(12) Causation and damages
144Although I have concluded that Ms Neville's case must fail, it is still necessary to address, to the extent that it is practical, the various contentions of the parties on causation and damages.
145Ms Neville's case on causation was that, had Associate Professor Lam proffered the advice she claimed that he was obliged to but did not, then she would have discussed contraceptive methods with him. She says she would have ultimately undergone a tubal ligation at the same time as her endometrial ablation. Had she done so she would have avoided conceiving. Mr Sullivan QC disputed this. He pointed to various matters which, it was submitted, suggested Ms Neville would have still assumed the residual risk of pregnancy that pertains following an endometrial ablation. These contentions were all directed towards the determination of whether Ms Neville's case satisfied the "but for" test now encapsulated in s 5D(1)(a) of the CLA.
146The findings that I have made about the advice given during the consultation on 27 October 2004 are consistent with Mr Sullivan QC's submissions on this point. In view of those findings it is neither possible nor appropriate to make findings as to what contraceptive steps Ms Neville might have taken if I had instead found that Associate Professor Lam did not provide any advice to her about the residual risk of pregnancy after undertaking an endometrial ablation (or whether Ms Neville negligently contributed to her own damage in failing to inform Associate Professor Lam in 2004 that she was contemplating a relationship with someone other than her husband).
147However, I can and will address those submissions of the parties on damages and causation that assumed that, but for some negligence on the part of Associate Professor Lam, Ms Neville would not have conceived Samuel.
148Mr Sullivan QC made two further submissions on the issue of causation. These submissions only relate to the third component of Ms Neville's claim for damages, namely the claim for the additional costs of raising Samuel (see [5]). To address them it is first necessary to describe the applicable law concerning the recovery of those various components.
(a) Recovery of damages in unplanned birth cases at common law
149In CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 ("CSR v Eddy"), the High Court rejected a claim by an injured plaintiff for an amount representing his lost ability to provide care to his wife calculated by reference to the commercial value of those services (so called "Sullivan v Gordon damages": Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319). Chief Justice Gleeson and Gummow and Heydon JJ held that the claim was not analogous to a claim for the value of gratuitous services provided to an injured plaintiff by a family member that was allowed in Griffiths v Kerkemeyer (1977) 139 CLR 161. Instead any such loss or impairment was held only to be compensable as part of the plaintiff's general damages (CSR v Eddy at [71]). The judgments of McHugh and Callinan JJ were to similar effect (at [114] and [122] respectively).
150In CSR v Eddy Gleeson CJ, Gummow and Heydon JJ confirmed that a plaintiff who sued for negligently caused personal injury was "traditionally" only able to recover for three types of loss, being non-pecuniary loss, loss of earning capacity and actual financial loss (at [28] to [31]). The third category was not confined to costs incurred prior to trial and could include future expenses, although it was necessary for a court to be satisfied that "they will be incurred" (at [31]). Their Honours approved a statement by Dixon CJ in Blundell v Musgrave (1956) 96 CLR 73 at 79 to the effect that, for such amounts to be recovered, they must be amounts that will be paid "whether [the plaintiff] obtains the amount from the defendant as damages or not".
151Further, their Honours observed that, to the extent that Griffiths v Kerkemeyer enabled an injured plaintiff to recover for the cost of future nursing and home care services that will be paid, then it accorded with those principles, but to the extent that it allowed for recovery of costs even though such services have not been or may never be supplied or have been or only will be supplied gratuitously, then it was "not only exceptional, but anomalous" (CSR v Eddy at [31]).
152In Cattanach v Melchior [2003] HCA 38; 215 CLR 1 ("Cattanach") the Melchiors sued Dr Cattanach after Mrs Melchior gave birth to an unintended child, even though Dr Cattanach had performed a tubal ligation on her. Dr Cattanach had only attached a clip to one of Mrs Melchior's fallopian tubes because she had incorrectly told him that her right fallopian tube had been removed. Dr Cattanach was found to be negligent in uncritically accepting what Mrs Melchior told him and failing to her advise her to have the issue investigated, and warning her of the risk of pregnancy if the right fallopian tube had not been removed (at [12]).
153At trial the Melchiors were awarded an amount of damages which had three components. The first was an award in favour of Mrs Melchior for an amount of damages associated with undergoing pregnancy and childbirth, which included pain and suffering and loss of earnings due to a thrombosis associated with pregnancy (at [14]). This amount was a combination of the first and second heads of damage identified in CSR v Eddy. The second was an award reflecting the husband's loss of consortium (at [14]). The third component was for the costs the couple had and would incur in raising their son. Dr Cattanach unsuccessfully appealed to the Queensland Court of Appeal (Melchior v Cattanach [2001] QCA 246). He obtained special leave to appeal to the High Court but only in respect of his liability to pay the third component.
154In the High Court, McHugh, Gummow, Kirby and Callinan JJ found that the Melchiors could recover the cost of rearing their child. According to McHugh and Gummow JJ the relevant "damage" suffered by the Melchiors that was in issue on the appeal was not the unplanned birth of their son but the financial cost of rearing him (at [67]):
"... the relevant damage suffered by the Melchiors is the expenditure that they have incurred or will incur in the future, not the creation or existence of the parent-child relationship. If, for example, their child had been voluntarily cared for up to the date of trial, they could have recovered no damages for that part of the child's upbringing. And, if it appeared that that situation would continue in the future, then the damages they would be able to recover in the future would be reduced accordingly." (emphasis added)
155It is clear that the concept of "voluntarily cared for" in this passage includes care provided by the relevant plaintiff(s) in an unplanned pregnancy case. (In fact, the first component of damages awarded to Mrs Melchior included an amount for assistance provided by her family to her in looking after her son, but this award was not interfered with presumably because of the limitations on the grant of special leave: see Melchior v Cattanach [2000] QSC 285 at [75]).
156The analysis of McHugh and Gummow JJ brings the claim for the costs of child rearing within the third category later discussed by Gleeson CJ, Gummow and Heydon JJ in CSR v Eddy at [28] (and noted above at [150]); ie a form of actual financial loss. According to McHugh and Gummow JJ in Cattanach the obligation of the Melchiors to expend sums in looking after their son was "both moral and legal", the latter being derived from statute (at [66]). Hence, consistent with the later discussion in CSR v Eddy, in Cattanach McHugh and Gummow JJ found that it was "necessary" for the expenditure to be incurred (and identified the source of the obligation).
157Further, McHugh and Gummow JJ rejected a contention that there needed to be some "setting off of the emotional satisfaction and other benefits enjoyed by" the Melchiors from the birth of their child against the cost of raising him (at [84]). Their Honours stated (at [90]):
"In assessing damages, it is impermissible in principle to balance the benefits to one legal interest against the loss occasioned to a separate legal interest. The benefits received from the birth of a child are not legally relevant to the head of damage that compensates for the cost of maintaining the child. A different case would be presented if the mother claimed damages for "loss of enjoyment of life" as the result of raising the child. If such a head of damage were allowable, it would be correct to set off against the claim all the benefits derived from having the child. But the head of damages that is relevant in the present case is the financial damage that the parents will suffer as the result of their legal responsibility to raise the child. The benefits to be enjoyed as a result of having the child are not related to that head of damage." (emphasis added)
158In Cattanach Kirby J also held that the "costs of child-rearing" was recoverable (at [176]). His Honour's analysis was consistent with the approach of McHugh and Gummow JJ (at [176] to [179]), although his Honour did not address the circumstance of a child being voluntarily cared for or express any qualification on the recovery of non-economic loss in the above terms. Justice Callinan's judgment was to similar effect (at [300]).
159Chief Justice Gleeson and Hayne and Heydon JJ dissented in Cattanach. Chief Justice Gleeson considered that the Melchiors were in substance seeking damages for the creation of the parent-child relationship which was "incapable of rational or fair assessment" (at [39]). Justice Hayne held that recovery of damages for the "ordinary costs of rearing a child" (at [255]) should not be permitted although some extra costs may be recoverable "where the child has ... abnormal or special needs for expenditure in care or maintenance" (at [256]). His Honour held that the considerations of "public policy" foreclosed any inquiry into the ordinary costs of rearing a child because it would require a "process of valuation" (at [258]) requiring an assessment of whether the "economic costs of the child [would], in the long run, outweigh whatever advantages or benefits the parent may derive from the child's existence and the relationship between parent and child" (at [259]).
160Justice Heydon held that such damages were irrecoverable for three reasons, the first of which was similar to that stated by Gleeson CJ, namely that to allow recovery "leads to the award of damages for a supposed loss in circumstances where what has happened [ie the birth of a child] is incapable of characterisation as a loss" (at [347]). The other two reasons were that to allow recovery of the cost of child rearing would have the result of "encouraging parents to exaggerate the abilities of their children, the customs of their families or the troubles of their children", and would "generate litigation about children capable of causing the children distress and injury" (at [347]). Apparently parents in such situations are particularly prone to being dishonest and are incapable of making considered judgments about what is in the best interests of their children before commencing litigation. No evidence was cited in his Honour's judgment for either premise. The evidence in this case did not support those premises either.
161It follows that, at common law, in an unplanned pregnancy case amounts can be recovered for financial expenditure that have been and will be incurred by a plaintiff on a child's upbringing, assuming that questions of causation and remoteness are resolved in their favour. However there can be no recovery for the "cost" or value of any voluntary care of the child provided by anyone. Subject to the discussion below, this includes the cost or value of "services" provided by a plaintiff in raising their child. Such a claim was specifically excluded by Gummow and McHugh JJ in Cattanach (and not addressed by either of Kirby or Callinan JJ). Bearing in mind that the three dissentients in Cattanach would not allow recovery of any costs associated with the rearing of the child, it means that the judgments of at least five members of the High Court in Cattanach preclude recovery for the cost or value of voluntary care provided to a child in such cases.
162This is reinforced by CSR v Eddy. The "cost" or value of voluntary care provided to a child by anyone other than the plaintiff in such a case does not fall within the three categories identified in CSR v Eddy. To an extent it is analogous to a Griffiths v Kerkemeyer claim, in that the voluntary services meet a "need" of the patient created by the medical practitioner's negligence namely the patient's obligation to care for and raise their child. However the plurality judgment in CSR v Eddy suggests that heads of damage which are merely analogous to a Griffiths v Kerkemeyer claim are not recoverable.
163However, could the time spent by a plaintiff parent looking after a child of an unplanned pregnancy and the toll that may take upon him or her, fall within one or both of the first and second categories of loss identified in CSR v Eddy? For example, at common law could they claim for any economic loss they have suffered as a result of having to spend time caring for Samuel? This was not in issue in Cattanach. At first instance Mrs Melchior was awarded an amount for economic loss but that was due to the interruption to her earnings resulting from depression and a medical condition consequential upon pregnancy and birth ([2000] QSC 285 at [76] to [77]). As noted, the appeal to the High Court was only concerned with the cost of raising the Melchiors' child. Nevertheless the reasoning of the majority in Cattanach would appear to be equally applicable to this form of loss, if it could be proven (see Cattanach at [90]). No issue about setting off the benefits of having a child would arise with this form of harm because those "benefits" are also "legally irrelevant" to this head of damage. However it is unnecessary to consider this further because, as will become clear, recovery of this form of economic loss is now specifically precluded by s 71(1)(b) of the CLA.
164This leaves the first category of loss identified in CSR v Eddy, namely non-pecuniary loss. As noted, in Cattanach Mrs Melchior recovered an amount for the pain and suffering at childbirth as well as consequential depression and various sequelae of child birth. However no amount for non-pecuniary loss specifically referable to the effect on her from devoting time and emotion to child rearing was sought or awarded. Such a claim could conceivably be pitched as one for the hours lost while engaged in child rearing on the one hand, or it may be that the particular parent suffers stress, depression or some even more significant psychiatric conditions from doing so. It may be that the greater the needs of the child, the more likely that the claim will be for the latter rather than the former.
165A claim by a parent that, because of the time they have devoted to child rearing, they have lost the opportunity to pursue sporting or cultural pursuits does not appear to be particularly compelling. The observations of McHugh and Gummow JJ noted above at [157] appear to be directed to such a case. The dissenters in Cattanach would, at the very least, regard such a claim as anathema to the legal system involving, as it appears to do, some form of what Hayne J described as a "process of valuation" of the benefits and detriments of a raising a child. However what about a parent who has suffered a significant depression as a result of raising an unintended child, including one with say significant disabilities? The assessment of damages for that form of claim does not appear to necessarily involve any "process of valuation" of the kind adverted to by Hayne J. The damage to a person's health from mental illness and the emotional enrichment from parenting occupy, or at least potentially occupy, different spheres of the human condition.
166A discussion at this level of generality cannot be advanced further partly because Cattanach did not directly address it, and partly because it is also conditioned by issues of causation and remoteness. However, at the very least the various judgments in Cattanach suggest that once some part of a claim for non-pecuniary loss is pitched in a manner that necessarily involves or requires an assessment of the relative benefits and detriments of rearing a child, then it cannot be entertained.
(b) Legislative intervention
167It is unnecessary to describe the staggered introduction of the CLA in 2002 to 2003 (see Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 at [81]). It included restrictions on the awarding of non-economic loss (Part 2 Division 3) and the awarding of damages for "pure mental harm" (Part 3). Further, s 15 regulates the awarding of "gratuitous attendant care services" (ie Griffiths v Kerkemeyer damages). After the judgment in CSR v Eddy was published, a modified form of Gordon v Sullivan damages was reintroduced by the introduction of s 15B into the CLA (via the enactment of the Civil Liability Amendment Act 2006 (NSW)). None of these provisions affect the conclusion in [161] above concerning the inability to recover an amount in respect of the cost or value of voluntary care provided to a child in the case of an unplanned birth.
168With effect from 10 December 2003 the Civil Liability Amendment Act 2003 (NSW) inserted into the CLA a new Part 11 which provided as follows:
"Part 11 Damages for the birth of a child
70 Application of Part
(1) This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.
(2) This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.
(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B (1) (a).
71 Limitation of the award of damages for the birth of a child
(1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:
(a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or
(b) any loss of earnings by the claimant while the claimant rears or maintains the child.
(2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability."
169Both the Explanatory Memorandum and the Second Reading Speech (Explanatory Memorandum, Civil Liability Amendment Bill 2003 (NSW), New South Wales, Parliamentary Debates, Legislative Assembly, 13 November 2003, 4992-4994) confirm that this part was introduced by way of specific response to the outcome of Cattanach.
170Section 71 only deals with economic loss. It says nothing about non-pecuniary loss. I have already adverted to the effect of s 71(1)(b) (see [163]). Sub-section 71(1)(a) precludes a Court from awarding damages for economic loss for past and future costs associated with rearing or maintaining a child. Subsection 71(2) creates an exception by not precluding recovery for such additional costs associated with a child who suffers from a disability that arise by reason of the disability. Unlike say s 15B(2), s 71(2) does not confer a right of recovery of the additional costs. The entitlement to recover must still be sourced in the general law, which includes the decisions in CSR v Eddy and Cattanach.
(c) Causation under the Civil Liability Act
171Under the heading "Causation", s 5D of the CLA provides:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
172The test posed by s 5D(1)(a) involves a strict application of the "but for" test. This test has been described by the High Court as "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E" (Wallace v Kam [2013] HCA 19; 87 ALJR 648 at [14] ("Wallace")). This task eschews policy or value judgments (Wallace at [15] citing with approval Allsop P in Wallace v Kam [2012] NSWCA 82 at [4]). In contrast, s 5D(1)(b) requires a determination that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. In contrast to s 5D(1)(a), this is an entirely normative assessment. In accordance with s 5D(4), it requires "consideration by a court of whether or not, and if so why, responsibility for the harm should be imposed on the negligent party" (Wallace at [14]).
173In Wallace the plaintiff claimed that his surgeon failed to tell him about two separate risks from an operation, namely the risk of temporary nerve damage causing pain and a risk of permanent paralysis. The operation took place and the first risk materialised but the second did not. The trial judge found that the surgeon failed to advise him of the risk of temporary nerve damage, but that the plaintiff would have assumed that risk in any event. The trial judge did not resolve so much of the claim as alleged that the surgeon failed to advise the plaintiff of the risk of paralysis, and whether he would have assumed it on the basis that such a failure could never have been the legal cause of the nerve damage. The appeal tested that conclusion by proceeding on the assumption that the surgeon did not advise the plaintiff of the risk of paralysis, and that the plaintiff would not have had the surgery if so advised. On the facts as found and assumed the High Court found that s 5D(1)(a) was satisfied in relation to his claim for damages arising out of the temporary nerve damage ([at [29]). However the Court found that s 5D(1)(b) was not satisfied (at [36]).
174The Court's analysis of s 5D(1)(b) appeared to involve four distinct steps. First, the Court noted that if a case falls "within an established class" then the question posed in s 5D(1)(b) is answered by the "application of precedent" (at [22]).
175Second, the Court noted that a "limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid" (at [24]). Thus a medical practitioner "is not liable to a patient for physical injury that represents the materialisation of a risk about which it is beyond the duty of the medical practitioner to warn" (at [25]).
176Third, the Court (at [26]) stated that within the limiting principle just noted:
"... the scope of liability for the consequences of negligence is often coextensive with the content of the duty of the negligent party that has been breached. That is because the policy of the law in imposing the duty on the negligent party will ordinarily be furthered by holding the negligent party liable for all harm that occurs in fact if that harm would not have occurred but for breach of that duty and if the harm was of a kind the risk of which it was the duty of the negligent party to use reasonable care and skill to avoid." (emphasis added)
177Fourth, the Court nevertheless noted that the scope of liability is not always coextensive with the content of the duty and that "[f]urther analysis is required" (at [27]). In Wallace that analysis focused on the fact that it was a case "involving the materialisation of one of a number of distinct risks of physical injuries" (at [36]). In such a case the "underlying policy ... is to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient" (at [36]). The Court found that the scope of liability should reflect that policy. In Wallace's case it meant that the plaintiff could not recover in respect of the materialisation of a risk that he was prepared to assume.
(d) The Defendant's remaining causation submissions
178The two remaining causation submissions made by Mr Sullivan QC take as their starting point the accepted fact that there was no "relationship between the disabilities suffered by Samuel and the endometrial procedure performed by [Associate] Professor Lam".
179His first submission was that, to the extent that the particular form of harm for which recovery was sought was that contemplated by subsection 71(2), namely the additional costs of raising a child with a disability, then s 5D(1)(a) was not satisfied. He submitted that this was so because, unlike Cattanach, this was not a case in which Ms Neville had sought a sterilisation and was not "a case where damages can be sought for the economic harm sustained by caring for a healthy, but unwanted, child" because of s 71(1). He submitted that the possibility of a post endometrial ablation pregnancy was not foreseeably related to the endometrial ablation and was too "remote" in a causation sense.
180In support of this submission, Mr Sullivan QC referred to the decision of Hislop J in Waller v James [2013] NSWSC 497 ("Waller"). In Waller Hislop J found that a gynaecologist negligently failed to advise a couple contemplating IVF treatment of the risk that if they used the father's sperm their child might inherit a genetic condition known as an "anti thrombin deficiency" ("ATD"). His Honour found that had the parents been so advised they would "have elected not to have" their child (Waller at [215]). Their son suffered an extensive cerebral sinovenous thrombosis (CSVT) five days after he was born (Waller at [2]). His Honour further found that their son's CSVT was not caused by or materially contributed to by his ATD (Waller at [238]). In those circumstances, his Honour found that they failed to establish causation (Waller at [260]). His Honour distinguished the facts in Waller from the facts in Cattanach on the basis that (at [254]):
"The difference between Cattanach and the present case is that in Cattanach the parents did not want a child and the injury to the parents flowed directly from the negligence of the medical practitioner. In the present case the plaintiffs wanted a child but one who would not develop the symptoms of ATD."
181The CLA did not apply to the events the subject of the judgment in Waller. Accordingly, it was not necessary for Hislop J to distinguish between the two limbs of s 5D(1).
182If the CLA had been applicable to the facts as found in Waller, then s 5D(1)(a) would have been established, but s 5D(1)(b) would not. With the former, a "strict application of the but for test" meant that the plaintiffs would not have incurred the cost and stress of caring for their son (Wallace at [16]). However, with the latter, Hislop J's findings meant that the defendant in Waller was not liable to a patient for the materialisation of a risk which it was beyond his duty to warn and thus s 5D(1)(b) would not have satisfied if the CLA applied (Wallace at [25]).
183Similarly in this case, on the hypothesis noted in [147] s 5D(1)(a) would clearly be established. However, the points made by Mr Sullivan QC as noted in [179] above are apposite to s 5D(1)(b), to which I will now turn.
184Mr Sullivan's last causation submission was that s 5D(1)(b) was not satisfied. Consistent with the second proposition cited above from Wallace concerning s 5D(1)(b), he submitted that it could not "be regarded as satisfied unless the relevant disabilities which are the cause of the additional costs [of raising Samuel] were ones about which the doctor ought to have advised".
185I have summarised above the reasoning in Wallace concerning s 5D(1)(b). The first proposition in Wallace directs attention to the "application of precedent". There is no relevant precedent governing the circumstances of this matter. The closest decision is that of the Court of Appeal of England and Wales in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266 ("Parkinson").
186In Parkinson the Court of Appeal allowed recovery of damages for the additional cost of raising a child born with a disability following the negligent performance of a sterilisation procedure on the mother. The alleged negligence of the doctor had neither contributed to the disability suffered by the child, nor been directed to avoiding that disability. Nevertheless the additional costs were recoverable on the basis, inter alia, that the birth of a child with congenital disabilities was a reasonably foreseeable consequence of negligence that led to unwanted pregnancy (at [50] and [53] per Brooke LJ), although the position would be different "if the child's disabilities were brought about between conception and birth by some ultroneous cause" (at [54], Hale LJ and Sir Martin Nourse agreeing at [96] and [97] respectively).
187Prior to Parkinson, the House of Lords had denied recovery of the costs of raising a "healthy girl" born after her father was negligently told that his sperm count was negative following a vasectomy (McFarlane v Tayside Health Board [2000] 2 AC 59 ("McFarlane")). Further, Parkinson was considered by the House of Lords in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309 ("Rees"). It is unnecessary to describe Rees in detail other than the correctness of Parkinson was not directly in issue in Rees and it was not overruled. Three of the dissenting Law Lords in Rees approved Parkinson (at [35] per Lord Steyn, at [54] to [57] per Lord Hope of Craighead and at [91] per Lord Hutton), two in the majority doubted its correctness (at [9] per Lord Bingham of Canhill and at [145] to [147] per Lord Scott of Foscote), and one expressly reserved the point (at [112] per Lord Millett). The other Law Lord in the majority, Lord Nicholls, did not refer to Parkinson. None of their Lordships addressed that part of Brooke LJ's judgment in Parkinson which referred to one foreseeable consequence of a pregnancy as being a child born with congenital disabilities. However, Lord Bingham observed that in Parkinson it was "arguably anomalous that the defendant's liability should be related to the disability which the doctor's negligence did not cause and not to the birth which it did" (at [9]).
188Parkinson is not a precedent binding on me. United Kingdom courts do not make "policy choice[s]" for Australia (cf Wallace at [22]). Together with McFarlane and Rees, Parkinson forms part of a troika of decisions which analyse the recoverability of the cost of raising child expenses in a manner very different to Cattanach. Further, the various judgments resort to such concepts as "distributive justice", and in so doing exemplify the divergence between the law of negligence in the United Kingdom and that of this country. Otherwise in large part they of little assistance in determining a claim that is governed by the CLA, although s 71(2) appears to result in a similar outcome to Parkinson. Nevertheless Brooke LJ's assessment that congenital defects are a reasonably foreseeable consequence of an unwanted birth is of some assistance in addressing s 5D(1)(b).
189The second proposition from Wallace as applied to this case is that the liability of Associate Professor Lam does not "normally" extend beyond "liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid" (Wallace at [24]). Mr Sullivan QC pointed to the nature of the advice being proffered by Associate Professor Lam. He noted that Ms Neville did not seek advice about a sterilisation procedure and the surgical procedure was not of that nature.
190However in this context I do not consider there is any difference in substance between seeking advice about treatment for menorrhagia and advice about sterilisation. A woman's menstrual cycle is integrally linked to her reproductive system. A doctor who assumes an obligation to provide advice about menorrhagia assumes a responsibility to advise about the consequences of any treatment options upon a women's chances of reproducing. Associate Professor Lam's own writings appear to accept that many, if not most women, including Ms Neville, understood that endometrial ablation was akin to a hysterectomy.
191Modified to the circumstance that the relevant duty was a duty to warn about the possibility of pregnancy, the relevant "harm" that required the exercise of reasonable care and skill to avoid was either the circumstance of falling pregnant, or the financial costs to be incurred as a result of falling pregnant and giving birth. In either case, consistent with Cattanach (and absent section 71(1)(a)), this would extend to the costs of raising a child born as a consequence of a negligent failure to so act.
192However, what about the costs of raising a child with a disability? It was not suggested that Associate Professor Lam had a duty to warn Ms Neville that she might give birth to a disabled child. It would be nonsensical to do so given the agreed fact that there was no connection between the performance of an endometrial ablation and the nature of Samuel's disabilities.
193The third proposition from Wallace was that the scope of liability is "often" coextensive with the content of the duty, and the policy of the law will "ordinarily" extend to "all harm" that occurs if it was "harm of a kind the risk" of which it was the defendant's duty to avoid. Leaving aside section 71(1)(b) of the CLA for the immediate present and assuming Samuel's disabilities are congenital, it would follow that "ordinarily" Associate Professor Lam would bear legal responsibility for all the reasonable financial costs of raising Samuel including those that arise from his disabilities.
194At the risk of repetition the relevant harm was the financial costs consequent upon an unwanted pregnancy. The foreseeable outcomes of a pregnancy include the birth of twins or triplets, or the birth of a child born with a physical, emotional or intellectual deficit or disability. No child is perfect and many children have some form of special need. Samuel maybe at the end of that spectrum but, as noted in Parkinson, one reasonably foreseeable outcome of pregnancy was the birth of a child with congenital defects (even if the particular congenital defect in question may be rare). To distinguish between the cost of raising a "healthy" child and the cost of raising a child born with congenital defects in the causation context of this case is to confuse the distinction between the foreseeability of the type or kind of loss, and the inability to foresee the extent of the loss. This distinction was recognised in Wallace at [26] (which in turn reflects an established position at common law: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ). In this case the kind of loss is the expenses of child rearing. The extent of the loss is likely to be significant because of Samuel's disabilities.
195Further, I do not consider that this conclusion is affected by s 71. Section 71 was enacted in specific response to Cattanach and it should be understood in that context. It operates to limit the damages recoverable for the cost of raising a child to those identified in s 71(2). However nothing in the section or the secondary materials concerning its enactment indicate that it was meant to operate upon s 5D(1)(b) so as to only allow recovery of the additional costs of raising a child with a disability in those circumstances where the relevant negligent act materially contributed to the occurrence of the disability. To give it that operation would result in it having an effect beyond the alleged mischief it was intended to correct.
196The fourth proposition in Wallace was that the scope of liability is not always coextensive with the content of the duty and that "further analysis is required". In Wallace the further limiting circumstance that was identified (at [36]) was that a patient cannot recover in respect of a risk that was not "unacceptable" to them. This has no application to this case. This was not a case where there were separate and distinct risks. On the hypothesis noted at [147] the risk of having any further children or of incurring any further expenditure in raising another child was "unacceptable" to Ms Neville. Otherwise no basis for failing to hold Associate Professor Lam liable for the full extent of financial loss incurred as a result of Samuel's birth is apparent.
197Upon the hypothesis noted in [147] I would consider it appropriate for the scope of Associate Professor Lam's liability to extend to any additional costs incurred by Ms Neville associated with rearing or maintaining Samuel that arise by reason of such his disabilities as were congenital.
198Against this background I will assess each of the heads of damage claimed by Ms Neville.