Melchior v Cattanach

Case [2001] QCA 246

SUPREME COURT OF QUEENSLAND

CITATION: Melchior v Cattanach & Anor [2001] QCA 246
PARTIES: KERRY ANNE MELCHIOR
(first plaintiff/first respondent)
CRAIG MELCHIOR
(second plaintiff/second respondent)
v
STEPHEN ALFRED CATTANACH
(first defendant/first appellant)
THE STATE OF QUEENSLAND
(second defendant/second appellant)
FILE NO/S: Appeal No 7868 of 2000
SC No 1272 of 1997
SC No 466 of 2000
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT:

Supreme Court at Brisbane
DELIVERED ON: 26 June 2001
DELIVERED AT: Brisbane
HEARING DATE: 9 February 2001
JUDGES: McMurdo P, Davies and Thomas JJA
Separate reasons for judgment of each member of the Court; McMurdo P and Davies JA concurring as to the orders made, Thomas JA dissenting
ORDER: Appeal dismissed with costs
CATCHWORDS:

TORTS – NEGLIGENCE – MEDICAL NEGLIGENCE –ECONOMIC LOSS – CARELESS ADVICE, STATEMENTS AND NON DISCLOSURE – FAILURE TO ADVISE OF RISK– where female plaintiff requested defendant doctor to perform sterilisation procedure – where the defendant doctor failed to inform her of the risk or possibility that further investigation might reveal that further steps were necessary – where female plaintiff subsequently gave birth to a healthy baby

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – WRONGFUL PREGNANCY – METHOD OF ASSESSMENT – female plaintiff entitled to recover damages for pain and suffering in respect of the pregnancy and birth and depression which followed, lost earning capacity (past and future) and various medical expenses and also loss of consortium – whether the damages should also include cost of raising the child – survey of authority and discussion of the major views respecting such claims – whether such claims by mother and father are for pure economic loss – relevance of Perre v Apand –whether damages should take into account the benefit of having a healthy child – relevance of public policy in principles applicable to assessment of damages

Family Law Act 1975 (Cth), ss60 B, 66 C

Criminal Code, ss286, 324

Administrator Natal v Edouard (1990) (3) SA 581, considered
CES v Super Clinics (Aust) P/L (1995) 38 NSWLR 47, considered
Dahl v Purnell (1993) 15 QLR 33, considered
Hartke v McKellway 707 F2d 1544 (1983), considered
Heydon v NRMA Ltd & Ors [2000] NSWCA 374, considered
Kealey v Berezowski (1996) 136 DLR (4th) 708, considered
Lovelace Medical Centre v Mendez 805 P2d 603 (NM 1991)
McFarlane v Tayside Health Board [2000] 2 AC 59, considered
McKernan v Aasheim 687 P2d 850 (Wash 1984), considered
Perre v Apand (1999) 198 CLR 180, considered

Rogers v Whitaker (1992) 175 CLR 479, considered

Sherlock v Stillwater Clinic 260 NW 2d 169 (Minn 1977), considered
Thake v Maurice [1986] QB 644, considered
Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522, considered
Veivers v Connolly [1995] 2 Qd R 326, considered
COUNSEL:

J A Griffin QC, with C Newton for the appellants

D O J North SC, with C Meek for the respondents
SOLICITORS: Deacons for the appellants
Shine Roche…

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AGLC
Melchior v Cattanach [2001] QCA 246
Case
[2001] QCA 246
Decision Date

CaseChat Overview and Summary

The case of Melchior v Cattanach involved a dispute between a female plaintiff and a doctor, where the plaintiff claimed negligence on the part of the doctor who performed a sterilisation procedure. The plaintiff alleged that the doctor failed to inform her of the risk or possibility that further investigation might reveal that further steps were necessary. As a result, the plaintiff gave birth to a healthy baby. The case was heard in the Supreme Court of Australia.

The legal issues the court had to address included the scope of damages recoverable by the plaintiff for the wrongful pregnancy and birth, and whether these damages should include the cost of raising the child. The court examined whether such claims by the mother and father were for pure economic loss, the relevance of Perre v Apand, and whether damages should take into account the benefit of having a healthy child. The court also considered the principles applicable to the assessment of damages, including the relevance of public policy.

In its reasoning, the court noted that the plaintiff was entitled to recover damages for pain and suffering in respect of the pregnancy and birth, depression which followed, lost earning capacity (past and future) and various medical expenses, and loss of consortium. The court held that the damages should also include the cost of raising the child, as it was not a pure economic loss but rather a consequence of the doctor's negligence. The court further noted that while public policy may be relevant in the assessment of damages, it should not be the sole consideration.

The court dismissed the appeal and ordered the defendant to pay costs. The decision highlights the importance of doctors informing patients of the risks and consequences of medical procedures and the potential liability they may face for failing to do so.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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