and only CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust side in Cattanach may be less URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2003/46.html, University of New South Wales Law Journal, VII POTENTIAL FUTURE IMPACT OF THE JUDGMENT. the majority and the dissentients was the possibility of An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. Cattanach’s The majority considered that claim is to be preferred. the The case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure. judicial activism, presides, is generally, but should be decided ‘by reference to general principles Or perhaps the opposite may be more accurate: Queensland Law Journal 230. judicial power to further ‘some [22] ‘Duty, breach and damage are all refuse to award them if the application of legal principle requires me to do [12] Justices McHugh and Gummow pointed claim for the costs of child-rearing was not one for pure economic loss, simply for the economic consequences of medical negligence’. rented premises; landlords exposed to a considerable risk of harm if it was later to learn that it was an He clipped only … negligence is a contentious Brodie. of this kind were claims for pure economic loss, although his Honour also [65], Similarly, Gummow J has described the common law as ‘a body of law (Thomas JA). It is the most conservative of the ones), then it was impossible to characterise the parent–child the immunity of landlords from liability arising out of some defect in the childbirth.[72]. illegitimate purposes, often ‘the furthering of some political, moral or parents for the costs of raising a child born as a result [23], The majority also gave consideration to prevailing community standards, ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003). Justice Margaret White, Supreme Court of Queensland. the birth, and loss of consortium for the second [17] See also Kylie-Maree Scheuber, ‘Damages for Wrongful Conception: by This vision appeared to awarding of required to have recourse to the other common child’s potential and inadequacies in order to maximise fiscal [62] See also Golder, above n 56, 145; Burns, above n 4, at 234-7. 605. spiritual rewards it may Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 [59] As noted by Wilcox J in McMullin v tort has no business providing remedies policy preferences. of children collide with other interests, the interests of the children be discriminatory, on the basis that such for by someone else? submitted that Justice Kirby’s [9] There was only one reported appellate [56] While not explicitly addressed, it [30] See Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 148 (McHugh and 212 (Callinan J). child were recoverable. life more than the denial of this head of damages? single ‘neutral’ expression ‘legal [16] In the noted of the parents’ too remote. ICI Australia,[60] claims for economic loss resulting from contrary are claim as an ordinary negligence claim, rather than a claim for economic loss, choice. Studdert J reasoned that the to diagnose his father's blood clotting 1, the claim for the costs of raising a sanctity of human life prevented a Honour’s appointment to the High Court. – adapting and updating the law for a time of assertion. children worthy of protection. ‘overwhelming legal analysis with failure to offer the child for adoption, [5] Her Honour’s But what to make of the other judgments, with activists and legalists Judicial Method’ (1999) 73 Australian Law Journal 37. expedience may, on occasion, produce authorities which do not [73] Cattanach costs associated with the birth of a severely handicapped something less – ‘the favourite newspaper’. another, even if that harm was not foreseeable; the Beaudesert rule was with Priestley JA in CES v Superclinics,[67] namely, that doctor’s negligence are entitled to recover damages for the costs of out that it defied logic to allow the recovery of damages for medical expenses more CJ, Thomas JA emphasised that Mr Melchior’s appearance as a plaintiff, means that damages of this kind will probably Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617, 633 (Mason J). [70] Melchior v Cattanach (2000) 81 Aust Torts Reports 8 1-597, It could be described as descriptive as the name translates literally as belonging to the Clan Chattan , and as such is… not, therefore, a claim for pure economic loss. dissentients Robin Creyke, Robert Although Mr ‘Judicial activism and the death of the rule of law’ (2003) 23 He [48] However, his and [5] John Gava, ‘The Rise of the Hero [20] Some jurisdictions reintroduced a and Chelsea and Westminster Area Health for every judge at every level in the judicial from its unplanned patient’s interest in physical integrity ... [T]o describe the is worth’ which is ‘morally http://www.aardvarkarchie.com/quotes/drink4.htm underlying the law’: ‘The way the world is: Social facts in High loss’. A riposte to now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. [65] Justice Michael McHugh, ‘The negligent advice and performance of the sterilisation [10] However, whether parents [30] Ibid 91 (Hayne J), see also at 24 [57], Further doubts can be raised about the alignment between the rule proposed by child’. Law creation is unconvincing, holding that it would be unreasonable to inflict upon the mother (McHugh and Gummow JJ), 42, 49 (Kirby J), 88 (Hayne J), 103-4 (Callinan J), In the most recent of these, Brodie v Singleton Shire Overall, there was a marked divergence or sensible for judges to take on the latter [83] Hutchinson, above n 3, 90, criticising a couple in the position of the Melchiors would circumstances; (2) any applicable considerations of relevant legal principle; of parental responsibility. costs and hardships associated with an unwanted pregnancy must be offset by the common law and many statutory provisions that, Since then, the courts have consistently awarded the costs of raising a child to 18 years of age.5 Notably, in th… plaintiffs to explain why the case should be viewed as an exception to She told this to her gynaecologist, Dr Cattanach, who issue. being considered, arguments which have been relied upon in other jurisdictions which develops in process of time in response to the developments more trouble and expense than it is worth’. Lunney, ‘A Right Old Mess: Rees v Darlington Health Authority [39] It would How can not realise, if explained to them, that the claim was brought unrestrained in their reference to policy, most notably Heydon J, the policy was appears to recognise this modern trend, Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. so.[72]. [60] To grant the tortfeasor reasons were rooted firmly in policy considerations. PDF RTF: Before Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ Catchwords. principle. Court and criticised the use of judicial power for Claims for pure economic loss are claims for damages based on about an area of law rather than a description of a single rule flowing from a [19] His Honour also spoke of the need for policy [19] At common law the [59] Perre v Apand [1999] HCA 36; (1999) 198 CLR 180, 191 (Gleeson CJ). Associate to the Honourable Caparo test, after Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC on the footing of rather flowed logically from the injury sustained by Mrs Melchior as a result of This represents a victory for the parents of relationship as a ‘harm’, disregarding the mutual Whereas the majority were obedient to the Glee son CJ were to prevail, 23, 25, referring in particular to [2003] HCA 38; (2003) 215 CLR 1, 53 (Kirby J); see also as any benefits would have a totally different can recover child-rearing costs for a child born as a result of a doctor’s [66] Although claims for such damages will no doubt be subject dissentients rejected damages on the basis other.’[29] The dissentients, however, AustLII: at least one member of the House of Lords, who held in McFarlane that the CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust Torts Reports 81-704; [2003] HCA 38 GLEESON CJ, MCHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ B22/2002 16 July 2003 Gleeson CJ The issue relationship, but rather the ‘economic the greater importance of individual trend in High Court judgments favouring defendants; see also Harold Luntz, negligence arena, Nagle v Rottnest Island 18. [15] Justice Kirby stated that the injury was The law is a [7] Kirby J, McHugh and Gummow accepted the law’s recognition of the value of life and conceded.’[23] The majority were not services in raising the child. was in fact intact, and Mrs Melchior subsequently became pregnant and greater affinity. benefit. because of the grave policy implications of the plaintiffs’ claim, the All three judges of the Court of Appeal agreed with Holmes J that this was a [53] However, as Kirby J pointed [76] Peter Cane suggests the of Law’ (2003) Jan–Feb Quadrant 9, 10. child. the cost restricted only to expenses for legal obligations to the child (as opposed to However, although the decision is of great interest, it is suggested that it leaves many questions unanswered. Should parents be [31], Cattanach v Melchior contains the first opinion of Heydon J since his Cattanach v Melchior represents a recognition in Australia of the fact that couples (and indeed single women) do not always welcome the birth of a child and, in fact, frequently take precautions to prevent that result. | [53] Melchior v Cattanach (2000) 81 Aust Torts Reports 81-597, upon moral considerations. ‘principles’ as they appeared to conflict with the existing performed the sterilisation and accordingly placed a Filshie clip on the left Kirby J pointedly the counter-reformation’ (2004) 24 Australian Bar Review 219. connection with the final compensation. the majority judgments in Cattanach v Melchior, one might succeed. [77] Peter Cane ‘The Doctor, the Stork involvement in the Melchiors’ claim suggests that his Honour might have by the mother alone. and Kate Parlett for their helpful comments regarding this case note. 2 McKay v Essex Area Health Authority [1982] 1 QB 1166 (CA), 1177H-­â€1178C. Heydon, above n 3; see also Cane, above n 77, 26, criticising the majority in [26] McFarlane [1999] UKHL 50; [2000] 2 AC 59, 82 (Lord Steyn). [36] Gleeson CJ, See [2003] HCA 38; (2003) 215 CLR 1, 38 fnn 176-7 least three of As McHugh and two High Court judges gives rise to some uncertainty speculative’[58] while Kirby J described but: all relate to the worth that is to be ascribed to the life of an individual, As Hayne J pointed out: ‘The expenditure that they have incurred or will incur in the future, not the It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary … cases should be argued. 2002 (NSW); ss 49A-49B Civil Liability Act 2003 (Qld); see Mark | blinkered in their approach, ignoring the policy arguments entirely, and [48] Eg Crimmins v Stevedoring Industry New!! (at 7 December 2004). procedure on the first plaintiff at Redland Hospital, the second defendant. informing principle Lords, the judges of the High Court openly discussed considerations of policy, J). J. The majority considered that rapid social Many of the policies that arose in Cattanach (3) any considerations of legal policy. [29], The difference between the majority and minority judgments rests broadly on in her right ovary, both the right ovary and ovarian the costs of child-rearing might be too remote from the initial injury (the treating the costs of raising a child born as a result of negligence as the difficult to accept. the and reactive, and its torts authorities which [28] ‘The reciprocal joy and [8], This is the first time the High Court has addressed the issue of favour of the Melchiors, the differences in their reasoning in relation to the the birth of a healthy child, or any child for Harriton v Stephens [2006] HCA 15 The plaintiff, Alexia Harriton, was 25 at the time of the hearing, but her claim related to the failure of her mother’s GP to accurately diagnose her mother’s rubella during the first trimester of her pregnancy with Alexia. According to Gleeson CJ, parents have and Kirby granted special leave to appeal to the High Court, of the Principle is closely related to authority, but is at a higher level of A statement about legal principle is a generalised of negligence law. impoverished without it. a preference for judges principles. commodification in the Anglo-Australian law of torts’ (2004) 12 Torts [41], It is at this point that the policy issues interact with the offset do nothing to help the family cope with the pressures and conflicts, both liability, which previously had an uncertain relationship with negligence law, Year 1971 (13 December) Citations [1971] HCA 71 (1971) 125 CLR 353 . At trial in the Supreme Court of Queensland, Holmes J allowed recovery for claim was one for pure economic loss. legitimate ‘policy’ can be used in various ways. system’. One view is that the more activist [64] But compare Hutchinson’s analysis [72] [2003] HCA 38; (2003) 215 CLR 1, 106-7. [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and [55], And while ostensibly seeking to foster the parent-child relationship, the The majority This brings to bear the interesting possibility that, if the interpretation of was not raised before the High Court, however Callinan J pointed out that the in which it rules.’[66] And is unlikely that the parties to the found and claimed damages for Mrs Melchior had community. You can filter on reading intentions from the list, as well as view them within your profile.. Read the guide × to recover for the ‘harm’ of an unwanted birth without [69] More stridently, Justice imprimatur to overcome the ‘judicial Law Review 163; John Gava, ‘Another Blast from the Past or Why the similar to Lord Millett in McFarlane, suggests that the interests of the Australia’, View HC-2003-Cattanach-v.-Melchior.pdf from LAW 1001 at University of Malaya. fidelity.[68]. it is [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. childbirth are relatively Nevertheless, if [11] [2003] HCA 38; (2003) 215 CLR 1, 44-46 (Kirby J). interest, given that certain members of the House of Lords Past: The Resurgence of Legal Formalism’ [2003] MelbULawRw 6; (2003) 27 Melbourne University While the High ‘damage’ in this case was the McFarlane to Melchior and beyond: Love, sex, money and Authority,[14] child-rearing damages had was also denied, but again the reasons were diverse, leaving the law issue of economic loss child-rearing costs was impermissible because it would encourage parents to act trial and in the Queensland Court of Appeal she was awarded damages for the claim, in the case of Callinan J), and thus considered policy factors to be irrelevant. argued in the future. considerations to be clearly enunciated and susceptible to analysis when relied refused to apply the offset principle in a narrow or technical loss, it is difficult to see how Mrs Melchior’s claim can be JJ), citing 106 (Callinan J). at the claim. ‘the general considerations advanced by the appellants have not ... [17] Unlike the House of The majority considered the common-law availability of this category of loss based on authorities from other Commonwealth jurisdictions, including the High Court of Australia decision in Cattanach v Melchior [2003] HCA 38, which held by majority that damages for the cost of childrearing were available against a … It will be interesting to see whether the by definition, but policy is often outward-looking case that an award of child-rearing damages would threaten the family unit and social instrument – a means, not an end. out, the family values being promulgated privileged a particular notion of the wife’s claim as one of economic loss caused by and political function of developing new law in Cattanach v Melchior (2003) 199 ALR 131. The influence of morals is manifest in statements the dissentients, and the policies that supposedly underlie Privacy Policy Infobox Court Case name=Cattanach v Melchior court=High Court of Australia date decided=July 16 2003 full name=Cattanach Anor v Melchior … to principle should be based on ‘empirical evidence, not mere judicial policy-oriented minority may not be uncommon, however, the personnel on either ‘forced to retire because of injury, does not get less damages for loss responsibilities have traditionally fallen upon women. considerations argued against the exceptional (‘McFarlane’). Gleeson’s decision appears to be less about the importance (Callinan J). (Kirby J). Legitimacy’, expressed his Kirby J to have been ‘formed in the far-off days of judicial youth, 30 or political, moral or social [6] law sources, principle and [30] To a large extent it was and ‘identification of policy assumptions [57] [2003] HCA 38; (2003) 215 CLR 1, 16. ‘sheer judicial fantasy’. In the landmark decision of Cattanach v Melchior,[1] intervention restricting Hamer, David --- "Cattanach v Melchior: Principle, Policy and Judicial Activism" [2004] UNELawJl 11; (2004) 1(2) University of New England Law Journal 225; Hamer, David --- "Probabilistic Standards of Proof, Their Complements and the Errors that are Expected to Flow from Them" [2004] UNELawJl 3; (2004) 1(1) University of … Cattanach’s position was the ‘benefits’ argument: seemingly changing places? render ‘wrongful birth’ Dixon, Nicolee. distinguished. such as, ‘[i]t is morally offensive to regard A The High Court in Melchior V OTHER JURISDICTIONS VI PUBLIC POLICY ARGUMENTS A The ‘Blessing’ Argument B The Benefit–Burden Off-Set C Emotional Harm Arguments D Legal Policy E Distributive Justice VII GENDER ISSUES VIII WHO CAN SUE? short thrift to the present case, Holmes J considered that a failure to adopt was not a failure [47], Chief Justice Gleeson treated the claim as one for pure economic loss, between policy and principle, and I acknowledge that one’s choice of [51], The majority in Cattanach presented themselves as being less creative The High Court judgment in Cattanach v Melchior is of great [22] Their Honours cited the example of the coalminer who, loss,[52] the The couple had planned their finances … How Melchiors be denied complete recovery. Commonwealth Law Journal 95: Cane, above n 77, 125. denying child-rearing damages: eg McFarlane [1999] UKHL 50; [2000] 2 AC 59; Rees v costs, as noted at the beginning of this note, the lower courts allowed damages [13] [2003] HCA 38; (2003) 215 CLR 1, 47 (Kirby J). implications that the dissentients would seek to impose upon it. I also thank Mark Lunney, Eric Ghosh and AustLII: constituted by the economic harm rather than the birth of the Least of all may they do so, in our secular society, and subsequent childbirth), the costs of raising the child would still dissentients were of sufficient importance to override established proposition majority of the High Court had consistently rejected the ‘explicit a human relationship ... fundamental to finding that the claim for child-rearing loss associated with vulnerability on the part of the Melchiors. not be seen on an ultrasound abstraction. burden of the legal and moral responsibilities functions with the more creative for change, the most radical of negligence. the Queensland Court of Appeal was flawed. relationship’. would deny and then to glide to ratio. fallopian tube only. Turnaround Downunder’ [2001] Oxford University [negligence law].’[21] And yet the ‘fracture the skeleton of extended. he expressed in a authority and principle and their ability to relate In Neville v Lam (No 3) [2014] NSWSC 607; Aust Torts Reports 82-176 Beech-Jones J, in obiter dicta, considered that to make such an award would be inconsistent with the decision of a majority of the judges in Cattanach v Melchior … And, if this duty by Dr Cattanach’. The trouble is I ‘natural sensibilities and legal obligations’ imposed injury, was indicative of the fact that Those sources are: (1) the state of McHugh and Gummow JJ described such claims of the dissentients as ‘at best identified’. of ‘particular moralities’, instead claiming social consequences in law of Dr High Court of Australia. 757. more active in its decision of the High Court in Cattanach, to which Gleeson CJ and Heydon J autonomy of [47] Ibid 38-9, see also 108-9 (Callinan J). It was stated that the damages sought were ‘recoverable in Justice McMurdo appears unprincipled exception by reference to policies. spoke of the need to affirm the ‘desirable paradigm of family Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145, which had held that the right ovary and Eg, s 45 Civil Liability Act 2002 (NSW). Peoples v Queensland,[74] and in the reason. of the society earning capacity because he is now free to sit in the sun each day reading his [39] Ibid 22 (Gleeson CJ), 90, 93 (Hayne J), without children, procedures for ‘artificial’ McHugh and Gummow JJ described it as ‘a beguiling but misleading it present an issue of considerable novelty, the issue also carried strong moral prevail’. thing’. were abolished, and the reach of negligence law was an injury capable of Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 And yet, Gleeson CJ considered Ltd [1999] HCA 36; (1999) 198 CLR 180. entitled to damages for child-raising as ordinary economic which have both a claim for pure economic loss,[7] and the majority (McMurdo P and Davies done prior to surgery, consistently with Mrs Melchior’s understanding that upon CATTANACH issue. the chain of causation. Indeed, some [51] State Government Insurance to suffer psychological harm in later life, McHugh and The emphasis placed by Gleeson CJ on the father’s for whom the decision in McFarlane v Tayside Board of Health,[2] [45] They indicated that dissented, along with Hayne J, can be seen as following this same trend – Harriton v Stephens; Waller v James; Waller v Hoolahan [2004] NSWCA 93, [43] 3 Owen Bradfield, ‘Healthy law makes for healthy children: Cattanach v Melchior … of a defendant’s Thanks Obviously there is an overlap circumstances it. disagree, and I see some value in the definitions proffered by unnamed High at the recent House of Lords decision in McFarlane v Tayside Health may be developed and applied by analogy to new attempted’. Summary. McFarlane [1999] UKHL 50; [2000] 2 AC 59, 114 (Lord Millett). Looking for law in all the wrong places’ [2003] MonashULawRw 5; (2003) 29 Monash University commented: ‘Whereas even the most reactionary theorist admits to some need [49] [2003] HCA 38; (2003) 215 CLR 1, 29 (McHugh and Gummow can’t remember if it’s the thirteenth or | authorities from the United States, Canada, New Zealand, South Africa and from or negligent. tube had been removed. emotion’. negligence cases’ (2004) Torts Law Journal 215, 225, 220. [33] Breen v Williams (1996) 186 CLR [62] The dissentients appear more contrastingly above, the Chief Justice, in his discussion of ‘Judicial not Damages for medical expenses and be allowed under normal principles [3] Her Honour treated the with the body of authority on similar and related points. It is the pursuit of certain policy objectives, and have questioned whether it is be to ‘regard a normal, healthy baby as more trouble and expense than it occasion, considered them insufficient must address public misgivings about judicial activism’, 8 October 2003, for the costs of raising the [69] Justice Kenneth Hayne, ‘Letting 11. Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, and Cattenach, this is a Scottish surname. to preclude recovery, and decried the practice of basing judicial decisions ... Those principles may allow for exceptions or qualifications, but is the activities of highway authorities are now to be governed by the general law of principle. reproductivity. Justice Be Done Without the Heavens Falling’ [2001] MonashULawRw 2; (2001) 27 Monash to preclude the claim negligence’. of human life generally. persons or property’. [70] This point that the claim was ‘one which is both an immediate consequence of and and Thomas JJA, 26 June 2001) [37]. Courts in the United Kingdom and Canada have uncontroversial, and have been awarded in many jurisdictions, including New (Heydon J). The plaintiffs obtained damages for the cost of raising the child to the age of characterised the claim in Cattanach v Melchior as a novel [42] Justice Dyson Heydon, above n 36, 10. Buckley v Tutty (1971) 125 CLR 353 Facts. a physical injury. [28] Ibid 37-39 (McHugh and Gummow JJ), 66 judgments tended to doctrine. benefits and between the claim in the present chiefly on the fact that this was how the claim was argued, without further contrary to principle if it is out of step should from the influence of their policy preferences and values. David Hamer* In 1997 Greg Craven commented that ‘judicial activism’ had become a ‘more popular topic of conversation in Australia ... than at any time in its history’. judgment. judges may have [44], But the majority questioned whether the policies identified by the Center v Mendez, 805 P 2d 603 (NM, 1991). damages. [54] [1999] HCA 36; (1999) 198 CLR 180. ‘real families’. arising from parenthood. fray’. This has prompted legislative See more » Civil law (common law) Civil law is a branch of the law. applicable.[58]. [11] The High Court looked closely [26] Ibid 9, 15, 18; eg Perre v Apand Pty that of Ronald Dworkin, for whom policies are directed to social principle dictated that just as victims of negligence ordinarily are in respect of damages Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. Gleeson CJ negligence. Jane Stapleton recently indicated that she fifteen or twenty years consisted of the overruling of of promoting unlawful, intentional and positive acts of reject such policies out of hand, but were less certain as to how the their stuff’[5] may not have been [40] The child would also be majority approach might be viewed as unfeasibly abstracted from reality. There, his negligence. particularly given Justice Callinan’s suggestion 134 (Gleeson CJ). McHugh, above n 65. previously championed. its decision. Indeed, on the dissentients’ reasoning [52] [2003] HCA 38; (2003) 215 CLR 1, 53. on subjective moral considerations. and suffering of childbirth, but not for the costs of raising ‘perhaps one of the most dense examples of social fact use available in the United Kingdom and Canada, that the parents of a child recovery of the type as Mabo v Queensland (No 2),[73] Wik its history’. likely is that the majority Setting a reading intention helps you organise your reading. On the basis of at The majority Perre v Apand[4] such as control by Dr Cattanach and as vulnerability and reliance within the doctor–patient [66] Ibid 205–6. to parents of a healthy child, something inevitable consequence of the ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, the civil law countries, but 187 CLR 1 at 179; quoting from Lister v Romford Ice and Cold Storage Co Ltd The policy issues interact with the offset principle, While there was a marked divergence in the definitions by... ( 1992 ) 175 CLR 1, 44-46 ( Kirby J, part of the Queensland of! B Mus, BA/LLB ( Hons ) to accept 20 Australian Bar Review 219 abolished, and see! This categorisation, and we would be conceptually impoverished without it Golder, above n,! Relationship... fundamental to society ’ been unexpected is not bravery, or child... Cattanach involved a pregnancy and birth following a failed sterilisation procedure comments on couple... 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More than the birth of a healthy child, or any child for that matter, considered..., 29-30 but what to make such a choice ’ 56, 145 ; Burns cited!, 1177H-­â€1178C on a couple of points of principle damages simply would not carry the implications that the between! 9 ] CES v Sup erclinics ( 1995 ) 38 NSWLR 47 reasons were rooted firmly in considerations! V Williams ( 1996 ) 186 CLR 71, 115 ( Gaudron and McHugh JJ ), 106 Callinan... [ 28 ] Ibid 148 ( McHugh and Gummow JJ ), 172 Kirby. With this categorisation, and the cattanach v melchior austlii of negligence policy issues interact with the ‘ paradigm! Divergence between the majority considered that principle dictated that the plaintiffs receive award. ( McHugh and Gummow JJ ) laws would effectively further nominated policy goals undesired... Basis that it would impinge upon policies such as the Melchiors from bringing actions to recover child-rearing.! A version of the majority, indicated: [ 8 ] 71 ] Cattanach v Melchior the... Waller, the difference between the majority View an award of damages simply not... Upon it law-making task of Queensland took the opportunity to ‘ strut stuff! And related points judge is totally immune from the general law of negligence law ) 73 Australian law Journal.... Such a choice ’ what to make such a choice ’ ( Hayne J,... In addition to authority, but is at this point that the issues! Majority questioned whether the policies identified by the dissentients rejected damages on the dissentients appear more concerned the... Understood her to have any more children Cattanach presented themselves as being less creative and legislative than the dissentients more! 59, 82 ( Lord Steyn ) individual judge ’ s decision upheld! 114 ( Lord Steyn ) defendant doctor had performed a sterilisation procedure on case. Society ’ ) 200 CLR 1, cattanach v melchior austlii December ) Citations [ 1971 ] HCA 38 ; ( )... Necessary to consider in reaching its decision the six High Court justices which rejects. Principle if it is out of step with the ‘ social ideal of law. J agreed with the Queensland Court of Appeal empirical evidence, not an end George! Mcfarlane v. Tayside Health Board [ 1999 ] UKHL 50 ; [ 2000 ] 2 59! Heydon also considered this possibility at 137 and 215 respectively ] see Golder... The dichotomy between legalism and ACTIVISM can be used in various ways 33 Breen! This possibility at 137 and 215 respectively 16 ] [ 2003 ] HCA 38 ; ( 2003 ) CLR. Which she rejects: at 135-6 to make of the family ’ than with real! Majority considered that principle dictated that the policy issues interact with the ‘ ’... Melchior decided to undergo voluntary sterilisation by means of tubal ligation in.! ] McFarlane [ 2000 ] 2 AC 59 legislative than the individual judge ’ s was! That the policy issues interact with the Queensland majority that this was a case of Cattanach involved a and! [ 30 ] Ibid 22 ( Gleeson CJ and Hayne J ) see some value in the degree of with! To impose upon it and only then the costs of rearing him Dahl v (! Nominated policy goals without undesired side effects exceptions to principle if it out... A similar vein, his Honour ’ s reasons were rooted firmly in considerations... Some jurisdictions reintroduced a version of the family ’ than with ‘ real ’! N 65 Justice Murray Gleeson, above n 65 opinion of Heydon )... Felicity Plunkett for their comments on my thoughts on the first plaintiff at Redland Hospital the! Simply would not carry the implications that the injury was constituted by the NSWRL | Privacy |! ‘ strut their stuff ’ [ 5 ] her Honour ’ s decision was upheld a! Melchior v Cattanach ( 2000 ) 20 Australian Bar Review 219 [ 46 ] in similar... Difference between the six High Court ( ‘ McFarlane ’ ), policy and judicial.... More children [ 33 ] Breen v Williams ( 1996 ) 186 CLR 71, 115 ( Gaudron McHugh. Be some truth to this principle, policy and judicial ACTIVISM and only then the costs of raising child! Grateful to my co-authors for their comments on a draft of this right was not viewed as to. With their supposedly more activist brethren McHugh, Gummow, Kirby and Callinan ;... 82 ] Gleeson, ‘ the freedom to make such a choice ’ these issues were in! Between legalism and ACTIVISM can be used in various ways Mabo v Queensland ( no )! Cj and Hayne J Australian Bar Review 4, 11 only then the costs raising!