(i) while, where the compensable injury has reduced a plaintiff's ability to determine whether or not it is appropriate or responsible or reasonable for her to have children, the cost of caring for them may be recoverable; Sullivan v Gordon at [67]. That is not so where the plaintiff retains the ability to make that judgment. PD retained that ability, and exercised it. It could not be said that her conduct in having the second child was caused by the appellants' negligence; rather, it was caused by her own informed and deliberate decision. It is not reasonable to impose upon a defendant the cost of care of a child voluntarily born by the plaintiff after an injury; Sullivan v Gordon at [14]; Beck v State of New South Wales [2001] NSWSC 278.
(ii) To allow recovery in this context would be to compensate a plaintiff for the consequences of conduct which is calculated, not to mitigate, but to aggravate, her damages; and to put a defendant at the mercy of a plaintiff's decision to have more children. The implications - given the cost of attendant care, for up to 18 years - are potentially enormous.
(iii) Moreover, any such claim duplicates and overlaps the claim for lost future earnings (including the lost years), which were assessed on the basis of PD being in fulltime employment. Had PD exercised her earning capacity - for the loss of which she is to be compensated - then she would have required child care assistance, at least during the day, in any event.
(iv) Further, the claim ignores the role which the father of the child would play in providing for the care of the children.
116 At the outset one may accept two propositions as not really debatable. First, it was reasonably foreseeable that PD, even knowing of her condition, would decide to have a second child. If one views matters at the time of the original consultation, PD was 24 and had at that time no children. There was nothing to indicate that she intended to hold back from having children at some future date. By the time the second child was born it is true that some four years had elapsed but PD was still under 30. She had already successfully given birth to her first child after undergoing anti-retroviral drug therapy. This, together with having a caesarean delivery, resulted in that child being born HIV free; Red, 45 at [88]. She was able to follow the same course with her second child. There is no evidence to indicate that a father who is HIV positive adds to the risk of a child being born HIV positive from a mother with that condition.
117 So to conclude merely removes an impediment to recovery but is not sufficient of itself to enable PD to succeed.
118 Similarly with the second proposition. As the trial judge recognised, there could be no obstacle to her recovery merely by reason of the special damage being not for the cost of looking after herself but for loss of capacity to care for her second child for the six years till the child turns 18. Such an allowance is properly based on the principles underlying Griffiths v Kerkemeyer (1977) 139 CLR 161.
119 Sullivan v Gordon thus allowed special damages for the value of the lost capacity to care for the two children born after the accident. As Ipp JA observes, in the draft judgment that I have had the advantage of reading, that was a claim for loss of capacity to care for others and not a financial loss claim as such. This allowance moreover was in Sullivan v Gordon in circumstances where it was the accident itself which rendered the plaintiff incapable. The brain damage she suffered made her not only incapable of caring for her two children born after the accident but incapable of deciding responsibly whether or not she wished to have children at all in such circumstances. Here however there is no such direct connection between the defendant's negligence and the birth of a child.
120 The permissibility of recovery for the present claim can be considered in various ways. These the appellants identify. First, whether damage flowed from the original act of negligence such that it should be recoverable. That is a question of causation involving normative issues. But it can be equally framed as a scope of duty question.
121 In that context, the question can be posed, did the scope of the doctors' duty of care comprehend the kind of consequential loss for which claim is made here. Though recovery sought is not for pure economic loss arising out of a relationship, nonetheless as Gleeson CJ expressed it in Cattanach v Melchior (2003) 77 ALJR 1312 at [30], liability "has to be justified by showing that there was a duty of care to protect the claimants from that kind of harm".
122 Third, in damage mitigation terms, the issue becomes whether the respondent has been shown to have acted unreasonably in failing to mitigate her damage but rather aggravate it.
123 Professor Jane Stapleton explains in her article "Cause-in-Fact and the Scope of Liability for Consequences" (2003) 119 LQR 388 that even after one has determined that the negligent conduct in question played a part in bringing about the harm in an historical sense, there is a second aspect concerning "the 'appropriate' scope of liability for the consequences of tortious conduct" (at 411).
124 Considered as a question of causation the starting point is still the application of common sense (March v E & M H Stramare Pty Limited (supra). This is also the test for whether some particular damage resulted from the negligent act or (as here) omission (Medlin v State Government Insurance Commission (1995) 182 CLR 1). The appellants as PD's doctors in common sense terms and certainly as a matter of historical involvement, played a significant role in the respondent being faced with the choice of limiting herself to one child or placing herself in likely need of child care once incapacitated. Though it be the case that she chose the latter course, that choice was in a sense forced on her, if she were to have a further child at all. That however still leaves a second question, similar to the scope of duty analysis. That question is whether the doctors "ought to be held liable to pay damages for that harm". That is the second stage of the two stage enquiry, described by Ipp JA as one which "may involve normative issues of a general kind … and whether the damage claimed is too remote."; Ruddock & Ors v Taylor (supra) at [87]. Most recently Hayne J in Pledge v Roads & Traffic Authority [2004] HCA 13 speaking in the preferable terms of "legal responsibility" (at [10]) adopted just such a two stage enquiry:
"The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry - the attribution of legal responsibility …. It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable [Stapleton, "Unpacking 'Causation'", in Cane and Gardner (eds), Relating to Responsibility, (2001) 145 at 166-173]."
125 The joint judgment in Sullivan v Moody at 415 [49] warns that in determining cases of negligence and causation by reference to what is just and reasonable or fair, principle must have primacy, but that there are also policies at work which can be identified:
"[t]he question as to what is fair, and just and reasonable, is capable of being misunderstood as an invitation to formulate policy rather than to search for principles. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles which must be capable of general application, not discretionary decision making in individual cases."
126 But importantly the High Court did not exclude altogether consideration of what is fair or unfair, for in the next passage (416 at [53]) there is an acknowledgment that:
"[D]evelopments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is "fair" or "unfair". There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted." [emphasis added]
127 Here there is no guiding principle which, without recourse as well to legal policy, suffices to answer the scope of duty question. In determining what is here the proper scope of the doctors' duty of care (or the proper scope of their liability for the consequences of its breach) one must begin with the voluntary decision by PD to have a second child, knowing that she was HIV positive. This was when she was in no way incapacitated from making that decision by reason of the earlier negligence of the doctors, in contrast to the position in Sullivan v Gordon. The appellants contend that decision, and the consequences which followed, because it was the product of voluntary and informed conduct, in causation terms must amount to an interruption or termination of the causal force of the original negligence. That conduct, say the appellants, constituted a novus actus interveniens, involving independent and unreasonable action on the part of the respondent seeking to recover. That in scope of duty terms, broke the chain of legal responsibility eclipsing any role the doctors' negligence may have played. As I explain, I consider that approach unduly simplistic in its assumption of unreasonableness on the part of PD.
128 Similar issues arose in the well-known case of McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621. There the defendant, although responsible for initially injuring the plaintiff's leg, was held nevertheless not liable when the plaintiff subsequently fractured an ankle in trying, alone and without even the assistance of a handrail, to descend a steep staircase. Lord Reid at 1623 put the matter in these terms:
"But if the injured man acts unreasonably he cannot hold the defendant liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens . The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it … a defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee."
129 Reasonableness in the present case starts with the question whether it was reasonable for PD to have a second child in the circumstances. But that is not the end of the matter. The second question which must be answered is whether, accepting it may have been reasonable for PD to do so, is it reasonable to hold the appellant doctors liable? Was it nonetheless within the proper scope of the doctors' duty of care (or liability for consequences of its breach) for the doctors to be liable to compensate PD for the resultant child care once PD becomes incapacitated to provide it herself. The trial judge simply treats his affirmative answer to the first question as determinative. He concludes that "conceiving and raising children is a natural incident of the human condition"; Red, 51 at [114].
130 Beazley JA went further in Sullivan v Gordon (at 335): "In any event, it is probably the case that there is a common law right to procreate" citing Re "Jane" (1988) 94 FLR 1 and Article 23(a) of the International Covenant on Civil and Political Rights. But as Ipp JA points out in his draft judgment in 1992, the High Court left open the question whether "there exists in the common law a fundamental right to reproduce which is independent of the right to personal inviolability". Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218. More recently Gleeson CJ in Cattanach v Melchior (supra), though in the minority, was not contradicted by the majority in observing that "parents have the freedom to chose, and therefore to limit, the size of their family" (at [23]) [emphasis added]. We are here concerned with the converse of a parental decision to limit the size of a family. It may be expressed as exercising the freedom to choose to have a further child. For the purposes of what follows, I shall assume that such a freedom exists; it is not necessary to go further and characterise it as a right. Here, while the parents face obvious difficulties, it is clearly not a situation that warrants the conclusion that the decision was inherently irresponsible. The trial judge's finding, not challenged, leaves no room for suggesting that PD could not herself care for the child in its early years, until around the age of 12. Nor was there any submission made that the child, given the precautions taken prior to and at the birth, was at high risk of becoming HIV positive in the circumstances.
131 In March v Stramare Mason J considered (at 517) that the decision in McKew (supra) could be explained as:
"…a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action." [emphasis added]
132 Was then the decision of PD to have the second child with her consequent injury (in terms of post-incapacity cost of child care) not just the consequence of her independent action, but itself unreasonable action on her part? For reasons I explain, though indubitably the result of her independent, and indeed fully informed decision, it was not an unreasonable action on her part and from her viewpoint to choose to have a second child. In those terms, there was no novus actus interveniens in that decision and subsequent conduct.
133 However, that still leaves the further question in assessing whether the respondent should recover, namely the appropriate scope of liability for the consequences of tortious conduct; in short, the scope of the duty. That question is resolved by determining whether in normative terms it would be unjust to hold the appellants legally responsible for that further decision to have a further child, reasonable though it was from PD's viewpoint to do so. That question is not answered simply by invoking the principle that a plaintiff takes a defendant as he find her; compare Nader v Urban Transport Authority (1985) 2 NSWLR 501.
134 PD must be taken to have known that before the child reached mature age she, PD, would be incapacitated from looking after her child. This is so whether that age be 12 as the trial judge held or earlier as PD unsuccessfully argued. While the doctor's negligence did not therefore directly lead to the decision to have the second child or remove PD's capacity to make a reasonable decision in that behalf, nonetheless, but for the doctors' negligence, she could have had a further child without fear of incapacity and consequent need for child care. In causal terms, the link can be said to be more attenuated between the original negligence and the particular head of damage here claimed. That attenuation, while not removing the necessary causal link, is a factor in considering the proper scope of the duty.
135 The following observations of Mason P in Sullivan v Gordon remain pertinent:
"The birth of children is also linked to the accident, in a sense, because the appellant's brain damage impacted upon her ability to determine whether it was appropriate or responsible or sensible for her to have children (see at [67] of Beazley JA's reasons). I incline to the view that it would make no difference if this unusual link were absent, but I express no final view on the matter. An injured plaintiff's own need for personal care includes changing needs occurring throughout his or her lifetime. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor's door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law ." [emphasis added]
136 One such factor is that there is a legal obligation to care for children, as Mason P recognised. That may be compared to the moral obligation to care for an aged relative, important though that may be. A similar legal obligation applies here to PD. It cannot be said, contrary to the cross-respondent's submissions, that admitting such a claim ignores the role which the father of the child would play in providing for the care of the children. That role is likely to be a limited one, if PD remains in Australia. The trial judge found the father would be unlikely as an HIV positive person to be permitted to reside permanently in Australia, so his capacity to provide care cannot be counted upon.
137 Nor could it be said that there was a failure to mitigate her damage in the sense that the law requires, namely, that PD not act unreasonably in the circumstances, so as to bring about an increase in the damage she suffered. The burden is of course on the defendant to prove that the plaintiff's refusal to mitigate was unreasonable; Fleming "Law of Torts" (LBC, 1998) 9th ed at 286, approved by the Privy Council in Geest plc v Lasinquot [2003] 1 All ER 383. I have already concluded that she did not act unreasonably in exercising her choice to have a second child. It must be kept in mind that she had just turned 24 when she first consulted Dr Harvey with FH and would have had every expectation of having children. PD was a woman of childbearing years who, but for the doctor's negligence would have had every expectation of having a family with no fear of incapacity inhibiting that choice.
138 One way of posing the issue of the appropriate scope of the appellants' legal responsibility, translated into what loss should be recoverable, is to pose this question. What if PD had considered herself forced by the risks to hold back from having a further child? She might well have done so for fear of the risk of an HIV positive child, a risk apparently not capable of being totally eliminated, though it did not come home here. This could be coupled with a prudential concern about her not being incapacitated by HIV AIDS at a later date while the second child was still dependent. Then one would be considering a claim for loss of what I still assume to be the freedom safely to have a further child, in a very approximate sense the converse of a defective sterilisation. (Whether it is also a right is not necessary to decide.) An award of damages for pain and suffering from that deprivation might then plausibly be claimed. The argument would then run that the negligent doctor should not be advantaged by PD's willingness to undertake the risks involved in exercising her right to have a further child. Therefore, it would be said, she should recover the extra cost of childcare after her anticipated incapacity. That would be the equivalent to her damage if she had been forced to hold back from having the second child by reason of the risks for the child and her incapacity to look after it once she was incapacitated.
139 One answer is that the head of damage for pain and suffering from being deprived of further children is not the equivalent of the head of damage for cost of childcare after PD's anticipated incapacity by the time the child turns 12, or the equivalent of loss of capacity to care for a child after it turns 12. Moreover there is already an overlap in the claim for lost future earnings (including the lost years) which were assessed on the basis of PD being in fulltime employment. Finally, while in logic the two situations may appear the converse or reciprocal of each other, this is only in a very approximate sense. It by no means follows that because it may be justified to award damages for being deprived of the capacity safely to have children, damage should also follow when the risk of having further children has been safely circumvented.
140 Ultimately this way of looking at the problem tells against PD's recovery. This is because it opens up the very considerations which in analogous cases pose such difficult issues of recovery. Though the damage is not in the fullest sense to an indeterminate class, it would in its implications open up liability for a potentially indeterminate amount as well as other questions of indeterminacy. It raises the question of just how many children should be potentially within the ambit of damage recovery, given that each later birth would involve an ever longer anticipated period of future incapacity till the child turns 18. Suppose indeed PD's precautions were to fail and she were to have a child that was HIV positive. Could she then recover a further head of damage based upon the additional care obligation for the child that this would entail? What of recovery by the child itself? It is true that this has not occurred and therefore the example is hypothetical. But it illustrates the difficulty of extending liability for the cost of care for the second child or loss of capacity to care for that child, and laying this at the door of the doctors; by what principle, consistently applied, can this be justified?
141 It is true that unlike the sterilisation cases, one can quantify the cost of child care after the age of 12, though a claim for loss of capacity to care for a child is not simply measured in that way as Ipp JA points out in his judgment. Sterilisation cases by contrast present the problem of putting "a price on the value to the parent of the new life" (per Hayne J at 200 in Cattanach v Melchior). That in the majority view was not ultimately an impediment in this country. In the United Kingdom the opposite result was reached (McFarlane v Tayside Health Board [2000] 2 AC 59, followed though not completely, as to the cost of a disabled child in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52). That these two ultimate courts of appeal, and by majority, reached such a contrary result, by reasoning inherently plausible, points to those competing legal concerns lying at the heart of this difficult issue as having no pre-ordained resolution; see Cane "The Doctor, the Stork and the Court; a Modern Morality Play" in (2004) 120 LQR 23. But here the considerations to which I have earlier referred do point to a high degree of indeterminacy of liability which tells strongly against extending liability.
142 Ultimately, whether one puts the matter in neutral terms of "legal concerns" (Jane Stapleton's preferred terminology in "The Golden Thread at the Heart of Tort Law" (2003) 24 Australian Bar Review 135 at 136) or in the more influential sense of "legal policy", albeit still awaiting final recognition as binding principle, I consider that the trial judge was correct in denying this further item of damage. I do so not because I consider that there is no causal link between original negligence of the doctors and later injury suffered in loss of capacity to care for a second child after it turns 12. The doctors were undoubtedly historically involved in that injury. Rather, I do so because I consider that this causal link is too attenuated and its quality altered in a normative sense by PD's independent decision to have the further child, knowing of her condition. Reasonable as it was from her viewpoint to do so, it is unreasonable to hold the doctors legally responsible for its financial consequences.
143 Another most important consideration bearing on that unreasonableness is that recovery would bring about the possibility of far-ranging if not indeterminate liability. As was said by Gleeson CJ in Perre v Apand Pty Ltd [1999] 198 CLR 180 at 189 ([5]):
"….. bearing in mind the expansive application which has been given to the concept of reasonable foreseeability in relation to physical injury to person or property, a duty to avoid any reasonably foreseeable financial harm needs to be constrained by 'some intelligible limits to keep the law of negligence within the bounds of common sense and practicality'." [omitting footnotes]
144 In Cattanach the majority gave the greatest weight to "the increasing judicial aversion to the enjoyment of special privilege or advantage in litigation unless strong reason for its creation or retention can be justified" (per Callinan J at [295]. Neither Cattanach nor this case confer a blanket immunity upon a category of defendant like police in the carrying out of their duties. Rather the special advantage lies in denying "recovery of a particular head of damages for an admitted breach of duty" (per McHugh and Gummow JJ at [59] in Cattanach). But unlike Cattanach which was a claim for recovery of pure economic loss, we are here dealing with a claim for financial loss consequential upon personal injury to the plaintiff, a distinction drawn by Gleeson CJ in Cattanach.
145 In reaching this conclusion, I frankly acknowledge the part played by a concern which could now fairly be described as one of legal policy if not yet legal principle, namely that of indeterminacy. I should do so explicitly rather than mask what I am doing by mere labelling. The legitimacy of doing so is affirmed by Callinan J in Cattanach (at [291]). It is exemplified in the earlier quoted passage from the Chief Justice in Perre v Apand (supra).
146 McHugh and Gummow JJ in Cattanach at [58] to [82] articulate what is meant by legal policy. They contrast it with what they term a more expedient or ephemeral public policy. At [84], speaking of it, they emphasise that "The policy of the law should be slow to fix upon something 'inherently fluid'", citing the extra-judicial writings of Lord Radcliffe for that distinction between legal and public policy.
147 Here there is nothing inherently fluid, or expedient, in recourse to longstanding community concern about indeterminate liability, reinforced by burgeoning costs of the Insurance industry. "If the appellants are said to be subject to an indeterminate liability, that is important to the question of the existence of their duty of care" (Gleeson CJ in Cattanach at [26]). That stricture is especially apposite when read with his earlier warning, applicable here, that "the modesty of a claim as presented in a particular case might lead a court to overlook the implications, for other cases, of the acceptance of a claim of that character" (at [20]). There are here strong considerations of legal policy which, with increasing appellate recognition and refinement tested by a sufficiency of cases, may yet acquire the binding character of principle. These, with the factor of PD's informed decision to have a second child emphasised by Spigelman CJ and Ipp JA in their judgments, point strongly against legal recovery. While therefore I believe that they produce a result rather less finely balanced than Cattanach, it behoves a judge drawing in part on legal policy in this relatively novel area to avoid undue dogmatism. This is more especially as indeterminacy is itself a matter of degree, though the degree here is considerable.