O'Loughlin v McCallum

[2021] WADC 77

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   O'LOUGHLIN -v- MCCALLUM [2021] WADC 77

CORAM:   FLYNN DCJ

HEARD:   24-26 MAY 2021 & WRITTEN SUBMISSIONS ON 8 JULY 2021

DELIVERED          :   9 AUGUST 2021

PUBLISHED           :   9 AUGUST 2021

FILE NO/S:   CIV 947 of 2016

BETWEEN:   KATHLEEN O'LOUGHLIN

Plaintiff

AND

KEITH ARNOLD MCCALLUM

First Defendant

WA COUNTRY HEALTH SERVICE

Second Defendant

FILE NO/S:   CIV 4600 of 2016

BETWEEN:   TYRON SMITH

Plaintiff

AND

KEITH ARNOLD MCCALLUM

First Defendant

WA COUNTRY HEALTH SERVICE

Second Defendant

Catchwords:

Torts - Measure and remoteness of damages - Medical negligence - Unplanned birth of child following failure of sterilisation procedure - Allowance for and assessment of loss of earning capacity - General damages - Allowance for and assessment of cost of raising child - Set off of government assistance against damages

Legislation:

A New Tax System (Family Assistance) Act 1999 (Cth)
Civil Liability Act 2002 (WA)
Social Security Act 1991 (Cth)

Result:

Judgment for the plaintiffs

Representation:

CIV 947 of 2016

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr D M G Burton
Second Defendant	:	Mr D M G Burton

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	SRB Legal
Second Defendant	:	SRB Legal

CIV 4600 of 2016

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr D M G Burton
Second Defendant	:	Mr D M G Burton

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	SRB Legal
Second Defendant	:	SRB Legal

Case(s) referred to in decision(s):

Amaca Pty Ltd v Werfel [2020] SASCFC 125

Apostolic Church Australia Ltd v Dixon [2018] WASCA 146

Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208

Cattanach v Melchior [2003] HCA 38

Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134

D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87

Gentile v Ferri [2004] WADC 144

Houlahan v Pitchen [2009] WASCA 104

Husher v Husher [1999] HCA 47

Insight Vacations Pty Ltd v Young [2010] NSWCA 137

Lee v Dhupar [2020] NSWDC 717

Livingstone v Rawyards Coal Company (1880) App Cas 25

Manser v Spry [1994] HCA 50; (1994) 181 CLR 428

Medlin v State Government Insurance Commission [1995] HCA 5

Melchior v Cattanach [2000] QSC 285

Mollenhauer v Gilroy [2004] QSC 377

Montemaggiori v Wilson [2011] WASCA 177

National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569

Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49

Nouri v Australian Capital Territory [2018] ACTSC 275

Planet Fisheries Pty Ltd v La Rosa (1968) HCA 62; (1968) 119 CLR 118

Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77

Ranford v The State of Western Australia [2015] WASC 45 (S)

Redding v Lee [1983] HCA 16; (1983) 151 CLR 117

Setton v Eves [2006] WASCA 3

State of Western Australia v Cunningham [No 3] [2018] WASCA 207

Stobart v Al-Hakeem [2017] WADC 127

Taylor v Walawski (Unreported, WASC, Library No 8992, 9 August 1991)

Teubner v Humble (1963) HCA 11; (1963) CLR 491

Wallace v Kam [2013] HCA 19 [16]

Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

Zheng v Cai [2009] HCA 52

FLYNN DCJ:

1. On 11 June 2014, the first plaintiff, Ms O'Loughlin, gave birth to BK.[1]  The second plaintiff, Mr Smith, is BK's father.  BK is healthy and much loved by his parents.  Nevertheless, Ms O'Loughlin was surprised when she became pregnant with BK.  Five years earlier, Ms O'Loughlin had accepted the advice of the first defendant, Dr McCallum, and consented to him performing a sterilisation procedure upon her.  Unknown to Ms O'Loughlin, the procedure was not successful.  After the commencement of these actions, Dr McCallum admitted that the procedure was performed negligently and the second defendant, WA Country Health Service, admitted vicarious liability for Dr McCallum's negligence.[2]

   [1] On 25 May 2021, an order was made suppressing the publication of anything that would enable the identification of BK as the child of the plaintiffs.  On publication of this judgment, an order will be made for the publication of these reasons using the pseudonym 'BK' to refer to the child of the plaintiffs born on 11 June 2014.

   [2] Ms O'Loughlin's action was commenced by a writ filed on 17 March 2016.  Mr Smith's action was commenced by a writ filed on 8 December 2016.  By a letter dated 3 October 2018, the defendants admit liability: Exhibit 5.

2. My task is to calculate the sum of money which, so far as possible, will put Ms O'Loughlin and Mr Smith in the same position as they would have been if they had not sustained the wrong by Dr McCallum.[3]  My calculation must take account of the relevant provisions of the Civil Liability Act 2002 (WA) (CLA).

   [3] See Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49, 55 (McHugh J) citing Livingstone v Rawyards Coal Company (1880) App Cas 25, 39 (Lord Blackburn).

3. Ms O'Loughlin, an Aboriginal woman, was born in 1979 in a large town in regional Western Australia.  She spent her infancy living with her grandparents on a 'reserve' on the fringe of that town.[4]  She left school in the middle of Year 10 and commenced a relationship with Mr Smith when they were aged 15 or 16.  Their first child was born when they were both aged 17.  Together, they now have seven children, including BK (the youngest).  Ms O'Loughlin's life has been spent caring for her children.  The sole source of income of Ms O'Loughlin and Mr Smith[5] has been social security payments received from the Commonwealth.  Currently, they support their three youngest children who are aged 13, 11 and 7 (BK).

   [4] ts 19.

   [5] Discussed below is the fact that Mr Smith was employed in the mining industry for a period in 2007 ‑ 2008.

4. Four issues arise for my consideration:

   (1)Loss of Earning Capacity Claim

   Ms O'Loughlin contends that, but for the birth of BK in 2014, she would have commenced employment.  She makes a claim for loss of earnings for a period from 2015 until BK turned 6 years of age.  The defendants dispute that any employment opportunity was available to Ms O'Loughlin or, if available, that she would have taken up the employment.  For the reasons given below, I conclude that an amount of $20,000 (including interest) is to be awarded as a global amount for loss of earning capacity.

   (2)General Damages Assessment

   It is not in dispute that Ms O'Loughlin is entitled to damages for pain and suffering and loss of amenities that were caused by the negligence of Dr McCallum.  Those damages must be restricted in the manner provided by s 9 of the CLA.  For the reasons given below, I assess general damages in the amount of $45,000 and, taking account of s 9 of the CLA, award general damages in the amount of $22,000.

   (3)Assessment of the Cost of Raising BK

   In Cattanach v Melchior,[6] the majority of the High Court held that there is no reason in principle or policy to deny damages in an amount of the cost of raising a child who is born after a negligently performed sterilisation procedure.  Other than evidence of their modest household income, Ms O'Loughlin and Mr Smith did not adduce evidence of the past or future costs of raising BK.  The defendants adduced expert actuarial evidence from Mr Plover.  He relied upon publications of the National Centre for Social and Economic Modelling (NATSEM) to estimate the average costs of raising a child taking account of certain variables, including level of household income and family size.  For the reasons set out below, I assess the past costs of raising BK at $25,116, pre‑judgment interest on that amount at $5,274 and the future costs of raising BK at $52,957.  The total amount to be awarded jointly in favour of Ms O'Loughlin and Mr Smith is $83,347.

   (4)Social Security Set Off Issue

   The defendants contend that 'it is appropriate for government assistance' to Ms O'Loughlin and Mr Smith on account of BK to be set off against any claim for the costs of raising BK.[7]  The defendants rely upon the expert evidence of Mr Plover to the effect that the net present value of 'government assistance' to Ms O'Loughlin and Mr Smith on account of BK, exceeds the net present value of the estimated cost of raising BK.  At issue is whether it was the intention of Parliament, ascertained from the text of A New Tax System (Family Assistance) Act 1999 (Cth) (FA Act), to confer upon Ms O'Loughlin and Mr Smith a benefit that was to be retained independent of any right to damages against Dr McCallum.[8]  For the reasons set out below, I conclude that payments to Ms O'Loughlin or Mr Smith pursuant to the FA Act are not to be set off against any damages awarded for the costs of raising BK.

   [6] Cattanach v Melchior [2003] HCA 38.

   [7] First and Second Defendants' Outline of Submissions filed 7 May 2021 (Defendants' Written Submissions) at par 37.

   [8] Redding v Lee [1983] HCA 16; (1983) 151 CLR 117, 137 (Mason & Dawson JJ).

5. Ms O'Loughlin and Mr Smith were self-represented at trial.  They had the advantage of being represented by solicitors until 23 April 2020.[9]  For example, 'Particulars of Damages' filed on 1 June 2018 (2018 Particulars of Damages), albeit not updated for the trial, identified heads of damage and, for the purpose of the Assessment of the Cost of Raising BK, a suggested methodology.[10]  I endeavoured to provide Ms O'Loughlin and Mr Smith with sufficient information to enable them to fairly present their case while ensuring a fair trial to both parties.[11]  Nevertheless, I acknowledge their obvious frustration when attempting to come to grips with so much of the substantive law as was necessary to make a case and so much of the law of evidence and procedure as was necessary for them to prosecute that case.  I was also cognisant of the risk of misinterpreting the testimony of Ms O'Loughlin and Mr Smith arising from features of the use of English exhibited by many Aboriginal people.[12] 

   [9]  Upon the application of the plaintiffs' then solicitors, an order was made on 23 April 2020 for the applicant solicitors to cease to be the plaintiffs' solicitor of record.

   [10] The damages particularised for Ms O'Loughlin were: General Damages, $39,000; Costs of Raising BK (Past): $30,006; Cost of Raising BK (Future): $105,021.  The damages particularised for Mr Smith were the costs of raising BK (past and future) in the same amount as particularised for Ms O'Loughlin.

   [11] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] - [76].

   [12] 'These features can be structural (including grammatical patterns, word choice and meaning), and/or pragmatic, that is features of language usage (including patterns of discourse and conversation).' Dr Diana Eades, 'Judicial understandings of Aboriginality and language use' (2016) 12 The Judicial Review 471, 476.  Note also the following at page 482 - 483: 'At the heart of these issues lies the ability to switch between Aboriginal ways of communicating in English in some situations, and mainstream Australian ways in other situations.  Such bicultural and/or bidialectal ability is demonstrated in public life by [many Aboriginal people]. … . But how can judicial officers (or lawyers, or police officers) know whether someone has considerable, or sufficient, bicultural and/or bidialectal ability? … To overgeneralise, it can be expected that an Aboriginal person would have a fair degree of bicultural ability if they have had prolonged successful participation in mainstream education and employment, and probably also in residential, social and leisure environments.'

6. The trial exhibits referred to in this judgment include the following:

   •Ms O'Loughlin's answers to interrogatories (the Interrogatory Answers).[13]

   •Hospital records associated with the birth of BK (June 2014 Hospital Records).[14]

   •The expert report of Mr Plover dated 24 August 2020 (the Expert Report), academic publications referred to in the Expert Report namely National Centre for Social and Economic Modelling (NATSEM) publications in 2005 (NATSEM 2005) and 2013 (NATSEM 2013) and a publication of the Social Policy Research Centre entitled 'New Minimum Income for Healthy Living Budget Standards for Low-Paid and Unemployed Australians' (SPRC 2017).[15]

   •Centrelink records for each of Ms O'Loughlin and Mr Smith (Centrelink Records);[16] and Department of Human Services records and Australia Taxation Office records for Mr Smith (Smith Government Records).[17]

   •An article concerning this action published in 'The West Australian' on 10 August 2019 (the 2019 Newspaper Article) and comments on the 2019 Newspaper Article published on the internet (the Internet Comments).[18] 

   •A Certificate of Final Outcome of Charge on Indictment No 17 of 2020, State of Western Australia v Kathleen O'Loughlin (Conviction Certificate).[19] The Conviction Certificate records that, on 24 September 2020, Ms O'Loughlin was convicted by the District Court of a charge of unlawful assault and doing bodily harm in circumstances of aggravation, done on 2 November 2019 (the Assault Conviction).  The Conviction Certificate also records that the sentence imposed for the Assault Conviction was a conditionally suspended imprisonment order.

   [13] Exhibit 1.

   [14] Exhibit 2.

   [15] The Expert Report is exhibit 9.  The Expert Report is to be read with exhibit 10.  Exhibit 10 is an email from Mr Plover to the defendants' solicitors dated 25 May 2021 and concerns a recalculation of data in the Expert Report.  NATSEM 2005 is exhibit 11.  NATSEM 2013 is exhibit 12.  SPRC 2017 is exhibit 13.

   [16] Exhibit 3.

   [17] Exhibits 6 and 7.

   [18] Exhibits 4 and 8.

   [19] Exhibit 14.  The Conviction Certificate was admitted, for reasons given (orally), on the application of the defendants made on 29 June 2021 ie after the trial was completed and while judgment was reserved.  Pursuant to directions, Ms O'Loughlin filed a written submission, dated 8 July 2021, on the significance of the Conviction Certificate.

Facts

1. It is convenient to record findings of fact in chronological narrative form.  Unless indicated otherwise, these findings are based on the uncontradicted testimony of Ms O'Loughlin on matters that I consider her evidence to be reliable, or are based on the contents of documentary evidence that I have identified. 

2. Ms O'Loughlin was asked in cross-examination whether she had any 'criminal convictions to date'. She replied, 'no'.[20]  She was wrong.  The Conviction Certificate reveals the Assault Conviction.  Neither the fact of the conviction nor her unequivocal incorrect answer reflect well on the character of Ms O'Loughlin.  Ms O'Loughlin contended that her answer was not inaccurate because an appeal against her conviction was then pending.  Although an appeal was pending,[21] her conviction remained unless and until a contrary order was made by the Court of Appeal.  On any view, Ms O'Loughlin's answer left an inaccurate impression as a result of her choosing not to give a fulsome answer in cross-examination.  I take this into account when assessing her evidence on other matters.  Nevertheless, there are matters where I consider her evidence to be reliable.  She did not assert that she was a person of good character.  In fact, in her examination‑in‑chief, Ms O'Loughlin admitted to a 'colourful life' in a context that suggested she was making euphemistic reference to the fact that, like Mr Smith, she had had contact with the criminal justice system.[22]  She also readily disclosed matters that might not be apparent and that tended to reduce her damages, including describing her experience of pregnancy with BK as unremarkable. 

   [20] ts 84.

   [21] Subsequently dismissed by the Court of Appeal on 3 June 2021.

   [22] ts 10.

3. I have treated Mr Smith's testimony with particular caution.  His mood throughout the trial, including while giving evidence, was volatile.  He was frequently distracted by grievances that were unrelated to the matters upon which he was giving evidence.  His evidence was coloured by loyalty to his partner and his perception that she was a victim of a grave injustice.

4. Ms O'Loughlin was born on 3 October 1979 in a large town in regional Western Australia.  With her two older sisters, she lived with her maternal grandparents on an 'Aboriginal Reserve' in that town until she was 3 years of age.  Ms O'Loughlin then went to live with her mother in another regional town on the coast of Western Australia.  She remained there until she was aged 10 or 11, completing Year 5 of primary school.

5. Ms O'Loughlin then returned to the town of her birth, completing Years 6 and 7 of primary school while spending periods of time living in the households, respectively, of grandparents, cousins and a maternal aunt.

6. When Ms O'Loughlin was aged 12 or 13 she commenced to live with her mother.  She attended the local high school in Year 8, 9 and half of Year 10, before leaving school.

7. While at school Ms O'Loughlin completed, in Year 8, a program designed to prepare Aboriginal girls for high school.  In Year 9 or Year 10 she participated in a program designed to prepare students for employment in the retail sector.  This program involved Ms O'Loughlin spending a period engaged in work experience in a retail setting.

8. Ms O'Loughlin and Mr Smith, an Aboriginal man, commenced a relationship when they were both aged 15 or 16.  Mr Smith's family had recently moved to town from a 'mission' Indigenous community identified by Ms O'Loughlin.[23]

   [23] ts 23.

9. Shortly after they met, Ms O'Loughlin and Mr Smith spent time travelling with Mr Smith's family to remote places.  The purpose of these trips was for them to be instructed in matters of cultural significance to Mr Smith's family.

10. In June 1997, when they were both aged 17, Ms O'Loughlin and Mr Smith became parents to their first child.  That child is currently aged 24.  They subsequently had six children together.  Those children (and their current ages) were born in 2002 (aged 19), 2004 (aged 17), 2005 (aged 16), 2007 (aged 14), 2009 (aged 11) and 2014 (BK is aged 7).

11. Dr McCallum attended upon the birth of each of Ms O'Loughlin's seven children.  The birth of her first child involved an urgent caesarean delivery, with Ms O'Loughlin being placed under general anaesthetic.[24]

    [24] ts 24.

12. Between the birth of her first child in 1997 and her second child in 2002, Dr McCallum performed an operation upon Ms O'Loughlin to remove an ectopic pregnancy.

13. Although Mr Smith has been continuously involved in the care of BK (discussed below), he was unable to assist Ms O'Loughlin with the care of their other children during periods that he was imprisoned following his conviction for criminal offences.[25]  One of those periods coincided with a time when Ms O'Loughlin and two of her children moved into the house of Ms O'Loughlin's sister.

    [25] The Smith Government Records record that, in 2007, Mr Smith stated that he had been imprisoned for six months or longer on three occasions.

14. In the days before the birth of her sixth child in 2009, Dr McCallum spoke to Ms O'Loughlin about him performing a tubal ligation procedure at the same time as the caesarean birth.  Ms O'Loughlin understood that Dr McCallum recommended a sterilisation because any future pregnancy and birth carried a risk to her life.[26]  Ms O'Loughlin accepted the advice and consented to the procedure.  She assumed that the procedure was successfully performed.  At the time, Dr McCallum did not suggest otherwise to her.

    [26] ts 33, ts 34, ts 38.

15. Four years after Dr McCallum performed the sterilisation procedure, Ms O'Loughlin discovered that she was pregnant with BK.  This occurred when she attended hospital for treatment in relation to unexplained bleeding.[27]  I accept her evidence that the news of being pregnant was very upsetting because it brought to mind the advice of Dr McCallum at the time of the sterilisation.  In her words:[28]

    I'm thinking in my head, 'I can't get pregnant cos [sic] my life is at risk'.

    [27] ts 38.

    [28] ts 38.

1. Ms O'Loughlin recalls little else about her reaction to news of her pregnancy.  She recalls that the experience of the pregnancy itself was similar to her previous pregnancies.  She described 'carrying the baby'.  She described that her routine at that time included caring for her other children including transporting them to school.  At the date of birth of BK, Ms O'Loughlin's children were aged 17, 11, 10, 9, 6 and 4.

2. Ms O'Loughlin and Mr Smith each made brief mention of ongoing conflict between themselves and the Department of Education concerning an (unidentified) aspect of the treatment of one or more of their children while at school.  The subject matter of the conflict is not in evidence and not presently relevant except that it is apparent that, in addition to caring for her children while pregnant, Ms O'Loughlin's energies were also spent on dealings with the Department of Education.

3. I consider the June 2014 Hospital Records to be a reliable record of the matters appearing in those records.  Those records reveal that Ms O'Loughlin was admitted to hospital on 11 June 2014 at 6.40 am.  BK, described as a 'healthy male infant', was born by caesarean section at 8.20 am.  Dr McCallum was in attendance.  On the same day at 12.35 pm an 'epidural top up' was given with 'good effect' and further 'epidural top ups' were given for pain later that day.  Late on 11 June 2014, Ms O'Loughlin is described in the records as 'tired'.  The records for the following days record that Ms O'Loughlin is treated with: 'pethidine' because she is 'very uncomfortable'; 'analgesia' for 'slight pain in (the) right side'; and 'oral analgesia alternating between panadeine forte and oxycodone'.  On the evening of 14 June 2014, Ms O'Loughlin is described as 'postnatally well' and having 'observations within normal limits'.  On 15 June 2014, Ms O'Loughlin is given 'oral analgesia' in response to 'sore abdominal muscles' and is described as experiencing difficulty getting out of bed.  Ms O'Loughlin is discharged from hospital at 11.45 am on 16 June 2014 after a stitch is removed and a wound cleaned and drained.  She is given a script for 'analgesia'.  The June 2014 Hospital Records suggest that Dr McCallum visited Ms O'Loughlin on a number of occasions during her time in hospital, including on 13 and 16 June 2014.

4. There is a dispute concerning (any) treatment of Ms O'Loughlin in the days after she was discharged from hospital.  Ms O'Loughlin testified of having to return to hospital within a short period of time of being discharged because of severe pain to her lower right side.[29]  She recalled undergoing a testing procedure involving a blue dye and being given an injection by Dr McCallum.  Mr Smith gave evidence of Dr McCallum treating Ms O'Loughlin for pain by administering a needle into her spine.[30]  The defendants submit that the testimony of Ms O'Loughlin and Mr Smith on any treatment after 16 June 2014 is unreliable and should not be accepted having regard to the absence of supporting medical records.

   [29] ts 43.

   [30] ts 87 - ts 88.

5. The defendants did not lead evidence of the record keeping systems of the hospital where Ms O'Loughlin may have been treated and of a systematic search of those records.  It follows that no inference is to be drawn from the absence of medical records after 16 June 2014.  However, Ms O'Loughlin did not testify as to details of her treatment that would enable me to be confident that she was not, inadvertently, recounting treatment from Dr McCallum during the period before she was discharged from hospital on 16 June 2014.  She did not the identify the dates of treatment or the diagnosis.  She recalled limited details of treatment by Dr McCallum after a complaint of pain to her lower right side.  The June 2014 Hospital Records refer to pain in Ms O'Loughlin's right side and to sore abdominal muscles. The records refer to occasions of Dr McCallum attending upon Ms O'Loughlin.  I am satisfied that, following the birth of BK, Ms O'Loughlin was treated for pain by way of an injection by or at the direction of Dr McCallum.  Her evidence as to this event was cogent, plausible and uncontradicted.  However, I am not satisfied that this treatment occurred after 16 June 2014.

6. Ms O'Loughlin and Mr Smith have cared for BK since his birth.  From the time of BK's birth until (not earlier than) August 2019, the household comprised Ms O'Loughlin, Mr Smith and their seven children.[31]  By the time of the trial in May 2021, the four older children had moved out and were living independently of Ms O'Loughlin and Mr Smith.  The household currently comprises Ms O'Loughlin, Mr Smith and their three youngest children, including BK.

   [31] Interrogatory Answers, Answer to 10,11 and 12.

7. There is a dispute concerning the length of time Ms O'Loughlin was incapacitated after the birth of BK and the level of her incapacity during that period.  Ms O'Loughlin gave evidence that, compared to previous births, she did not recover in full for a period of three to four years following the birth of BK.[32]  Ms O'Loughlin and Mr Smith gave evidence of Mr Smith assuming the exclusive care of their children and performing household duties that Ms O'Loughlin usually performed.[33]  The defendants submit that the testimony of Ms O'Loughlin and Mr Smith is implausible and should not be accepted.  The defendants emphasise the absence of evidence of Ms O'Loughlin seeking any professional assistance and the absence of expert evidence of a medical diagnosis of Ms O'Loughlin.

   [32] ts 46 - ts 49.

   [33] ts 47 (Ms O'Loughlin), ts 88 (Mr Smith).

8. Ms O'Loughlin's failure to adduce evidence of a medical diagnosis speaks to her inability to recover damages on account of 'mental harm'.[34]  However, her failure to seek professional help does not necessarily speak to the creditability of Ms O'Loughlin's evidence on her experiencing a level of impairment relevant to loss of amenities of life following the birth of BK and, consequently, a measure of loss or damage.[35]  Explaining why she did not seek professional help, Ms O'Loughlin described herself as a 'tough Aboriginal girl' who was reluctant to make complaint to anyone about non-specific symptoms.[36]  Her attitude, admittedly unconducive to resolving any impairment, is plausible given the circumstances in which she found herself.

   [34] CLA, s 9(4)(e).

   [35] See par 62; Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208 [171] - [174].

   [36] ts 81 - ts 82.

9. I am satisfied that, from the time she came home from hospital, Ms O'Loughlin attended to breastfeeding BK and that she was able to attend to her own basic needs.[37]  I accept Ms O'Loughlin's evidence that, for a period after the birth of BK, she was not involved in the care of her children to the same extent as before the birth of BK.  This affliction was for a lengthy period.  However, it gradually subsided.  For present purposes, I am not satisfied that it was of significance after BK turned 3 years of age.  This fact adversely affected the quality of her life.  In her words:

   … I was sick, until I come [sic] back to myself, as I am now, but still have ups and downs …[38]

   … It took away my mother, parent thing, where, like, he [Mr Smith] has taken over that part.  He's taken that off me where [sic] I was more bedridden …[39]

   There were no outings … its [sic] just in the house … we had to be all together and just isolate ourself [sic].[40]

   [37] ts 81 - ts 82.

   [38] ts 47.

   [39] ts 47.

   [40] ts 48.

Facts: 2019 Newspaper Article and Internet Comments

1. In August 2019 Ms O'Loughlin and Mr Smith became aware of a request from a journalist to participate in an interview concerning matters the subject of this action.  They declined to participate in an interview.  Shortly afterwards, the 2019 Newspaper Article was published.  Page one included headlines: 'Immaculate Conception Lawsuit' and 'Exclusive: Parents of a Child Born After Sterilisation Surgery Demand Hundreds of Thousands of Dollars to Help Raise the Boy'.  Page 11 contains the relevant article, apparently based on the contents of documents on the court file including the statements of claim and plaintiffs' particulars of damages.  The article does not contain the names of Ms O'Loughlin, Mr Smith or BK and does not identify the regional town in which they reside.  The article ends with a quote from a 'former Australian medical association president' to the effect that 'claims of wrongful life are morally very dubious' and 'I would hate to be the child that someone said was wrongfully born'.

2. Members of the public published comments on the 2019 Newspaper Article on the internet.  Soon after publication, Ms O'Loughlin became aware of the 2019 Newspaper Article and the Internet Comments via a social media application on her mobile phone (Facebook).  The Internet Comments are numerous.  Many contributors express similar opinions.  Many record their opinion that the parents ought make arrangements for the adoption of the child.  Many refer to the parents being motivated by greed or financial reward in pursuing litigation.  A number question the psychological impact of the litigation upon the child.  Several of the comments are expressed in derogative terms and use offensive terms.  For example:

   'I don't want to think how this baby might feel when growing up and knowing his parents were compensated.'

   'They are free to put the baby up for adoption if they don't want him, but no medical procedure is guaranteed.'

   'Maybe the judge could take the child and give to people who will love him.  This child will never be loved and cared for properly by this couple.'

   'Am I the only one wondering why they didn't get an abortion when they found out about the pregnancy?'

   'Greed, money speaks all languages.'

   'What a pair of ***s.'

   'Forget about adoption remove this poor baby from parents who seem to hold their child for ransom!'

3. I accept Ms O'Loughlin's evidence that she was upset at the time of reading the comments.  I further accept that, when subsequently reflecting on the comments from time to time, she also became upset.

Facts: Income of Ms O'Loughlin and Mr Smith

1. The Centrelink Records reveal that, as at 31 May 2021, the weekly household income of Ms O'Loughlin ($306.50 per week as Family Tax Benefit) and Mr Smith ($286.50 per week as Jobseeker) and their three children is $593.  Details of these payments appear below.  It is apparent from the evidence of Ms O'Loughlin that, at some point in the future, she may also recommence receiving a payment on account of Jobseeker.  All the day‑to‑day living expenses of the household, including rent, utilities, food and clothing are met from this income.  Ms O'Loughlin and Mr Smith have no assets and no savings.

2. Ms O'Loughlin's sole source of income for her adult life has been two separate social security payments.  One payment is calculated by reference to her employment status and is called 'Parenting Payment' or 'Jobseeker' (formerly 'Newstart').  Another payment is calculated by reference to her having one or more children in her care and is called 'Family Tax Benefit'.

3. Ms O'Loughlin ceased to be entitled to a Parenting Payment when BK turned six in June 2020.[41]  She then became entitled to Jobseeker.  After June 2020 she received Jobseeker for a short period of time before being 'cut off' after failing to comply with conditions for continued receipt of the payment.[42]  She failed to attend an appointment with an employment agency.

   [41] Social Security Act 1991 (Cth) (SS Act), s 500(1).

   [42] ts 51.

4. Ms O'Loughlin has been in receipt of Family Tax Benefit on account of each of the children in her care.  The portion of those payments attributable to BK as at August 2019 was $92.42 per week.[43]  The Centrelink Records reveal that, as at 25 May 2021, Ms O'Loughlin was entitled to the following weekly payments on account of three children being in her care: Family Tax Benefit Part A $298; Family Tax Benefit Part B $1.75; Energy Supplement Part A $5.75; Energy Supplement Part B $1.00.[44]

   [43] Interrogatory answers, interrogatory answer no 30.

   [44] I note the evidence of Ms O'Loughlin the effect that as at the date of trial she was in receipt of $300 per fortnight on account of Family Tax Benefit for three children.  The Centrelink Records suggest that Ms O'Loughlin was in receipt of approximately $300 per week in respect of Family Tax Benefit.  I am satisfied that Ms O'Loughlin's reference to 'fortnight' was an error.

5. Mr Smith was employed for a period of 9 - 18 months in the mining industry.[45]  His duties included crushing and separating minerals.  The Smith Government Records suggest that this employment was in the period 2007 - 2008.[46]  Apart from this period of employment, Mr Smith's sole source of income has been social security payments.  The Centrelink Records reveal that the weekly amounts paid to Mr Smith as at 31 May 2021 comprised the following components: Jobseeker Payment of $277; Energy Supplement of $4; 'GST component' of $5.50.  The bulk of that payment ($234 per week) was deducted before payment to Mr Smith on account of a housing rent deduction scheme.

   [45] Mr Smith testified that he was employed for 18 months.  The Smith Government Records suggest that the period was 9 months or 10 months.

   [46] Those records reveal, for example, a deduction for work related clothing expenses in the form of 'protective clothing'.

Loss of earning capacity claim

1. Ms O'Loughlin stated that when her entitlement to Parenting Payment for her sixth child ceased, but for the birth of BK, she would then have 'made [the] step of getting out there looking for that [sic] job'.[47]  At law, Ms O'Loughlin's entitlement to Parenting Payment for her sixth child would have ceased when that child turned 6 years of age in August 2015. [48]  Her claim is for loss of earning capacity as a result of caring for BK from August 2015 until June 2020, when her then youngest child, BK, turned six years of age.

   [47] ts 50.  This claim does not appear in the 2018 Particulars of Damages.  However, (sensibly) no objection was taken to the evidence of Ms O'Loughlin on the issue and the defendants made closing submissions on the issue.

   [48] SS Act, 500(1).

2. Ms O'Loughlin is entitled to damages for loss of earning capacity and not loss of earnings.  Ms O'Loughlin must prove two matters.  First, the extent to which the negligence of Dr McCallum resulted in any diminished earning capacity and, secondly, the extent to which that diminished capacity was productive of financial loss.[49]

   [49] Medlin v State Government Insurance Commission [1995] HCA 5.

3. If Ms O'Loughlin proves a loss of earning capacity, the assessment of her financial loss requires an estimate of the likelihood of hypothetical events that bear upon that loss.  This requires an assessment of the degree of probability of those events occurring.  Unless the chance of an event is so low as to be speculative or so high as to be practically certain the court will take that chance into account in assessing damages.[50]

   [50] Montemaggiori v Wilson [2011] WASCA 177 [30] (Buss & Newnes JJA).

4. Ms O'Loughlin has no past earnings.  It does not follow she has not suffered a financial loss as a result of the negligence of Dr McCallum.[51]  Consider the situation of a plaintiff student who is about to enter the workforce when injured by a negligent defendant.[52]  Evidence of past events is not determinative of the issue of loss of earning capacity.  Deciding what value is to be ascribed to the loss of earning capacity requires scrutiny of the facts to determine what Ms O'Loughlin would have done in the workforce but for the negligence of Dr McCallum and what sum of money she would have had at her disposal.[53]

   [51] Husher v Husher [1999] HCA 47 [8] .

   [52] Husher v Husher [8].

   [53] Husher v Husher [8].

5. Ms O'Loughlin makes two points in support of her claim for loss of earnings.

6. First, she correctly states that Jobseeker payable to her after August 2015 would have been contingent upon her satisfying 'mutual obligation requirements' such as engaging with an employment agency nominated by Centrelink.[54]  As noted she had recent experience of  being 'cut off' as a result of failure to engage with an agency.[55]  She argued, in effect, that she had a powerful incentive to obtain work, either on her own initiative or with the assistance of the agency.

   [54] In 2015, on ceasing being entitled to the Parenting Payment, Ms O'Loughlin was entitled to apply for income support in the form of the Newstart Allowance (now Jobseeker). See SS Act, pt 2.12 'Jobseeker Payment' and, in particular, provisions on 'Jobseeker Employment Pathway Plans'.

   [55] See par 36.

7. Secondly, Ms O'Loughlin stated that there was no reason why, alongside other members of her extended family who were in paid employment, she would not have entered the workforce upon her youngest child turning 6.[56]  She noted her work experience in the retail sector while at school and her literacy skills.

   [56] ts 24, ts 49 - ts 52.

8. The defendants contend that the negligence of Dr McCallum did not diminish Ms O'Loughlin's earning capacity because, as at August 2015, Ms O'Loughlin had no earning capacity.[57]  Ms O'Loughlin, aged 35, had no vocational qualifications and no experience of paid employment.  The Assault Conviction and necessary involvement in the criminal justice process before that date limited her employment prospects.  She was the primary caregiver for six children who, in August 2015, were aged 6, 9, 10, 11, 13 and 17.  The childcare demands on her time were considerable.  Ms O'Loughlin could not rely upon Mr Smith to assist her with the care of their children.

   [57] ts 189.

9. The defendants, in my view, correctly identify the hurdles to Ms O'Loughlin entering the workforce for the first time in August 2015.  She had no employment history.  She was the main caregiver for five school age children.  There is no evidence of Ms O'Loughlin being able to call upon anyone (paid or unpaid) to care for her school‑age children outside of school hours.

10. I consider that Ms O'Loughlin's maximum earning capacity as at August 2015 was limited to the extent of any employment opportunities in unskilled positions that were available while her children were attending school.  Nevertheless, Ms O'Loughlin was in good health.  She was literate.  She had necessarily acquired the organisational skills that come with running a household of a large family over a number of years.  I am satisfied that Dr McCallum's negligence resulted in Ms O'Loughlin's earning capacity being diminished to the extent that she was unable to take up any employment opportunities of the nature that I have identified ie unskilled positions that were available during school hours.

11. The evidence on the extent to which Ms O'Loughlin's diminished earning capacity was productive of financial loss is scant.  There is no evidence of relevant employment opportunities, the state of the labour market where she lives or of likely earnings.[58]  Where earning capacity has been reduced and the resulting financial loss is difficult to assess because there is little evidence of the relevant labour market, the court, doing the best it can, may properly assess damages in a global amount.[59]

    [58] Setton v Eves [2006] WASCA 3 [26] - [27].

    [59] Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134 [185].

12. I have noted that the 'mutual obligation requirements' attendant upon income support payments were one reason that Ms O'Loughlin was motivated to engage in employment.  A person in the position of Ms O'Loughlin would have been able to meet those requirements by undertaking 30 hours of paid work per fortnight.[60]  I note that those hours would comfortably allow for work during the school day.  It is appropriate to assume that Ms O'Loughlin would not work more than 30 hours per fortnight.

    [60] SS Act, s 502B.

13. Having regard to Ms O'Loughlin's expressed preference to commence employment in the retail sector, I consider it appropriate to have regard to the rates of pay relevant to an employee in that sector.  The Fair Work Act 2009 (Cth) (FW Act) provides for the making of 'modern awards' by the Fair Work Commission.[61]  Modern awards set minimum terms and conditions for 'national system employees' (as defined) in particular industries or occupations.[62]  For the period of Ms O'Loughlin's loss of earnings claim, the General Retail Industry Award 2010 (Retail Award 2010)[63] prescribed the minimum rates of pay for national system employees in the general retail industry in accordance with a system of classifications found in the award.[64]  The indicative job titles for an employee within the 'level 1' classification include shop assistant, clerical assistant, check-out operator and trolley collector.[65]  The rate of pay for a casual employee at 'Retail Employee Level 1' from 1 July 2016 was $24.30 per hour.  The rate increased by a small amount from 1 July each year.  For the year commencing 1 July 2019, the rate was $29.76 per hour.

    [61] FW Act, pt 2 - pt 3.

    [62] FW Act, s 132.

    [63] The Retail Award 2010 applied during the period the subject of the loss of earning claim.  Now see the General Retail Industry Award 2020.

    [64] Retail Award 2010 cl 16 and sch B.

    [65] Retail Award 2010 sch B.1.3.

1. In my view, the award of damages for loss of earnings must be discounted to reflect the real chance that, for a number of reasons, Ms O'Loughlin's employment would not be continuous for the period August 2015 to June 2020.  A period of time after August 2015, perhaps substantial, would likely have been spent engaging in training or attempting to identify an appropriate position.  I note that, notwithstanding that BK turned 6 in June 2020, Ms O'Loughlin remained unemployed as at May 2021.  Her capacity to work was likely to be impeded by the Assault Conviction and her involvement in the criminal justice process for a period before that conviction.  If Ms O'Loughlin was unable to secure childcare during school holiday periods (and Mr Smith was unable to assist her), she would not be available for employment.

2. Doing the best that I can with the evidence, I assess damages (including interest) for Ms O'Loughlin's loss of earnings in the period August 2015 to June 2020 in the amount of $20,000.

General Damages Assessment

1. The principles relevant to the assessment of general damages in the case of Ms O'Loughlin may be summarised:[66]

   1.General damages must be fair and reasonable compensation for the plaintiff's injuries having regard to current ideas of fairness and moderation.[67]

   2.General damages include damages for pain and suffering.  This includes matters such as grief, anxiety, distress and disappointment.[68]

   3.General damages include damages for loss of amenities of life and loss of enjoyment of life.  This includes loss resulting from the deprivation of the ability to participate in normal activities, to enjoy life to the full and to take full advantage of the opportunities that life otherwise might offer.[69]

   4.The amount of general damages must be proportionate to the situation of Ms O'Loughlin.[70]  Of significance is the loss experienced by Ms O'Loughlin and the objective impairment of her capacity to enjoy life.  The extent of her loss caused by factors such as frustration, loneliness, interpersonal difficulties and inability to pursue a particular life is to be assessed by reference to her particular experience and not by reference to a hypothetical reasonable person.[71]

   5.The court is entitled to refer to earlier cases for the purpose of establishing the appropriate award.[72]  However, it is not appropriate to endeavour to extract a norm from the amounts awarded in earlier cases and to determine the award by reference to that standard.[73]

   6.The award of general damages are restricted by s 9 of the CLA.[74]  If those damages are assessed at not more than $23,000 (Amount A), no general damages are to be awarded.[75]  If damages are assessed at between $23,000 and not more than $66,500 (Amount C), the award of damages is reduced by the amount of $23,000.[76]  If damages are assessed at more than $66,500, but less than $89,500 (Amount A plus Amount C), the award of damages is reduced by: $23,000 less the difference between the amount assessed and $66,500.[77]

   [66] See D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87 [681] - [683].

   [67] Planet Fisheries Pty Ltd v La Rosa (1968) HCA 62; (1968) 119 CLR 118, 125; Houlahan v Pitchen [2009] WASCA 104 [107].

   [68] Insight Vacations Pty Ltd v Young [2010] NSWCA 137 [125].

   [69] Teubner v Humble (1963) HCA 11; (1963) CLR 491 [506].

   [70] Houlahan v Pitchen [107].

   [71] Taylor v Walawski (Unreported, WASC, Library No 8992, 9 August 1991) (Ipp J).

   [72] CLA, s 10A.

   [73] Houlahan [107].

   [74] CLA, s 9 on restrictions on damages for non-pecuniary loss (general damages).  The amounts specified pursuant to s 10(3) of the CLA with effect from 1 July 2021 are: Amount A: $23,000 Amount C: $66,500.

   [75] CLA, s 9(1).

   [76] CLA, s 9(2).

   [77] CLA, s 9(3).

2. I have noted that in Cattanach v Melchior, the majority of the High Court determined that plaintiff parents may recover the cost of raising a child who is born after a negligently performed sterilisation procedure on the plaintiff mother.  The decision of the primary judge of the Supreme Court of Qld to award general damages in favour of the plaintiff mother in an amount of $30,000 was not the subject of appeal.[78]  The child was born 5 years and 2 months after the negligently performed surgical procedure.  The primary judge recorded that the award reflected three matters.[79]  First, 'an inevitable degree of pain, discomfort and inconvenience is associated with a pregnancy'.  Secondly, the plaintiff mother suffered from minor medical complications (venous incompetence) as a result of the birth.  Thirdly, the plaintiff mother was treated by her general practitioner for depression for 12 - 18 months after birth.

   [78] Melchior v Cattanach [2000] QSC 285.

   [79] Melchior v Cattanach [63].

3. In Gentile v Ferri,[80] the plaintiff mother gave birth 11 months after the defendant medical practitioner performed tubal ligation surgery.  Upon a finding of negligence, an award of general damages was made in this court in the sum of $20,000.  The plaintiff mother 'went into shock and cried all the way home' on being informed of her pregnancy.  However, she soon recovered.  The pregnancy and birth were described as 'good'.[81]

   [80] Gentile v Ferri [2004] WADC 144.

   [81] Gentile v Ferri [16] - [21].

4. In Stobart v Al-Hakeem,[82] the plaintiff mother gave birth nine months after the defendant medical practitioner inserted a contraception device.  The plaintiff failed to establish negligence.  In this court, a provisional assessment of general damages was made in the sum of $60,000.  The plaintiff mother suffered complications at the time of birth that required emergency treatment and a period of time in intensive care.  She suffered shock and brief distress on discovery of her pregnancy.  However, there was no evidence of 'psychological harm suffered by the plaintiff'.[83]

   [82] Stobart v Al-Hakeem [2017] WADC 127.

   [83] Stobart v Al-Hakeem [313].

5. In Lee v Dhupar,[84] the plaintiff mother gave birth 18 months after the defendant medical practitioner performed tubal ligation surgery.  Upon a finding of negligence, an award of general damages was made by the District Court of NSW in the sum of $261,000.[85]  The plaintiff was found to have suffered 'feelings of adversity which pervaded [from pregnancy] until the time of delivery, and beyond, [and she was] subject to a range of upsetting thoughts, emotional conflicts and anguish which have been diagnosed as a recognised psychiatric illness'.[86]

   [84] Lee v Dhupar [2020] NSWDC 717.

   [85] Pursuant to s 16 of the Civil Liability Act 2002 (NSW), being an assessment of the plaintiff's damages for physical and psychological pain, distress and suffering, as well as the loss of the enjoyment and amenity of her life, assessed at 38% in comparison with a most extreme case.

   [86] Lee v Dhupar [1009].

6. In her closing submissions relevant to general damages, Ms O'Loughlin emphasises a number of matters.  She refers to evidence of her anguish at discovering that she was pregnant with BK and to evidence of her pain following the birth of BK.  She noted the evidence of the impact upon her life of not participating in activities with her children for a period after the birth of BK.  Ms O'Loughlin also made a submission concerning treatment by way of an injection after 16 June 2014.  However, in my findings of fact (above), I conclude that I was not satisfied that such treatment occurred after 16 June 2014.[87] 

   [87] See [26].

7. In closing submissions, counsel for the defendants noted the absence of expert evidence of any psychiatric condition affecting BK.  Emphasis is placed on evidence of a normal pregnancy and on the absence of evidence of incapacity while recovering after birth.[88]  My findings of fact (in summary) was that for a period after the birth of BK, Ms O'Loughlin's quality of life was adversely affected because she was not involved in the care of her children to the same extent as before the birth of BK (the Recovery Findings).[89]  The defendants contend that an award of general damages in the range of between $20,000 and $30,000 would be 'fair and reasonable compensation' for the injuries to Ms O'Loughlin.[90] 

   [88] ts 193 - ts 194.

   [89] See [30].

   [90] ts 194.

8. The award of general damages to Ms O'Loughlin must reflect my findings of fact concerning her anxiety about the risk to her of pregnancy with BK,[91] her experience of being pregnant, and the pain and trauma of the birth process.[92] 

   [91] See [20] -[21].

   [92] See [22] - [24].

9. Also relevant to her loss of amenities and to her enjoyment of life are the Recovery Findings.  This component of general damages is not compensation for mental harm.  There is no evidence of a psychiatric illness.  However, the fact of Ms O'Loughlin's inability to participate in normal activities of caring for her children is compensable as a loss of amenities.[93]

   [93] See Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208 [171] - [174].

10. Taking account of the matters discussed above, including the earlier cases, I assess general damages in the amount of $45,000.  The effect of s 9 of the CLA is that the award of general damages will be in the amount of $22,000 (ie $45,000 reduced by the amount of $23,000).

11. My assessment of general damages does not include a component on account of the impact upon Ms O'Loughlin of the 2019 Newspaper Article and the Internet Comments.  My findings of fact record that Ms O'Loughlin was distressed at the time of reading the article and the comments and that she remains upset.[94]  I have reached the conclusion that, at law, Dr McCallum has not caused this 'particular harm' suffered by Ms O'Loughlin.  His negligence was 'a necessary condition of the occurrence of the harm' to Ms O'Loughlin (factual causation).[95]  'But for' his negligence, Ms O'Loughlin would not have been exposed to the 2019 Newspaper Article and the Internet Comments.[96]  However, I have concluded that it is not appropriate for the scope of Dr McCallum's liability to extend to harm arising from the 2019 Newspaper Article and the Internet Comments (scope of liability).[97] 

    [94] See [33].

    [95] CLA, s 5C(1)(a).

    [96] Wallace v Kam [2013] HCA 19 [16].

    [97] CLA, s 5C(1)(b).

12. For the purpose of determining the scope of liability I have considered (amongst other things) 'whether and why responsibility for the harm should or should not be imposed on' Dr McCallum.[98]  The scope of liability question requires an evaluative judgment by reference to the purposes and policy of the relevant part of the law.[99] Policy considerations that inform the imposition of a duty are relevant to whether a particular harm is caused by a particular breach of that duty.[100]  The liability of a medical practitioner does not extend to every manifestation of harm, notwithstanding that factual causation is established.[101] 

    [98] CLA, s 5C(4).

    [99] Wallace v Kam [23]; Apostolic Church Australia Ltd v Dixon [2018] WASCA 146.

    [100] Wallace [26].

    [101] Wallace [27].

13. The manifestation of Ms O'Loughlin's distress was a result of events that occurred in 2019 after Dr McCallum's breach, in 2009, of the duty of care that he owed to Ms O'Loughlin.  One policy consideration that informs the imposition of a duty of care upon a health professional is the inherent vulnerability of a patient to the consequences of treatment that is not in accord with competent professional practice.  Another relevant policy consideration is the undermining of patient autonomy that results from a patient being denied the opportunity to make informed medical decisions.  Competent professional practice and patient autonomy are not advanced by framing the scope of liability of Dr McCallum so as to include liability for harm for Ms O'Loughlin's distress following publication of the 2019 Newspaper Article and the Internet Comments.  Those publications were a source of real distress to Ms O'Loughlin.  Factual causation is proven. However, it is not appropriate to extend the scope of Dr McCallum's liability to that distress.

Assessment of the Cost of Raising BK

1. The 2018 Particulars of Damages of each of Ms O'Loughlin and Mr Smith claimed an amount of $144 per week, as at his birth in 2014, as the cost of raising BK.  The calculation in the 2018 Particulars of Damages is done by reference to estimates contained in NATSEM 2005, adjusted for inflation to BK's date of birth in 2014.  At trial, Ms O'Loughlin expressed scepticism about $144 per week being 'enough to raise a child'.[102]  She spoke of the possibility of BK attending boarding school after he completed primary school.  Two of his older siblings had attended boarding school.[103]  Ms O'Loughlin and Mr Smith did not adduce any detailed evidence of items of past expenditure or (anticipated) future expenditure associated with the cost of cost of raising BK.  In Interrogatory Answers, Ms O'Loughlin stated that expenditure on BK had been limited to essential items that she was able to afford from the modest household income. 

   [102] ts 53.

   [103] ts 54 - ts 55.

2. The defendants accept that the reasonable costs of raising BK to the age of 18 is recoverable jointly by Ms O'Loughlin and Mr Smith.[104]  The actuarial expert, Mr Plover, concludes that the weekly cost of raising BK, expressed in 2020 values, is $159 per week.[105]  Mr Plover's opinion is informed by reference to estimates contained in NATSEM 2013, adjusted for inflation to 2020.[106]

   [104] Defendants Written Submissions, pars 18, 23 - 27, 31 - 33.

   [105] ts 151.

   [106] $140 per week, published in NATSEM 2013 as the marginal cost of raising a third child in a low-income household ($1,160 per week), is increased in line with 'all groups CPI' to produce an estimate of $159 per week.

3. Ms O'Loughlin and Mr Smith have suffered a real loss as a result of the negligence of Dr McCallum, namely the costs of raising BK.  Absent evidence of actual past expenditure or anticipated future expenditure, the court must do its best to place a value on their loss.[107] 

   [107] See the cases discussed in Lunz and Harder, Assessment of Damages for Personal Injury and Death (5^th ed) 1.11.9.

4. NATSEM 2005, relied upon in the 2018 Particulars of Damages, and NATSEM 2013, relied upon by Mr Plover, use the same methodology.  The 'estimated costs' are the result of the analysis of data published by the Australian Bureau of Statistics following a household expenditure survey.  The data source for NATSEM 2005 is a household expenditure survey published for 1998 - 1999.  The data source for NATSEM 2013 is a household expenditure survey published for 2009 ‑ 2010.  A comparison is made between the average household expenditure of families with the same standard of living where the only variable is the number of children in the household.[108]  In this way, the marginal expenditure of adding one or more child to a similar household is revealed.  Identifying households of a similar standard of living is achieved by examining the proportion of total expenditure of the household on a basket of goods.[109]

   [108] NATSEM 2005, pages 3 - 6.

   [109] NATSEM 2005, pages 4 - 6.  The indicators of the standard of living of a family was a proportion of total expenditure devoted to food at home, fuel and power, household non-durables, communication charges and personal care (e.g. shampoo).

5. The methodology employed by NATSEM indicates, on average, how much parents in households of an equivalent standard of living actually spend on their children.[110]  Self-evidently this methodology is constrained by family income.  It is not a measure of what is needed in a particular place at a particular time to achieve a particular standard of living.[111]

   [110] NATSEM 2005, page 2.

   [111] NATSEM 2005, page 1.

6. The estimated marginal cost of each additional child is calculated by NATSEM for households from the lowest gross income quintile to the highest gross income quintile and for households with an average gross income.  The estimated marginal cost of each additional child was found to gradually reduce.  For example, NATSEM 2005 states that, for all households, the average gross income of $1,473 per week was found to result in the marginal cost of one child to be $188 per week, $143 per week for the second child and $115 per week for the third child.[112]  The authors' comment that 'the reductions in the average cost of each additional child are a result of both the expenditure constraints and the economies of scale that families experience as their size increases'.[113] 

   [112] NATSEM 2005, table 3, page 14.

   [113] NATSEM 2005, pages 13 - 14.

7. NATSEM estimates the cost of raising a child based on actual expenditure.  An alternative methodology, discussed in SPRC 2017, is to estimate the cost of raising a child by attempting to 'specify and price a basket of goods, services and activities that will allow a family to participate in the life of the society and achieve a minimum standard of living'.[114]  This 'budget standards' methodology is discussed in the Expert Report.[115]  Mr Plover concludes that the result of the application of the budget standards methodology of SPRC 2017 is an estimated cost per child of between $140 and $170 per week in the case of a couple with two children.  He notes that this result is not dissimilar to the result of the actual expenditure methodology of NATSEM. 

   [114] SPRC 2017, page 6.

   [115] Expert Report, pars 4.7 - 4.9.

8. I have concluded that the evidence of Mr Plover, drawing on NATSEM 2013, is to be accepted as an estimate of the past and future cost of raising BK.  Save for the contents of SPRC 2017 on the budget standard methodology, Mr Plover's evidence is the only evidence on the cost of raising BK.  His testimony and the Expert Report contained reasoned arguments for his conclusions.  Those arguments are based on disclosed and plausible facts that were not challenged. 

9. Although Ms O'Loughlin and Mr Smith protested at the implausibility of funding opportunities for BK on the basis of the cost estimates made by NATSEM, no contradictory evidence was adduced by them.  SPRC 2017 does not produce a significantly different result.  The 2018 Particulars of Damages filed on behalf of Ms O'Loughlin and Mr Smith adopt the same 'actual expenditure' methodology employed by NATSEM and relied upon by Mr Plover.

10. NATSEM estimates of expenditure of households in the lowest gross income quintile is a reasonable approximation of the household of Ms O'Loughlin and Mr Smith.[116]  It is reasonable to draw upon research as to average expenditure of households in the lowest gross income quintile with respect to the third child in the household as a basis for estimating the past and future cost of raising BK.

    [116] See my findings of fact on the Income of Ms O'Loughlin and Mr Smith at par 34.

11. The 2018 Particulars of Damages is based upon estimates in NATSEM for a household of a couple and one child only.  Indexed to 2020 values this results in an estimated cost of $202 per week for a couple and one child.[117]  Mr Plover's opinion of $159 per week (2020 values) as the estimated costs of raising BK is based upon NATSEM estimates for a couple and three children.  My view is that it is appropriate to have regard to the NATSEM findings that expenditure constraints and economies of scale reduce the marginal cost of raising each subsequent child.  The result is to reduce the estimated cost of raising a second child by 83% of the cost of the first child and reduce the estimated cost of raising a third child by 69% of the cost of the first child.[118]

    [117] NATSEM 2013, table 3.1.2.

    [118] Expert Report, 3.12

12. In the result, my finding on the past costs of raising BK (before he turned 7 in June 2021) and the future costs of raising BK until he turns 18 in June 2032, is set out in the following table. 

BK Age	(1) NATSEM 2013 Cost per week; one child	(2) Annual costs One child, 2021	(3) Annual costs Third child, 2021 (69%)	(4) NPV	(5) Present value
0	$86	$5,148	$3,552	1	$3,552
1	$86	$5,148	$3,552	1	$3,552
2	$86	$5,148	$3,552	1	$3,552
3	$86	$5,148	$3,552	1	$3,552
4	$86	$5,148	$3,552	1	$3,552
5	$132	$7,904	$5,454	1	$5,454
6	$132	$7,904	$5,454	1	$5,454
7	$132	$7,904	$5,454	.971	$5,296
8	$132	$7,904	$5,454	.916	$4,996
9	$132	$7,904	$5,454	.864	$4,712
10	$153	$9,152	$6,315	.816	$5,153
11	$153	$9,152	$6,315	.769	$4,856
12	$153	$9,152	$6,315	.726	$4,585
13	$153	$9,152	$6,315	.685	$4,326
14	$153	$9,152	$6,315	.646	$4,079
15	$285	$17,004	$11,733	.609	$7,145
16	$285	$17,004	$11,733	.575	$6,746
17	$285	$17,004	$11,733	.542	$6,359

(1)Expert Report at par 3.5.

(2)Column 1, Uplifted by CPI to 2021 (14.9%) x 52.[119]

(3)69% of Column 2, see Expert Report at par 3.12.

(4)Present value (NPV). Factors assume a discount rate of 6% for future periods.

[119] See Expert Report, Tables B.2 and B.3.  Recalculation has been undertaken to reflect, as at June 2021, inflation uplift.

1. I assess the past costs of raising BK, from his birth in 2014 until his 7^th birthday in 2021 at $25,116.[120]  It is appropriate that pre‑judgment interest be paid on this amount over 7 years[121] at an interest rate of 3%.[122]  I assess pre-judgment interest in an amount of $5,274.  I assess the future costs of raising BK, from his 7^th birthday in 2021 until his 18^th birthday at $52,957.[123]  The total costs are $83,347.

   [120] The sum of amounts in column 5 (rows 0 - 6) of the table above.

   [121] As was done in Melchior v Cattanach [78].

   [122] Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [226]. "A 'rough and ready method of calculation' of one half of the usual interest rate may be justified where a 'claimant has been deprived of a regular monetary amount over the period of the calculation - a period that continues to the point where the pre‑judgment interest is calculated and awarded on entry of judgment.'"

   [123] The sum of amounts in column 5 (rows 7 - 17) of the table above.

2. I consider it appropriate for the cost of raising BK be awarded on the basis that Ms O'Loughlin and Mr Smith be compensated for the reasonable costs of raising BK until the age of 18.  In Nouri v Australian Capital Territory[124] Justice Elkaim reviewed the law on when, assuming medical negligence, the defendant was liable in the cost of raising child beyond its 18^th birthday.  After reviewing relevant authorities, it was concluded that, notwithstanding the continuing moral obligation of parents to support a child, there is no entitlement to damages for the costs after the child has turned 18.  In any event, the effect of Ms O'Loughlin's evidence was that BK's four oldest siblings ceased to be dependent on their parents before turning 18.  There is no evidence of BK having particular needs that would distinguish him from his siblings. 

   [124] Nouri v Australian Capital Territory [2018] ACTSC 275 [443].

Social security set off issue

1. At the request of the defendants, Mr Plover compared the estimated cost of raising BK based on the NATSEM methodology (described above), with the additional amount of Family Tax Benefit payable on account of BK.  He concludes that, for each year of BK's life until he turned 15, the estimated annual cost of raising BK was less than the annual Family Tax Benefit.  For years 15, 16 and 17, the estimated annual cost of raising BK was more than the annual Family Tax Benefit.[125] 

   [125] Expert Report, table B.1.

2. The same comparison with NATSEM figures revised for 2020 revealed that for each year of BK's life, except years 10 - 12 and years 15 - 17, the estimated annual cost of raising BK was less than the annual Family Tax Benefit.  For years 10 - 12 and years 15 - 17, the estimated annual cost of raising BK was more than the annual Family Tax Benefit.[126]

   [126] Expert Report, table B.2.

3. Mr Plover concludes that, in aggregate, the Family Tax Benefit payable for BK until the age of 18 exceeds the estimated cost of raising the third child in a low income family by the amount of $17,940.[127]  He also concludes that the net present value of the annual difference between government benefits and the estimated cost of raising BK,[128] between ages 6 - 18 is a negative figure (-$19,163).

   [127] Expert Report, par 3.14.

   [128] Assuming that BK is the fifth child: Expert Report, pars 4.15 - 4.16 and table B.3.

4. In summary, Mr Plover concludes that, notwithstanding those (few) future years when the estimated costs of raising BK exceed the Family Tax Benefit, after taking account of the future years when the estimated costs of raising BK is lower than the Family Tax Benefit, Ms O'Loughlin and Mr Smith incur no past or future loss on account of BK's birth.

5. This conclusion is the basis for the following submission by the defendants:[129]

   … it is appropriate for government assistance or Centrelink payments to be set off against any claim for the costs of raising [BK] to the age of 18 years.  Whilst the law is unclear on this issue, and there is no binding authority, the defendants point out that due to concerns about actual increased costs of medical negligence premiums, litigation for wrongful birth claims, legislation was introduced in SA, NSW and QLD to severely restrict more claims and exclude claims for the costs of rearing and maintaining a child in the future.

   [129] Defendants Written Submissions, pars 37 - 38.

6. The precise question of whether a Family Tax Benefit paid or payable under the FA Act must be brought to account when calculating the costs of raising a child has not been the subject of judicial analysis.[130]  However, the principles of law to be applied in order to answer the question have been much discussed.[131]  In the case of a social security benefit, the decisive consideration is not whether the benefit to which the injured party is entitled was received because of the tort, but rather the character of the benefit.  It is not necessary (or appropriate) to resort to reasoning by reference to 'floodgate' concerns regarding insurance premiums or to seek analogy in the development of the common law by reference to legislation in other jurisdiction.

   [130] See the cases discussed in Lunz and Harder, Assessment of Damages for Personal Injury and Death (5^th ed) 12.6.10.

   [131] See the cases discussed in Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [26]-[30]. See also: Lunz and Harder, Assessment of Damages for Personal Injury and Death (5^th ed) 9.5.1ff.

7. The character of the benefit is determined by the intent associated with the payment of the benefit.[132]  A benefit whose purpose is to be enjoyed by the injured party and not to relieve liability of the tortfeasor will not reduce damages payable by the tortfeasor.[133]

   [132] National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569, 599 (Windeyer J) (Espagne).

   [133] Espagne (573).

8. In the case of a social security benefit payable under a statute, the court must ascertain the intention of the legislature.  The ultimate question, framed by Mason and Dawson JJ in Redding v Lee[134] at [137] is 'Was the benefit conferred on the [injured party] independently of any right or redress against others and so that [the injured party] might enjoy the benefit even if [the injured party] enforced the right?'[135]

   [134] Redding v Lee [1983] HCA 16; (1983) 151 CLR 117, 137.

   [135] See also: Zheng v Cai [2009] HCA 52 [29] (French CJ, Gummow, Crennan, Kiefel & Bell JJ); (2009) 239 CLR 446 (14).

9. Ascertainment of the intention of the legislature requires consideration of the subject, scope and purpose of the relevant statutory provisions.  It starts with examination of the ordinary, grammatical meaning of the words of the statute.[136]

   [136] Zheng v Cai [27].

10. One indicia of legislative intention is a statutory provision to the effect that a benefit may be recovered by the executive from any award of damages.  Such a provision has been said to be a 'clear indication that the benefit is not provided in relief of a liability of the tortfeasor'.[137]

    [137] Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 (436); Luntz H, Assessment of damages for personal injury and death (4^th Ed, 2006) [8.1.5].

11. In the absence of the 'clear intention' of legislative intention, it may be possible to ascertain legislative intention from the nature of the benefit.[138]  If a statutory benefit is 'a substitute or a partial substitute for a loss or damage which is the same loss or damage the subject of an award of damages', the legislature may have intended the statutory benefit be brought to account.[139]  If the grant of the statutory benefit depends upon the exercise of a discretion, the legislature may have intended that the recipient retain the benefit alongside the right to pursue the tortfeasor for liability.[140]

    [138] Manser (436).

    [139] Manser (445) (Mason & Dawson JJ).

    [140] Espagne [578]; Redding v Lee (146).

Social security set off issue: the FA Act

1. Provision for payment of Family Tax Benefit is made by pt 3 (Eligibility for family assistance) and pt 4 (Rate of family assistance) of the FA Act.  The balance of the FA Act makes provision for other payments including 'Child Care Subsidy', 'One Off Payment to Families', 'Clean Energy Advances' and 'Economic Support Payments 2020 and 2021.'

2. The FA Act does not expressly provide for the consequences of a recipient of Family Tax Benefit (or other payments made under the Act) receiving an award of damages.[141]  Nor does the FA Act expressly state the purpose of the payment of Family Tax Benefit or other payments made under the Act).  The label, 'Family Tax Benefit', is opaque as to the legislative purpose.  In contrast, a legislative purpose may be inferred from a payment labelled 'Child Care Subsidy' or 'Clean Energy Advances'.

   [141] Contrast Part 3.14 of the Social Security Act 1991 (Cth) on the consequence for certain income support payments under that act of an award of damages.

3. The word 'Tax' appears in the label 'Family Tax Benefit' and in the long title of the FA Act: 'An Act to implement a New Tax System by providing assistance to families and for related purposes'.  The FA Act commenced on 1 July 2000.  On the same date, a package of legislation associated with the introduction of a 'goods and services tax' and including the phrase 'New Tax System' in the long title also commenced.[142]  The second reading speech made on the introduction of the A New Tax System (Family Assistance) Bill 1999 suggests a link between the (new) tax system and the Family Tax Benefit, 'This government wants to improve the assistance that families can get through the tax and social security systems'.[143]

   [142] For example: A New Tax System (Goods and Services Tax) Act 1999 (Cth).

   [143] Commonwealth, Second Reading Speech, House of Representatives, 31 March 1999, 4889 (Mr P Costello, Treasurer).

4. Subject to the application of an income test (and not being a newly arrived migrant),[144] every person who has the care of a child is eligible for receipt of Family Tax Benefit Part A.[145]  The benefit is payable from the birth of the child until the child becomes independent, between the ages of 16 and 19.[146]  The benefit is paid to the primary carer of the child.[147]  It may be shared between two persons based on the actual level of care.  The amount of the benefit is the same for each child and is calculated in a manner that depends upon the income of the recipient.[148]  Entitlement to the benefit is not dependent on the assets of the parents.  For 'low' income parents, the amount of the benefit is the same each year until the child turns 13, when the amount increases and is paid at the higher level each year thereafter.[149]  For 'high' income recipients, the amount of the benefit is the same each year that the benefit is paid.[150]  The quantum of the benefit is the result of an application of a formula contained in the FA Act. [151]  One variable in the formula is the 'standard rate'.  This rate is specified in the FA Act and provision is made in the Act for the 'standard rate' to increase in accordance with the consumer price index.[152]

   [144] FA Act s 61AA.

   [145] FA Act s 21.

   [146] FA Act Subdivision A of div 1 of pt 3.

   [147] FA Act Subdivision A of div 1 of pt 3.

   [148] FA Act sch 1 has the effect that the 'adjusted taxable income' of parents determines the 'rate' of payment.

   [149] FA Act sch 1, cl 7.

   [150] FA Act sch 1, cl 26.

   [151] Eg. FA Act sch 1, cl 3.

   [152] FA Act s 85 and sch 4.

5. Family Tax Benefit Part B may be payable in addition to Family Tax Benefit Part A.  Family Tax Benefit Part B is calculated by reference to the age of the youngest child only and is paid until the child reaches a certain age.[153]  The amount of the benefit is the same each year until the child turns 5, when the amount decreases and is paid at the lower level each year thereafter.  The quantum of the benefit is the result of an application of a formula contained in the FA Act. The effect of the formula is that the benefit is significantly higher in the case of a child of 'single income' parents.[154]

   [153] FA Act sch 1 cl 30.

   [154] FA Act sch 1 cl 28D.

6. Family Tax Benefit is payable to a carer upon the statutory criteria being satisfied.[155]  No discretionary decisions by the minister or public servants are involved in the decision to grant a payment.  However, the FA Act contains provisions that make a person ineligible to receive a payment where certain criteria, involving a discretion, are satisfied.  It also contains provisions that may result in payment of a benefit being reduced, including being reduced to 'nil'.

   [155] FA Act s 21.

7. The FA Act contains a provision to the effect that the minister, by legislative instrument, may determine a method for calculating the amount of Family Tax Benefit.[156]  It follows that the amount of future benefits is subject to uncertainty insofar as the amount is amenable to change at the instance of the minister.

   [156] FA Act sch 1, cl 6, cl 25B, cl 29.

8. The FA Act contains provisions that may, in particular cases, result in a carer not being eligible for the Family Tax Benefit.  The Family Tax Benefit will be reduced if a carer fails to take such 'maintenance action' against a biological parent that the secretary considers reasonable.[157]  A portion of the annual payment of Family Tax Benefit (known as 'the supplement') will remain unpaid until the benefit recipient discharges certain obligations concerning the lodging of income tax returns.[158]  Family Tax Benefit payments will also cease while they are being applied, at the discretion of the secretary, to reduction of any debt due by the carer to the Commonwealth.[159]  Family Tax Benefit Part A will cease if a carer does not arrange for the immunisation of a child to whom the payment relates.[160]  The same benefit will cease if there is a failure to comply with notice from the secretary requiring a health check in relation to a child to whom the payment relates.[161]  Relevant to Ms O'Loughlin, continued eligibility for Family Tax Benefit Part B may be adversely affected by an award of damages to the recipient for loss of earnings.[162]

   [157] HA Act sch 1, cl 10.

   [158] FA (Admin) Act s 32A.

   [159] See s 84 of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

   [160] FA Act s 61B.

   [161] FA Act s 61A.

   [162] FA Act s 29A on 'passive employment income'.

Social security set off issue: analysis

1. Family Tax Benefit is be paid from birth until a child becomes independent (or a maximum age is reached).  Family Tax Benefit Part A is paid per child.  When a child turns 13, Family Tax Benefit Part A will increase for 'low' income parents.  Family Tax Benefit increases annually in accordance with the consumer price index.  These features of Family Tax Benefit, proscribed by the FA Act and described above, tend to support the benefit being characterised as a substitute for the cost of raising a child.  If that is correct, benefits paid (and payable) to Ms O'Loughlin may be set off against damages assessed for the past (and future) costs of raising BK.

2. The fact that the birth of BK was the trigger for any (past or future) payments of Family Tax Benefit is not a decisive consideration.  Notwithstanding the matters identified in the previous paragraph, I consider that there are indications in the FA Act favouring the conclusion that the legislature intended that a recipient of Family Tax Benefit enjoy the benefit independently of any right that results in an award of damages to the recipient for the cost of raising a child.

3. The text of the FA Act and the nature of the Family Tax Benefit suggest an overall legislative purpose being to assist a carer and not in substitution of the cost of raising a child.  The textual indications include the presence of the word 'assistance' in headings and the word 'tax' in the name of the FA Act and the benefit itself.  The benefit, a form of 'assistance', is available as a result of reform of the taxation system.  Payments received are not required to be used by a recipient for any particular purpose.[163]

   [163] Ranford v The State of Western Australia [2015] WASC 45 (S) [3]: 'The payments made under (the FA Act) concern payments to assist with the raising of children. None of the payments under that act is a payment tied to a purpose …'.

4. Unemployment benefits target a discrete class of persons who share a 'loss' by reason of a distinctive cause, namely, becoming unemployed.  Unemployment benefits have been brought to account against an award of damages for a plaintiff's loss of earnings.[164]  In contrast, Family Tax Benefit is made available to all carers, subject to application of an income test, and irrespective of the assets of the recipient.[165]  The benefit is not targeted at particular parents or particular children.  It is not concerned with the actual needs of a child or, if the child has needs, how those needs came about.  The amount of the benefit is not calculated by reference to the actual costs of raising a child.  These features of the benefit are inimical to an intention that the benefit be brought to account on the recipient of the benefit being found to enjoy a right to damages in connection with the cost of raising the child. 

   [164] Redding v Lee (128) and (144).

   [165] See Redding v Lee (143) where the omission of an assets test was found to be indicative of a legislative intent that the recipient of an invalid pension continue to enjoy a right to damages unaffected by receipt of the benefit.

5. Noted above are indications in the FA Act of some matters of legislative concern associated with payment of Family Tax Benefit: child immunisation, health checks of a child and completion of income taxation returns by the carer of the child. Legislative pursuit of these matters is not inconsistent with a legislative intention that Family Tax Benefit be retained by a recipient who may have rights of redress against others in connection with the cost of raising a child.

6. Also noted above are circumstances when Family Tax Benefit may not be paid, including when a recipient fails to take maintenance action considered reasonable by the secretary or (in the case of Family Tax Benefit Part B) receives an award of damages for loss of earnings.  These provisions are redolent of a legislative intention that the recipient retain the benefit in other circumstances, including in pursuit of a tortfeasor on account of negligence.

7. Finally, mention ought be made of the difficulty of predicting the amount to be received as future payments of Family Tax Benefit as tending to displace an intention that potential future payments be brought to account against any award of damages for the future costs of raising a child.  Assuming that the FA Act does not change, I have noted above that the Act itself provides for the minister to alter the method of calculating the benefit.  I have also noted that, irrespective of the circumstances of a child, payment of a benefit to a carer may be appropriated to reduce a debt to the Commonwealth. 

8. Insofar as a provisional assessment of damages in each of Stobart v Al‑Hakeem[166] and Mollenhauer v Gilroy[167] may have resulted in a different conclusion to the one that I have reached, I note that in neither of those cases was it considered necessary to undertake a consideration of the text of the FA Act.[168]

   [166] Stobart [325].

   [167] Mollenhauer v Gilroy [2004] QSC 377 [34] (de Jersey CJ).

   [168] See also Lunz and Harder, Assessment of Damages for Personal Injury and Death (5th ed) 12.6.10.

9. I have concluded that past or future payments of Family Tax Benefit to Ms O'Loughlin and Mr Smith are not to be brought to account against the cost of raising BK.  In the event I am wrong, I will make three observations:

1. First, I am satisfied that Ms O'Loughlin has been in receipt of Family Tax Benefit on account of BK from the date of his birth until the trial of the action.

2. Secondly, if future payments of Family Tax Benefit to Ms O'Loughlin and Mr Smith were brought to account against the cost of raising BK, I would reduce estimated future Family Tax Benefits by a fraction to reflect a number of contingencies.  Those contingencies include that: the benefit ceases to exist; the level of benefit is reduced; and there is also the prospect that Ms O'Loughlin and Mr Smith cease to become eligible for the benefit.

3. Thirdly, unlike Mr Plover, I would not determine the net present value of damages as the sum of the annual net present values with the result that a 'negative' net present value in one year is brought to account against a 'positive' net present value in different year.  In my view, having regard to the purpose and nature of the future benefit, the net present value of damages is to be at calculated at 'zero' for each year in which benefits exceed costs.  The result would be an award of damages in the amount of the sum of the net present values for each year in which the costs exceeded the benefits.

Conclusion

1. Parts of the testimony of Ms O'Loughlin and Mr Smith and their closing submissions suggested a claim for exemplary and aggravated damages.[169]  However,  no evidential foundation exists for any finding that Dr McCallum engaged in 'conscious wrongdoing in contumelious disregard of the rights' of Ms O'Loughlin.[170]  There is no merit in a claim for exemplary and aggravated damages. 

   [169] ts 45; ts 87; ts 206.

   [170] State of Western Australia v Cunningham [No 3] [2018] WASCA 207 [109]-[116].

2. Parts of the testimony of Ms O'Loughlin and Mr Smith suggest claims for damages for Mr Smith's gratuitous care of Ms O'Loughlin and for his assuming her role in care of their children.  The law does not admit of a claim for damages for Mr Smith's 'stepping into' Ms O'Loughlin's role and caring for  their children.[171]  If supported by evidence, the claim for care of Ms O'Loughlin would be compensable in accordance with the principles established by the High Court in Griffiths v Kerkemeyer.[172]  However, there is insufficient evidence on the nature and extent of services Mr Smith provided to Ms O'Loughlin to make any assessment of damages.[173]  If damages were assessed, the assessment would be in an amount well below $7,000, with the result that no damages would be awarded by reason of the CLA.[174]

   [171] The law is summarised in Amaca Pty Ltd v Werfel [2020] SASCFC 125, [508] :'The distinction between the services which have in fact been provided to a plaintiff gratuitously, and those which the plaintiff can no longer provide to others, lies at the heart of the ruling made in CSR v Eddy [2005] HCA 64; (2005) 226 CLR 1. Griffiths v Kerkemeyer supports the recovery of damages measured by reference to the market or commercial cost of providing services to the plaintiff, but it does not support the recovery of damages for the plaintiff's inability to provide services to others. In that latter respect, Sullivan v Gordon was overruled and earlier authorities such as Burnicle v Cutelli were approved.'  See also Lunz and Harder, Assessment of Damages for Personal Injury and Death (5th ed) 12.6.8.

   [172] An injured plaintiff  may recover damages for the value of needed services that are rendered gratuitously by friends and family members: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 168 (Gibbs J), 173 (Stephen J), 192 (Mason J).

   [173] ts 47 and ts 88.

   [174] CLA, s12 and s 13(3). Amount B is $7000.

3. The result of my judgment is an award of damages in favour of Ms O'Loughlin in the sum of $20,000 on account of the Loss of Earning Capacity Claim and $22,000 on account of the General Damages Assessment.  There will be an award of damages in favour of Ms O'Loughlin and Mr Smith, jointly, in the sum of $83,347 on account of the Assessment of the Costs of Raising BK.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

SC

Associate to Judge Flynn

11 AUGUST 2021