Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312

Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 - HCA 2003 case summary — Zoe

[138]

"Principles concerning the allowance and assessment of damages have evolved in a pragmatic way, and their development has often been influenced by policy considerations. Thus, for a long time the common law refused to allow damages resulting from the death of a human being. The evolution of the law of damages progressed through a period of lump sum jury assessments, in which summings-up more commonly urged caution than sanguinity. In the 20th century jury assessments tended to be supplanted by lump sum assessments by trial judges. Recognition of the desirability of lump sum assessments survived until the 1970s, finally to be supplanted by recognition that, in general, assessment ought to be through the identification of separate heads of damage and the allocation of identifiable damages to each. Damages for the cost of rearing an initially unwanted child are not at this point of time a recognised head of damage, and of course the ultimate issue is whether it ought to be. The fundamental question arising in this case is how to determine what the plaintiff has lost, and whether and how the plaintiff's undoubted benefit is to be brought into account. The gaining of a healthy child may in one sense be regarded as the receipt of a collateral benefit, a subject which the courts have not solved in any comprehensive or logically satisfactory way. But once again in this area recourse has been had to 'justice, reasonableness and public policy'. > > The benefit of parenthood of a healthy child who becomes a welcome member of a family is substantial. Families are important units in a community. It is in the interest of the community that parental responsibility, love and trust between parent and child and strong family units be maintained. There is also a widely perceived sense of continuity (which some see as potential immortality) in the procreation of one's own children. In this case [the first and second respondents] are both the natural parents and the custodians of their child. I do not consider it fair or desirable that someone else be required to maintain the child in addition to compensating [the first respondent] for the injury that has been done to her and compensating [the second respondent] for the injury done to his rights. > > ... > > It is accepted in our society that natural parents are liable to contribute to the succour and maintenance of their children. Under the Family Law Act parents have a duty to maintain their children even when the child is in the care of others, and children have the right to be cared for by both their parents regardless of whether their parents are married, separated or have never lived together. The criminal law also imposes a legal duty upon persons having the care of a child under 16 to provide the 'necessaries of life'. > > These obligations are cornerstones of our society and apply to all parents whether they become parents with enthusiasm, surprise or reluctance. This is not to say that someone else could not be ordered to indemnify parents against the financial burden of parenthood. But in my view to do so under circumstances such as the present would create an unfair and inappropriate obligation upon a defendant."

[149]

"The 1967 decision of the California Court of Appeals in Custodio v Bauer was the first to recognize that a physician could be held liable for the birth of an unplanned, healthy child. ... > > Custodio was the first case in which damages for wrongful pregnancy were awarded, and the court allowed full recovery of childrearing costs. ... > > Since the Custodio decision, courts have diverged in their award of childrearing damages. Most courts have awarded damages for losses incurred during and immediately after the pregnancy. They include the cost of the failed procedure; the medical expenses of pregnancy and delivery; the mother's lost income during and immediately after the pregnancy; and the husband's loss of consortium. A minority of states has allowed damages for the mother's pain and suffering during pregnancy and delivery or for emotional distress after delivery. However, as in wrongful birth actions, state courts have split over the issue of damage recovery for childrearing costs. Only in Wisconsin and New Mexico have state courts allowed recovery for the full cost of raising a healthy child. Other state courts in Arizona, California, Connecticut, Massachusetts, Maryland, and Minnesota have allowed recovery for childrearing costs offset by the value of the child's aid, comfort, society and assistance, ie, the child's benefits to the parents. The application of the partial recovery rules is intended 'to prevent a windfall to the parents and an undue financial burden to the physicians'. The majority of state courts (Alabama, Arkansas, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming) ruling on the issue denies any recovery of childrearing costs. Only one state, Massachusetts, allows recovery for pain and suffering associated with the burdens of raising another child. At present there does not appear to be any trend bringing the divergent approaches to damages in wrongful pregnancy suits closer together."

[155]

In substance, almost all of the arguments that can be made against the awarding of damages for the costs of rearing a child consequent upon what Lax J would categorise as a wrongful pregnancy, do involve emotional and moral values and perceptions of what public policy is, or should be. Some of the arguments against an award overlap. The conventional expression, "natural love and affection", used by lawyers in the past as the moral consideration for the making of a gift, sums up the nature of the overwhelming benefit suggested in the cases as fully offsetting any financial burden attached to the raising of a child. It is repugnant to our society, perhaps even universally so, one argument goes, to treat the birth of a child as an occasion for an award of damages. The illegality (in some circumstances in some jurisdictions) of abortion argues against an award of damages. The next matter relied upon, and one which cannot sit happily with the first that I have mentioned, is the mother's freedom to give the child up for adoption or, in some jurisdictions in some circumstances (legally) to abort the child. That the tortfeasor (a surgeon) made an error in relation to a few millimetres only of tissue is, I think, perhaps the least persuasive of all. It is not possible to imply (as would be necessary to ground the claim) another argument goes, an undertaking by the defendant to provide restitution equivalent to the costs of rearing a child. An award of damages for the cost of rearing a child gives rise to a disproportionality between what a doctor undertakes to do and the damages which the patient seeks to recover. Common or overwhelming public opinion is against the recognition of the relevant claim. That opinion is readily identifiable by, and apparent to, all judges. Alternatively it should at least be regarded as a question of fact in every case whether, or the extent to which, the joys of parenthood offset the monetary costs. A rule against recovery is desirable in order to discourage medical practitioners from performing abortions of healthy foetuses. The damages are a windfall to the parents. It is impossible, if damages are awarded, to shield a child from the unwelcome and unhappy knowledge that he or she was an unwanted and unplanned child. It is simply impossible to assess in monetary terms the advantages and disadvantages of parenthood: no damages at all should therefore be awarded for the costs of rearing the child. To give damages as sought is to give long-term damages and therefore necessarily excessive damages. Logically, a notional age of 18 represents an arbitrary cut off point: the loss may in fact be indeterminate, and the law leans strongly against indeterminacy of loss. To award damages of the kind sought is not to do what is fair, just and reasonable or, to use the words of Thomas JA in the Court of Appeal in this case, it would not be "fair or desirable that someone else be required to maintain the child in addition to compensating [the first respondent] for the injury that has been done to her and compensating [the second respondent] for the injury done to his rights."[437]

[165]

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 "windfall" argument is one of these. The denial of damages to the parents could equally be described as a windfall to the tortfeasor. 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. 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. This Court has rejected[448] the approach of the House of Lords in Caparo Industries Plc v Dickman[449], one essential element of which is a test of fairness, justice and reasonableness. One of its difficulties lies in the inevitable differences in points of view as to what is fair, just and reasonable. Some would, in any event, readily hold that a tort having been committed, a victim having suffered quantifiable monetary loss, the victim should in fairness, justice and reasonableness be compensated: that the tortfeasor should pay. Arguments of distributive justice are in my opinion unimpressive. Judges are obliged both in principle and in terms of their judicial oath[450] to do equal justice between rich and poor. On one application of such a principle (of distributive justice), the doctor, or the public health authority (or perhaps their insurer) on the basis of having the longer pocket, should pay. I would certainly not decide the case on such a basis. That a negligent person should pay furthers the ends of corrective justice. It is easy to think of much more difficult cases of the assessment of damages, for example, damages for loss of opportunity, or for pain and suffering. I accept the relevance in the debate of the existence of obligations imposed by the law relating to families, paternity and maternity, and like enactments, as well as the sanctions of the criminal law, for a failure to maintain and support children[451]. But the imposition of these legal obligations can no more absolve the negligent professional from his liability for damages than it can the negligent motorist from his obligation in tort to pay the increased cost of the care of a child he has negligently run over even though the parents may remain obliged to support the child by providing that care.

[169]

Expensive upbringing. The claim which succeeded in this case was not greedy. It was entirely moderate. It does, however, suggest disquieting possibilities in relation to other much more ambitious claims. The plaintiffs appear to have had only a modest combined income before the birth of their son, Jordan. The second plaintiff at the time of the trial was grossing $55,000-60,000 per annum (with a large overtime component in those figures). Even before the birth the first plaintiff's earnings were no more than a few thousand dollars per year. The plaintiffs' claim for the costs of Jordan's upkeep corresponded with that which persons on modest incomes of the type they received could provide. One element that perhaps went a little beyond that was an item for the cost of a "moderately priced private school" at $800 per semester or term. Fees of that order are not only "moderate" but relatively very low. Private secondary education had been contemplated for Jordan's two older sisters, but those plans had to be abandoned because of the expense. The defendants make no complaint of the trial judge's inclusion of that particular item, but it poses the question: what can parents recover in relation to a child who is unplanned and enters a family accustomed to the most expensive primary, secondary and indeed tertiary education? If a Princeton education was contemplated and was feasible for the planned children, can its cost be denied in relation to the unplanned child? And if the parents and the planned children took expensive overseas holidays, can their cost be denied in relation to the unplanned child? If it had been the practice of the family for expensive presents to be given to the planned children, why cannot the cost of expensive presents to the unplanned child be recovered from the defendant? Jordan's parents recovered a sum referable to numerous items which in scope, quantity and cost were very modest - inexpensively priced clothes and toys and pastimes and presents and parties. But even they claimed $200 as the cost of Jordan's share of a holiday in the United States when he was in his first year, and it was allowed by the trial judge. Rich parents might legitimately seek to contend that they should recover from a negligent defendant the cost of expensive clothes, toys, pastimes, presents and parties of the type which the planned siblings of the unplanned child had enjoyed or were going to enjoy. In Allen v Bloomsbury Health Authority[453] Brooke J held that the defendants were liable to pay for all such expenses as might reasonably be incurred for the education and upkeep of the unplanned child, having regard to the condition in life of the child and the reasonable requirements of the child. That would include expensive schools if that was how the child's siblings had been educated, even though this might result in "a very substantial claim"[454]. In Benarr v Kettering Health Authority[455], the costs of private education were held recoverable because the parents were "upper middle-class", were "deeply interested in obtaining the best possible education that they can for their children" and "had decided that their children would be privately educated". And in McFarlane v Tayside Health Board[456] Lord Hope of Craighead said that "a very substantial award of damages might have to be made for the" upbringing of the child of "the expatriate banker or businessman whose work required him to reside with his wife in countries where suitable facilities for education were not available or to adopt an itinerant lifestyle."

[180]

The sum awarded for child-rearing expenses which is in controversy in this appeal is approximately equivalent to that which might be recovered for a moderately severe personal injury having long term detriments, like a badly broken leg, or for the destruction of a very expensive uninsured car in a motor accident, or for serious damage to a dwelling caused by a negligently driven runaway truck, or for some substantial interruption to the profitability of a business. Each of these events is in some way, if not a catastrophe, at least a calamity for the victim. Many judges and other lawyers across the common law world have opposed recovery of a sum for child-rearing expenses because they have an instinctive revulsion against seeing the birth of a healthy child as comparable in any way with a badly broken leg, the destruction of a very expensive car, serious damage to a building, or some substantial injury to a business[479]. Others, like Ognall J, point out that "those who are afflicted with a handicapped child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency with a measure of astonishment"[480]. Yet others, like Weir, see it as "a grotesque waste of public funds" that "hospitals, strapped for funds for curing the sick", should be "paying out loads of money in respect of perfectly healthy children and adolescents ... to parents who were in no way obliged to spend it on them"[481]. But it has been one thing to reach a conclusion after experiencing revulsion or feeling astonishment or observing a grotesque result. It has been another thing to formulate legal reasoning to support the conclusion reached. Despite the difficulties in identifying decisive legal reasoning in the authorities, counsel for the defendants relied on the main arguments, such as they are, advanced in those decisions in other jurisdictions which have denied recovery for child-raising costs. The defendants relied on the fact that though there was not universal agreement in the common law world that there should be no recovery for child-rearing costs, there was widespread opposition to recovery. Not all opponents relied on the same reasons, but the condition of the authorities suggested that the result arrived at was just.

[219]

Similarly, there can be noted in legislative provisions governing adoption two clear themes. One is that the welfare and interests of the child are paramount. The other is that the fact of adoption is to be kept in very large measure confidential. Thus by the Adoption of Children Act 1964 (Q), s 10, "the welfare and interests of the child concerned shall be regarded as the paramount consideration". It is not necessary to obtain the consent of a child under the age of 12 to adoption: s 26(1). There is a prohibition on public statements that a parent or guardian of a child wishes to have it adopted, or that a person wishes to adopt a child, or that a person is willing to make arrangements with a view to the adoption of a child: s 44(1). There are restrictions on the publication of the names of applicants for adoption, the child being adopted, the father or mother or a guardian of the child, or the adopter of the child: s 45(1). Applications to courts or tribunals are to be heard in camera in the absence of the public: s 58. There are strict duties of confidentiality on public officers in relation to information about adoptions: s 59. Sections 44, 45, 58 and 59 create criminal offences, punishable by a penalty or imprisonment for six months: s 53. Adopted persons are entitled to information about their birth parents, and their relatives and birth parents are entitled to certain other information, but only after the adopted person has attained the age of 18: see s 39B and the definition of "adopted person" in s 39A. It follows that persons under the age of 12 need not know that they have been or are to be adopted, and that no material is to be published which might enable anyone else to learn that persons of any age have been adopted. These provisions reflect a legislative assumption that it may be harmful for persons under the age of 12 to know that the people who bring them up are not their natural parents; and extreme measures are taken to prevent persons under the age of 12 from learning the truth[530].

[237]

The Court below reasoned that the interest of the plaintiffs affected by the defendants' conduct is their "free choice ... to limit the number of their children, to not be blessed with a child", and thus that compensation is not sought for the "wrongful birth or new life of the child" itself but for relief from "the additional financial burden that will be placed on the family" - the financial burden flowing from the legal and moral responsibilities which the arrival of the child imposes on the parents[534]. If a seller delivers too many cattle to a farmer, and the farmer later seeks to recover the costs of feeding the excess cattle from the seller, no doubt it can be said that compensation is not sought for the excess cattle themselves, but for relief from the financial consequences of the legal and moral responsibilities which their arrival imposed on the farmer. If a veterinary surgeon conducts the sterilisation of a dog negligently, and the dog's owner later seeks to recover the costs of feeding the puppies, no doubt it can be said that compensation is not sought for the puppies, but for relief from the financial consequences of the legal and moral responsibilities which their arrival imposed on the owner. If under a contract incapable of termination, machinery is sold which calls for excessive maintenance and repair, no doubt it can be said that compensation is sought by the buyer not for the machinery itself, but for relief from the financial consequences of the responsibilities which its acquisition has generated. However, the new child is not to be compared to an excessive supply of animals or unwanted puppies or a piece of machinery needing constant maintenance and repair. "[A] child should not be viewed as a piece of property, with fact finders ... assessing the expense and damage incurred because of a child's life"[535]. "It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth."[536] Its worth is as a child, not as a commodity. Hence its life has "worth" in a sense quite distinct from the way commodities have "worth". Thus in CES v Superclinics (Australia) Pty Ltd[537] Meagher JA said:

[300]

Unplanned pregnancies generating litigation. Even if McMurdo P and Davies JA are correct in saying that unwanted or unplanned pregnancies are common, their commonness does not negate the potentiality of harm for particular children on learning the facts. It is one thing to learn of an unplanned pregnancy which took place because the child was born too soon or because of casual contraceptive failure. It is another thing to learn that not only did an unplanned pregnancy take place after the parents had resolved never to have children again, and had resorted to medical procedures causing considerable pain or discomfort and expense to ensure that outcome, but also that the parents were prepared to engage in litigation. That litigation will have much at stake and is bound to be bitterly fought. It is usually fought against a professional who is defending his or her reputation and possibly his or her continuing right to practise. An uninsured professional will be seeking to protect his or her assets. An insured professional will be attempting to prevent the levying of higher professional indemnity insurance premiums or the refusal of cover in future. Further, if the professional is insured, the medical insurer is likely in modern conditions to be in a condition of some desperation. If a hospital is joined, it will have every reason to resist the claim. But even if the litigation is not fought with any particular bitterness, it will inevitably involve for the plaintiffs stress, expense, publicity and grave risks as to costs. The litigation will reveal intimate details of the parents' matrimonial history and motivations. It will reveal that the parents were attempting to shift to another set of shoulders the burden of fulfilling the parents' duty of paying for the child's rearing and the burden of funding the numerous expenditures flowing from motives other than bare duty. Thus there is no close analogy between the position of a child which guesses or discovers that its birth has been unplanned and took place by reason of some contraceptive error or misfortune and the position of a child which learns that its parents were not only prepared to submit to some form of surgery in an endeavour to prevent birth forever, but also prepared to undertake the stresses, pains and risks of litigation to recover the costs of its upbringing and prepared publicly to ventilate in open court and in devastating detail the lengths to which they were prepared to go to prevent the birth. In this very case, should Jordan ever read the judgments of the courts, or be told about their contents in detail, he will learn of his parents' decision that his mother should undergo a sterilisation operation to ensure that he would never be born, he will learn that his mother gave evidence that his birth was "a major disruption to the family", he will learn that it caused her to become "depressed and angry" and he will learn that she found his care "exhausting"[587]. In short, he will learn that, as McMurdo P said, "his conception was not regarded as a family blessing"[588]. He will also learn of the effects on her body which caused her to recover substantial sums independently of the head of damage under consideration. He will learn that his birth was unusual in being preceded by the institution of proceedings in relation to his conception. He will learn that his birth was unusual in being attended by experts summoned by both sides who were eager, by examining his mother's uterus outside the abdominal cavity, and by examining other organs, to ascertain how his mother's undesired pregnancy had come about[589]. The harm which may be suffered by children who learn that their birth was unplanned and took place for reasons other than third party negligence is not relevantly comparable with that which may be suffered by those who learn that their birth was allegedly the result of third party negligence resulting in litigation.

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Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003)