McDonald v Sydney South West Area Health Service

[2005] NSWSC 924

CITATION:	McDonald v Sydney South West Area Health Service [2005] NSWSC 924 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26, 27 and 28 April 2005
JUDGMENT DATE :	16 September 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) There will be a verdict and judgment in favour of the plaintiff in the sum of $65,500; (2) Costs are reserved.

CATCHWORDS:

Damages - medical negligence - father's costs of raising a child

LEGISLATION CITED:

Child Support (Assessment) Act 1989 (Cth) - s 66T
Civil Liability Act 2002 (NSW) - s 5, s 71

CASES CITED:

Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Bryan v Maloney (1995) 182 CLR 609
BT v Oei [1999] NSWSC 1082
Carl Zeiss Stiftung v Rayner and Keller Ltd (No 2) [1967] 1 AC 853
Cattanach v Melchior (2003) 215 CLR 1
Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161
Harvey v PD (2004) 59 NSWLR 639
Jaensch v Coffey (1984) 155 CLR 549
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McFarlane & Anor v Tayside Health Board [1999] 4 All ER 961
Perre v Apand Pty Ltd [1999] HCA 36, (1999) 73 ALJR 1190
Pledge v RTA (2004) 78 ALJR, 205 ALR 56
Pyrenees Shire Council v Day [1998] HCA 3, (1998) 192 CLR 330
Rogers v Whitaker (1992) 109 ALR 625
Ruddock v Taylor (2003) 58 NSWLR 269
Sutherland Shire Council v Heyman (1985) 157 CLR 424

PARTIES:

Richard Michael McDonald
(Plaintiff)

Sydney South West Area Health Service
(Defendant)

FILE NUMBER(S):

SC 20233/2003

COUNSEL:

Mr R Pincus
(Plaintiff)

Mr S A Woods
(Defendant)

SOLICITORS:

Mr W Cortese of Koffels
(Plaintiff)

Ms R M Simpson of F Allpress
(Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 16 SEPTEMBER 2005

20233/2003 - RICHARD MICHAEL McDONALD v
SYDNEY SOUTH WEST AREA
HEALTH SERVICE
JUDGMENT (Damages – medical negligence
- father’s costs of raising a child)

1 HER HONOUR: The main issue in these proceedings is whether the father of a child born after the mother had a sterilisation procedure performed is entitled to recover the costs of raising his child. On 4 September 2000 Dr Tam performed a sterilisation procedure on Ms Julia Foster at Fairfield District Hospital. At that time Ms Foster gave birth to her sixth child, Bailey Richard Foster. Dr Tam was employed by the defendant Sydney South West Area Health Service. Ms Foster is the mother of Justin Foster born on 20 February 2002. The plaintiff is the father of Justin Foster. The plaintiff sues the defendant in negligence seeking the costs of raising Justin. Ms Foster brought separate proceedings against Dr Tam which were settled prior to these proceedings being commenced.

2 Ms Foster and Mr McDonald are the natural parents of other children namely April Michelle born 4 May 1993, Joshua James born 12 May 1998, Bailey Richard born 4 September 2000 and Justin. Both Ms Foster and Mr McDonald have children from their previous marriages.

3 Sydney South West Area Health Service is responsible for the hospital at which Dr Tam attended Ms Foster. The statement of claim alleges that the defendant was negligent in that, firstly, Dr Tam failed to advise and warn in relation to sterilisation procedures; and secondly, that the tubal ligation was not performed properly in that the Filshie clip on the left fallopian tube was not applied so as to completely occlude the tube [SC 3/9/03]. The defendant denies liability and pleads that this action is subject to the principles of res judicata and/or issue estoppel [AD 26/4/05].

The factual matrix

4 There were two consultations involving Ms Foster and Dr Tam, the first occurred on 18 August 2000 when Richard McDonald was present, the second occurred in the anaesthetic bay on 4 September 2000 when Mr McDonald was not present.

Consultation between Julia Foster, Richard McDonald and Dr Tam on 18 August 2000

5 At the time this consultation took place neither Ms Foster nor Richard McDonald considered themselves in a de facto relationship. Mr McDonald gave evidence that at that time there was no sexual relationship between them [t 21.17-43]. Ms Foster’s evidence was that they were living in the same room of the house [t 38.5-7]. Thus, Mr McDonald and Ms Foster gave conflicting evidence as to whether or not they were in a sexual relationship at the time of the consultation on 18 August 2000. But it is more important when determining whether the hospital owed Mr McDonald a duty of care to ascertain what knowledge Dr Tam had acquired about their relationship.

6 As previously stated, the only consultation that took place between Julia Foster, Richard McDonald and Dr Tam occurred on 18 August 2000. Each of these witnesses gave evidence and was cross examined about this consultation. Prior to this meeting taking place Ms Foster and Mr McDonald were aware that the child was to be delivered by way of caesarean section. As it turned out, the purpose of this consultation was twofold, firstly, to discuss the method of birth of the child; and secondly to discuss a tubal ligation.

7 From all accounts, Mr McDonald did not play a large part in the consultation. Dr Tam did not recall him being present at all. According to Mr McDonald, Dr Tam’s English was very broken and hard to understand. After Dr Tam clinically reviewed Ms Foster and the birth of the child by mode of caesarean section was discussed Julia Foster said to Dr Tam “I am considering having sterilisation. What would you recommend?” Dr Tam answered that “he recommended a ligation and sterilization, done at the time of pregnancy because then there would be no need to have two operations.” The only question the plaintiff says he asked was “Is there any complications by doing that and not leaving it to a later date, when your womb contracts and everything goes back to normal.” Dr Tam answered that “that’s a non issue, not to worry about that … that’s fine, there’s no need to do the hysterectomy – sterilisation with the caesarean section.” [t 5.5-28]. It was better to do it straight away.” Mr McDonald denied that Dr Tam suggested a vasectomy and had he (Dr Tam) done so, he (McDonald) would have considered it. Mr McDonald also denied that Dr Tam gave them any advice of failure rates associated with a tubal ligation.

8 Ms Foster’s version is that she told Dr Tam that she did not want to have any more children as she had enough all ready. She gave evidence similar to Mr McDonald that Dr Tam recommended that she get her tubes tied and the best time would be at the same time as the caesarean because it would be only the one operation [t 40]. She was asked to sign a consent form. Like Mr McDonald, Ms Foster gave evidence that she was not given any advice or warnings of the kind of operation that was to be performed during this consultation.

9 However Dr Tam’s version is very different and is as follows. Prior to the consultation taking place Dr Tam has an actual recollection that the midwife gave him Ms Foster’s file and asked that he contact Ms Foster as she had failed to attend for prenatal checkups [t 127-128]. Dr Tam gave evidence that Ms Foster and the midwife were present at the consultation. The midwife was not called to give evidence.

10 At the consultation Dr Tam initially asked Ms Foster how her pregnancy was progressing. He discussed her wellbeing and the wellbeing of the foetus, whether the foetus had been moving and after that he examined her. He listened to the foetal heart. He had to recheck Ms Foster’s blood pressure, because her first reading was elevated. The subsequent reading was normal. Next according to Dr Tam they discussed the mode of delivery as she had had three previous caesarean sections. It was decided that Ms Foster was to have an elective caesarean section after she was 38 weeks pregnant [t 129.31-50].

11 After those matters had been discussed Dr Tam recalled that it was Ms Foster who raised the issue of having a tubal ligation. Dr Tam asked her had she considered any other methods of contraception and if she was familiar with all the methods of contraception that were available. Ms Foster replied that she would prefer to have a tubal ligation at the time of the caesarean section as she had had three previous caesarean sections [t 129.52-29].

12 It is Dr Tam’s evidence that he told Ms Foster that he could perform the tubal ligation at the time of the caesarean section; however, the risk of the failure rate would be slightly higher if this were done at this time. He said that as with any other operation, “any other consent that he obtained, with any surgical procedure there is a small risk of complications.” The complications he outlined were mainly being the anaesthetic complications associated with the surgery; complications of bleeding with the surgery; the complication of infection and as there are other organs inside the abdomen there was a small risk that they could be damaged when the surgery was performed. Ms Foster told Dr Tam that she accepted the risk because she did not want to have the tubal ligation at another time and have to undergo another general anaesthetic. Dr Tam conceded that his evidence of this consultation had been based on his usual practice and in the light of the notes he made.

13 Ms Foster then signed the written consent form (Ex 2) which contains the following information:

“The Doctor has also told me that
* an anaesthetic, medicines, or blood transfusion may be needed and these may have some risks;
* additional procedures or treatments may be needed if the Doctor finds something unexpected;
* complications may occur; and
* the procedure/treatment may not give the expected result, even though the procedure/treatment is carried with due professional care.
I understand that undergoing the procedure/treatment carries risks. I have had the opportunity to ask questions. I am satisfied with the explanation and the answers to my questions.”

14 From this evidence, I accept that Dr Tam told Ms Foster and the plaintiff that the “risk of failure rate would be slightly higher if done at the time of caesarean section.” Ms Foster had made up her mind that she wanted a tubal ligation as she did not want to have any more children. Dr Tam did not quantify the failure rate on a percentage basis. The written consent form warned Ms Foster that firstly, the procedure may not give the expected result even though it would be carried out with due professional care; and secondly, that the procedure carried risks. Ms Foster acknowledged in the written consent form that she had the opportunity to ask questions and was satisfied with the answers to her questions.

15 As previously stated, Dr Tam does not remember whether there was another person in the room who may or may not have been the father. Shortly after giving the evidence to that effect the following exchanges took place:

“Q. You wouldn't have had this conversation unless he was the sexual partner and or father, the conversation about sterilisation, in front of a stranger, would you?
A. No, I wouldn't. [t 147.58; t 148.1.6]

Q. You knew full well that if you didn't succeed in giving good advice and treatment and actually causing her to not have any more children that the father would be exposed to a necessity to raise this child or to contribute to its raising, you knew that, didn't you?
A. If they fall pregnant and they have the children then the father would have the responsibility to raise the children, is that what you are asking?

Q. Yes. You knew that at that time?
A. Yes. [t 148.24-34]

Q. You knew that not only if she got pregnant after your treatment, as a result, for example, of failure to give the right advice or treat her properly, that both she and the father would suffer the detriment of having to raise an extra child?
A. Yes.

Q. That's the very thing she and he, if he was there, was asking you to consider?
A. Okay.” [t 148.44-53]

16 I find that it is more likely than not on the balance of probabilities that Mr McDonald was present at this consultation. I also make a finding that the plaintiff asked Dr Tam about the risks to Julia Foster’s health if the tubal ligation was to be performed at the same time as the caesarean section.

The anaesthetic bay on 4 September 2000

17 Ms Foster’s evidence is that she did not speak to Dr Tam on the day of the caesarean [t 52.10]. Dr Tam’s version is that he next saw Ms Foster at anaesthetic bay inside the operating theatre. He said hello to her. He asked Ms Foster if she was sure she wanted to have her tubes tied at the time [t 131.50-54]. She confirmed that she wanted to have the tubal ligation and asked him what method he was going to use to tie the tubes. He responded that it was his usual practice to perform a partial salpingectomy, which meant that he would cut out a segment of the tubes.

18 Dr Tam had an actual recollection of this conversation with Ms Foster. It stuck in his mind because Ms Foster asked him the method he was going to use and this was an unusual question. After he mentioned the method he would be using (which was a partial salpingectomy) she requested him to use the clips instead of the salpingectomy method. This prompted Dr Tam to asked Ms Foster why she wanted him to use the clips as opposed to the salpingectomy. Dr Tam remembers clearly, that Ms Foster responded that she knew if she needed to have her tubes reversed it would be easier and that the success rate was easier if he use the clips rather than using the salpingectomy method. He asked her again whether “what she is thinking of the success rate for the reversal whether it was the right time for us to perform the tubal ligations.” In the operation report Dr Tam wrote that the patient requested him to use the clips. This notation was something that he did not often write in the operation reports.

19 The operation report (Ex 5) confirms this. Dr Tam wrote “Lower segment caesarean section, or "LSCS", "application of Filshie clips", and in bracket, "as requested by patient". After Ms Foster asked Dr Tam about using the Filshie clips he discussed this with Dr Lai (the VMO) who agreed that it was okay to proceed with the Filshie clips [t 133.32-38]. It is my view that as Dr Tam made a contemporaneous note of the application of Filshie clips, this is more likely on the balance of probabilities to have occurred. I also accept Dr Tam’s version of this conversation at the anaesthetic bay.

20 By 3 July 2003 (over 2½ years after the operation) Dr Tam (when he prepared his report to his solicitors) stated that he knew that there was a partner involved with Ms Foster [t 147].

Failure to warn

21 There are two issues to be determined firstly, whether Dr Tam, a resident in training in gynaecology and obstetrics failed to advise and warn in relation to the sterilisation procedures; and secondly whether the tubal ligation was performed negligently in that the Filshie clip on the left fallopian tube was not applied so as to completely occlude the tube.

22 It is common ground that the hospital owed Ms Foster a duty of care. The hospital and its surgical registrar owed Ms Foster a duty of care to exercise reasonable care and skill to warn a patient of the risks associated with the sterilisation procedure as at 4 September 2000. In Rogers v Whitaker (1992) 109 ALR 625 the majority of the High Court stated (at 633-634):

“The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege”.

23 In fact, the majority of the High Court stated (at 632-633):

“In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended [Chatterton v Gerson [1981] QB 432 at 443]. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice”.

24 The common law position was modified by the Civil Liability Act 2002 (NSW) (the CLA). Division 4 of this Act concerns the assumption of risk. Section 5F defines “obvious risk” as “a risk that, in the circumstances would have been obvious to a reasonable person in the position of that person”. This includes risks that are a matter of common knowledge, has a low probability of occurring and is not prominent, conspicuous or physically observable. Section 5G reads that a person is presumed to be aware of obvious risks if the person is aware of the type or kind of risk, even if not the precise nature, extent or manner of occurrence of the risk, unless on the balance of probabilities the person proves that he or she was not aware of the risk.

25 Section 5H states that there is no proactive duty of care to warn of an obvious risk unless the person has requested advice or information about the risk from the defendant, the defendant is required by written law to warn the plaintiff or if the defendant is a professional and the risk is a risk of death of or personal injury to the plaintiff from the provision of a professional service by the defendant. However, this does not create a presumption of a duty to warn in the excepted circumstances. There is no liability for negligence for harm resulting from the materialisation of a risk that cannot be avoided by the exercise of reasonable care and skill. This does not exclude liability in connection with the duty to warn of a risk (s 5I).

26 Drs Molloy and Hinde are gynaecologists and obstetricians. Dr Wielebinski is a pathologist specialising in gynaecological pathology. All experts gave evidence and were cross examined. They all viewed two sets of photographs.

27 Dr Molloy states only that a warning has to be given that the clips are not 100 percent secure. Dr Wielebinski in her report of 3 April 2003 considered that the risk of failure of sterilisation at 2-10/1000 (for Specialists O and G) and up to 45/1000 when residents in training apply the clips. Dr Hinde in his report of 24 February 2003 agreed with Dr Molloy’s comments contained in a report dated 24 January 2003 that it is necessary to warn women that surgical procedures for female sterilisation “may occasionally fail”.

28 Dr Hinde further noted the findings of the CREST study that postpartum sterilisation was up to five times more effective than interval cases using some other means of sterilisation and that this contradicted conventional wisdom that the risk of failure of sterilisation was greater when performed at Caesarean section. However Dr Hinde conceded that the study did not include the Filshie clip and that it did include the Hulka clip, which has a different method of application. Dr Filshie also commented on these aspects of the CREST study in his article “Risk Management – Sterilisation”. Because of the different clips used in the CREST study I am of the view that is of little weight. Dr Filshie in his article “Risk Management – Sterilisation” stated that the patient should be given sufficient information about the operation to be able to give “proper, informed consent” including information on inter alia: (1) alternative methods of family planning including vasectomy, (2) the type of operation eg clips or rings, and that it should be clear in the patient’s mind that the operation is not 100% guaranteed, (4) the surgical and anaesthetic risk to the procedure, (5) the condition of the patient, and that patients who have inter alia previous abdominal scars have an increased risk of having medical or surgical complications, (7) the possibility of higher failure rate when the procedure is performed at the time of pregnancy, which has been quoted at two to three times higher than the interval rate.

29 As at 18 August 2000 being the first consultation Dr Tam was aware that Mr McDonald was either the sexual partner of Ms Foster or the father of the unborn child. Dr Tam was also aware that if he did not give good advice and treatment and Ms Foster became pregnant after the tubal ligation, then the father would suffer the detriment of having to raise an extra child.

30 At the time of this consultation Mr McDonald and Ms Foster did not consider themselves to be in a de facto relationship although they were still living in the same room [t 38]. They had previously been in a de facto relationship and had had a prior long standing sexual relationship.

31 It was Ms Foster who raised the issue of her sterilisation and said “I do not want to have any more children” and “when would it be the best time to have my tubes tied.” She also said “I do not want to have any more children as I have enough children already.” [t 39]. From this evidence, it is my view that it was Julia’s decision to proceed to have a sterilisation operation performed. It cannot be said to have been a joint decision of a couple planning their reproductive future.

32 While Dr Tam does not remember the plaintiff’s presence at that consultation, even on the plaintiff’s evidence, it is clear that he played a minor role. The only question the plaintiff asked was one concerning Julia’s welfare if both the caesarean and the sterilisation were performed at the same time. While it was Julie Foster who made, what I consider to be an independent decision to have a tubal ligation, as the plaintiff was present at the consultation was he entitled to rely upon the advice given? Dr Tam would have known that the plaintiff was there as either the father of the unborn child and/or the partner of Ms Foster. Even if he was entitled to rely upon the advice Dr Tam did not give advice that the chances of pregnancy after a tubal ligation was nil. In fact, it was Dr Tam’s evidence that he stated to Ms Foster “the risk of failure would be slightly higher if this is done at the time of the Caesarean section… she said words to the effect that she accepted the risk” [t 130.31-41]. In the light of Dr Molloy’s evidence that all that is required is a warning to be given that the clips are not 100% secure, it is my view that the advice given was acceptable. Hence in these circumstances it is my view that even if Dr Tam at the time of the consultation owed a duty of care to the plaintiff for the costs of rearing the subsequent child, Justin, he did not breach that duty of care. This claim in negligence fails.

The Filshie clips procedure

33 On 4 September 2000 the caesarean section took place and the child Justin was delivered. After the uterus was closed and haemostasis had taken place, Dr Tam inspected the pelvic anatomy. He identified two fallopian tubes and once he identified the fallopian tubes, his assistant, Dr Harasymuik, held up the proximal part of the tube and Dr Tam held up the distal part of the fallopian tubes. While Dr Harasymuik was holding the proximal part of the fallopian tube, the left tube first, Dr Tam identified an avascular window and applied a Filshie clip on to that tube in the isthmus part. Dr Tam used an applicator to put the clip on and to close and tighten it. After both clips were placed on the fallopian tubes, the position of the tubes and the position of the clips were inspected. He inspected each tube from the front and then while still holding onto the distal end of the tube he inspected the front of the anterior part of the tubes, Dr Tam turned each one around and inspected the posterior part of the tubes to ensure the clips were in the proper position. He determined that the clips were in the proper positions. After both clips were examined and they were in position, the abdomen was closed [t 133-134]. Once again, Dr Tam in giving this evidence relied on his usual practice.

34 In cross examination Dr Tam gave evidence that as a registrar trainee he had performed 15 sterilisations but he was not able to recall the number he had performed by Filshie clip application. Doing the best he could Dr Tam estimated that he had performed half or more of the 15 sterilisations by Filshie clip application [t 135.5-25].

Whether the sterilisation procedure was performed negligently

35 There is a divergence of views between the experts as to whether or not the left Filshie clip occluded the left fallopian tube. Two photographs were taken during the operation (Ex C – and 2) and four photographs taken during pathology (Ex D – 1 to 4). Exhibit D 1 and 2 are relevant as they show the left fallopian tube during pathological examination. All experts viewed coloured photograph Ex C 2 which I consider to be critical.

36 Pathologist Dr Jaworski (6 March 2002) reported on the specimens after a hysterectomy was performed upon Ms Foster (Ex B). Upon macroscopic inspection Dr Jaworski described that the stump of the right fallopian tube measured 45 mm in length and approximately 6mm in diameter. The stump of the left fallopian tube measured 50 mm in length and approximately 7mm in diameter. There was a Filshie clip present on each fallopian tube. The clips were located 5mm and 8mm from the distal end of the right and left fallopian tubes respectively.

37 Dr Jaworski took coloured photographs of both fallopian tubes. Photograph A26 showed a portion of tube distal to the left Filshie clip. Sections on microscopic examination showed smooth muscle tissue as well as a fragment of detached tubal mucosa in which there was stromal decidual change. Photograph A27 shows the tube next to and just proximal to the left Filshie clip. Microscopic examination showed sections of the fallopian tube, which show a serosal reactive mesothelial proliferation. At one edge of the section some intact tubal mucosa was noted.

38 All experts had regard to an article written by Dr G Marcus Filshie entitled “Risk Management - Sterilisation”, The Obstetrician & Gynaecologist, Vol 1 No 1, (1999), 26-32 (Ex E). Part I of the article considers other forms of sterilisation then turns to “Clips”. Under this heading the learned author stated:

“Most failures associated with the application of clips are due to faulty technique, either because the wrong structure has been clipped or because the tube had not been completely occluded.” (at 27).

39 Part two of the article is headed “Medico-Legal Aspects of Female Sterilisation”. Under the heading “Failure of sterilisation” three mechanisms of failure are identified. The first is where there is the presence of a tuboperitoneal fistula. This may be directly at the end of the proximal tubal stump, or it may possibly involve a fistula which emerges from the side wall of the fallopian tube, often secondary to endosulpingeosis. The resultant pregnancy may be intrauterine or ectopic. Fistulas are more common following cautery procedures, but have rarely been associated with mechanical methods” (at 30-31).

40 The existence of a tuboperitoneal fistula was Dr Hinde’s explanation for Ms Foster’s subsequent pregnancy. The second cause of failure of sterilisation is regeneration of a tubo-tubal fistula and the third cause is the failure of the operator to perform a satisfactory procedure. Dr Filshie considered that on the balance, if a failure of a tubal ligation occurred prior to one year it was more likely to be associated with a mis-application of the clips (at 31).

41 Dr Filshie’s article acknowledges the existence of tuboperitoneal fistulas however notes, “fistulas…have rarely been associated with mechanical procedures” (at 31); [t 113.25]. A sterilisation procedure involving the application of Filshie clips is a mechanical procedure [t 114.30]. Neither Dr Wielebinski nor Dr Molloy has ever seen a tuboperitoneal fistula [t 118.55]. Dr Hinde may have seen a tuboperitoneal fistula; he recalled an occasion where “we injected dye, and I [saw] dye issuing from the tube in somebody who was otherwise sterile” [t 163.20].

42 Dr Hinde in cross examination explained that in this case on the facts available to him the tuboperitoneal fistula (referred to in the transcript as the ‘two-hole theory’) was the most likely explanation for the pregnancy: the ovum would have dropped into the distal or ovarian end of the fallopian tube, travelled through a hole formed by a tuboperitoneal fistula in the peritoneal tissue at the point of occlusion to the proximal or uterine stump, where a second hole formed by a second tuboperitoneal fistula would have allowed passage for the ovum into the fallopian tube at the proximal or uterine end [t 195.15].

43 Dr Molloy in cross examination gave evidence that a single fistula at the distal or ovarian end of the occluded tube could lead to a fertilised ovum implanting in the peritoneal cavity and an ectopic pregnancy would ensue [t 118.40]. However, in Ms Foster’s case a uterine pregnancy ensued. This would mean that there would have to have existed a second fistula connecting the proximal or uterine end of the tube with the peritoneal cavity [t 118.45]. The existence of a single fistula is at best rare; the existence a second must be rarer still.

44 Further the ovum once in the peritoneal cavity is unlikely to have extricated itself in the absence of the fimbrial ends and cilia that exist along the tubes and serve to pick up and propel the ovum toward the uterus [t 100.15]. On this issue Dr Hinde conceded that the ovum was totally passive and its movement was attributable to other structures such as cilia [t 195.35-55]. It is my view that the ‘two-hole theory’ proposed by Dr Hinde is most unlikely.

45 Dr Molloy was of the view that photograph D2 showed that the left fallopian tube was not occluded because the clip did not extend to fully cover the tube [t 115.53]. When asked whether the fibrous material over the clip prevented any determination from the photographs as to whether these photographs showed whether the clip was all the way across the tube, Dr Molloy disagreed and stated that it was not fibrous tissue [t 117.24-30].

46 Dr Wielebinski gave evidence that it was difficult to ascertain from photograph C2 whether the clip was completely across the tube. According to Dr Wielebinski it had a little bulge but the camera light was shining on it [t 66.15-23]. She explained that the bulge could be part of the fallopian tube or could be part of the tissues around it. In relation to photograph C3 Dr Wielebinski said she was suspected that part of the fallopian tube was not clipped but she could not be sure [t 66.45].

47 I prefer the evidence of Dr Molloy. Dr Wielebinski’s gave evidence that was it was suspicious that the left fallopian clip was not clipped but that she could be sure. Dr Filshie in his article to which doctors referred stated that most failures with the application of clips were due to faulty technique. In this case, clipping the wrong structure can be discounted so that leaves the explanation that the tube had not been completely occluded. It is my view that on the balance of probabilities it is more likely that during the operation the left fallopian tube was not completely occluded by the Filshie clip. This failure to properly occlude the left fallopian tube could have been avoided by the exercise of reasonable care and skill.

48 In Pledge v RTA (2004) 78 ALJR 572; 205 ALR 56 Hayne J at 574-575 identified the two tiered test for causation and stated that there may be a policy reason that a person responsible for the cause should be held to be not liable.

49 Hayne J stated at [10]:

“The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry - the attribution of legal responsibility.3 It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable. But that kind of policy inquiry apart, it is necessary to identify the nature of the role which the conduct in question played in bringing about the damage suffered.”

50 A similar requirement is imposed by s 5D of the CLA, which provides:

“General principles

(1) A determination that negligence caused particular harm comprises the following elements:


(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).


(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:


(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

51 In Harvey v PD (2004) 59 NSWLR 639 Ipp JA (with whom Spigelman CJ agreed) applied the two tiered test for causation. His Honour considered that the “but for” test usually resolved the causation issue but that in some circumstances the second limb, the “ought” test should be applied – see Ruddock v Taylor (2003) 58 NSWLR 269 at 286 where Ipp JA confirmed s 5D.

52 According to Dr Molloy it was important that the application of the clip was checked, that it was photographed and to be absolutely sure that it was locked and in the correct position (report 26 August 2003). Dr Molloy has not personally seen any failure of Filshie clips over the last 20 years. Dr Molloy gave evidence that he believed that the left fallopian tube was not completely occluded by the Filshie clip and that this would have been apparent during the procedure to an operator with considerable experience [t 110.1; 110.19-32; 112.5-15; 113.35-115.30; 115.56-116.57]. He further stated:

“If you tell the patient that you definitely taking due professional care and you have given them a warning that there is to be a failure, then you have covered that, but it is negligent that you don't put it right across the tube when you are meant to. I think, as I have stated previously, this is due to the junior nature of the doctor who did it” (t 113.46-52)

53 In failing to fully occlude the left fallopian tube Dr Tam did not exercise reasonable care and skill, or alternatively, he was not properly supervised during the operation. It is my view that the defendant owed Ms Foster a duty of care to ensure that her tubal ligation was performed with reasonable skill and care so as to ensure that her fallopian tubes were completely occluded by the clips resulting in sterilisation. Dr Tam did not place the clip over the left fallopian tube so as to completely occlude that tube and failed to check that the Filshie clip was properly applied. This led to Ms Foster falling pregnant and thus being responsible for the raising of Justin. I find that the defendant breached its duty of care and was negligent (the factual causation). The negligence was a necessary condition to the occurrence of the costs of raising and maintaining an additional child. (s 5D(2) CLA)

54 It was common ground that the duty of care owed to Ms Foster could give rise to the existence of a cause of action for the financial damage that would be suffered as a result of a legal responsibility to raise a child - see Cattanach v Melchior (2003) 215 CLR 1 per McHugh and Gummow JJ at [90]. Thus the two tiered test in Pledge and s 5D(1) of the CLA is satisfied. But does that duty of care extend to the plaintiff the father of the child in the circumstances?

55 I should add that s 71 of the CLA has subsequently been amended so as to preclude these claims unless the child suffers from a disability.

Did the defendant owe the plaintiff a duty of care?

56 In Cattanach the issue that the High Court determined was whether Mr and Mrs Melchior were entitled to recover damages for the cost of raising and maintaining a child (Gleeson CJ at [17]). In the lower court, Mr and Mrs Melchior alleged that negligence by Dr Cattanach had caused them to become parents of an unintended child and thereby suffer damage. In that court it was held that the negligent advice and failure to warn by Dr Cattanach had been a material cause of the pregnancy and awarded damages to Mrs Melchior for loss and damages caused by pregnancy and birth, damages to Mr Melchior for loss of consortium and damages for the costs of raising and maintaining the child. The appeal by Dr Cattanach to the Court of Appeal was dismissed. The High Court gave leave to appeal only on the issue of the recoverability of damages for the cost of raising and maintaining a child. The High Court, by a 4:3 majority (McHugh, Gummow, Kirby and Callinan JJ, with Gleeson CJ, Hayne and Heydon JJ dissenting) held that in compensation for the birth of the unintended child resulting from the doctor's negligent advice and failure to warn, the couple were entitled to the damages claimed for the cost of raising and maintaining the child. The benefits received from the birth of a child were not legally relevant to the head of damage that compensates for the cost of raising and maintaining the child.

57 Although Cattanach is authority for the proposition that parents can recover the costs of raising a child, it is of little assistance in determining whether the defendant owed the plaintiff a duty of care in these circumstances. This is because in Cattanach the exact duty of care the doctor owed his patient’s husband or the issue as to why he owed that duty, were questions that were not explored in argument. Hayne J [189] stated that “Beyond saying that it is not self evident how the doctor owed Mr Melchior a duty to offer him any advice it is neither necessary nor appropriate to examine that question.”

58 Perre v Apand Pty Ltd [1999] HCA 36; (1999) 73 ALJR 1190 confirms the move away in recent years from using proximity as the unifying criterion of the duty of care - see Gleeson CJ [9]; Gaudron J [27], McHugh J [74] and [78]; Gummow J [198]-[201]; Hayne J [330]-[333]. Perre was a case arising out of a claim for negligently inflicted pure economic loss. However, there are passages in the judgment as to the ingredients of the duty of care which may have broader application. Gummow J (with whose reasons on this aspect Gleeson CJ agreed) took the approach that to determine whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties. There is no simple formula which can mask the necessity for examination of the particular facts. That this is so is not a problem to be solved. Rather, as put by Priestley JA it in Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8 ‘it is a situation to be recognised’ [198].

59 In Perre amongst the factors that Gummow J identified as justifying a finding that a duty was owed in that case were (i) the defendant’s knowledge of or ought to have known of the risk [213] and (ii) the appellants had no way of appreciating the existence of the risk to which the respondent’s conduct exposed them, thus, had no avenue to protect themselves [216]. McHugh J placed emphasis on the vulnerability of the plaintiff incurring loss as a consequence of the defendant’s conduct. His Honour considered that the defendant’s knowledge of the risk and its magnitude would be relevant in all pure economic loss cases and might be relevant in other circumstances [104], [105] and [129].

60 Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 is not concerned with a pure economic loss claim. However, its usefulness for present purposes is limited, to some degree, by the centrality of the statutory powers of the Council to the way in which their Honours decided the case.

61 In Pyrenees, Gummow J observed that the situation occupied by the Council “gave it a significant and special measure of control over the safety from fire of persons and property”. His Honour went on:

“This statutory enablement of the Shire ‘facilitate[d] the existence of a common law duty of care’ but the touchstone of what I would hold to be its duty was the Shire’s measure of control of the situation including its knowledge, not shared by Mr and Mrs Stamatopoulos or by the Days, that, if the situation were not remedied, the possibility of fire was great and damage to the whole row of shops might ensue. The Shire had a duty of care ‘to safeguard others from a grave danger of serious harm’, in circumstances where it was ‘responsible for its continued existence and [was] aware of the likelihood of others coming into proximity of the danger and [had] the means of preventing it or of averting the danger or of bringing it to their knowledge’.” [168].

62 In Pyrenees, Kirby J in determining that a duty of care was owed referred especially to the risk of danger, the latency of the defect and the inability of the claimants to protect themselves [255].

63 The question of whether a duty is owed by a health service provider to the sexual partner of a patient was considered by the English Court of Appeal in Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161. In that case the plaintiff’s boyfriend, Mr McKinlay, had undergone a vasectomy before the couple met. When they commenced their sexual relationship he told her of the procedure and of his advice that it had been successful. Subsequently the plaintiff conceived a child and became aware of the pregnancy when it was too late for an abortion. She brought proceedings seeking damages for the expenses associated with her daughter’s birth and the costs of raising her. The court found that the defendants were not in a sufficiently proximate or special relationship with the plaintiff such as to give rise to a duty of care. Emphasis was placed on the circumstance that the plaintiff was not Mr McKinlay’s sexual partner at the time the defendants advised him. At the time that the advice was given to the father of the child, the defendants had no knowledge of the plaintiff. She was not an existing partner of his, but was to be a future sexual partner. The class to which the plaintiff belonged was any woman who might be a potential sexual partner of Mr McKinlay over the span of his life. This was too uncertain a class to impose any duty of care upon persons advising Mr McKinlay as to his fertility. So the English Court of Appeal applied the sufficiently proximate or special relationship test to give rise to a duty of care, which is the test that has not found recent favour with the High Court.

64 In order to succeed, the English Court of Appeal held that the plaintiff needed to prove that the defendant knew, either actually or inferentially, that the advice communicated was likely to be acted on by the plaintiff. The court also held that the plaintiff also needed to prove reliance on the advice without independent inquiry. The purpose of advice must be either particularly specified or generally described and made known either actually or inferentially to the defendant at the time when the advice was given. Later in McFarlane & Anor v Tayside Health Board [1999] 4 All ER 961, the House of Lords held that where medical negligence resulted in an unwanted pregnancy and the birth of a healthy child, the partners were not entitled to recover the damages for the costs of the child on the basis that it was not fair, just or reasonable to impose liability for economic losses on a doctor. The High Court in Cattanach declined not follow this approach in regard to the economic loss component of the claim. But McFarlane does not assist on the issue of whether the duty of care of the doctor extends to the partner of his patient.

65 The plaintiff and Ms Foster were both present at the consultation when the tubal ligation was discussed with Dr Tam. Dr Tam admitted that the plaintiff would have only been present if he was the father of the child or Ms Foster’s partner. The doctor was also aware that if he gave the wrong advice or failed to treat Ms Foster properly, that both she and the father would suffer the detriment of having to raise an extra child. It was also foreseeable that if Dr Tam performed the operation negligently, the plaintiff would suffer a detriment, namely the costs of raising an additional child.

66 In Harvey the couple were in an ongoing sexual relationship and attended the medical clinic together for the purpose that each be tested for sexually transmitted diseases. Spigelman CJ also noted at [3] that the attending doctor’s failure to correctly advise the couple (PD and FH) “led to the damage suffered by PD”.

67 In Harvey Santow JA (with whom Spigelman CJ agreed) noted at [96] that:

“[T]he very purpose of the joint consultation was not merely to carry out the relevant tests…[t]hey had clearly signalled, by coming as a couple, that they were seeking joint and not separate advice.”

68 In BT v Oei [1999] NSWSC 1082, this Court held that a general practitioner owed a duty of care to a sexual partner of a patient in certain circumstances. The approach in BT is adopted and the plaintiff fell within the class of persons who were at risk of foreseeable injury, if the defendant failed to properly give advice, was something more required. The plaintiff, as the father of the unborn child and a former sexual partner of Ms Foster was a person at risk of foreseeable economic loss but as in BT is something more than this consideration alone required in order to found a duty of care - Jaensch v Coffey (1984) 155 CLR 549 per Gibbs CJ at 553, per Deane J at 581-583; Bryan v Maloney (1995) 182 CLR 609 per Mason CJ, Deane and Gaurdron JJ at 617-619; Esanda Finance Corporation Ltd v Peat Marwick Hungerford (1997) 188 CLR 241 per McHugh J at 272. Bell J held that a duty of care was owed to BT. Bell J stated that this conclusion was based on the combination of these factors. Namely, that there was no conflict between the duty owed to BT and AT as the two were coincident; BT was a sexual partner of AT; it was reasonably foreseeable that if AT were HIV positive he would transmit the virus to his sexual partner; AT was unaware of his HIV status; the defendant’s specialist knowledge and training equipped him to identify the risk that AT had contracted HIV; failure to diagnose and adequately counsel AT to undertake an HIV antibody test exposed AT’s sexual partner to real risk of contracting the fatal disease; and consideration of public policy reflected in statutory obligations.

69 It has been repeatedly emphasised in cases such as BT that in determining whether a duty of care is owed, there is no scope for decision by reference to idiosyncratic notions of justice and morality. If the approach in Goodwill is adopted, which uses proximity or special relationship as the unifying criterion of the duty of care, then Dr Tam knew or ought to have known that if he did not perform the tubal ligation properly that Ms Foster and her partner may suffer the financial detriment of having to raise an additional child. Further, as an existing partner of Ms Foster the relationship between the plaintiff and the defendant is so close or special that a duty of care does arise. I have taken into account that there was no conflict between the duty owed to the plaintiff and Ms Foster. The consideration of public policy leads to an ambivalent result. Until the recent legislative change in the CLA (s 71) public policy did not preclude the existence of this duty of care. This case was in existence before s 71 came into force and that section does not operate retrospectively. Harvey and Cattanach allowed a sexual partner of the patient who sought medical treatment or advice the to recover damages. In these circumstances it is my view that the defendant owed the plaintiff a duty of care. That duty of care that was owed to the plaintiff was to ensure that his partner, Ms Foster, was properly treated so that she or the plaintiff did not suffer the financial burden of raising an additional child.

Estoppel and Res Judicata

70 In Cattanach Kirby J at [148] held that the harm, injury or damage which grounds such a cause of action is the economic harm inflicted upon the parents by the injury they have suffered as a consequence of any proven negligence and that “any economic loss was not pure, but consequential” and that the claim of the parents (including the father) is made in common for that item of loss. According to Kirby J, to that extent the father’s claim is made concrete by the physical injury suffered by the mother and it is artificial to sever the parents claim which is made jointly for the same sum. Kirby J noted a possible difference in principle in relation to the position of the mother and the father in the bringing of such a claim [151].

71 And Gleeson CJ in Cattanach at [9] stated that:

“His role [Mr Melchior] is one of the defining features of the claim as it was presented. It was a joint claim, and joint damages were awarded.”

72 The claim in the case before me is not a joint one. Ms Foster brought a claim against the defendant. This claim has been settled. The defendant denies the existence of an independent or severable duty of care owed to the plaintiff, the father of the child. In Cattanach the High Court did not consider the bringing of separate claims by the mother and father.

73 The defendant submitted that the doctrines of res judicata and issue estoppel should operate to deny Mr McDonald relief on the basis that Ms Foster had sought and recovered damages for the costs of caring for Justin in the District Court of NSW. The defendant noted Part 7 r 3 of the District Court Rules (NSW) that provides for the joining of all entitled persons to a party in an action for damages and that persons so entitled who do not consent to being joined with the plaintiff are made defendants.

74 The twin principles upon which the doctrines of res judicata and estoppel are based are the public policy interest that there be finality in litigation and the private justice issue that no person be vexed twice in relation to the same cause of action - see Carl Zeiss Stiftung v Rayner and Keller Ltd (No 2) [1967] 1 AC 853 per Lord Reid.

75 The claim does not necessarily have to be a joint claim brought by both parents. For example if a father has the sole responsibility for raising the child and is estranged from the mother, should that circumstance dictate that he is not able to claim damages? The costs of raising a child are a quantifiable sum. However, as the mother and father are jointly responsible for these costs, as is the case here, and they have brought separate claims for the same damage, each parent is entitled to a portion of the quantified damages so as to avoid double dipping.

Damages

76 The plaintiff was born on 9 March 1964. He is the natural father of Justin and is required by law, pursuant to the Child Support (Assessment) Act 1989 (Cth) to maintain Justin. The plaintiff claims the costs of maintaining Justin for at least 18 years. The plaintiff did not serve a report quantifying the costs of raising a child.

77 The plaintiff through the Child Support Agency paid contributions towards the maintenance of Justin of approximately $1.47 per week for the period 20 February 2002 to 30 May 2004. This is the amount assessed by the agency pursuant to s 66T of the Child Support (Assessment) Act. The plaintiff currently contributes directly to Ms Foster the sum of $100 per fortnight as per the Child Support Agreement entered into on 31 May 2004.

78 The plaintiff has three children from a previous marriage, Jason 21, Shaun 18 and Simon James 12 [t 8.40]. He testified that for two years he contributed to the costs of raising Jason, Shaun and Simon James (but that “the children weren’t receiving it”) [t 9.20]. No formal agreement was entered into to provide child support through the Child Support Agency [t 27.10]. He ceased making contributions in Christmas 1994 [t 9.50]. The plaintiff does not financially support the children of his prior marriage.

79 The plaintiff is also father to four of Julia’s children, April Michelle 11, Joshua James 7, Bailey Richard 4 and Justin 2 [t 7.45]. The plaintiff was paying child support for Justin in the amount of $1.47 for some months after his birth [t 25.30]. An agreement to pay child support for Justin in the amount of $100 per fortnight was entered into on 31 May 2004 [t 18.40]. It was Ms Foster’s evidence that the main reason this agreement was entered into was because she was so sick after the birth of Justin that she could not look after him and was buying takeaway [t 43.52-55]. Ms Foster’s health has in recent times picked up. These payments are currently deducted from the plaintiff’s disability pension [t 19.5]. The plaintiff pays child support for Joshua James and Bailey Richard in the amount of $173 per annum pursuant to an assessment by the Child Support Agency [t 28.30].

80 The plaintiff gave evidence he lived as a boarder in Julia’s house for approximately three years from 1992 to 1995 [t 7.20]. During this period he paid Julia $70 pert week board [t 11.20]. He was still living as a boarder in Julia’s house at the birth of their third child Bailey Richard, who is now four years old [t 13.35]. In 1995 the plaintiff moved out of Julia Foster’s house and resided with Julia’s father at an address in Wallis Avenue for a few years until 1 January 2005 [t 42.10]. From January this year he has returned to live as a border in Julia’s house. He is currently paying Julia $50 per week board [t 19.35]. In addition to board the plaintiff contributes a further $100 per fortnight towards general household expenses such as food, electricity, rent and clothing [t 19.40]. At the birth of Joshua James his contributions included clothes, toys and nappies [t 12.15]. Julia gave evidence that the plaintiff is “trying to get out and get his own place” and that he “won’t be staying with us” [t 44.40]. In these circumstances it is more likely that the plaintiff will be required to find alternate accommodation in the near future.

81 The plaintiff worked for 11 years until 1993 as a plant operator at AIR (a subsidiary of BHP). He then received unemployment benefits following a move from Wollongong to the South Coast on medical advice to aid in the treatment of his son Shaun’s asthma [t 10.20]. He filed tax returns during the period 1981 to 1993 [t 34.25]. He was employed at Peter Oak Automobiles, Nowra at time of the birth of April Michelle in 1993 [t 12.40] but was unemployed at the time of the birth of Joshua James [t 11.55] until the birth of Bailey Richard, a period of approximately three years [t 13.5]. On moving into Julia’s house as a boarder in 1993 he was employed on a casual basis as a mechanic at Peter Oak Automotive [t 10.55], initially working only Saturdays then progressing to two or three days per week [t 11.10].

82 Since 1998 or 1999 the plaintiff has been employed on a casual basis as a coach driver at Coast and Country at an average of two days per month at the rate of approximately $100 to $120 per day paid in cash [t 16.40-55]. The plaintiff has worked 12 days (an average of 7.42 hours per day) during the past year for Coast and Country earning $18.50 per hour, $137.21 per day [Ex A]. The plaintiff was unable to work for a period of 8 to 12 months between 2003 and 2004 because he was suffering from vasculitis [t 17.50]. The plaintiff’s evidence is that he is no longer suffering from vasculitis and can work more regularly and earn a greater income. While the plaintiff anticipates increasing his working hours he will be required to support Justin until at least 18 years of age and/or until Justin has finished his tertiary education or apprenticeship as the case may be. Ms Foster considers that Justin is a bright child. She would like him to complete his Higher School Certificate and then go to university. Although this may be the plaintiff’s aspiration, earning a fulltime wage does not seem likely as he still has responsibility for young children, one of which is Justin. Although the plaintiff could have worked longer hours for some months in 2004 and 2005 he has not done so.

83 The plaintiff has received the disability pension for the past two and a half years [t 18.10]. He currently receives benefits in the amount of $480.00 per fortnight (net) [t 29.55]. Julia Foster is jointly responsible for maintaining Justin and the other children of the relationship. She gave evidence that she receives $1,170 per fortnight in child support payments and $460 per fortnight from the supporting parent pension [t 48.35]. She therefore receives $1,630 or $1,640 per fortnight in government benefits.

84 The plaintiff’s current income is $240 per week from government benefits and approximately $60 per week for casual work which totals $300 per week. The plaintiff pays Julia $50 board and contributes a further $50 per week towards general household expenses such as food, electricity, rent and clothing. He pays $50 per week child support in relation Justin. Thus, the plaintiff’s outgoing amount is $150 per week. If the plaintiff has to find alternate accommodation it is more likely that his board will be a sum greater than $50.00.

85 The defendant submitted that because the agreement in relation to Justin was entered into voluntarily by the plaintiff, it does not quantify his loss taking into account that he pays a total of $173 per annum in child support for Joshua and Bailey. According to the defendant there is an economic degree of artifice in any contention that $50 per week is an appropriate level of support for Justin.

86 Gleeson CJ in a dissenting judgment in Cattanach provided some limited guidance in considering the financial obligations on the parents of a child and the concept of “reasonable restitution”. This detailed a number of items the parents of the child in that case claimed restitution for, and were awarded that restitution. He stated (at [36]):

“Does reasonable restitution involve obliging Dr Cattanach to pay for the food? The Christmas and birthday presents, for which they claimed and were awarded damages, will presumably be received with gratitude, and perhaps, at some future time, reciprocated. Does reasonable restitution require Dr Cattanach to pay for them? The entertainment they will provide the child, will no doubt, be enjoyed. Should Dr Cattanach have to pay for it? Some of those items would be unremarkable in a claim, in the Family Court, by one parent against another, for child maintenance. But when they appear in a schedule of damages in tort they prompt questions as to the nature of the entire claim. When Mr and Mrs Melchior have spent the money itemised in their claim on food, clothing, education, maintenance and entertainment…”

87 In Cattanach Gleeson CJ was concerned with a married couples obligations with other children as a family, making a joint claim for the financial costs of raising a child. Certainly, when assessing the damages in this case, the plaintiff’s obligations to pay child support should be taken into account.

88 Doing the best I can (and without the assistance of expert evidence) I would allow the sum of $50 per week currently paid as child support for Justin which would be used for living expenses, food and the like plus a further sum of $50 per week towards Justin’s education and maintenance to reflect a weekly sum for reasonable restitution. That is $100 per week from birth until Justin attains the age of 18 years. $100 per week on 5% tables multiplier (625.0) equates to $62,500. Justin may or may not undertake tertiary study and to reflect this possibility, in accordance with the principle in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 I allow a global sum of $3,000. Thus the total amount of damages I have assessed is $65,500.

89 Costs are reserved.

The court orders that:

(1) There will be a verdict and judgment in favour of the plaintiff in the sum of $65,500.

(2) Costs are reserved.
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16/09/2005 - Order 2 of judgment on cover sheet amended - Paragraph(s) Cover sheet