Judgment Details; Facts Decision and Reasoning Excerpts Additional Documents; Country: Australia Region: Oceania Year: 2003 Court: High Court Health Topics: Child and ��� The perceived disruption to familial relationships by, for example, the Melchiors' third child later becoming aware of this litigation, is at best speculative. Ms Melchior underwent a sterilisation procedure. The Court was heavily divided, issuing six separate judgments for seven members of the bench. The respondents (plaintiffs at first instance), a married couple, decided not to have any more children. 4 Melchior & Anor v Cattanach & Anor [2000] QSC 285 at [81] where Holmes J summarises the damages awarded. v. Nakaseke District, Ntsels v. Member of the Executive Council for Health, Gauteng Provincial Government, In the matter of Medical and Dental Practitioners Council and In the matter of the Uganda Medical and Dental Practitioners Council in the Alleged Professional Misconduct by Dr. Asinja Kapuru into the Alleged Loss of a Baby at Mulago National Referral Hospital. By addressing the issues canvassed, Cattanach looks to clarify the ideas established previously in McFarlane and supports the indication that the judgment reached is the correct one. Mrs Melchior subsequently gave birth Mrs. M told the appellant that her right fallopian tube had been removed and on examination that appeared to be correct, so appellant only performed the surgery on the left fallopian tube. It compares two judgments, from the House of Lords and from the Australian High Court, reaching opposite results where negligent medical errors The main issue is whether the appellant/child who was born disabled has a Cattanach, a similar case heard by the High Court of Australia,8 revolved mainly around the same issues. Cattanach v Melchior [2003] HCA 38. It is expressed by judges to respond to their perceptions of the requirement of justice, fairness and reasonableness in their society. This case brought to light a number of significant ethical issues both in favour of and against permitting these actions, with the court ultimately proclaiming that it was possible for a doctor to be held liable for a child being born due to their negligence. The damages were to Cattanach v Melchior (2003) 215 CLR 1 FJ v Commonwealth (2017) 55 VR 108 Partridge v Briggs (Unreported, Supreme Court of Victoria, Gobbo J, 2 June 1988) Unsworth v Commissioner for Railways (1958) 101 CLR 73 Opperman v Opperman [1975] Qd R 345 Melchior v Cattanach & Anor [2001] QCA 246 Reeves v Thomas Borthwick & Sons (Australia) Pty Ltd Cattanach v. Melchior (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38. They are different in quality from the costs incurred in child-raising. To many, the abortion of a child or the offering of him for adoption, particularly within wedlock, would be more morally repugnant than the claiming of damages in respect of the rearing of the child. judgment, emphasises the need to preserve the coherence of legal principles5 ironically using aspects of policy to do so. In 2003, in the case of Cattanach v Melchior [2], the High Court awarded damages in respect of the costs of raising a healthy child where the child was born following a failed sterilisation procedure due to the defendant���s negligence. To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible.” Gleeson J at para 38. “To suggest that the birth of a child is always a blessing, and that the benefits to be derived therefrom always outweigh the burdens, denies the first category of damages awarded in this case; it also denies the widespread use of contraception by persons such as the Melchiors to avoid just such an event. The trial court found that the defendant had negligently failed to warn of the risks associated with the sterilization procedure. 5 ��� Awarding damages solely for disabled children draws a distinction that is arbitrary and offensive. That possibility would tend to damage the natural love and mutual confidence which the law seeks to foster between parent and child. Kirby J dismissed the appeal on the ground that other options were all inadequate. Judgement Date: 6th May, 2013. The respondents brought action against the appellant and hospital for negligence. Cattanach v Melchior (2003) 215 CLR 1 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Manser v Spry (1994) 181 CLR 428 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Redding v Lee (1983) 151 CLR 117 Rogers v Whitaker (1992) 175 CLR 479 COUNSEL: K D Dorney QC, with him P L Feely, for the plaintiff wrongful birth (Cattanach v Melchior),7 but in May 2006 disallow-ing two separate claims for wrongful life (Harriton v Stephens8 and Waller v James/Waller v Hoolahan9). Gleeson also noted the respondents’ claims implied an indeterminate liability as they were more than the costs for bare legal obligations but less than the full extent of costs one could reasonably conceive of. It would permit conduct inconsistent with a parental duty to treat the child with the utmost affection, with infinite tenderness, and with unstinting forgiveness in all circumstances, because these goals are contradicted by legal proceedings based on the premise that the child's birth was a painful and highly inconvenient mistake. This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. Legal principle requires that such joys and any like benefits of the unexpected birth be ignored in calculating the recoverable damages.” -Kirby J at para 175. “Despite the large measure of agreement by those judges whose conclusions the appellants would invoke, the matters relied on by them do not, with respect, commend themselves in law to me. A similar difficulty is encountered in awarding damages for loss of expectation of life47. Mrs. M elected to have sterilization surgery (tubal litigation) performed by the appellant (defendant). The "windfall" argument is one of these. 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. CREATING LAW Cattanach v Melchior. 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. II CATTANACH V MELCHIOR. It is a human relationship, regarded by domestic law and by international standards as fundamental to society. Awarding damages discounted for the joys and benefits of a child compares two separate, distinct interests that should not be compared. The defendant was granted leave by the High Court on the third head of damages. The indeterminate nature of the financial consequences, beneficial and detrimental, of the parent-child relationship has already been noted. I. MCFARLANE Blessing This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. Cattanach v Melchior, one of the lengthier and more ��� Melchior and her husband sought damages from her obstetrician and gynecologist, Dr Cattanach, and the State of Queensland for the cost of raising and maintaining her unintended child to adulthood. Whether the plaintiffs ought to be able to recover for the costs of raising and maintaining the child was the sole issue in this appeal. 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 It would permit conduct inconsistent with the duty to nurture children.” - Heydon J at para 404, (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38, Cojocaru v. British Columbia Women’s Hospital and Health Centre, The Center for Health, Human Rights and Development & Ors. The, Personal Second Language Acquisition Theory Research Paper, The Effects Of Global Warming On Earth 's Climate, Zombie Movies And The Film ' Night Of The Living Dead '. The appellant negligently failed to warn Mrs. M of the risk that if she was wrong she may still become pregnant after the surgery. Cattanach v Melchior (2003) 215 CLR 1, applied Cox v Journeaux (No. To put this into perspective, the plaintiff's claim for the cost of raising the child to age 18 years was $105,249.33. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, This was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. Melchior that during an appendectomy when aged 15, she had had her right ovary removed. The majority judgment in Cattanach v. Melchior does not represent an assault on the sanctity of human life. Finally, the reaction to Cattanach on the judicial and executive branches of government have had significant impact on shaping public policy in relation to these complex issues. as followed Cattanach v Melchior - rearing or maintaining a child suffering Judgment of NSW is not defined. In fact, Mrs. M did become pregnant with a third child, born healthy and welcomed into the family. A four to three majority held that the defendant’s appeal should be dismissed, effectively allowing the plaintiffs to recover the cost of raising and maintaining the child until age 18. from a disability'. McHugh J and Gummow J dismissed the appeal on the ground that tort principles focused on compensation, deterrence, and fairness required recovery. Cattanach v Melchior 3 57. Dissenting, Gleeson J would have allowed the appeal on the ground that the claim was for pure economic loss but did not satisfy the requirements for establishing a new head of damages in that area, and that it treats a socially fundamental human relationship exclusively in financial terms. CRAIG MELCHIOR (second plaintiff) v STEPHEN ALFRED CATTANACH (first defendant) STATE OF QUEENSLAND (second defendant) FILE NO: S466 of 2000 DIVISION: Trial Division DELIVERED ON: 23 rd August 2000 DELIVERED AT: Brisbane HEARING DATE: 5,6,7,8,9, 15 June 2000 JUDGE: Holmes J ORDER: Judgment for the first plaintiff against the first and second And there are many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted.” – Callinan J at para 301. “It is a fundamental assumption underlying many rules of the common law and many statutory provisions that, in general, where the interests of children collide with other interests, the interests of the children prevail; that parents have duties of a high order to advance the interests of their children; that those interests are best advanced by nurture in stable marriages; and that one of the interests of children which the law recognizes is the need to avoid the harm which may flow from publicity connected with litigation in which their interests are at stake.” - Heydon J at para 323, “The various assumptions underlying the law relating to children and the duties on parents created by the law would be negated if parents could sue to recover the costs of rearing unplanned children. The Decision Reached Of Cattanach V Melchior 2140 Words | 9 Pages. The divergent results reached in McFarlane v Tayside and Cattanach v Melchior stem, to a certain extent, from different views of the role of these considerations in the grant of damages. The Decision Reached Of Cattanach V Melchior, This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. cattanach v melchior I INTRODUCTION In the landmark decision of Cattanach v Melchior, [1] handed down on 16 July 2003, the High Court held, contrary to precedent in the United Kingdom and Canada, that the parents of a child born as a result of a doctor���s negligence are entitled to recover damages for the costs of raising the child until adulthood. The judgment raises interesting questions as to the characterisation of childbirth and parenthood within modern society. Callinan J’s reasons were similar. The Melchiors, deciding that they had completed their family with two children, agreed that Mrs Melchior should undergo a tubal ligation, to be performed by Dr Cattanach. Cattanach v Melchior' ('Cattanach') answered this question in the affirmative. The same situationwill occur. [some footnotes in whole or part omitted] The issues 216. Harriton v Stephens 2 immunity and which would offer no legal deterrent to professional carelessness or even professional irresponsibility.] Recovery would permit the commodification of the child, and would obscure the emotional rewards of parenthood. 4 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [39] (Gleeson CJ). Giving Context to Self-defence: Julie Stubbs Judgment: Penny Crofts and Isabella Alexander 16 PGA v R [2012] HCA 21 Admitting Legal Wrongs: Ngaire Naffine Judgment: Wendy Larcombe and Mary Heath Evidence 17 RPS v R [2000] HCA 3 Commentary: Katherine Biber Judgment: Helen O'Sullivan 18 Phillips v R [2006] HCA 4 Locating Consent in Similar-Fact Cases: Mehera San Roque Judgment: ��� They have nothing to do with the legal wrong for whose foreseeable consequences the tortfeasor must restore the parents. Cattanach v Melchior The Melchior���s, deciding that they had completed their family with two children, agreed that Mrs Melchior should undergo a tubal ligation to be performed by Dr Cattanach. 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 He clipped only her left tube. 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