Madden, Bill --- "Wrongful birth and the assessment of damages" [2023] PrecedentAULA 3; (2023) 174 Precedent 4

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WRONGFUL BIRTH AND THE ASSESSMENT OF DAMAGES

By Bill Madden

Almost 20 years on from the High Court’s consideration of the entitlement to claim damages for ‘wrongful birth’ in Cattanach v Melchior^[1] (Cattanach), this article revisits some aspects of damages assessment, primarily in respect of the costs of raising and maintaining a child.

The special leave question before the High Court in Cattanach was limited to the issue of damages for raising and maintaining the child. The Court did not address the other two aspects of the claim that had been considered by the primary judge, namely the mother’s claim for damages relating to the pregnancy and birth, and the father’s damages for loss of consortium^[2] (the latter available in Queensland but removed by statute in some other Australian jurisdictions).

Nor was the High Court required to address damages quantification issues, some of which are therefore addressed below as (save for the first issue) they have yet to be addressed by an appellate court.

DAMAGES RELATING TO THE PREGNANCY AND BIRTH – LOSS OF EARNINGS

Before focusing on damages for raising and maintaining a child, it is worth noting a recent appellate decision relevant to the mother’s claim for damages flowing from the pregnancy and birth, which arose for consideration because of the statutory limitation on damages imposed in NSW after Cattanach. Although statutory limitations also exist in Qld^[3] and SA,^[4] only in NSW does the statutory limitation preclude the award of damages for ‘any loss of earnings by the claimant while the claimant rears or maintains the child’: s71(1)(b) of the Civil Liability Act 2002 (NSW) (CLA). That provision appears to apply whether the claimant is the mother, the father or otherwise.

The breadth of the NSW provision was considered by the NSW Court of Appeal in Dhupar v Lee^[5] (Dhupar), where the Court^[6] held that the subsection does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child:

‘The phrase “while the claimant rears or maintains the child” is intended to capture loss of earnings arising from the need or choice of a parent to rear the child and its consequent impact on the parent’s income, as distinct from lost earnings attributable to a disability arising from the pregnancy or birth. It follows that, in proceedings involving a claim for the birth of a child, CLA s71(1) does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child.’^[7]

No ground of appeal challenged the primary judge’s finding that the mother had developed a major depressive disorder that had worsened and had been pervasive since her child was born, and which, to fluctuating degrees, would be with her for years, nor that she had in fact incurred loss of earnings and loss of earning capacity due to the psychiatric illness that followed the conception, pregnancy and birth of her child. In assessing damages, the primary judge had taken into account as a vicissitude the possibility that the mother’s earning capacity might in any event have been impacted by rearing or maintaining the child.^[8]

FINANCIAL CAPACITY

In Dhupar the child did not suffer from a disability and so, by reason of s71(1)(b) of the CLA, the mother was not able to claim the costs associated with rearing or maintaining the child. It is interesting to consider, however, that in a disability case, the mother’s recovery for her loss of earning capacity would presumably have permitted her to apply those monies in respect of costs arising by reason of the child’s disability. That is important to the extent that the claim for costs is limited by the claimant’s capacity to pay.

In Cattanach, when the matter was before the trial judge, it was noted by the judge that the amounts claimed represented a liability for actual expenditure to be incurred by the plaintiffs.^[9] In the Court of Appeal, the parents’ income appears to have been accepted as relevant.^[10]

In the High Court, Gleeson CJ (though ultimately in the minority) noted that the costs with which the Court was concerned ‘are costs that were, or will be, met out of Mr Melchior's [the father’s] income’.^[11] Justice Heydon (also in the minority) noted that the plaintiffs' claim for the costs of the child’s upkeep ‘corresponded with that which persons on modest incomes of the type they received could provide’.^[12]

This appears to be the approach taken in Neville v Lam (No. 3)^[13] (Neville), where the trial judge said, obiter, that ‘in an unplanned pregnancy case amounts can be recovered for financial expenditure that have been and will be incurred by a plaintiff on a child's upbringing, assuming that questions of causation and remoteness are resolved in their favour’.^[14]

Notwithstanding the above, an argument that the costs claimed were not recoverable as the costs claim exceeded the financial capacity of the parents does not yet appear to have been the subject of consideration at an appellate level.

VOLUNTARY CARE

The recovery of damages for voluntary or gratuitous care was touched on briefly in Waller v James^[15] (Waller), where the trial judge said, obiter:

‘My preference would be to compensate on a Griffith v Kerkemeyer type basis for the supply of gratuitous care. However the issue involves policy considerations in the light of which the preferable course, at first instance would be to adopt the alternative of awarding loss of wages.’^[16]

More detailed was the (also obiter) analysis in Neville that ‘there can be no recovery for the "cost" or value of any voluntary care of the child provided by anyone’.^[17] The trial judge analysed the issue as follows:

‘However there can be no recovery for the "cost" or value of any voluntary care of the child provided by anyone. Subject to the discussion below, this includes the cost or value of "services" provided by a plaintiff in raising their child. Such a claim was specifically excluded by Gummow and McHugh JJ in Cattanach (and not addressed by either of Kirby or Callinan JJ). Bearing in mind that the three dissentients in Cattanach would not allow recovery of any costs associated with the rearing of the child, it means that the judgments of at least five members of the High Court in Cattanach preclude recovery for the cost or value of voluntary care provided to a child in such cases.

This is reinforced by CSR v Eddy. The "cost" or value of voluntary care provided to a child by anyone other than the plaintiff in such a case does not fall within the three categories identified in CSR v Eddy. To an extent it is analogous to a Griffiths v Kerkemeyer claim, in that the voluntary services meet a "need" of the patient created by the medical practitioner's negligence namely the patient's obligation to care for and raise their child. However the plurality judgment in CSR v Eddy suggests that heads of damage which are merely analogous to a Griffiths v Kerkemeyer claim are not recoverable.’^[18]

A few years later in Nouri v Australian Capital Territory^[19] (Nouri), the plaintiffs did not ask the Court to revisit the voluntary care issue. It was accepted that a claim for gratuitous services for past care was not available. Future care was claimed on a commercial basis.

Again, however, this issue does not appear to have been squarely addressed at the appellate level.

COSTS BEYOND MAJORITY

In Cattanach, the parents did not claim for costs beyond the child’s 18th birthday. The child did not have a disability requiring care beyond age 18, which may prove to be a distinguishing feature when this question is ultimately addressed by an appellate court. Having said that, in McDonald v Sydney South West Area Health Service,^[20] the trial judge held that the plaintiff father’s obligations to pay child support beyond age 18 should be taken into account and allowed a modest sum for the possibility of payments during tertiary study.^[21]

In Waller, the primary judge said that if he had awarded damages, he would have restricted them until the child reached 18.^[22]

In Neville, given the absence of full argument on the question of the time span for recovery for future expenses, the trial judge declined to address this issue.^[23]

In Nouri, the primary judge found that costs could not be recovered beyond the child reaching 18:

‘With some reluctance I have come to the view that notwithstanding the moral obligation that will continue to motivate the parents after Saba turns 18, they are not entitled to damages after this time. My decision is reinforced by the fact that after Saba reaches 18 there will be a legal obligation on NDIS to support her. I have no doubt this will not be to the same extent as the obviously excellent care she receives from her parents. Nevertheless, she will be entitled to support from this scheme.’^[24]

The conclusion in relation to the effect of the NDIS on recovery of all damages beyond age 18 is one which is likely to require further judicial attention.

CONCLUDING REMARKS

The Nouri decision was the subject of an appeal, which appears to have been the most recent appellate decision on wrongful birth issues in Australia.^[25] The Court focused on causation issues, but in closing touched on the question of damages beyond age 18 and also on an unsuccessful claim made by the parents for general damages. The Court said:

‘These grounds of appeal raise two issues.

The first is whether or not the parents of a disabled child are entitled to general damages to compensate them for the burden of raising a child with disabilities. An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. In Neville v Lam (No. 3) [2014] NSWSC 607; Aust Torts Reports 82–176 Beech-Jones J, in obiter dicta, considered that to make such an award would be inconsistent with the decision of a majority of the judges in Cattanach v Melchior [2003] HCA 38; 215 CLR 1.

The second is whether or not parents of a disabled child are limited in the damages that may be recovered for negligence to the period up until their child becomes an adult at the age of 18 or whether they may recover damages for the whole of the period during which the evidence establishes they are likely to be caring for their child. In Waller v James [2013] NSWSC 497; Aust Torts Reports 82–130 at [277]-[284] Hislop J, in obiter dicta, referred to a number of authorities concerning the scope of such damages. His Honour considered the issue to be an open one to be determined on the basis of policy considerations. He indicated that he would not have awarded any damages beyond the age of 18 years. The primary judge followed that approach, setting out the relevant part of Hislop J’s reasons. The appellants contended that there should be no such limitation on recovery in the circumstances of this case.

In light of the conclusion that we have reached in relation to liability, these issues will not be determinative. Each raises fundamental issues about the scope of damages in negligence cases relating to the birth of a child with disabilities. In our view it is not appropriate to express by way of obiter dicta conclusions in relation to these two issues. They should be determined in a case in which the conclusions reached will affect the outcome of the case.’^[26]

Such a case has yet to be brought before an appellate court in any jurisdiction across Australia.

Bill Madden is Special Counsel at Carroll & O’Dea Lawyers. EMAIL [e-mail].

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^[1] [2003] HCA 38; 215 CLR 1 (Cattanach).

^[2] Melchior v Cattanach [2000] QSC 285.

^[3] Civil Liability Act 2003 (Qld), ss49A–49B.

^[4] Civil Liability Act 1936 (SA), s67.

^[5] [2022] NSWCA 15.

^[6] Per Brereton JA, McCallum JA and Simpson AJA agreeing.

^[7] Ibid, [175].

^[8] Lee v Dhupar [2020] NSWDC 717, [1079].

^[9] Cattanach, above note 1, [79].

^[10] Melchior v Cattanach [2001] QCA 246, [192].

^[11] Cattanach, above note 1, [19].

^[12] Ibid, [306].

^[13] [2014] NSWSC 607 (Neville).

^[14] Ibid, [161].

^[15] [2013] NSWSC 497 (Waller). Liability issues were addressed on appeal in Waller v James [2015] NSWCA 232.

^[16] [2013] NSWSC 497, [326].

^[17] Neville, above note 13, [161].

^[18] Ibid, [161]–[162].

^[19] [2018] ACTSC 275 (Nouri).

^[20] [2005] NSWSC 924.

^[21] Ibid, [87]–[88].

^[22] Waller, above note 15, [284].

^[23] Neville, above note 13, [223].

^[24] Nouri, above note 19, [447]. See also O’Loughlin v McCallum [2021] WADC 77, [80].

^[25] Nouri v Australian Capital Territory [2020] ACTCA 1 (per Murrell CJ, and Mossop and Rangiah JJ).

^[26] Ibid, [106]–[109].