Cattanach v Melchior

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

STEPHEN ALFRED CATTANACH & ANOR  APPELLANTS

AND

KERRY ANNE MELCHIOR & ANOR  RESPONDENTS

Cattanach v Melchior [2003] HCA 38

16 July 2003

B22/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Queensland

Representation:

D F Jackson QC with C Newton for the appellants (instructed by Deacons)

B W Walker SC with M E Eliadis for the respondents (instructed by Shine Roche McGowan)

Interveners:

R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

C J Kourakis QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

Public policy – Family relationships – Negligent advice following sterilisation procedure – Birth of child – Damages – Whether birth of child is a legal harm for which damages may be recovered – Whether departure is required from ordinary tortious rules as to causation and economic loss.

Damages – Negligence – Medical negligence – Negligent advice following sterilisation procedure – Birth of child – Whether recovery limited to damages for pain, suffering, inconvenience and costs of pregnancy and childbirth – Whether additional damages recoverable for past and future costs of raising and maintaining child until the age of 18 years – Whether absence of physical injury to father of child indicates that damage amounts to pure economic loss – Whether unplanned pregnancy constitutes injury to mother – Applicable rules governing recovery in such a case – Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child – Whether recovery limited to cases involving extra costs caused by disability of parent or child.

GLEESON CJ.  

The issue

1. If, in consequence of medical negligence, a couple become the parents of an unintended child, can a court, in an award of damages, require the doctor to bear the cost of raising and maintaining the child?

2. Such a question has divided judicial opinion in many countries.  Recently, the House of Lords held that, according to the laws of England and Scotland, the answer is no[1].  At least to the present time, that is also the preponderant view in North America.  The reasons for judgment of other members of the Court refer to the case law in other jurisdictions.  The question cannot be answered by intuition.  The intuitive response of many people would probably vary according to the circumstances of particular cases; including some circumstances that the law would regard as irrelevant.  Courts seek to answer the question by reference to general principles, based upon legal values.  Those principles may allow for exceptions or qualifications, but such exceptions or qualifications themselves must be founded upon principle.  The differing responses given by courts throughout the world show that the relevant principles are not easy to identify, or apply.

   [1]McFarlane v Tayside Health Board [2000] 2 AC 59.

3. The way in which the question is framed is closely related to the facts of the present case; and those facts are uncomplicated.  A claim for damages was brought jointly by the respondents, as a couple, and an award of damages was made to them jointly.  The claim was not based upon the existence of any disability on the part of either mother or child, or any special or unusual needs which will take the cost of raising the child out of the ordinary.  The first appellant is an obstetrician and gynaecologist who provides sterilisation services in the course of his practice.  It is lawful for him to do so; just as it was lawful for the first respondent, Mrs Melchior, to seek those services.  Mrs Melchior did not have to justify her decision to become sterilised, and the reasons she gave in evidence were not unusual.  They were not based on considerations of financial hardship, or medical necessity.  She decided she wanted no more children.  The claim with which this Court is concerned was based on tort, rather than contract.  That is because Mrs Melchior undertook her sterilisation procedure in a public hospital.  The second appellant, the State of Queensland, is the authority responsible for the hospital at which Dr Cattanach attended Mrs Melchior.

4. The legal uncertainty surrounding the issue as it is presented in this case is not only the result of the fact that widespread availability and use of sterilisation services, associated with the possibility that medical negligence may result in unintended conception, is a comparatively recent social phenomenon.  In truth, what is involved is a new manifestation of an old problem:  the way in which the law of tort deals with the consequences of negligent conduct of one person that affects the financial interests of others, as distinct from conduct that injures another's person or property.  The distinction between what is often called pure economic loss, and loss, including financial loss, flowing from injury to person or property, is not always clear, or satisfactory.  Even so, it is embedded in the law of tort, and forms the basis of established rules governing liability for damages[2].  The common law shows more caution in imposing tortious liability for conduct that has an adverse effect upon purely financial interests than it shows in relation to conduct that causes damage to person or property[3].  There are sound reasons of legal policy for that.

   [2]Tame v New South Wales (2002) 76 ALJR 1348 at 1351 [6]; 191 ALR 449 at 452.

   [3]Feldthusen, Economic Negligence, 4th ed (2000) at 1, 10-11.    

5. In identifying the nature of the alleged loss for which Mr and Mrs Melchior seek damages, it is to be noted that its immediate cause was the process of human reproduction (conception, pregnancy and birth), resulting in a parent-child relationship.  That relationship is the source of legal and moral responsibilities which are the basis of their claim for damages.

6. The common law has always attached fundamental value to human life; a value originally based upon religious ideas which, in a secular society, no longer command universal assent.  Blackstone, in his Commentaries[4], referred to human life as "the immediate gift of God, a right inherent by nature in every individual".  Many people who now respect the same value, do so upon different grounds.  However, in this context, the concept of value is ethical, not economic.  It does not depend upon the benefits, tangible or intangible, that some children bestow upon their parents.  It may be assumed that most children enrich the lives of their parents.  But, in the eyes of the law, the life of a troublesome child is as valuable as that of any other; and a sick child is of no less worth than one who is healthy and strong.  The value of human life, which is universal and beyond measurement, is not to be confused with the joys of parenthood, which are distributed unevenly.  The fact that the present problem involves human reproduction, and the parent-child relationship, is significant; but not because it introduces an ethical dimension that forecloses debate.  The problem to be addressed is legal.  In any event, it may be doubted that theology provides the answer to a financial dispute, between a provider of sterilisation services and aggrieved patients, concerning the extent of the damages to be awarded on account of the birth of a child.

   [4]Commentaries on the Laws of England (1765), Bk I at 125.

7. There is another consideration which might influence the intuitive response of some people, but which also is legally irrelevant.  Whatever the principle that determines the answer to the question posed above, it applies regardless of the financial circumstances of the parents.  The common law does not permit courts to impose a means test upon plaintiffs.  Wealthy parents, who might reasonably be expected to spend more on bringing up their children, may have a larger claim than poor parents, to whom the birth of an unintended child might cause comparatively greater financial hardship.  This would be so simply because a tortfeasor takes a victim as he or she is found.

8. In the present case, McMurdo P, in the Court of Appeal, made the pertinent observation that neither side invited the court to take account of the social security benefits, which may or may not be means tested, to which parents are entitled in various circumstances.  It is accepted as relevant that the social context in which this issue is to be resolved is that of a secular society, in which attitudes towards control over human reproduction have changed.  It is also to be noted that modern governments accept a responsibility to make welfare arrangements for the benefit of supporting parents.

9. The argument for the appellants, and some of the reasoning in McFarlane v Tayside Health Board[5], points to an apparent incongruity.  To say that, as a result of the birth of an unintended child, the parents have an extra mouth to feed, is true.  But it is a small part of the truth.  Except for people who live at the most basic level of subsistence, it is an obviously incomplete description of the consequences of parenthood.  It is incomplete even as a description of the financial consequences.  It is not difficult to think of cases in which the birth of a child, and the formation of a parent-child relationship, could have serious effects upon the future earning capacity of a mother, or a father.  There are parents for whom the cost of feeding and maintaining an unintended child would be of minor importance compared to other financial consequences.  Furthermore, the financial consequences of the birth of a child may extend beyond those which directly affect the parents.  The child's siblings, for example, might be affected; in some cases, substantially.  Their prospects of inheritance may be diminished.  Or their parents may have less money available to provide them with financial assistance.  The incongruity is said to lie in selecting, out of the lifelong, and manifold, consequences of the birth of a child, a few particular financial incidents of the parent-child relationship.  As the point was expressed in argument in McFarlane[6], the claim focuses only on one aspect of the existence of a child, namely, the child's financial needs until adulthood, and involves a partial and selective approach to the results of the child's birth and existence.  Whether the law permits, and how it deals with, such selectivity is an issue to be addressed.  Whatever be the correct response to that issue, it cannot be disposed of as though the dispute in the present case concerns an item of consequential pecuniary loss incurred, or to be incurred, by a plaintiff suing for damages for personal injury[7].  If that were not otherwise clear, it is made so by the role of Mr Melchior.  Only by overlooking the form of the claim and of the order that was made, by disregarding Mr Melchior altogether, and by treating reproduction as a form of personal injury to Mrs Melchior, could the issue be so regarded.  That is not the way the case was dealt with by the trial judge, or any member of the Court of Appeal of Queensland.  This Court must deal with the claim that was made, and the judgment that is under appeal.  Mr Melchior cannot be ignored as a faintly embarrassing irrelevancy.  His role is one of the defining features of the claim as it was presented.  It was a joint claim, and joint damages were awarded.

   [5][2000] 2 AC 59.

   [6][2000] 2 AC 59 at 62.

   [7]cf Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), Ch 4.

   The facts and the proceedings

10. The issue in this Court is narrower than the issues that arose for determination by the trial judge or the Court of Appeal.

11. Mr and Mrs Melchior married in 1984, when Mrs Melchior was aged 32. They had a child in 1985, and another in 1988.  In 1991, they agreed to have no more children.  Mrs Melchior explained in her evidence that they had two healthy children, and were quite happy with the size of their family.  She did not wish to continue taking oral contraceptives.  Her health was good.  The couple had planned their finances around bringing up two children.  Mr Melchior had a medical condition that caused him some concern about its possible transmission to a male child, but that concern turned out to be misplaced.  It was a factor in his agreeing to some form of sterilisation, but, when it came to the point, according to Mrs Melchior, he "kept on procrastinating".  She decided to do something about it herself.  She consulted a general practitioner, who referred her to Dr Cattanach.

12. In 1992, Dr Cattanach recommended, and subsequently performed, a tubal ligation.  Although it was claimed at trial that he did so negligently, that claim was rejected.  The finding of negligence made by the trial judge, and upheld by the Court of Appeal, rested on a different basis.  The trial judge found that, when Mrs Melchior first consulted Dr Cattanach, she told him that, when she was 15 years old, her right ovary and her right fallopian tube had been removed.  When Dr Cattanach performed the tubal ligation, what he saw appeared consistent with that history.  Accordingly, he attached a clip only to the left fallopian tube.  In 1996, at the age of 44, Mrs Melchior discovered that she was pregnant.  In 1997, she gave birth to a son, Jordan.  It turned out that, contrary to her belief, her right fallopian tube had not been removed.  The trial judge found that, by reason of certain aspects of her condition, it was not negligent of the doctor to have failed to observe that at the time of the sterilisation procedure.  The finding of negligence was based upon a conclusion that Dr Cattanach had too readily and uncritically accepted his patient's assertion that her right fallopian tube had been removed, that he should have advised her to have that specifically investigated, and that he should have warned her that, if she was wrong about that, there was a risk that she might conceive.  The case was decided as one of negligent advice and failure to warn.

13. There was evidence as to the financial circumstances of the couple.  Mr Melchior is a freight operations agent.  At the time of the hearing, his weekly pay, after tax, was about $800.  Mrs Melchior had engaged in various forms of part-time employment at periods during her marriage but, as from December 1997, she worked full-time, without salary, in the family home. 

14. The trial judge, Holmes J, had before her three distinct claims for damages.  This appeal is concerned only with the third.  The first was a claim by Mrs Melchior for damages relating to the pregnancy and birth.  Those damages were assessed and allowed at $103,672.39.  They included compensation for pain and suffering, and loss of the amenities of life, associated with pregnancy and childbirth, the loss of some part-time earnings, the loss of capacity to undertake future employment resulting from a thrombosis associated with the pregnancy, and various expenses, including the cost of household care, and medical and pharmaceutical costs.  The second claim was by Mr Melchior for loss of consortium as a result of his wife's pregnancy and childbirth.  This claim was allowed, and, like the first claim, it is not the subject of the present appeal.  However, because of one aspect of the way in which the trial judge assessed the claim, it is worth noting what she said about it:

    "While recognising the toll which the events must have taken on the marriage, it has not in this State been the practice to make substantial awards for loss of consortium.  In any event, Mr Melchior retains the benefit of his wife's company and she is not significantly disabled.  Although the first three years of a child's life can impose considerable strain on any household, and in the circumstances of this case must have made matters very difficult, there is every probability that life will improve as Jordan grows older.  Indeed, this is an area in which some deference may be paid to the 'blessing' argument; it is clear from Mr Melchior's evidence that Jordan is now the source of considerable gratification to him, and it is possible that he will prove to be a source of mutual joy and a strength to the Melchiors' relationship in years to come.  In the circumstances of this case I do not consider a large award is warranted.  I allow $3,000.00 in this regard."

15. The "'blessing' argument", to which her Honour referred, was an argument, given weight by some members of the House of Lords in McFarlane, that, in the sight of the law, a child is a blessing as well as a burden, and that it "is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth"[8].  Holmes J's response to that consideration was to make some reduction in Mr Melchior's claim for loss of consortium.  It was treated as irrelevant to the third claim, which is the subject of the present appeal.

    [8]McFarlane v Tayside Health Board [2000] 2 AC 59 at 114.

16. Dr Cattanach and the State of Queensland appealed to the Court of Appeal of the Supreme Court of Queensland.  By majority, (McMurdo P and Davies JA, Thomas JA dissenting) the appeal was dismissed[9].  An application for special leave to appeal to this Court was made.  Gaudron and Kirby JJ, upon terms as to costs, made a grant of special leave "limited to the question of damages for raising and maintaining the child". 

    [9][2001] QCA 246.

    The claim for the costs of raising and maintaining the child

17. Before coming to a consideration of the legal issues involved, it is necessary to refer to the nature, and some of the incidents, of the third claim.  It was a joint claim by Mr and Mrs Melchior, and resulted in an award of damages to them jointly in the sum of $105,249.33.

18. The claim was particularised in the Statement of Claim by a contention that the "plaintiffs will jointly incur expenses [associated] with rearing Jordan".  Details of the claim were provided through the evidence of Mr Melchior, who gave the following answer to a question asked by his counsel:

    "Kerry hasn't been working for a number of years, so is it the case that the family has to be housed, clothed, fed, educated and entertained out of [your] income? --   Everything comes out of that income.  There is no other."

19. The costs with which this Court is concerned, and which were recovered from the appellants by way of an award of damages, are costs that were, or will be, met out of Mr Melchior's income.  In the Court of Appeal, McMurdo P and Thomas JA described the third claim as a claim for pure economic loss and Davies JA said it should be decided according to the principles applied by this Court in Perre v Apand Pty Ltd[10], a case concerned with pure economic loss.  In this respect, having regard to the role of Mr Melchior, the Court of Appeal was plainly correct.  From his point of view, how could the claim be anything other than a claim for pure economic loss?  And if it were merely a claim for loss consequential upon personal injury to Mrs Melchior, what was the court doing making an award of damages in favour of Mr Melchior?  Other cases may arise, concerning the consequences of negligent provision of sterilisation or like services, in which the claims may be framed differently, and different legal considerations may arise.  We are not called upon to answer all the questions that may arise in those cases; and it is not in keeping with the method by which the common law has developed to seek to do so.

    [10](1999) 198 CLR 180.

20. Mr Melchior, for the purposes of his evidence, prepared a detailed schedule setting out the anticipated costs of raising Jordan until the age of 18.  Holmes J accepted the schedule as "a reasonable representation of the costs of raising a child".  For the early years, about half of the estimated expenditure was on food.  In later years, that proportion dropped to about one-third.  Other items included clothing, medical and pharmaceutical expenses, child care, travelling to and from school, birthday and Christmas presents each year, and entertainment. If, in principle, it is possible to recover such costs by way of damages for negligence in the provision of sterilisation services, then it is not easy to see why the claim should be limited to the first 18 years of the life of the unintended child.  It is a feature of affluent societies that children remain financially dependent upon their parents for longer periods.  Many children are supported by their parents well beyond the age of 18.  The claim in the present case did not cut out at the age when attendance at school was no longer compulsory (in Queensland, 15).  Why it did not continue into a period of tertiary education is not clear.  It was not restricted to items which Mr and Mrs Melchior were legally obliged to provide.  It included items of reasonable discretionary expenditure.  By the standards of many parents, the expected expenditure on the cost of education was strikingly low.  This Court is not asked to decide whether the amounts which Mr and Mrs Melchior plan to spend on food, or education, or presents, for their son are reasonable.  However, there is a dispute as to whether the law allows them to pass the cost on to Dr Cattanach, and the State of Queensland.  The issue to be determined is whether the costs of feeding, clothing, educating, maintaining and entertaining the child are damages for which the appellants are liable at the suit of the respondents.  The modesty of a claim as presented in a particular case might lead a court to overlook the implications, for other cases, of the acceptance of a claim of that character.  However, this is a financial claim, and an understanding of its details is necessary for a decision upon the question of principle which it raises.

    Actionable damage

21. In order to succeed in their claim, the respondents must show that they have jointly suffered damage (which is the gist of an action in negligence), and that the appellants owed them a duty of care to avoid causing damage of that kind.

22. In Fleming, The Law of Torts[11], it is said:

    "What qualifies as actionable damage is a question of policy largely defined by the 'duty' rules considered in the preceding chapter.  The reason is that the concept is relative, dependent on the circumstances of the occasion.  For example, while physical injury from external trauma is categorically included, liability for mental distress is more hedged ...  Property damage is widely conceived, embracing any interference which diminishes the value of the object, like contamination, without necessarily amounting to structural damage.  Purely economic loss, however, is actionable only under controlled conditions."

    [11]9th ed (1998) at 216.

23. In an action for the tort of negligence, there is a distinction between the "damage" said to have been suffered by a plaintiff, and the "damages" awarded as compensation for each item or aspect of that damage, usually as a single sum[12].  Damage is "loss or harm occurring in fact"[13].  Such loss or harm will involve an interference with a right or interest recognised as capable of protection by law.  Description of a right or interest said to have been interfered with may sometimes be tendentious.  It might be said, for example, that Mr and Mrs Melchior have a "right to choose" the size of their family.  It is more accurate to say that they have the freedom to make such a choice.  If a right of choice exists in relation to some matter, then presumably anyone who causes the person with such a right to do anything he or she does not choose to do inflicts a form of legal harm.  That is a loose concept.  Similarly, assertions of interference with financial interests may require closer analysis.  Not every form of unexpected or unintended expenditure results in financial loss or harm.

    [12]Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 526-527.

    [13]Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 at 442 per Viscount Simon LC.

24. The lack of precision in the concept of financial or economic loss was discussed in Perre v Apand Pty Ltd[14].  There, the example was given of a child whose parents are killed as a result of the negligent conduct of another.  Claims for compensation in such cases are governed and controlled by statute[15].  However, the need for such statutory provisions, as was recited in the preamble to Lord Campbell's Act[16], stemmed from the rule in Baker v Bolton[17] that, in a civil court, the death of a human being could not be complained of as an injury.  The historical explanation of that rule is controversial[18].  Even so, a moment's reflection upon the forms of disadvantage that might result to one person from the death of another reveals the difficulty of identifying and measuring all the economic consequences of death.  In the present case, we are concerned with the obverse case.  Medical negligence resulted in human reproduction and a parent-child relationship, from which flowed the obligations reflected in the damages that were awarded at trial.  Attention is then concentrated upon some of the financial consequences of that relationship.

    [14](1999) 198 CLR 180 at 193 [6].

    [15]eg Compensation to Relatives Act 1897 (NSW).

    [16]9 & 10 Vict c 93.

    [17](1808) 1 Camp 493 [170 ER 1033].

    [18]Malone, "The Genesis of Wrongful Death", (1965) 17 Stanford Law Review 1043; Admiralty Commissioners v SS Amerika [1917] AC 38; Woolworths Ltd v Crotty (1942) 66 CLR 603.

25. In the Inner House of the Court of Session in McFarlane, the Lord Justice Clerk, Lord Cullen, distinguished between the damage and the consequences flowing from it[19], and described the costs of raising and maintaining the unintended child as falling into the second category[20].  With respect, such a distinction is sound, and necessary.  His Lordship identified the damage as occurring at conception[21].  For my part, I would regard as an integral aspect of the damage, said to be actionable damage, the parent-child relationship.

    [19]1998 SLT 307 at 310.

    [20]1998 SLT 307 at 310.

    [21]1998 SLT 307 at 310.

26. The parent-child relationship is the immediate cause of the anticipated expenditure which the respondents seek to recover by way of damages.  If they have suffered actionable damage, it is because of the creation of that relationship and the responsibilities it entails.  Mr and Mrs Melchior have the legal status of guardians and custodians of their son, subject to any order of a court, until he attains the age of 18 years[22].  Their responsibilities extend to the physical, mental, moral, educational and general welfare of the child[23].  The Family Law Act 1975 (Cth) recognises (s 60B) that children have the right to be cared for by both their parents, regardless of whether the parents are married, and (s 66C) that the parents of a child have the primary duty to maintain the child. Similar provision is made in the Child Support (Assessment) Act 1989 (Cth) (s 3). This, it appears to me, is the significance of the topic of adoption. It was not contended in this case, on behalf of the appellants, that the fact that Mr and Mrs Melchior did not have their child adopted by another couple breaks the causal relationship between the medical negligence and the costs of raising and maintaining the child. However, the possibility of adoption, even if it is purely theoretical, serves to indicate the significance of the parent-child relationship as an element of the damage of which the respondents complain. It was the existence, and continuation, of that relationship that formed the vital link between the potential interference with their financial interests resulting from conception and the actuality of such interference following birth. That relationship is the key to an accurate understanding of the damage they claim to have suffered. However, as an examination of the details reveals, the claim for damages is not limited to expenses that will be incurred as a result of legal obligation. It extends to expenses that will be incurred as a matter of moral obligation, and to others that will be incurred as a matter of parental discretion. The relationship will last for the joint lives of the parties to it, although the legal (as distinct from the natural and moral) incidents of the relationship will probably come to an end sooner. No attempt has been made in argument, or in the approach taken by the Supreme Court of Queensland, to confine the respondents' claim, as a matter of principle, to one that reflects bare legal obligations. At the same time, no attempt has been made to pursue to its logical conclusion the question of the full extent of the claims which people in the position of the respondents are entitled to make. If the appellants are said to be subject to an indeterminate liability, that is important to the question of the existence of their duty of care.

    [22]Family Law Act 1975 (Cth), s 61C(1).

    [23]Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 278 per Brennan J.

27. The coming into existence of the parent-child relationship is critical to the actionable damage of which the respondents complain.  That relationship has multiple aspects and consequences; some economic, and some non-economic; some beneficial to the parents, and some detrimental.  The case for the respondents treats that relationship as a source of economic loss or harm for which the law of negligence will make the appellants liable in damages.

28. That the incurring of the financial costs the subject of the respondents' claim was a foreseeable consequence of the medical negligence found to have occurred is not in question.  However, one thing is clear.  There is no general rule that one person owes to another a duty to take care not to cause reasonably foreseeable financial harm, even assuming that what is here involved is properly so described[24].  The reasons for that were discussed in Perre v Apand Pty Ltd[25].  The burden that would be imposed upon citizens by such a rule would be intolerable.  In Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad", Mason J said[26]:

    "The common law has exhibited a marked reluctance to allow recovery of pure economic damage sustained as a result of negligence.  Before Hedley Byrne & Co Ltd v Heller & Partners Ltd in the long line of cases that commenced with Cattle v Stockton Waterworks Co no plaintiff succeeded in recovering economic damage which was not consequential upon physical damage ...  It was otherwise if the plaintiff had a proprietary or possessory interest in property:  in that event he could recover consequential financial loss".

    [24]Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 555, 558-559, 598.

    [25](1999) 198 CLR 180 at 192-193 [5]-[7].

    [26](1976) 136 CLR 529 at 584-585.

29. Cattle v Stockton Waterworks[27] was treated by learned commentators as an early example of the law's reluctance to recognise a duty to take care to avoid causing purely pecuniary loss.  For example, Professor Fleming, in 1977, treated the case as falling within the category of "relational interests" in respect of which, he said, opposition to recovery for pecuniary loss was most ingrained[28].  Negligent interference with profitable contractual expectations was given as an example[29].  The term "relational loss" has been used in respect of cases where "[t]he plaintiff suffers economic loss because of some relationship which exists between the plaintiff and the injured third party"[30].  Here we are not concerned with an injured third party, but with plaintiffs claiming to be injured jointly, their economic loss flowing from the coming into existence of a relationship by reason of which they incurred financial and other responsibilities.  It is the very existence of the third party which, by reason of the relationship to him of the plaintiffs, is said to give rise to loss or harm.  It might be added that, although Mr Melchior's claim for loss of consortium was relational in nature, such claims are now anomalous, and bear a proprietorial character inconsistent with current ideas as to the relationship between husband and wife[31].  Holmes J, when assessing compensation for injury to the marital relationship, allowed some set-off by reference to the parental relationship.  This passed unremarked in the Court of Appeal, presumably because no point was made about it in argument.

    [27](1875) LR 10 QB 453.

    [28]Fleming, The Law of Torts, 5th ed (1977) at 169-171.

    [29]See also CandlewoodNavigation Corporation Ltd v Mitsui OSK Lines Ltd [1986] AC 1.

    [30]Feldthusen, Economic Negligence, 4th ed (2000) at 193-194.  See also Cane, Tort Law and Economic Interests (1996) at 454.

    [31]See Brett, "Consortium and Servitium:  A History and Some Proposals", (1955) 29 Australian Law Journal 321, 389 and 428.

30. Since, as all the members of the Court of Appeal recognised, we are not here dealing with a claim for financial loss consequential upon personal injury to a plaintiff, or damage to a plaintiff's property, but with a claim for recovery of pure economic loss arising out of a relationship, then it can scarcely be asserted with any degree of plausibility that legal principle or authority leads inexorably to the result for which the respondents contend.  On the contrary, as Lord Steyn observed in McFarlane[32], we are concerned with a proposal for a new head of liability for economic loss which must be justified by cogent reasons.  The respondents, in addition to establishing that they have incurred what the law recognises as loss or harm, must show that the duty of care which Dr Cattanach owed them extended to a duty of care to protect them from that kind of loss or harm.  In Sutherland Shire Council v Heyman[33] Brennan J pointed out that "a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered".  He went on to say:  "The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it."

    [32][2000] 2 AC 59 at 79.

    [33](1985) 157 CLR 424 at 487.

31. In deciding the related questions whether the creation of a parent-child relationship involves actionable damage in the form of economic loss, and whether the law imposed a duty of care on Dr Cattanach to avoid or prevent that damage, it is appropriate to measure the present case against the reasons of policy for the law's reluctance to impose liability of this kind.  These were discussed in Perre v Apand Pty Ltd[34].  A specific example of that caution, in which the policy reasons are examined, is the decision of the House of Lords in Caparo Industries Plc v Dickman[35], where it was held that the liability of auditors for negligent mis-statements in certifying corporate accounts did not extend to the economic loss suffered by investors who bought shares in the company whose accounts were certified.  The House of Lords drew a line at the company and its members, and denied a duty of care to protect the financial interests of members of the public who might contemplate investing in the company.  In the same way, in McFarlane, when addressing the present problem, the House of Lords drew a line at the birth of the child, allowing damages which included matters associated with the birth, but denying damages thereafter.

    [34](1999) 198 CLR 180 at 192-193 [5]-[6].

    [35][1990] 2 AC 605.

32. The first reason for caution is the potential indeterminacy of the financial consequences of a person's acts or omissions, and the need for "some intelligible limits to keep the law of negligence within the bounds of common sense and practicality"[36].  In this context, indeterminacy does not mean magnitude.  By focusing on the parent-child relationship, it is possible to draw a line short of adverse effects upon siblings and others.  But even if account is taken only of foreseeable adverse financial consequences to the parents, there is no reason to suppose they will cease when the child turns 18, or to restrict them to those that form the subject of the present claim.  If the cost of birthday and Christmas presents is to be included, why not, in an appropriate case, the expense associated with a wedding?  If the cost of schooling is included, why not, in an appropriate case, the cost of tertiary education?  Furthermore, as was noted earlier, the adverse financial implications of the assumption of parental responsibility might extend beyond the incurring of additional items of expenditure.  What basis in principle is there for distinguishing between child-rearing costs and adverse effects on career prospects, which, in the case of some parents, might far exceed the costs of raising and maintaining a child?

    [36]Caparo Industries Plc v Dickman [1990] 2 AC 605 at 633 per Lord Oliver of Aylmerton.

33. Reference has already been made to another reason for caution in this area, which is the lack of precision in the concept of economic loss, as distinct from injury to person or property, which is usually readily identifiable.  What kinds of detriment or disadvantage flowing from the parent-child relationship would be regarded as financial loss or harm?  Parents might go through their lives making financial and other arrangements, and adjusting their circumstances, to accommodate the needs or reasonable requirements of their children.  To what extent, and in what circumstances, would this count as economic harm?

34. So far, attention has been confined to financially negative aspects of the parent-child relationship.  But why should that be so, especially if we are dealing with a claim that comprehends moral and natural obligations, as well as legal obligations?  There was a time when the law imposed obligations on children to care for their parents.  Blackstone wrote[37]:

    "The duties of children to their parents arise from a principle of natural justice and retribution.  For to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverance ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance.  Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws."

    In modern society, legal obligations of children to support their parents have largely disappeared[38].  But with an ageing population, and increasing pressure on welfare resources, the financial aspects of caring for parents are likely to become of more practical concern.  Unless attention is confined to strict legal obligations, (and, if it were, the respondents' claim would need substantial revision), then what justification is there for ignoring the natural and moral obligations owed by children to parents, and the financial consequences that may entail?  Why should we focus exclusively on child care and ignore care of the aged?  It is difficult to justify treating a relationship as damage, and then measuring the consequential harm by reference only to those aspects of the relationship that are easy to count, and that arise sooner rather than later.  Although our society does not regard children as economic assets, it does not follow that they should be treated as unmitigated financial burdens.

    [37]Blackstone, Commentaries on the Laws of England (1765), Bk I at 441.

    [38]In the times of the Poor Laws, entitlement to relief was related to satisfaction by children of their obligations to their parents.  See Holdsworth, A History of English Law, vol 4, 2nd ed (1937) at 156-157, 387-402.

35. Another reason for the law's hesitancy in this area is a problem of legal coherence.  An example of such a problem, in a different context, resulting in the denial of a duty of care, is to be found in the recent decision of this Court in Sullivan v Moody[39].  The matter was referred to by Lord Steyn in McFarlane[40].  The common law does not allow a person to treat his or her own birth as actionable damage[41], just as it does not allow the death of a human being to be complained of as an injury.  Where it is the parent-child relationship that is in question, the law imposes obligations, in support and protection of the child, which are difficult to reconcile with a recognition of the relationship as damage.  The Queensland Criminal Code contains provisions relating to abortion (ss 224, 225, 226), infanticide (ss 291, 294, 313), concealing the birth of a child (s 314), failing to supply the necessaries of life (s 324), endangering the life of a child by abandonment or exposure (s 326), and cruelty to children (s 364).  A child is not a commodity that can be sold, or otherwise disposed of, in order to mitigate hardship to a parent.  The legal incidents of the parent-child relationship can only lawfully be avoided by adoption.  The various ways in which common law and statute protect the child, by imposing and reinforcing parental obligations, reflect international norms.  Article 23 of the International Covenant on Civil and Political Rights 1966 declares that "[t]he family is the natural and fundamental group unit of society", and Art 24 provides that every child shall have the right to such measures of protection as are required by the child's status as a minor, on the part of the child's family, society and the State.  Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966 requires that "[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children".  Article 18 of the Convention on the Rights of the Child 1989 refers to "the principle that both parents have common responsibilities for the upbringing and development of the child".  The recognition of the family as the natural and fundamental group unit of society, which is repeatedly expressed in international instruments[42], in conjunction with declarations of the need to provide for the care and protection of children, is not easy to reconcile with the idea of the parent-child relationship as something the law will regard as an element of actionable damage.

    [39](2001) 207 CLR 562 at 581-582 [55]-[60].

    [40][2000] 2 AC 59 at 83.

    [41]McKay v Essex Area Health Authority [1982] QB 1166.

    [42]eg American Declaration of the Rights and Duties of Man 1948, Art VI; American Convention on Human Rights 1969, Art 17; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights 1988, Art 15; Cairo Declaration on Human Rights in Islam 1990, Art 5(a); Arab Charter on Human Rights 1994, Art 38(a).

36. The next matter to be considered is what was earlier described as the selectivity of the respondents' approach to the incidents of the parent-child relationship created in consequence of the negligence of which they complain.  The object of an award of damages in a case such as the present is not to punish a wrongdoer; it is to restore the plaintiffs, as nearly as possible as can be done by an award of financial compensation, to the position in which they would have been but for the wrongdoing[43].  It is to effect "reasonable restitution for the wrong done"[44].  Is that object achieved by the award of damages made in favour of the respondents at trial?  They have a loving relationship with a healthy child.  It does not involve any special financial or other responsibilities that might exist if, for example, the child had an unusual and financially burdensome need for care.  The financial obligations which the respondents have incurred, legal and moral, are of the same order as those involved in any ordinary parent-child relationship.  They must feed the child.  Of course, he remains their child.  Does reasonable restitution involve obliging Dr Cattanach to pay for the food?  The Christmas and birthday presents, for which they claimed and were awarded damages, will presumably be received with gratitude, and perhaps, at some future time, reciprocated.  Does reasonable restitution require Dr Cattanach to pay for them?  The entertainment they will provide the child will, no doubt, be enjoyed.  Should Dr Cattanach have to pay for it?  Some of those items would be unremarkable in a claim, in the Family Court, by one parent against another, for child maintenance.  But when they appear in a schedule of damages in tort, they prompt questions as to the nature of the entire claim.  When Mr and Mrs Melchior have spent the money itemised in their claim on food, clothing, education, maintenance and entertainment, what will they have to show for it?   An adult son.  No allowance has been, or can be, made for that.

    [43]Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 per Lord Blackburn, cited by Lord Clyde in McFarlane v Tayside Health Board [2000] 2 AC 59 at 104-105.

    [44]McFarlane v Tayside Health Board [2000] 2 AC 59 at 105 per Lord Clyde.

37. This is a question that has consistently vexed courts considering this problem.  An answer that has been given is that, in awarding damages in tort, it may be appropriate to set off like against like, but if a financial loss is suffered, it is neither necessary nor appropriate to set off a non-financial benefit.  In this connection, the exemplar, referred to in argument in the Scottish courts in McFarlane, and in the judgments in that case[45], is the coal miner who, having been injured, and having suffered the loss of his future earning capacity, does not have his damages reduced to allow for the benefit of a future life of unemployed leisure in the open air.  With respect to those who think otherwise, that example seems to me to re-state, rather than to answer, the present problem.  As with many suggested analogies, the real question is whether it is analogous.  The injured miner's claim for loss of earning capacity is for financial loss consequent upon physical harm, a well recognised form of actionable damage.  He will be compensated for the consequences of that harm, including financial loss in the form of loss of earning capacity.  His loss of earning capacity, a recognised head of damages, is not mitigated by his enforced leisure.  Here, however, the question is whether human reproduction and the creation of a parent-child relationship is actionable damage.  It is disputed that, in answering that question, some of the detrimental financial consequences of that relationship can be selected, and all the other consequences, financial and non-financial, ignored.

    [45]1998 SLT 307 at 316.

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 damages[46].  A similar difficulty is encountered in awarding damages for loss of expectation of life[47].  The indeterminate nature of the financial consequences, beneficial and detrimental, of the parent-child relationship has already been noted.  In deciding whether, in the contemplation of the law, the creation of that relationship is actionable damage, it is material to note that it is unlikely that the parties to the relationship, or the community, would regard it as being primarily financial in nature.  It is a human relationship, regarded by domestic law and by international standards as fundamental to society.  To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible.

    [46]McKay v Essex Area Health Authority [1982] QB 1166.

    [47]See eg Skelton v Collins (1966) 115 CLR 94 at 130 per Windeyer J.

    Conclusion

39. The claim under consideration displays all the features that have contributed to the law's reluctance to impose a duty of care to avoid causing economic loss.  The liability sought to be imposed is indeterminate.  It is difficult to relate coherently to other rules of common law and statute.  It is based upon a concept of financial harm that is imprecise; an imprecision that cannot be concealed by an arbitrary limitation of a particular claim in subject matter or time.  It is incapable of rational or fair assessment.  Furthermore, it involves treating, as actionable damage, and as a matter to be regarded in exclusively financial terms, the creation of a human relationship that is socially fundamental.  The accepted approach in this country is that "the law should develop novel categories of negligence incrementally and by analogy with established categories"[48].  The recognition of the present claim goes beyond that, and is unwarranted.

    [48]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481 per Brennan J.

40. The appeal should be allowed.  The orders made by the Court of Appeal (except as to costs) should be set aside.  The appellants' appeal to that Court should be allowed in part.  The judgment of Holmes J should be varied by setting aside that part which orders the appellants to pay the respondents the sum of $105,249.33.

41. McHUGH AND GUMMOW JJ.   By majority (McMurdo P and Davies JA; Thomas JA dissenting), the Queensland Court of Appeal[49] dismissed an appeal against a judgment in the Supreme Court of Queensland (Holmes J)[50] awarding damages against the first and second defendants, Dr Cattanach and the State of Queensland.  Dr Cattanach is a specialist obstetrician and gynaecologist.  The plaintiffs, Mr and Mrs Melchior, are husband and wife.  In this Court, they are the respondents and Dr Cattanach and the State are the appellants.

    [49][2001] QCA 246.

    [50](2001) Aust Torts Rep ¶81‑597.

42. It was admitted on the pleadings that the State was the statutory successor to the Brisbane South Regional Health Authority, which had operated the Redland Hospital.  Dr Cattanach was a consultant obstetrician and gynaecologist at the Redland Hospital where, on 13 March 1992, he performed on Mrs Melchior a sterilisation procedure.  Thereafter, in 1997, Mrs Melchior gave birth to the couple's third child, a son.  At the time of the trial, the child was a healthy, active three year old.

43. Mr and Mrs Melchior had married in 1984 and, prior to the sterilisation procedure, there were two children of the marriage, daughters each born by Caesarean section in 1985 and 1988 respectively.  The primary judge described as follows the personal circumstances of Mr and Mrs Melchior before Mrs Melchior was referred to Dr Cattanach by her general practitioner:

    "They were satisfied with a family of two, and in 1991 discussed together the prospect of taking steps to ensure that they would have no more children.  They had planned their finances around bringing up two children, and Mrs Melchior did not wish to continue using oral contraceptives.  Mr Melchior said that he was also influenced by the fact that he suffered from Charcot-Marie-Tooth syndrome, a disease causing muscular atrophy in his feet and legs.  It was his understanding that while his daughters were unlikely to inherit the condition, a male child would be at risk.  (He was in fact wrong on the latter aspect.)  He was content, therefore to limit his family to the two daughters he had."

44. In 1967, when Mrs Melchior was aged 15, she underwent an appendectomy.  The surgical notes indicated that, in the course of the operation, her right ovary was found to be filled with a blood clot and was removed; there was no abnormality in the left ovary or either fallopian tube and those organs were left intact.  Mrs Melchior had been told by her mother that an ovary had been removed.

45. Mrs Melchior and her husband brought their action in both tort and contract.  There appears to have been no basis for any action in contract by Mr Melchior.  The trial judge found that, whilst Mrs Melchior's initial consultation with Dr Cattanach had been as a private patient, she had been admitted to hospital for the sterilisation surgery as a public patient.  It was not suggested that at that latter stage there had existed any contractual relationship between Dr Cattanach and either plaintiff.  Accordingly, the trial judge determined the plaintiffs' claims as issues in tort.  The State admitted its vicarious liability for any negligence established against Dr Cattanach.

46. Holmes J found that Dr Cattanach was negligent after the sterilisation procedure in failing to inform Mrs Melchior of various matters.  The first was that the oral history she gave of the removal of the right fallopian tube in 1967 had not been positively confirmed during the sterilisation procedure.  The second was that, if the fallopian tube were present, there was a ten-fold increase in the risk of her falling pregnant than was usual after the performance of the sterilisation procedure.  The third was that an available procedure, an hysterosalpingogram, was likely to disclose the existence of a functioning fallopian tube.

47. The Court of Appeal upheld the finding of negligence against Dr Cattanach and the conclusion that his negligence was the probable cause of Mrs Melchior's pregnancy.

48. The award of damages had three components.  The first was an award in favour of Mrs Melchior of $103,672.39 consisting of damages for her pain and suffering in respect of the pregnancy and birth, the effect on her health (including a supervening depression), lost earning capacity (past and future), various hospital, medical, pharmaceutical and travel expenses (both past and future), the cost of maternity clothes and damages described as Griffiths v Kerkemeyer[51] damages for care that she might need.  The second was an award to Mr Melchior of $3,000 for loss of consortium in accordance with the remedy allowed in Toohey v Hollier[52] for all practical, domestic disadvantages suffered by a husband in consequence of the impaired health or bodily condition of his wife.  The third was an award in favour of Mr and Mrs Melchior for $105,249.33 for the past and future costs associated with raising and maintaining their child until he reaches the age of 18.

    [51](1977) 139 CLR 161.

    [52](1955) 92 CLR 618.

49. No appeal was taken to the Court of Appeal respecting the first and second categories of damages.  However, with respect to the third category, Dr Cattanach and the State contended that Holmes J had erred in law in allowing any costs for the rearing of the child and that her Honour had erred in failing to apply the decision of the House of Lords in McFarlane v Tayside Health Board[53].  Davies JA, who, with McMurdo P, constituted the majority, stated the issue thus arising as follows:

    "Should the parents of a healthy child, born in consequence either of a negligently performed sterilization operation or of negligent advice or of a negligent omission to advise as to the consequences of that operation be entitled to recover from the negligent doctor the costs of reasonable maintenance of the child during his or her minority?"

    The majority of the Court of Appeal answered that question in the affirmative and dismissed the appeal with costs.

    [53][2000] 2 AC 59.

50. Upon an undertaking by Dr Cattanach and the State that they would not seek to disturb any costs orders made in the courts below and would pay Mr and Mrs Melchior's costs of an appeal to this Court, this Court granted special leave limited to one ground.  This is whether the Court of Appeal erred in holding that damages were recoverable by Mr and Mrs Melchior for the reasonable costs of raising and maintaining their child.  Thus, if it be held in this Court that the Court of Appeal was not in error, the appeal fails, and no question arises respecting quantum or the manner in which it was determined.

51. The appellants would be liable under ordinary principles for the foreseeable consequences of Dr Cattanach's negligence.  There was no finding of contributory negligence.  Questions of remoteness or insufficient causal connection between the breach of duty by Dr Cattanach and the claimed loss did not arise.  Nor was reliance placed upon any supposed illegality or limitation or objection in the policy of the law respecting the performance of sterilisation procedures.  Further, in the course of argument in this Court, the appellants expressly disavowed any ground of appeal that, rather than an award in favour of both respondents, there should have been an award only in favour of Mrs Melchior, to the exclusion of Mr Melchior.

52. In Rees v Darlington Memorial Hospital NHS Trust[54], Robert Walker LJ said of McFarlane that, while their Lordships "disavowed any intention of deciding the case on the grounds of public (or social) policy, there is a strong moral element in the basis of the decision".

    [54][2003] QB 20 at 30.

53. In McFarlane[55], Lord Slynn of Hadley said that a doctor undertaking a duty of care in regard to the prevention of pregnancy does not assume responsibility for economic losses imposed on or accepted by parents in bringing up a child.  To that, Hale LJ responded in Parkinson v St James and Seacroft University Hospital NHS Trust[56]:

    "Given that the doctor clearly does assume some responsibility for preventing conception, it is difficult to understand why he assumes responsibility for some but not all of the clearly foreseeable, indeed highly probable, losses resulting."

    Against that background of current authority in the United Kingdom, the appellants took another tack in their submissions.

    [55][2000] 2 AC 59 at 76.

    [56][2002] QB 266 at 289.

54. The appellants' primary submission to this Court is that there can be no award in damages for the cost of rearing and maintaining a healthy child who would not have been born but for the negligent failure of a gynaecologist to give certain advice.  Further, and in the alternative, it is submitted that any such award of damages should be limited in some way, in particular by treating the arrival of the healthy child as a benefit to be set off against the damages.

55. The appellants based these submissions upon the propositions that, as a matter of the policy of the law, the birth of a healthy child is not a legal harm for which damages may be recovered, and that this result would follow whether action was brought in tort or contract.  This policy of the law, the appellants submitted, reflects "an underlying value of society in relation to the value of human life".  In several of the State jurisdictions in the United States, in decisions upon which the appellants rely, the denial of awards of damages for the expense of raising an unwanted, healthy child has been based upon a public policy against "meddling" with "the concept of life and the stability of the family unit" including apprehended harm to a child upon later learning that the money for its nurture has been provided by damages recovered in a "wrongful birth" action[57].

    [57]Wilbur v Kerr 628 SW 2d 568 at 570‑571 (1982); Boone v Mullendore 416 So 2d 718 at 721‑723 (1982); MA v United States 951 P 2d 851 at 855 (1998).

56. It can hardly be disputed that, in myriad ways, the law reflects a concern with the value of life and the welfare of infant children.  But, against that general background, even in the exercise of the parens patriae jurisdiction, hard choices are to be made rather than broad statements repeated.  The matters considered by the Court in Marion's Case[58] provide a recent example.  It was there held by majority that the Family Court of Australia had jurisdiction to authorise the carrying out of a sterilisation procedure upon the intellectually disabled child in question, but that the joint guardians of the child had no power to act in the matter without a court order[59].  On the other hand, Brennan J (one of the minority) was of the opinion that neither parents, guardians nor the court had power to authorise the non‑therapeutic sterilisation of intellectually disabled children[60].

    [58]Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

    [59](1992) 175 CLR 218 at 325‑326.

    [60](1992) 175 CLR 218 at 285.

57. 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 the breach of duty by Dr Cattanach.  There may be a temptation, yielded to in some of the many cases in other countries to which we were referred in argument, to treat the arrival of the third child of Mr and Mrs Melchior as a "wrongful birth" and thus as the wrong inflicted upon Mr and Mrs Melchior; but this means attention is directed away from the remedies available to the parents in respect of the breach of duty by Dr Cattanach.

58. In Brodie v Singleton Shire Council[61], Gaudron, McHugh and Gummow JJ referred to the use of the term "immunity" in various areas of tort law to indicate a protection against action in respect of rights and duties which otherwise exist in the law.  In various instances referred to in that passage, including the position of barristers and liability for straying animals, the protection is expressed as the negation of the existence of a duty of care and is founded upon particular views of public policy.  Similarly, public policy negates the existence of a duty of care in respect of the negligent acts of a member of the Australian armed forces if "the matters complained of formed part of, or an incident in, active naval or military operations against the enemy"[62].

    [61](2001) 206 CLR 512 at 555‑556 [94].

    [62]Shaw Savill and Albion Co Ltd v The Commonwealth (1940) 66 CLR 344 at 362 per Dixon J. See also Groves v The Commonwealth (1982) 150 CLR 113 at 117, 122; Mulcahy v Ministry of Defence [1996] QB 732 at 744‑746, 750‑751.

59. The protection contended for in the present case would not operate in that way.  The subject of the protection is recovery of a particular head of damages for an admitted breach of duty.  But, that limitation notwithstanding, there is, as Callinan J indicates in his reasons at [295], a judicial aversion to the enjoyment of special privilege or advantage in litigation unless strong reason for its retention (as was the issue in Brodie) or creation (the present case) can be demonstrated.

60. In Smith v Jenkins[63], Windeyer J observed that "public policy" in relation to the common law of torts is not to be thought of as like that public policy which invalidates contracts and, one might add, certain trusts and conditions attached to voluntary dispositions by will or settlement.  In those areas, the starting point has been the favour with which the law has looked upon the right of private contract and the performance of contracts, and upon the freedom of disposition of property, by dispositions inter vivos and testamentary[64].  Countervailing policies matured by the long course of judicial decision into detailed doctrines.

    [63](1970) 119 CLR 397 at 418.

    [64]See Hill v Van Erp (1997) 188 CLR 159 at 223‑224; Corbin on Contracts, Interim Edition, vol 15, §§1375‑1376.

61. Some (such as the restraint of trade doctrine, the rules against perpetuities, and the rules against contractual restraints upon alienation considered in Hall v Busst[65]) are based upon economic notions.

    [65](1960) 104 CLR 206 at 217‑218, 224‑225, 245‑246.

62. Other policies protect and maintain the proper relationship between the citizen and the branches of government[66].  The authorities here include the great case of Egerton v Earl Brownlow[67] concerning the importuning of the advisers of the Crown to secure the bestowal of honours by the Crown and the decisions of this Court respecting the "lobbying" of legislators, Ministers and public officers in Wilkinson v Osborne[68], Horne v Barber[69] and Wood v Little[70].  Other cases are protective of the authority of the courts.  They include the treatment in Brooks v Burns Philp Trustee Co Ltd[71] of covenants to oust the jurisdiction of the courts, the reservation identified in Regie National des Usines Renault SA v Zhang[72] respecting the maintenance in Australian courts of actions for certain foreign wrongs, and the rule, applied in Hunter v Chief Constable of the West Midlands Police[73], that it is against the policy of the law to permit a civil action for damages to be used for a collateral attack on a final decision of a criminal court of competent jurisdiction.

    [66]See Farnsworth on Contracts, 2nd ed (1998), vol 2 at 9‑10.

    [67](1853) 4 HLC 1 [10 ER 359].

    [68](1915) 21 CLR 89.

    [69](1920) 27 CLR 494.

    [70](1921) 29 CLR 564.

    [71](1969) 121 CLR 432.

    [72](2002) 76 ALJR 551 at 563 [60]; 187 ALR 1 at 17.

    [73][1982] AC 529.

63. Further, the division of opinion between Dixon CJ and Windeyer J on the one hand, and Kitto J on the other, in Church Property Trustees, Diocese of Newcastle v Ebbeck[74] as to the tendency of a condition in a will, respecting religious faith, to promote domestic discord between spouses, at bottom concerns the policy of the law respecting family relationships.  So does the common law rule that there is no publication for the purposes of the law of defamation when one spouse transmits defamatory matter to the other spouse[75].

    [74](1960) 104 CLR 394. See also the remarks of Lord Wilberforce in Blathwayt v Baron Cawley [1976] AC 397 at 425‑426.

    [75]Wennhak v Morgan (1888) 20 QBD 635 at 639 per Manisty J:

    "[W]ould it be well for us to lay down now that any defamation communicated by a husband to a wife was actionable?  To do so might lead to results disastrous to social life".

64. The appellants' submissions would bring this case within that general area respecting family relationships.  But several points should be made immediately.  First, the general considerations advanced by the appellants have not, as in the contract and disposition of property cases, matured into a coherent body of legal doctrine.  No doubt that is not a fatal obstacle.  The policy of the law cannot be static.  Yet the novelty of the outcome for the present case of the appellants' submissions calls for a more careful scrutiny than would be required where there was a developed body of legal principle directly relevant.

65. Secondly, this is a case in tort.  Further consideration of the remarks of Windeyer J in Smith v Jenkins[76] is appropriate.  His Honour, after speaking of contract, turned to tort, observed that public policy "after all is the bedrock foundation on which the common law of torts stands" and continued[77]:

    "Here the question is different.  It seems to me a mistake to approach the case by asking whether the plaintiff is precluded by considerations of public policy from asserting a right of action for negligence.  The proper inquiry seems to me to be simply:  is there for him a right of action?  That depends upon whether in the circumstances the law imposed a duty of care; for a right of action and a duty of care are inseparable.  The one predicates the other.  Duty here does not mean an abstract and general rule of conduct.  It is not the duty to God and neighbour of the catechist's question.  It is a concept of the law, a duty to a person, which he can enforce by remedy at law.  Lord Atkin's famous generalizations need some qualifications and require some exceptions.  For instance, negligent misstatements are now actionable, but the duty of care in that field depends, it has been held, not simply on foreseeability of harm but on a special relationship between the parties.  If a special relationship be in some cases a prerequisite of a duty of care, it seems to me that in other cases a special relationship can exclude a duty of care."

    Barwick CJ and Owen J spoke to similar effect[78].

    [76](1970) 119 CLR 397 at 418. See further Gollan v Nugent (1988) 166 CLR 18 at 46‑48, where it was held in respect of an action for trespass to goods and conversion that the law does not deny an owner's right to possess property merely because of an intention to carry on criminal conduct.

    [77](1970) 119 CLR 397 at 418. See also Gala v Preston (1991) 172 CLR 243 at 249‑250, 263, 270‑271, 291‑292.

    [78](1970) 119 CLR 397 at 400, 425 respectively.

66. It is here that the case for the appellants encounters difficulty.  Duty, breach and damage are all conceded.  The interest of the respondents which the law of negligence protected[79] in respect of the negligent misstatement or omission by Dr Cattanach was that of each of the respondents in the planning of their family or, as it has been put in the United States, in their reproductive future.  The injury to that interest had varied elements.  There were those matters reflected in the first award of some $103,000 to Mrs Melchior, but there were also those touching the responsibility the spouses incurred to rear their third child.  That responsibility was both moral and legal.  The Child Support (Assessment) Act 1989 (Cth) imposed obligations upon the parents of an "eligible child" who was under the age of 18 years[80].  It does not advance understanding greatly, one way or the other, to describe the expenditure required to discharge that obligation as "economic loss"[81].

    [79]Tame v New South Wales (2002) 76 ALJR 1348 at 1377‑1378 [168]-[175]; 191 ALR 449 at 489‑490; Grubb (ed), The Law of Tort, (2002), §§1.11‑1.13; Prosser and Keeton on Torts, 5th ed (1984) at 5‑6.

    [80]See ss 3, 4, 24; Luton v Lessels (2002) 76 ALJR 635 at 636 [4]-[7], 640‑642 [32]-[41], 650 [90], 659‑661 [152]-[175]; 187 ALR 529 at 530‑531, 537‑539, 550, 563‑566.

    [81]cf Perre v Apand Pty Ltd (1999) 198 CLR 180 at 204 [50], 218‑220 [100]-[105], 240‑242 [165]-[170], 330‑331 [430].

67. Nor is it correct to say that the damage that the respondents suffered was the parent-child relationship or the coming into existence of the parent-child relationship.  To do so is to examine the case from the wrong perspective.  In the law of negligence, damage is either physical injury to person or property or the suffering of a loss measurable in money terms or the incurring of expenditure as the result of the invasion of an interest recognised by the law.  The parent-child relationship or its creation no more constitutes damage in this area of law than the employer-employee relationship constitutes damage in an action per quod servitium amisit.  In the latter case, the employer suffers damage, for example, only when it is forced to pay salary or wages to its injured employee although deprived of the employee's services[82].  It does not suffer damage merely because its employee has been injured.  Similarly, for the purpose of this appeal, the relevant damage suffered by the Melchiors is the expenditure that they have incurred or will incur in the future, not the creation or existence of the parent-child relationship.  If, for example, their child had been voluntarily cared for up to the date of trial, they could have recovered no damages for that part of the child's upbringing.  And, if it appeared that that situation would continue in the future, then the damages they would be able to recover in the future would be reduced accordingly.

    [82]Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392.

68. The unplanned child is not the harm for which recompense is sought in this action[83]; it is the burden of the legal and moral responsibilities which arise by reason of the birth of the child that is in contention.  The expression "wrongful birth" used in various authorities to which the Court was referred is misleading and directs attention away from the appropriate frame of legal discourse.  What was wrongful in this case was not the birth of a third child to Mr and Mrs Melchior but the negligence of Dr Cattanach.

    [83]cf Weir, "The Unwanted Child", (2000) Cambridge Law Journal 238; "Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant", (1982) 68 Virginia Law Review 1311 at 1317.

69. The submissions by the appellants introduce notions of public policy not in formulating the relevant duty of care nor, in so far as they would have the reasoning apply also in contract, to strike at the bargain itself.  Rather, as remarked above, the appellants seek the proscription of a particular head of recovery of damages.  The ground advanced is that the policy of the law does not allow of any treatment as compensable harm of the third category of damages awarded by Holmes J.

70. In McFarlane[84], Lord Millett treated what was involved as the "admission of a novel head of damages"; this raised a matter "not solely a question of principle" because "[l]imitations on the scope of legal liability arise from legal policy".  His Lordship continued[85]:

    "Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both.  The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper.  It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases."

    [84][2000] 2 AC 59 at 108.

    [85][2000] 2 AC 59 at 108.

71. In this Court, the respondents dispute the first proposition that what was involved in the third category of the award made by Holmes J was a novel head of damages.  They refer to the statement of general principle by McHugh J in Nominal Defendant v Gardikiotis[86]:

    "When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred[87].  The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'[88].  Consequently, when a plaintiff asserts that, but for the defendant's negligence, he or she would not have incurred a particular expense, questions of causation and reasonable foreseeability arise.  Is the particular expense causally connected to the defendant's negligence?  If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred?"

    [86](1996) 186 CLR 49 at 54.

    [87]Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 at 423, 425; Chapman v Hearse (1961) 106 CLR 112 at 122.

    [88]Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39.

72. Both questions, posed with respect to the third category of the award at trial in the present case, should be answered in the affirmative.  Indeed, later in his speech in McFarlane, Lord Millett had discounted any distinctions between pure and consequential economic loss, saying[89]:

    "The distinction is technical and artificial if not actually suspect in the circumstances of the present case, and is to my mind made irrelevant by the fact that Catherine's conception and birth are the very things that the defenders' professional services were called upon to prevent.  In principle any losses occasioned thereby are recoverable however they may be characterised."

    [89][2000] 2 AC 59 at 109.

73. In addition, notwithstanding what had been said by Lord Millett in McFarlane (in the first passage set out above), the appellants in the present case displayed no enthusiasm for a distinction between "legal policy" and "public policy"; they rightly preferred the term "policy of the law".  In the course of giving his answers to the questions put by the House of Lords in Egerton, Cresswell J said[90]:

    "I have already observed that I presume we are not asked our opinions as to public policy, but as to the law; and I apprehend that when in our law‑books of reports we find the expression, it is used somewhat inaccurately instead of 'the policy of the law.'  Thus, contracts in restraint of trade have been said to be illegal as against public policy, but in truth, it is part of the common law that trade shall not be restricted, as was held in the Year Book[91]; and unreasonable contracts in restraint of trade violate the policy of that part of the common law, and are therefore illegal.  So, in bankruptcy, the object and policy of the bankrupt-laws is to make a rateable distribution of the bankrupt's property amongst all his creditors, and preferences given to particular creditors by a trader in contemplation of bankruptcy are in violation of the policy of the bankrupt-laws, and are therefore held to be fraudulent and void."

    More recently, Lord Radcliffe began a lecture on the subject, perhaps inevitably titled "Riding an Unruly Horse"[92], with the statement[93]:

    "Every system of jurisprudence tends to produce in the course of its own development a conception of a 'public policy' or 'public interest' which on occasions overrides its normal recognition and enforcement of legal rights and interests."

    [90](1853) 4 HLC 1 at 87 [10 ER 359 at 394‑395].

    [91]2 H 5, pl 26.

    [92]See Richardson v Mellish (1824) 2 Bing 229 at 252 [130 ER 294 at 303] and the other equine metaphors collected by Kirby J in Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 at 232.

    [93]Radcliffe, The Law & Its Compass, (1960) at 37.

74. Much of the maturation of the policy of the law to which reference has been made above took place in England in cases decided at a period in which the body of statute law was comparatively small, representative and responsible government as now understood was in its infancy, and there was no universal franchise.  Lord Diplock made the point, with particular reference to the development of the criminal law, in R v Knuller (Publishing, Printing and Promotions) Ltd[94].  Much has changed.  Thus, whether by asserting a general superintendence of morality or otherwise, the courts today are no longer able to create common law criminal offences[95].

    [94][1973] AC 435 at 473‑474.

    [95]R v Rogerson (1992) 174 CLR 268 at 304; R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435 at 457‑458, 464‑465, 490, 496.

75. Hence the force of Lord Radcliffe's further remarks[96]:

    "Public policy suggests something inherently fluid, adjusted to the expediency of the day, the proper subject of the minister or the member of the legislature.  The considerations which we accept as likely to weigh with them are just not those which we expect to see governing the decisions of a court of law.  On the contrary, we expect to find the law indifferent to them, speaking for a system of values at any rate less mutable than this."

    Lord Atkin spoke to similar effect in Fender v St John-Mildmay[97], as earlier had Isaacs J in Wilkinson v Osborne[98] and Winfield in his influential essay, "Public Policy in the English Common Law"[99].

    [96]Radcliffe, The Law & Its Compass, (1960) at 43‑44.

    [97][1938] AC 1 at 10‑11.

    [98](1915) 21 CLR 89 at 97.

    [99](1928) 42 Harvard Law Review 76 at 95‑99.

76. What was put by Isaacs J in Wilkinson[100] may be adapted to the present case by posing two questions.  First, are the underlying values respecting the importance of human life, the stability of the family unit and the nurture of infant children until their legal majority an essential aspect of the corporate welfare of the community?  Secondly, if they are, can it be said there is a general recognition in the community that those values demand that there must be no award of damages for the cost to the parents of rearing and maintaining a child who would not have been born were it not for the negligent failure of a gynaecologist in giving advice after performing a sterilisation procedure?

    [100](1915) 21 CLR 89.

77. Allowing an affirmative answer to the first question, nevertheless the answer to the second must be that the courts can perceive no such general recognition that those in the position of Mr and Mrs Melchior should be denied the full remedies the common law of Australia otherwise affords them.  It is a beguiling but misleading simplicity to invoke the broad values which few would deny and then glide to the conclusion that they operate to shield the appellants from the full consequences in law of Dr Cattanach's negligence.  The present is one of that class of case identified by Viscount Haldane in Rodriguez v Speyer Brothers[101]; the question is whether the underlying values which the appellants invoke are "so definite that [they] must be applied without reference to whether a particular case involves the real mischief to guard against which [they were] originally introduced"[102].

    [101][1919] AC 59 at 77.

    [102][1919] AC 59 at 77.

372. In this case the trial judge, McMurdo P and Davies JA each thought that knowledge gained by a child of litigation in which attempts were being or had been made by its parents to recover the costs of its upkeep from a defendant who negligently failed to prevent it from coming into existence was not damaging to that child.  On the other hand, Thomas JA thought that it was.

373. Thomas JA said that among the reasons which, considered as a whole, he saw as providing "a strongly persuasive and rational basis" for denying a recovery of rearing costs were the "protection of the mental and emotional health of the child" and "the undesirability of a child learning that the court has declared its birth to be a mistake"[566].  Many other lawyers have shared Thomas JA's opinion.

     [566][2001] QCA 246 at [169].

374. United States.  In Sherlock v Stillwater Clinic[567], a case permitting recovery of rearing costs subject to an offset for the benefits which the child brought, the majority of the Supreme Court of Minnesota was troubled by "the psychological consequences which could result from litigating such claim".  They concluded[568]:

     "It is ... our hope that future parents and attorneys would give serious reflection to the silent interests of the child and, in particular, the parent-child relationships that must be sustained long after legal controversies have been laid to rest."

     These passages reflect an assumption, on the part of judges favouring recovery of rearing costs, that litigation by parents to recover rearing costs can be damaging to the unplanned children involved. 

     [567]260 NW 2d 169 at 176 (Minn, 1977).

     [568]260 NW 2d 169 at 177 (Minn, 1977). As Thomas JA said, this "appears to be something of a pious hope … [I]t would be unrealistic to rely on litigants to hold back": [2001] QCA 246 at [176].

375. In Wilbur v Kerr[569] the Supreme Court of Arkansas said:  "the child's welfare has troubled all who have examined the problem."  The Court refused recovery of rearing costs from a doctor who negligently performed a vasectomy for the following reasons[570]:

     "It is a question which meddles with the concept of life and the stability of the family unit.  Litigation cannot answer every question; every question cannot be answered in terms of dollars and cents.  We are also convinced that the damage to the child will be significant; that being an unwanted or 'emotional bastard', who will some day learn that its parents did not want it and, in fact, went to court to force someone else to pay for its raising, will be harmful to that child.  It will undermine society's need for a strong and healthy family relationship.  We have not become so sophisticated a society [as] to dismiss that emotional trauma as nonsense."

     [569]628 SW 2d 568 at 571 (Ark, 1982).

     [570]The relevant passage has been frequently quoted or referred to since:  eg Boone v Mullendore 416 So 2d 718 at 721-722 (Ala, 1982); McKernan v Aasheim 687 P 2d 850 at 855-856 (Wash, 1984).

376. In Boone v Mullendore[571] the Supreme Court of Alabama said that to award as damages the cost of raising a child born after a negligent failure to remove a mother's fallopian tubes "could have a significant impact on the stability of the family unit and the subject child".  The Court referred to:

     "the possible harm that can be caused to the unwanted child who will one day learn that he not only was not wanted by his or her parents, but was reared by funds supplied by another person.  Some authors have referred to such a child as an 'emotional bastard' in a realistic, but harsh, attempt to describe the stigma that will attach to him once he learns the true circumstances of his upbringing."

     [571]416 So 2d 718 at 721-722 (Ala, 1982).

377. In McKernan v Aasheim[572] the Supreme Court of Washington en banc said:

     "[T]he simple fact that the parents saw fit to allege their child as a 'damage' to them would carry with it the possibility of emotional harm to the child.  We are not willing to sweep this ugly possibility under the rug by stating that the parents must be the ones to decide whether to risk the emotional well being of their unplanned child."

     [572]687 P 2d 850 at 855-856 (Wash, 1984).

378. In University of Arizona Health Sciences Center v Superior Court of the State of Arizona[573] Gordon VCJ said:  "Although later discovery of their parents' feelings toward them may harm only a few children, I think a few are too many." 

     [573]667 P 2d 1294 at 1302 (Ariz, 1983).

379. In Burke v Rivo[574] O'Connor J, in whose dissent Nolan and Lynch JJ concurred, said that the recovery of rearing costs "would encourage litigation harmful to families − litigation designed to produce the result, ultimately to be discovered by the child, that he or she was supported not by the parents, because they did not want him or her, but by an unwilling stranger". 

     [574]551 NE 2d 1 at 8 (Mass, 1990).

380. Some American courts have endeavoured to reduce the perceived risk of harm in various ways.  One is to address a message to the child in the judgment stating that its parents' complaint does not imply "any present rejection or future strain upon the parent-child relationship" or amount to rejection of the child as a person, but simply represents an endeavour to test the limits of the doctor's liability[575].  Another technique is to abstain from naming the parents as parties[576].  These techniques may or may not be successful, but they do disclose an assumption that there is a real risk of harm if they are not employed.

     [575]See Rieck v Medical Protective Co of Fort Wayne, Ind 219 NW 2d 242 at 245-246 (Wis, 1974); Coleman v Garrison 349 A 2d 8 at 14 (Del, 1975). 

     [576]Anonymous v Hospital 366 A 2d 204 (Conn, 1976).

381. England.  In Udale v Bloomsbury Area Health Authority[577] Jupp J refused damages for the cost of rearing a child born after a failed sterilisation operation.  He referred with favour to numerous arguments against recovery, one of which was[578]:  "It would be intolerable ... if a child ever learned that a court had publicly declared him so unwanted that medical men were paying for his upbringing because their negligence brought him into the world."   He said[579]:  "It is highly undesirable that any child should learn that a court has publicly declared his life or birth to be a mistake − a disaster even − and that he or she is unwanted or rejected.  Such pronouncements would disrupt families and weaken the structure of society." 

     [577][1983] 1 WLR 1098; [1983] 2 All ER 522.

     [578][1983] 1 WLR 1098 at 1106; [1983] 2 All ER 522 at 529.

     [579][1983] 1 WLR 1098 at 1109; [1983] 2 All ER 522 at 531.

382. Scotland.  In McFarlane v Tayside Health Board Lord Gill said[580]:  "[M]ost people would find it unseemly that … the child concerned might later learn not only that his birth was a consequence of negligence, but that his parents raised an action that implied that they would have preferred that he had not been born."

     [580]1997 SLT 211 at 217.

383. New South Wales.  In CES v Superclinics (Australia) Pty Ltd[581], a case in which a mother sued medical practitioners who had negligently failed to diagnose her pregnancy and deprived her of the opportunity to have an abortion, Meagher JA said, in a judgment denying claims by the mother in relation to pain and suffering and lost income (as to which he was in dissent), and by both parents in relation to the expense of rearing the child (as to which he was not in dissent):

     "Having given birth to a healthy child in August 1987, the plaintiff claimed at a court hearing in December 1993 that the child, then over six years old, was unwelcome, a misfortune, perhaps a disaster, certainly a head of damages.  For all I know the child was in court to witness her mother's rejection of her.  Perhaps, on the other hand, the plaintiff had the taste to keep her child out of court.  Even if that be so, it does not mean the unfortunate infant will never know that her mother has publicly declared her to be unwanted.  When she is at school some [âme] charitable – perhaps the mother of one of her 'friends' – can be trusted to direct her attention to the point.  That a court of law should sanction such an action seems to me improper to the point of obscenity."

     [581](1995) 38 NSWLR 47 at 86.

384. Adoption regime.  The confidentiality which surrounds adoption suggests a perception by the legislature of the damage which can flow to children from learning that their parents regard them as a burden. 

     "Inasmuch as both the natural and adoptive parents are aware of the adoption, this confidential air surrounding the proceedings appears to be primarily designed to protect the child from either public or, in the case of a young child, his own knowledge of the adoption.  There are several reasons why it is desirable that a young child should not know of his adoption.  Among these are that he will feel natural, that he will not know he was unwanted by his natural parents, and that he will not feel discriminated against in his adoptive home because he is not a natural child.  Knowledge of the adoption, however, would not seem nearly as likely to cause emotional harm as knowledge of the sterilization claim, since the adopted child would have no reason to suspect that his parents did not want him although they may be adoptive parents.  But knowledge of the adoption would give the child knowledge that his natural parents did not want him and considered him a burden which is the precise thing that the parents in the instant case are claiming, and in this respect, knowledge of both may be considered equally likely to cause emotional injury to the child and, therefore, objectionable."[582]

     [582]RJL, "The Birth of a Child Following an Ineffective Sterilization Operation As Legal Damage", (1965) 9 Utah Law Review 808 at 812 n 23. 

385. The Court of Appeal's reasoning.  In the Court of Appeal McMurdo P said that there were two sound answers to arguments of that kind[583]:

     "First, an unwanted or unplanned pregnancy does not mean that the child when born is not cherished by the family.  Such births are a common enough occurrence, although most are not caused by established medical negligence.  It is only the financial and social burden arising from the negligence that was unwanted, not the child that is consequently born ...  The fact that a child born in such circumstances is regarded by parents and family as a blessing is no reason to exclude [scil recovery of] the moderate and reasonable economic loss caused to the family. 

     Second, in Australian society, we have become accustomed to claimants pursuing tortious claims against insured friends and relatives; we are no longer shocked when a husband sues his wife in a motor vehicle accident case for damages for personal injuries, children sue parents for whom they work when injured in the work place or students sue their school for damages arising from negligence.  What then is wrong with a parent or parents claiming damages for raising a child conceived because of medical negligence; this is no criticism of the blameless child but is a recognition of the parents' entitlement to economic loss suffered through the appellants' negligence."

     [583][2001] QCA 246 at [59]-[60].

386. Davies JA's answer to this argument was[584]:

     "[I]t is said that the bringing of such a claim may detrimentally affect the relationship between the parents and the child and may detrimentally affect the psychological well-being of the child.  On the assumption that the bringing of such a claim does not involve any assessment of the non-financial benefits and burdens of bringing up the child, I do not see how it can have any such effect.  The bringing of any claim for damages by the parents, here the claims for pain, suffering and loss of amenities by the first respondent and the second respondent's claim for loss of consortium, disclose the fact that the conception was unwanted.  In any event an unwanted conception is not uncommon and I think it unlikely that the disclosure of that fact would be likely to harm the relationship or the well-being of the child.  Moreover the addition of a financial claim for the support of the child with its attendant financial benefit to the family and the child is, if successful, more likely to be something for which the child will be grateful than a matter which he or she will regret."

     [584][2001] QCA 246 at [97].

387. The trial judge in this case took the same approach, and added[585]:

     "To suppose that parents, because they cannot recover damages, will never mention to their child the misfortune which brought about his or her conception is unrealistic; and the greater the economic burden placed on the family the more probable such an outcome."

     [585](2001) Aust Torts Rep ¶81-597 at 66,629 [53].

388. This reasoning has been employed in earlier cases[586]. 

     [586]Custodio v Bauer 59 Cal Rptr 463 at 477 (1967); Boone v Mullendore 416 So 2d 718 at 725 (Ala, 1982); Flowers v District of Columbia 478 A 2d 1073 at 1079 (DC, 1984); Thake v Maurice [1986] QB 644 at 667; Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012 at 1021, 1025; Burke v Rivo 551 NE 2d 1 at 4-5 (Mass, 1990); Marciniak v Lundborg 450 NW 2d 243 (Wis, 1990); Administrator, Natal v Edouard 1990 (3) SA 581 at 592 (AD); CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 75; and McFarlane v Tayside Health Board [2000] 2 AC 59 at 75.

389. The majority reasoning does not give sufficient weight to the argument turning on the risk of harm to the child.  It is convenient to examine successively various relevant strands in that reasoning. 

390. No risk of harm?  The proposition that there is no risk of harm at all is extremely questionable.  That proposition has been disputed by many judges.  And the proposition is inconsistent with the assumptions underlying adoption legislation.

391. Unplanned pregnancies generating litigation.  Even if McMurdo P and Davies JA are correct in saying that unwanted or unplanned pregnancies are common, their commonness does not negate the potentiality of harm for particular children on learning the facts.  It is one thing to learn of an unplanned pregnancy which took place because the child was born too soon or because of casual contraceptive failure.  It is another thing to learn that not only did an unplanned pregnancy take place after the parents had resolved never to have children again, and had resorted to medical procedures causing considerable pain or discomfort and expense to ensure that outcome, but also that the parents were prepared to engage in litigation.  That litigation will have much at stake and is bound to be bitterly fought.  It is usually fought against a professional who is defending his or her reputation and possibly his or her continuing right to practise.  An uninsured professional will be seeking to protect his or her assets.  An insured professional will be attempting to prevent the levying of higher professional indemnity insurance premiums or the refusal of cover in future.  Further, if the professional is insured, the medical insurer is likely in modern conditions to be in a condition of some desperation.  If a hospital is joined, it will have every reason to resist the claim.  But even if the litigation is not fought with any particular bitterness, it will inevitably involve for the plaintiffs stress, expense, publicity and grave risks as to costs.  The litigation will reveal intimate details of the parents' matrimonial history and motivations.  It will reveal that the parents were attempting to shift to another set of shoulders the burden of fulfilling the parents' duty of paying for the child's rearing and the burden of funding the numerous expenditures flowing from motives other than bare duty.  Thus there is no close analogy between the position of a child which guesses or discovers that its birth has been unplanned and took place by reason of some contraceptive error or misfortune and the position of a child which learns that its parents were not only prepared to submit to some form of surgery in an endeavour to prevent birth forever, but also prepared to undertake the stresses, pains and risks of litigation to recover the costs of its upbringing and prepared publicly to ventilate in open court and in devastating detail the lengths to which they were prepared to go to prevent the birth.  In this very case, should Jordan ever read the judgments of the courts, or be told about their contents in detail, he will learn of his parents' decision that his mother should undergo a sterilisation operation to ensure that he would never be born, he will learn that his mother gave evidence that his birth was "a major disruption to the family", he will learn that it caused her to become "depressed and angry" and he will learn that she found his care "exhausting"[587].  In short, he will learn that, as McMurdo P said, "his conception was not regarded as a family blessing"[588].   He will also learn of the effects on her body which caused her to recover substantial sums independently of the head of damage under consideration.  He will learn that his birth was unusual in being preceded by the institution of proceedings in relation to his conception.  He will learn that his birth was unusual in being attended by experts summoned by both sides who were eager, by examining his mother's uterus outside the abdominal cavity, and by examining other organs, to ascertain how his mother's undesired pregnancy had come about[589].  The harm which may be suffered by children who learn that their birth was unplanned and took place for reasons other than third party negligence is not relevantly comparable with that which may be suffered by those who learn that their birth was allegedly the result of third party negligence resulting in litigation. 

     [587](2001) Aust Torts Rep ¶81-597 at 66,629 [51].

     [588][2001] QCA 246 at [58] n 91.

     [589][2001] QCA 246 at [113].

392. The cherished child/financial burden distinction.  McMurdo P drew a distinction between the "cherished" child whose arrival is a "blessing" and the "financial and social burden arising from the negligence" which caused the child to be born.  The distinction drawn by McMurdo P is less likely to be drawn by some children.  The determination of the parents, in pursuit of monetary compensation for the "financial and social burden", to reveal in public their private motivations and decisions and the pain and inconvenience which medical procedures caused, and to itemise to the last cent each piece of expenditure for the first eighteen years of the child's life or whatever longer period is relied on, is likely to impress the children with the "burden" rather than the "blessing" aspect of their existence.

393. Is only moderate and reasonable loss recoverable?  McMurdo P's characterisation of recoverable loss as being only "moderate" and "reasonable" corresponds, of course, with her preferred position on quantum generally.  That preference is based on worries which attract sympathy, but it is wholly unsound in law.  It is likely, however, that if the law permits recovery at all, damages will be sought in immoderate amounts which may become large to the point of being unreasonable.  If sought on a satisfactory evidentiary basis, those damages will have to be awarded.   

394. Analogy with suing schools?  While there is a sense in which schools are in loco parentis, there is no relevant analogy between the present problem and the phenomenon of pupils suing schools of the kind to which McMurdo P appealed.  The range of emotions ex-pupils have towards their schools is likely to be quite different from the range of emotions they have towards their parents. 

395. Analogy with suing friends or relatives for transport or work injuries?  There is no valid comparison between an injured spouse suing the other spouse whose negligent driving caused an accident or an injured child suing its parent for injuries sustained while working for the parent, on the one hand, and parents recovering the cost of rearing their child.  It is regrettably difficult for modern society to operate without some risk of injury on the roads or at work.  That is why there is statutory compulsion to insure against those risks and why there are statutory creatures to meet the claims if the obligation is not fulfilled.  The degree of fault entitling recovery in motor car accidents is very slight, and in the case of workers' compensation claims it is non-existent.  No bitterness or pain within families is likely to be caused by that type of litigation.  Children employed by their parents are likely to be of a sufficient age to avoid the kind of harm to younger children which is under discussion.  Litigation to recover the rearing costs of unplanned children is of a quite different kind from litigation against insured relatives or friends.

396. Wider implications of the argument.  Davies JA noted, importantly, that it is not only the bringing of a claim for rearing costs which may disclose to a child that its conception was unwanted:  disclosure of that fact can flow from litigation similar to the first plaintiff's claim for the first head of damages (pain, suffering and loss of amenities) and from litigation similar to the second plaintiff's claim for the second head of damages (loss of consortium).  He concluded that the claim for rearing costs could not be denied on the basis of disclosing unwanted conceptions, since they would be disclosed anyway by forms of litigation whose availability is not in question in this appeal.  The difficulty can, of course, be resolved by denying the availability of those forms of litigation in a case in which that is a live issue.  It could also simply be accepted as arising from a not unreasonable compromise under which those forms of litigation are permitted for particular reasons, but not litigation for child-rearing costs. 

397. Will the child perceive the damages as assisting its upbringing?  Davies JA's allusion to the fact that the damages awarded may help the parents to bring up the child does not in terms meet the difficulty raised in relation to possible damage to the child. 

398. For one thing, there is no obligation on the parents to spend the damages recovered to compensate for child-rearing costs in actually paying those costs.  There are considerable risks that in some cases the capital sum received as damages will be speedily dissipated rather than being spent steadily over time on the child's maintenance.  Even if in some cases the potential injury to the child can be nullified or palliated by the reflection that the money recovered was spent sensibly in advancing family interests, the fact is that in others it will not because the money will not be so spent. 

399. For another thing, the contention that the child is more likely to welcome than to regret the making of a successful financial claim, with its benefit to the child and the family as a whole, and that the "suit … is in no reasonable sense a signal to the child that the parents consider the child an unwanted burden"[590], is rational if the matter is approached entirely materialistically, but does not necessarily negate the risk of an irrational reaction from children who are not proceeding materialistically.  The reactions of children are often not rational, they often do not proceed materialistically, and they often understand conduct as sending adverse signals even if there is "no reasonable sense" in which it does. 

     [590]Marciniak v Lundborg 450 NW 2d 243 at 246 (Wis, 1990). 

400. Parental judgments of benefit.  The argument based on the risk of harm has been countered on occasions in the United States by saying, as the Supreme Judicial Court of Massachusetts said in Burke v Rivo[591]:  "it is for the parents, not the courts, to decide whether a lawsuit would adversely affect the child and should not be maintained".  The problem is that the parents are torn between conflicting forces.  Even if they perceive a risk that the litigation will harm the child, they have the strongest motives of self-interest to prosecute it, and also strong motives of duty to the child and its siblings to do so, and to seek to recover as much as they can from the defendant.  They are thus in a position of conflict between duty and interest, and to some degree in a position of conflict between duty and duty.  Those conflicts would be removed if the head of damages under discussion were not recoverable.

     [591]551 NE 2d 1 at 5 (Mass, 1990).

401. Actual expenditure of damages.  It follows almost inevitably from the straitened economic position of most citizens that expenditure at the best of times tends to exceed income, and that any windfalls that come along are not saved, but are very soon deployed to meet some pressing need.  Parents who received a capital sum by way of damages partly calculated by reference to the future costs of child-rearing would, if they behaved prudently, invest that sum so as to meet recurrent expenditures over the balance of the period for which the compensation was awarded.  But it is nearly inevitable that many will be tempted not to do that, but to spend it on urgent needs well before the time for particular expenditures has come.  Intra-family concord will not be advanced when children learn that the course described to the court for their education, maintenance and advancement in life was not in fact followed because the money awarded to finance that course had to be devoted to other claims thought at the time, no doubt rightly, to be more pressing.  If the parents' claim depended on a theory of expensive education being needed to fulfil high ambitions, the gap between the education offered and the standard achieved, the target being held out and the extent to which it was missed, may depress the unplanned child.  If the parents' claim depended on a luxurious style of life, the child may not be happy to learn of this after experiencing something less.

402. True and false claims about the child's weaknesses.  If the parents' claim depended on the need to spend money in order to overcome some physical or mental or emotional or character deficiency in the child, it is not likely to help the child to hear about this if the claim is not soundly based, and even less likely to help the child if it is soundly based. 

403. Conflicting views of parents on initiating proceedings.  Since the Court of Appeal upheld an award in favour of both parents, in that Court's contemplation it is apparently open to one to sue but not the other.  If one parent wishes to commence proceedings for substantial damages and another, fearing proceedings will harm the child, opposes that wish, the possibility of litigation plants seeds of discontent and discord between spouses.

     Conclusion

404. 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.  That possibility would tend to damage the natural love and mutual confidence which the law seeks to foster between parent and child.  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.  It would permit conduct inconsistent with the duty to nurture children. 

405. For those reasons, if there was a duty of care, it did not extend to the head of damage under consideration, and that head is not recoverable.

     Wrongful life cases

406. There is a fourth possible reason why the conclusion of the majority of the Court of Appeal is invalid.  It rests on an arguable inconsistency between permitting parents the right to recovery of damages, particularly rearing costs, in relation to the birth of an unplanned child and denying unplanned children the right to recovery of damages in relation to their own birth.          

407. Children may sue defendants, including professionals who have negligently caused them to suffer disabilities, whether by conduct before conception[592] or by conduct after conception but before birth[593].  But the law in
     England[594], Scotland[595], Canada[596], most American States[597] and Australia[598] prevents children suffering disabilities from suing negligent professionals responsible for their birth but not otherwise responsible for causing any harm which led to those disabilities. 

     [592]Kosky v The Trustees of the Sisters of Charity [1982] VR 961.

     [593]Watt v Rama [1972] VR 353; X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26.

     [594]McKay v Essex Area Health Authority [1982] QB 1166.

     [595]P's Curator Bonis v Criminal Injuries Compensation Board 1997 SLT 1180 at 1199 per Lord Osborne.

     [596]Arndt v Smith [1994] 8 WWR 568 at 573-575 [17]-[28] (BCSC); Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743 at 748 (Ont Ct (General Division)); Jones (Guardian ad litem of) v Rostvig (1999) 44 CCLT (2d) 313 (BCSC); Lacroix (Litigation Guardian of) v Dominique (2001) 202 DLR (4th) 121 (Man CA).

     [597]See the analysis of the authorities made by Studdert J in Edwards v Blomeley [2002] NSWSC 460 at [33]-[43].

     [598]eg Bannerman v Mills (1991) Aust Torts Rep ¶81-079; Edwards v Blomeley [2002] NSWSC 460; Harriton v Stephens [2002] NSWSC 461; Waller v James [2002] NSWSC 462.

408. In McFarlane v Tayside Health Board[599] Lord Steyn referred to the following passage from Trindade and Cane, The Law of Torts in Australia[600]:

     "[I]t might seem somewhat inconsistent to allow a claim by the parents while that of the child, whether healthy or disabled, is rejected.  Surely the parents' claim is equally repugnant to ideas of the sanctity and value of human life and rests, like that of the child, on a comparison between a situation where a human being exists and one where it does not."

     Lord Steyn said:  "In my view this reasoning is sound.  Coherence and rationality demand that the claim by the parents should also be rejected."

     [599][2000] 2 AC 59 at 83.

     [600]3rd ed (1999) at 434.

409. However, it is undesirable to deal with this issue in this case.  Lord Steyn's point was not developed by the defendants in this Court, and the plaintiffs did not deal with it. 

     Anomalies and implications

410. As was noted above, Davies JA in the Court of Appeal pointed out that if the mother can recover for pain and suffering and lost wages, and the father can recover for loss of consortium, but neither can recover for rearing costs, the outcome, particularly so far as it rests on the desire to avoid damage to the child, is not wholly rational.  If the child on hearing of any litigation in which its parents contended in the court that its birth was unwanted, is at risk of damage, that risk will equally exist whether the litigation is directed to the recovery merely in respect of the mother's pain and suffering and wage loss or whether it is directed also to the recovery of rearing costs.  Similarly, in Flowers v District of Columbia[601], Ferren J said:

     "It is not necessarily true that a child would be less likely to learn about litigation to recover the costs of the pregnancy … than about litigation to recover the costs of child-rearing.  Thus, the … concern that a child not learn he or she was unplanned must be premised on a belief that parents would keep secret a limited damage award, but not a complete damage award.  That is a dubious proposition."

     And as Faulkner J, sitting in the Supreme Court of Alabama, said in Boone v Mullendore[602]:

     "Will a child feel any less an 'emotional bastard' if its parents recover the damages permitted by the majority rather than full and complete damages?"[603]

     [601]478 A 2d 1073 at 1079 n 1 (DC, 1984).

     [602]416 So 2d 718 at 724-725 (Ala, 1982).

     [603]This criticism was also made in Burke v Rivo 551 NE 2d 1 at 4 (Mass, 1990); CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 75 per Kirby ACJ; and Thake v Maurice [1986] QB 644 at 667-668 per Peter Pain J.

411. This criticism has some force.  One partial answer is that the law may represent a justifiable compromise pursuant to which the mother recovers for losses closely connected with her bodily interests, but not otherwise, and in particular does not recover for economic losses in the form of rearing costs; this outcome could be aided by the fact that the child, its proposed activities and its capacities will play a much less central role in proceedings limited to that head of recovery.  Another answer is that if there is an irrationality, it points as much against any recovery by the parents at all as it does against a denial of recovery for rearing costs.  In logic, it may be that the entire claim should be dismissed.  That is, if the policy of protecting the child from knowledge that it was unwanted is crucial, that points against the mother recovering for her pain and suffering, lost income and expenses of birth; and against the father recovering for loss of consortium.

412. This latter approach would deny the existence of any duty of care at all.  The findings below and the narrowness of the grant of special leave to appeal necessarily compelled the defendants to concentrate analysis on the relatively narrow question whether the controversial head of damages is recoverable, and to abstain from any contention that there was no duty of care.  If attention is widened beyond the confines established by the procedural history of this case to the question whether there is a duty of care, there is much to be said for the answer:  "There is not"[604].  Arguably the case is one where, despite the reasonable foreseeability of the expenditure for which the plaintiffs claimed, "to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted"[605].  Arguably the case is one where to find a duty would cause the tort of negligence to "subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms"[606].  The legal principles and statutory provisions so impaired would be those which require parents to act in the best interests of their children.  The compromise solution has considerable attraction in that it impairs those principles and provisions much less than the total recovery solution, while meeting an unquestioned hurt of the mother's.  But these questions, and for that matter other fundamental questions, namely, what damages (if any) are recoverable in contract, and what rules apply to children said not to be "normal" or "healthy", must be left for a case in which a decision is necessary and in which specific argument is offered. 

     [604]However, there is little authority for that view, apart from the opinion of Meagher JA in CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47; but see Szekeres, By and Through Szekeres v Robinson 715 P 2d 1076 at 1078 (Nev, 1986) and McFarlane v Tayside Health Board 1997 SLT 211 at 214 per Lord Gill (damages not recoverable for distress of normal pregnancy and labour).

     [605]Sullivan v Moody (2001) 207 CLR 562 at 580 [53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

     [606]Sullivan v Moody (2001) 207 CLR 562 at 576 [42] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

     Orders

413. The appeal should be allowed.  In accordance with undertakings given by the defendants when special leave was granted, none of the costs orders made below should be disturbed, and the defendants should pay the plaintiffs' costs of the appeal. 

414. The following orders should be made.

     1.        The appeal is allowed.

     2.        The judgment of the Court of Appeal is set aside.

     3.In lieu thereof the appeal to the Court of Appeal is allowed to the following extent:  the judgment of Holmes J dated 23 August 2000 is varied by deleting paragraph 3 thereof ("The First and Second Defendant pay the First and Second Plaintiff the amount of $105,249.33"). 

     4.The appellants are to pay the respondents' costs of the appeal (including their costs of the special leave application).