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cattanach v melchior decision
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cattanach v melchior decision

cattanach v melchior decision

It was held by a majority of the High Court (Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent doctor could be held responsible for the costs of raising and maintaining a healthy child. Mr and Mrs Melchior claimed compensation from Dr Cattanach (amongst others) for the cost of raising and maintaining the child to age 18; for loss and damage caused by pregnancy and birth (Mrs Melchior), and for loss of consortium (Mr. Melchior). 2015/2016. The claim for ‘Loss of Consortium’ is a claim that enables recovery of compensation for the loss of contributions of the injured spouse to the household, care and affection, and sex. ga('send', 'pageview');

standably attracted great controversy (Cattanach v Melchior [2003]). The entitlement to “wrongful birth” damages has been recognised in Australia since the High Court’s 2003 decision in Cattanach v Melchior (Cattanach). In the decision of Cattanach v Melchior,2 the High Court decided that parents should be able to recover damages for the cost of raising an unplanned child who was born as a result of negligent advice about a sterilisation procedure. 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. Cattanach v Melchior and implications for health information managers James Cokayne Introduction The recent High Court ruling uphol ding a pri or deci sion to allow a mother to su e for the cost of rearing a child after having had a failed sterilisation has under-standably attracted great controversy (Cattanach v Melchior [2003]). It is only available in some states of Australia, and varies regarding who can claim (i.e. While performing the operation Dr Cattanach could see no evidence of a second fallopian tube and so assumed that Mrs Melchior's recollection was accurate. NB. Cattanach v Melchior 4 the incurring of expenditure as the result of the invasion of an interest recognised by the law. Mrs Melchior did not wish to continue taking oral contraceptives, and when her husband did not act on getting sterilized, she decided to undergo sterilisation herself. and blind. Cattanach v Melchior. If you are seeking legal advice in Australia, you may contact your local Community legal centre or find a solicitor via your state or territory's legal referral service, law society or business directories. By using this information, you acknowledge that Health Law Central, its principal, any contributors, contractors, or associates do not accept liability however arising, for any consequences of anything done or not done by a person in relation to the usage of and/or reliance upon (whether in whole or in part) the information provided here. A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. He also did not warn her that, if she was wrong about that, there was a risk that she might conceive. Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. The damages were to compensate for the cost of raising and maintaining a healthy child after a failed sterilisation. Mr and Mrs Melchior had two healthy children and had decided that they were happy with the size of their family and were not going to have any more. She consulted Dr. Cattanach and in doing so told him that when she was 15 her right fallopian tube had been removed. Cattanach v Melchior The case of Cattanach remains the leading common law authority on ‘wrongful birth’ in Australia. Justice and Other Legislation Amendment Act 2003, https://en.wikipedia.org/w/index.php?title=Cattanach_v_Melchior&oldid=945012930, All Wikipedia articles written in Australian English, Creative Commons Attribution-ShareAlike License, This page was last edited on 11 March 2020, at 08:32. Related documents. inCattanach v Melchior (‘Cattanach’)16 the High Court confi rmed that the past and future costs of raising and maintaining a child were recoverable.17 The parents’ relevant damage was ‘the expenditure that they have incurred or will 10 Ahern v Moore [2013] 1 IR 205, 220 [60] (Ryan J). While we strive to update the site regularly, there is no guarantee that the information contained in the site is accurate, up to date or without error. Mrs Melchior subsequently fell pregnant and gave birth to a healthy baby boy. The case is a controversial one attracting attention not only from lawyers but also the media and the general public. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. 248 Cattanach (HCA) (n 3 above) [161] (Kirby J); Bradfi eld (n 101 above), 314 (Bradfi eld being Resident Medical Offi cer, the Alfred Hospital, Melbourne). The majority (McHugh, Gummow, Kirby and Callinan JJ; (Gleeson CJ, Hayne and Heydon JJ dissenting) )) held that the liability of the doctor should be based on ordinary negligence principles. Intervening by leave were also the Solicitors-General for Western Australia and South Australia, arguing the same lines. It was held by a majority of the High Court (by McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent doctor could be held responsible for the costs of raising and maintaining a healthy child. It discusses the reasoning in each of the judgments and seeks to identify themes so as to explain the divide between the majority and minority. It discusses the reasoning in each of the judgments and seeks to identify themes so as to explain the divide between the majority and minority. 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. That case arose from The case … 4 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [39] (Gleeson CJ). Further, the Civil Liability Act 1936 (SA) Section 67 again has a very similar effect, though is expressed slightly differently. When Dr Cattanach performed the tubal ligation, what he saw appeared consistent with that history. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. Mrs Melchior told Dr Cattanach that when she was 15, her right ovary and right fallopian tube had been removed.

. Special leave was later granted for the defendants to appeal to the High Court exclusively on the issue of the award of damages for the cost of raising and maintaining a healthy child. cattanach v melchior I INTRODUCTION In the landmark decision of Cattanach v Melchior, [1] handed down on 16 July 2003, the High Court held, contrary to precedent in the United Kingdom and Canada, that the parents of a child born as a result of a doctor’s negligence are entitled to recover damages for the costs of raising the child until adulthood. She told the doctor… Mrs Melchior applied for damages for loss and damage caused by pregnancy and birth, Mr Melchior applied for damages for loss of consortium and they jointly applied for damages for the cost of raising and maintaining the child to majority. This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. This article critically reviews the High Court decision in light of the continental-European experience. These sections prevent a court from awarding damages for a financial loss suffered in rearing a healthy child. The claimant seeks to uphold the decision, but also claims the whole cost of bringing up the child, inviting the House to reconsider its decision in McFarlane. Researching Legal Remedies (BJU200) Academic year. The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). The question whether a doctor is under a legal duty to take care when treating a patient does not normally raise serious difficulties of principle. Cattanach v Melchior (2003) 215 CLR 1 Parties: Cattanach (appellant) Melchior (respondent) Facts: Mrs Melchior sought out the help of Dr Cattanach for a sterilisation. 1.3. Look up an issue relevant to you, or come back and read them all. A central information site that explains important health law concepts. If an internal link intending to refer to a specific person led you to this page, you may wish to change that link by adding the person's given name(s) to the link. If an internal link intending to refer to a specific person led you to this page, you may wish to change that link by adding the person's given name(s) to the link. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. The majorit y of the High Court. (b) Second, the decision of the majority in the High Court of Australia decision (on appeal from the Supreme Court of Queensland) in Cattanach v Melchior [2003] 215 CLR 1 (“Cattanach”) ought to be followed. The damages awarded were for the medical costs and pain and suffering associated with the unwanted pregnancy and childbirth and the costs of raising a child without disabilities until the child turned 18. m=s.getElementsByTagName(o)[0];a.async=1;a.src=g;m.parentNode.insertBefore(a,m) In this case, the mother underwent a sterilisation procedure. In the Supreme Court of Queensland, Holmes J held that the failure of Dr Cattanach to warn the Melchiors of their capacity to conceive and his negligent advice caused them to become parents of an unplanned child. This effectively prevents a decision awarding the same damages that were awarded in Cattanach v Melchior being awarded again in Queensland - however, the amendment does not prevent a successful … Comments. CASE SUMMARIES as per UNIT SYNOPSIS. Contemporary developments in Australia contrast markedly with those in the United Kingdom. Mr and Mrs Melchior claimed compensation from Dr Cattanach (amongst others) for the cost of raising and maintaining the child to age 18; for loss and damage caused by pregnancy and birth (Mrs Melchior), and for loss of consortium (Mr. Melchior). in Cattanach v Melchior. The case of Cattanach involved a pregnancy and birth following a failed sterilisation procedure. 2. awarded damages of $105,249.33 to the respond ents, as the appellants wer e. found guilty of negligence in causing them to have an unintended child. Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. Should you be looking for legal advice, please contact a registered legal practitioner (lawyer) where you live, who can advise you on matters specific to your circumstances. Course. She recalled having one ovary removed when she was fifteen years of age and that her fallopian tube had at that time also been removed. 2. Share. The High Court rejected the recent ruling of the House of Lords in McFarlane v Tayside Health Board and decided in favour of recovery by a majority of 4:3. Studdert J reasoned that the Certainly in Essex Area Health Authority (1982) Waller, the defendants allegedly failed Cattanach v Melchior (2003) 215 CLR QB 1166.

ga('create', 'UA-57678741-1', 'auto'); She is available for academic research and consultancy. Cattanach v Melchior: Principle, Policy and Judicial Activism 229 Court, Justice Heydon, noted approvingly: ‘The court over which Gleeson CJ, who is not sympathetic to judicial activism, presides, is generally, but not always, contracting [negligence law].’21 And yet the decision of the High Court in Cattanach, to which In 1992, Dr Stephen Cattanach performed a tubal ligation at Brisbane's Redland Hospital. Some time after the operation Mrs Melchior became pregnant by her husband, Craig Melchior and gave birth to the healthy baby Jordan. The case involved the birth of a healthy child following an unplanned pregnancy resulting … In this case, the mother underwent a … Cattanach v Melchior, an Australian court case; This page lists people with the surname Cattanach. Cattanach v Melchior, one of the lengthier and more controversial of the High Court’s recent decisions, will do nothing to stem the flow. Health Law Central and its contributors endeavor to keep up to date with the latest developments relevant to health law. It discusses the reasoning in each of the judgments and seeks to identify costs would extend if the claim were on from the English case of McKay v In the second case, that of Keeden brought by the parent. different basis. In 1992, Dr Stephen Cattanach performed a tubal ligation at Brisbane's Redland Hospital. Kerry Anne and Craig Melchior brought actions against, inter alia, Dr Cattanach for negligence. Please sign in or register to post comments. Please see the services page or submit your inquiry here. 1. 1. This effectively prevents a decision awarding the same damages that were awarded in Cattanach v Melchior being awarded again in Queensland - however, the amendment does not prevent a successful Wrongful Birth claim. The argument in medical cases is more likely to be about whether there has been a breach of the doctor's duty, or whether any breach was a cause of the harm of which the plaintiff complains. She is experienced in working with individuals, government, non-government and small and large business organisations. 1. Shortly after this decision, the Parliament of Queensland amended its Civil Liability Act, 2003 to prevent a court from awarding damages for the financial burden of rearing a healthy child. PDF RTF: Before Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ … In November 2003 the Queensland parliament passed the Justice and Other Legislation Amendment Act 2003. The Court pointed out that the ‘wrong’ or ‘legal harm’ for which damages are awarded is not the birth of the child, but the negligence of the doctor. As an experienced academic Professor Sonia Allan engages in research; submission writing; policy drafting; and education. C. Cattanach v Melchior . In November 2003 the Queensland parliament passed the Justice and Other Legislation Amendment Act 2003. Cattanach v Melchior: 2003. In the leading Australian High Court decision of Cattanach v Melchior [2003] HCA 38, the majority established that the parents of an unintended (but healthy) child were entitled to recover damages for the ordinary costs associated with raising the child. In the leading Australian High Court decision of Cattanach v Melchior [2003] HCA 38, the majority established that the parents of an unintended (but healthy) child were entitled to recover damages for the ordinary costs associated with raising the child. She recalled having one ovary removed when she was fifteen years of age and that her fallopian tube had at that time also been removed. The implications of this decision on what can now be claimed for through medi cal litigation are significant, and lawyers and doctors will extract from it lessons for their respective professions. (i[r].q=i[r].q||[]).push(arguments)},i[r].l=1*new Date();a=s.createElement(o), The political context within which the recent case law is situated is the gendered construction of the family and the denial of female reproductive autonomy. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. Young provides a good overview of the High Court’s decision.10 The summary of the various judgments in Cattanach below is modelled on Young’s approach, modified and expanded for present purposes. In Harriton v Stephens (2006) 226 ALR 391 (‘Harriton’) and Waller v James (2006) ALR 457 (‘Waller’) ‘wrongful life’ claims advanced by two disabled children were refused. He submitted that the High Court decision in the same matter, Cattanach v Melchior (2003) 215 CLR 1, also accepted that the claim for the cost of raising the child in that case was a separate and distinct claim for pure economic loss; see at 9, 12-13, 13-14, 26; paras [4], [14], [17]-[19] and [48]. Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. The decision governs what may be claimed in states that do not have legislation on the matter. Cattanach v Melchio [2003] HCA 38 215 CLR 1; 77 ALJR 1312; 199 ALR 131 16 Jul 2003 Case Number: B22/2002. The couple had planned their finances around bringing up two children. Mrs Melchior was awarded $103,672.39 for loss and damage caused by pregnancy, Mr Melchior was awarded $3,000 for loss of consortium and they were jointly awarded $105,249.33 for the cost of raising and maintaining the child. While the decision was reached by a narrow (four-to-three) majority only, the ruling affirmed a (two-to-one) decision by the Queensland Court of Appeal to award damages in the amount of $105,000. The State of Queensland and the defendant Dr Cattanach argued that the birth of a healthy child was not a harm and therefore could not be compensated; that the damages do not arise from a physical injury to the plaintiff; that such damages would open the floodgates to lawsuits; and that the benefit of raising a child may be greater than the cost, though it is immeasurable. In 1992 he had performed a tubal ligation on Kerry Melchior. Section 41 of that Act inserted new sections 49A and 49B into the Civil Liability Act 2003. It was held by a majority of the High Court (Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent doctor could be held responsible for the costs of raising and maintaining a healthy child. The Decision Reached Of Cattanach V Melchior 2140 Words | 9 Pages. Mrs Kerry Anne Melchior had seen the obstetrician and gynaecologist Stephen Alfred Cattanach, and asked for a tubal ligation procedure to be performed on her, citing financial inability to support a third child. BJU200 Case Note - Case Note Clark v Macourt Tabcorp Holdings LTD v Bowen Investments PTY LTD Wynn v NSW Insurance Ministerial Corporation A New Taxonomy Clark v … The High Court Decision in Cattanach v Melchior The High Court in Cattanch v Melchior, by a majority of 4-3, dismissed the defendants appeal. Cattanach v Melchior. While the decision was reached by a narrow (four-to-three) majority only, the ruling affirmed a (two-to-one) decision by the Queensland Court … Information and comments on Health Law Central or associated with it, should not be taken as, and do not constitute, legal advice. This article considers the High Court decision of Cattanach v Melchior, which permitted the recovery of damages for the cost of raising a child born through medical negligence. Cattanach V Melchior - Facts. Every individual’s life has a deep, real and intrinsic value of its own. Two High Court decisions were considered here, those being Cattanach v Melchior7 and Rogers v Whitaker.8 Lessons Learnt This case establishes that the parents’ right to plan their family is an interest capable of the law’s protection and medical practitioners have a duty of care to protect that right. Cattanach v Melchior, one of the lengthier and more controversial of the High Court’s recent decisions, will do nothing to stem the flow.4 Not only did it present an issue of considerable novelty, the issue also carried strong moral * Senior Lecturer, School of Law, University of New England. examined by the High Court of Australia in Cattanach v. Melchior (2003) (hereafter 'Melchior'), the case involved litigation brought by Kerry and Craig Melchior, a married Brisbane couple, against an obstetrician and gynaecologist, Dr Stephen Cattanach. We do not offer legal advice. Murdoch University. As the doctor had conceded negligence, and as the costs of raising the child were directly causally related to that negligence, the claim should be allowed. This case-note Mrs Kerry Anne Melchior had seen the obstetrician and gynaecologist Stephen Alfred Cattanach, and asked for a tubal ligation procedure to be performed on her, citing financial inability to support a third child. ROLE OF PRIVATE LAW: 1.3.2. Mrs Melchior told Dr Cattanach that when she was 15, … ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003). 1 A wrongful birth claim is a claim for damages pursued by parents for the costs associated with the pregnancy and birth and for the costs of raising a child born as a result of negligence. Since the argument in this appeal the High Court of Australia has given judgment in Cattanach v Melchior [2003] HCA 38. In contrast, Kirby J in his dissenting reasons characterised the case as one of direct . 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. , Callinan, Heydon JJ Catchwords the result of the new South Wales Civil Liability 1936... 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