He clipped only her left tube. as followed Cattanach v Melchior - rearing or maintaining a child suffering Judgment of NSW is not defined. Here, we briefly summarise the wrongful birth action, 7 and then examine in detail the most recent High Court judgment on claims from a disability'. The divergent results reached in McFarlane v Tayside and Cattanach v Melchior stem, to a certain extent, from different views of the role of these considerations in the grant of damages. That 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 Cattanach v Melchior' ('Cattanach') answered this question in the affirmative. wrongful birth (Cattanach v Melchior),7 but in May 2006 disallow-ing two separate claims for wrongful life (Harriton v Stephens8 and Waller v James/Waller v Hoolahan9). Cattanach v Melchior (2003) 215 CLR 1, applied Cox v Journeaux (No. In the absence of any clear and accepted understanding of such matters, the common law should not justify preclusion of recovery on speculation as to possible psychological harm to children.” -McHugh J and Gummow J at para 79, “…the emotional and other benefits and burdens resulting from such a birth cannot be assessed comprehensively at the beginning of life. The Melchiors, 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. It is a human relationship, regarded by domestic law and by international standards as fundamental to society. Dr Cattanach assumed that at the same time she also had the right fallopian tube removed. 4 Melchior & Anor v Cattanach & Anor [2000] QSC 285 at [81] where Holmes J summarises the damages awarded. The fact was that Mrs Melchior���s right tube was not removed, and Dr Cattanach did not check to ensure that it had been. This is the leading High Court case on ���wrongful birth���. judgment, emphasises the need to preserve the coherence of legal principles5 ironically using aspects of policy to do so. Cattanach v Melchior, one of the lengthier and more ��� Gleeson also noted the respondents’ claims implied an indeterminate liability as they were more than the costs for bare legal obligations but less than the full extent of costs one could reasonably conceive of. This is a chapter from Herring & Goold, eds, Landmark Cases in Medical Law (Hart, 2015) (forthcoming). 9 See Cattanach v Melchior (2003) 215 CLR 1, which allowed damages for wrongful birth, including the ordinary costs of raising the child to maturity, although those costs are now excluded by state legislation: see Civil Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A; Civil Liability Act 1936 (SA) s 67. Judgement Date: 6th May, 2013. It would permit conduct inconsistent with a parental duty to treat the child with the utmost affection, with infinite tenderness, and with unstinting forgiveness in all circumstances, because these goals are contradicted by legal proceedings based on the premise that the child's birth was a painful and highly inconvenient mistake. Legal principle requires that such joys and any like benefits of the unexpected birth be ignored in calculating the recoverable damages.” -Kirby J at para 175. “Despite the large measure of agreement by those judges whose conclusions the appellants would invoke, the matters relied on by them do not, with respect, commend themselves in law to me. The same situationwill occur. Mrs. M told the appellant that her right fallopian tube had been removed and on examination that appeared to be correct, so appellant only performed the surgery on the left fallopian tube. v. Nakaseke District, Ntsels v. Member of the Executive Council for Health, Gauteng Provincial Government, In the matter of Medical and Dental Practitioners Council and In the matter of the Uganda Medical and Dental Practitioners Council in the Alleged Professional Misconduct by Dr. Asinja Kapuru into the Alleged Loss of a Baby at Mulago National Referral Hospital. 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. 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. The head of damages focused on the financial cost, not the “loss of enjoyment of life”, so it is inappropriate to offset the costs of raising the child with the love and joy resulting from the child. Instead it marks a careful consideration of legal and ethical issues in a novel area of negligence law, eschewing the arbitrary application of emotive assertions in relation to ���blessings���, ���key values in family life��� and ���litigious time bombs���. The defendant was granted leave by the High Court on the third head of damages. cattanach v melchior I INTRODUCTION In the landmark decision of Cattanach v Melchior, [1] handed down on 16 July 2003, the High Court held, contrary to precedent in the United Kingdom and Canada, that the parents of a child born as a result of a doctor���s negligence are entitled to recover damages for the costs of raising the child until adulthood. And there are many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted.” – Callinan J at para 301. “It is a fundamental assumption underlying many rules of the common law and many statutory provisions that, in general, where the interests of children collide with other interests, the interests of the children prevail; that parents have duties of a high order to advance the interests of their children; that those interests are best advanced by nurture in stable marriages; and that one of the interests of children which the law recognizes is the need to avoid the harm which may flow from publicity connected with litigation in which their interests are at stake.” - Heydon J at para 323, “The various assumptions underlying the law relating to children and the duties on parents created by the law would be negated if parents could sue to recover the costs of rearing unplanned children. Mrs Melchior subsequently gave birth The perceived disruption to familial relationships by, for example, the Melchiors' third child later becoming aware of this litigation, is at best speculative. This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. The, Personal Second Language Acquisition Theory Research Paper, The Effects Of Global Warming On Earth 's Climate, Zombie Movies And The Film ' Night Of The Living Dead '. CRENNAN J. The main issue is whether the appellant/child who was born disabled has a It is expressed by judges to respond to their perceptions of the requirement of justice, fairness and reasonableness in their society. The “child is a blessing” argument that advocates for no damages is based on moral views and not on legal principles, ignoring the monetary burden of a child. The respondents (plaintiffs at first instance), a married couple, decided not to have any more children. 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. “One of the grounds upon which "wrongful life" claims by children have been rejected is the impossibility of making a rational or fair assessment of damages46. By addressing the issues canvassed, Cattanach looks to clarify the ideas established previously in McFarlane and supports the indication that the judgment reached is the correct one. In that case, though, the appellant doctor did not appeal against the amount claimed by the respondent for those costs. Awarding damages solely for disabled children draws a distinction that is arbitrary and offensive. Ms Melchior underwent a sterilisation procedure. The judgment raises interesting questions as to the characterisation of childbirth and parenthood within modern society. President Kós was somewhat bolder, stating that he considered Cattanach v Melchior to be particularly relevant and, whilst caveating that it was uncertain whether a similar decision would be reached in New Zealand, he ventured to say that ���on the present and progressive state of this country���s law of torts, it is entirely likely that Cattanach v Melchior would be followed��� in New Zealand. 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. Wrongful birth. attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. Cattanach v Melchior (2003) 199 ALR 131. Hayne J and Heydon J, in separate judgments, dissented and would have allowed the appeal on the ground that the law’s assumptions about the value of a child’s life and the need to put children’s interests first would be negated if parents could recover costs of rearing unplanned children. Cattanach v Melchior 3 57. In fact, Mrs. M did become pregnant with a third child, born healthy and welcomed into the family. Harriton v Stephens 2 immunity and which would offer no legal deterrent to professional carelessness or even professional irresponsibility.] To many, the abortion of a child or the offering of him for adoption, particularly within wedlock, would be more morally repugnant than the claiming of damages in respect of the rearing of the child. Giving Context to Self-defence: Julie Stubbs Judgment: Penny Crofts and Isabella Alexander 16 PGA v R [2012] HCA 21 Admitting Legal Wrongs: Ngaire Naffine Judgment: Wendy Larcombe and Mary Heath Evidence 17 RPS v R [2000] HCA 3 Commentary: Katherine Biber Judgment: Helen O'Sullivan 18 Phillips v R [2006] HCA 4 Locating Consent in Similar-Fact Cases: Mehera San Roque Judgment: ��� Society’s value of life and the family unit is not inconsistent with awarding damages. To put this into perspective, the plaintiff's claim for the cost of raising the child to age 18 years was $105,249.33. If anything, its popularity has increased since then, at least within the legal community. 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. Procedure performed by Dr Cattanach (1st defendant) at Redland Hospital (2nd defendant). It would permit conduct inconsistent with the duty to nurture children.” - Heydon J at para 404, (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38, Cojocaru v. British Columbia Women’s Hospital and Health Centre, The Center for Health, Human Rights and Development & Ors. The trial court found that the defendant had negligently failed to warn of the risks associated with the sterilization procedure. To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible.” Gleeson J at para 38. “To suggest that the birth of a child is always a blessing, and that the benefits to be derived therefrom always outweigh the burdens, denies the first category of damages awarded in this case; it also denies the widespread use of contraception by persons such as the Melchiors to avoid just such an event. Melchior that during an appendectomy when aged 15, she had had her right ovary removed. The denial of damages to the parents could equally be described as a windfall to the tortfeasor. Mrs. M elected to have sterilization surgery (tubal litigation) performed by the appellant (defendant). They are different in quality from the costs incurred in child-raising. The damages were to The appellant negligently failed to warn Mrs. M of the risk that if she was wrong she may still become pregnant after the surgery. STEPHEN ALFRED CATTANACH AND THE STATE OF QUEENSLAND v KERRY ANNE MELCHIOR AND CRAIG MELCHIOR The High Court of Australia today dismissed an appeal by Dr Cattanach and the State of Queensland against an award of damages requiring them to pay the costs of bringing up an unplanned child conceived as a consequence of medical negligence. Mr and Mrs Melchior, satisfied with the size of their family, decided to stop having more children. Negligently failed to warn M that she might need to take further steps to avoid pregnancy. The majority judgment in Cattanach v. Melchior does not represent an assault on the sanctity of human life. Cattanach, a similar case heard by the High Court of Australia,8 revolved mainly around the same issues. Cattanach v. Melchior (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38. The indeterminate nature of the financial consequences, beneficial and detrimental, of the parent-child relationship has already been noted. 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 respondents brought action against the appellant and hospital for negligence. A similar difficulty is encountered in awarding damages for loss of expectation of life47. Shortly after this decision, the Parliament of Queensland amended its Civil Liability Act, 2003 to prevent a court from awarding damages for the financial burden of rearing a healthy child. They have nothing to do with the legal wrong for whose foreseeable consequences the tortfeasor must restore the parents. [some footnotes in whole or part omitted] The issues 216. Recovery would permit the commodification of the child, and would obscure the emotional rewards of parenthood. throughout Cattanach by all the Justices that the common law does not exist in a vacuum. Awarding damages discounted for the joys and benefits of a child compares two separate, distinct interests that should not be compared. The Court was heavily divided, issuing six separate judgments for seven members of the bench. Citation: Waller v James [2013] NSWSC 497. This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. Dr Cattanach performed the procedure competently. I. MCFARLANE Cattanach v Melchior [2003] HCA 38. He understood her to have had her right fallopian tube removed during an appendectomy over twenty years previously. The "windfall" argument is one of these. In examining whether these actions should be lawful, it is necessary to analyse the decision concluded in Cattanach v Melchior. Cattanach v Melchior (2003) 215 CLR 1 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Manser v Spry (1994) 181 CLR 428 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Redding v Lee (1983) 151 CLR 117 Rogers v Whitaker (1992) 175 CLR 479 COUNSEL: K D Dorney QC, with him P L Feely, for the plaintiff In 2003, in the case of Cattanach v Melchior [2], the High Court awarded damages in respect of the costs of raising a healthy child where the child was born following a failed sterilisation procedure due to the defendant���s negligence. It was held by a majority of the High Court (Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent doctor could be held responsible for the costs of raising and maintaining a healthy child. McHugh J and Gummow J dismissed the appeal on the ground that tort principles focused on compensation, deterrence, and fairness required recovery. Cattanach v Melchior and implications for health information managers James Cokayne Introduction The recent High Court ruling uphol ding a pri or deci sion to allow a mother to su e for the cost of rearing a child after having had a failed sterilisation has under-standably attracted great controversy (Cattanach v Melchior [2003]). It compares two judgments, from the House of Lords and from the Australian High Court, reaching opposite results where negligent medical errors This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. A four to three majority held that the defendant’s appeal should be dismissed, effectively allowing the plaintiffs to recover the cost of raising and maintaining the child until age 18. a. II CATTANACH V MELCHIOR. The Decision Reached Of Cattanach V Melchior, This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. That possibility would tend to damage the natural love and mutual confidence which the law seeks to foster between parent and child. 4 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [39] (Gleeson CJ). The term 'disability' Court of Appeal Practical consequences exists in SA, where the 'ordinary costs' CATTANACH V MELCHIOR: PRINCIPLE, POLICY AND JUDICIAL ACTIVISM 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���. Dissenting, Gleeson J would have allowed the appeal on the ground that the claim was for pure economic loss but did not satisfy the requirements for establishing a new head of damages in that area, and that it treats a socially fundamental human relationship exclusively in financial terms. Parents would be forced to emphasize that the burdens outweigh the benefits, to the detriment of the child’s relationship with its parents. CREATING LAW Cattanach v Melchior. Callinan J’s reasons were similar. Finally, the reaction to Cattanach on the judicial and executive branches of government have had significant impact on shaping public policy in relation to these complex issues. This case brought to light a number of significant ethical issues both in favour of and against permitting these actions, with the court ultimately proclaiming that it was possible for a doctor to be held liable for a child being born due to their negligence. Limiting recovery to personal injury from pregnancy severs the causal link between pregnancy and its outcome. Cattanach v Melchior (2003) 215 CLR 1 FJ v Commonwealth (2017) 55 VR 108 Partridge v Briggs (Unreported, Supreme Court of Victoria, Gobbo J, 2 June 1988) Unsworth v Commissioner for Railways (1958) 101 CLR 73 Opperman v Opperman [1975] Qd R 345 Melchior v Cattanach & Anor [2001] QCA 246 Reeves v Thomas Borthwick & Sons (Australia) Pty Ltd Kirby J dismissed the appeal on the ground that other options were all inadequate. 5 ��� cattanach v. melchior high court of australia (2003) 215 clr 1; (2003) 199 alr 131; (2003) 77 aljr 1312; (2003) aust torts reports 81-704; [2003] hca 38 gleeson cj, mchugh, gummow, kirby, hayne, callinan and heydon jj b22/2002 16 july 2003 In deciding whether, in the contemplation of the law, the creation of that relationship is actionable damage, it is material to note that it is unlikely that the parties to the relationship, or the community, would regard it as being primarily financial in nature. CRAIG MELCHIOR (second plaintiff) v STEPHEN ALFRED CATTANACH (first defendant) STATE OF QUEENSLAND (second defendant) FILE NO: S466 of 2000 DIVISION: Trial Division DELIVERED ON: 23 rd August 2000 DELIVERED AT: Brisbane HEARING DATE: 5,6,7,8,9, 15 June 2000 JUDGE: Holmes J ORDER: Judgment for the first plaintiff against the first and second 5 Melchior v Cattanach & Anor [2001] QCA 246. In part by abolishing the presumption that children are to be classified as a blessing. The argument in medical cases is more likely to be about whether there has been a breach of the doctor's duty, or whether any breach was a cause of the harm of which the plaintiff complains. Giving Context to Self-defence: Julie Stubbs Judgment: Penny Crofts and Isabella Alexander 16 PGA v R [2012] HCA 21 Admitting Legal Wrongs: Ngaire Naffine Judgment: Wendy Larcombe and Mary Heath Evidence 17 RPS v R [2000] HCA 3 Commentary: Katherine Biber Judgment: Helen O''Sullivan 18 Phillips v R [2006] HCA 4 Locating Consent in Similar-Fact Cases: Mehera San Roque Judgment: ��� The Decision Reached Of Cattanach V Melchior 2140 Words | 9 Pages. The question whether a doctor is under a legal duty to take care when treating a patient does not normally raise serious difficulties of principle. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, This was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. The majority in Cattanach appear to recognise this modern trend, treating the costs of raising a child born as a result of negligence as the consequential harm of an injury for which parents are entitled to compensation, just as victims of negligence ordinarily are in respect of damages that are not too remote. Agenda, Volume 10, Number 4, 2003, pages 367-384 Can���t buy me love ��� Public Policy Implications of Cattanach v. Melchior Natasha Cica he question of whether compensation could be awarded for raising a healthy child born as the result of a doctor���s negligence was recently Blessing Melchior and her husband sought damages from her obstetrician and gynecologist, Dr Cattanach, and the State of Queensland for the cost of raising and maintaining her unintended child to adulthood. judgment in Cattanach v Melchior [2003] HCA 38. When Mrs Melchior first consulted Dr Cattanach, she told him that her right ovary and fallopian tube had been removed. Download Judgment: English. 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