Melchior & Anor v Cattanach & Anor [2000] QSC 285

Supreme Court of Queensland|2000-08-23|Before: Holmes J

[1] The plaintiffs, Mrs and Mr Melchior, seek damages for wrongful conception. Their action arises out of the birth of their son Jordan in 1997, despite the performance of a sterilisation procedure on Mrs Melchior by the first defendant, Dr Cattanach, some years earlier. The second defendant, the State of Queensland, admits liability for any negligence on the part of Dr Cattanach, who was engaged as a consultant obstetrician and gynaecologist at the Redland Hospital where the procedure took place, although it denies that there was any such negligence.

[2] Most of what occurred can, with hindsight, be reconstructed and is not controversial. What is disputed are the contents of the conversations between Mrs Melchior and Dr Cattanach prior to the operation; and what steps, if any, Dr Cattanach ought to have taken, by way of confirmation of the success of the sterilisation operation or further warning to Mrs Melchior.

[3] Mrs Melchior is now 48 years of age. The history giving rise to this action begins in December 1967, when she was, as a young woman of 15, admitted to the Balmain Hospital in Sydney for an appendectomy. In the course of that operation her right ovary was, according to the surgical notes, found to be filled with a blood clot and was removed. There was, however, no abnormality in the left ovary or either fallopian tube, and those organs were accordingly left intact. The operation was performed under a general anaesthetic. Ms Melchior gave evidence that her mother had informed her of the removal of the ovary, and had also told her that there was some concern that she may not, as a result, be able to conceive.

[4] However, the Melchiors, who married in 1984, had two daughters, Sarah and Skye, each born by caesarean section, in 1985 and 1988 respectively. They were satisfied with a family of two, and in 1991 discussed together the prospect of taking steps to ensure that they would have no more children. They had planned their finances around bringing up two children, and Mrs Melchior did not wish to continue using oral contraceptives. Mr Melchior said that he was also influenced by the fact that he suffered from Charcot-Marie-Tooth syndrome, a disease causing muscular atrophy in his feet and legs. It was his understanding that while his daughters were unlikely to inherit the condition, a male child would be at risk. (He was in fact wrong on the latter aspect.) He was content, therefore to limit his family to the two daughters he had.

[5] In the face of what she described as her husband's procrastination, Mrs Melchior approached her general practitioner for assistance, and was referred to Dr Cattanach for a sterilisation procedure. The first of Mrs Melchior's consultations with Dr Cattanach took place on 28 November 1991. As I have indicated, the content of their conversations is the subject of dispute, and will be dealt with later in these reasons. For present purposes, it suffices to say that Dr Cattanach formed the impression that the Mrs Melchior's 1967 surgery had involved the removal of her right fallopian tube as well as her right ovary. In that initial consultation Dr Cattanach undertook a physical examination of Mrs Melchior. Because he had some concern as to whether there was an enlargement of the uterus, possibly indicative of a fibroid growth, Dr Cattanach referred Mrs Melchior for an ultrasound scan. On 2 January 1992, he was able to advise her at a further consultation that the scan report revealed no significant abnormality, and the surgery could proceed.

[6] After undergoing a pre-operative admission to the Redland Hospital for various purposes, including HIV testing, on 4 March 1992, Mrs Melchior was admitted as an in-patient on 12 March 1992 for the sterilisation procedure. The surgery, a tubal ligation performed laparoscopically, was undertaken the following day. The procedure entailed the insertion of two instruments into the body, one just below the navel and the other just above the pubic bone. The purpose of the first was to introduce a laparoscope to enable the organs to be viewed. The second was a cannula, through which a clip applicator was passed to enable a clip to be placed across the fallopian tube. The surgery was performed under general anaesthetic.

[7] The relevant part of Dr Cattanach's surgical notes, with abbreviations supplemented by Dr Cattanach's evidence, reads as follows:

"Good view small bowel associated with right adnexal area - extensive adhesions. No right tube or ovary visible. Consistent with patient's history of right salpingo-oophorectomy. Left tube and ovary normal. One Filshie clip applied to tube and application checked."

[8] The term "salpingo-oophorectomy" refers to the removal of both the ovary and its associated fallopian tube. Dr Cattanach was unable to discern any right ovary or right fallopian tube, consistent with the history he believed he had been given as to the removal of both. In fact there was a right fallopian tube present, obscured by bowel adhesions which were almost certainly the product of the 1967 surgery. Since, however, Dr Cattanach was unaware of its existence, he applied a clip to the left fallopian tube only. He did not see Mrs Melchior again subsequent to the operation, but a letter was written by him (although signed by the medical superintendent of the hospital) to Mrs Melchior's general practitioner. It advised the results of the procedure in terms of the surgical notes, although there was an obvious mistake in a reference to the application of a clip to the right tube. There was no evidence that Mrs Melchior had seen the letter.

[9] In November 1996, at the age of 44, Mrs Melchior discovered that she was pregnant. Her son Jordan was born by caesarean section on 29 May 1997. That operation was attended by experts on behalf of both plaintiffs and defendants in the hope of ascertaining how the pregnancy had come about. After the delivery of the baby the uterus was moved outside the abdominal cavity. At first all that could be seen was small bowel adhered to the uterus, but after dissection it was seen that the right fallopian tube was present. It was convoluted and compressed, and turned almost 180° back upon itself. It was attached by adhesions to its own supporting structures and to the uterus itself, and was displaced towards the uterus from its normal position. In the same procedure the left fallopian tube was viewed. It was observed to be effectively ligated by a properly placed Filshie clip.

[10] In September 1997, four months after Jordan's birth, Mrs Melchior underwent a hysterosalpingogram, a procedure in which dye is inserted into the uterus under pressure and the results are observed on x-ray. It demonstrated that the right fallopian tube was patent. The consensus of opinion among the medical experts giving evidence in the case was that Mrs Melchior had conceived by transmigration of an ovum from the left ovary to the right fallopian tube.

[11] Jordan is now a healthy, active three-year old. Mr Melchior's fears that he might suffer from Charcot-Marie-Tooth syndrome were ill-founded. Dr McMillan, a specialist in Charcot-Marie-Tooth neuropathy, explained that the form of the disease from which Mr Melchior suffered was X-linked, and would thus not be transmitted to a son.

[12] The plaintiffs' action was brought in both tort and contract. As to the latter, it became clear that while Mrs Melchior's initial consultations with Dr Cattanach had been as a private patient, her admission to hospital for the sterilisation surgery was as a public patient. It was not suggested that there existed any contractual relationship between them at that stage, and the plaintiffs' claims accordingly fell to be determined as issues of tort.

[13] The plaintiffs alleged the following particulars of negligence on the part of the first defendant:

"(a) Failing to inform or alternatively adequately inform the first plaintiff of the risk or possibility that the procedure would fail and that she may not be rendered sterile;

(b) Failing to enquire of the first plaintiff that she adequately understood that she may not be rendered sterile by the operation;

(c) Utilising a device known as a Filshie clip which the first defendant knew or ought to have known has a history of failure;

(d) Failing to read, understand or attend to the understanding of clinical notes that were or ought to have been in the possession of the first and second defendants;

(e) Failing to check to determine the existence or otherwise of the right fallopian tube;

(f) Failing to visually inspect the womb when such inspection ought to have and would have revealed the existence of the right fallopian tube;

(g) Failing to perform dye studies to visually detect the existence of the fallopian tube and radiologically check the existence of the fallopian tube;

(h) Failing to attempt an alternative approach to tubal ligation through the vaginal vault;

(i) Failing to foresee the probable consequence of matters referred to in paragraph (d) to (h) aforesaid, thereby rendering the first plaintiff totally susceptible to pregnancy.

(j) Failing to adequately check to determine the presence of a functional right fallopian tube.

[1] Some of those particulars can be shortly disposed of:

Utilisation of Filshie clip There was at trial no challenge to the evidence which emerged from the observations both at caesarean section and upon the hysterosalpingogram that the Filshie clip applied to the left fallopian tube was effective. Failing to read, understand or attend to the understanding of clinical notes Five specialists in obstetrics and gynaecology, including the first defendant himself, were called to give evidence. That evidence, which I accept, was uniformly to the effect that no negligence attached to Dr Cattanach's failure to seek the Balmain Hospital records, given the unlikelihood of their availability after the time interval of 24 years since Mrs Melchior's surgery there, and given also the delay to surgery likely to be caused in waiting for such a request to be met. Failing to visually inspect the womb Dr Cattanach's evidence was that he had a good view of the uterus through the laparoscope, and that the site where the ovary and fallopian tube might otherwise have been was covered in adhesions. It is clear also from the evidence of observations at the caesarean section in 1997 that the existence of the fallopian tube was not then apparent to inspection, and that the same adhesions which obscured vision then were likely to have been present in early 1992. I do not consider, therefore, that there was any such failure by Dr Cattanach. Failing to attempt tubal ligation through the vaginal vault Dr Cattanach's evidence, which was not contradicted by any other evidence, was that this was a relatively obscure procedure which was riskier in terms of infection. It was not at trial advanced as a serious alternative by the plaintiffs, and there was no evidence to suggest that it would have led to detection of the existence of the right fallopian tube.

[14] The remaining particulars turned, in essence, on two issues: whether Mrs Melchior was adequately made aware of the possibility that she had not been rendered sterile; and whether Dr Cattanach took adequate steps for the purpose of determining whether the right fallopian tube was in existence. Both issues require a consideration of what the exchange of information between Mrs Melchior and Dr Cattanach was.

[15] Mrs Melchior said that she had seen Dr Cattanach in late 1991 for a brief consultation, and had again seen him two minutes before going into the operating theatre to undergo the sterilisation surgery, when he asked her to sign a document. She did not deny the possibility of having had a second discussion with him prior to hospital admission, but had no recollection of such a consultation. She did not recollect his telling her anything about the sterilisation procedure; and she said that he did not at any time tell her of the risk of failure. Mrs Melchior had, she said, requested a sterilisation by cut and cauterisation (although she had, in other evidence before the court, referred to "cut and tie"). If she had been told that a laparoscopic tubal ligation would be undertaken, she said, she would not have proceeded, and she expressed some distaste for the notion of having clips left in her body. She was not told whether a general or local anaesthetic would be administered.

[16] Mrs Melchior agreed that she had undergone a pap smear and that Dr Cattanach had expressed concern that a swelling in the uterus might be indicative of a fungal fibroid. For that reason an ultrasound had been undertaken. As to the medical history given, her evidence was that she told Dr Cattanach that she had had her right ovary removed. She denied that she had made any mention of the right fallopian tube.

[17] Dr Cattanach, on the other hand, gave evidence that he had taken a history from Mrs Melchior of the removal of her right ovary and tube with the appendectomy 24 years previously. He had explained what was involved in a laparoscopic tubal ligation in detail to Mrs Melchior, and it was his usual practice at that time to draw a diagram to illustrate the procedure. He could not recall Mrs Melchior asking for a cut and tie operation, but if she had done so, he would have explained to her that it was a more serious operation requiring a longer recovery time. He said that his invariable practice in dealing with patients who sought sterilisation was to explain that the procedure was irreversible but had a one in 300 rate of failure, with the possibility that any pregnancy would be ectopic. Other risks associated with the operation were also explained. He also had an invariable practice of providing an information brochure, a copy of which was tendered in evidence.

[18] At the first consultation, Dr Cattanach said, he had undertaken a pap smear, which led to the concern about the possible presence of a fibrous growth in the uterus and his referral of Mrs Melchior for ultrasound. The ultrasound report he received excluded the presence of any such growth but indicated (wrongly) the presence of both left and right ovaries. Dr Cattanach explained that he gave little weight to the latter finding, because trans-abdominal scanning at that time had significant limitations. (Other specialists, including Dr Pfanner, called for the plaintiffs, also said that they would have taken little notice of such a report.)

[19] On 2 January 1992, Mrs Melchior returned for the second consultation. The findings of the ultrasound and the fact that the way was clear for the sterilisation procedure were discussed. Dr Cattanach undertook the sterilisation procedure on 13 March 1992, with the results already recorded. He denied having given Mrs Melchior any form to sign prior to the operation, although he did see her while she was lying on a trolley in the waiting area. His practice with patients prior to surgery was to remind them that the procedure was irreversible, and to give them the opportunity to withdraw if they wished. In Mrs Melchior's case he had a recollection of making a joke about the fact that one of the Filshie clips (which came in sets of two) would be wasted.

[20] As can be seen, the evidence of Dr Cattanach was at odds with that of Mrs Melchior as to whether the latter told him that her right fallopian tube had been removed; and as to whether he had informed her of the nature and risks of the surgery to be performed. Counsel for the defendants in submissions pointed to a number of matters which, it was said, cast doubt on Mrs Melchior's credibility. It was said, among other things, that there was an inconsistency between her assertion that she was not told the procedure involved laparoscopic sterilisation and documents tendered: the consent form signed pre-operation, the initial plaint, and her answers to interrogatories, all of which refer to laparoscopic sterilisation. I am more inclined to attribute that inconsistency to Mrs Melchior's lack of any grasp of what laparoscopic sterilisation meant, although it does not follow that she had not been told.

[21] It is also said for the defendants that both plaintiffs exaggerated their case in relation to a number of matters - what Mrs Melchior had told Dr Cattanach, the significance of Mr Melchior's medical condition and the nature of Mrs Melchior's erstwhile career - in three contexts: in a letter of complaint to the Minister of Health, in an article recording an interview with a journalist, and in an interview on a current affairs program. In my view such overstatement as those pieces of evidence contain - and none of it is of staggering proportions - is consistent with the plaintiffs' indignation at the occurrence of the pregnancy in circumstances where they believed Mrs Melchior to have been effectively sterilised, combined with some lack of rigour in their expression. They were not, after all, lawyers setting out their case.

[22] A third matter pointed to was Mrs Melchior's evidence that she had gained a considerable amount of weight post-pregnancy and birth, when medical records suggested that there had in fact been no significant increase. That might lead me to question the reliability of her recall of events around the time of the sterilisation, but it did not strike me as involving any deliberate dishonesty.

Findings as to the exchange between Mrs Melchior and Dr Cattanach

[23] Neither Mrs Melchior nor Dr Cattanach professed, unsurprisingly, to have a complete recollection of what passed between them. On the balance of probabilities, I accept that Dr Cattanach did explain the procedure and give warnings, both orally and in the form of the printed brochure. It is inconceivable that if he had not outlined the procedure, Mrs Melchior would have made no enquiry, for example as to whether a general anaesthetic was involved. She had after all worked as a nurse's aide in the past; although that is not to say that she would have understood everything explained to her. Mrs Melchior may well have raised the issue of a "cut and tie" or "cut and cauterise" ligation; but if that occurred, I accept again that Dr Cattanach would have gone to some pains to explain the disadvantages of such an operation.

[24] As to the history given by Mrs Melchior, I accept that she conveyed to Dr Cattanach that she had had her right ovary and right fallopian tube removed, but I doubt that that information was volunteered in clear positive terms. I think it is much more likely to have been elicited on questioning in circumstances in which Mrs Melchior displayed an apparent, but misleading, confidence. Having observed her as a witness, I conclude that she has a measured, careful style of speech which might well suggest a degree of precision and conviction she did not in fact possess. I consider too that there were significant limitations on her grasp of medical terminology which may not have been readily apparent to medical officers dealing with her. She did not, as I observed during the addresses, strike me as someone who would readily volunteer that she did not understand what was being asked.

[25] Mrs Melchior's evidence was that she focused on the word "sterilisation" when, for example, she was signing the consent form which referred to "laparoscopic sterilisation". I accept that is probably correct. I could readily believe that she would be so pre-occupied with the idea of sterilisation, a step she was taking in the face of her husband's inertia, that she did not really absorb either the nature or the significance of the questions being asked of her. In short, if she were asked about the removal of her right fallopian tube, I consider it likely she would not have grasped the significance of the question, while at the same time being hesitant to admit any ignorance as to that organ's function or fate. However that may be, I doubt that the history Dr Cattanach obtained could be described as definite in any more than a superficial sense, although he clearly perceived it as so. A little more probing may well have revealed its dubious quality.

[26] One of the fundamental questions in this case is the extent to which Dr Cattanach was entitled to act on the history given to him. Other specialists called for the defence maintained that it would be impracticable for a doctor to run a practice in which every patient's account had to be cross-checked. One could not cavil with that position; but the present context is one in which Dr Cattanach was dealing with a history of surgery taking place some 25 years prior, that history being given by a patient who was 15 years old at the time it occurred, who had of course to rely on whatever account was given to her. Moreover, as I have found, I do not consider that the history could have been given by Mrs Melchior with more than a superficial appearance of confidence, or with any real exploration by Dr Cattanach of its accuracy. Although, as I have already indicated, I accept that it was not negligent of him to seek to obtain the Balmain Hospital notes, I do consider that, without such records and in the circumstances I have already described, it was incumbent on him to proceed with considerable caution.

Failure to check existence of right fallopian tube; failing to perform dye studies to detect existence of fallopian tube

[27] It then becomes necessary to examine Dr Cattanach's conduct of the sterilisation procedure. The experts agreed that it would not have been appropriate for Dr Cattanach to attempt surgically to dissect the area of bowel and adhesions in order to ascertain whether a tube existed. However, Dr Pfanner, a specialist obstetrician and gynaecologist of long experience contended that Dr Cattanach ought to have performed a dye test at the time of the sterilisation to determine whether there remained any outlet from the uterus through which ova might pass. Other specialists giving evidence - Dr McDonnell, Dr Salisbury and Dr Molloy - considered it unlikely that useful information could be obtained through such a procedure. If dye did not appear, it might indicate that no tube existed; but it might also be that the tube was in spasm, or that the dye had leaked back into the cervix from the cannula by which it was applied; or that the tube was, for some not necessarily permanent reason, blocked.

[28] In fact it is probable that had a dye test been undertaken at the time of the sterilisation procedure, the existence of the tube would have become apparent. That follows from the fact that some years later an ovum was able to find a passage through the tube. However, the fact that subsequent events suggest that a dye test would have revealed a passage does not mean that the usefulness of a such a test was not extremely doubtful at the time Dr Cattanach might have contemplated it. Considering the issue from his perspective at the time of surgery, if the outcome were that no dye was to be seen, it would not greatly advance his confidence that no passage was available. Because of the possibility, for example, that the tubes were temporarily blocked, he could not safely act on such a result. It was only if the dye actually appeared in the uterus that he would achieve an unequivocal result, but the prospect of that, given the state of adhesions, must have seemed remote. In addition, as Dr Molloy pointed out, there was a risk of damage occurring to the ligated left tube if dye were applied under pressure. In the circumstances confronting Dr Cattanach at the time, I do not consider that there was any negligence in his failing to conduct a dye test.

Failing to perform dye studies and radiologically check the existence of the fallopian tube

[29] It was open to Dr Cattanach to refer Mrs Melchior for a hysterosalpingogram, a procedure I have earlier described. Dr Pfanner suggested the performance of a hysterosalpingogram as an alternative to a dye test during surgery. Other specialists, however described the procedure as an uncomfortable and invasive one, which they would not have had performed, given the patient's history and the findings at operation. Dr Molloy said that if he were in a state of uncertainty he would perform dissection of the organs to establish the existence or otherwise of the tube; but he did not think that dye tests were adequate. They had, he said, failure rates of between 10 and 20 per cent, both in the case of a dye test performed at the time of surgery and in the case of a hysterosalpingogram; and he was averse to ordering hysterosalpingograms because they were painful. It was not clear whether the failure to which he referred in giving that statistic was a failure in terms of erroneous result or a failure in transmitting dye through the organs (the context in which he spoke).

[30] For present purposes, however, there does seem to be a significant difference between what can be seen from a hysterosalpingogram and what can be viewed in a dye test under laparoscopy. Dr Pfanner gave evidence, which was not challenged, that hysterosalpingogram enabled the passage of the dye through the tissues of the body to be followed on x-ray: "You can see how far it goes out before it's blocked." What follows is that in a context where the existence or otherwise of the fallopian tube had not been conclusively confirmed, hysterosalpingogram had the advantage of enabling the point at which the dye was blocked to be isolated; unlike the situation where dye was injected under at operation, where all that would be apparent if the dye did not emerge was that there was a blockage somewhere. The other advantage to hysterosalpingogram emerged from the evidence of Dr McDonnell; in hysterosalpingography it was common for the radiologist performing the procedure to administer an anti-spasmodic to relax the tubes and thus avoid spasm. There are, then, reasons in my view for considering that a hysterosalpingogram was more likely to give a clear picture of the state of the fallopian tubes than a dye test performed at the time of surgery.

[31] Given the obvious drawbacks to such a procedure in terms of the discomfort likely to be experienced by the patient, I do not think it can be said that Dr Cattanach was negligent in failing to arrange it. However in the circumstances of this case, given the reasons for caution in acting on Mrs Melchior's history, to which I have already adverted; given that there was no unequivocal evidence of the removal of the tube by way, for example, of a sighting of its stump; and given her clearly expressed desire for sterilisation - reflected in Dr Cattanach's letter to the Redland Hospital which refers to Mrs Melchior's "strong request"- I consider that it was incumbent on Dr Cattanach to ensure that Mrs Melchior was informed, firstly, that the absence of the tube had not been positively confirmed; secondly, that if it should prove to be present she faced significantly higher prospects of becoming pregnant than was usually the case after sterilisation (between 2 and 4 per cent according to Dr Molloy, as opposed to a chance of between 2 and 4 per thousand, a ten-fold increase in risk); and thirdly, that there was available a procedure in the form of the hysterosalpingogram which was likely to disclose the existence of a functioning fallopian tube. The risk of pregnancy was material in both senses used in Rogers v Whitaker[1]; that is to say, it was one to which a reasonable person in Mrs Melchior's position was likely to attach significance, and one to which Dr Cattanach should have been aware that she was in fact likely to attach significance.

[32] It was not sufficient that Mrs Melchior had been warned, as I have found she was, of the risks of failure of sterilisation generally. There was a material difference between that risk and the risk that she faced if the fallopian tube were still present. The consequences should a pregnancy occur, although not precisely known to Dr Cattanach, were, in broad terms, to be expected; that is, the health risks associated with pregnancy and birth, and the burden of raising a child, which plainly enough from the fact of the request for the sterilisation, the Melchiors were anxious to avoid. Mrs Melchior's evidence, which I accept on this point, was that had she been aware of the risk of pregnancy she would have had any tests necessary to ensure that the sterilisation had been effective.

[33] In the circumstances I conclude that Dr Cattanach was negligent in terms of particular (a); that is, in failing adequately to inform Mrs Melchior of the possibility that the procedure would fail to be effective because of the possibility of the continuing existence of the right fallopian tube so as to give her the option of considering further investigation in the form of a hysterosalpingogram. That negligence was a material cause of her pregnancy and the birth of Jordan.

[34] It is necessary now to consider the extent to which those events have produced damage for which recovery may be sought.

[35] Mrs Melchior sought damages for pain and suffering in respect of the pregnancy and birth and their after-effects on her health. She claimed various expenses incurred by her: hospital, medical, medication and travel expenses, both past and future; the cost of her maternity clothes; Griffiths v Kirkemeyer damages, past and future; and loss of income, past and future. Both plaintiffs sought damages representing past and future costs associated with raising Jordan, while Mr Melchior also claimed for loss of consortium.

[36] The defendants, by an amended entry of appearance and defence, pleaded that all damages other than those for pain and suffering ought to be curtailed by reference to the time at which Jordan could, in theory, have been adopted. In his submissions, Mr Griffin QC did not seek to direct me down any specific path to that conclusion - for example, public policy considerations, application of a "fair just and reasonable" test, or the failure to adopt as raising remoteness or causation issues - relying more generally on the effect of the decision of the House of Lords in McFarlane v Tayside Health Board[2] in limiting the scope of damages. Although Mr Griffin's submissions went so far as to propose that no damages at all should be awarded in respect of the birth of a healthy child, he acknowledged that the weight of authority was to the effect that damages for pain and suffering from the pregnancy at least were recoverable. In adverting to McFarlane v Tayside Health Board, he drew a distinction between economic loss occasioned by the pregnancy and birth, and economic loss occasioned by the child's existence in the family, suggesting that if damages were recoverable at all for economic loss, they were limited to the former.

[37] Australian authority on the extent to which damages may be awarded for the birth of a healthy child is scant. In Dahl v Purnell [3], Pratt DCJ allowed damages for pre-natal distress and the pain and suffering of the birth; the past and future costs of bringing up the child; out of pocket expenses in the form of amounts expended on maternity clothes and medical expenses; loss of consortium; and an amount for the parents' voluntary services, past and future, caring for the child. However, he reduced the last component by a quarter to reflect the intangible benefit of a healthy child. Public policy considerations did not, he considered, present any bar to the plaintiffs' claim.

[38] Veivers v Connolly[4], a decision of De Jersey J (as he then was) concerned a severely handicapped child rather than a healthy one. The child was, as the result of rubella suffered by her mother during pregnancy, profoundly deaf, almost blind, and extremely retarded. Damages were awarded to the plaintiff, the child's mother, for pain, suffering and loss of amenities in respect of the anguish of the pregnancy and the continuing stress of caring for a severely disabled child. Awards were made for the plaintiff's past and future care of the child on the basis of the market value of the services provided by the plaintiff, with a further amount for special damages in respect of out-of-pocket expenses incurred by the plaintiff in caring for the child. There was, in that case, no submission that any limit should be placed for public policy reasons on either the heads of damage recoverable or the period in respect of which damages could be awarded.

[39] However, CES v Superclinics (Australia) Pty Ltd[5] illustrates the diversity of approaches that may be taken. The primary question in that case was whether negligent advice resulting in the loss of opportunity to terminate the pregnancy could give rise to a claim for damages, but the question of what damages could be recovered was also addressed. Each of the three members of the New South Wales Court of Appeal reached a different conclusion.

[40] Kirby P noted that there was, in the English and United States cases concerning failed sterilisation, a consensus to the extent that damages for pain and discomfort associated with the birth, the costs involved in the birth, and the loss of earning capacity resulting directly from the pregnancy and its immediate aftermath, were recoverable. He identified two public policy arguments against recovery for the economic costs of rearing a child in such circumstances. The first was the notion that the child's birth was a "blessing" which ought never to sound in damages, and the second the concern that the child in respect of whose birth such damages had been awarded would eventually discover that its birth was unwanted, with corresponding distress. His Honour found neither argument compelling. Nor did he find persuasive the argument that assessment of damages of this kind was impracticable; courts were every day required to make assessments of future economic and non-economic loss. Kirby P considered also the approach that had been adopted in some cases of setting off the benefit of having a healthy child against such damages. He concluded that it was a matter for the trial judge on all the facts to consider whether such a set-off should occur, and if so against what component of damages, pointing out that it should not be assumed that the birth of a child was in all circumstances a blessing.

[41] Having reached those conclusions, however, his Honour, for the sake of achieving a majority approach, concurred with the orders proposed by Priestley JA. The latter took the view that damages beyond the point at which the plaintiff could notionally have given up her child for adoption did not flow from the negligence of the defendant, but rather were the result of the plaintiff's own choice. "Since however keeping the child after that time was something she chose to do, any expense of rearing the child thereafter was not relevantly caused by the breach of duty, but by the plaintiff's own choice, and no defendant is legally responsible for it".[6]

[42] Meagher JA, who dissented from the conclusion that damages could be recovered at all, since in his view an abortion would have been illegal, made some observations as to damages applicable to circumstances broader than the loss of opportunity for abortion case. He considered it abhorrent that the birth of a healthy child could be considered an occasion for the award of damages. He referred to the misfortune of the probable coming to the child's attention of the fact that her mother, in public circumstances, had made it clear that she was an unwanted child. Finally, he adverted to the unreality of making no allowance for the joy and happiness brought by the child; and, he said, to reward the mother who disclaimed any enjoyment of the child by a reduced or no discounting of her damages would be to reward unnatural motherhood. In any event, the plaintiff was required to mitigate her damages, and could do so by putting the child up for adoption.

[43] In the course of his judgment, Meagher JA expressed his agreement with the reasoning of Jupp J in Udale v Bloomsbury Area Health Authority[7]. The effect of that case and a number of other United Kingdom and United States authorities are summarised in the speech of Lord Slynn of Hadley in McFarlane v Tayside Health Board[8]. The preponderance of the English and Scottish cases to that point had been decided in favour of allowing damages for loss of earnings and the cost of raising a child, Udale v Bloomsbury Area Health Authority being a notable exception. However in McFarlane v Tayside Health Board the House of Lords reversed that trend, deciding that damages could not be recovered for the costs of rearing a healthy child.

[44] Lord Slynn considered that the mother in that case was entitled to general damages for the pain and discomfort of the pregnancy and birth, and special damages by way of medical expenses, clothes for her, and equipment needed on the birth of the baby. She would also have had been entitled, had she claimed it, to compensation for loss of earnings due to the pregnancy and birth. He saw no room for an argument that her decision not to have an abortion constituted a break in the change of causation, or made the damage too remote. Since he considered the approach of offsetting the presumed benefit of the child against any damages too unwieldy, he regarded the avenues open to him as being those of awarding all the costs which flowed from the conception and birth of the child, or awarding only those immediately associated with the pregnancy and birth.

[45] Lord Slynn did not find force in the public policy arguments that it was undesirable for children to learn that their birth was not wanted, through the medium of discovering that a damages claim had been made; or that such damages claims would lead to the medical profession encouraging late abortions. While accepting that the loss associated with the costs of raising the child was foreseeable, he decided that the medical practitioner's duty of care could not, applying the "fair, just and reasonable" limb of the test prescribed by Lord Bridge in Caparo Industries PLC v Dickman [9], extend to responsibility to avoid the costs of rearing a child. It was, he said, a matter of inherent limitation of the liability of the doctor, rather than a public policy question.

[46] Lord Steyn thought that damages in the case should be limited to pain and suffering for the pregnancy and birth, and loss of income during pregnancy. He observed that the claim for the cost of bringing up the child was supportable from a corrective justice perspective. However, if a distributive justice approach were taken, the instinctive response of the average person would be that the parents ought not to be compensated for having a healthy child; and the latter approach was, in his view, the real basis for decisions denying such claims. Applying such a distributive justice approach, which, he maintained, did not involve reliance on public policy grounds, he decided that tort law did not permit recovery of the costs of upbringing in the case of a healthy child. As a secondary basis for his decision, he determined that the claim did not meet the Caparo v Dickman requirement of being fair, just and reasonable.

[47] Lord Hope of Craighead considered that recovery should be allowed for the pain and suffering involved in the pregnancy and the birth, and that there should be no set-off against such damages for the pleasure to be derived from the child. No claim had in that case been made for pain and suffering after the delivery or for loss of income during recovery from it; but his Lordship considered that normal rules as to the remoteness of damage should apply, so that there was no necessary termination of such claims at the moment of birth. In relation to the question of how child-rearing costs should be treated, Lord Hope eschewed reliance on policy grounds, which, he said, were matters for the legislature. He, like Lord Slynn turned to the Caparo v Dickman test, but in a somewhat different way. He considered that the benefits of having a child ought to be brought to account; to fail to do so was not fair, just or reasonable. However, since the value of the benefit could not be calculated (unlike the economic costs of rearing the child) it was impossible to say that the costs exceeded the benefits. They could not, therefore, be recovered. Somewhat puzzlingly, at the conclusion of his speech his Lordship indicated an acceptance of the parents' claim relating "to the costs of caring for, feeding and clothing and maintaining the child and of her layette - the child rearing costs". Without the advantage of the relevant pleadings, one can only assume that this was a reference to costs incurred in the short term in the care of the infant.

[48] Lord Clyde also found public policy arguments unattractive, pointing out that for every argument there was a counter-argument. Nor did he think the notion of set- off of the benefit of parenthood against the costs of child-rearing appealing, in part because it was inappropriate to seek to set off non-economic gain against economic loss, and in part because the uncertainty of the benefit made the attempt at set-off impracticable. Proceeding on the basis that damages were intended to achieve restitution, he concluded that the mother was entitled to recover for the pain and suffering associated with the pregnancy and birth. However, to relieve the parents of the financial obligations of rearing their child while permitting them to continue enjoyment of it did not constitute a reasonable restitution. Nor was the expense of child rearing proportionate to the doctor's culpability. It was, therefore, appropriate to limit damage so as to provide a proper measure of restitution.

[49] Lord Millett, while accepting that there was " a strong, direct and foreseeable" causal connection between the defendant's negligence and the costs of rearing the child, concluded that they were not recoverable. While recognising that in individual cases the birth of a baby might not, on the whole, constitute a benefit, it was necessary that society as a whole regard the event as beneficial. The law should not allow parents to enjoy the advantages of parenthood while avoiding its disadvantages; to do would be "subversive of the mores of society".[10] This reasoning led him, unlike the rest of the Lords, to reject the claim for pain and suffering arising out of the pregnancy and delivery, which he characterised as part of the price of parenthood. However, the parents were entitled to general damages in a modest sum to reflect the loss of their freedom to limit the size of their family. In addition, if they had disposed of items bought for their other children on the strength of the negligent information given them, the cost of replacing those items would be recoverable.

[50] Decisions of the House of Lords and of the New South Wales Court of Appeal must, of course be highly persuasive; and were there a single, distinct line of reasoning to be discerned from either case I should follow it. However given the divergence of approach, I can see no alternative but to distil from those decisions the reasoning which appeals to me as sound.

[51] I should say at the outset that I do not find the "blessing" argument compelling, either in the abstract or in the circumstances of this case. Applied as a social imperative (as Lord Millett proposes) it entails a blunt intrusion of the individual decision-maker's value system into legal reasoning. As a general assumption, it is unconvincing. Although there is a natural appeal in the assertion that a healthy child's birth should not be regarded other than as great good fortune, it is counsel for an ideal world. In reality, the context in which a child is born may profoundly affect the happiness to be derived from his or her existence. The introduction of an undesired child into the family may range in its effect from mild economic setback to catastrophe in emotional and financial terms. It is impossible to characterise the range of possible consequences as uniformly a "blessing". In this case, Mrs Melchior made a considered choice of sterilisation in order to avoid the burdens - economic, medical and practical - of bearing another child in middle age. Her evidence was that she loved her son, but his arrival in the household was a major disruption to the family, she was depressed and angry at the effect a new baby had on the life she had planned, and she found his care, as an energetic three year old, exhausting. It is difficult to see why over that reality should be imposed the fiction that the child's birth is now to be considered a benefit outweighing all else.

[52] A further difficulty is the artificiality of the notion of the "healthy child". How does one distinguish between the healthy and the unhealthy; how many defects are required before the child loses the quality of being a blessing and becomes a burden? Does one compensate for the cost of rearing a child with cystic fibrosis, for example, but not for a child with mild hearing impairment? The drawing of such distinctions is unattractive. In any event, if it is to be assumed that parenthood is inevitably a blessing, I would adhere to the approach adopted in Thake v Morris[11], offsetting like against like; in that case, the joy of having the child against the trouble and care of bringing it up.

[53] Nor do I find sufficient the argument that a child should not be exposed to the knowledge that its parents have made a claim for damages arising out of its existence. My inclination is, as was that of Kirby P in CES v Superclinics and of Peter Pain J in Thake, in the passage quoted by Kirby P.[12], to regard it as likely that a child whose parents' financial burden was ameliorated by an award would be in a considerably happier position than one whose parents were precluded by public policy from any relief. To suppose that parents, because they cannot recover damages, will never mention to their child the misfortune which brought about his or her conception is unrealistic; and the greater the economic burden placed on the family the more probable such an outcome.

[54] In addition to the public policy arguments I have already addressed, Jupp J in Udale v Bloomsbury Area Health Authority accepted as a relevant public policy consideration the risk that doctors might be under "subconscious pressure" to encourage abortion, to avoid claims for medical negligence[13]. That consideration was rejected by Lord Slynn of Hadley in McFarlane v Tayside Health Board. He considered the ethics of the medical profession should constitute a sufficient protection; with the availability of insurance supplementing any possible hiatus in that regard[14]. For what it is worth, I would consider the incidence of abortion to be more likely to increase were the possibility of recovering child-rearing costs excluded.

[55] The majority of their Lordships in McFarlane v Tayside Health Board were at some pains to distance themselves in their reasoning from public policy considerations. As Lord Clyde pointed out, in a setting in which each side could point to public policy issues with, for every argument, a reasonable counter-argument, a solution was unlikely to be derived on that approach.[15] Moreover, the court should be wary in encroaching on legislative responsibility by asserting that public policy dictated a particular outcome. Equally, I consider that at least in the circumstances of this case, a proper resolution cannot be achieved by regard to the public policy arguments I have set out. Where competing views are so clearly open, I would be hesitant to pronounce on what should be regarded as the public interest. It suffices to say that I do not find the public interest considerations identified in other cases so compelling that they dictate a conclusion against the recovery of economic loss by the plaintiffs.

[56] Lord Clyde quoted in his speech[16] Burrough J's description of public policy: " A very unruly horse, and once you get astride of it you never know where it will carry you."[17] Not withstanding Lord Steyn's endorsement, I would be inclined to regard the attempt to apply distributive justice principles in a case such as this in much the same way. His Lordship proposed that the individual judge's sense of the "moral answer to a question" should prevail; "what may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right"[18]. It is difficult to envisage how the formation of such a view can avoid subjectivity, and it is not an excursion I am prepared to undertake.

[57] Three of the Law Lords, Lords Slynn, Steyn and Clyde, rejected the proposition that the chain of causation had been broken by the parents' acceptance of the child into the family, rather than resorting to adoption or abortion. (No argument to this effect was actually put to the court, and the remaining Law Lords did not address the issue.) In CES v Superclinics, Priestley JA, while not criticising the plaintiff's choice to keep her child, regarded it as being causative of the subsequent costs of rearing her, to the exclusion of any responsibility on the part of the defendant.[19] In the present case it was, as I have already noted, pleaded that a claim for damages was not maintainable beyond the notional point at which adoption was available. I have some difficulty with that proposition. The failure to adopt seems to me, not an interruption of the chain of causation, but a failure to interrupt it. Nor would I find any argument that the failure to adopt was a failure to mitigate compelling. It was natural and reasonable; and it seems to me that one could not assume adoption would be less catastrophic in its consequences than the decision to keep the child.

[58] Of the five Law Lords in McFarlane v Tayside Health Board, Lords Slynn and Hope relied explicitly on the requirement that the imposition of a duty be "fair, just and reasonable" as part of the three-limbed test explicated by Lord Bridge in Caparo Industries v Dickman. Lord Steyn relied primarily on distributive justice principles, but also held that the parents' claim did not meet the Caparo requirement. Lord Clyde, while not referring in terms to the Caparo test, adverted to the necessity that restitution be reasonable and proportional to the wrong-doing[20]. It is worth noting that the three-stage Caparo approach, met the approval of Kirby J in Perre v Apand Pty Ltd [21]. Interestingly, given the disavowal of most of their Lordships in McFarlane v Tayside Health Board of any reliance on public policy considerations, His Honour commended the Caparo approach as one "which obliges the decision-maker to face squarely the policy considerations which cannot be hidden behind a lawyer's conceit that liability in negligence for pure economic loss is an area of policy-free norms searching for a catalogue of `exceptions' to a very shaky general rule."[22]

[59] Other members of the court in Perre v Apand did not find the Caparo test helpful; but, as is pointed out in the judgment of Gleeson C J[23], it was not intended to be all- encompassing. Its application appears, nonetheless, to have dictated the result in McFarlane v Tayside.

[60] Although one seeks, of course, to arrive at an imposition of liability which is fair, just and reasonable, to use that desired result as a test by which the initial questions - is there a duty and, if so, how far does it extend - can be answered, is an unsatisfactorily imprecise approach. In any event, there is no obvious justice or reasonableness in an arbitrary cutting-off of damages beyond those immediately associated with the pregnancy and birth. There might be more force in the distinction drawn by the defendants' counsel, between loss arising out of the pregnancy and birth and loss associated with the existence of the child, since the latter can more readily be seen as pure economic loss. The fact that I conclude that Dr Cattanach was under a duty to avoid the physical harm to Mrs Melchior occasioned by Jordan's conception and birth does not of course determine whether he is liable for different and more remote damage by way of economic loss[24]; and in this case the real issue in respect of damages is whether loss beyond that immediately connected with that physical harm is recoverable.

[61] A consideration of matters identified by members of the court in Perre v Apand as relevant in determining the existence and scope of a duty of care in pure economic loss cases leads me to the conclusion that I should not follow McFarlane v Tayside. With the exception of Kirby J, their Honours considered it futile to attempt the formulation of any general set of criteria for imposition of a duty. However, a number of factors emerge from the judgments as significant. They include known reliance[25], vulnerability[26], control[27], the defendant's knowledge of the risk and its magnitude[28], the avoidance of interference with established freedoms and controls[29], the avoidance of indeterminate liability[30], and whether the case belongs to an established category[31].

[62] The harm to the Melchiors, should sterilisation fail, was entirely foreseeable. Avoidance of it was not incidental to the surgery performed and the advice given by Dr Cattanach; it was the whole and direct point. Dr Cattanach knew, not only that negligence by him in the performance of those tasks was likely to harm their interests, but also, with some precision, the way in which their interests would be harmed, i.e. by the imposition of the financial burden of an additional child. There was no question of indeterminacy, either of the risk or the persons affected by it. Dr Cattanach was in a position of control. The knowledge that the excision of the fallopian tube could not be ascertained on laparoscopy, and that there was some heightened risk of conception as a result, was exclusively possessed by him. There was nothing the Melchiors could do in that situation to protect their own interests, and they were correspondingly vulnerable. There is no established freedom with which a decision in the Melchiors' favour as to the extent of the damages would interfere. Those are matters pointing to the conclusion that the Melchiors' economic loss should be made good; and one can, with regard to the same considerations, arrive at the conclusion that recovery is fair, just and reasonable.

[63] There is inevitably a degree of pain, discomfort, and inconvenience associated with any pregnancy and birth. Mrs Melchior said that during pregnancy she experienced the usual back aches and morning sickness and loss of agility. In addition she suffered superficial thrombophlebitis in the superficial veins of the right leg. She contended that her experience was worsened by the development, after Jordan's birth, of venous incompetence in the left leg, and deep venous thrombosis.

[64] As to the latter, Mrs Melchior woke one morning some ten days after Jordan's birth to find her leg cold and cyanosed, and was re-admitted to hospital. Dr Adam Morton, an endocrinologist, treated her there. Radiological investigations demonstrated a clot affecting the deep veins of the left leg. Part of that clot became a pulmonary embolism; that is, it travelled to the lungs and obstructed the blood flow in the pulmonary arteries. Dr Morton said that deep venous thrombosis was a recognised complication of pregnancy. In Mrs Melchior's case, the risk was increased by a factor of fifty, because of a genetic mutation she possessed, known as Factor V Lieden mutation. Mrs Melchior remained in hospital for five days and was discharged on Warfarin, an anti-coagulant medication, which she was required to maintain for six months.

[65] In January 1998, Mrs Melchior was seen again by Dr Morton with symptoms of chest pain, which led him to seek a CT pulmonary angiogram. The angiogram report was unusual in that it indicated a clot in the pulmonary veins rather than the arteries; but Dr Morton concluded that recurrent pulmonary embolism had been demonstrated. Because of his conclusion that there had been two episodes of deep venous thrombosis and because also of Mrs Melchior's genetic propensity to thrombosis by reason of the Factor V Leiden mutation, he considered it necessary that she resume her Warfarin regime and remain on it indefinitely. He observed, however, there was no consensus in the available literature as to the appropriate course.

[66] Mrs Melchior described her treatment regime, which required her to take Warfarin daily, and, until very recently, to have a blood test at least weekly. The frequency of the blood tests has now been reduced to fortnightly. It was necessary for her to be wary in taking other medication which might be contra-indicated by her Warfarin treatment. She found, as a result of the Warfarin, that she bruised easily, and her menstrual flow was embarrassingly heavy.

[67] Two issues arise in relation to the compensability of the deep venous thrombosis condition. The first is the necessity for Mrs Melchior to remain on Warfarin; and the second is whether the second episode, if such it was, of deep venous thrombosis can be linked to her pregnancy. As to the first, Dr John Quinn, a vascular surgeon expressed the view that the symptoms experienced by Mrs Melchior in January 1998 did not constitute an episode of recurrent pulmonary embolism, because the angiogram report indicated there were no thrombi in the pulmonary arteries. In his view, that excluded pulmonary embolus arising from deep venous thrombosis. Accordingly, it was not appropriate for Mrs Melchior to continue on Warfarin. So far as that question is concerned I prefer the evidence of Dr Morton as to the nature of the second episode, and I consider it reasonable for Mrs Melchior to continue on Warfarin on his recommendation.

[68] However, I do not think that the evidence demonstrates a sufficient link between the pregnancy and/or the first episode of deep venous thrombosis and the second episode manifested in pulmonary embolism to render either the second episode or the continuing need for treatment compensable. Dr Morton said that the second episode, having occurred almost seven months after the birth, could not be attributed to the pro-coagulant effect of pregnancy. He could put matters no higher than saying that medical trials had indicated that, on a mean time of 3.9 years follow up, there was, in the case of someone who had Factor V Leiden mutation, a twenty to forty percent risk of a further episode of deep venous thrombosis after an initial episode. The lifetime risk for that person in the absence of the first event would be in the order of thirty percent. No definitive answer could be given, however, to the question of whether the second episode was triggered by the first event or whether it was a result of the genetic mutation. Dr Quinn, when cross examined on the point, said that, although Mrs Melchior was as a result of her genetic predisposition at a continuing high risk, the fact of an initial event did not create "a cumulative, ever increasing risk" On the evidence then, I am not prepared to find that the birth and pregnancy were responsible for any episode of deep venous thrombosis or pulmonary embolism other than that occurring in June 1997.

[69] Mrs Melchior, as has been mentioned, suffered from thrombophlebitis in her right leg during her pregnancy. It does not appear that condition troubled her after the birth. However she did experience discomfort in her left leg. In March 2000 she was referred for treatment to Dr McGahan, a vascular surgeon, who concluded that she was suffering from incompetence of the saphenofemoral junction and the entire long saphenous vein from the groin to upper calf, causing aching and swelling in the leg. The condition was unrelated to deep vein thrombosis; but it did mean that surgery to remove the incompetent vein was to be avoided, because if there were to be a recurrence of deep vein clots, the loss of the superficial vein would remove an alternative channel for blood flow. Dr McGahan considered it reasonable, on Mrs Melchior's account that her problems had only arisen since her pregnancy, to conclude that the pregnancy had either exacerbated an already existing incompetent vein or created sufficient stress to cause the incompetence. It was, he conceded in cross-examination, equally possible that the incompetence developed post- pregnancy, or had been the slow progression of a pre-existing problem. Given the absence of any evidence that Mrs Melchior had difficulties with varicose veins prior to her pregnancy, and given her evidence that she experienced discomfort in the leg after the birth of Jordan, I think it is reasonable to conclude that the pregnancy produced the venous incompetence which Mrs Melchior now suffers. However, I accept also the evidence of Dr McGahan that the same condition might have occurred in any event, given Mrs Melchior's age and weight.

[70] So far as treatment is concerned, Mrs Melchior has surgical stockings designed to compress the calf and ankle tissues so as to prevent oedema. Mrs Melchior's failure to wear surgical stockings on a daily basis was subject to some criticism by counsel for the defendants; but it seems to me unsurprising that, confronted with a choice between the leg pain and the discomfort and unattractive appearance of surgical stockings, she occasionally elects to take the former.

[71] A third matter that must be taken into account in assessing pain and suffering is Mrs Melchior's depression, which was treated by her general practitioner, Dr Larwill, with Aurorix. Dr Larwill considered her to have suffered acutely from depression for at least twelve to eighteen months after the birth; and although the condition had largely lifted, she remained vulnerable as recently as her last consultation on 4 April 2000.

[72] In summary, I consider Mrs Melchior's health was significantly adversely affected by the pregnancy and birth, although those effects, apart from the saphenous vein incompetence, have now largely disappeared. I consider an award of $30,000 damages for pain, suffering and loss of amenities is appropriate. Of that amount I will award interest on $20,000 at two percent for the period since the diagnosis of the pregnancy on 5 November 1996 (approximately 3.75 years) giving an amount of $1,500.

[73] The plaintiff is entitled to recover the cost of maternity wear in a total amount of $266.00. There might be an argument for full interest on that amount, it having crystallised some time ago, but the plaintiff has sought it at five percent only; I will award the amount claimed of $46.55.

[74] The assessment of claims for pharmaceutical, medical, and travel expenses presents some difficulty. Mrs Melchior claimed $11,942.64 in medical expenses, hospital expenses of $9,764.60, pharmaceutical expenses of $677.57, and travel expenses of $1,523.00. I have assessed these damages on the basis that those items claimed between the diagnosis of pregnancy in November 1996 and the end of 1997, including those in respect of the first episode of deep venous thrombosis are properly claimed; that the claims in respect of attendances on Dr Larwill, at whatever time, are properly made (given, particularly, the plaintiff's continuing depression) and that the claims in respect of attendances on Dr McGahan in 2000 are also allowable. On that approach, I have reached an amount in respect of hospital expenses of $8,354.40, medical expenses of $5991.45, and travel expenses of $565.00. In respect of the first, an amount of $386.40 seems not to have not been the subject of refund, and I allow interest at five percent on that amount since April 1997, giving an amount of $64.72. In respect of the health insurance commission claim, an amount of $1488.55 was not reimbursed. Interest calculated at five percent for 3.75 years since the diagnosis of the pregnancy gives $279.10. In respect of the travel expense claims, interest at five percent for 3.75 years gives a further $105.93. I have adopted similar reasoning in relation to pharmaceutical expenses, allowing the plaintiff's claim for Warfarin only up until the end of 1997 and all claims for Aurorix. That gives an amount of $296.21 on which interest at five percent for 3.2 years (since the earliest prescription in June 1997) adds a further $47.39. I do not propose to allow any amount for future medical expenditure on Warfarin.

[75] Mrs Melchior gave evidence that since Jordan's birth her husband and daughters had given assistance with household duties for three or fours daily. In his address, her counsel, Mr North QC submitted that it would be reasonable to allow three hours per day for the four months following Jordan's birth, and one hour per day thereafter and for ten years into the future. I am prepared to allow the past care claimed in an amount of $13,300.00, with interest as claimed at two percent for 3.2 years at $851.12. (The hourly rate was agreed for the past at $10.00 and for the future at $12.00.) An amount of $37,950.00 (the present value of $84.00 per week for ten years, representing assistance for one hour per day) was claimed for the future, However, the weekly sum claimed must, I think, be reduced because it is posited on the premise that Mrs Melchior's health problems are a significant factor in the amount of care required. To the extent that she may need some additional assistance because of her left leg venous insufficiency, that is the case; and of course there is the need for extra assistance posed by Jordan himself. However, given my finding that the continuing deep venous thrombosis condition is not the result of the pregnancy or birth, I consider the figure of $84.00 should be reduced by twenty five percent. The appropriate discount rate, since the services will be gratuitously supplied is 3%, giving over 10 years, an amount of $28,476.00.

[76] Mrs Melchior had a varied employment background. She had worked as a nurses' aide, as a shop assistant, as a clerk, and as a part-time paper collator for Rural Press. In November 1996, she had been performing voluntary work at the Redland Bay State School, which her children attended, and was offered paid part-time work as a teacher's reading aide. She gave that work up in December 1997. She said that, but for the birth of Jordan, she had hoped either to obtain more hours at the Redland Bay School, or if, that were not possible, to have got similar employment with nother school. The Acting Deputy Principal of the Redland Bay State School, Ms Dale Luther, was called as a witness. A history produced by her showed that Mrs Melchior had worked between three and eight hours per fortnight consistently over a period between 22 November 1996 and 6 June 1997. There was then a tapering-off, with only one hour worked in the fortnight ending 11 July 1997, picking up again at the end of October 1997, with the final fortnight being that ending 5 December 1997. The hourly rate paid was $13.23; it had increased to $14.89 at the current time. Mrs Melchior's cessation of work in December 1997 would, Ms Luther said, have coincided with the expiration of funding for the programme for that year. The employment was offered to parents of children in the school, and it was likely that other schools offered such employment on a similar basis. Mrs Melchior said that she had been asked to work again for the school but did not feel she was able to do so.

[77] I am prepared to allow economic loss for the past only until the end of 1998; that is, for the period during which Mrs Melchior suffered depression. In that eighteen months she could, if one assumes there were sixty school weeks, have worked for two hundred and forty hours. Instead she worked for twenty five and a half hours at $14.00 per hour. The lost income totals $3,003.00, on which I will allow interest at five percent for 3.5 years giving a total of $525.52. For the future, I accept that the venous insufficiency in Mrs Melchior `s left leg may make it difficult for her to undertake any form of employment which requires standing such as working as a shop assistant. I allow an amount of $10,000.00 as a global award, representing her loss of earning capacity in this regard.

[78] An extraordinarily detailed schedule was prepared by Mr Melchior, setting out the anticipated costs of raising Jordan until he completes secondary school. There was scope for argument as to some of its contents; there was for example an assumption that GST would be imposed on food which, one is assured, will not be the case. One would also rather hope that Jordan will not necessarily have to watch the one video per week for which Mr Melchior has budgeted until he reaches the age of eighteen. On the whole, however, the schedule is a reasonable representation of the costs of raising a child. The total for past expenditures was $17,698.80 with interest claimed in an amount of $2,600.55; I consider both amounts properly awarded.

[79] Counsel for the plaintiffs provided a calculation of the present values of the amounts claimed in the schedule to year 18, calculated at a 3% discount rate. He submitted that the sum of $112,870.00 thus arrived at should be discounted at twelve percent to reflect those matters which could be said to constitute overcharging, such as the GST claims, leaving a figure of $99,325.60. However it seems to me that the proper rate of discount must be 5%, since these amounts represent a liability for actual expenditure to be incurred by the plaintiffs[32]. Discounting at the higher rate, the total figure for the future is $96,472.19. Discounted by a further 12% as proposed by counsel, one arrives at an amount of $84,895.53, which I consider properly awarded.

[80] The second plaintiff, Mr Melchior, claims for loss of consortium. Mr Melchior gave evidence that Mrs Melchior had been frustrated and upset since the pregnancy, with a corresponding impact on their mutual happiness and, also, their sexual relations. While recognising the toll which the events must have taken on the marriage, it has not in this State been the practice to make substantial awards for loss of consortium. In any event, Mr Melchior retains the benefit of his wife's company and she is not significantly disabled. Although the first three years of a child's life can impose considerable strain on any household, and in the circumstances of this case must have made matters very difficult, there is every probability that life will improve as Jordan grows older. Indeed, this is an area in which some deference may be paid to the "blessing" argument; it is clear from Mr Melchior's evidence that Jordan is now the source of considerable gratification to him, and it is possible that he will prove to be a source of mutual joy and a strength to the Melchiors'relationship in years to come. In the circumstances of this case I do not consider a large award is warranted. I allow $3,000.00 in this regard.

[81] The following is a summary of the damages awarded:

Pain and suffering and loss of amenities $30,000.00

For the first plaintiff against the first and second defendants in the amount of $103,672.39;

For the second plaintiff against the first and second defendants in the amount of $3,000.00;

For the first and second plaintiffs against the first and second defendants in the amount of $105,249.33.

[83] Subject to submissions, I will order that the first and second defendants pay the plaintiff's costs of and incidental to the action to be assessed on a standard basis.

[9] "... in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other." [1990] UKHL 2; (1990) 2 AC 605 at 617-8.

[17] Richardson v Mellish [1824] EngR 715; (1824) 2 Bing 229 at 252

[24] Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 per Brennan J at 487.

[25] [1999] HCA 36; (1999) 73 ALJR 1190 per Gleeson CJ at 1193, Gaudron J at 1196.

[26] [1999] HCA 36; (1999) 73 ALJR 1190 per McHugh J at 1213, Gummow J at 1231,Kirby J at 1248, Callinan J at 1271 .

[27] [1999] HCA 36; (1999) 73 ALJR 1190 per Gaudron J at 1197.

[28] [1999] HCA 36; (1999) 73 ALJR 1190 per McHugh J at 1208, Gummow J at 1228, Kirby J at 1248, Callinan J at 1270.

[29] [1999] HCA 36; (1999) 73 ALJR 1190 per Gleeson CJ at 1193, Gaudron J at 1196, McHugh J at 1210-11, Kirby J at 1249, Hayne J at 1258, Callinan J at 1271.

[30] [1999] HCA 36; (1999) 73 ALJR 1190 per Gaudron J at 1196, McHugh J at 1208-10, Gummow J at 1228, Hayne J at 1256, Callinan J at 1270.

[31] [1999] HCA 36; (1999) 73 ALJR 1190 per McHugh J at 1206, Callinan J at 1272.

[32] Supreme Court Act 1995 s.16; Mott v Fire and All Risks Insurance Co Ltd (2000) QdR 34

At a glance

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Judgment (133 paragraphs)

Parties

Cases Cited (4)