I see that both Scott Wickstein and Bernard Slattery have already blogged on yesterday’s Cattanach v Melchior decision, where the High Court dismissed an appeal from a Queensland judgment where substantial damages had been awarded to a couple (the Melchiors) who ended up with a healthy baby boy even though Mrs Melchior had had a sterilisation procedure (a tubal ligation) some years previously. Unfortunately the comment box discussion on both blogs has gone somewhat off-track, not least because my co-blogger Geoff Honnor posted some erroneous observations about what the Court actually found. In fact, Dr Cattanach was not found to have performed the tubal ligation negligently at all. His negligence consisted in failing to give Mrs Melchior advice that she should check to make sure that her right fallopian tube had been removed when she was 15 (as she believed and had told Dr Cattanach). Chief Justice Gleeson explains the situation in the following passage:
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.
The proposition that the doctor’s failure to give such advice was legally negligent was not a ground of appeal to the High Court, and I haven’t checked whether it was a live issue at earlier stages of the appeal process. However, I must say that as a matter of first principles I think it’s a bit problematic. Negligent professional advice causing financial loss has long been a recognised cause of action in tort. Failure to give advice of possible adverse consequences (even quite unlikely consequences) of medical treatment has been much more controversial, although the High Court accepted that principle some years ago now (in Rogers v Whittaker in 1992). This decision seems to go a significant step further, in holding that failure to advise of something that should have been blindingly obvious to anyone, and which doesn’t require medical qualifications to realise, is also actionable. Why should Dr Cattanach necessarily be legally obliged to tell Mrs Melchior that there might be a problem if it turned out that HER advice to him was wrong and that her tube hadn’t been removed after all? At the very least I would have thought Mrs Melchior’s damages should have been reduced for her own contributory negligence in telling the surgeon that her tube had been removed without bothering to check that that was really the case. Why weren’t they? I’m not sure, and I’ll look back at the judgments at earlier stages when I get a chance. This seems to be a case of casting the entire onus of care on the doctor (or rather his insurer) and absolving the patient of any obligation to take care for her own welfare. The possible insurance and other consequences of holding that a doctor is legally liable for failing to check the accuracy of every single thing a patient tells him when taking a history are very considerable, and worthy of far more discussion than they apparently received.
The Cattanach decision is problematic in various other aspects as well. This is a classic example of judicial activism at its worst, and puts Australia’s tort law out of kilter with both Britain and the predominant approach in most US States (there’s no single common law of the US, a strange and somewhat archaic aspect of the American legal system). The law in those places doesn’t allow recovery of damages for the birth of a healthy child, even where that occured as a result of negligence. Australia is now rapidly outstripping the US as a happy hunting ground for litigious plaintiffs.
The majority (the Labor appointees McHugh, Gummow and Kirby JJ, joined by John Howard’s personal appointee Callinan J, who is reliably right wing on Aboriginal issues, but all over the shop on most other things) also appear to have ignored the principles laid down by the High Court itself as recently as 1999 for extending tort liability for conduct where the only consequence was pure economic loss (and not any injury to person or property). Until Perre v Apand in 1999 the common law generally didn’t permit recovery of damages at all in cases of pure economic loss. In Perre, the Court held that this shouldn’t be regarded as an iron-clad rule, but nevertheless stressed that such cases were frequently problematic, and that liability for pure economic loss should be extended only hesitantly into new areas. The 4 majority Justices didn’t even mention the Perre principles, except in passing in a footnote. Instead, they pretended that the case was a “simple” one of application of ordinary established principles: if there’s negligence the plaintiff should recover. Callinan J put it most crudely (at least the others had the wit to realise they were playing fast and loose with existing principles, and concentrated carefully on obfuscating that fact):
The only matter in this appeal that was in issue was what both parties characterized as an entitlement or otherwise to damages for economic loss. I think that characterization, although necessarily general and therefore imprecise, is reasonable in the circumstances, the parties having put aside, for the purposes of this appeal, any controversy with respect to damages for any physical assault, operation, intrusion or physical contact, of any kind. That being so, the case necessarily becomes, as McHugh J suggested early in the argument, a relatively simple one. The arguments of the appellants should be rejected.
The reasons why courts throughout the common law world (not just Australia) have always been reluctant to extend negligence liability to cases of pure economic loss are quite compelling IMO. They’re set out in Perre starting at paragraph 1. The most relevant consideration for the situation we’re discussing is dealt with in Cattanach by Chief Justice Gleeson in the following passage:
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”. 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?
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?
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. …
In modern society, legal obligations of children to support their parents have largely disappeared. 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.
Gleeson CJ, Hayne and Heydon JJ got it right in this case. Interestingly for lovers of irony, it also illustrates why John Howard was ill-advised to appoint an inferior intellect like Callinan J to the High Court merely because he was anti-Aboriginal. All three conventionally-appointed conservative Justices adhered closely to precedent and mainstream legal reasoning. This is a decision that should be legislatively reversed. Queensland Premier Peter Beattie has already indicated that he’s considering doing so.