GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
STEPHEN ALFRED CATTANACH & ANOR APPELLANTS
AND
KERRY ANNE MELCHIOR & ANOR RESPONDENTS
Cattanach v Melchior [2003] HCA 38
16 July 2003
B22/2002
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Queensland
Representation:
D F Jackson QC with C Newton for the appellants (instructed by Deacons)
B W Walker SC with M E Eliadis for the respondents (instructed by Shine Roche McGowan)
Interveners:
R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
C J Kourakis QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cattanach v Melchior
Negligence – Medical negligence – Negligent advice following sterilisation procedure – Birth of child – Damages – Whether damages recoverable for past and future costs of raising and maintaining child until the age of 18 years – Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child.
Public policy – Family relationships – Negligent advice following sterilisation procedure – Birth of child – Damages – Whether birth of child is a legal harm for which damages may be recovered – Whether departure is required from ordinary tortious rules as to causation and economic loss.
Damages – Negligence – Medical negligence – Negligent advice following sterilisation procedure – Birth of child – Whether recovery limited to damages for pain, suffering, inconvenience and costs of pregnancy and childbirth – Whether additional damages recoverable for past and future costs of raising and maintaining child until the age of 18 years – Whether absence of physical injury to father of child indicates that damage amounts to pure economic loss – Whether unplanned pregnancy constitutes injury to mother – Applicable rules governing recovery in such a case – Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child – Whether recovery limited to cases involving extra costs caused by disability of parent or child.
GLEESON CJ.
The issue
If, in consequence of medical negligence, a couple become the parents of an unintended child, can a court, in an award of damages, require the doctor to bear the cost of raising and maintaining the child?
Such a question has divided judicial opinion in many countries. Recently, the House of Lords held that, according to the laws of England and Scotland, the answer is no[1]. At least to the present time, that is also the preponderant view in North America. The reasons for judgment of other members…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cattanach v Melchior [2003] HCA 38
Case
[2003] HCA 38
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by Dr Cattanach and the State of Queensland against a judgment of the Queensland Court of Appeal. The respondents, Mr and Mrs Melchior, had sued Dr Cattanach, a specialist obstetrician and gynaecologist, and the State (as the successor to the relevant health authority) for damages arising from the birth of their third child. Dr Cattanach had performed a sterilisation procedure on Mrs Melchior in 1992, but she subsequently gave birth to a healthy child in 1997. The Melchiors claimed damages for the costs associated with raising and maintaining this child until the age of 18.
The central legal issues before the High Court were whether damages were recoverable for the past and future costs of raising and maintaining an unintentionally born child, and whether any such award should be reduced by reference to the benefits and pleasures derived from the child. The court was required to consider whether the birth of a child, in these circumstances, constituted a legal harm for which damages could be recovered, and whether ordinary tortious rules regarding causation and economic loss applied, or if a departure was necessary due to public policy considerations surrounding family relationships.
A majority of the High Court, by dismissing the appeal, upheld the decision of the Queensland Court of Appeal. The reasoning focused on the established principles of negligence and damages. The court acknowledged that while the birth of an unintended child results in financial costs, it also brings benefits and pleasures, making a purely financial assessment of harm problematic and potentially indeterminate. However, the majority concluded that the law of negligence, as it stood, permitted recovery for the financial costs of raising an unintentionally born child, even in the absence of physical injury to the parents. The court rejected arguments that such claims should be limited to cases involving disability or that the benefits of parenthood should automatically offset the costs. The court found that the claim, as presented, was not an unrecoverable instance of pure economic loss, but rather a claim for consequential economic loss flowing from a negligent act that resulted in an unintended birth.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The argument for the appellants, and some of the reasoning in McFarlane v Tayside Health Board[5], points to an apparent incongruity. To say that, as a result of the birth of an unintended child, the parents have an extra mouth to feed, is true. But it is a small part of the truth. Except for people who live at the most basic level of subsistence, it is an obviously incomplete description of the consequences of parenthood. It is incomplete even as a description of the financial consequences. It is not difficult to think of cases in which the birth of a child, and the formation of a parent-child relationship, could have serious effects upon the future earning capacity of a mother, or a father. There are parents for whom the cost of feeding and maintaining an unintended child would be of minor importance compared to other financial consequences. Furthermore, the financial consequences of the birth of a child may extend beyond those which directly affect the parents. The child's siblings, for example, might be affected; in some cases, substantially. Their prospects of inheritance may be diminished. Or their parents may have less money available to provide them with financial assistance. The incongruity is said to lie in selecting, out of the lifelong, and manifold, consequences of the birth of a child, a few particular financial incidents of the parent-child relationship. As the point was expressed in argument in McFarlane[6], the claim focuses only on one aspect of the existence of a child, namely, the child's financial needs until adulthood, and involves a partial and selective approach to the results of the child's birth and existence. Whether the law permits, and how it deals with, such selectivity is an issue to be addressed. Whatever be the correct response to that issue, it cannot be disposed of as though the dispute in the present case concerns an item of consequential pecuniary loss incurred, or to be incurred, by a plaintiff suing for damages for personal injury[7]. If that were not otherwise clear, it is made so by the role of Mr Melchior. Only by overlooking the form of the claim and of the order that was made, by disregarding Mr Melchior altogether, and by treating reproduction as a form of personal injury to Mrs Melchior, could the issue be so regarded. That is not the way the case was dealt with by the trial judge, or any member of the Court of Appeal of Queensland. This Court must deal with the claim that was made, and the judgment that is under appeal. Mr Melchior cannot be ignored as a faintly embarrassing irrelevancy. His role is one of the defining features of the claim as it was presented. It was a joint claim, and joint damages were awarded.[5][2000] 2 AC 59.[6][2000] 2 AC 59 at 62.[7]cf Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), Ch 4.The facts and the proceedings The issue in this Court is narrower than the issues that arose for determination by the trial judge or the Court of Appeal. Mr and Mrs Melchior married in 1984, when Mrs Melchior was aged 32. They had a child in 1985, and another in 1988. In 1991, they agreed to have no more children. Mrs Melchior explained in her evidence that they had two healthy children, and were quite happy with the size of their family. She did not wish to continue taking oral contraceptives. Her health was good. The couple had planned their finances around bringing up two children. Mr Melchior had a medical condition that caused him some concern about its possible transmission to a male child, but that concern turned out to be misplaced. It was a factor in his agreeing to some form of sterilisation, but, when it came to the point, according to Mrs Melchior, he "kept on procrastinating". She decided to do something about it herself. She consulted a general practitioner, who referred her to Dr Cattanach.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HUGH AND GUMMOW JJ
(dissent)
One of the grounds upon which "wrongful life" claims by children have been rejected is the impossibility of making a rational or fair assessment of damages[46]. A similar difficulty is encountered in awarding damages for loss of expectation of life[47]. The indeterminate nature of the financial consequences, beneficial and detrimental, of the parent-child relationship has already been noted. In deciding whether, in the contemplation of the law, the creation of that relationship is actionable damage, it is material to note that it is unlikely that the parties to the relationship, or the community, would regard it as being primarily financial in nature. It is a human relationship, regarded by domestic law and by international standards as fundamental to society. To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible.[46]McKay v Essex Area Health Authority [1982] QB 1166.[47]See eg Skelton v Collins (1966) 115 CLR 94 at 130 per Windeyer J.Conclusion The claim under consideration displays all the features that have contributed to the law's reluctance to impose a duty of care to avoid causing economic loss. The liability sought to be imposed is indeterminate. It is difficult to relate coherently to other rules of common law and statute. It is based upon a concept of financial harm that is imprecise; an imprecision that cannot be concealed by an arbitrary limitation of a particular claim in subject matter or time. It is incapable of rational or fair assessment. Furthermore, it involves treating, as actionable damage, and as a matter to be regarded in exclusively financial terms, the creation of a human relationship that is socially fundamental. The accepted approach in this country is that "the law should develop novel categories of negligence incrementally and by analogy with established categories"[48]. The recognition of the present claim goes beyond that, and is unwarranted.[48]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481 per Brennan J. The appeal should be allowed. The orders made by the Court of Appeal (except as to costs) should be set aside. The appellants' appeal to that Court should be allowed in part. The judgment of Holmes J should be varied by setting aside that part which orders the appellants to pay the respondents the sum of $105,249.33. Mc By majority (McMurdo P and Davies JA; Thomas JA dissenting), the Queensland Court of Appeal[49] dismissed an appeal against a judgment in the Supreme Court of Queensland (Holmes J)[50] awarding damages against the first and second defendants, Dr Cattanach and the State of Queensland. Dr Cattanach is a specialist obstetrician and gynaecologist. The plaintiffs, Mr and Mrs Melchior, are husband and wife. In this Court, they are the respondents and Dr Cattanach and the State are the appellants.[49][2001] QCA 246.[50](2001) Aust Torts Rep ¶81‑597. It was admitted on the pleadings that the State was the statutory successor to the Brisbane South Regional Health Authority, which had operated the Redland Hospital. Dr Cattanach was a consultant obstetrician and gynaecologist at the Redland Hospital where, on 13 March 1992, he performed on Mrs Melchior a sterilisation procedure. Thereafter, in 1997, Mrs Melchior gave birth to the couple's third child, a son. At the time of the trial, the child was a healthy, active three year old.