Cattanach v Melchior | |
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Court | High Court of Australia |
Full case name | Cattanach & Anor v Melchior & Anor |
Decided | 16 July 2003 |
Citation(s) | [2003] HCA 38; (2003) 215 CLR 1 |
Case history | |
Prior action(s) | Melchior v Cattanach & Anor [2001] QCA 246; Queensland Court of Appeal |
Subsequent action(s) | none |
Case opinions | |
(4:3) Appeal dismissed. Benefits received by having a child not legally relevant to the head of damage that compensates for cost of raising and maintaining the child. | |
Court membership | |
Judge(s) sitting | Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ |
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. It was held by a majority of the High Court (by McHugh, Gummow, Kirby and Callinan JJ; 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 Commonwealth Law Reports (CLR) are the authorised reports of decisions of the High Court of Australia. The Commonwealth Law Reports are published by the Lawbook Company, a division of Thomson Reuters. James Merralls AM QC was the editor of the Reports from 1969 until his death in 2016.
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.
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. She recalled having one ovary removed when she was fifteen years of age and that her fallopian tube had at that time also been removed. While performing the operation Dr Cattanach could see no evidence of a second fallopian tube and so assumed that Mrs Melchior's recollection was accurate.
Tubal ligation or tubectomy is a surgical procedure for sterilization in which a woman's fallopian tubes are clamped or blocked and sealed, either of which prevents eggs from reaching the uterus for implantation. Tubal ligation is considered a permanent method of sterilization and birth control.
The ovary is an organ found in the female reproductive system that produces an ovum. When released, this travels down the fallopian tube into the uterus, where it may become fertilised by a sperm. There is an ovary found on the left and right sides of the body. The ovaries also secrete hormones that play a role in the menstrual cycle and fertility. The ovary progresses through many stages beginning in the prenatal period through menopause. It is also an endocrine gland because of the various hormones that it secretes.
The fallopian tubes, also known as oviducts, uterine tubes, or salpinges are uterine appendages, lined from inside with ciliated simple columnar epithelium, leading from the ovaries of female mammals into the uterus, via the uterotubal junction. They enable the passage of egg cells from the ovaries to the uterus. In non-mammalian vertebrates, the equivalent structures are just called oviducts.
Some time after the operation Mrs Melchior became pregnant by her husband, Craig Melchior and gave birth to the healthy baby Jordan. Kerry Anne and Craig Melchior brought actions against, inter alia, Dr Cattanach for negligence. Mrs Melchior applied for damages for loss and damage caused by pregnancy and birth, Mr Melchior applied for damages for loss of consortium and they jointly applied for damages for the cost of raising and maintaining the child to majority.
Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law. For example, in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover for his loss of consortium while his wife languished after a carriage accident. However, once she died from her injuries, his right to recover for lost consortium ended. After the enactment of the Lord Campbell's Act the English common law continued to prohibit recovery for loss of consortium resulting from the death of a victim. The availability of loss of consortium differs drastically among common law jurisdictions and does not exist at all in several of them. Damages for loss of consortium are considered separately from, and are not to be confused with compensatory damages.
In the Supreme Court of Queensland, Holmes J held that the failure of Dr Cattanach to warn the Melchiors of their capacity to conceive and his negligent advice caused them to become parents of an unplanned child. Mrs Melchior was awarded $103,672.39 for loss and damage caused by pregnancy, Mr Melchior was awarded $3,000 for loss of consortium and they were jointly awarded $105,249.33 for the cost of raising and maintaining the child.
The Supreme Court of Queensland is the highest court in the Australian State of Queensland.
Catherine Ena "Cate" Holmes is an Australian judge, who is the current Chief Justice of the Supreme Court of Queensland, the highest ranking court in the Australian state of Queensland. She was appointed to the Supreme Court of Queensland in 2000, to the Queensland Court of Appeal in 2006 and appointed Chief Justice on 11 September 2015. In that capacity, she acts in the position of Governor of Queensland in the governor’s absence.
The appeal of Dr Cattanach and the State of Queensland (which was vicariously liable for Dr Cattanach's negligence) [1] to the Queensland Court of Appeal (McMurdo P, Davies and Thomas JJA) was dismissed by a majority, Thomas JA dissenting. Special leave was later granted for the defendants to appeal to the High Court exclusively on the issue of the award of damages for the cost of raising and maintaining a healthy child.
Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee
The State of Queensland and the defendant Dr Cattanach argued that the birth of a healthy child was not a harm and therefore could not be compensated; that the damages do not arise from a physical injury to the plaintiff; that such damages would open the floodgates to lawsuits; and that the benefit of raising a child may be greater than the cost, though it is immeasurable. Intervening by leave were also the Solicitors-General for Western Australia and South Australia, arguing the same lines.
In November 2003 the Queensland parliament passed the Justice and Other Legislation Amendment Act 2003. Section 41 of that Act inserted new sections 49A and 49B into the Civil Liability Act 2003. These sections prevent a court from awarding damages for a financial loss suffered in rearing a healthy child. This effectively prevents a decision awarding the same damages that were awarded in Cattanach v Melchior being awarded again in Queensland - however, the amendment does not prevent a successful Wrongful Birth claim.
Section 71 of the New South Wales Civil Liability Act 2002 has similar effect.
Further, the Civil Liability Act 1936 (SA) Section 67 again has a very similar effect, though is expressed slightly differently.
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must usually show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.
Negligence is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.
Tortlaw in Australia consists of both common law and, to a lesser extent, legislation. A tort is a civil wrong, other than a breach of contract. Torts may be sued upon by private individuals against other private individuals to correct a form of conduct or wrong. A large number of torts exist, and they generally derive their legal status from the common law. Since a court can define an existing tort or even recognise new ones through the common law, tort law is sometimes regarded as limitless and adaptable to modern circumstances.
In the United States, the calculus of negligence, also known as the Hand rule, Hand formula, or BPL formula, is a term coined by Judge Learned Hand and describes a process for determining whether a legal duty of care has been breached. The original description of the calculus was in United States v. Carroll Towing Co., in which an improperly secured barge had drifted away from a pier and caused damage to several other boats.
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship but eventually become related in some manner, as defined by common law.
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.
An exclusion clause is a term in a contract that seeks to restrict the rights of the parties to the contract.
A concept of English law, a misrepresentation is an untrue or misleading statement of fact made during negotiations by one party to another, the statement then inducing that other party into the contract. The misled party may normally rescind the contract, and sometimes may be awarded damages as well.
Misleading or deceptive conduct is a doctrine of Australian law.
Caparo Industries PLC v Dickman[1990] UKHL 2 is a leading English tort law case on the test for a duty of care. The House of Lords, following the Court of Appeal, set out a "three-fold test". In order for a duty of care to arise in negligence:
Wrongful life is the name given to a legal action in which someone is sued by a severely disabled child for failing to prevent the child's birth.
Economic loss is a term of art which refers to financial loss and damage suffered by a person such as can be seen only on a balance sheet rather than as physical injury to the person or destruction of property. There is a fundamental distinction between pure economic loss and consequential economic loss, as pure economic loss occurs independent of any physical damage to the person or property of the victim. It has also been suggested for it to be called "commercial loss" as injuries to person or property could be regarded as "economic".
Burnie Port Authority v General Jones Pty Ltd, is a tort law case from the High Court of Australia, which decided it would abolish the rule in Rylands v Fletcher, and the ignis suus principle, incorporating them generally into the tort of negligence.
Royscot Trust Ltd v Rogerson[1991] EWCA Civ 12 is an English contract law case on misrepresentation. It examines the Misrepresentation Act 1967 and addresses the extent of damages available under s 2(1) for negligent misrepresentation.
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life, in which the child sues the doctor.
Northern Territory v Mengel, was a significant Australian court case, decided in the High Court of Australia on 19 April 1995. The decision dealt with the conceptual framework of tort law and held that liability under tort depended on the plaintiff establishing the defendant was either negligent or intended to cause harm to the plaintiff. It overruled the decision in Beaudesert Shire Council v Smith.