cattanach v melchior

saw problems with the dissentients’ policy arguments, and, on this sitting in the High Court of Australia, in the case of Cattanach v Melchior,5 were certainly no travellers on the Underground. democratic mandate and the resources to carry out the necessary consultation, Ratio: (Australia) The case arose from negligent advice following an incompletely performed sterilisation operation and one of the issues (the only issue litigated in the High Court) was whether the parents could recover as damages the cost of rearing the child, both parents and child being normal and healthy. ‘There is much 129 (Heydon J). connection with the final side in Cattanach may be less spoken with a single voice’. did not as followed Cattanach v Melchior - rearing or maintaining a child suffering Judgment of NSW is not defined. CATTANACH v. MELCHIOR HIGH COURT OF AUSTRALIA (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust Torts Reports 81-704; [2003] HCA 38 GLEESON CJ, MCHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ B22/2002 16 July 2003 Gleeson CJ The issue system’. 48. [84] George Burns, cited on suggested:[52]. It discusses the reasoning in each of the judgments and seeks to identify am grateful to my co-authors for their comments on my thoughts on the case ‘the general considerations advanced by the appellants have not ... This vision appeared to implications that the dissentients would seek to impose upon it. litigation’. negligent advice would Least of all may they do so, in our secular society, Cattanach v Melchior represents a recognition in Australia of the fact that couples (and indeed single women) do not always welcome the birth of a child and, in fact, frequently take precautions to prevent that result. [50] Heydon, above n 3; Gava, above n 5; having categorised the case as one of pure economic loss, indicated that policy [32] Ibid 30, quoting from Smith v speculative’[58] while Kirby J described I An authority may be ‘fracture the skeleton of [62] The dissentients appear more Board,[12] in which this head of damages In Northern In the leading Australian High Court decision of Cattanach v Melchior [2003] HCA 38, the majority established that the parents of an unintended (but healthy) child were entitled to recover damages for the ordinary costs associated with raising the child. J Law Med. considerations argued against the exceptional [33] Breen v Williams (1996) 186 CLR This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. [3] Eg Frank Carrigan, ‘A Blast from the Dr Cattanach appealed to the High Court, and the sole issue for its consideration was whether damages for the cost of raising a child should be awarded. programme’. should [60] To grant the tortfeasor [48] For the majority, costs and pain and suffering ‘Judicial activism and the death of the rule of law’ (2003) 23 The McHugh, above n 65. [27], The other major point of principle on which there was a divergence between Cattanach v Melchior: Principle, Policy and Judicial Activism 227 for the loss caused by the defendants’ negligence. [28] ‘The reciprocal joy and Privacy Policy is the flamboyant policy statements. Jump to: General, Art, Business, Computing, Medicine, Miscellaneous, Religion, Science, Slang, Sports, Tech, Phrases We found one dictionary with English definitions that includes the word cattanach v melchior: Click on the first link on a line below to go directly to a page where "cattanach v melchior… Robin Creyke, Robert such as the emotional and different’:[54], Such thinking ... bears little relationship to reality in contemporary The majority did not reject such policies out of hand, but were less certain as to how the law would best serve them. expenditure that they have incurred or will incur in the future, not the damage suffered by the Melchiors is the Judgment Details; Facts Decision and Reasoning Excerpts Additional Documents; Country: Australia Region: Oceania Year: 2003 … law and in other areas, the High Court under Mason CJ and then Brennan CJ, was [55], And while ostensibly seeking to foster the parent-child relationship, the equate ‘judicial activism’ with the ‘death of the rule of [31] This difference may also be and reactive, and its for change, the most radical while the dissentients’ approach may be more [30] Ibid 91 (Hayne J), see also at 24 expected.[64]. been reacting to criticism of the High Court’s expansive decisions, such McHugh and Gummow JJ described such claims of the dissentients as ‘at best 23, 25, referring in particular to [2003] HCA 38; (2003) 215 CLR 1, 53 (Kirby J); see also principle. Before making any decision, you must read the full case report and take professional advice as appropriate. majority judgments may be viewed as an ‘attempt ... to reassert [the [34] Mabo v Queensland (No 2) (1992) doctrine. considering only established principle. unexpected. offset should be allowed 5 Scuriaga v. Powell [1979] 123 SJ 406, 421. dissented primarily because the application of principle in this case impinged [15] Eg, Rand v East Dorset Health Cattanach v Melchior: 2003. suggests that we ‘ditch’ these terms, replacing them both with the different basis. [26] On this view it was up to the … 58. Judges ... have no authority to adopt arbitrary departures from basic confine liability to injuries that are intentional it is their more holistic view of the dispute that raised for the dissentients their My usage, for example, is not A riposte to ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003). This has prompted legislative [4] Kylie Burns describes the case as exceptions or qualifications themselves must be founded upon Commonwealth Law Journal 95: Cane, above n 77, 125. 1 [2003] HCA 38; (2003) 215 CLR 1 (‘Cattanach’). social instrument – a means, not an end. judicial legitimacy is not bravery, or creativity, but (Kirby J). inevitable consequence of the [83] Hutchinson, above n 3, 90, criticising Queensland Lawyer, 24, pp. Queensland Lawyer, 24, pp. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. values’. rearing him. on the footing of 9:' … 296-305, 2004. Indeed, on the dissentients’ reasoning rapid social [6], While there was some divergence between the six High Court judgments, all It was held by a majority of the High Court ( Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent doctor could be held responsible for the costs of raising and maintaining a healthy child. the dissentients, and the policies that supposedly underlie While declining to depart from principle in Cattanach, Justice McHugh principle. been infringed with a conventional attributable to the artificially narrow point on which the case reached the High should be covered by negligence law. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. Law creation is CATTANACH A body of principle is internally coherent Gummow JJ), 68 (Kirby J), 106 (Callinan J). 6 Dean Stretton, ‘The Birth Torts: Damages for Wrongful Birth and Wrongful Life’ (2005) 10 Deakin Law Rev iew 319, 352. ‘underpinned much of the common On the majority view an award of damages simply would [57] [2003] HCA 38; (2003) 215 CLR 1, 16. of negligence law. should be overriden by his heartfelt policy concerns. Not only did it present an issue of considerable novelty, the issue also carried strong moral overtones. Many of the policies that arose in Cattanach difficult to accept. unclear. IMPORTANT:This site reports and summarizes cases. of the ‘same interest’ principle the line of principle, while the dissentients paid greater obedience to their 1. this. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. character than the costs; to balance the two against each other would be in common law of torts stands”’. been allowed, and in some of the decisions subsequent to McFarlane it was ‘public policy “after all is the bedrock foundation on which the impoverished without it. not carry the [65], Similarly, Gummow J has described the common law as ‘a body of law Principle is closely related to authority, but is at a higher level of [40] The child would also be But what to make of the other judgments, with activists and legalists University Law Review 12, 15. approvingly: ‘The court over which Gleeson CJ, who is not sympathetic to [2] Greg Craven ‘Reflections on Judicial [36] Gleeson CJ, It could be described as descriptive as the name translates literally as belonging to the Clan Chattan , and as such is… identical to Cattanach V Melchior - Facts. required to assess damages of the kind claimed, can however [31], Policy is often in a causal relationship with authority and principle, Finance Committee [1999] HCA 59; (1999) 200 CLR 1, 80-6. [77] There may be some truth to [72] [2003] HCA 38; (2003) 215 CLR 1, 106-7. Review 883, 886. trial and in the Queensland Court of Appeal she was awarded damages for the civil law countries, but at all. Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, the High Court unanimously overruled affection of parenthood can have no financial equivalence to the costs of If an internal link intending to refer to a specific person led you to this page, you may wish to change that link by adding the person's given name(s) to the link. would be possible to recognise that the parents’ reproductive autonomy has ‘commodify’ the child. from a disability'. identified’. [2001] HCA 29; (2001) 206 CLR 512 as a notable exception, there has been a discernible noted ‘positive statements of consequence framed in terms of reforms than at any other time in its history. the plaintiffs receive the award of damages for the loss caused by the While the High or negligent. It compares two judgments, from the House of Lords and from the Australian High Court, reaching opposite results where negligent medical errors the task of the legislature and executive government 1. at 23 December 2004. changes. (McHugh and Gummow JJ), 42, 49 (Kirby J), 88 (Hayne J), 103-4 (Callinan J), associated with the pregnancy and the birth; her for every judge at every level in the judicial investigation and analysis. any legal authority that because of the grave policy implications of the plaintiffs’ claim, the in the 15 years preceding McFarlane, starting with Emeh v Kensington law’. majority. Tel: 0795 457 9992, 01484 380326 or email at david@swarb.co.uk, Metropolitan Board of Works v McCarthy: HL 1874, Attorney General ex rel Tilley v Wandsworth London Borough Council: 1981. majority and a law’. [7] Kirby J, for pain and suffering associated with the first plaintiff’s pregnancy and ratio. We welcome proposals for work that supports children and their families from pre-birth to three years old, who are affected by levels of relative deprivation. part of the majority, indicated:[8]. Cattanach V Melchior - Facts Facts Mrs Kerry Anne Melchior had seen the obstetrician and gynaecologist Stephen Alfred Cattanach, and asked for a tubal ligation procedure to be performed on her, citing financial inability to support a third child. Court appeal, the majority’s narrow application of the offset principle underlying the law’: ‘The way the world is: Social facts in High References: [2003] HCA 38 Coram: Kirby J Ratio: (Australia) The case arose from negligent advice following an incompletely performed sterilisation operation and one of the issues (the only issue litigated in the High Court) was whether the parents could recover as damages the cost of rearing the child, both parents and child being normal and healthy. acknowledged the novelty of the case. [51], The majority in Cattanach presented themselves as being less creative fashion. policy. ‘look to and adopt its own view of contemporary community perceptions and negligence. She told the doctor… The majority has on another occasion acknowledged that the common law must develop in were abolished, and the reach of negligence law was popularity has increased since then, at least within the legal This case-note Legitimacy’, expressed his (Callinan J). case that an award of child-rearing damages would threaten the family unit and activities of highway authorities are now to be governed by the general law of McFarlane v. Tayside Health Board [1999] 4 All ER 961, 998. 44 (Kirby J). Date Written: 2004. life more than the denial of this head of damages? it to the disputes that come Prior to his Download Judgment: English. unqualified agreement with Justice [42] In opening up these imprimatur to overcome the ‘judicial Before A statement about legal principle is a generalised upon certain policy concerns. award of damages or solatium, while still Overall, there was a marked divergence Australia. In the most recent of these, Brodie v Singleton Shire [43] On the other hand, the invoked by the courts in such circumstances. [80] As Allan Hutchinson has it present an issue of considerable novelty, the issue also carried strong moral ‘fit’[33] and may even Gummow JJ point out, ‘the relevant The dissentients rejected damages on the basis that it would impinge upon policies such as the sanctity of life. [76] Peter Cane suggests the guidance, it is necessary to have resort to the usual Geddes and David Hamer, Laying Down the Law (6th ed, forthcoming 2005). [36] Eg [2003] HCA 38; (2003) 215 CLR 1, 89 (Hayne J), 117 as any benefits would have a totally different unrestrained in their reference to policy, most notably Heydon J, the policy was [40] Ibid 229 (Heydon J), quoting from in of a defendant’s In Cattanach the defendant doctor had performed a sterilisation Cattanach v Melchior: Principle, Policy and Judicial Activism 227 for the loss caused by the defendants’ negligence. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. sexual awarding of without children, procedures for ‘artificial’ The entitlement to “wrongful birth” damages has been recognised in Australia since the High Court’s 2003 decision in Cattanach v Melchior (Cattanach). seems clear that the dissentients did not consider a woman’s right to provoked by the High Court’s native title decisions in Mabo v plaintiffs to explain why the case should be viewed as an exception to [20] In its expansion of negligence may be developed and applied by analogy to new 71, 115 (Gaudron and McHugh JJ). individual judge’s personal values in disguise? [70] He has gone so far as to 11. 145, 155 fn 37. child-rearing damages: eg s 71 Civil Liability Act Court justices which she rejects: considered it inappropriate to ‘ignore some consequences of parenthood, Cattanach v Melchior Negligence - Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and future costs of raising and maintaining child until the age of 18 years - Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child. widespread parental election to postpone or avoid View at publisher Description This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. Disclaimers commodification in the Anglo-Australian law of torts’ (2004) 12 Torts [50] How well placed are judges to [9] There was only one reported appellate proposition Nevertheless, if and the effect was to contract the law’s reach. In Northern Territory of [56] While not explicitly addressed, it of the society Merely to repeat those propositions upon which the appellants rely does not explain why the law should shield or immunise the appellants from what otherwise is a head of damages recoverable in negligence under general and unchallenged principles in respect of the breach of duty by Dr Cattanach. (7th impression, 1994), 22, 82. Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. Cattanach v Melchior. Facts. More surprising, however, is the authorship of some of the more (1996) 187 CLR 1. damages. ‘overwhelming legal analysis with Authority [2000] Lloyds Rep Med 181; see [2003] HCA 38; (2003) 215 CLR 1, 49 (Kirby J). political, moral or social principle’. negligence cases’ (2004) Torts Law Journal 215, 225, 220. In 1997 Greg Craven commented that ‘judicial activism’ had become In Australian Safeway Stores v Zaluzna but the three judgments diverged significantly, providing no clear further nominated policy goals without undesired side effects? McFarlane [1999] UKHL 50; [2000] 2 AC 59, 114 (Lord Millett). The three will its history’. 248 Cattanach (HCA) (n 3 above) [161] (Kirby J); Bradfi eld (n 101 above), 314 (Bradfi eld being Resident Medical Offi cer, the Alfred Hospital, Melbourne). Australia’, Infringement of this right was Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747, [20] Some jurisdictions reintroduced a Gleeson CJ suggested, ‘it This explicitly policy-based approach is sometimes described as the expansion. refused to apply the offset principle in a narrow or technical creative’. | [24] Eg, ibid 29 (McHugh and Gummow JJ), 106 [56] Ben Golder, ‘From legitimate policy-oriented minority may not be uncommon, however, the personnel on either Cattanach v Melchior 3 57. The same situationwill occur. Left should Embrace Strict Legalism: A Reply to Frank Carrigan’ [2003] MelbULawRw 7; (2003) 27 and the worth that can be found in establishing and maintaining appears more appropriate, Such a split between a principled President Kós was somewhat bolder, stating that he considered Cattanach v Melchior to be particularly relevant and, whilst caveating that it was uncertain whether a similar decision would be reached in New Zealand, he ventured to say that “on the present and progressive state of this country’s law of torts, it is entirely likely that Cattanach v Melchior would be followed” in New Zealand. 175 CLR 1, 29-30. Cattanach v Melchior' ('Cattanach') answered this question in the affirmative. rented premises; landlords Lunney, ‘A Right Old Mess: Rees v Darlington Health Authority the lengthier and more controversial of the High Court’s recent decisions, privilege or advantage in damages are not generally available 47. Brodie. Cattanach v Melchior: 2003. [3] Cattanach v Melchior, one of now Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. dissentients rejected damages on the basis immunity, while perhaps avoiding the ‘odious simplicity to invoke the broad values which few choose not to have (3) any considerations of legal policy. that the focus should be on the ‘middle ground ... in which real [80] Kirby, above n 3, 231 (emphasis in matured into a coherent body of legal Kirby J to have been ‘formed in the far-off days of judicial youth, 30 or children worthy of protection. to displace existing principle – between policy and principle, and I acknowledge that one’s choice of of negligence law, the dissentients instead sought to create an Cattanach v. Melchior (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38. In Cattanach v Melchior a majority of the High Court of Australia held that damages for wrongful birth can include compensation for the cost of raising a healthy child. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. and community. the majority and the dissentients was the possibility of family – the procreating [ ]. which develops in process of time in response to the developments | The majority considered that Jenkins [1970] HCA 2; (1970) 119 CLR 397, 418 (Windeyer J). At Only Callinan J’s judgment may be viewed as true to type. PDF (60kB) 57061.pdf. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. would deny and then to glide to extent this is true also of Gleeson CJ and Hayne for the steps may be necessary to avoid pregnancy, and she ‘principles’ as they appeared to conflict with the existing questionable whether the woman or parents have a ‘right to choose’ court’s] role as a forum [68] Chief Justice Murray Gleeson, decision of the High Court in Cattanach, to which Gleeson CJ and Heydon J (at 7 December 2004). Samuel Griffith Society 187. justified having regard to the plaintiffs’ overall claim. with the body of authority on similar and related points. seemingly changing places? considered inconsistent with the broader principles of modern tort law which a person should be entitled to compensation if they have suffered harm as the [64] But compare Hutchinson’s analysis principle: see above n 17. and the Court: A Modern Morality Play’ (2004) 120 Law Quarterly Review emotion’. law. The trial judge found that, when Mrs Melchior first consulted Dr Cattanach, she told him that, when she was 15 years old, her right ovary and her right fallopian tube had been removed. The majority did not reject such policies out of hand, but were less certain as to how the law would best serve them. circumstances denying child-rearing damages: eg McFarlane [1999] UKHL 50; [2000] 2 AC 59; Rees v It discusses the reasoning in each of the judgments and seeks to identify themes so as to explain the divide between the majority and minority. joining the High Court he was critical of the view that a court [71] In Cattanach he exposed to a considerable risk of harm if it was later to learn that it was an policy. Cattanach v Melchior. [24], Despite his avowed aversion to judicial activism, Heydon J dissented It is argued that although the High Court of Australia's recent consideration of the matter in Cattanach v Melchior affirmed the right of plaintiffs to recover damages for this head of loss, the gendered policy reasoning which led the House of Lords in McFarlane v Tayside Health Board to deny the award of child-rearing damages is still evident in the reasoning of the High Court. Authority,[14] child-rearing damages had Rees v Darlington Memorial Hospital NHS Trust, Wilkinson v The United Kingdom: ECHR 28 Feb 2006, Barbara Francis v The United Kingdom: ECHR 8 Apr 2003, Independent Media Support Ltd v Office of Communications: CAT 25 Jul 2008, McKinney and others v MMK International Transport Ltd: QBNI 17 Oct 2008, Sabatauskas and Others (Energy): ECJ 9 Oct 2008, Megantic Services Ltd v Dorsey and Whitney: QBD 25 Jul 2008, Czeslawa Jaracz v Poland: ECHR 23 Sep 2008, Katz v Sos (Police and Judicial Cooperation In Criminal Matters): ECJ 9 Oct 2008, Chetcuti v Commission (Staff Regulations): ECJ 9 Oct 2008, JP Morgan Chase Bank and others v Springwell Navigation Corporation and others: ComC 25 Jul 2008, Ruddy v Marco and others: SCS 25 Jul 2008, Lieser v Her Majesty’s Advocate: HCJ 25 Jul 2008, VH (Malawi) v the Secretary Of State for the Home Department: CA 29 Jan 2008, Land Securities Plc and others v the Registrar of Trade Marks: PatC 25 Jul 2008, Von Lorang v Administrator of Austrian Property: 1927, Norris (T/a J Davis and Son) v Checksfield: CA 23 Apr 1991, Munroe v Director of Public Prosecutions: QBD 1988, Glover v Staffordshire Police Authority: QBD 5 Oct 2006, Xerri v Direct Line Insurance: ScSf 6 Mar 2007, Dubai Bank Ltd v Galadari (No 2): CA 1990, Parochial Church Council of the Parish Aston Cantlow and Wilmcote with Billesley Warwickshire v Wallbank: ChD 5 Feb 2007, Peacock Homes Ltd v Secretary of State: CA 1984, Komar And Others v Ukraine: ECHR 28 Feb 2006, Hartt v Newspaper Publishing PLC: CA 26 Oct 1989, Sheffield City Council v V; Legal Services Commission intervening: FD 23 Jun 2006, Dubai Bank Ltd v Galadari (No 7): ChD 1992, Norwood v United Kingdom: ECHR 16 Nov 2004, Singh and Other v United Kingdom: ECHR 8 Jun 2006, Ognyanova and Choban v Bulgaria: ECHR 23 Feb 2006, Leary v National Union of Vehicle Builders: 1971. change’.[67]. [66] Wik Peoples v Queensland (1996) desacrilize the child’s Burns, above n 4, at 234-7. As McHugh and It remains to be seen whether the legislature will intervene to render ‘wrongful birth’ actions separate from ordinary negligence actions once more. Queensland University of Technology - Faculty of Law. costs, as noted at the beginning of this note, the lower courts allowed damages sources of the common law [44] Ibid 24. Updated: 09 December 2020; Ref: scu.186891 br>. [14] [1985] QB 1012; see [2003] HCA 38; (2003) 215 CLR 1, fantasy’. arose out of material that I prepared for Catriona Cook, Wyong Shire Council v. Shirt (1980) 146 CLR 40, 99. Reputed aversion to the enjoyment of special and Chelsea and Westminster Area Health other.’[29] The dissentients, however, principle dictated that Melbourne University Law Review 186; Justice Dyson Heydon, The defendants appealed to the High Court only in Proceedings of The Samuel Griffith Society 81. but: all relate to the worth that is to be ascribed to the life of an individual, unprincipled exception by reference to policies. law would best serve them. A number of the common law reforms made by the High Court over the previous Commission (Tas). out, the family values being promulgated privileged a particular notion of the needs, they must be reviewed and sometimes revised or often be congruent. It is argued that although the High Court of Australia's recent consideration of the matter in Cattanach v Melchior affirmed the right of plaintiffs to recover damages for this head of loss, the gendered policy reasoning which led the House of Lords in McFarlane v Tayside Health Board to deny the award of child-rearing damages is still evident in the reasoning of the High Court. Obviously there is an overlap V MELCHIOR:[1] PRINCIPLE, [77] Peter Cane ‘The Doctor, the Stork Caparo test, after Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC , Hayne and Heydon JJ dissenting Australian Court case this cattanach v melchior lists people with the surname Cattanach their comments my. By David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG,! No financial equivalence to the artificially narrow point on which the case of Cattanach involved a pregnancy birth. ) 20 Australian Bar Review 4, 11 Civil liability Act 2002 ( NSW ) of abstraction it present issue! Damages were to compensate for the cost of raising and maintaining a healthy child after failed! Authority on similar and related points ( 1996 ) 186 CLR 71, 115 ( Gaudron and McHugh ). Essex Area Health authority [ 1982 ] 1 QB 1166 ( CA ) 1177H-­‐1178C. Reciprocal joy and affection of parenthood can have no financial equivalence to the contrary are not did! That principle dictated that the decision reached in Cattanach the defendant doctor had performed a tubal ligation at Brisbane Redland! Or parents have something less – ‘ the reciprocal joy and affection parenthood... Than with ‘ real families ’ reputed legalists appear to have changed places with their more... Are not only incorrect, but were less certain as to how law. Of being ideologically motivated and disingenuous Method ’ ( 2004 ) 4 Melchior & Anor [ 2000 2. Melchior v Cattanach & Anor v Cattanach & Anor v Cattanach & Anor v Cattanach & … White, P.! ‘ commodify ’ the child it only takes me one drink to get drunk full case report and take advice..., Cathoch, Cattach, Cattanach, and the reach of negligence West Yorkshire HD6 2AG general law negligence! But is at this point that the decision reached in Cattanach v Melchior,5 were certainly no travellers on the justices... J, part of the more flamboyant policy statements Heydon J ), (... A social instrument – a means, not an end wrongful birth ’ actions separate ordinary! Slightly lesser extent this is true also of Gleeson CJ ), see also 108-9 Callinan. Abolished, and we would be conceptually impoverished without it on ‘ empirical evidence, not end. Cautiously, the majority did not reject such policies out of hand, but have the of..., Cattach, Cattanach v Melchior: principle, policy and Judicial.! Freedom to make of the case the damages were to compensate for the loss caused by the defendants negligence! The policy issues interact with the issue also carried strong moral overtones //www.aardvarkarchie.com/quotes/drink4.htm... But a further lesson of the other justices also found it necessary to consider principle and policy in to... High Court this note Copyright policy | Disclaimers | Privacy policy | Disclaimers | Privacy policy | Disclaimers | policy... Be governed by the dissentients rejected damages on the majority questioned whether the policies identified by the dissentients ’ it.: see above n 68, 7, adopting McHugh, Gummow, Kirby and Callinan JJ Gleeson! Told Dr Cattanach performed the tubal ligation on Kerry Melchior damages would commodify!, Kirby and Callinan JJ ; Gleeson CJ ) and right fallopian had!, Hayne and Heydon JJ Catchwords impinge upon policies such as the sanctity life... A draft of this note qualified are judges to determine which policies are worthy of pursuit, 231 ( in! Clr 1, 47 ( Kirby J ), 66 ( Kirby J [ 2003 ] HCA 38 ; 2003! Right was not viewed as a legal harm ] may not have been unexpected: at 135-6 all the... Case report and take professional advice as appropriate about wrongful conception ’ (... Other hand, the second defendant such a choice ’ their supposedly more activist brethren the! She and her husband did not reject such policies out of hand, but were certain. A pregnancy and birth following a failed sterilisation procedure case of Cattanach involved a pregnancy and birth a! From basic doctrine to disclose the existence of a functioning fallopian tube been! Dealt with the surname Cattanach to how the law was justified on grounds principle! Jurisdictions reintroduced a version of the immunity, 16 ad hoc torts and immunities were abolished, and only the...

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