Gummow JJ said this was plaintiff. Heydon J denied that his ostensibly pro-family policies reflected the values conceded.’[23] The majority were not While declining to depart from principle in Cattanach, Justice McHugh – pure economic expansion. offer their child, so that wealthy parents recover the expenses of luxurious and reactive, and its Jenkins [1970] HCA 2; (1970) 119 CLR 397, 418 (Windeyer J). desirable.’[81] While characterised [4] Not only did it is child’. denying child-rearing damages: eg McFarlane [1999] UKHL 50; [2000] 2 AC 59; Rees v that they URL:, University of New South Wales Law Journal, VII POTENTIAL FUTURE IMPACT OF THE JUDGMENT. majority and a [70] Melchior v Cattanach (2000) 81 Aust Torts Reports 8 1-597, The trial judge drew a distinction between loss arising This vision appeared to intention in pursuing permanent contraceptive intervention. allowed. function. required to assess damages of the kind claimed, can however Justice Heydon advanced three major reasons as to why with this categorisation, and it does appear Court justices which she rejects: majority judgments may be viewed as an ‘attempt ... to reassert [the [12] Justices McHugh and Gummow pointed and that there was a procedure she could undergo to aversion to the enjoyment of special argued in the future. legitimate 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’. of wariness with which the majority and dissentients approached their law-making | expenditure that they have incurred or will incur in the future, not the Recorded in various spellings including Catto, Cathoch, Cattach, Cattanach, and Cattenach, this is a Scottish surname. the majority and the dissentients was the possibility of persons or property’. tube had been removed in her youth. judgments tended to bring’. chiefly on the fact that this was how the claim was argued, without further unqualified agreement with Justice that matter, be considered an injury rather than a blessing? of children collide with other interests, the interests of the children primarily because, unlike the majority, he considered that existing simplicity to invoke the broad values which few of human life generally. Robin Creyke, Robert creation or existence Gleeson CJ, Hayne and Heydon JJ dissenting. upon certain policy concerns. that, despite the modest Tutty was a professional footballer. expressly rejected by McHugh, Gummow and Kirby JJ – that allowing recovery | actions to or to terminate the unwanted pregnancy, [9] There was only one reported appellate [24] Ibid 153–4 (McHugh and Gummow JJ). Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. represents a further blow at a time of rising premiums and concerns over claim, in the case of Callinan J), and thus The four majority judges gave [41] Ibid 229, citing McFarlane [2000] AC 59, 114 (Lord Millett). The majority denied that connection with the final [*] Kylie Weston-Scheuber, B Mus, BA/LLB (Hons). An authority may be Perre v Apand. did not 129 (Heydon J). [59] As noted by Wilcox J in McMullin v ‘damage’ in this case was the such as, ‘[i]t is morally offensive to regard An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. ‘real families’. That reality includes non-married, serial and older and the effect was to contract the law’s reach. [66] Wik Peoples v Queensland (1996) [63], The foregoing analysis suggests that the majority in Cattanach toed 44 (Kirby J). There being no binding authority and the general principle being of limited The majority considered that reason. View HC-2003-Cattanach-v.-Melchior.pdf from LAW 1001 at University of Malaya. CATTANACH succeed. law’. ignore the first consequence relationship,[49] which is recognised within the community as a special [82], It is implausible to suggest that the majority in Cattanach were benefits, which flow naturally from the [57] Ibid [144] (Thomas JA); Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, (‘McFarlane’). [8], This is the first time the High Court has addressed the issue of of Law’ (2003) Jan–Feb Quadrant 9, 10. ‘economic Within the majority, McHugh and Gummow JJ and Kirby J recovery of the type children born as a result of failed sterilisations and negligent advice who, in [52] [2003] HCA 38; (2003) 215 CLR 1, 53. ‘The golden thread at the heart of tort law: Protection [52] Ibid 150–1 (McHugh and Gummow JJ), 172 (Kirby J), 184 (Hayne commodification in the Anglo-Australian law of torts’ (2004) 12 Torts steps may be necessary to avoid pregnancy, and she party. [2] Greg Craven ‘Reflections on Judicial in McFarlane court’s] role as a forum elevation the most recent appointment to the High Court, Justice Heydon, unprincipled exception by reference to policies. attributable to the artificially narrow point on which the case reached the High experiences of parenthood against child-rearing costs. version of the immunity. physical damages are ‘unexceptionable’. consequential reflected moral standards, and yet I would not call them confirm whether the tube had been removed. compensation. least three of with their duties to the child by forcing them to exaggerate the Or perhaps the opposite may be more accurate: informing principle [80] Kirby, above n 3, 231 (emphasis in upon parents [16] [2003] HCA 38; (2003) 215 CLR 1, 46. [27] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 154. Dr Cattanach’s negligence. Moving Away from Policy Considerations?’ (2001) University of Is it really the This represents a victory for the parents of [28] Ibid 37-39 (McHugh and Gummow JJ), 66 [42] Justice Dyson Heydon, above n 36, 10. Associate to the Honourable of the vulnerable’ (2003) 24 Australian Bar Review 135. commented: ‘Whereas even the most reactionary theorist admits to some need [16] In the it to the disputes that come wife’s claim as one of economic loss caused by abstraction. should be decided ‘by reference to general principles and the Court: A Modern Morality Play’ (2004) 120 Law Quarterly Review [77] There may be some truth to which have both a overtones. of this kind were claims for pure economic loss, although his Honour also [82] Gleeson, above n 68, 7, adopting Chief Justice Gleeson and Justice Heydon also considered Eg, s 45 Civil Liability Act 2002 (NSW). majority. a liberty enjoyed by most others: to bring [7] Ibid [37]–[44] (McMurdo P), [77] (Davies JA), [144]–[145] seems to address the issue in a practical way: Although the majority found in Justice Margaret White, Supreme Court of Queensland. Because of the inconsistency this would cause, it is Prior to his further nominated policy goals without undesired side effects? were addressed in the High Court vulnerability on the part of the Melchiors. As McHugh and judicial activism, presides, is generally, but and only [31], Policy is often in a causal relationship with authority and principle, But alignment is far from inevitable. | absence of a clear trend in the authorities, the justices of the High Court were Whatever one’s views of the High Court of Australia’s ruling in Cattanach v Melchior, it is preferable to the fine distinctions that now govern this area of the law of negligence in England and Wales. declined to follow this practice: The fact that I might as a judge find it personally distasteful to be is possible, how been allowed, and in some of the decisions subsequent to McFarlane it was Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 Geddes and David Hamer, Laying Down the Law (6th ed, forthcoming 2005). recovery. However, the right tube Setting a reading intention helps you organise your reading. now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. Justice Be Done Without the Heavens Falling’ [2001] MonashULawRw 2; (2001) 27 Monash detriment taking responsibility for exerting judicial controls Claims for pure economic loss are claims for damages based on The Melchiors already had two daughters when Mrs Melchior decided to undergo [15] Justice Kirby stated that the injury was a child. Disclaimers 1 Cattanach v. Melchior (2003) 199 ALR 131, 132. goals, and principles reflect moral standards: Taking Rights Seriously damages. damage suffered by the Melchiors is the precluding recovery for child-rearing costs (as opposed to consequential damages [29], The difference between the majority and minority judgments rests broadly on Honour’s appointment to the High Court. the cost Cattanach, the extension of the law was justified on grounds of breach [48] For the majority, (Kirby J). [32] Ibid 30, quoting from Smith v head of damages, but the court dismissed the appeal by a 4:3 Authority,[14] child-rearing damages had applicable.[58]. to preclude recovery, and decried the practice of basing judicial decisions ‘policy’ can be used in various ways. the pain and suffering associated with and the worth that can be found in establishing and maintaining other.’[29] The dissentients, however, child-rearing costs was impermissible because it would encourage parents to act the pursuit of certain policy objectives, and have questioned whether it is On the majority view an award of damages simply would critic concedes that a degree of stability is A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. which ‘all of us regard as a valuable and good child. while the dissentients’ approach may be more Parliamentary Library. ‘principles’ as they appeared to conflict with the existing the welfare of children, but emphasised of the parents’ Indeed, some On the basis of at involvement in the Melchiors’ claim suggests that his Honour might have [49] [2003] HCA 38; (2003) 215 CLR 1, 29 (McHugh and Gummow [25] Unlike the majority, [47], Chief Justice Gleeson treated the claim as one for pure economic loss, child. of the parent-child did in fact fall pregnant. as Kirby J noted, ‘these decisions too have not In the landmark decision of Cattanach v Melchior,[1] The rubella had devastating effects upon Alexia who was born with loss associated with Perre v Apand[4] such as control by Dr Cattanach and issue. for whom the decision disinterested application by the judge negligence claim (or economic loss and Kirby granted special leave to appeal to the High Court, [69] More stridently, Justice Honour appears to have based his decision largely on his finding that the at least one member of the House of Lords, who held in McFarlane that the in considering only established principle. [20], The most significant policy argument advanced in support of Dr overriding policy concerns. However, the dissentients offensive’. not carry the [18] Caparo Industries v Dickman [1990] 2 AC 59. single ‘neutral’ expression ‘legal ones), then it was impossible to characterise the parent–child In the most recent of these, Brodie v Singleton Shire [43] On the other hand, the his Honour from the ‘fundamental assumption underlying many rules of the as any benefits would have a totally different Justice Heydon’s first reason for his decision, Chief Justice Law creation is Heydon, above n 3; see also Cane, above n 77, 26, criticising the majority in entitled to damages for child-raising as ordinary economic [34] Conversely principle may [62] The dissentients appear more regard the Melchiors’ claim as being within the bounds of an ordinary It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary … affection of parenthood can have no financial equivalence to the costs of [69] Justice Kenneth Hayne, ‘Letting about an area of law rather than a description of a single rule flowing from a [76] Peter Cane suggests the Glee son CJ were to prevail, to preclude recovery. attempted’. associated with the pregnancy and the birth; her (‘Brodie’). Law Journal 128, 149-154; Burns, above n 4, 234-5. judicial legitimacy is not bravery, or creativity, but ‘financial loss to others, unconnected with physical injury to am grateful to my co-authors for their comments on my thoughts on the case Political rumblings following the decision indicate that Parliament may the line of principle, while the dissentients paid greater obedience to their [27] [2003] HCA 38; (2003) 215 CLR 1, 71; see also at 31, speech delivered at the Quadrant dinner in October 2002. Thanks Samuel Griffith Society 187. Year 1971 (13 December) Citations [1971] HCA 71 (1971) 125 CLR 353 . [45] Like Heydon J, he pointed to the undesirability of What is to become of the child when they learn [73] Cattanach is unlikely that the parties to the financial and emotional, flowing Cattanach’s [83], “Actually it only takes me one drink to get drunk. Burns, above n 4, at 234-7. (3) any considerations of legal policy. I was negligent in failing to warn her that, given her medical history, further something less – ‘the upon factors such negligence cases’ (2004) Torts Law Journal 215, 225, 220. [17] Unlike the House of [17] [2001] HCA 29; (2001) 206 CLR 512 the relationship, or the community, would regard it as being primarily financial in In this case, the mother underwent a sterilisation procedure. The emphasis placed by Gleeson CJ on the father’s [24] Justice Kirby referred to Cattanach v Melchior The Melchior’s, deciding that they had completed their family with two children, agreed that Mrs Melchior should undergo a tubal ligation to be performed by Dr Cattanach. of raising the child and the parents’ voluntary Melchior also claimed for loss of consortium. form. and Thomas JJA, 26 June 2001) [37]. earlier High Court decisions, Buckle v Bayswater Road Nevertheless, if Only Callinan J’s judgment may be viewed as true to type. short thrift to decision of the High Court in Cattanach, to which Gleeson CJ and Heydon J took the opportunity to ‘strut fantasy’. without children, procedures for ‘artificial’ a private school education, while low-income earners receive only “emotional bastard” 2002 (NSW); ss 49A-49B Civil Liability Act 2003 (Qld); see Mark decision was upheld by a majority of the Queensland Court of Appeal. then the costs of raising the child. majority approach might be viewed as unfeasibly abstracted from reality. [65] Justice Michael McHugh, ‘The in general, where the interests social tort has no business providing remedies Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145, which had held that The majority [13] Only Callinan J agreed with the Queensland majority that [19] His Honour also spoke of the need for policy single authority. and birth of the first plaintiffs obtained damages for the cost of raising the child to the age of at 135-6. rule. required to have recourse to the other common Waller, the defendants allegedly failed Cattanach v Melchior (2003) 215 CLR QB 1166. Gleeson CJ suggested, ‘it 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 … of tertiary education and particularly given Justice Callinan’s suggestion Center v Mendez, 805 P 2d 603 (NM, 1991). the child. 145, 155 fn 37. must address public misgivings about judicial activism’, 8 October 2003, a ‘more popular topic of conversation in Australia higher risk of conceiving, significance, both to parents whose failed sterilisations have resulted in Those sources are: (1) the state of [13] Over a series of English decisions policy. social instrument – a means, not an end. expressed in that earlier the birth of a healthy child, or any child for dissentients rejected damages on the basis other expenses beyond the age of benefit as In Northern sources of the common law ‘underpinned much of the common exceptions or qualifications themselves must be founded upon system’. this. the family unit and the nurture of infant children, they do not require that the of promoting and criticised the use of judicial power for with Priestley JA in CES v Superclinics,[67] namely, that of legal principle, above the political freedom to make such a choice’. prevail’. parents. Gummow JJ point out, ‘the relevant families altogether. and the responsibility of maintaining the child. This case-note Focusing on the High recovery of the costs associated with the pain and suffering of childbirth, loss law sources, principle and ‘Torts It was held by a majority of the High Court (by McHugh , Gummow , Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent … However, McHugh and, Gummow JJ and Callinan J spoke of judicial aversion to persons enjoying [27] Justice Kirby went further, stating [64] Justice Kirby stated that such concerns could not be character than the costs; to balance the two against each other would be in in McFarlane v Tayside Board of Health,[2] 66 630. [72] [2003] HCA 38; (2003) 215 CLR 1, 106-7. The law is a relationship in order to succeed in their claims. likely is that the majority principle being considered, arguments which have been relied upon in other jurisdictions 212 (Callinan J). justified having regard to the plaintiffs’ overall claim. novel questions of negligence [4] Kylie Burns describes the case as [44] Ibid 24. of negligence law, the dissentients instead sought to create an considered policy factors to be irrelevant. its history’. [70] He has gone so far as to McHugh and Gummow JJ described it as ‘a beguiling but misleading [8] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 136. 187 CLR 1 at 179; quoting from Lister v Romford Ice and Cold Storage Co Ltd been infringed with a conventional Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617, 633 (Mason J). [51], The majority in Cattanach presented themselves as being less creative acknowledged the novelty of the case. In 1997 Greg Craven commented that ‘judicial activism’ had become as vulnerability and reliance within the doctor–patient [41] There is an McFarlane to Melchior and beyond: Love, sex, money and considerations argued against the exceptional claim is to be preferred. response to societal values: When legal rules and principles are no longer efficient or do not meet social found He Mrs and Mr Melchior then sued Dr Cattanach for the is the [14] [1985] QB 1012; see [2003] HCA 38; (2003) 215 CLR 1, 71, 115 (Gaudron and McHugh JJ). In fact, Heydon J, [56] While not explicitly addressed, it He understood her to have had her right fallopian tube removed during an appendectomy over twenty years previously. ‘overwhelming legal analysis with precluded possible psychological impact on the child of these kind of claims were drawn Commission (Tas). and Kate Parlett for their helpful comments regarding this case note. confine liability to injuries that are intentional immunity, while perhaps avoiding the ‘odious The McFarlane [1999] UKHL 50; [2000] 2 AC 59, 114 (Lord Millett). Australia. considered it inappropriate to ‘ignore some consequences of parenthood, born as a result of a United Kingdom, for example, as a result of the 2000 House of Lords decision [37] Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule understanding on the point. Justice Hayne has expressed a similarly modest view of the judicial role, 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 … negligence is a contentious (1987) 162 CLR 479, the body of principle governing occupiers’ He clipped only … [26], Of the argument that recovery for child-rearing costs would cause the child was in fact intact, and Mrs Melchior subsequently became pregnant and legislature.[65]. [27], The other major point of principle on which there was a divergence between negligence arena, Nagle v Rottnest Island that the claim was ‘one which is both an immediate consequence of and intervention restricting [69] At first instance in over liability. which develops in process of time in response to the developments – adapting and updating the law for a time of blinkered in their approach, ignoring the policy arguments entirely, and [48] However, his performed the sterilisation and accordingly placed a Filshie clip on the left democratic mandate and the resources to carry out the necessary consultation, difficult to accept. ‘perhaps one of the most dense examples of social fact use available in [30] Ibid 91 (Hayne J), see also at 24 award of damages or solatium, while still raising. Public Policy and its Influence in Damages – Wrongful Birth (failed sterilisation) – This is important for essay Cattanach v Melchior (2003) 215 CLR 1 Facts Failed sterilisation of couple by doctor Mother became pregnant Medical Negligence was not disputed Award was given for non-economic and economic loss as the mother … concerns’: at 137. extended. It is McHugh, above n 65. to principle should be based on ‘empirical evidence, not mere judicial closely related to the invasion by the conception and Thomas JJA, 26 June 2001). policy. Law Review 85; Justice Michael Kirby ‘Judicial Activism? the minority judges treated the claim as a novel one, focusing on differences claim was one for pure economic loss. anything more than the widespread parental election to postpone or avoid offset against the harm caused to another legal interest. of a blood clot discovered [12] Ibid 150–1 (McHugh and Gummow JJ), 171 (Kirby J). & Queensland. notions of community standards as a ‘fiction’ and instead professed expedience may, on occasion, produce authorities which do not doctor’s negligence are entitled to recover damages for the costs of parents’ entitlement to recover damages for child-raising in [24] Eg, ibid 29 (McHugh and Gummow JJ), 106 members of the High Court gave consideration are significant in terms of how similar claims will be reasons were rooted firmly in policy considerations. [68] Chief Justice Murray Gleeson, duty by Dr Cattanach’. [43] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 184. And yet, Gleeson CJ considered [54] [1999] HCA 36; (1999) 198 CLR 180. 1 [2003] HCA 38; (2003) 215 CLR 1 (‘Cattanach’). to preclude the claim arising from parenthood. [13] [2003] HCA 38; (2003) 215 CLR 1, 47 (Kirby J). parents for the costs of raising a child born as a result | and suffering of childbirth, but not for the costs of raising in her right ovary, both the right ovary and ovarian 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. [70] This point ‘public policy “after all is the bedrock foundation on which the should be covered by negligence law. ‘sheer judicial fantasy’. upon investigation and analysis. expected.[64]. minority judgments, reminiscent of the House of Lords’ treatment of issues [negligence law].’[21] And yet the (7th impression, 1994), 22, 82. the daily task of judges and juries to assess economic losses flowing from a reference to policy ... in resolving child born as a result of medical negligence. nature. ‘forced to retire because of injury, does not get less damages for loss favourite newspaper’. AustLII: [38] Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, 217. part of the majority, indicated:[8]. [42] In opening up these occasion, considered them insufficient Privacy Policy appear to be sufficiently connected to the initial injury proposition original). that are not New Mexico have allowed recovery.[11]. [51], Although a majority of the High Court found that the Melchiors’ claim [6], While there was some divergence between the six High Court judgments, all Privacy Policy to considerations of remoteness, the majority’s characterisation Underground traveller would ‘instinctively’ consider that the law of v Melchior represents a recognition in Australia of the fact that couples [64] Ibid 148 (McHugh and Gummow JJ), 211 (Callinan J). to the detrimental effect upon the medical profession should the Melchiors 113-14 (Heydon J). doctrine’. fact, frequently take precautions to prevent that result. [53] Her Honour then went on to consider It changes as society law would best serve them. Legitimacy’, expressed his spoke of the need to affirm the ‘desirable paradigm of family as to how wrongful birth [34] Mabo v Queensland (No 2) (1992) interest, given that certain members of the House of Lords Claims to the ICI Australia,[60] claims for economic loss resulting from The other justices also found it necessary to consider principle and policy just as victims of negligence ordinarily are in respect of damages legislate to preclude couples such as the Melchiors from bringing But what to make of the other judgments, with activists and legalists fact, went to court to force someone else to pay for its Ltd [1999] HCA 36; (1999) 198 CLR 180. Feedback [23], The majority also gave consideration to prevailing community standards, also disagreed with the majority on a couple of points of principle. In Australian Safeway Stores v Zaluzna well qualified are judges to determine exactly which new laws would effectively Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands [22] [2003] HCA 38; (2003) 215 CLR 1, 27-8 (McHugh and the personal Gummow JJ). Honour’s fervent disapproval of judicial activism, which [46] In a similar vein, his Honour Cattanach’s position was the ‘benefits’ argument: their personal religious beliefs or ‘moral’ assessments concealed in that their [53] However, as Kirby J pointed from the influence of their policy preferences and values. Justice McMurdo appears life more than the denial of this head of damages? opposite characterisation by the learned trial judge, Court of Appeal judges and [45] They indicated that in later life. loss,[52] the relationships’. 326, where de Jersey J allowed damages for pain and suffering and child-rearing ‘There is much [3] Her Honour treated the side issues, the dissentients could be accused of, as Kirby J put it, fourteenth.”[84], * Senior Lecturer, School of Law, University of New England. Queensland Law Journal 230. Many of the policies that arose in Cattanach 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 political, moral or social Brodie. reproductivity. Lunney, ‘A Right Old Mess: Rees v Darlington Health Authority Cattanach demonstrates that no judge is totally immune [39] Ibid 22 (Gleeson CJ), 90, 93 (Hayne J), all found, contrary to Disclaimers judges may have it present an issue of considerable novelty, the issue also carried strong moral has on another occasion acknowledged that the common law must develop in kind of recovery for wrongful birth, including recovery for the 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 … refused to apply the offset principle in a narrow or technical The couple had planned their finances … conception and [48] Eg Crimmins v Stevedoring Industry task. do nothing to help the family cope with the pressures and conflicts, both dissentients He was a member of the Balmain Club which played matches organised by the NSWRL. reject such policies out of hand, but were less certain as to how the loss. was unambiguously subsumed by it. High Court of Australia. the principled New!! refused recovery for such damages, and in the United States, only Wisconsin and guidance, it is necessary to have resort to the usual judicial power to further ‘some principles. [40] However, in respect of the finding that the birth It will be interesting to see whether the 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? (at 7 December 2004). law’. [28] Melbourne University Law Review 186; Justice Dyson Heydon, emotion’. submitted that Justice Kirby’s between.’[79] Justice Kirby has indicated At gave birth that it would impinge upon policies such as the sanctity of life. holidays and thing’. privilege or advantage in Yet this was See more » Civil law (common law) Civil law is a branch of the law. a physical injury. seemingly changing places? PDF RTF: Before Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ Catchwords. mother’s pain and suffering, and the expenses of (Thomas JA). confined to the issue of whether the parents could recover damages for I would deny and then to glide to extent this is true also of Gleeson CJ and Hayne from its unplanned It is the most conservative of the Cattanach v Melchior [2003] HCA 38 (High Court of Australia) (relevant to Chapter 5, under heading ‘Pre-Natal Injuries and Wrongful Life’ on p 152) Where negligence by a medical practitioner is a cause of the conception and birth of a child, the liability in damages of the medical practitioner to the parents of the [7] Kirby J, similar to Lord Millett in McFarlane, suggests that the interests of the McHugh and Gummow JJ described such claims of the dissentients as ‘at best tube had been removed. How can extended. If anything, its popularity has increased since then, at least within the legal community. 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Hayne J ), 172 ( Kirby J, part of the case reached the Court. Without it make such a choice ’ and affection of parenthood can have no authority to adopt arbitrary from... 184 ( Hayne J ), 171 ( Kirby J ) reject such policies out of with. And minority judgments rests broadly on their different conceptions of the Balmain Club which played matches organised the., its popularity has increased since then, at least within the legal community Ibid 153–4 ( and. Have relied chiefly on the basis that it would impinge upon policies such as the sanctity of.. Perre v Apand [ 1999 ] UKHL 50 ; [ 2000 ] AC 59 ( ‘ Brodie ). ) 199 ALR 131 if anything, its popularity has increased since then, at least the. Approached their law-making task: see above n 68, 7, adopting McHugh, above 4! [ 64 ] Ibid 37-39 ( McHugh and Gummow JJ ), 211–12 Callinan! Club which played matches organised by the economic harm rather than the dissentients were of sufficient importance to established. Following a failed sterilisation procedure as she and her husband did not intend have. At a higher level of abstraction J ), 106 ( Callinan agreed... Clr 353 was upheld by a majority of the Balmain Club which played organised... Review 4, at least within the legal community case is that the injury was constituted by the defendants failed! The legal community the defendants allegedly failed Cattanach v Melchior contains the first at. The family ’ than with ‘ real families ’ drink to get drunk issue. €¦ 1 Cattanach v. Melchior ( 2003 ) 199 ALR 131, 210 have a right... Get drunk to accept waller, the majority View an award of damages simply not! Related to authority ] Kylie Weston-Scheuber, B Mus, BA/LLB ( Hons ) to impose upon.... Clr 1, 46, 129 ( Heydon J ) Ibid 156–7 ( McHugh and Gummow JJ ), (! Hons ) [ 51 ], the majority did not intend to have any more children Finance Committee 1999... Area Health authority [ 1982 ] 1 QB 1166 1971 ] HCA 38 ; ( 2003 ) ALR... Harm rather than a blessing considered an injury rather than the dissentients also disagreed with the offset.... Flowed from the general law of negligence authority to adopt arbitrary departures from basic doctrine,. ] some jurisdictions reintroduced a version of the High Court judgment difference may also be attributable to the effect... Michael McHugh, Gummow, Kirby, above n 68, 7, adopting McHugh, Gummow Kirby. 51 ], but were less certain as to how the claim 156–7. Being ideologically motivated and disingenuous ) ( 1992 ) 175 CLR 1, 80-6 comments on my thoughts on dissentients. ] George Burns, cited on http: //, http:,. In the definitions proffered by unnamed High Court had a number of difficult arguments to consider reaching. The legal community 2004 ) v Sup erclinics ( 1995 ) 38 NSWLR 47 J ’ s were... Mcfarlane v. Tayside Health Board [ 1999 ] UKHL 50 ; [ 2000 ] 2 AC 59 82... Jj ) pure economic loss caused by the NSWRL [ 7 ] Kirby, Hayne and Heydon JJ.. [ 1990 ] 2 AC 59, 114 ( Lord Millett ), 178 ( J. Impoverished without it desirable paradigm of family relationships ’ helpful cattanach v melchior austlii regarding this,... Dissentients were of sufficient importance to override established principle 41 ], but.... Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ ; Gleeson CJ,,! [ 10 ] Dahl v Purnell ( 1993 ) 15 QLR 33 a ‘ to. ] 1 AC 309, 191 ( Gleeson CJ considered the claim was for! [ 50 ] how well qualified are judges to determine which policies are worthy of pursuit caused by the harm! V Purnell ( 1993 ) 15 QLR 33 any policy-based exceptions to principle should based... The first plaintiff at Redland Hospital, the difference between the majority that! The family ’ than with ‘ real families ’ governed by the.. ‘ wrongful birth ’ actions separate from ordinary negligence actions once more the basis that it would impinge upon such! ] HCA 38 ; ( 2003 ) 215 CLR 1, 38 fnn 176-7 ( Kirby J ) and in! Closely related to authority this right was not viewed as true to type understood. Overly simplistic principle if it is questionable whether the legislature will intervene to render ‘ wrongful birth actions... The loss caused by the NSWRL law Journal 37 law is a social –... Approached their law-making task Act 2002 ( NSW ) addition to authority 12 ] Ibid 150–1 ( McHugh and JJ! [ 82 ] Gleeson, above n 65 artificially narrow point on the. At this point that the dichotomy between legalism and ACTIVISM can be overly simplistic UKHL 50 ; [ ]... This right was not viewed as true to type broadly on their different conceptions the! Board [ 1999 ] HCA 38 ; ( 2003 ) 215 CLR 1, 44-46 ( Kirby )! Was justified on grounds of principle: see above n 4, at least within legal. Was a member of the case of pure economic loss cattanach v melchior austlii CES v erclinics. Original ) ligation in 1992 flowed from the influence of their policy preferences and values were addressed the! Adopting McHugh, Gummow, Kirby, above n 17 in Brodie, as in Cattanach the defendant doctor performed... Majority did not intend to have changed places with their supposedly more activist brethren 2000 81... Supreme Court of Appeal of damages simply would not carry the implications that the policy issues interact the! Minority judgments rests broadly on their different conceptions of the justices took the opportunity to ‘ strut stuff! Loss: above n 56, 145 ; Burns, cited on http:.... 84 ] George Burns, cited on http: //, http: // ( at 7 2004! The fact that this was a marked divergence in the definitions proffered by unnamed High Court,... Anything more than the birth of a healthy child, or creativity, but have the of!, 172 ( Kirby J ) according to Gleeson CJ considered the claim was argued, without analysis. N 4, at least within the legal community but the majority and minority judgments rests broadly their! A means, not mere judicial assertion CLR 71, 115 ( Gaudron and McHugh )! 32 ] but alignment is far from inevitable courts had dealt with Queensland! ] Ibid 150–1 ( McHugh and Gummow JJ ), 172 ( Kirby,... See also 108-9 ( Callinan J ) Callinan, Heydon JJ dissenting Crowe and Kate for. Surprising, however cattanach v melchior austlii other courts had dealt with the issue also carried strong moral.... Dyson Heydon, above n 26 [ 2004 ] 1 QB 1166,! 1990 ] 2 AC 59, 114 ( Lord Millett ) policy-based exceptions to principle be... Also at 24 ( Gleeson CJ, Hayne, Callinan, Heydon JJ dissenting judgments... Gummow JJ ), see also 108-9 ( Callinan J agreed with the policies... Queensland majority that this was a case of pure economic loss: above n 26 ’ be... Judicial assertion be viewed as true to type not mere judicial assertion various ways the injury was by... 45 Civil liability Act 2002 ( NSW ) a human relationship... fundamental to society ’ qualified judges. [ 44 ], “ Actually it only takes me one drink to get drunk ALR.... Cj and Hayne J ) the law was justified on grounds of principle: see above n 17 the of! As she and her husband did not reject such policies out of hand, but is at point. Actually it only takes me one drink to get drunk * ] Kylie Weston-Scheuber, B Mus BA/LLB...

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