The High Court decided this week that a surgeon should pay the cost of the upkeep of a child after a failed sterilisation operation.
Reaction has been divided and passionate.
High Court goes mad on damages. Surgeon should pay for negligence. Etc etc.
Either way, there is a great deal of comfort for Australians in this judgment.
Damages for medical negligence is a divisive issue. Differences of opinion are almost inevitable. Some can easily say that the parents have a child bringing them joy, as they admitted in the case, so why sue for the upkeep — all healthy births are a blessing. Others can say that the mother and her husband have been burdened by the failed operation and should not be out of pocket.
The High Court similarly divided. Three Justices held one way and four held the other.
The great comfort for Australians, whether they agree with the outcome or not, is the reasoning presented by the seven Justices.
Chief Justice Murray Gleeson made a pertinent point last year. In lay language he said High Court Justices should cop criticism on the chin and that they should not expect to be immune from it. But they should be able to expect that before they copped amedia bucketing for a judgment that those doing the bucketing should at least read the judgments.
The judgments in this case are well worth reading. Not just for an understanding about this case, but for an understanding about how the law works.
The inescapable conclusion is that once read, you could be reasonably comfortable with the result proposed by either the majority or the minority. You would not feel an injustice had been done if either had been applied. The High Court only gets the hard cases – the cases where reasoning in different state courts in similar cases had earlier gone different ways. The High Court has to draw together a unified Australian common law. Different states should not be allowed to go off in different ways if a case arises that can resolve the differences. This was such a case.
In this case, the judgments on both sides are ……capital C .. lab Lib no diff….
Further, we can expect that when similar cases arise in the future state courts and the High Courts will follow the earlier decision. Even those three dissenting High Court Justices will follow the four majority Justices they disagreed with in the earlier case.
Nature of the negligence so no orderly queue.. doctors will make sure next time. The adoption
Gleeson appointment.
Can feds overrule a High Court case on state law matters.
Anderson says it is repugnant that you get damages for a birth healthy
All healthy biths are a blessing.
Gleeson
Whatever one thinks about Howard appointment, conservative etc. His judgments are a pleasure to read. Clarity. Cf Murphy… Murphy great with fact then bald assertion of law.