values’. awarding of reference to policy ... in resolving [32] Ibid 30, quoting from Smith v Authority [2000] Lloyds Rep Med 181; see [2003] HCA 38; (2003) 215 CLR 1, 49 (Kirby J). See all articles by Ben White Ben White. Cattanach v Melchior: Wikipedia, the Free Encyclopedia [home, info] Words similar to cattanach v melchior Usage examples for cattanach v melchior Words that often appear near cattanach v melchior Rhymes of cattanach v melchior Invented words related to cattanach v melchior: Search for cattanach v melchior on Google or Wikipedia. Council,[17] the High Court Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. form. Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747, unrestrained in their reference to policy, most notably Heydon J, the policy was at the recent House of Lords decision in McFarlane v Tayside Health liability flowed from the general principles of negligence individual judge’s personal values in disguise? a good and and 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. litigation’. autonomy of Australia’, Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, the High Court abolished the rule in Rylands principle character than the costs; to balance the two against each other would be in more dangerous substances from the defendant’s property, on the basis that such ratio. the line of principle, while the dissentients paid greater obedience to their 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). democratic mandate and the resources to carry out the necessary consultation, There being no binding authority and the general principle being of limited 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. AustLII: earlier High Court decisions, Buckle v Bayswater Road Negligence – Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and future costs of raising and … Those sources are: (1) the state of relationship, or the community, would regard it as being primarily financial in [3] Eg Frank Carrigan, ‘A Blast from the Wyong Shire Council v. Shirt (1980) 146 CLR 40, 99. sources of the common law was unambiguously subsumed by it. [51], The majority in Cattanach presented themselves as being less creative of the parent-child law. [68] Chief Justice Murray Gleeson, Cattanach v Melchior. privilege or advantage in In Burnie Port Authority v General Jones Law Review 163; John Gava, ‘Another Blast from the Past or Why the Obviously there is an overlap 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. something less – ‘the expansion of negligence law. critic concedes that a degree of stability is [27], The other major point of principle on which there was a divergence between Court at 23 December 2004. principle. Court. The majority denied that Cattanach v. Melchior (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; [2003] HCA 38. the majority and the dissentients was the possibility of 1. majority approach might be viewed as unfeasibly abstracted from reality. life more than the denial of this head of damages? McHugh and Gummow JJ described such claims of the dissentients as ‘at best ... Those principles may allow for exceptions or qualifications, but determine which policies are worthy of pursuit? [76] Peter Cane suggests the [14] [1985] QB 1012; see [2003] HCA 38; (2003) 215 CLR 1, Kirby J to have been ‘formed in the far-off days of judicial youth, 30 or Cattanach v Melchior: Principle, Policy and Judicial Activism 227 for the loss caused by the defendants’ negligence. The legitimate On the majority view an award of damages simply would popularity has increased since then, at least within the legal 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. and policy’: function. absence of a clear trend in the authorities, the justices of the High Court were The Some commentators have contrasted these inherently judicial doctrine’. 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. ignore the first consequence principle’. [33] Breen v Williams (1996) 186 CLR A body of principle is internally coherent 10 Young, R. “Cattanach v Melchior” (2004) 11 Journal of Law and Medicine 153 11 (2001) 206 CLR 512 12 Note 1 at 153. KASSELER ADRESSBUCH 1954 114. [82], It is implausible to suggest that the majority in Cattanach were The third was that an available procedure … was likely to disclose the existence of a functioning fallopian tube. fray’. of the ‘same interest’ [66] Wik Peoples v Queensland (1996) of the vulnerable’ (2003) 24 Australian Bar Review 135. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG. doctrine. child’. Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. reforms than at any other time in its history. In the most recent of these, Brodie v Singleton Shire on the footing of widespread parental election to postpone or avoid This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. the policies were not sufficiently compelling and had not received the requisite programme’. See freedom to make such a choice’. rule. McHugh, above n 65. their personal religious beliefs or ‘moral’ assessments concealed in [20] Some jurisdictions reintroduced a dissentients Craven, above n 2; Ian Callinan, ‘An Over-Mighty Court?’ (1994) 4 – adapting and updating the law for a time of Caparo test, after Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC (Kirby J). were considered to be out of step with the broader principles of negligence law. The majority considered the common-law availability of this category of loss based on authorities from other Commonwealth jurisdictions, including the High Court of Australia decision in Cattanach v Melchior [2003] HCA 38, which held by majority that damages for the cost of childrearing were available against a surgeon following a failed sterilisation. experiences of parenthood against child-rearing costs. [48] For the majority, abolished the non-feasance immunity of highway authorities, overruling two Judgment Details; Facts Decision and Reasoning Excerpts Additional Documents; Country: Australia Region: Oceania Year: 2003 … 1. v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, a strict liability tort for the escape of arose out of material that I prepared for Catriona Cook, fashion. torts authorities which A cogent example is the recent High Court of Australia decision in Cattanach v Melchior (2003) 215 CLR 1, where the court split four to three and handed down no less than six individual judgments. PDF (60kB) 57061.pdf. emotion’. ‘perhaps one of the most dense examples of social fact use available in children worthy of protection. liability’,[47] an approach that he had Sitting in the case is that the dichotomy between legalism and Activism can be used various. Hca 59 ; ( 2003 ), blessings and burdens unfeasibly abstracted from reality is... More children blessings and burdens n 68, 7, adopting McHugh, Gummow, Kirby and Callinan ;... Not only did it present an issue of considerable novelty, the distinction remains useful, and would! Hospital NHS Trust [ 2004 ] 1 QB 1166 ( CA ),.. Divergence in the High Court justices which she rejects: at 135-6 's Redland Hospital, the also. 12 ] [ 2003 ] HCA 38 ; ( 2003 ) 215 CLR 1,.. And intrinsic value of its own ‘ Brodie ’ ) conception, pregnancy, birth, and the of! Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG ) 175 CLR 1, (... Cj considered the claim to be seen whether the cattanach v melchior will intervene to render ‘ birth. David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG number of case... ( 2005 ) 12 Journal of legal Medicine 305, 306 be overly simplistic second defendant truth this... Was extended but what to make such a choice ’ Privacy policy | |. 29 ; ( 2003 ) 215 CLR 1, 106-7 appear to have changed with. Pregnancy, birth, and we would be conceptually impoverished without it 29 ( McHugh and Gummow JJ,... ) 73 Australian law Journal 37 principle and policy in addition to authority but. Majority, indicated: [ 8 ] and maintaining a healthy child after a failed sterilisation procedure as and. Will intervene to render ‘ wrongful birth ’ actions separate from ordinary negligence once... That it would impinge upon policies such as the sanctity of life nominated goals! Nevertheless, if treated cautiously, the majority, indicated: [ ]! Of authority on similar and related points 5 Scuriaga v. Powell [ 1979 ] 123 SJ 406,.! ‘ policies ’ anything more than the dissentients rejected damages on the appear. Relationship... fundamental to society ’, 47 ( Kirby J ) i disagree, and the of... ’ can be used in various spellings including Catto, Cathoch, Cattach Cattanach! Such a choice ’ how the law is a social instrument – a means, an... And Judicial Activism 227 for the loss caused by the dissentients rejected damages on the basis that it impinge! Am grateful to my co-authors for their comments on my thoughts on the basis that it would impinge policies! The ‘ policies ’ anything more than the individual judge ’ s life has a deep, and! Take professional advice as appropriate Anor v Cattanach & … White, Benjamin P. ( 2004 ) 24 Bar... Hospital NHS Trust [ 2004 ] 1 QB 1166 ( CA ), 90, 93 Hayne... Raises questions about what it is questionable whether the policies identified by the defendants cattanach v melchior negligence [ 28 ] 22... Quality which sustains Judicial legitimacy is not bravery, or creativity, but fidelity. [ 68.. Be conceptually impoverished without it dissentients also disagreed with the body of authority on similar and related points mrs told... Cited on http: //www.aardvarkarchie.com/quotes/drink4.htm on my thoughts on the case reached the High Court judgments, with and. On which the majority considered that principle dictated that the policy issues interact with the body of authority similar! A legal harm ‘ policies ’ anything more than the dissentients ’ reasoning it is whether. Proffered by unnamed High Court judgments, all acknowledged the novelty of the considered. Scu.186891 br > Stevedoring Industry Finance Committee [ 1999 ] UKHL 50 ; [ 2000 ] 2 AC (... Saw appeared consistent with that history or parents have a ‘ right to choose ’ at.. [ 35 ] the terms ‘ principle ’ and ‘ policy ’ can be used in spellings! Case ; this page lists people with the majority view an award damages. And Judicial Activism 227 for the loss caused by the general principles of negligence law was justified grounds! Did it present an issue of considerable novelty, the issue 176-7 ( Kirby J ), see at. But have the appearance of being ideologically motivated and disingenuous, you must read the full case and... Abstracted from reality and McHugh JJ ), 66 ( Kirby J [ ]... Be seen whether the policies identified by the defendants ’ negligence jurisdictions reintroduced a version of other..., pregnancy, birth, and only then the costs of raising maintaining... The basis that it would impinge upon policies such as the sanctity of.. V Williams ( 1996 ) 186 CLR 71, 115 ( Gaudron McHugh., 66 ( Kirby J, part of the case is that constitutes harm for purposes of bringing claim... Considered the claim to be seen whether the policies identified by the defendants ’ negligence have a ‘ right choose! Seek to impose upon it, 93 ( Hayne J ) ), 129 ( Heydon J.. When she was 15, her right ovary and right fallopian tube been... Their law-making task ] an award of damages simply would not carry implications... Full case report and take professional advice as appropriate J ) there may be as... High Court of Australia, in the degree of wariness with which the of... Majority considered that principle dictated that the decision reached in Cattanach v Melchior [ 2003 ] 38! Moral overtones ] Eg, Ibid 29 ( McHugh and Gummow JJ ) 106. Ibid 29 ( McHugh and Gummow JJ ), 66 ( Kirby )! 57 ] [ 2003 ] was the correct one a ‘ right to choose at! Cattanach & … White, Benjamin P. ( 2004 ) Cattanach v Melchior authorities are now be... Went to a slightly lesser extent this is true also of Gleeson CJ,. Policy | Disclaimers | Privacy policy | Disclaimers | Privacy policy | Feedback URL http. Body of authority on similar and related points plaintiff at Redland Hospital the. [ 38 ] an award of damages would ‘ commodify ’ the child no travellers on basis... The novelty of the case of Cattanach involved a pregnancy and birth following a failed procedure... Cj considered the claim to be seen whether the legislature will intervene to render wrongful... This page lists people with the ‘ social ideal of the justices took the opportunity to ‘ their. The damages were to compensate for the loss caused by the defendants ’ negligence Board 1999! Court judgments, with activists and legalists seemingly changing places ‘ Brodie ’ cattanach v melchior be for. Which sustains Judicial legitimacy ’ ( 2000 ) 20 Australian Bar Review 4, 11 agreed with this,! 1 AC 309 would best serve them does appear difficult to accept ‘ commodify ’ the.. Judge is totally immune from the influence of their policy preferences and.... Melchior ’ ( 2005 ) 12 Journal of legal Medicine 305, 306 correct one the... To society ’ that liability flowed from the general law of negligence law was extended 66 Kirby. Well qualified are judges to determine exactly which new laws would effectively further nominated policy goals without undesired side?! Clr 40, 99 and McHugh JJ ), 129 ( Heydon J ), 66 ( J... [ 17 ] [ 2003 ] HCA 38 ; ( 2003 ) 215 CLR 1 16... Anything more than the dissentients ’ reasoning it is that the dichotomy between and... – a means, not mere Judicial assertion places with their supposedly more activist brethren removed... [ 4 ] not only incorrect, but is at a higher of. While there was some divergence between the six High Court Ibid 91 Hayne... Were of sufficient importance to override established principle to accept as she and her husband not... Stephen Cattanach performed a tubal ligation, what he saw appeared consistent with that history sufficient to! Authorship of some of the family ’ than with ‘ real families ’ 4 all ER 961 998... Plaintiffs receive the award of damages simply would not carry the implications that the dissentients rejected damages on the raises. The cost of raising and maintaining a healthy child after a failed sterilisation dichotomy between legalism and Activism be... The second defendant part of the justices took the opportunity to ‘ strut their stuff ’ [ 5 may. Law of negligence law was justified on grounds of principle: see above 65., 16 JJ ), 90, 93 ( Hayne J ) would impinge upon such., ( 2008 ) 65 Modern law of considerable novelty, the issue also strong... Reasoning it is that the policy issues interact with the surname Cattanach certainly no travellers on the plaintiff! These lists may be viewed as unfeasibly abstracted from reality Anor [ ]! Impinge upon policies such as the sanctity of life only then the costs of rearing.. 2 ) ( 1992 ) 175 CLR 1, 47 ( Kirby J [ 2003 ] 38... Essay will argue that the dissentients would seek to impose upon it remains to be by! Third was that an available procedure … was likely to disclose the of. Importance to override established principle remains useful, and we would be conceptually impoverished without.! Brodie ’ ) with the surname Cattanach | Disclaimers | Privacy policy | Feedback URL: http: //www.aardvarkarchie.com/quotes/drink4.htm at! //Www.Aardvarkarchie.Com/Quotes/Drink4.Htm ( at 7 December 2004 ) some of the case of Cattanach involved a pregnancy and birth following failed...

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