Cattanach v Melchior PDF

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Every individual’s life has a deep, real and intrinsic value of its own.1 The majority of the High Court in Cattanach v Melchior2 awarded damages of $105,249.33 to the respondents, as the appellants were found guilty of negligence in causing them to have an unintended child.3 Prima facie, Cattanach seems to suggest that the worth of the child in question was that of the expenses incurred in raising him.4 This essay will analyse the decision in Cattanach through the doctrinal legal research method, using “normative” research. The aim of this research method is to answer the question of “what is the law” via logical reasoning and analysis of appropriate legal rules, and whether it applies to a particular factual situation.5

In this essay, the focus is on whether it is morally objectionable for parents to recover damages due to another’s negligence that results in a usually cherished outcome, which is the birth of a healthy child. This is because in deciding whether to preserve the principle in Cattanach, law-makers would place high regard on the analysis of Cattanach’s normative outcome.6 The following points are the key arguments against wrongful birth actions7 such as Cattanach, which can be subsequently rebutted in this analysis with “normative” research. The first key argument in wrongful birth cases is the blessing argument.8 Several legal commentators,9 judges10 and politicians11 have expressed that wrongful birth actions offend the moral ethos of society, and that the birth of a healthy child is a blessing instead of a legal harm.12 However, parties who suffer loss due to the wrongdoer’s negligence are entitled to compensation, and this is a principle grounded on moral responsibility.13 Personal liberty is an individual’s absolute right which is increasingly recognised,14 which entails the freedom to pursue one’s own activities, including deciding that a child is not a ‘blessing’.15 A doctor’s negligence would cause the family to incur costs and responsibilities that it would not have had but for that negligence. 16 If this is not remedied, this is against the policy of freedom of choice about family planning which is a fundamental community

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Adrian Coorey and Pornsakol Panikabutara, ‘Cattanach v Melchior’ (2006) 13 Journal of Law and Medicine 419. [2003] HCA 38; (2003) 215 CLR 1. 3 Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1. 4 Coorey and Panikabutara, above n 1. 5 Andrew Knight and Les Ruddock, Advanced Research Methods in the Built Environment (Wiley-Blackwell, 1st ed, 2008) 32. 6 Penny Dimopoulos and Mirko Bagaric, ‘Why wrongful birth actions are right’ (2003) 11 Journal of Law and Medicine 230. 7 Ibid. 8 McFarlane v Tayside Health Board [2000] 2 AC 59. 9 Dyson G, “Damages Awarded for the Birth of a Healthy Child” (1998) ALSA Academic Journal 37. 10 Jupp J in Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522, 527; Meagher JA in CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, 87. 11 Anderson, the Hon John, ‘Court Ruling Cheapens Life’, Northern Territory News, 17 July 2003. 12 Coorey and Panikabutara, above n 1, 421; Cattanach v Melchior [2003] HCA 38, 15; (2003) 215 CLR 1. 13 Parfit D, Reasons and Person (Oxford University Press, Oxford, 1984); Williams B, Moral Luck (Cambridge University Press, Cambridge, 1981). 14 Todd S, ‘Wrongful Conception, Wrongful Birth and Wrongful Life’ (2005) 27(3) Sydney Law Review 525, 537. 15 Blackstone’s Commentaries on the Laws of England (Oxford, 1765) Bk 1, 120, 130-131; Williams v The Queen (1986) 161 CLR 278, 292; R v Brown [1993] 2 WLR 556, 600. 16 Graycar R, “A Loved Baby Can’t Cancel Out a Clear Case of Negligence”, Sydney Morning Herald, 21 July 2003: http://www.smh.com.au/articles/2003/07/20/1058639658919.html. 2

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value. The widespread use of contraceptive measures is an indication of this.17 Therefore, though parents in these cases may not have initially wanted another child, they have the right to decide not to.18 It is not equitable to force the benefits of having a child onto unwilling parents and then make them pay for it.19

The “blessing argument” discriminates against handicapped children, as it implies that the emotional benefits of having an unwanted but non-handicapped child outweigh the costs of raising that child.20 This same analysis is not applied in damages claims for handicapped children, where courts usually allow full recovery.21 As employment of this argument leads to such discrimination, it is better to simply focus on the fact that the financial burden incurred by the parents is unrelated to the benefits of raising the child.22 Also, one must identify the relevant damage to the parents as not the child itself, but rather the additional costs associated with raising the formerly unwanted child.23 This reasoning recognises that parents should be compensated for the extra expenses that they now have to live with. The second argument against wrongful birth cases is that allowing claims for damages would generate litigation causing children psychological harm and emotional distress if they were aware about it, and that it is against the public interest for children to learn that their birth was a mistake. 24 Some worry that these initially unwanted children will be harshly deemed an “emotional bastard”.25 There is actually no empirical evidence to substantiate these arguments above.26 Children may learn that they were initially unwanted even if their parents do not file a claim.27 Furthermore, claims for damages are not about love, but are principally about recoverable costs.28 Thus, an unwelcome or unwanted conception is not equal to an unloved or uncherished child.29 Furthermore, the benefits gained by parents from having a healthy child do not pay the economic costs of raising an unplanned child, and children will have a better chance to flourish if the financial position of their parents are improved.30 In addition, the parents’ claim for damages may indicate their emotional bond to the

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CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, 74. Owen M Bradfield, ‘Healthy Law Makes for Healthy Children: Cattanach v Melchior’ (2005) 12 Journal of Law and Medicine 305, 312. 19 Marciniak v Lundborg 450 NW 2d 243, 249 (1990). 20 Bradfield, above n 17, 311. 21 Ibid. 22 Blake v Cruz, 108 Idaho 253, 698 P 2d 315, 320 (1984); Hoyano LCH, ‘Misconceptions About Wrongful Conception’ (2002) 65 Modern Law Review 883, 891. 23 Dimopoulos and Bagaric, above n 7, 236. 24 Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098; Cattanach v Melchior (2003) 215 CLR 1, 38; Wilcoxon KD, ‘Statutory Remedies for Judicial Torts: The Need for Wrongful Birth Legislation’ (2001) 69 University of Cincinnati Law Review 1023, 1038. 25 Wilcoxon KD, ‘Statutory Remedies for Judicial Torts: The Need for Wrongful Birth Legislation’ (2001) 69 University of Cincinnati Law Review 1023, 1038. 26 Dimopoulos and Bagaric, above n 7, 236. 27 Bradfield, above n 17, 312. 28 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, 74. 29 Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098. 30 Bradfield, above n 17, 312; Dimopoulos and Bagaric, above n 7, 236. 18

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initially unwanted child as they now want to have the means to properly raise the child.31 In turn, the child may be less likely to suffer emotional harm knowing that his or her parents fought for his or her legal right to financial welfare.32 The third key argument against wrongful birth cases is that awarding damages commodifies human life, and turns children into objects.33 However, the fact that something comes with a price attached does not mean that it is unwanted or undesirable, and this is evidenced by the willingness of people to spend large amounts on education or healthcare.34 In the context of child support, children are often “commodified” but this is accepted, and a father cannot successfully argue that he should not provide financial support on the mere ground that he gave the child’s mother a ‘priceless blessing’.35 The decision in Cattanach has exposed the misleading fiction that childrearing only involves sacrificial love and has nothing to do with money.36 Though children are not commodities, parents have to bear the financial cost of bringing them up.37 Furthermore, while money cannot, in reality, compensate for a large number of losses, it is definitely better than not having any form of compensation.38 Though some judges believe that parents may disparage their child’s worth in order to gain compensation, it is submitted that parents, not courts, should be allowed to freely decide what is best for themselves and their family.39 In addition, to deem a child a benefit that outweighs the detriment as a matter of law and policy and therefore denying recovery, is to blind the law to the plaintiff’s situation for the sake of indeterminate abstractions of public policy.40 The last key argument in wrongful birth cases is the presence of difficulties in calculating the costs associated with such upkeep.41 Due to this, courts are reluctant to award damages in wrongful birth cases.42 However, these difficulties cannot be a principled basis to reject a cause of action, as approximate justice is always better than no justice at all.43 Furthermore, the difficulties merely indicate that this issue requires ongoing refinement and consideration.44 In reality, courts can employ economic demographers, actuarial and insurance-company statistics and population studies to

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Mogill MA, ‘Misconceptions of the Law: Providing Full Recovery for the Birth of the Unplanned Child’ (1996) Utah Law Review 827, 911. Ibid. Dimopoulos and Bagaric, above n 7, 234. 34 Ibid. 35 Graycar R, “A Loved Baby Can’t Cancel Out a Clear Case of Negligence”, Sydney Morning Herald, 21 July 2003: http://www.smh.com.au/articles/2003/07/20/1058639658919.html. 36 Cannold L and Cica N, ‘The Price of Parenthood’, 28 July 2003: http://press.anu.edu.au/wp-content/uploads/2011/06/10-4-NA-1.pdf. 37 Ibid. 38 Dimopoulos and Bagaric, above n 7, 234. 39 Bradfield, above n 17, 313. 40 Smith v Gore 728 SW 2d 738, 744 (1987). 41 Dimopoulos and Bagaric, above n 7, 234. 42 Ibid. 43 Ibid. 44 McKay v Essex Area Health Authority [1982] 1 QB 1166, 1181. 32 33

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estimate child-rearing costs.45 In addition, damages claimed for unplanned parenthood are not speculative but are based on foreseeable factors.46 Also, the impossibility of calculating emotional benefits should not interfere with the right of parents to claim for their financial burdens.47 Therefore, as seen in Sullivan,48 these difficulties do not make the calculation of damages impossible.49 The decision in Cattanach has been consistent with earlier like cases in other Australian courts50 that support such recovery.51 It is inconsistent with the decision of several English cases, where the above key arguments were posed.52 Since Cattanach, some Australian states have legislated to prevent a decision awarding the same damages awarded in Cattanach, though these do not have the effect of preventing a wrongful birth claim.53 Some have critiqued that Cattanach had made a legal error when calculating the monetary loss of the child in question.54 Cattanach had applied the principle in Zoanetti55 that there cannot be an offset of damages56 from the non-pecuniary gain (love and relationship with the child) against the pecuniary loss (costs of raising the child) sustained. As this research method involves identifying areas of improvement about the object of study,57 it must be noted that the judges in Cattanach had failed to consider that the respondents in that case would derive reasonably foreseeable pecuniary gains from having and raising their child, thus these pecuniary gains must be considered to mitigate the damages recoverable.58 This is because the interests representing a family are pecuniary gains and losses and non-pecuniary gains and losses, and stating otherwise would narrow the true ‘elements’ of a family.59 In conclusion, allowing recovery of damages in wrongful birth claims are not entirely morally objectionable, despite some legislation denying recovery. Essentially, failure to award damages contravenes an important principle of tort law that aims to place injured parties in their original position. Therefore only time will tell if the principle in Cattanach will be overturned in further decisions, but it must be noted that there are merits to allowing recovery in such claims as discussed.

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Jones v Malinowski 473 A 2d 429, 436 (1984). Bradfield, above n 17, 315. 47 Ibid. 48 Sullivan v Gordon (1999) 47 NSWLR 319. 49 Katie Talbot and Julia Werren, ‘Wrongful birth and Sullivan v Gordon damages claims: An argument for consistency and reform in New South Wales’ (2010) 18 Tort Law Review 76, 83. 50 Veivers v Connolly [1995] 2 Qd R 326; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47. 51 Penelope Watson, ‘Legal and Ethical Issues in Wrongful Life Actions’ (2002) 26 Melbourne University Law Review 736, 39. 52 McFarlane v Tayside Health Board [2000] 2 AC 58; Parkinson v St James and Seacroft NHS Hospital [2002] QB 266; Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. 53 Civil Liability Act 2003 (Qld) s 49A; Ibid s 49B; Civil Liability Act 2002 (NSW). 54 Adrian Coorey and Pornsakol Panikabutara, ‘Cattanach v Melchior’ (2006) 13 Journal of Law and Medicine 419. 55 Public Trustee v Zoanetti (1945) 70 CLR 266. 56 Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, 39 [89]. 57 Andrew Knight and Les Ruddock, Advanced Research Methods in the Built Environment (Wiley-Blackwell, 1st ed, 2008) 37. 58 Adrian Coorey and Pornsakol Panikabutara, ‘Cattanach v Melchior’ (2006) 13 Journal of Law and Medicine 419, 428. 59 Ibid 430. 46

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