Cattanach v Melchior

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow JJ,Kirby J,Hayne J,Callinan J,Heydon J
• Judgment Date: 16 July 2003
• Neutral Citation: 2003-0716 HCA A,[2003] HCA 38
• Court: High Court
• Docket Number: B22/2002
• Date: 16 July 2003

Stephen Alfred Cattanach & Anor

Appellants

and

Kerry Anne Melchior & Anor

Respondents

[2003] HCA 38

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

B22/2002

HIGH COURT OF AUSTRALIA

Cattanach v Melchior

Negligence — Medical negligence — Negligent advice following sterilisation procedure — Birth of child — Damages — Whether damages recoverable for past and future costs of raising and maintaining child until the age of 18 years — Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child.

Public policy — Family relationships — Negligent advice following sterilisation procedure — Birth of child — Damages — Whether birth of child is a legal harm for which damages may be recovered — Whether departure is required from ordinary tortious rules as to causation and economic loss.

Damages — Negligence — Medical negligence — Negligent advice following sterilisation procedure — Birth of child — Whether recovery limited to damages for pain, suffering, inconvenience and costs of pregnancy and childbirth — Whether additional damages recoverable for past and future costs of raising and maintaining child until the age of 18 years — Whether absence of physical injury to father of child indicates that damage amounts to pure economic loss — Whether unplanned pregnancy constitutes injury to mother — Applicable rules governing recovery in such a case — Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child — Whether recovery limited to cases involving extra costs caused by disability of parent or child.

Representation:

D F Jackson QC with C Newton for the appellants (instructed by Deacons)

B W Walker SC with M E Eliadis for the respondents (instructed by Shine Roche McGowan)

Interveners:

R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

C J Kourakis QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

ORDER

Appeal dismissed with costs.

Gleeson CJ

The issue

1 If, in consequence of medical negligence, a couple become the parents of an unintended child, can a court, in an award of damages, require the doctor to bear the cost of raising and maintaining the child?

2 Such a question has divided judicial opinion in many countries. Recently, the House of Lords held that, according to the laws of England and Scotland, the answer is no 1. At least to the present time, that is also the preponderant view in North America. The reasons for judgment of other members of the Court refer to the case law in other jurisdictions. The question cannot be answered by intuition. The intuitive response of many people would probably vary according to the circumstances of particular cases; including some circumstances that the law would regard as irrelevant. Courts seek to answer the question by reference to general principles, based upon legal values. Those principles may allow for exceptions or qualifications, but such exceptions or qualifications themselves must be founded upon principle. The differing responses given by courts throughout the world show that the relevant principles are not easy to identify, or apply.

3 The way in which the question is framed is closely related to the facts of the present case; and those facts are uncomplicated. A claim for damages was brought jointly by the respondents, as a couple, and an award of damages was made to them jointly. The claim was not based upon the existence of any disability on the part of either mother or child, or any special or unusual needs which will take the cost of raising the child out of the ordinary. The first appellant is an obstetrician and gynaecologist who provides sterilisation services in the course of his practice. It is lawful for him to do so; just as it was lawful for the first respondent, Mrs Melchior, to seek those services. Mrs Melchior did not have to justify her decision to become sterilised, and the reasons she gave in evidence were not unusual. They were not based on considerations of financial hardship, or medical necessity. She decided she wanted no more children. The claim with which this Court is concerned was based on tort, rather than contract. That is because Mrs Melchior undertook her sterilisation procedure in a public hospital. The second appellant, the State of Queensland, is the authority responsible for the hospital at which Dr Cattanach attended Mrs Melchior.

4 The legal uncertainty surrounding the issue as it is presented in this case is not only the result of the fact that widespread availability and use of sterilisation services, associated with the possibility that medical negligence may result in

unintended conception, is a comparatively recent social phenomenon. In truth, what is involved is a new manifestation of an old problem: the way in which the law of tort deals with the consequences of negligent conduct of one person that affects the financial interests of others, as distinct from conduct that injures another's person or property. The distinction between what is often called pure economic loss, and loss, including financial loss, flowing from injury to person or property, is not always clear, or satisfactory. Even so, it is embedded in the law of tort, and forms the basis of established rules governing liability for damages 2. The common law shows more caution in imposing tortious liability for conduct that has an adverse effect upon purely financial interests than it shows in relation to conduct that causes damage to person or property 3. There are sound reasons of legal policy for that

5 In identifying the nature of the alleged loss for which Mr and Mrs Melchior seek damages, it is to be noted that its immediate cause was the process of human reproduction (conception, pregnancy and birth), resulting in a parent-child relationship. That relationship is the source of legal and moral responsibilities which are the basis of their claim for damages.

6 The common law has always attached fundamental value to human life; a value originally based upon religious ideas which, in a secular society, no longer command universal assent. Blackstone, in his Commentaries 4, referred to human life as ‘the immediate gift of God, a right inherent by nature in every individual’. Many people who now respect the same value, do so upon different grounds. However, in this context, the concept of value is ethical, not economic. It does not depend upon the benefits, tangible or intangible, that some children bestow upon their parents. It may be assumed that most children enrich the lives of their parents. But, in the eyes of the law, the life of a troublesome child is as valuable as that of any other; and a sick child is of no less worth than one who is healthy and strong. The value of human life, which is universal and beyond measurement, is not to be confused with the joys of parenthood, which are distributed unevenly. The fact that the present problem involves human reproduction, and the parent-child relationship, is significant; but not because it introduces an ethical dimension that forecloses debate. The problem to be addressed is legal. In any event, it may be doubted that theology provides the answer to a financial dispute, between a provider of sterilisation services and aggrieved patients, concerning the extent of the damages to be awarded on account of the birth of a child.

7 There is another consideration which might influence the intuitive response of some people, but which also is legally irrelevant. Whatever the principle that determines the answer to the question posed above, it applies regardless of the financial circumstances of the parents. The common law does not permit courts to impose a means test upon plaintiffs. Wealthy parents, who might reasonably be expected to spend more on bringing up their children, may have a larger claim than poor parents, to whom the birth of an unintended child might cause comparatively greater financial hardship. This would be so simply because a tortfeasor takes a victim as he or she is found.

8 In the present case, McMurdo P, in the Court of Appeal, made the pertinent observation that neither side invited the court to take account of the social security benefits, which may or may not be means tested, to which parents are entitled in various circumstances. It is accepted as relevant that the social context in which this issue is to be resolved is that of a secular society, in which attitudes towards control over human reproduction have changed. It is also to be noted that modern governments accept a responsibility to make welfare arrangements for the benefit of supporting parents.

9 The argument for the appellants, and some of the reasoning in McFarlane v Tayside Health Board 5, points to an apparent incongruity. To say that, as a result of the birth of an unintended child, the parents have an extra mouth to feed, is true. But it is a small part of the truth. Except for people who live at the most basic level of subsistence, it is an obviously incomplete description of the consequences of parenthood. It is incomplete even as a description of the financial consequences. It is not difficult to think of cases in which the birth of a child, and the formation of a parent-child relationship, could have serious effects upon the future earning capacity of a mother, or a father. There are parents for whom the cost of feeding and maintaining an unintended child would be of minor importance compared to other financial...