Acting Prime Minister John Anderson attacked the High Court this week over its decision in Cattanach v Melchoir to award parents the cost of bringing up a child after a failed sterilization.
Anderson used the “child-is-a-joy” argument to say that damages should not be awarded.
Anderson’s attack and similar attacks on the court for this decision are inconsistent with his (and his political party’s) earlier attacks on the court over native title.
The National Party attacked the court over the Mabo and Wik decisions. They denounced the court’s judicial activism and adventurism.
Remember the then National leader, Tim Fischer, calling for the appointment of a “capital C Conservative” (whatever that means) to the bench – someone who would apply the law, not make the law?
In theory, he got his “capital C Conservative” in Ian Callinan. In practice, though, he got a judge. And in this week’s case the judgment of Justice Callinan was decisive in the 4-3 decision to award the parents the damages. He applied the law in a “capital C Conservative” way and refused to use “policy” grounds or engage in judicial adventurism to deny the claim. To him it was a standard tort case.
The surgeon’s negligence had caused foreseeable loss. Kerry Anne Melchoir and her husband had specifically gone to him so she could avoid pregnancy. He had a duty of care to her. He breached that duty. The loss was not only foreseeable, but obvious. It could be calculated.
Callinan refused to create a special immunity for surgeons against that ordinary law.
He did not state it, but that would be judicial activism. It would be making up law on the hop.
Anderson and his National Party colleagues want it both ways. They want what they see as rigid adherence to existing legal principles with no judicial activism to deny the existence of native title. Yet faced with a result which they do not like on religious or moral grounds they expect the court to junk decades of ordinary tort principles to deny compensation or invent some special immunity for doctors.
Bear in mind that another form of reasoning could be used to deny the parents the upbringing costs that might be more morally repugnant than even allowing the damages. This argument goes as follows: if the parents complain about the costs of the upkeep of the child they could easily mitigate those costs by arranging an adoption or the woman could have had an abortion and restrict the damages to the pain and inconvenience associated with that.
The adoption argument was approved by a NSW Court of Appeal judge in an earlier case. That case was the high water-mark of the unsatisfactory state of Australian law. One judge said full damages. Another judge said no damages using the child-is-a-joy theory. And the third judge limited the damages for the upkeep for the short time required to arrange an adoption.
In this week’s case, the High Court split 4-3. The three minority judges appeared to me to rely on policy and invention to exclude the claim – just like judges in most other common-law countries recently. Normal common-law tort principles suggest that doctors should pay for the foreseeable losses caused by their negligence. Why should judges depart from those principles out of some pre-conceived religious, ethical or moral belief that children are always a joy or a gift and never a burden? It is not for judges to do that in the face of long-held principles.
On the other hand, it is for the various state and territory parliaments to look at these issues. The parliaments contain representatives of the people and are more in tune with society’s views than unelected judges.
Moreover, state and territory parliaments have been active in looking at the limits of damages for medical negligence and negligence in general.
A state or territory parliament might want to limit damages. Those parents who are so mercenary as to highlight the monetary cost on child-rearing over the joys of it should have considered adoption or abortion to mitigate their “loss”. If they are not prepared to adopt or abort, it indicates a willingness to take on parenthood and that should be the end of the doctor’s liability. Or a parliament might limit damages on the ground that a child is always a joy, so that is that. Or it might say that medical negligence is getting out of hand and medicos might quit the field if the burden gets to high – especially as Australia now has an easier test for medical negligence and an extra head of damages than most other common-law countries. The US, UK, Canada and New Zealand, for the most part, do not allow upkeep damages. But these are not legal arguments. They are moral, political a social arguments – arguments we should not expect judges to make for us.
The High Court’s message is – present law says the parents are entitled to damages. If you don’t like, it legislate a change.
A legislature might consider that this is a rare and isolated case. The woman had one ovary (but not the fallopian tube) removed during an appendectomy when she was 15 and later surgery hid that fallopian tube, so the sterilising surgeon clipped what he thought was the remaining fallopian tube. The egg went from one ovary to the other side’s fallopian tube causing a pregnancy that verges on the miraculous. It is not likely to result in an orderly queue of litigants. Conversely a legislature might think that not to act might result in surgeons really making sure when they do a sterilisation – so that more tube-tying becomes irreversible. And that might not be a good thing.
I take the opposite tack from Anderson. Far from attacking the court, anyone looking at this case should be mightily impressed.
The six judgments (two Justices wrote a joint judgment) run to 70,000 words. The issues were well considered – better considered than Anderson’s off-hand comment.
The issue has divided judges around the world. The High Court only gets the hard cases. One of the main grounds for the court granting special leave to appeal from a State Supreme court is that the issues are novel, difficult and have caused differences of opinion in the state courts.
The Chief Justice, Murray Gleeson, made a pertinent point last year. In lay language he said that High Court Justices should cop criticism on the chin and that they should not expect to be immune from it. But before they copped a media bucketing, those doing the bucketing should at least read the judgments.
Whatever one’s moral view on the issue and the outcome, you cannot deny the diligence with which the judges attended the task.
The judges canvassed the questions of sanctity of life; the “joy” argument; the existing law; the difficulty of assessing the cost and whether it should be offset against the joy; whether only a disabled parent should get damages in these circumstances; whether damages should only be awarded if the child is handicapped; whether the child finding out later that it was “unwanted” would be detrimental and so on.
There is not enough space here to detail them all.
But the question of only giving damages if the consequent child is handicapped shows the difficulty of the issues. Justices Michael McHugh and Bill Gummow said, “The differential treatment of the worth of the lives of those with ill health or disabilities has been a mark of the societies and political regimes we least admire.”
On off-setting joy with cost, they said, “The benefits to be enjoyed as a result of having the child are not related to that head of damage. The coal miner, forced to retire because of injury, does not get less damages for loss of earning capacity because he is now free to sit in the sun each day reading his favourite newspaper.”
As to the largeness of future claims, Justice Michael Kirby said, “Cases of this kind have potentially large economic consequences . . . precisely because the foreseeable consequences of the negligence are large. The issue is, therefore, who should bear those consequences: the victim of the legal wrong or the person responsible for it?”
On offsetting joy with cost, Justice Kenneth Hayne (in the minority) said, “If attention is to be paid to all of the consequences of the defendant’s negligence, one of those consequences is that there is a new life in being: a life with all the value, and all of the potential for good and evil, of any other human being. That life is not an article of commerce and to it no market value can be given. The fact of its existence brings to the plaintiff the economic burdens identified. It may, it may not, bring to the plaintiff some future economic benefits. It may, it may not, bring to the plaintiff some non-economic rewards or benefits which the plaintiff may, or may not, consider outweigh the financial burdens.”
Those quotes do not do the judgments justice but they give a flavour of the complexity of the issues that deserve better than Anderson’s gut reaction.