Cattanach v Melchior case PDF

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HIGH COURT OF AUSTRALIA CATTANACH AND ANOTHER............................ DEFENDANTS,

APPELLANTS;

AND

MELCHIOR AND ANOTHER................................ PLAINTIFFS,

RESPONDENTS.

[2003] HCA 38 ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND

Damages — Negligence — Birth of unintended child resulting from doctor’s negligent advice and failure to warn — Cost of raising and maintaining child — Whether recoverable. A couple became the parents of an unintended child as a result of negligent advice and failure to warn by the doctor who had performed a sterilisation procedure upon the mother. The damages awarded included an amount to the couple jointly for the reasonable cost of raising and maintaining the child until the age of eighteen. Held, by McHugh, Gummow, Kirby and Callinan JJ, Gleeson CJ, Hayne and Heydon JJ dissenting, that, in compensation for the birth of the unintended child resulting from the doctor’s negligent advice and failure to warn, the couple were entitled to the damages claimed for the cost of raising and maintaining the child. The benefits received from the birth of a child were not legally relevant to the head of damage that compensates for the cost of raising and maintaining the child. McFarlane v Tayside Health Board [2000] 2 AC 59, not followed. Public Trustee v Zoanetti (1945) 70 CLR 266, referred to. Decision of the Supreme Court of Queensland (Court of Appeal) affirmed.

APPEAL from the Supreme Court of Queensland. Kerry Anne Melchior and Craig Melchior brought proceedings in the Supreme Court of Queensland against Stephen Alfred Cattanach, an obstetrician and gynaecologist who performed a tubal ligation upon Mrs Melchior, and the State of Queensland, which was the successor to the body that conducted the hospital at which that procedure was 1

HC OF A 2003 Feb 11-13; July 16 2003 Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

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performed. They alleged that negligence by Dr Cattanach had caused them to become the parents of an unintended child and thereby suffer loss and damage, and that the State was vicariously liable. Holmes J held that negligent advice and failure to warn by Dr Cattanach had been a material cause of the pregnancy and awarded damages of $103,672.39 to Mrs Melchior for the loss and damage to her caused by her pregnancy and birth, $3,000 to Mr Melchior for loss of consortium, and $105,249.33 to the Melchiors jointly for the cost of raising and maintaining the child to majority (1). The defendants appealed to the Court of Appeal (McMurdo P, Davies and Thomas JJA) which dismissed the appeal against the findings of negligence and causation and (Thomas JA dissenting) dismissed the appeal against the award of damages for the cost of raising and maintaining the child (2). Gaudron and Kirby JJ granted special leave to the defendants to appeal to the High Court in relation only to the recoverability of damages for the cost of raising and maintaining the child, upon their undertaking to pay the costs of the appeal and not seek to disturb the orders for costs in the Supreme Court. D F Jackson QC (with him C Newton), for the appellants. The birth of a normal healthy child should not be regarded as a legal harm or injury for which damages may be awarded (3). The mother was compensated for all injury to her arising from the pregnancy and those damages for physical injury are not in issue. The damages in issue do not result from physical injury to her. [He referred to Caltex Oil (Aust) Pty Ltd v The Dredge ‘‘Willemstad’’ (4).] They are for pure economic loss. The consequences of allowing them militate against doing so. It would lead to liability in a wide range of other circumstances, such as failed abortions and the supply of defective contraceptive products; to the allowance of other, inappropriate categories of damages, such as income foregone in caring for a child; and to claims by siblings for loss resulting from the birth of an unintended sibling. The unduly wide liability that it would impose on doctors would increase medical costs and lead some to cease practice (5). The ambit of such damages would be broad and indeterminate (6). Damages for the cost of raising a child have not been allowed by the House of Lords (7), the majority of

(1) (2) (3) (4) (5) (6) (7)

Melchior v Cattanach [2001] Aust Torts Reports ¶81-597. Melchior v Cattanach [2001] QCA 246 (26 June 2001). Byrd v Wesley Medical Center (1985) 699 P 2d 459 at 467-468; Morris v Sanchez (1987) 746 P 2d 184 at 188. (1976) 136 CLR 529 at 584-585. Edwards v Blomely [2002] NSWSC 460 at [120]; Kinzett v McCourt (1999) 46 NSWLR 32 at 51. McFarlane v Tayside Health Board [2000] 2 AC 59 at 69, 91. McFarlane v Tayside Health Board [2000] 2 AC 59.

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American jurisdictions (8) and a number of Canadian cases (9). In New Zealand the issue has not been decided but there are dicta against recovery (10). The numerous considerations underlying the decisions in other jurisdictions are persuasive and rational. It is a matter of public policy. The birth of a child is a benefit and blessing (11). Although it occasions expenditure, it is not damage in any usual sense (12). The expenditure is not an economic loss compensable in law. [He referred to Sullivan v Moody (13); Jaensch v Coffey (14); Tame v New South Wales (15); Sutherland Shire Council v Heyman (16); and Modbury Triangle Shopping Centre Pty Ltd v Anzil (17).] Birth of a child is neither a harmful event nor an occasion of loss, and the award of damages for the cost of child rearing is not appropriate. It is a reflection of the value of life that the birth of a child should not be a compensable harm (18). [He referred to Griffiths v Kerkemeyer (19); Kars v Kars (20); and Grincelis v House (21).] Although some children cause distress or difficulty, parenthood is a source of benefit, intangible and sometimes also economic (22). These matters are reflected in the difficulty of calculating damages for the cost of rearing a child. To allow recovery of such cost without taking account of the benefits of paternity, maternity and custody gives those benefits no

(8)

(9) (10) (11)

(12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22)

La Croix and Martin, ‘‘Damages in Wrongful Pregnancy Tort Actions’’, in Ireland and Ward, Assessing Damages in Injuries and Deaths of Minor Children (2002), pp 97-98; Emerson v Magendatz (1997) 689 A 2d 409; Simmerer v Dabbas (2000) 733 NE 2d 1169; Johnson v University Hospitals of Cleveland (1989) 540 NE 2d 1370; M A v United States (1998) 951 P 2d 851; Cockrum v Baumgartner (1983) 447 NE 2d 385. Mummery v Olsson (2001) Ont Sup CJ LEXIS 96; MY v Boutros [2002] 6 WWR 463; Kealey v Berezowski (1996) 136 DLR (4th) 708. Re Z (1982) 3 NZAR 161 at 163-164; XY v Accident Compensation Corporation (1984) 2 NZFLR 376 at 380; SGB v WDHB [2002] NZAR 413. McFarlane v Tayside Health Board [2000] 2 AC 59; Udale v Bloomsbury Health Authority [1983] 1 WLR 1098 at 1109; [1983] 2 All ER 522 at 531; Boone v Mullendore (1982) 416 So 2d 718 at 721; O’Toole v Greenberg (1985) 477 NE 2d 445; Wilczynski v Goodman (1979) 391 NE 2d 479 at 487; Public Health Trust v Brown (1980) 388 So 2d 1084 at 1085; Mummery v Olsson (2001) Ont Sup CJ LEXIS 96; MY v Boutros [2002] 6 WWR 463; Kealey v Berezowski (1996) 136 DLR (4th) 708; Cataford v Moreau (1978) 114 DLR (3d) 585 at 599-600. Morris v Sanchez (1987) 746 P 2d 184 at 188; O’Toole v Greenberg (1985) 477 NE 2d 445 at 448. (2001) 207 CLR 562 at 576. (1984) 155 CLR 549 at 583. (2002) 211 CLR 317 at 428-429. (1985) 157 CLR 424. (2000) 205 CLR 254 at 290. Byrd v Wesley Medical Center (1985) 699 P 2d 459 at 467, 468; Weintraub v Brown (1983) 470 NYS 2d 634. (1977) 139 CLR 161. (1996) 187 CLR 354. (2000) 201 CLR 321. CES v Superclinics Pty Ltd (1995) 38 NSWLR 47 at 86-87; Public Health Trust v Brown (1980) 388 So 2d 1084 at 1086.

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value. There should be an allowance for their value, yet their value is incalculable and it cannot be shown that it does not exceed the costs (23). That shows the inappropriateness of allowing damages for the cost of child rearing. It would lead to children discovering that they were the subject of litigation and unwanted by their parents, with consequential psychological trauma (24). It is a parental responsibility, under statute (25) and morally, to maintain and raise a child and the cost should not be shifted to a doctor or hospital (26). The cost of rearing a child is not an established category of recoverable economic loss, and Perre v Apand Pty Ltd (27) casts little light on whether, where as here some damages for personal injury are recoverable, the cost of rearing the child should also be recoverable. Recovery should not be possible, whether the child is healthy or not. Alternatively, it should not be possible where the child is healthy. There would be no difficulty in distinguishing healthy and unhealthy children (28). If there can be recovery for the cost of maintaining and raising a child, the value of the benefits of parenthood should be set off. This would ordinarily preclude any damages, as it cannot be established that the cost exceeds the value of the benefits (29). Although it was not raised below, as a matter of principle applicable social security benefits should also be set off (30). [He also referred to Baugher, ‘‘Fundamental Protection of a Fundamental Right: Full Recovery of Child-Rearing Damages for Wrongful Pregnancy’’ (31); Hoyano, ‘‘Misconceptions about Wrongful Conception’’ (32); and Weir, ‘‘The Unwanted Child’’ (33).] R J Meadows QC, Solicitor-General for the State of Western Australia, (with him J C Pritchard), for the Attorney-General for that State, intervening by leave. Matters of legal, public and social policy

(23) McFarlane v Tayside Health Board [2000] 2 AC 59 at 97. (24) Udale v Bloomsbury Health Authority [1983] 1 WLR 1098 at 1109; [1983] 2 All ER 522 at 531; Wilbur v Kerr (1982) 628 SW 2d 568 at 571; Boone v Mullendore (1982) 416 So 2d 718 at 723. (25) Family Law Act 1975 (Cth), ss 60B, 66C; Child Support (Assessment) Act 1989 (Cth), s 3; Criminal Code (Q), ss 286, 324. (26) McFarlane v Tayside Health Board [2000] 2 AC 59 at 90-91, 106; Rieck v Medical Protection Co of Fort Wayne (1974) 219 NW 2d 242 at 244-245; Boone v Mullendore (1982) 416 So 2d 718 at 721-722; Emerson v Magendatz (1997) 689 A 2d 409 at 413; Public Health Trust v Brown (1980) 388 So 2d 1084 at 1085. (27) (1999) 198 CLR 180. (28) Parkinson v St James & Seacroft University Hospital NHS Trust [2002] QB 266 at 283 [52], 293 [91]; Rand v East Dorset Health Authority [2000] Lloyd’s Reports Med 181; Hardman v Amin [2000] Lloyd’s Reports Med 498. (29) McFarlane v Tayside Health Board [2000] 2 AC 59 at 97. (30) Cataford v Moreau (1978) 114 DLR (3d) 585 at 599; Dahl v Purnell (1992) 15 Qld Lawyer Reps 33 at 37. (31) Washington Law Review, vol 75 (2000) 1205. (32) Modern Law Review, vol 65 (2002) 883. (33) Edinburgh Law Review, vol 6 (2002) 244.

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can be considered by the Court and militate against the award of damages sought. A child not be regarded as a burden and productive of loss sounding in damages. As the expenses to which the damages relate are not limited to those that parents are legally obliged to incur, there would be disparate awards as between different children, whereas all children should be treated as of equal value. To permit the recovery of expenses likely to be incurred in raising a child would be neither an incremental nor coherent development of the law. [He referred to Perre v Apand Pty Ltd (34) and Sutherland Shire Council v Heyman (35).] There is a lack of authority in support of such recovery (36) and the limited authority does not establish any clear principle. The only circumstance in which a parent has been able to recover from a tortfeasor expenses incurred in respect of an injury to a child has been in an action per quod servitium amisit. This is an anomalous action which provides no basis to develop the law to allow damages for the cost of rearing an unintended child. Griffiths v Kerkemeyer (37) does not support the award. To permit recovery by the parents of the costs of raising the child would be inconsistent with the fact that the child could not recover those costs in an action in its own right (38). The claim is for pure economic loss (39), as the joint award of it to the father as well as the mother shows. To allow it would give rise to potential for indeterminate liability (40). The parents are not legally bound to incur many of the expenses to which the damages relate. Established principles are ill-suited to the assessment of damages of the present kind. It is not possible to restore the parents to the position they would have had if the child had not been born. Monetary assessment of damages cannot take account of the nonfinancial benefits of a child. C J Kourakis QC, Solicitor-General for the State of South Australia, (with him C Jacobi), for the Attorney-General for that State, intervening by leave. Expenditure on nurturing a child is not a compensable loss. Policy is a relevant consideration (41) and favours rejection of the claim. It cannot be assumed that claims for the costs of raising unintended children will be modest, and there is no mechanism to limit them. Alternatively, if the damages are recoverable there

(34) (1999) 198 CLR 180 at 216, 264. (35) (1985) 157 CLR 424 at 481. (36) F v R (1982) 29 SASR 437; F v R (1983) 33 SASR 189; Dahl v Purnell (1990) 15 Qld Lawyers Reps 33; CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47 at 70-79, 84-87; Veivers v Connolly [1995] 2 Qd R 326. (37) (1977) 139 CLR 161. (38) McKay v Essex Area Health Authority [1982] QB 1166. (39) McFarlane v Tayside Health Board [2000] 2 AC 59 at 75, 79, 89, 100, 109. (40) Perre v Apand Pty Ltd (1999) 198 CLR 180 at 199, 221, 289, 303, 319-320, 322-323. (41) Perre v Apand Pty Ltd (1999) 198 CLR 180 at 199-200, 212, 217, 218-219, 276, 284, 289-291, 303, 316-317.

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should be a set-off reflecting the benefits of the child, to avoid overcompensation. Offsetting financial costs and emotional benefits is not contrary to principle. [He referred to Fleming, The Law of Torts (42).] Public Trustee v Zoanetti (43) depended upon statutes. Both the loss and the benefit are in the same interest. They have the same cause. Assessment of the set-off may be arbitrary but that has been no bar in other contexts and the Court can formulate guidelines, either for the fixing of a lump sum or for the application of a percentage discount to the damages. B W Walker SC (with him M E Eliadis), for the respondents. It follows from the compensatory or restitutionary principle informing the award of damages for tortious negligence that damages for the cost of raising and maintaining an unintended child are recoverable. Such cost is a loss susceptible of judicial assessment caused as a matter of common sense by the breach of duty, and requires to be compensated so that, as far as money can do, the parents are put in the position they would have occupied if the tort had not been committed (44). The claim is not for pure economic loss. However, if Perre v Apand Pty Ltd (45) were applicable, it would dictate dismissal of the appeal. There is no question of remoteness or indeterminacy. Tame v New South Wales (46) involved quite different facts. Nor is there any suggestion that the act of sterilisation gives rise to any question of illegality or public policy limitation or objection. No special exception ought be constructed to prevent the recovery of damages for the cost of raising the unintended child which would otherwise follow on straightforward application of general principle. Public policy considerations do not justify this. They are equivocal (47) and have not been the basis for decisions in other jurisdictions against the award of damages for the cost of raising a child (48). The matters relied upon by the appellants as considerations of legal policy are no more than contentious social or moral assertions. They cannot be supported, or made valid for the purpose of legal analysis, by appeals to the hypothetical reasonable person. It is for the legislature, and not this Court, to construct any exception based upon social or moral policy, especially where as here the issue has long been live and the legislature has not acted (49). The costs in issue are an integral consequence of the appellants’ infringing the very interest of the

(42) (43) (44) (45) (46) (47)

8th ed (1992), pp 228-229. (1945) 70 CLR 266 at 278. Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 54. (1999) 198 CLR 180. (2002) 211 CLR 317. Kealey v Berezowski (1996) 136 DLR (4th) 708 at 737-739; Emerson v Magendatz (1997) 689 A 2d 409. (48) McFarlane v Tayside Health Board [2000] 2 AC 59 at 76, 83, 95, 100-101, 108. (49) Tame v New South Wales (2002) 211 CLR 317 at 430.

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respondents which they had sought to protect or advance by seeking the first appellant’s skilled services (50). It is appropriate for that cost to fall upon the appellants not the respondents. Nor ought any exception be constructed on the basis that recovery here would lead to an unduly wide range of other claims being allowable or other types of damages recoverable That does not affect the damages to which the respondents are entitled, and in any event the position in each future case depends upon its particular facts. The asserted exception inappropriately differentiates between one particular type of economic loss, and all of the other types, flowing from the first respondent’s injury. Difficulty of assessment does not provide a basis to exclude recovery (51). That a child may be seen as a benefit and blessing does not alter the fact that expenditure on the child is a loss for which damages can be awarded. Notions of the sanctity of life and normative rejections that healthy life should ever be compensable are not reasons why legal principle does not entitle compensation for the cost of raising a child. Not all children are a blessing and benefit to their parents, and hence not all parents receive a value on account of such a blessing and benefit. Although seeking to account for the value of the intangible benefits provided by children, the appellants do not make any allowance for the costs of the intangible difficulties and problems caused by children. That the benefits of a child are incalculable is not a reason to conclude that no award for the cost of raising the child ought be made. Rather, it is a reason to leave them out of account, as occurs in an equivalent context in relation to Lord Campbell’s Act (52). The benefits of a child are not measured in monetary terms and cannot be set off against the damages to be awarded. The only benefits flowing from a tort that are to be taken into account by way of deduction in the calculation of damages are those which contribute to meeting one of the needs created by its commission. Other examples show the inaptness of attempting the impossible calculation of the balance between calculated expenditure and incalculable joy, eg, that damages for physical injury caused by tortious negligence are not reduced by any amount on account of increased leisure time obtained as a result of the injury, clear though it is that leisure is a benefit. If there were any set off for the joy of a child it would be of small amount. [He referred to Sharman v Evans (53) and Skelton v Collins (54).] No set off to the damages available can be made for the social security or other financial benefits arising to the respondents by the birth of their unintended child, as no evidence or argument concerning those matters was advanced below and the issue is not