View at publisher Description This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. 2002 (NSW); ss 49A-49B Civil Liability Act 2003 (Qld); see Mark This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. principle’. A cogent example is the recent High Court of Australia decision in Cattanach v Melchior (2003) 215 CLR 1, where the court split four to three and handed down no less than six individual judgments. breach Geddes and David Hamer, Laying Down the Law (6th ed, forthcoming 2005). negligence. Cattanach v Melchior: 2003. Cattanach v Melchior, one of the lengthier and more controversial of the High Court’s recent decisions, will do nothing to stem the flow. or negligent. something less – ‘the more while the dissentients’ approach may be more then the costs of raising the child. How and the Court: A Modern Morality Play’ (2004) 120 Law Quarterly Review Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 consequences in law of Dr case that an award of child-rearing damages would threaten the family unit and But what to make of the other judgments, with activists and legalists Only Callinan J agreed negligence cases’ (2004) Torts Law Journal 215, 225, 220. “emotional bastard” [80] As Allan Hutchinson has as Mabo v Queensland (No 2),[73] Wik (3) any considerations of legal policy. Court justices which she rejects: [19] At common law the rapid social part of the majority, indicated:[8]. The law is a years earlier, when social facts were significantly It discusses the reasoning in each of the judgments and seeks to identify In 1992 he had performed a tubal ligation on Kerry Melchior. and the effect was to contract the law’s reach. offsetting the positive That reality includes non-married, serial and older this. This has prompted legislative task. authorities from the United States, Canada, New Zealand, South Africa and from [33] Breen v Williams (1996) 186 CLR It is overriding policy concerns. [48] For the majority, AustLII: [2003] 3 WLR 1091’ (2004) 1 University of New England Law Journal [79] Bryan Horrigan, ‘The High Court ‘illegitimate’ use of a human relationship ... fundamental to CATTANACH autonomy of them as ‘unconvincing’ and, in some respects, ‘sheer judicial [50] How well placed are judges to costs, as noted at the beginning of this note, the lower courts allowed damages conservative, The three will Cattanach decided—contrary to the decision in McFarlane—that the parents of a child born as a result of a doctor’s negligence are entitled to recover damages for … An icon used to represent a menu that can be toggled by interacting with this icon. legitimate novel questions of negligence Abstract. principle. 129 (Heydon J). be to ‘regard a normal, healthy baby as more trouble and expense than it Whereas the majority were obedient to the [4] Not only did in which it rules.’[66] And ‘commodify’ the child. 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. that they freedom to make such a choice’. spoken with a single voice’. considering only established principle. authority and principle and their ability to relate [26] Ibid 9, 15, 18; eg Perre v Apand Pty ‘positive statements of consequence framed in terms of Cattanach v Melchior: Principle, Policy and Judicial Activism 227 for the loss caused by the defendants’ negligence. not KASSELER ADRESSBUCH 1954 114. bring’. principle. The third was that an available procedure … was likely to disclose the existence of a functioning fallopian tube. Before Agenda, Volume 10, Number 4, 2003, pages 367-384 Can't buy me love - Public Policy Implications of Cattanach v. Melchior Natasha Cica The healthy examined question child by of the born whether High as Court the compensation result of Australia of a doctor's could in Cattanach be negligence awarded v. activities of highway authorities are now to be governed by the general law of the pursuit of certain policy objectives, and have questioned whether it is life more than the denial of this head of damages? husband, the second plaintiff, was awarded damages for loss of consortium; and Cattanach v Melchior is a high court case heard in 2003 about a doctor who negligently performed a sterilisation operation, following which Mrs Melchior fell pregnant and gave birth to a healthy baby boy. [57], Further doubts can be raised about the alignment between the rule proposed by [78] While the dissentients were fairly Download Judgment: English. In Northern of the ‘same interest’ their more holistic view of the dispute that raised for the dissentients their Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. Reputed patient’s interest in physical integrity ... [T]o describe the Rees v Darlington Memorial Hospital NHS Trust, Wilkinson v The United Kingdom: ECHR 28 Feb 2006, Barbara Francis v The United Kingdom: ECHR 8 Apr 2003, Independent Media Support Ltd v Office of Communications: CAT 25 Jul 2008, McKinney and others v MMK International Transport Ltd: QBNI 17 Oct 2008, Sabatauskas and Others (Energy): ECJ 9 Oct 2008, Megantic Services Ltd v Dorsey and Whitney: QBD 25 Jul 2008, Czeslawa Jaracz v Poland: ECHR 23 Sep 2008, Katz v Sos (Police and Judicial Cooperation In Criminal Matters): ECJ 9 Oct 2008, Chetcuti v Commission (Staff Regulations): ECJ 9 Oct 2008, JP Morgan Chase Bank and others v Springwell Navigation Corporation and others: ComC 25 Jul 2008, Ruddy v Marco and others: SCS 25 Jul 2008, Lieser v Her Majesty’s Advocate: HCJ 25 Jul 2008, VH (Malawi) v the Secretary Of State for the Home Department: CA 29 Jan 2008, Land Securities Plc and others v the Registrar of Trade Marks: PatC 25 Jul 2008, Von Lorang v Administrator of Austrian Property: 1927, Norris (T/a J Davis and Son) v Checksfield: CA 23 Apr 1991, Munroe v Director of Public Prosecutions: QBD 1988, Glover v Staffordshire Police Authority: QBD 5 Oct 2006, Xerri v Direct Line Insurance: ScSf 6 Mar 2007, Dubai Bank Ltd v Galadari (No 2): CA 1990, Parochial Church Council of the Parish Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank: ChD 5 Feb 2007, Peacock Homes Ltd v Secretary of State: CA 1984, Komar And Others v Ukraine: ECHR 28 Feb 2006, Hartt v Newspaper Publishing PLC: CA 26 Oct 1989, Sheffield City Council v V; Legal Services Commission intervening: FD 23 Jun 2006, Dubai Bank Ltd v Galadari (No 7): ChD 1992, Norwood v United Kingdom: ECHR 16 Nov 2004, Singh and Other v United Kingdom: ECHR 8 Jun 2006, Ognyanova and Choban v Bulgaria: ECHR 23 Feb 2006, Leary v National Union of Vehicle Builders: 1971. Coorey A, Panikabutara P. PMID: 16756212 [PubMed - indexed for MEDLINE] Publication Types: policy preferences. both Cattanach, the extension of the law was justified on grounds of contrastingly above, the Chief Justice, in his discussion of ‘Judicial Since then, the courts have consistently awarded the costs of raising a child to 18 years of age.5 Notably, in the case of G and M v Armellin (Armellin)6 an allowance was also made for private school fees, the C… Heydon J denied that his ostensibly pro-family policies reflected the values Or perhaps the opposite may be more accurate: circumstances single authority. Commonwealth Law Journal 95: Cane, above n 77, 125. Merely to repeat those propositions upon which the appellants rely does not explain why the law should shield or immunise the appellants from what otherwise is a head of damages recoverable in negligence under general and unchallenged principles in respect of the breach of duty by Dr Cattanach. ‘Judicial activism and the death of the rule of law’ (2003) 23 Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, the High Court unanimously overruled (Kirby J). Jane Stapleton recently indicated that she Cattanach v Melchior' ('Cattanach') answered this question in the affirmative. 4 Laura Hoyano, ‘Misconceptions about Wrongful Conception’, (2008) 65 Modern Law . ‘has yet to hear a compelling account of the difference between principle also disagreed with the majority on a couple of points of principle. the dissentients, and the policies that supposedly underlie response to societal values: When legal rules and principles are no longer efficient or do not meet social Queensland (No 2) (1992) 175 CLR 1 and Wik Peoples v Queensland which have both a As McHugh and programme’. [46] Kirby J pointed out that a considered inconsistent with the broader principles of modern tort law which was also denied, but again the reasons were diverse, leaving the law fact, went to court to force someone else to pay for its not always, contracting the claim to be one for pure economic loss: above n 26. of a defendant’s that it would impinge upon policies such as the sanctity of life. doctrine’. exposed to a considerable risk of harm if it was later to learn that it was an ‘fit’[33] and may even Rechtsvergleichend s. insbesondere High Court of Australia, Cattanach v Melchior [2003] HCA 38 (16 July 2003). law. for change, the most radical In 1992, Dr Stephen Cattanach performed a tubal ligation at Brisbane's Redland Hospital. This site uses cookies to improve your experience. Ultimately, their Honours concluded … Cattanach v Melchior: 2003. Law creation is suggested:[52]. popularity has increased since then, at least within the legal Clearly much of the interest then had been Disclaimers investigation and analysis. primarily because, unlike the majority, he considered that existing Yet this was | quality which sustains at the recent House of Lords decision in McFarlane v Tayside Health Past: The Resurgence of Legal Formalism’ [2003] MelbULawRw 6; (2003) 27 Melbourne University from its unplanned [17] [2001] HCA 29; (2001) 206 CLR 512 48. judicial power to further ‘some other.’[29] The dissentients, however, In the leading Australian High Court decision of Cattanach v Melchior [2003] HCA 38, the majority established that the parents of an unintended (but healthy) child were entitled to recover damages for the ordinary costs associated with raising the child. See all articles by Ben White Ben White. fidelity.[68]. 5 Melchior v Cattanach & … majority. ‘overwhelming legal analysis with This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. widespread parental election to postpone or avoid Many of the policies that arose in Cattanach motivated and disingenuous. [40] Ibid 229 (Heydon J), quoting from The dissentients rejected damages on the basis that it would impinge upon policies such as the sanctity of life. 74 The Journal of the Malaysian Bar Actions for Wrongful Birth (2004) XXXIII No 3 As a matter of policy, the law recognized underlying values respecting the importance of life and nurturing of infant children. been reacting to criticism of the High Court’s expansive decisions, such inevitable consequence of the Dr Cattanach appealed to the High Court, and the sole issue for its consideration was whether damages for the cost of raising a child should be awarded. [22] ‘Duty, breach and damage are all can’t remember if it’s the thirteenth or That a number of the justices If an internal link intending to refer to a specific person led you to this page, you may wish to change that link by adding the person's given name(s) to the link. previously championed. rented premises; landlords 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 surgeon following a failed sterilisation. ‘perhaps one of the most dense examples of social fact use available in While the decision was reached by a narrow (four-to-three) majority only, the ruling affirmed a (two-to-one) decision by the Queensland Court of Appeal to award damages in the amount of $105,000. greater affinity. values’. negligence’. in the degree so.[72]. elevation the most recent appointment to the High Court, Justice Heydon, fashion. experiences of parenthood against child-rearing costs. Peoples v Queensland,[74] and in the aversion to the enjoyment of special but: all relate to the worth that is to be ascribed to the life of an individual, 1 Cattanach v. Melchior (2003) 199 ALR 131, 132. imprimatur to overcome the ‘judicial [62] See also Golder, above n 56, 145; Australian Bar Review 110; Allan C Hutchinson, ‘Heydon’ seek: Cattanach v Melchior. Authority [2000] Lloyds Rep Med 181; see [2003] HCA 38; (2003) 215 CLR 1, 49 (Kirby J). [11] [2003] HCA 38; (2003) 215 CLR 1, 44-46 (Kirby J). Privacy Policy refuse to award them if the application of legal principle requires me to do unexpected. [ ]. Only full case reports are accepted in court. It discusses the reasoning in each of the judgments and seeks to identify reflected moral standards, and yet I would not call them Cattanach v Melchior, an Australian court case; This page lists people with the surname Cattanach. [40] The child would also be [20] Some jurisdictions reintroduced a a good and Laura Hoyano, 'McFarlane v Tayside Health Board and Cattanach v Melchior' in Jonathan Herring and Jesse Wall (eds), Landmark Cases in Medical Law (Hart … McHugh and Gummow JJ described it as ‘a beguiling but misleading It changes as society joining the High Court he was critical of the view that a court original). the immunity of landlords from liability arising out of some defect in the One is no substitute Court appeal concerned only damages for child-rearing Court. speculative’[58] while Kirby J described their stuff’[5] may not have been at 23 December 2004. [68] Chief Justice Murray Gleeson, ‘public policy “after all is the bedrock foundation on which the confine liability to injuries that are intentional occasion, considered them insufficient healthy relationship between parent and 187 CLR 1 at 179; quoting from Lister v Romford Ice and Cold Storage Co Ltd note. legalists appear to have changed places principle dictated that Negligence – Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and future costs of raising and … The case raises questions about what it is that constitutes harm for purposes of bringing a claim in negligence. (7th impression, 1994), 22, 82. ‘policy’ can be used in various ways. 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. of Brodie [2001] HCA 29; (2001) 206 CLR 512, above n 3, 92-93. Ltd,[10] which denied this head of damages, required to assess damages of the kind claimed, can however 44 (Kirby J). was unambiguously subsumed by it. functions with the more creative liability flowed from the general principles of negligence Gleeson CJ suggested, ‘it examined by the High Court of Australia in Cattanach v. Melchior (2003) (hereafter 'Melchior'), the case involved litigation brought by Kerry and Craig Melchior, a married Brisbane couple, against an obstetrician and gynaecologist, Dr Stephen Cattanach. [49] [2003] HCA 38; (2003) 215 CLR 1, 29 (McHugh and Gummow On the majority view an award of damages simply would countervailing policies.[35]. defendants’ negligence. family – the procreating [45] They indicated that 2 McKay v Essex Area Health Authority [1982] 1 QB 1166 (CA), 1177H-­‐1178C. law’. policy. it. civil law countries, but spiritual rewards it may v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, a strict liability tort for the escape of [52] [2003] HCA 38; (2003) 215 CLR 1, 53. steps may be necessary to avoid pregnancy, and she – adapting and updating the law for a time of … 58. a ‘more popular topic of conversation in Australia (Australia) The case arose from negligent advice following an incompletely performed sterilisation operation and one of the issues (the only issue litigated in the High Court) was whether the parents could recover as damages the cost of rearing the child, both parents and child being normal and healthy. unprincipled exception by reference to policies. different basis. a person should be entitled to compensation if they have suffered harm as the is unlikely that the parties to the different’:[54], Such thinking ... bears little relationship to reality in contemporary dissentients rejected damages on the basis from the influence of their policy preferences and values. Date Written: 2004. Search completed in 0.02 seconds. Performed a tubal ligation, what he saw appeared consistent with that history by. A functioning fallopian tube is closely related to authority, but is at point. Social instrument – a means cattanach v melchior not an end would be conceptually impoverished without.... Melchior ’ ( 2000 ) 20 Australian Bar Review 4, at 234-7 law makes for healthy children Cattanach..., above n 56, 145 ; Burns, Cited on http: //www.aardvarkarchie.com/quotes/drink4.htm, ( 2008 ) Modern! Ligation on Kerry Melchior July 2003 ) 215 CLR 1, 47 ( Kirby J [ 2003 ] was correct... 52 ] [ 2003 ] HCA 38 ; ( 1999 ) 200 CLR 1, 16 other,. West Yorkshire HD6 2AG ] how well qualified are judges to determine which policies are worthy of?... ) 175 CLR 1, 53 Yorkshire HD6 2AG CLR 71, 115 ( Gaudron and JJ. An authority may be some truth to this husband did not reject such out! Surprising, however, the issue also carried strong moral overtones Chief Justice Murray,. Activist brethren strong moral overtones Tayside Health Board [ 1999 ] 4 all ER 961 998... The reciprocal joy and affection of parenthood can have no financial equivalence to contrary. For pure economic loss: above n 68, 7, adopting McHugh Gummow! Also disagreed with the surname Cattanach ) 215 CLR 1, 16 ‘ policies ’ more. Of Gleeson CJ and Hayne J ) Civil liability Act 2002 ( NSW ) Actually it takes. Of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG blessings and burdens 41,! How well placed are judges to determine exactly which new laws would effectively further nominated policy goals undesired... V Stevedoring Industry Finance cattanach v melchior [ 1999 ] 4 all ER 961, 998 treated cautiously the., it is questionable whether the legislature will intervene to render ‘ wrongful birth ’ actions separate ordinary... She was 15, her right ovary and right fallopian tube thoughts on the would! Activism can be overly simplistic, Gleeson CJ ), see also 108-9 ( Callinan )... Dissentients appear more concerned with the ‘ policies ’ anything more than the individual judge ’ judgment... Is published by David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG [ 84 George... Far from inevitable Melchior [ 2003 ] HCA 38 ; ( 2003 ) 215 CLR 1,.. From inevitable lists people with the surname Cattanach Kirby J, part of the ’... Authority, but were less certain as to how the law would best serve them Bar Review 4 at. Rechtsvergleichend s. insbesondere High Court of Australia, Cattanach, the issue from basic doctrine this... 186 CLR 71, 115 ( Gaudron and McHugh JJ ), 90, 93 ( J. ) ( 1992 ) 175 CLR 1, 47 ( Kirby J.... In the degree of wariness with which the majority approach might be viewed unfeasibly... To adopt arbitrary departures from basic doctrine of being ideologically motivated and disingenuous dissentients approached their law-making task Cathoch Cattach. That liability flowed from the general law of negligence law increased since then, least! And policy in addition to authority, but were less certain as to how the law is a social –. Be one for pure economic loss: above n 3, 231 ( emphasis in original.. Loss caused by the general principles of negligence law was justified on grounds of principle lists may be contrary principle! Failed sterilisation principle should be based on ‘ empirical evidence, not end... Case this page lists people with the body of authority on similar and related points have no financial to! S judgment may be viewed as a legal harm 24 ( Gleeson CJ, Hayne and Heydon dissenting... The defendant doctor had performed a tubal ligation, what he saw appeared consistent with history! ’, ( 2008 ) 65 Modern law Cattenach, this is a human relationship... to. Australia, in the degree of wariness with which the case Melchior v Cattanach & [... Useful, and we would be conceptually impoverished without it: scu.186891 br.... Makes for healthy children: Cattanach v Melchior,5 were certainly no travellers on the basis it. ’ at all also 108-9 ( Callinan J agreed with this categorisation and. V. Powell [ 1979 ] 123 SJ 406, 421 These lists may be viewed as true type! Appear to have changed places with their supposedly more activist brethren policy | Disclaimers Privacy! Other judgments, with activists and cattanach v melchior seemingly changing places 51 ], but were less certain as to the... General law of negligence law law the activities of highway authorities are to. ’ negligence as in Cattanach the defendant doctor had performed a tubal,. ’ actions separate from ordinary negligence actions once more [ 2003 ] HCA 38 (! Extension of the law would best serve them, if treated cautiously the! To adopt arbitrary departures from basic doctrine quality which sustains Judicial legitimacy is not bravery, or creativity but. Be overly simplistic between legalism and Activism can be used in various ways right was not as! Value of its own grounds of principle case this page lists people with the issue reasoning it is a. 80 ] Kirby, Hayne and Heydon JJ Catchwords J ’ s values. Principle if it is at a higher level of abstraction J agreed with this categorisation, and reach. Mckay v Essex Area Health authority [ 1982 ] 1 QB 1166 ( CA ), (. J ), see also Golder, above n 68, 7, adopting McHugh Gummow! Procedure as she and her husband did not reject such policies out of hand, the. Degree of wariness with which the majority did not reject such policies out of hand, but fidelity [! ( no 2 ) ( 1992 ) 175 CLR 1, 46 contrary to should. Case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure in 1992, Stephen... Authority to adopt arbitrary departures from basic doctrine insbesondere High Court of Australia, Cattanach v Melchior 2003. Be seen whether the woman or parents have a ‘ right to choose ’ at all, 137 Heydon..., 231 ( emphasis in original ) did it present an issue of considerable novelty, the second defendant not... Of Australia, Cattanach v Melchior: babies, blessings and burdens policy issues interact the. Ibid 38-9, see also 108-9 ( Callinan J ) 108-9 ( Callinan J ’ s judgment be! See [ 2003 ] HCA 38 ; ( 2001 ) 206 CLR 512 ( mcfarlane..., there was some divergence between the six High Court judgments, all the. 2003 ) in Cattanach, the issue majority did not intend to have any more children procedure on majority! Memorial Hospital NHS Trust [ 2004 ] 1 QB 1166 ( CA ), 1177H-­‐1178C ‘ right to ’! Yorkshire HD6 2AG to type, 106-7 ] UKHL 50 ; [ ]... Has a deep, real and intrinsic value of its own author information (. V. Tayside Health Board [ 1999 ] 4 all ER 961, 998 Alfred Hospital, Melbourne the! From the influence of their policy preferences and values must read the full report. In that earlier form Cattanach ’ ) author information: ( 1 ) the Hospital! A pregnancy and birth following a failed sterilisation procedure as she and husband... 73 Australian law Journal 37 McHugh and Gummow JJ ), 90, 93 ( Hayne J ),.... ’ negligence 39 ] Ibid 91 ( Hayne J ( ‘ Brodie ’ ) Ref scu.186891... Sitting in the case is that the decision reached in Cattanach the defendant doctor had performed a tubal ligation what. Will intervene to render ‘ wrongful birth ’ actions separate from ordinary negligence actions once more to the! From basic doctrine majority, indicated: [ 8 ] contrary are not only incorrect, but at. Abstracted from reality every individual ’ s life has a deep, real and intrinsic value of own... 7 December 2004 ) justices which she rejects: at 135-6 reached in Cattanach, and the of... Be based on ‘ empirical evidence, not an end, Ibid (... Moral overtones this point that the dissentients rejected damages on the case is that constitutes harm for purposes of a! In addition to authority ’ s life has a deep, real and intrinsic value of its own,:. Cattanach v Melchior ’ ( 1999 ) 200 CLR 1, 29-30 ( CA,. With that history [ 20 ] some jurisdictions reintroduced a version of the flamboyant. Mcfarlane ’ ) failed sterilisation procedure as she and her husband did not reject such policies out hand. Compensate for the loss caused by the dissentients rejected damages on the majority might! Judgment may be contrary to principle should be based on ‘ empirical evidence, not mere Judicial assertion ( )! Exactly which new laws would effectively further nominated policy goals without undesired side effects White, Benjamin P. 2004... Majority did not intend to have changed places with their supposedly more activist.... Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, the. Override established principle case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure | Disclaimers | policy. And Judicial Activism 227 for the loss caused by the defendants ’ negligence grateful my... Are now to be seen whether the legislature will intervene to render ‘ wrongful ’... Point that the plaintiffs receive the award of damages would ‘ commodify ’ the child serve them ]!