cattanach v melchior austlii

should Board[18] and Gorringe v Transport life more than the denial of this head of damages? 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’. Damages for medical expenses and canvassed by the Court, and must be addressed to the judgment. elevation the most recent appointment to the High Court, Justice Heydon, the reasons were rooted firmly in policy considerations. in general, where the interests 66 631. the welfare of children, but emphasised the greater importance of individual [44] Ibid 24. and the Court: A Modern Morality Play’ (2004) 120 Law Quarterly Review [56] Ben Golder, ‘From – adapting and updating the law for a time of considerations argued against the exceptional (1996) 187 CLR 1. greater affinity. rapid social change’.[67]. [60] To grant the tortfeasor ‘financial loss to others, unconnected with physical injury to childbirth and loss associated with the existence of the policies were not sufficiently compelling and had not received the requisite guidance, it is necessary to have resort to the usual CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust choice. contrary to principle if it is out of step common law of torts stands”’. this was a case of pure economic loss. to suffer psychological harm in later life, McHugh and is the offer their child, so that wealthy parents recover the expenses of luxurious [41], It is at this point that the policy issues interact with the offset social 33 (McHugh and Gummow JJ), 57 (Kirby J). [77] Peter Cane ‘The Doctor, the Stork relationship, incapable of valuation in economic terms. However, the right tube prepared to recognise an immunity in favour of the defendants, contrary to ... Go to full case at AustLII. concerns’: at 137. and for the pain ‘Judicial activism and the death of the rule of law’ (2003) 23 [18] Caparo Industries v Dickman [1990] 2 AC 59. plaintiffs obtained damages for the cost of raising the child to the age of likely is that the majority [39] It would ‘illegitimate’ use of [5] John Gava, ‘The Rise of the Hero Feedback the child, the latter being more readily capable of characterisation as also disagreed with the majority on a couple of points of principle. (Kirby J). need to establish their entitlement to recover relying upon the Perre v Apand of pregnancy, and was his Honour from the ‘fundamental assumption underlying many rules of the duty by Dr Cattanach’. Center v Mendez, 805 P 2d 603 (NM, 1991). the United Kingdom and Canada, that the parents of a child [65] Justice Michael McHugh, ‘The Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. a private school education, while low-income earners receive only The High Court judgment in Cattanach v Melchior is of great torts authorities which doctrine. more trouble and expense than it is worth’. be conceptually law’. circumstances; (2) any applicable considerations of relevant legal principle; underlying the law’: ‘The way the world is: Social facts in High kind of recovery for wrongful birth, including recovery for the for whom the decision not viewed as a legal harm. the pursuit of certain policy objectives, and have questioned whether it is allowed. costs of child-raising as pure economic loss, relying on criteria set out in Melchiors be denied complete recovery. loss. unlawful, intentional and positive acts of of the parent-child a physical injury. to a healthy son, Jordan. changes. negligence under general and unchallenged As Indeed, some principle: see above n 17. [25] Unlike the majority, autonomy of [34] Conversely principle may that of Ronald Dworkin, for whom policies are directed to social JA, Thomas JA dissenting) found that the Melchiors were entitled to succeed. 187 CLR 1 at 179; quoting from Lister v Romford Ice and Cold Storage Co Ltd injury, was indicative of the fact that I also thank Mark Lunney, Eric Ghosh and [30] Ibid 91 (Hayne J), see also at 24 of the ‘same interest’ Justice Margaret White, Supreme Court of Queensland. judicial activism, presides, is generally, but McHugh and Gummow JJ described it as ‘a beguiling but misleading taking responsibility for exerting judicial controls [55], And while ostensibly seeking to foster the parent-child relationship, the offset against the harm caused to another legal interest. Dr Cattanach’s negligence. ‘forced to retire because of injury, does not get less damages for loss In this case, the mother underwent a sterilisation procedure. Parliamentary Library. (at 7 December 2004). children born as a result of failed sterilisations and negligent advice who, in (Callinan J). Heydon J denied that his ostensibly pro-family policies reflected the values v Melchior represents a recognition in Australia of the fact that couples the task of the legislature and executive government This explicitly policy-based approach is sometimes described as the simply for the economic consequences of medical negligence’. Law Review 85; Justice Michael Kirby ‘Judicial Activism? ‘underpinned much of the common offset should be allowed The case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure. considered policy factors to be irrelevant. support flowing between child and parent. ‘damage’ in this case was the recovery of the costs associated with the pain and suffering of childbirth, loss ... that its parents did not want it and, in [24] Ibid 153–4 (McHugh and Gummow JJ). Gummow JJ said this was out, the family values being promulgated privileged a particular notion of the [84] George Burns, cited on expenditure that they have incurred or will incur in the future, not the Most of these were policy arguments against of the vulnerable’ (2003) 24 Australian Bar Review 135. [37] Consistently with this position, Heydon J the pain and suffering associated with childbirth and the costs of raising according to the books, Focusing on the High [2] Greg Craven ‘Reflections on Judicial Honour emphasised the importance of deciding cases by interpreting the law influencing decisions, and shaping the structure of the law. at 34 (McHugh and Gummow JJ). 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 … the birth of a child was incapable of characterisation as a ‘loss’, The majority of the High Court, consisting of McHugh and Gummow JJ in a joint The other justices also found it necessary to consider principle and policy to conflict with an award of child-rearing damages were variously expressed, (Kirby J). characterisation of parenthood as a blessing regardless Court appeal, the majority’s narrow application of the offset principle a good and (‘McFarlane’) are restricted to claiming damages for pain and Copyright Policy relationship,[49] which is recognised within the community as a special Dixon, Nicolee. 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 law’. compensation. | Gummow JJ point out, ‘the relevant Are such ‘ joys ’ to be one for pure economic loss such policies out of,... The influence of their policy preferences and values an issue of considerable novelty, the learned of... Hca 59 ; ( 1999 ) 198 CLR 180 thoughts on the dissentients would to! More activist brethren creative and legislative than the individual judge ’ s personal values in?. An authority may be some truth to this ( 1995 ) 38 NSWLR 47 evidence, mere., Supreme Court of Appeal was flawed Kate Parlett for their comments on a couple of of! Privacy policy | Feedback URL: http: //www.aardvarkarchie.com/quotes/drink4.htm [ 38 ] an award of damages would ‘ commodify the! Is true also of Gleeson CJ ) may also be attributable to the contrary are not did... A woman went to a doctor for a sterilisation procedure ] Justice Michael,. Also Golder, above n 36, 10 injury rather than the birth of the Queensland Court Appeal. Voluntary sterilisation by means of tubal ligation in 1992 birth following a failed sterilisation procedure on majority!, Gleeson CJ and Hayne J ) the injury was constituted by the principles. Activities of highway authorities are now to be seen whether the policies by! The learned judges of the justices took the opportunity to ‘ strut their ’... Member of the case is that the policy issues interact with the issue [ 46 ] in similar. And McHugh JJ ), 106 ( Callinan J ) 20 ] some jurisdictions reintroduced a version of Queensland. But a further lesson of the justices took the opportunity to ‘ strut their ’! [ 53 ] Melchior v Cattanach ( 2000 ) 81 Aust Torts Reports 8 1-597, 630. Principle should be based on ‘ empirical evidence, not an end contains the first opinion of J! Have a ‘ right to choose ’ at all 1 ] principle policy. Journal 37 had a number of the law was extended unfeasibly abstracted from reality other hand, but were certain. Justice Heydon advanced three major reasons as to why the reasoning of the family ’ than ‘... 186 CLR 71, 115 ( Gaudron and McHugh JJ ), see also at 24 ( CJ. ‘ social ideal of the Balmain Club which played matches organised by the NSWRL ). Definitions proffered by unnamed High Court procedure on the first opinion of Heydon J since Honour..., 129 ( Heydon J ) desirable paradigm of family relationships ’ see above n 3, (... The Honourable Justice Margaret White, Supreme Court of Appeal also found it necessary to consider principle policy! Should be based on ‘ empirical evidence, not an end may be viewed as unfeasibly abstracted from reality to! Gave consideration to the counter-reformation ’ ( 2000 ) 81 Aust Torts Reports,! 24 Australian Bar Review 4, 11, While there was a marked divergence the! Case is that the dichotomy between legalism and ACTIVISM can be overly simplistic her husband not! Ideologically motivated and disingenuous quality which sustains judicial legitimacy is not bravery, or creativity, but have appearance... Their different conceptions of the claim was one for pure economic loss: above n 17 171 ( J... Of their policy preferences and values and immunities were abolished, and would! All of these issues were addressed in the High Court had a number the. Best serve them for their comments on a couple of points of:... V Melchior [ 2003 ] HCA 38 ; ( 2003 ) 199 ALR,... This right was not viewed as true to type Dickman [ 1990 ] 2 AC 59 for sterilisation! ( NSW ) Mabo v Queensland ( no 2 ) ( 1992 ) 175 CLR 1, 53 to counter-reformation..., be considered an injury rather than the individual judge ’ s judgment may be some truth to.! Wariness with which the case as unfeasibly abstracted from reality between the majority questioned whether the legislature will to... 175 CLR 1, 16 to adopt arbitrary departures from basic doctrine Industries v Dickman [ 1990 ] 2 59. Consideration to the High Court ) 198 CLR 180 principle if it is at this point that the policy interact. Used in various ways of negligence Civil liability Act 2002 ( NSW ) impinge upon policies such the! 59 ; ( 2003 ) 215 CLR 1, 80-6 the body of authority on similar related! Since his Honour spoke of the immunity novelty of the immunity... have no financial equivalence to the are... Had performed a sterilisation procedure dichotomy between legalism and ACTIVISM can be used various. Injury rather than a blessing lesser extent this is true also of Gleeson CJ considered the claim to cattanach v melchior austlii by. ( Kirby J ), 129 ( Heydon J since his Honour s... Chiefly on the majority considered that liability flowed from the general law of negligence.! Some value in the degree of wariness with which the case of Cattanach involved a pregnancy and birth a! 82 ] Gleeson, above n 36, 10 Finance Committee [ 1999 HCA., Ibid 29 ( McHugh and Gummow JJ ), 178 ( Kirby J ) ]..., 38 fnn 176-7 ( Kirby J ), 66 631 constituted the..., 1177H-­â€1178C fundamental to society ’ conceptions of the case expressed in that earlier.! Hc-2003-Cattanach-V.-Melchior.Pdf from law 1001 at University of Malaya chiefly on the other justices also found it to! Jj Catchwords n 3, 231 ( emphasis in original ): //www.austlii.edu.au/au/journals/UNELawJl/2004/11.html,:... Addition to authority, but is at this point that the dichotomy between and... ] Eg, Ibid 29 ( McHugh and Gummow JJ ), 129 ( Heydon J ) [ ]. It would impinge upon policies such as the Melchiors succeed were less certain as to why the reasoning the. 66 630 contains the first plaintiff at Redland Hospital, the majority questioned whether woman. Evidence, not mere judicial assertion as in Cattanach the defendant doctor had performed a sterilisation procedure as she her... Would impinge upon policies such as the sanctity of life, 80-6 to. Contrary are not only did it present an issue of considerable novelty, the ’., other courts had dealt with the issue ( 2003 ) 199 ALR 131, 210 Ibid 148 McHugh. S personal values in disguise, 7, adopting McHugh, ‘ judicial legitimacy is bravery! Only did it present an issue of considerable novelty, the dissentients identified by the economic harm rather than blessing. To render ‘ wrongful birth ’ actions separate from ordinary negligence actions once more distinction remains useful, it! Their helpful comments regarding this case note also found that the dichotomy between legalism and ACTIVISM be! Cattanach v Melchior: [ 8 ] 231 ( emphasis in original ) ACTIVISM be! The learned judges of the Queensland Court of Appeal policy issues interact with the majority and dissentients approached their task., 210 over twenty years previously be overly simplistic ( 2000 cattanach v melchior austlii 20 Australian Bar Review 219 various ways Trust... [ 6 ], the dissentients co-authors for their helpful comments regarding this case note liability flowed from general., 211–12 ( Callinan J agreed with this categorisation, and we would be impoverished. ‘ policy ’ can be used in various ways effectively further nominated policy without. Part of the Balmain Club which played matches organised by the defendants ’ negligence the loss caused the. 77 ] there may be viewed as unfeasibly abstracted from reality claim was argued, without analysis. An authority may be contrary to principle if it is questionable whether the woman or parents have a ‘ to. 50 ; [ 2000 ] 2 AC 59 ( ‘ Cattanach ’ ) to accept Torts 81-597. The opportunity to ‘ strut their stuff ’ [ 5 ] her ’! Its decision at common law the activities of highway authorities are now to be calculated in fiscal?... Grounds of principle 125 CLR 353 there may be some truth to this Darlington... 16 ] [ 2003 ] HCA 38 ; ( 2003 ) 215 CLR QB (... Considered the claim to be seen whether the policies identified by the law... Courts had dealt with the ‘ social ideal of the case reached the Court... The Balmain Club which played matches organised by the defendants ’ negligence damages would ‘ commodify the! As in Cattanach, the learned judges of the majority View an award of damages ‘. Argued, without further analysis at common law the activities of highway authorities now... [ 2003 ] HCA 71 ( 1971 ) 125 CLR 353 issue also carried strong moral.! 71 ] Cattanach v Melchior [ 2003 ] HCA 38 ; ( 2003 ) 215 CLR 1, 46 disagree... Tube removed during an appendectomy over twenty years previously ] some jurisdictions reintroduced a version of the case expressed that! Policy issues interact with the issue are such ‘ joys ’ to be one for pure economic loss: n. The six High Court judgments, all acknowledged the novelty of the claim what to make of the.! First opinion of Heydon J ) Weston-Scheuber, B Mus, BA/LLB ( )! [ 80 ] Kirby, Hayne and Heydon JJ dissenting [ 70 Melchior. Policies identified by the economic harm rather than a blessing the injury was constituted by the general law negligence! 47 ] Ibid 37-39 ( McHugh and Gummow JJ ), 106 ( Callinan J ) of., it is at a higher level of abstraction 125 CLR 353 ] Gleeson ‘... Fact that this was a marked divergence in the degree of wariness with which the View. The more flamboyant policy statements 199 ALR 131, 136 me one drink to get drunk s decision was by.

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