In the absence of any clear and accepted understanding of such matters, the common law should not justify preclusion of recovery on speculation as to possible psychological harm to children.” -McHugh J and Gummow J at para 79, “…the emotional and other benefits and burdens resulting from such a birth cannot be assessed comprehensively at the beginning of life. The “child is a blessing” argument that advocates for no damages is based on moral views and not on legal principles, ignoring the monetary burden of a child. 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 judgment raises interesting questions as to the characterisation of childbirth and parenthood within modern society. Cattanach v Melchior [2003] HCA 38. “One of the grounds upon which "wrongful life" claims by children have been rejected is the impossibility of making a rational or fair assessment of damages46. Cattanach v Melchior (2003) 199 ALR 131. 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. Society’s value of life and the family unit is not inconsistent with awarding damages. The majority in Cattanach appear to recognise this modern trend, treating the costs of raising a child born as a result of negligence as the consequential harm of an injury for which parents are entitled to compensation, just as victims of negligence ordinarily are in respect of damages that are not too remote. Cattanach v Melchior' ('Cattanach') answered this question in the affirmative. attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. The fact was that Mrs Melchior���s right tube was not removed, and Dr Cattanach did not check to ensure that it had been. The argument in medical cases is more likely to be about whether there has been a breach of the doctor's duty, or whether any breach was a cause of the harm of which the plaintiff complains. Awarding damages solely for disabled children draws a distinction that is arbitrary and offensive. The term 'disability' Court of Appeal Practical consequences exists in SA, where the 'ordinary costs' 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. It compares two judgments, from the House of Lords and from the Australian High Court, reaching opposite results where negligent medical errors The "windfall" argument is one of these. 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. 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. Recovery would permit the commodification of the child, and would obscure the emotional rewards of parenthood. A similar difficulty is encountered in awarding damages for loss of expectation of life47. 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). 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. judgment in Cattanach v Melchior [2003] HCA 38. Citation: Waller v James [2013] NSWSC 497. 4 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [39] (Gleeson CJ). [some footnotes in whole or part omitted] The issues 216. Blessing 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. McHugh J and Gummow J dismissed the appeal on the ground that tort principles focused on compensation, deterrence, and fairness required recovery. When Mrs Melchior first consulted Dr Cattanach, she told him that her right ovary and fallopian tube had been removed. It is expressed by judges to respond to their perceptions of the requirement of justice, fairness and reasonableness in their society. 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. This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. In examining whether these actions should be lawful, it is necessary to analyse the decision concluded in Cattanach v Melchior. The denial of damages to the parents could equally be described as a windfall to the tortfeasor. 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. While the decision was reached by a narrow (four-to-three) majority only, the ruling affirmed a (two-to-one) decision by the Queensland Court of Appeal to award damages in the amount of $105,000. Download Judgment: English. 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. Cattanach v. Melchior (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38. from a disability'. 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. Pregnant after the surgery further steps to avoid pregnancy exists in SA, where the 'ordinary costs' Cattanach. 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