, having regard to any other compensation payable, may pay to a claimant “compensation of such amount as it thinks fit for actual and reasonable expenses and proved losses –
and then the expression is –
necessarily and directly resulting from the injury –
I go to that case, your Honour, to indicate what the provision says. I will come back to the case a little later.
If one goes then to the next case behind tab 34, XY v Accident Compensation Corporation, the particular issue to which your Honour the Chief Justice was adverting is referred to, first at the bottom of page 379 – this is by Justice Jeffries - and your Honours will see the last few lines on that page and then at the top of the next page in the second new paragraph, his Honour goes on to say:
This Court thinks the answer lies in an analysis of ordinary meaning of the words applying the accepted, even conventional views of human affairs. It has been decided, and it is not challenged in any way, that conception by a woman of a child in the circumstances was a medical misadventure and an injury. That itself could be described as a highly artificial result but it is the base from which we must proceed.
Now, your Honours will see that passage goes on through the remainder of that paragraph and the other paragraph that deals with the issue can be seen on the next page, page 381, and this deals a little more fully with the issues.
GLEESON CJ: Perhaps I could illustrate the problem I have by taking an example that has nothing to do with any kind of moral consideration. If two business partners agree that one of them will go to an auction and bid for a property and one of them promises the other that he will not bid more than X dollars and he goes to the auction and gets excited or enthusiastic, for some reason, and bids 2X dollars and the partnership acquires the property for that, has the other partner suffered economic loss? He has certainly incurred unintended expenditure.
MR JACKSON: Yes, of course. Your Honour, I suppose if the property is worth what is paid for it – and one would expect that to be because it was the price at an auction on the day – then the answer, in our submission, would be no.
GLEESON CJ: I do not know whether you are familiar with the decisions of the Federal Court in relation to actions brought by residents of old people’s homes who have incurred expenditure for outgoings beyond that which was represented to them. I must say I am only familiar with them because they are still the subject of pending litigation in this Court. But the Federal Court in those cases decided that although unexpected, unintended and financially embarrassing expenditure was incurred, there was no financial loss, because they got full value for what they were paying for.
MR JACKSON: Yes. Your Honour, it lies, in a sense, behind the view that could be taken in circumstances where, for example, a fraudulent misrepresentation could be made and where there was reliance on it, but, in fact, the property that was acquired was worth more than the amount they paid for it. If one took the case where, at the time when the representation was made, the property was worth X and the money about to be paid over, but by the time when the money is to be paid over there has been a rezoning which affects the value of the property upwards.
HAYNE J: I fear you are masking the microphone with your folder, Mr Jackson.
MR JACKSON: I am sorry. I do not know whether your Honour heard what I just said.
HAYNE J: Yes, I did.
MR JACKSON: That would be an instance of a case where there has been expenditure but no loss. Your Honour, it then becomes a question, in those circumstances, in one sense of what one sets off against it, but there is, in a sense, too, your Honours, a question which is anterior to that, and that is, what is the expenditure in relation to ‑ ‑ ‑
GLEESON CJ: And, what do you mean by “loss” when you use expressions like economic loss or financial loss? What are you talking about?
MR JACKSON: Your Honour, could I just say – I was going to take your Honours to page 381 of that decision. Your Honours will see in the first new paragraph on the page, whilst his Honour is not laying down any definitive proposition, what he is saying is:
With the foregoing background the question must be faced is maintenance of a child an expense or loss necessarily resulting from the injury?
Your Honours, will see he elaborates upon that proposition through that paragraph and concludes by saying:
In short most parents would say maintenance is not an expense or loss and the payment of maintenance for one’s child is not necessarily and directly resulting from the birth but from the state of parenthood which inevitably involves financial sacrifice.
Your Honours, I am sorry, I moved to that and, in a sense, away from the point I was seeking to advance before, and that is that in the court below the view taken was that the damages were not damages which, in effect, attached to the physical injury. I referred to paragraph [144] at page 309. The other paragraph to which I wish to refer was paragraph [201] at page 326.
Could I say, without taking your Honours to them, that Justice McMurdo at page 277 paragraph [6] and Justice Davies at page 294 paragraph [77] were in agreement with the view that they were pure economic loss. Your Honours will see in the latter reference at paragraph [77] that Justice Davies referred also to some passages in the decision of the House of Lords in McFarlane – and I will come to that a little later – which were to the same effect, although with perhaps different shades, and one sees it also in a number of the United States cases.
GUMMOW J: I think we have to understand – maybe at a juris prudential level – what we mean by injury, loss, damage. I am not at the moment.
MR JACKSON: Yes, your Honour. What I going to say in relation to that is that – and your Honours, it is, no doubt, in a sense, trite to say but there are things which are in one sense losses in the sense of expenditures and things paid out and things of that kind for which there does not exist a legal remedy. One can call them damnum absque injuria which simply means a loss without, in a sense, a legal remedy. Your Honours, on a number of occasions, members of the Court, have adverted to the fact that the combination of foreseeability, causation and harm is not ‑ ‑ ‑
GUMMOW J: Well, that word “harm”, you see?
MR JACKSON: I am sorry, your Honour, I am endeavouring to use a neutral term, really – is not sufficient. Could I give your Honours first of all a reference in that regard to Sullivan v Moody to an observation of a number of members of the Court in Sullivan v Moody (2001) 207 CLR 562 at page 576. Your Honours, I confess to know originality in the use of the word “harm”, and your Honours will see in that paragraph, about the fourth line of the paragraph:
the fact that it is foreseeable . . . that a careless act or omission on the part of one person may cause harm to another does not mean the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results.
Now, your Honours, the particular passage to which I wish to refer is really in the last sentence where it says:
A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff in circumstances where the law imposed a duty to take such care ‑
the reference to “such care” being back to “to prevent a certain kind of foreseeable harm”. Now, your Honours, Justice Deane in Jaensch v Coffey (1984) 155 CLR 549 at 583 in a passage which your Honour Justice Callinan adopted recently in Tame v New South Wales – I will give your Honours the reference to that in just a moment, if I may. At page 583 at the top of the page, his Honour said:
It is not, and has never been the common law that the reasonable foreseeability at risk of injury to another automatically means is a duty to take reasonable care with regard to that risk of injury. Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation.
Your Honours, perhaps I could pass over the next sentence, but your Honour then says:
Such overriding requirements or limitations shape the frontiers of the common law of negligence. They may apply to preclude altogether the existence of a duty of care in particular circumstances or to limit the content of any duty of care or the class of persons to whom it is owed or the type of injury to which it extends:
and in the next paragraph he goes on to say ‑ ‑ ‑
GUMMOW J: We are not talking about duty of care here.
MR JACKSON: No, I understand that, your Honour. Your Honour, I am not seeking to say that there is no duty.
GUMMOW J: Yes.
MR JACKSON: I was really picking up the last observation that he made, or the type of injury to which it extends. In the next paragraph one sees in the second sentence:
To the contrary one finds in cases of the comparatively unchartered areas of the law of negligence, repeated reference to proximity as a touchstone for determining the existence and content of any common law duty of care to avoid reasonably foreseeable injury of the type sustained.
GUMMOW J: What is the significance of referring to Best v Samuel Fox? It is the case about the mink, is it not?
McHUGH J: Husband and wife, is it not?
MR JACKSON: Yes it was. The husband did not have an action for loss of something or other. I have forgotten what it was, your Honour.
McHUGH J: Loss of consortium.
MR JACKSON: Yes. But simply referring your Honour to the fact that the ‑ ‑ ‑
GUMMOW J: The type of injury.
MR JACKSON: Yes, the type of injury. Your Honour, one could classify it in two ways, no doubt, in that case.
GLEESON CJ: What does that expression “injury” mean?
MR JACKSON: Well, the type of ‑ to use, your Honour, a neutral term ‑ loss that is sought. The loss could be the physical injury to the person. It could be injury to the person’s property or it could be loss which is economic.
McHUGH J: That was not the way that Viscount Simon understood the term in Crofter Hand Woven Harris Tweed v Veitch [1942] AC at 442, where he said:
“injury” is limited to actionable wrong, while “damage”, in contrast with injury, means loss or harm occurring in fact, whether actionable as an injury or not.
MR JACKSON: Your Honour, in a sense what his Lordship was saying there was referring to the fact, in the last part of that passage your Honour referred to, that there may be some losses ‑ I have forgotten the exact words that he used ‑ some losses which are not recoverable.
McHUGH J: That is right, they may not be reasonably foreseeable.
HAYNE J: Are the consequences of an unwanted pregnancy and delivery of a normal child, using the term “consequences” as an intendedly neutral term, are they to be regarded as a loss? Are they to be considered only from an economic perspective? Are there other perspectives that are relevant? Those seem to me to be three separate questions.
MR JACKSON: Your Honour, as to the first of those, in our submission it is not to be considered as something which is purely economic or is to be considered from an economic perspective.
GLEESON CJ: Is providing a meal for a child a loss?
HAYNE J: It all depends on the child’s reaction.
GLEESON CJ: This is a claim for the cost of providing food, clothing, shelter and education.
MR JACKSON: Yes.
GLEESON CJ: It might require a consideration of two questions, or two or more questions, but it is put as a claim for what is being treated as, self‑evidently, economic loss and it is just not self‑evident to me.
MR JACKSON: Your Honour, could I just say – and perhaps this is something I diverted myself from referring earlier – that one sees the nature of the claim in fairly graphic detail. I do not say this in any adversely critical way. One sees it set out in volume 2 at pages 219 to 243. The way in which it works is set out on page 219 and it goes on for various years, the primary judge expressing the view at one point that she hoped that the child would not have to watch the one video per week that was provided for, for example, at page 42 at about line 31.
Returning to what your Honour the Chief Justice was putting to me, in our submission, expenditures of that kind do not fall within the legal categorisation of a loss and the reason why, ultimately, in our submission, your Honours, is that one is speaking about maintaining a child. A child is not like a cat or a dog or an animal and, without seeking in any way to minimise the tragedy of what was involved, the notion that there is something special about human life can be seen by the different reactions one would have, on the one hand, to the death of seven astronauts, to, on the other hand, the death of seven monkeys dressed in space suits. One is speaking about something which is a central part of humanity.
Your Honours, could I go back for just a moment to the point with which I was dealing a moment ago. I referred to a passage in Jaensch v Coffey. That was adopted by your Honour Justice Callinan in Tame v New South Wales (2002) 76 ALJR 1348 at 1408, paragraph [330]. May I refer also to, without taking your Honours to the passages, two observations in Sutherland Shire Council v Heyman (1985) 157 CLR 424, first of all at pages 486, at 487 Justice Brennan, and then in passing an observation at page 498 by Justice Deane.
One sees also in the reasons for judgment of three members of the Court, Chief Justice Mason and Justices Deane and Gaudron, in Bryan v Maloney (1995) 182 CLR 609 at 618, in dealing, it is right to say, with the term “proximity”, about point 3 on the page, the last four lines of the paragraph which continues into page 618:
Inevitably, the policy considerations which are legitimately taken into account in determining whether sufficient proximity exists in a novel category will be influenced by the courts’ assessment of community standards and demands.
McHUGH J: But this case has nothing to do with proximity, even if proximity was still the ruling doctrine.
MR JACKSON: No, your Honour, I am sorry, but if I could just say all I was seeking to say about proximity and the reason why I put it, in a sense, in inverted commas in saying it was that if it or something else be regarded as the notion which determines ultimately whether a case in which there is reasonable foreseeability and at the end of the chain there is some thing or some expenditure, whether that is something that is recoverable ‑ ‑ ‑
McHUGH J: Did you cite that because of the reference to public policy, that passage?
MR JACKSON: In part, your Honour, yes.
McHUGH J: That is what your argument must come down to, must it not, in the end? Take a case where a couple ‑ ‑ ‑
MR JACKSON: I do not deny that at all. I advance it.
McHUGH J: When I asked you earlier what was the basis for rejecting this claim, I put a number of considerations to you. I do not think you answered me directly. But take a case where a couple go to a doctor in the position of the appellant and say, “We just cannot afford to raise any more children. Can you guarantee to perform a successful sterilisation operation?”, and the doctor says, “Yes, I can”, and through negligence fails to do so and a child is born with the attendant expense. Now, do you say in that situation they cannot recover, notwithstanding there is a breach of the very representation that has been made?
MR JACKSON: Well, no doubt in one sense what your Honour is putting to me is a contract case, in a way, and it may ‑ ‑ ‑
McHUGH J: Let us assume it is in a public hospital.
MR JACKSON: Yes. Well, your Honour, in that case, yes, we do. Yes, we do. Your Honour, I do not hesitate in saying that because we say that – and your Honour had asked me earlier what is the basis of doing it. I think I had answered your Honour by saying it is what we say in paragraph 24 of our written submissions. But, your Honour, yes, it is, in our submission, a matter of public policy, meaning by that the legal policy, the policy of the law.
GUMMOW J: Why should the law have that policy?
MR JACKSON: It should have it, your Honour, because it is a reflection of an underlying value of society in relation to the value of human life.
KIRBY J: The English Court, the House of Lords, seemed to have shied away from the public policy explanation, though Justice Thomas seems to say that in the end that is essentially what their Lordships relied on and he really embraces it, as I read his reasons. So do you now, as I understand it.
MR JACKSON: Yes. Your Honour, could I just say more delicacy, if I could put it that way, seems to be shown in English cases, perhaps a reflection of the fact that it was not until, I think, 1966 that the House of Lords overruled itself at least overtly and regarded matters as being matters for determination by the legislature so far as the common law was concerned. There does seem to be in a number of English decisions a greater reluctance to recognise the effect of social and policy ‑ ‑ ‑
McHUGH J: There does seem somewhat of a conflict. Benham v Gambling in 1943 – their Lordships held that life was not a boon and the amount awarded for wrongful death was to be limited to £500. Here, they seem to say “life is a boon” and therefore those who are forced to raise a child are not entitled to any compensation for the birth of a normal, healthy child.
MR JACKSON: Well, your Honour, it is no doubt a matter of how one describes it, how one looks at it. Our submission is that the result arrived at by the House of Lords, - whether one adopts every aspect of the reasoning or not, or the description of it as being or not being public policy as accurate – but the result arrived at by the House of Lords is – and, as I will come to in a moment, the majority of United States jurisdictions ‑ ‑ ‑
GUMMOW J: What is this policy? Can you just identify it?
MR JACKSON: Yes, I am sorry, your Honour. What we would seek to say is this, that the birth of a healthy child is not a legal harm – and perhaps I could use that in the sense that it was used in Sullivan v Moody – for which damages may be recovered.
GUMMOW J: That would sound in contract, as well?
MR JACKSON: Yes, it would, your Honour.
KIRBY J: Have the American cases, in explaining the majority position in the United States, rested it on their policy decision on some notion of the dignity of the human being – that it is unseemly or contrary to the dignity of a human being to reduce it to an object, so that it is merely being valued in money terms? Is that how it is reasoned, or is it some other way? I have not read the American cases since CES, and a lot of them have been decided since then.
MR JACKSON: Your Honour, it is put in a number of ways, but that is one way in which it is put.
GLEESON CJ: Do they address the question of the circumstances in which the law categorises unintended expenditure as loss?
MR JACKSON: Your Honour, I do not think I can give you a reference to a case that says that precisely, but it is involved in the decisions that the amounts of expenditure that are involved are something that the law should not regard as a loss. Should not, and, of course, does not.
KIRBY J: As I understand it, you have two guns to fire. One is this one that public policy, as it were, steps in, and, although the purely logical, unquestioning application of legal doctrine might lead to the loss being quantified, the public policy steps in. The other is that you have to calculate the true loss, and to do that you have to offset, as against the loss in money terms, the advantage that has been gained by the joys and satisfactions of a healthy child. These are two ways. Are they different ways? They seem to be conceptually different ways of presenting your case.
MR JACKSON: Your Honour, they arrive at potentially different results.
KIRBY J: They do.
MR JACKSON: What I mean by that is that the principal result for which we contend is that damages are not recoverable in respect of the cost of bringing up the child, simpliciter.
GUMMOW J: You have to put it at the damages end rather than the duty end ‑ ‑ ‑
MR JACKSON: Quite, your Honour, yes.
GUMMOW J: ‑ ‑ ‑because there is the recovery for the birth.
MR JACKSON: Yes, your Honour, I accept that.
GUMMOW J: So the policy does not go to the birth, it goes to the consequences of the birth.
MR JACKSON: That is so, your Honour. Well, it goes ‑ ‑ ‑
KIRBY J: That would allow for you to handle the case of, say, a child who, because of some disability incurred a lot of expense, that a healthy child did not; it would allow you, at the damages end, to incorporate that into the equation, would it not?
MR JACKSON: Well, it might, your Honour, it might. Your Honour, I do not ‑ ‑ ‑
KIRBY J: Neither side wants to grapple with that, but as the House of Lords case shows, if you lay down a principle for the healthy child, you are then going to get other cases with other permutations of facts and the judges at trial are going to try to distinguish any broad principle, so we have to think about the problem.
MR JACKSON: Your Honour, I accept that.
GUMMOW J: But are there other instances of public policy cutting in at the damages end to remove, what one might call, particular heads, which is what this case seems to be? There are plenty of cases where the public policy cuts in at the top, the duty end or the validity of the contract end. This is at the other end. It seems stronger.
MR JACKSON: Your Honour, one example, the ambit of it probably much reduced, is in relation to nervous shock and by so much reduced in consequence…..but that is one example. Of course, your Honours, various types of economic loss would seem to fall within that category.
McHUGH J: But they owed a duty, did they not?
MR JACKSON: Well, your Honour, one can categorise these things in different ways, but in many cases one would have a situation where one has to deal with the question of duty by reference to the nature of the loss that is alleged to be sustained.
McHUGH J: Well, some of the cases seem damaged, nervous shock being one well‑known illustration; pure economic loss cases being another. They said there is no duty. But here you have a duty; you have a breach, you have a cause of action, because you have suffered injury. It is really a quantification.
KIRBY J: And you have damage that was concededly foreseeable. You have all of those things and you then say pluck out of the air public policy. Now, judges do not tend to like doing that, because what is our authority to pluck out public policy that intervenes in this case, yet not in other cases?
MR JACKSON: Well, your Honour, the whole law in this regard is relevantly law which is judge made – I will start that again. The law is relevantly judge made and the courts of today have as much authority – of course, bearing in mind restraint – to make it as the courts of the past and, your Honours, in this regard, we are not, with respect, submitting something that is especially unusual or heterodox; the course that we are submitting is one in relation to which one finds a various significant majority of jurisdictions in the United States, saying this type of damage is not recoverable; one has a decision of the House of Lords saying it is not.
GUMMOW J: But there are signs of subsequent rebellion in the Court of Appeal, are there not, in England?
KIRBY J: There is rebellion there.
GUMMOW J: Parkinson is one example, to put it mildly.
MR JACKSON: Your Honour, no doubt the rebellion can be put down. That is what tends to happen and it happened – if one goes back to Broome v Cassell, the remedy for adventurism is not always praise.
HAYNE J: Can you identify any other circumstance in which the consequences of negligent conduct for which compensation is to be allowed are not wholly disadvantageous to the plaintiff?
MR JACKSON: I have given your Honour one reference in relation to the psychiatric illness and, your Honours ‑ ‑ ‑
HAYNE J: Where the consequence of the negligent act is seen as at least potentially offering reward, benefit or advantage to the plaintiff, for that is the circumstance with the birth of a child. There is the potential, at least, for forms of reward, advantage, benefit, primarily, if not entirely, non‑economic, but is there any other circumstance in which the law has confronted this kind of mixed outcome?
MR JACKSON: The answer, your Honour, I think is probably no.
McHUGH J: I think there is one area. The only one I can think of is in the law of defamation and this Court applied the principle in Wilkinson’s Case 49 CLR where the headnote says:
An action of defamation cannot be maintained by a person who pursues an unlawful vocation or engages in unlawful acts or transactions if to do so he must rely upon that vocation . . . He is not, however, deprived of protection to his character or reputation ultra that vocation or those acts or transactions.
So you can recover for a defamation, but you cannot get damages insofar as it would affect your business ‑ ‑ ‑
MR JACKSON: Your Honour, in respect of tortious conduct resulting in damage to a plaintiff it would be difficult, in our submission – perhaps I can endeavour to give your Honours a reference to this – for a plaintiff to recover for losses which would be based upon illegality. That is putting it more broadly, your Honour, than the tort of defamation, but if the quantification of the loss was based upon an illegality there may be difficulty.
Now, your Honour, I should add as a qualification that, perhaps, if one was speaking about a tort of personal injury and one would still be awarding damages in respect of, say, a loss of earning capacity as distinct from necessarily the loss of earnings – so there may be, perhaps, a question in some cases about that – but if, in some cases, in tort or proceedings for fraudulent misrepresentation or equivalent proceedings under the Trade Practices Act a situation arose where some of the losses were losses which were brought about by the conduct of an illegal enterprise, that would be a similar situation, in our submission.
But, your Honour, one reason, if I can put it this way, why one has a situation where there are not many – this does not often arise – is because of the very nature of what one is talking about and that is one is dealing with the situation of a human being, a child.
HAYNE J: The nearest analogy I could offer from personal injuries is the brain injury which leaves the plaintiff perpetually euphoric. What do you do about that? You would allow ‑ were the plaintiff depressed or suffering a personality change that was adverse in some respects, consequences follow. But what of the plaintiff who is left perpetually euphoric?
KIRBY J: It would depend on their occupation. If they were a judge it would be a great benefit. They would not have lost any damage at all.
HAYNE J: A euphoria which infects this Bench is I am sure transmitted to the Bar often enough, Mr Jackson. But what do you do about their damages?
KIRBY J: That is why I think your better bet is the damages end because if, for example, a person is injured ‑ let it be a concert pianist ‑ and they cannot play the piano but they then in fact go into practice as a barrister and earn much more money and have much more fame, then their damages would be reduced. So similarly if here, though they did not want the child, they get the child and the child brings them joy which they accept and acknowledge, then I do not really at the moment see why some allowance, in working out the balances of advantage and disadvantage, should not be taken for the joy as well as for the burden.
MR JACKSON: Your Honour, may I come to that a little later. Could I just say in relation to the concert pianist example that your Honour gave: of course one would be awarding damages for the loss of the earning capacity as distinct from the actual loss of earnings. If in fact the person, in the time before trial, had moved to another occupation, then there would be some setoff of the earnings that were likely to come from there, but it would not be treated, in effect, as a barrister.
Your Honours, I have I think lost the train of a question that one of your Honours was putting to me about ‑ ‑ ‑
KIRBY J: It was the euphoria question.
HAYNE J: What do you do about the fact that there are said to be benefits from being a parent? What account do you take? Do you treat pregnancy followed by birth of a healthy child as a loss measurable only in economic terms?
MR JACKSON: Your Honour, that is why one has seen in the decisions in other jurisdictions really four positions being adopted. Position one being ‑ which we first contend ‑ that is that nothing is recoverable in respect of the costs of bringing up the child.
HAYNE J: And that is a statement of conclusion. What are the reasons for arriving at that conclusion?
MR JACKSON: The reasons for arriving at that conclusion, your Honour, is that to do otherwise is to attempt to place a value on something that really cannot usefully be valued or cannot effectively be valued, and that is the human life. Your Honours, may I come to the cases in that regard in just a moment. I did want to give your Honours one further reference before moving on. Your Honour Justice Hayne in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254, at paragraphs 104 and 105, your Honour adverted to Justice Brennan in Sutherland Shire Council v Heyman:
pointed out that “a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member”.
Then your Honour went on to elaborate on that in the next paragraph.
So, your Honours, the point I have been seeking to make about these cases is that it is recognised, in our submission, although this issue is in a sense a new one, that in determining whether there is ultimately liability, the question of the nature of the damage claimed is something which is relevant.
McHUGH J: But it is very difficult to break it up. I mean, you seem to concede that the doctor in this case is liable for the pain and suffering of the pregnancy and the delivery, of any loss of income for the mother during pregnancy, and I assume the cost of the bassinette, but not the cost of putting one piece of food in the child’s mouth.
MR JACKSON: Yes, not to - with the bassinette, your Honour. I think we probably did, but the – not the cost of putting the food in the child’s mouth or anything else in relation to the child.
McHUGH J: How can you draw a distinction between the two on public policy or any other grounds? Lord Slynn conceded it was illogical to try and do so.
MR JACKSON: Your Honour, I do not know that I can do more in a sense than say it again, but what we would seek to say about that is that one really is not dealing with a case which one can regard as similar to other cases. One is dealing with a case where you have a relationship of parent and child and a relationship which has, in a sense, pluses and minuses, all amounting to the experience, if I can use that expression, of parenthood.
GLEESON CJ: Mr Jackson, we all know that there have been a lot of cases on this in other common law jurisdictions and the courts have gone in different directions, but can I ask you whether any court that has looked at this in another common law jurisdiction has distinguished between different kinds of plaintiff? You talked about distinguishing between disabled children and healthy children but I asked the question for this reason. A woman does not have to justify having a sterilisation procedure and it is absurd to think that all women who have sterilisation procedures have them because they cannot afford to have children. They are entitled just to choose not to have children.
MR JACKSON: Yes.
GLEESON CJ: Now, you can think of an example of a case where a couple of substantial means go through this procedure and then a child is born and, on any view, the couple could comfortably afford to bring up the child, no question of any financial hardship involved at all, although there are outgoings. At the other extreme, you could think of a single woman who is in difficult economic circumstances and for whom the cost of bringing up a child would be a serious financial hardship. Have any of the courts ever suggested that you would distinguish between plaintiffs as distinct from distinguishing on the basis of the children?
MR JACKSON: Yes, your Honour, one sees in a Canadian decision which was Kealey v Berezowski – I will give your Honours the reference to it in just a moment if I may - Justice Lax had said that perhaps one of the ways of distinguishing is by looking at the reason for which the operation was being sought and having in mind financial questions. That aspect of it has not been followed ‑ and these are single judge decisions in Canada ‑ in later single judge decision in Canada.
GLEESON CJ: But whatever the rule is, subject to some possibility such as that, it is going to have to apply in the same way to couples who can comfortably afford to bring up children and to people who would suffer desperate financial hardship in bringing up a child.
MR JACKSON: Across the board, your Honour.
GLEESON CJ: Across the board, yes.
GUMMOW J: Now, one of the cases in the rebellion in the Court of Appeal is Rees v Darlington Memorial Hospital, is that ‑ ‑ ‑
MR JACKSON: I am sorry, your Honour?
GUMMOW J: Rees v Darlington Memorial Hospital [2002] 2 All ER 177, where the parent who recovered is a disabled person and notwithstanding the House of Lords case and notwithstanding McFarlane, there was recovery because of the special nature of the particular plaintiff.
MR JACKSON: In respect, I think, of the additional costs, your Honour.
GUMMOW J: Yes.
KIRBY J: Leave has been granted to appeal that matter to the House of Lords, as I understand it. That will be an opportunity for their Lordships to revisit McFarlane.
MR JACKSON: Yes, and perhaps extend it, your Honour.
KIRBY J: Or narrow it down in the light of the later cases, that is the question.
MR JACKSON: Yes. Well, your Honour, that is ‑ ‑ ‑
GUMMOW J: But would you say Rees is wrong? That is what I am trying to ‑ ‑ ‑
MR JACKSON: Well, your Honour, in the ‑ ‑ ‑
GUMMOW J: To put it more accurately, in a factual situation like that in Rees, would your proposition cut in and deny recovery?
MR JACKSON: Your Honour, I think the answer is no in respect of the additional costs.
GUMMOW J: Why is that?
MR JACKSON: But, your Honour, I have to accept that that is a difficult position to justify and, your Honour, that is what we said, I think, in our written submissions.
KIRBY J: Not really, Mr Jackson, because if you take as you fundamental norm, as I understand you do that the public policy of the law intervenes here, you look for an explanation and the explanation can either be a quasi‑religious explanation that human beings are in the image of God and they are not to be objectified in this way or you can have a human rights argument that this is part of human dignity. It is such an important thing for another human being to be born into this world that we do not treat it as if it is a misfortune and, therefore, the law and the public policy of the law intervenes and cuts you off at that point. Now, that is hard for us to do in this secular Court in a secular age, but I can understand the argument and the argument runs as much for a so-called disabled child as it does for a healthy child, it must be fundamental in the nature of the human condition.
MR JACKSON: Your Honour, could I just say that one sees in part what your Honour has put to me, but one sees also an observation by Justice Davies – and this was at page 295, paragraphs [80] to [81] - that there is in fact a religious belief underpinning the notion. Your Honour, I adverted to this in passing this morning. Now, it may be that many, perhaps most religions, take a similar view but, your Honours, it does not follow that the view itself is one which should be regarded as one which is religious.
KIRBY J: That is what Justice Thomas points out: not all religious beliefs are religious beliefs which the law would reject. They may be founded in very deep feelings of humanism as well as religious doctrine.
MR JACKSON: Your Honour, if I could just say that I mentioned this morning the question of a person who is an atheist. Being an atheist does not mean that a person has no moral views.
GUMMOW J: The French status is secular state. The President of France is automatically godfather or godmother to – is it the tenth child in every French family because of French public policy about boosting the fertility rate. That has been so for more than a 100 years. It has nothing to do with religion.
MR JACKSON: That is so. For example, Mr Arthur Calwell ‑ ‑ ‑
GUMMOW J: It has to do with having enough French soldiers to fight the Germans.
MR JACKSON: Well, Mr Arthur Calwell’s “populate or perish” observation was ‑ ‑ ‑
GUMMOW J: Yes, exactly.
MR JACKSON: ‑ ‑ ‑ not entirely religiously based. Your Honours, what I was going to do, if I may now, was to move to the decisions in other jurisdictions, and, your Honours, I do not intend, of course, to go through them in any way one by one. What I wanted to do, if I may, was to go first to the United States where the issue has been the subject of many cases and endeavour to summarise what the position is there and take your Honours to two or perhaps three of those cases.
Your Honours will see that in our written submissions in a footnote to paragraph 29 – it is footnote 52 – we have set out, your Honours, what appears to be the current United States position. Your Honours, we do so first by a summary from an article of LaCroix and Martin. It is more easy to read, your Honours, in the volume of additional materials, tab 44, and your Honours will see that the article is one ‑ at the bottom of page 93 ‑ which is reprinted from an article which was published in 1995. It is a reprint of the article, so we are talking about the position in 1995, and your Honours will see at page 97 the position at that point. The first paragraphs says that:
The 1967 decision of the California Court of Appeals in Custodio v Bauer was the first to recognize that a physician could be held liable for the birth of an unplanned, healthy child.
Your Honours will see that adverted to through that paragraph, and it is then said that:
Since the Custodio decision, thirty‑four states and the District of Columbia have judicially recognized the tort claim of wrongful pregnancy.
But, your Honours, one then sees, two paragraphs further down, the position in relation to damages:
Since the Custodio decision, courts have diverged in their award of childrearing damages. Most courts have awarded damages for losses incurred during and immediately after the pregnancy. They include the cost of the failed procedure; the medical expenses of pregnancy and delivery; the mother’s lost income during and immediately after the pregnancy; and the husband’s loss of consortium. A minority of states has allowed damages for the mother’s pain and suffering during pregnancy and delivery or for emotional distress after delivery. However, as in wrongful birth actions, state courts have split over the issue of damage recovery for childrearing costs. Only in Wisconsin and New Mexico have state courts allowed recovery for the full cost of raising a healthy child. Other state courts in Arizona, California, Connecticut, Massachusetts, Maryland, and Minnesota have allowed recovery for childrearing costs offset by the value of the child’s aid, comfort, society and assistance, i.e., the child’s benefit to the parents. The application of the partial recovery rules is intended “to prevent a windfall to the parents and an undue financial burden to the physicians.” The majority of state courts –
and there you see the very long list –
ruling on the issue denies any recovery for childrearing costs. Only one state, Massachusetts, allows recovery for pain and suffering associated with the burdens of raising another child.
Now, your Honours, that was the position summarised as at 1995. Two years later, the position was summarised in a decision of the Supreme Court of Rhode Island in Emerson v Magendantz 689 A.2d 409. It is behind tab 24 in the first volume of materials. May I take a moment to take your Honours to the important parts of the case. Your Honours will see at page 410 in the right column that the two questions the court had been asked were: was there any cause of action, in effect, and, secondly, what was the measure of damages?
Your Honours will see the summary of the facts immediately following that and the first question – was there any cause of action – was answered in the affirmative. You will see that dealt with on page 411 in paragraph [1]. Then paragraph [2], “What Is The Measure Of Damages?” You will see in the first six lines under that head that 30 jurisdictions had “adopted a remedy of limited recovery”. Could I pause to say, those decisions that are there referred to your Honours will in fact find in that same volume of materials immediately behind this case. They are, I think, in the order they are set out there.
Your Honours will then see, if one goes over to page 412, in the first new paragraph on page 412, their Honours say:
Under the limited‑recovery rule the foregoing jurisdictions frequently grant compensation to the plaintiffs for the medical expenses of the ineffective sterilization procedure –
and your Honours will see the remainder of the types of heads set out in that paragraph. After that, it said:
A number of jurisdictions allow for recovery of the cost of child rearing as an element of damages. These jurisdictions may be divided into two groups. One group allows the cost of child rearing but balances against this cost the benefits derived by the parents, either economic or emotional, from having a healthy child –
and those few jurisdictions are referred to. Then the first new paragraph in the right column:
Two jurisdictions have adopted a full‑recovery rule –
without any offset. Your Honours will see in about the sixth line, it is noted:
These two courts apply traditional tort principles in allowing for recovery of all damages that are reasonably foreseeable and that would result from the negligent performance of the sterilization procedure.
Then, your Honours, if one goes ‑ ‑ ‑
GUMMOW J: Some significance is attached to Article 920 of the Restatement (Second) Torts.
MR JACKSON: Your Honour, could I just say that there seem to be two views on that question in the cases: one is that in relation to Article 920, that to set them off is a misapplication of it, because you are not comparing like with like.
GUMMOW J: Yes.
MR JACKSON: The other view is that it is appropriate, but, of course, that view is not one adopted – I mean, it does not matter in the jurisdictions, the significant number which have adopted the view to which we contend, because they say what is really happening here is that the judge is noting what is being said about it, as distinct from saying it is a necessarily right.
GUMMOW J: Well, I understand that.
KIRBY J: But how have they reasoned it, on the duty basis or on the intervention of public policy basis?
MR JACKSON: Your Honour, may I come to that in just a moment. I am coming to that. What I was going to say, your Honours was this, that if one goes on page 412 to the third new paragraph on the page, they then said that they decided to adopt the limited recovery rule and then they adopt statements from various decisions in relation to it. You will see a reference then to McKernan v Aasheim at the bottom of page 412 in the right column, where it is, in effect, accepted that it is possible to work out:
the costs of rearing and educating the child –
and then it said:
But whether these costs are outweighed . . . cannot be calculated.
GUMMOW J: It is all too difficult so one gets nothing.
MR JACKSON: Yes, your Honour.
GLEESON CJ: They have actually said the whole process is incongruous.
MR JACKSON: It is too difficult and it is incongruous, and your Honours will see the reference to the possibility of what might happen to the child.
KIRBY J: Then you have to ask why is it incongruous and I suggest that the reason is one of those two explanations that I have mentioned, one of which is a religious explanation, which I fully understand, that the United States is a more religious society than Australia; Australia is a much more secular community.
MR JACKSON: Your Honour, the decisions in the United States jurisdictions seem to range from the, say, Utah, on the one hand, to, in a sense, New York and other places and – and places on the other and if, your Honour, went to one of the decisions which is that of the Supreme Court of Utah, where one perhaps might expect a more religious view of things to be taken – I do not mean that in any way offensively – one sees it done very much according to Hoyle, as it were, and not in a way which would differ significantly from the observations in any of the other courts.
GLEESON CJ: Is this an issue that could ever arise in federal jurisdiction in the United States?
MR JACKSON: It has arisen, your Honour, in relation to some of the territories, Alaska and, I think, the District of Columbia.
GUMMOW J: It could arise from diversity, surely.
MR JACKSON: Yes, your Honour, it could. There does not seem to be any decisions, though, at least at an appellate level, of the Federal Courts. There is a reference to a decision of a District Judge there, but that went on appeal and the result of it, a little difficult to find; it does not seem to be reported, your Honour. Your Honours will see in the left column on page 413, a reference to the:
determining damage from the birth of a child was an “exercise in prophecy.” Such a weighing process might be applied at the end of a life but not at the beginning.
KIRBY J: That is not very convincing because in all personal injury damages cases you have to prophesy and you have to look forward and you cannot have the luxury of saying, “Well, let us wait until the end of the life and we will then get it absolutely correct”. It does not work that way, does it? It does not work that way, Mr Jackson. In ordinary hit and knock ‘em down and they get their damages and you just have to do your best.
MR JACKSON: Could I just say, in a case of that kind what one is speaking of is a child who has been injured. Now, the prophecy that one is seeking to implement in an award of damages in a case like that is to say in respect of a child whom we have to take to be, in effect, an average child with some expectations and so on in relation to the family and its background, what effect is the injury likely to have had on the child.
Now, the issue arises significantly, of course, in relation to loss of earning capacity and in relation to that one knows the nature of the injury. One knows, in effect, what an average is. But, the position which obtains in relation to trying to work out the benefits, on the one hand, compared with the costs on the other, the real difficulty is, in our submission, accurately encapsulated by the quotation from McKernan v Aasheim which is at the bottom of page 412.
Your Honours, it is true, in the United States a child – I do not mean to make a pun about it – the child may grow up to be President of the United States or an infamous criminal. Sometimes some would say both, but the ‑ ‑ ‑
GLEESON CJ: The second might bring a more immediate financial benefit to the parents than the first.
MR JACKSON: Indeed, your Honour, yes. That is perfectly so.
GUMMOW J: Do you rely on page 413, the last paragraph in the right‑hand column, as to “the public policy”?
MR JACKSON: Yes, your Honour. Yes, I do.
GUMMOW J: Wait a minute, I am not sure you would, would you?
KIRBY J: It sounds like Justice Priestley. They are saying who had:
decided to retain the child –
and:
to forego . . . adoption –
That sounds like Justice Priestley’s reasoning.
MR JACKSON: Perhaps I adopted it too hastily, but could I just say in relation to it this, your Honour: we do not suggest ‑ and I think it is clear from our written submissions, that we do not suggest that a parent is obliged to adopt a child out or that in circumstances where a person – a woman who discovers she is pregnant could have an abortion – that she is obliged to have an abortion and thus mitigate the damages which was the position that was being put by, I think, Justice Priestley in CES. What we would say, however, is that there is an element of choice and the part of that paragraph that I would in a sense adopt is to say ‑ ‑ ‑
GUMMOW J: Their choice, in a way, was to limit their productivity.
MR JACKSON: Certainly, your Honour, it is a choice. I accept that. That is a choice that they made but it does not follow ‑ ‑ ‑
GUMMOW J: If no one says to a father who disappears and will not pay and under the Commonwealth legislation has to be hauled in to pay maintenance that the mother has nothing to complain about because she has this great blessing.
MR JACKSON: Because, I am sorry?
GUMMOW J: No one would say that the husband has a good defence and the wife has to pursue him under the Commonwealth legislation that we looked at in Luton v Lessels. “What are you complaining about, you have this blessing”.
MR JACKSON: Your Honour, I accept that, but the situation ‑ ‑ ‑
GUMMOW J: So the notion that it is always a blessing is not just readily reducible to a legal form.
MR JACKSON: Your Honour will see we have used the expression “blessing” I think in our written submission in inverted commas.
GLEESON CJ: Yes.
MR JACKSON: As I think it may have been Lord Millett in McFarlane’s Case said “blessing” is not quite the right term. One is speaking about a human experience, and things can be good and things can be bad, and most of the time I suppose they can go up and down, and vary. But it is part of a human experience, and “blessing”, perhaps as a Victorian ‑ ‑ ‑
GUMMOW J: Well, what should be the human experience.
MR JACKSON: I use it in a temporal sense, a kind of Victorian meaning.
GUMMOW J: There are child welfare departments in every State over this country dealing with horrific situations, which just do not square with the sort of ideas that the House of Lords is talking about. They seem to be focusing on what should be, but it is not what is.
MR JACKSON: Your Honour, what is ‑ one has to bear in mind we live in a society where there is a great deal of marriage and children from marriages, a great deal of divorce. There are children from two marriages. Parents who are separated.
GUMMOW J: Great deal of illegitimacy.
MR JACKSON: Indeed, your Honour, and there are many cases where one sees that the parent or parents of the child are nowhere to be found, or if they can be found there is nothing they can do about it. But, your Honour, what the argument really in support of getting damages of this kind would really lead to, in our submission, would be a circumstance where whoever is left with the child would have the cause of action because one could always say it was foreseeable that someone or somebody or some authority would have to look after the child. Therefore, the person who expends money looking after the child has a cause of action against the doctor in hospital.
KIRBY J: There is a strong dissenting opinion there which on 421 says, “We see no reason to not apply the normal principle. The only reason could be public policy. We conclude that there is none.” I really think you have to help us with any analogy or similar case where an Australian or English court has said, “Well, under normal tort and contract principles the cost is both reasonably foreseeable and a natural probable consequence of the wrongs that the plaintiffs allege”. That is what the American judges in dissent say. Then the question is whether there is any public policy consideration to cut them off. Now, if that is the bottom line of your assertion, I really think you have to give us analogies, otherwise it is a very big ask of a court of law, and American cases which, to some extent, are reasoned by reference to different considerations, some of which referred to are constitutional rights in the United States ‑ it is referred to on page 417 ‑ are not the same as they are in this country.
MR JACKSON: Your Honour, the decisions in the United States, decisions of the majority in the cases, do not say this is based on a constitutional ‑ ‑ ‑
KIRBY J: I accept that, but public policy is very much tied to the polity and the American public policy will not necessarily be the same as Australian public policy on a thing of this kind. An issue of this kind has to be - if you are invoking public policy, has to be answered by reference to Australian values, which I would assert are more secular than those of the United States.
MR JACKSON: Your Honour, if I could just say, if one looks at, for example, page – I was referring to page 413 and Emerson v Magendantz, your Honours will see, for example, the reference in the bottom left column to Johnson v University Hospitals of Cleveland. It is a passage which goes through to the right column on the same page saying, for example, at about point 3 on the page, a reference to Johnson:
In rejecting the full-recovery rule, the court stated that the “strict rules of tort should not be applied to an action to which they are not suited, such as a wrongful pregnancy case, in which a doctor’s tortious conduct permits to occur the birth of a child rather than the causing of an injury.”
Your Honours will see then a reference to an observation of Justice Holmes which one does from time to time, of course, see in Australian courts used.
KIRBY J: The best they seem to be able to do is to say that this is the most persuasive response. They assert – it is an assertion; it is not argued out, as far as I can see.
MR JACKSON: But, your Honour, apart from the decision in this case and a couple of single judge decisions that are referred to, this is not an area where there has been a recovery for this type of loss in Australia.
GLEESON CJ: Mr Jackson, the sentence that Justice Kirby quoted you on page 421 is, in fact, not written by the author of the judgment but is a quotation that he used, a very extensive quotation, from Justice Wilkins in Massachusetts. If you follow that quotation right through to its end on page 423, the conclusion is that whether or not these damages are recoverable depends on the reason why the plaintiff had the sterilisation operation.
MR JACKSON: Yes.
GLEESON CJ: It gets back to that matter that I put to you earlier. A distinction is drawn between various types of plaintiff and the reason for having the sterilisation and the further conclusion of the decision-maker who is quoted on pages 421 over to 423 is that where the reason for sterilisation is “founded on economic or financial considerations” you try and “offset against the cost of rearing the child the benefit”, however you calculate that. So there does seem to be authority in the United States for not only taking a different approach to the amount of damages, ranging from nil to everything to something in between, but also to distinguishing between plaintiffs on the basis of their reason for having the sterilisation. Does that have any support in any other common law jurisdiction?
MR JACKSON: Your Honour, I think it is right to say that it is adverted to without, I think, necessarily being adopted – I am sorry, I will start again. In South Africa – a decision to which I will come a little later, if I may – an earlier decision appeared to adopt that approach. That decision itself was followed in a later decision. I referred to a decision in Canada which does not appear to have been completely followed by other judges. There are some observations in some of the cases in the United States to the effect that your Honour has adverted to, but the vast number of decisions in the United States, the majority of them, would not allow the circumstance of the particular plaintiff to be a determining matter.
GLEESON CJ: It might or might not be coherent as a piece of legal reasoning – I have no view on it at the moment – but it does seem to be somebody’s attempt to come to grips with the self‑evident problem that there are many reasons why a woman might choose to have a sterilisation procedure and they might often have nothing whatever to do with financial considerations.
MR JACKSON: Yes, your Honour, that is so. As the decisions recognise, on the one hand, that there is a freedom to choose one’s reproductive life, or as put in various ways, but having said that, it does not follow that the results involve a payment by the – or liability to damages in relevant respects.
Could I invite your Honours to note footnote 2 on page 414 where there is a comment on the dissenting judgment and it is said about four or five lines into it:
The issue of awarding damages for the birth of a healthy child was unknown to the common law. In answering the certified question on measure of damages, we have attempted to adopt a rule that is consonant with that chosen by thirty other jurisdictions.
Then they refer to the fact that the constitutional issue sought to be raised is irrelevant. I should say, your Honours, the question was answered in the way in which we have suggested.
Your Honours, I wanted to refer also, if I may, to a decision in MA v United States which is behind tab 25 in that book. Your Honours will see that this was a decision where the – this is at page 852, immediately under the heading “OPINION” where the court was asked to certify whether a cause of action existed for a physician’s negligent failure and, if so, the scope of recovery. The “scope of recovery” issue, your Honours, is dealt with at page 854 and in the fifth ‑ ‑ ‑
HAYNE J: Sorry, Mr Jackson, what tab did you say?
MR JACKSON: Tab 25, your Honour. It is MA v United States.
HAYNE J: Not in mine, but go on.
MR JACKSON: Behind 25, your Honour.
HAYNE J: Go on, Mr Jackson. We will repair it.
MR JACKSON: Your Honours, at page 854 in the right column it is said:
A harder issue is whether the costs of raising a healthy child may additionally be awarded and, if so, whether these damages should be offset by the benefits of parenthood.
I have a copy of that for your Honour. Your Honours will see in the last paragraph on that page there is a summary of the cases and then at the top of the next page:
States denying childrearing expenses advance two principal rationales: first, the fear that children might someday suffer harm upon learning that they were not wanted and that a person other than a parent funded their upbringing; second, the belief that a normal, healthy child should not be regarded as an injury . . . Courts allowing recovery . . . disparaged each of these rationales.
Now, your Honours will see that the court took the view, at page 856, in the first new paragraph on that page that:
no compensation for expenses or other damages related to rearing a healthy child may be allowed.
One of the cases, your Honours – it is referred to in footnote 11 as setting out the rationale that a normal, healthy child should not be regarded as an injury is Cockrum v Baumgartner 447 NE 2d 385 and, your Honours, that case is one of the cases, I am sorry to say, behind tab 24. That is the last of the cases to which I wish to take your Honours, about a third of the way through.
KIRBY J: Justice McMurdo rather suggests that it is very unreal to think that within a family there would not be discussion about what happened if the operation had failed. I mean, I must say I thought what her Honour said was right there. The first of those – I can understand the second. I think that is a much stronger basis, but the first that there would not be discussion within a family that there had been a sterilise operation and it went wrong, that that would not be talked about within a family over the lifetime of the child seems totally unreal, at least on my understanding of family life.
MR JACKSON: Your Honour, I will come to this a little later, but we have not suggested in our written submissions that this is a dominating view and we refer to ‑ and I will come back to it in a moment ‑ paragraphs 44 to 47. I say I will come back in a moment; a little later if I may.
Your Honours, I was going to refer to Cockrum v Baumgartner and your Honours will see the issue in the case set out at page 387 in the paragraph numbered 1 in the left column where it said:
The only issue is whether the trial court erred in dismissing the counts in which the plaintiffs sought to recover as damages the future expenses of rearing the child.
There is then, your Honours, a summary in the next column of the various decisions, but it refers in the last paragraph on 387 to the fact that:
In a substantially greater number of jurisdictions, however, courts have denied recovery in suits for costs of rearing a child.
There is then a list of those and your Honours will see at that point ‑ and on page 388 in the first new paragraph on that page, there is a summary of some of the reasons that have been given in the decisions and then, your Honours, in the next paragraph, it is said:
Too, many courts have declared an unwillingness to hold that the birth of a normal healthy child can be judged to be an injury to the parents. That a child can be considered an injury offends fundamental values attached to human life. This was expressed with some sentimentality in Public Health Trust v Brown –
and your Honours will see the extract set out in the remainder of that page.
Your Honours will also see in the reference to Beardsley v Wierdsma at the bottom of page 388 that there is a reference to the benefits approach, namely:
that the benefits of the birth of a healthy, normal child outweigh the expense of rearing a child.
Your Honours, that is referred to in the passage quoted in the left column of page 389.
Then finally, your Honours will see a reference of Terrell v Garcia, and your Honours will see the quotation in the left column at page 389:
“[A] strong case can be made that, at least in an urban society –
this is the matter your Honour Justice Hayne put to me this morning –
the rearing of a child would not be a profitable undertaking if considered from the economics alone. Nevertheless . . . the satisfaction, joy and companionship which normal parents have in rearing a child make such economic loss worthwhile.
Your Honours will see that elaborated upon through the remainder of that paragraph going to the top of the page in the right column.
Finally, your Honours, one then sees the view ultimately adopted by the court in the next paragraph:
We consider that on the grounds described the holding of a majority of jurisdictions that the costs of rearing a normal and healthy child cannot be recovered as damages to the parents is to be preferred. One can, of course, in mechanical logic reach a different conclusion, but only on the ground that human life and the state ‑ ‑ ‑
GUMMOW J: Why is the word “mechanical” used?
MR JACKSON: I am sorry.
GUMMOW J: What is the force of the word “mechanical”?
MR JACKSON: Well, I think it simply refers, your Honour, to the view that one has reasonable foreseeability, causation and expense.
GUMMOW J: Yes.
GLEESON CJ: Out-of-pocket expenses.
MR JACKSON: No, your Honour, what is being referred to there, I think, is all expenses, including the costs ‑ ‑ ‑
KIRBY J: I think “mechanical” is a shorthand way of saying, without reference to the public policy issue which intervenes like a thunderbolt to prevent logic from leading to a consequence which, in the end, is counter‑intuitive and offensive.
MR JACKSON: Yes, I think that is so, your Honour, yes.
GLEESON CJ: But they are confusing two different notions, are they not? To say that the birth of a child cannot be treated as an injury is inconsistent, is it not, with the proposition that I understand you to accept, that the first respondent in this case can get damages for pain and suffering relating to childbirth. That was an injury. It seems to me that it is one thing to say the birth of a healthy child can never be regarded as an injury and a different thing to say the costs of providing food, clothing, shelter and education to a growing child constitute a form of economic loss. Maybe both propositions are right, maybe both propositions are wrong, but they do not necessarily march in step, do they?
MR JACKSON: Your Honour, I do not know, with respect, that that is quite what was being said. What was being said, in effect, was that it is possible, if one simply applies the reasonable foreseeability test and what follows from it, to say that the expenditure in feeding, and so on, a child is something which flows from the negligence, but what they seem to be going on to say then is that one can reach that conclusion, but only on the ground that human life and the state of parenthood carrying with it the need to provide for the children is a compensable loss. What they say then, your Honours, is that:
In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization.
GUMMOW J: That would be inconsistent with Roe v Wade, would it not, that last sentence, I imagine? Perhaps they are running against your office in Illinois.
MR JACKSON: Your Honour, it is respect for life once born. Perhaps I will put it that way, life once born.
KIRBY J: The very essence of it is in those last two sentences. It is:
In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilisation.
That is really what you are ‑ ‑ ‑
MR JACKSON: Your Honour, that really seems to be a paraphrase of the shorter expression:
only . . . “on the ground that human life and the state of parenthood are compensable losses.”
Your Honours, I will not attempt, of course, and I do not think I would be permitted to, to go through the United States cases in detail. What we do submit is that they demonstrate that in a community not unaccustomed to litigation there has been a very, very solid majority of decisions across the nation recognising that one could apply a notion and a notion of simply following things through and arrive at a result making this expenditure into damage.
GUMMOW J: Yes, but the contrary view in Baumgartner is put in the dissenting judgment at the bottom of 392, in the left‑hand column of 392, where the phrase “mechanical logic” is taken up which was referred to. Then, in the last two or three sentences, carrying one over to Griswold and Roe, it puts another point of view and there it is.
MR JACKSON: Your Honour, I do not suggest that there are not two views over it. In fact, there is more than two views.
GUMMOW J: There are some American cases, I think, in which the sibling chooses the position of a sibling being deprived of its fair share of parental affection because it has to be shared around, now, more siblings.
MR JACKSON: That is so. We have referred to that, your Honours, in our written submissions and your Honours will see that adverted to in paragraphs 25, 26 and through to 28.
GUMMOW J: Yes.
KIRBY J: The judges in dissent did not like those words “mechanical logic” at page 392.
MR JACKSON: No. Your Honour, that is one of those things that happens and with perhaps more enthusiasm in the United States than here.
HAYNE J: May we take it, though that thesis underlying any action of this kind that is instituted will necessarily be that the plaintiff proposes to rear and support the child to adulthood and in the course of that establish a valuable parent/child relationship?
MR JACKSON: It would have to be ‑ ‑ ‑
HAYNE J: That is, can we put out of consideration those fractured relationships to which reference was made earlier?
MR JACKSON: It is, with respect, your Honour, difficult to do so. What I mean by that is that one has a situation where the issue arises, in a sense, because a claim is made in the first place. Now, the nature of the claim that is made may be one that says, “I have to bear the costs of bringing up the child, a lovely child, didn’t want it, but here it is and wouldn’t give it up for anything now” – to use that expression – and that, I suppose, is the most likely case. But, your Honours, not all children have as benign a relationship as that with their parents or with one of the parents or at all times. It may be that it is said the damages should be more than that, “Because it has cost me a lot more. I have had things, for example, broken by the children. I have had windows in the house broken, that the child at a young age had wild parties. It has cost me a fortune.”
GUMMOW J: Or the mother says she has had to give up some career.
MR JACKSON: Indeed, your Honour.
HAYNE J: Yes, but will the underlying thesis for the action ever be other than, “I propose to rear this child and establish a proper relationship with it”?
MR JACKSON: Your Honour, that will be the most common thing, but it may well be that there will be cases where what is sought to be said is, “I will endeavour to provide for this child”, which may not be quite the same thing. If one took a case where a child was happier living with a grandparent, which can sometimes happen after unpleasant divorces, for example, a child is happier living with a grandparent but the parent is the one who provides the money for the grandparent to look after the child.
Your Honour, the permutations of lives really give rise to the possibility that there may be a number of potential plaintiffs in respect of a particular person. If one took the case, for example, of a child born but the parents killed in a car crash shortly after the child’s birth but the child is brought up by a brother or a sister or grandparents as the case may be, the actual expenditure for the bringing up of the child coming from the grandparents. It would seem an odd thing if there is to be recovery in respect of such costs that the grandparents or the person bringing up the child would not be able to recover because presumably it would be reasonably foreseeable that someone has to do so.
GLEESON CJ: Now that husband and wife are no longer one, is it possible for husbands to sue their wives for negligence?
MR JACKSON: Yes, your Honour, yes.
GLEESON CJ: In the United States is there any example of husbands suing their wives for negligently falling pregnant?
MR JACKSON: Your Honour, I am sure there are. There are certain to be. I do not know of any but I will ‑ ‑ ‑
GLEESON CJ: It happens.
MR JACKSON: Yes.
GLEESON CJ: And imposes financial burdens on a husband.
MR JACKSON: Your Honour, there also is of course the curious situation – we have adverted to this in one of our paragraphs in our written submissions – where we assume that because say of section 3 of the Child Support Act each parent is liable to maintain the child, but it may well be that one parent does not want to sue, another parent does.
Equally, the situation which can arise is that in respect of the child one parent has a very good relationship with it, the other a relatively strained and poor one. Now, in circumstances of that kind, one has some difficulty in applying a benefits rule. It is very difficult as a practical matter to work it out.
KIRBY J: It may be difficult to work out, but the fact is that for most people a healthy child would be perhaps the result of an unwanted pregnancy but, nonetheless, a source of joy, fulfilment and happiness within the family unit. It has an economic downside, but I just do not really for the moment see why you would not, difficult though it may be, be able to have some way of leaving it to judges and juries to say, “Well, you have to take in the economic consequences, but you have to take into account the fact that a child is now born, the parents love the child and this is a part of the reality of the consequence of what has happened. Take that into account.” Why is that not a viable approach?
MR JACKSON: Well, your Honour, because in a sense one is speaking about something that is largely imponderable, in our submission. What happens if one ‑ ‑ ‑
KIRBY J: So is the economics. The child might die in a car accident and yet you have done the imponderable. You have worked out what the economics of sending the child to school and clothing and feeding the child. All of these things are difficult and imponderable, but if they are parts of the consequences, why do you not have to work it out?
MR JACKSON: Your Honour, the evidence in this case demonstrates that it may be tiresome to work it out but it is perfectly possible to work out on the basis of costs today what is an appropriate figure for the future.
McHUGH J: Perhaps your answer to Justice Kirby is one that does not help you generally, but it is simply that it is contrary to principle to set off factors that are different in character from those which are the subject of the compensation. If a parent brings a nervous shock action for the death of a child, I have never known it ever to be suggested that it should be offset against the damages the money saved for supporting the child in the future. Similarly, in a compensation or relevance action nobody suggests that the wife’s damages should be reduced because she does not have the inconvenience of looking after her husband.
MR JACKSON: Your Honour, I accept to some ‑ ‑ ‑
McHUGH J: You cannot set it off because they are different in character. That was always my understanding of when you could ‑ ‑ ‑
KIRBY J: They are both part of the character of the damage that has been suffered as a consequence of breach of duty.
GLEESON CJ: Assuming in the first place that it is damage.
MR JACKSON: Yes.
KIRBY J: I have assumed that. I have moved now to the next step in the logic. Anyway, you are still back with the case ‑ ‑ ‑
MR JACKSON: Sorry, your Honour.
GLEESON CJ: What have the Europeans done about this?
MR JACKSON: Your Honour, there is perhaps a slight difference of view between us on the European position. We have referred to it in our written submissions and your Honours will see that set out in a ‑ ‑ ‑
GUMMOW J: There have been some contortions in France.
MR JACKSON: There have, your Honour. It is referred to in the article which is in our footnote 48 and that article, I think, is in our material.
KIRBY J: Which tab?
MR JACKSON: Sorry, your Honours, I am looking for it now.
KIRBY J: So France is right up the back.
GUMMOW J: One of the difficulties of looking at European countries is that perhaps the quantum tends to be small in these recoveries.
MR JACKSON: Yes, your Honour. That may not be in our materials.
KIRBY J: There is behind 37, I think, something from the Cour de cassation, France.
MR JACKSON: I think that may be the case, as distinct from the article.
GUMMOW J: It is your footnote 58.
MR JACKSON: Your Honour, can I check that and give your Honour a copy of the article of that. I will check where it is.
HEYDON J: Is it “Analysis” in 6 Edinburgh Law Review?
MR JACKSON: Yes, your Honour, yes, tab 40. The summary is at page 250, your Honour. Now, your Honours, I was going to move next to the position in the United Kingdom and there, of course, the issue reached the House of Lords in McFarlanev Tayside Health Board [2000] 2 AC 59. That was a failed vasectomy case and, your Honours, may I – I propose to go to the reasons and to go as quickly as I can to the most relevant parts of them. First of all, Lord Slynn ‑ ‑ ‑
GUMMOW J: Now it is nearly 4.15 pm. Can I just interrupt you, Mr Jackson. There has been a quite significant, perhaps, article in the Modern Law Review on this case in November 2002. You may not have it, but it may be useful if you look at it overnight. It is volume 65 page 83, “Misconceptions about Wrongful Conception”, it is called. It has a detailed analysis of the case.
MR JACKSON: Yes.
McHUGH J: Read it after dinner.
KIRBY J: It is rather critical.
MR JACKSON: Yes, your Honour.
KIRBY J: It rather suggests that there are as many ratio decidendi principles in it, as there were in Northern Sandblasting v Harris in this Court.
MR JACKSON: Your Honour, not being successful in that case, in Northern Sandblasting v Harris, and having made some observations about it from time to time, we would regard it as, with respect, somewhat different from the present case.
Your Honour, I was going to refer to that decision. Perhaps if I could pass over until tomorrow in the light of what your Honours have said and I will endeavour to put in the most encapsulated form what is said in relation to it. But, could I say, your Honours, can I just go very briefly to the position in Canada. There is the decision of Justice Lax ‑ ‑ ‑
CALLINAN J: It is mentioned in Tayside, I think. All of their Lordships mention it there, I think.
MR JACKSON: It is, your Honour.
KIRBY J: Behind tab 30.
KIRBY J: Behind tab 30.
MR JACKSON: Yes, thank you, your Honour, I am sorry, behind tab 30. It is Kealey v Berezowski 136 DLR (4th) 708 and, your Honours, it is a decision of Justice Lax and her Ladyship – I realise I have to say I noticed in the issues, given the wrong sex by one of the members of the House of Lords in McFarlane – dealt with the issue at some length. In the end she arrived at the conclusion that these types of damages were not recoverable, except that she was of the view that I adverted to your Honour the Chief Justice before, that they might be recoverable in some circumstances, depending upon the basis for the sterilisation operation having been carried out in the first place. Your Honours will see that at page 741 and, in particular, at page 741 in the paragraph commencing between b and c:
Life is about choices and not everything in life is predictable or planned.
Your Honours will see the conclusion she arrived at there and then left open the possibility in other cases where the “sterilisation was sought to protect a mother’s health” et cetera.
Your Honours, that is the leading case, as it were, so far as Canada was concerned at that time and since then there have been two other decisions which, if this is a convenient time, I might mention tomorrow.
GLEESON CJ: Now, I ask this question not for the purpose of hurrying anybody up but only so that I can give an indication to people in the next cases. How long do you expect to be?
MR JACKSON: I will be an hour, your Honour, I expect to be an hour.
GLEESON CJ: Mr Walker.
MR WALKER: Perhaps the better part of two hours, your Honour.
GLEESON CJ: So that we can safely say not before 2.15?
MR WALKER: Yes, your Honour.
MR JACKSON: Yes, your Honour.
GLEESON CJ: Very well then, we will say that we will not take any case beyond this before 2.15 tomorrow and we will adjourn until 10.15 tomorrow morning.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 12 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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Duty of Care
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Causation
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Negligence
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Remedies
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