“Can’t buy me love” — Public Policy Implications of Cattanach v. Melchior

Abstract

he question of whether compensation could be awarded for raising a healthy child born as the result of a doctor’s negligence was recently examined by the High Court of Australia in Cattanach v. Melchior (2003) (hereafter ‘Melchior’). the case involved litigation brought by Kerry and Craig Melchior, a married Brisbane couple, against an obstetrician and gynaecologist, Dr Stephen Cattanach. In 1992 he had performed a tubal ligation on Kerry Melchior. She sought the procedure because, having given birth to two healthy daughters, she and her husband had decided they did not want more children. Four years after the sterilisation procedure, at age 44, Kerry Melchior became pregnant. This happened because both she and her doctor mistakenly believed she only had one fallopian tube, and he had only clipped that tube in the operation. Kerry Melchior carried the pregnancy to term and in 1997 gave birth to a healthy son, Jordan. Kerry and Craig Melchior initiated legal proceedings in both tort and contract in respect of the failed sterilisation, against Stephen Cattanach and the State of Queensland, as the authority responsible for the public hospital where the procedure was performed. The action in contract was not pursued, but the trial judge agreed the doctor had been negligent in respect of his provision of advice about the risks of further conception. She awarded around $103 000 damages to Kerry Melchior in relation to the pregnancy and birth, $3 000 to her husband for ‘loss of consortium’ associated with the pregnancy and birth, and around $105 000 damages to both plaintiffs for the cost of raising Jordan to age 18. The defendants appealed unsuccessfully against the last component only of this damages award — compensation for the cost of bringing up the child — to the Queensland Court of Appeal, and then to the High Court. By a majority of four (Justices McHugh, Gummow, Kirby and Callinan) to three (Chief Justice Gleeson and Justices Hayne and Heydon), in July 2003 the High Court upheld the original award of damages. Before the High Court’s decision Australian legal authority on whether damages could be awarded in these circumstances was limited and inconclusive. Two Queensland cases had allowed recovery for the cost of raising a healthy child born as a result of medical negligence — Dahl v. Purnell (1992) and Veivers v. Connolly (1995). The NSW Court of Appeal subsequently addressed the question in CES v. Superclinics (1995), denying recovery by a 2:1 majority. The High Court of Australia granted special leave to appeal against this last decision, in Nafte v. CES (1996), but did not ever hear the case as the parties settled out of Natasha Cica is a Lecturer at the School of Professional Communication, University of Canberra and a Fellow at the Centre for Applied Philosophy and Public Ethics, Charles Sturt University.