Superclinics Australia Pty Ltd v CES & Ors S88/1996 [1996] HCATrans 359 (12 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S88 of 1996

B e t w e e n -

SUPERCLINICS AUSTRALIA PTY LIMITED

Appellant

and

CES

First Respondent

PA

Second Respondent

HAROLD ANTHONY NAFTE

Third Respondent

RICHARD ROGER DE MONTMARENCY CATTLEY

Fourth Respondent

GARY JOHN BAKER

Fifth Respondent

Office of the Registry

Sydney No S91 of 1996

B e t w e e n -

HAROLD ANTHONY NAFTE

Appellant

and

CES

First Respondent

PA

Second Respondent

SUPERCLINICS AUSTRALIA PTY LIMITED

Third Respondent

RICHARD ROGER DE MONTMARENCY CATTLEY

Fourth Respondent

GARY JOHN BAKER

Fifth Respondent

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 SEPTEMBER 1996, AT 10.29 AM

(Continued from 11/9/96)

Copyright in the High Court of Australia

__________________

MR I.D. TEMBY, QC: May it please the Court, I have an application to make. Could I inquire of the Court if it would be convenient for me to be heard now or immediately after my friend, Mr Rares, who I am told is within minutes of finishing his submissions?

BRENNAN CJ: We will hear you now, Mr Temby.

MR TEMBY: May it please the Court, I am instructed to appear with my learned friend, MR S.L. WALMSLEY, for the Abortion Providers Federation of Australasia and for Dr Geoffrey Brodie who is the President of that Federation. (instructed by MacMahon Drake Balding)

The application which is made is for leave to intervene or, alternatively, to be heard as a friend of the Court on the hearing of this appeal. Such leave is sought on these bases: members of the federation provide abortions to women in need of such operations. Some are hospitals or clinics which do so either free or for a charge but not for profit; some do so both for a charge and for profit. Working within those institutions there are professionals including, but not limited to, doctors and nurses.

It is submitted that there are financial and career consequences of a negative sort which can be anticipated so far as both those institutions and those individuals are concerned if this Court decides to change the law as it has stood in this country for some 25 years now so far as criminal responsibility for abortions is concerned.

DAWSON J: When you say "change the law", you mean decide on the correctness of decisions below which, of course, are subject to consideration by this Court.

MR TEMBY: I should have said, your Honour, bring down a decision which would have the effect of changing that which has been generally considered as being correct for that period. I mean no more than that. Our position can be compared favourably with that of the bodies granted leave yesterday. They are not service providers as we are and, so far as they are concerned, there are not the same likely consequences or, at least, if there are consequences of a financial and career sort, then they would impact far less immediately.

BRENNAN CJ: Mr Temby, yesterday's application was put on the footing that without the granting of the status of amicus to the applicants, there would be no challenge to the correctness of the decisions in Wald and Davidson, which are the decisions that you are referring to. In other words, the Court might be assisted by submissions which challenge that which was common ground on the part of the parties. Now, Wald and Davidson are the cases, I take it, to which you refer in speaking of the law which has thus far been regarded as appropriate.

There was a judgment in this case, as you probably know, by the then President of the Court of Appeal which is said to go perhaps a bit beyond Wald, but that might be open to dispute. Now, are you able to tell us whether, in your submission, you would be putting any argument which would not be common to all the parties at the Bar table?

MR TEMBY: Your Honour, may I approach that question in this manner: we do not have an identity of interest with the plaintiff at first instance. She was a consumer who was let down by particular service providers. We are service providers. She wants damages. We want to keep on doing what we have been doing and, in so doing, providing a service to large numbers of women who need abortions.

So there is not an identity of interest so far as we and the plaintiff at first instance are concerned, nor is there an identity of interest, we submit, as between us and any of the present respondents. They are variously a medical clinic and doctors but none of them are providing specialist services of the sort that we are providing. Whatever submissions there might be that come from all or any of them, they will not be speaking from the same viewpoint as we are speaking because we are providing specialist services in this area, whereas the various respondents are providing services of diagnosis and, if at all but I think not at all, of abortion as merely incidental to the work that they generally do.

BRENNAN CJ: But could you focus on the legal propositions that you wish to advance.

MR TEMBY: May it please the Court. We will be seeking to say two things. Firstly, that Davidson and Wald were correctly decided or, if not, that the submissions which I have read that came from the parties granted leave yesterday go far too far in suggesting that it is only absolute immediate necessity to save the mother's life that can justify abortion, so supporting Wald and Davidson or at least seeking to say that the correct legal position is one which is far short of that which will be urged upon the Court.

BRENNAN CJ: Would you seek to support the views expressed by Justice Kirby in the Court of Appeal?

MR TEMBY: I think that for our purposes it is not necessary for us to go that far. I am sorry that I cannot give a more absolute response to that question, your Honour. That is really as high as I can put it. Can I also say that there is one other thing that we want to argue, and so far as I know it has not to this stage been urged upon the Court. I may be wrong as to that. We have come into this very recently.

It will be our submission, if leave is granted, and if we are allowed to put it, that this case cannot be, and no civil case can be, a safe and satisfactory vehicle for reconsideration of the question of criminal liability for procedures by way of abortion. Very briefly, we will be urging that it is juries under our system of law who decide those questions of criminal responsibility. In so doing, they return a general verdict as to guilt or otherwise. In a civil case - in any civil case - the court is required to bring down a special verdict to provide reasons. If in the course of so doing the court is expressing a view so far as the apprehended legality or otherwise of some contemplated course of action, in doing so it must necessarily be speculating as to what a jury would have done, and that is a matter of very great difficulty in circumstances where a jury is necessarily inscrutable.

DAWSON J: Mr Temby, that is merely an argument that it would be inappropriate for this Court to disturb the decisions in Wald and Davidson. That may be an argument which has a great deal of support, but it is an argument which could be put by the parties. We do not need to hear an amicus on that.

MR TEMBY: Very well, your Honour. I thought I should say that that is something that we would be wishing to say should leave be granted. But, most importantly, our submission is that that which is urged in a forensic context must be largely dictated by the position that the interest concerned occupies. We do not occupy a position which is the same as, or close to, that which is occupied by any of the parties presently before the Court.

TOOHEY J: When you put the matter that way, Mr Temby, you are really running two things together. You are speaking of the interest of your client, and that is understandable but, it is not the interest that, in the end, determines whether someone should be given leave to appear as amicus curiae; it is the extent to which they can offer assistance to the Court on an issue which, it appears, will not be dealt with by the parties. Now, if you come along simply on the basis that you want to support Wald and Davidson, you are offering us no more than one of the parties to the appeal is already offering us or, all parties to the appeal, other than those who have been granted leave as amici curiae are offering us.

MR TEMBY: Well, with respect, if that be right, it remains the case that we have an essential interest which others do not have and because that interest is different, it is a matter of very high probability that what we will be putting to the Court will not accord with that which falls from other parties. To give an instance, we will be urging that if there ought be some departure from Wald and Davidson, it would not involve going to the other extreme as I outlined it earlier. Now, so far as I am aware, it would not be consistent with the interests of the parties here to be urging that approach and it is one of profound importance to those I represent and their potential patients. We are suggesting that we should be heard in order to ensure that those arguments can be put because otherwise the Court will not have assistance so far as some graduated position is concerned.

BRENNAN CJ: Thank you, Mr Temby. Mr Rares, do you have any submission to make?

MR RARES: As to Mr Temby's - - -

BRENNAN CJ: Yes.

MR RARES: We neither consent nor oppose, but we just wish our position as to costs to be protected, your Honour.

BRENNAN CJ: Yes. Mr Callaway.

MR CALLAWAY: We do not oppose the application. So far as costs are concerned we make the same stance as Mr Rares.

BRENNAN CJ: What do you say, Mr Higgs?

MR HIGGS: We have the same attitude, your Honour.

BRENNAN CJ: Mr Garling:

MR GARLING: We also have the same attitude, your Honour.

BRENNAN CJ: Mr Temby, yesterday the parties given leave to appear as amicus were put on terms as to costs, which might be either thrown away by adjournments or involved in the extension of the time for hearing. Are you prepared to give a similar undertaking?

MR TEMBY: Can I take one moment to take instructions?

BRENNAN CJ: Yes.

MR TEMBY: Yes, may it please the Court.

BRENNAN CJ: Yes, very well. There will be a grant of leave to appear amicus curiae for the parties for whom Mr Temby appears on the terms of the undertaking which he has given, but having regard to the nature of this case and the proceedings which have been taken by each of the parties who have been given leave to appear as amicus, the Court is of the view that the submissions made by the amici should be restricted to the submissions which are made in writing. Mr McCarthy has already produced his submissions in writing; are you in a position to do likewise?

MR TEMBY: I am not in a position to do so at this moment. I can do so relatively soon and naturally will meet the convenience of the Court. The more time we have the better job we can do and the more help we can provide.

BRENNAN CJ: The likelihood is that we will be hearing from Mr Higgs and Mr Garling this morning and the Court will then adjourn so that you will have the period of the adjournment in which to produce your submissions.

MR TEMBY: I am obliged to the Court.

BRENNAN CJ: Will seven days be sufficient, Mr Temby?

MR TEMBY: We can manage, yes.

BRENNAN CJ: And served on the parties and perhaps you should obtain a copy of the written submissions made by Mr McCarthy and perhaps you should serve a copy of your submissions on Mr McCarthy as well.

MR TEMBY: We will do so, thank you, your Honour.

BRENNAN CJ: Mr Rares.

MR RARES: Your Honours, overnight, we dug out a couple of those references that were raised yesterday and some additional authorities which may assist on the question of approach to setting off, if one gets to that, the benefit of having the child as against the economic loss. We also sought to put in writing a submission which sought to address one of the questions your Honour the Chief Justice asked me a couple of times and which I do not think I satisfactorily addressed as to the scope of the duty and its application in this case as to whether there are any damages, and we have a submission that we have put in writing in relation to that. Could I hand up copies of each of those documents? I have given them to my friends this morning.

DAWSON J: Mr Rares, would I be interrupting you if I asked a question now?

MR RARES: No, your Honour.

DAWSON J: These cases, of course, deal with questions of disease or malfunction and so on, but is there a right of action for damages for life itself? Can I give you an example? Assume that weighed down and depressed by the cares of life, I am suffering from a terminal disease and I tell my doctor I do not want to be treated but he negligently, in one way or another, treats me and I recover and I live for another 10 years, can I sue him for the cost of living of my 10 years?

MR RARES: We would submit, no.

DAWSON J: If you cannot sue for life or the cost of life there, why should you be able to sue for the situation you are speaking of?

MR RARES: We would respectfully adopt that you should not be able to because life is the fundamental thing which the law values. I mean, it is, at common law, a capital crime to commit murder. You cannot commit infanticide.

DAWSON J: Perhaps the things I have asked you I should put to the other side. But you would embrace the situation that life itself is not something which is compensible.

MR RARES: Exactly,your Honour, with respect.

DAWSON J: And it matters not whether it is your life or someone else's.

MR RARES: That is right.

DAWSON J: And life inevitably carries with it some cost in monetary terms.

MR RARES: Exactly. I was trying to think of some sort of imperfect analogy, because you really cannot - what we tried to do was put in a distilled form in paragraph 9 of these written submissions on the scope of the duty. The equation that really needs to be looked at for the purposes of saying how you would put a plaintiff into a position she or he would not have been in had the child not been born, and the first thing you do is you say, well, what is the injury, and the injury is said to be the fact of birth, of a life coming in to being.

Then it is said the position she would have had hypothetically, had the negligence not occurred, is there would not have been a baby and she would not have had the expense. Her actual position is, she has the baby and associated expense, so what is the difference between the two of them to put her into the position she would have had but for the negligence. The answer cannot simply be the cost of rearing the child, because you have then said the child is worthless. That, in our submission, is entirely antithetic to any precept of morality in the law, or in the community.

McHUGH J: Yes, but you defeat the conclusion by the way you frame the major premise. I mean, you define "injury" in a way that the conclusion is obvious. But try defining "injury" by a reference to economic loss, and not "injury", but "damage", which is the correct legal test.

MR RARES: There has to be something that happens that causes her to suffer damages.

McHUGH J: Yes, she says she suffers damage because she has got to support this child that, but for your client's negligence, she would not have had to support. Now, is that damage?

MR RARES: No, your Honour. We say no, and we say that that is not what she has got to sue for. She has got to sue because the child was born. That is why she is complaining. She is saying it is an injury, compensible at law, that a child is born. That has to be her case.

DAWSON J: And if that example which is put to you is right and that is damage then, in the example I gave to you, I must be able to recover damages for living longer than I wanted to do so which was caused by the negligence of the doctor.

MR RARES: Yes.

McHUGH J: Unless you are volenti or you did not take further steps to terminate your life. If that were a principle, you should be entitled to take damages.

MR RARES: But that would be a crime.

McHUGH J: Not if euthanasia is legal. That is the hypothesis. You start with that proposition.

MR RARES: I tried to think of another - - -

McHUGH J: I mean, Justice Dawson's example, if killing yourself is a crime well, obviously the person who is the plaintiff could not recover damages.

DAWSON J: The example I gave you is one where you are entitled to refuse treatment.

MR RARES: Yes.

DAWSON J: And the patient wished to and the doctor, maybe mistaking him for someone else negligently, gives him the treatment and he lives an extra 10 years and it costs him some money.

MR RARES: Yes.

DAWSON J: If that is damage, he is entitled to recovery.

MR RARES: That is right but we would submit it is not damage. I mean, maybe it is not a good analogy - - -

DAWSON J: Why is it not?

MR RARES: No, not your Honour's, what I am about to suggest, I am sorry. If you took a situation of adjoining landholders and one person decides to build a swimming pool and mistakenly, he builds it on the other's land. That is a trespass, it is compensible. The other says, I do not want you to fix that up but because I now have a swimming pool on my land which I have there, I have got to get it cleaned because it gets dirty every day so I will have to pay somebody for the rest of my use of this land to clean it.

The analogy to having a child and saying, look, I have got the child in my home, it is part of my family but you have to just pay for the expenses and you just do not take into account the place of the child in the family. I mean, the man can use the pool, he does not have to pay for it because it was put there by a trespasser. He does not have to give it up. It is trespass to come onto his land to take it off and yet it is there and if this sort of analogy is right, he is allowed to sue the other person for having given him a swimming pool. He has then got to provide the upkeep for it.

McHUGH J: Why? I do not see the analogy. The damages for that particular case is that if he incurs the expense it is a voluntary act but the argument against you here and the argument against what Justice Priestley said in the Court of Appeal is that in determining whether the decision to keep the child is a free and voluntary act, you cannot leave out of consideration the emotional claim that the plaintiff then has on herself.

MR RARES: And that emotional claim is what the case is all about, in our submission - - -

McHUGH J: No, it is not about.

MR RARES: - - - because it is something that is intrinsically valuable that you cannot put money - - -

McHUGH J: Your client is like the coach driver who puts the plaintiff in a dilemma. The plaintiff jumps out to save him or herself. You cannot say that is a free and voluntary act. Your client, on the plaintiff's case, has put her in a situation where she has now got to support the child.

MR RARES: Well, your Honour, that really means that one just pays no consideration to the fact that she does have, in the adoption out question, an alternative there. Then this assumes there is some right to damages, but we would respectfully submit that if one wants to follow normal instinct of the parent to a child, that just demonstrates how intrinsically valuable life is and how you cannot put a price on it and how the Court is saying that because somebody - - -

McHUGH J: The court has put a price on just about everything else. I do not see why they cannot put a price. They put a price on the loss of enjoyment of life. They value all sorts of contingency in business and other, so why can they not value life.

BRENNAN CJ: Maybe because it is an absolute.

MR RARES: With respect, we would adopt what the Chief Justice proposed as an answer to your Honour's question. The other dilemma which might be raised in a case like this is if you have a situation where you have, say, a very devout doctor who, according to his religious beliefs, would find it totally impossible, ethically and morally, to advise or participate in any termination. If a plaintiff came to him and said, "Look, I want to know if I am pregnant so that if you tell me I am I can have a termination", could he, perhaps, send her away and say, "I am not going to give you advice. I am not going to tell you. I am not going to diagnose you". Maybe he can, but suppose he negligently gives her the wrong answer, and is then told by a court of law that he has to pay for the child's upbringing until it is 18 because he did not do what he could never have done - namely, let her know she could have a termination, or put her in a position to achieve an act to which he was completely ethically and morally opposed.

These are matters which the Court really should not decide. If there is to be an action, Parliament should decide it after the community has participated in it, and dealt with it. There has not been an action known to law - - -

McHUGH J: If a case is within legal principles then why cannot the Court decide it? That is the question.

MR RARES: Well, your Honour, it is not in legal principles - - -

McHUGH J: Just because it is a new case; we would never get anywhere. The law would stand still. We would still be back in the 12th century.

MR RARES: But this is not within legal principles. There is no case - - -

McHUGH J: That is your argument. If that argument is right, you succeed. But that is the point.

MR RARES: I can accept that, your Honour. Just lastly, your Honours - - -

BRENNAN CJ: If you are going on to another point, I want to ask you a question in relation to your submissions. May I do so?

MR RARES: Yes, your Honour.

BRENNAN CJ: The scope of the duty - paragraph 1 - I do not understand how in tort, as distinct from contract, one postulates a duty otherwise than in respect of the damage that has been caused.

MR RARES: I accept that, your Honour.

BRENNAN CJ: Then what is the damage in this case which, having been caused, there was a duty to take reasonable care to avoid?

MR RARES: It is asserted that the damage is that the plaintiff gave birth to a child because she could not get a termination at an earlier stage. We say there is no duty to avoid that birth.

BRENNAN CJ: It can be put, I would have thought, in another way, and that is that there was a duty - on the plaintiff's case - a duty to avoid her loss of an opportunity to terminate, so that the birth is then regarded as a sequel to the breach.

MR RARES: Yes.

BRENNAN CJ: Now, on either view, the question of legality seems to me to arise, but it may arise in the one instance in relation to duty; in the other in terms of causation of consequences.

MR RARES: Yes.

BRENNAN CJ: Is there, and it was understood in the court below that the case would be fought on the footing of Wald and Davidson, can you tell me whether there was any agreement as to the nature of the duty?

MR RARES: I do not recall that there was an agreement as to the nature of the duty. I think that the arguments really clashed at the point of saying that if an abortion were illegal, then whatever duty was postulated would not give rise to a cause of action.

BRENNAN CJ: You see, it seems to me that the discussion has taken place on the footing that there was carelessness, and the term "negligence" has been used in respect of carelessness, whereas from Wagon Mound [No 1], it has been, I thought, accepted doctrine that carelessness does not amount to negligence; that you have got to postulate the duty in respect of the damage that was actually caused, not threatened or imminent. You come back then to the existence of breach, and then you have a tort.

MR RARES: If, as a matter of policy, there is no damage from the birth of a child, or from a child having to be brought up because it is born, then there cannot be a duty to take reasonable care to advise of pregnancy, the failure to comply with which gives an action.

BRENNAN CJ: It may be a different thing. You see, if you are putting it in terms of the birth of the child as itself the damage, then your argument arises in that context. If, on the other hand, you are putting it on the footing of economic loss, or pain and suffering of the mother, as being the damage, then you have got to look at what the consequences of the breach are, the duty being postulated in that way.

MR RARES: Then you go back to having a termination and we say that there is no right to a termination. One has to establish that the termination would have been lawful. The Crimes Act 1958 , we submit, is obviously directed towards, in sections 82 and 83, the sanctity of life, so that one just cannot say that there is damage suffered by the loss of the opportunity to have a termination or the consequence that, because the termination does not take place, the woman must go through a pregnancy, the incidence of pain in that.

DAWSON J: I do not understand why we keep talking about loss of opportunity in this case. Loss of opportunity is where there is an element of chance involved, so that you get less than the full damages for the eventuality which would have happened if the opportunity had been taken up. No question of chance in this case. The case that is put is that this woman would have had an abortion had she had the appropriate advice. It is not loss of an opportunity, it is loss of the abortion she is claiming.

MR RARES: Yes.

DAWSON J: It is an unnecessary complication to talk in terms of loss of opportunity.

MR RARES: I suppose I talked of it because it is really what the pleading asserted, but - - -

DAWSON J: But it does not arise on the facts.

MR RARES: - - - analysed in this way, that is so, and we say that there is just no right to have an abortion in the circumstances of this case and there was no duty to give the advice which caused damage which was proximate - - -

DAWSON J: The damage is not loss of an opportunity but loss of an abortion, or birth of a child, which is the same thing, the other side.

MR RARES: Yes.

BRENNAN CJ: It may not be the same thing, because if there is a cause of action for loss of abortion, one would then have to determine, so far as damages are concerned, the situation that the plaintiff would have been in had she had a termination and the situation in which she was in fact put in, and that involves questions of pain, suffering, mental anguish, et cetera.

DAWSON J: Yes.

MR RARES: Yes, and again, if you come back to the equation, at the end of the day, you cannot leave out of an assessment of what is necessary to put her back in the position had she had an abortion or the fact that she has a child which she has accepted responsibility for which, out of perfectly normal feelings of love or motherhood or responsibility, is just part and parcel of our society and the whole of human existence that mothers look after their - as part of our society from time immemorial looked after children, at least initially, when they are born and accepted them, and if they choose not to, then that is a choice to put them somewhere else. I appreciate that there are different views in the community and on the Court about just how far that goes, but - - -

GUMMOW J: How far what goes, Mr Rares?

MR RARES: The relationship of the mother being the primary carer, that that has been until very recent times given in our society.

GAUDRON J: I have got no particular views on the subject, I can assure you. I am here to decide particular cases on particular facts.

MR RARES: I am indebted to your Honour. Your Honour, I think Justice Dawson was asking a moment ago about cases in which the doctor prolonged life. There have been cases brought for what is termed wrongful life where a child sues complaining that it was born, usually because it has been born with birth defects. McKay v Essex County Council (1982) 2 All ER 771 I think is one of those cases, and the court held that there was no damages for that. In New South Wales, there have been some decisions in which children have been allowed to recover.

DAWSON J: What I was really putting to you, Mr Rares, was not something that those cases decide, but rather that life itself cannot be wrong, that the whole of the law is devoted to observing the sanctity of life, and as a matter of policy, what I was suggesting to you for your answer, as a matter of policy, the law would not allow recovery of damages for life or the cost of living, but these cases are different.

MR RARES: We, with respect, adopt that.

McHUGH J: Mr Rares, what do you say then of the case where a child is adopted? Before the adoption, the child is medically examined at three or four months, but the doctors carelessly fail to diagnose that the child has got some defect, perhaps Down's syndrome or something else, and cause the parents a great deal of money to be spent both on the upkeep and medical care for the child and also that one or other of the parents, or both, are psychiatrically disturbed as a result of the problem. Do they have any right of recovery?

MR RARES: The proposition being that it is the adopting parents who make the claim?

McHUGH J: Yes, they have adopted a child and they thought they were getting a healthy child, but they have got a child which is not healthy and they were put to great expense in caring for the child and seeking medical treatment for the child.

MR RARES: That really assumes a completely different relationship between the doctor and the adopting parent from that here.

McHUGH J: It may or may not, but I just wanted to know what your answer is.

MR RARES: I would like to think about it, if I may. I would like to take that on board if I may, your Honour. Can I just add a couple of factual matters which may or may not assist in relation to the plaintiff's presentation at the time. Your Honours, in the appeal book at page 229, point 18 to point 30, the plaintiff agrees that she went to see her solicitors within two weeks of finding out she was pregnant. They were expert medical legal solicitors and they ran a case for her and she made a statement which is at pages 303 to 305. So that with advice from experts for the purposes of looking at her legal position, she was also not, at that time nor until after she gave birth, sent for any psychiatric or psychological treatment, counselling or assessment. So that the lawyers who were looking after her at the time did not see a need to send her off to get examined and again that was one of the things that the trial judge had before him and which he was able to consider his advantage as to whether or not there was any serious threat to her mental health on presentation at the time.

There is a report from her treating gynaecologist during the pregnancy from Dr Bradbury at page 325, which does not discuss any mental problems and the first psychiatric assessment appears to have taken place on 10 December 1987, that is, some months after the birth, and Dr Maguire's report is at page 321, in which he concluded that she was mildly depressed at that time. Again, we would submit, not a serious threat to her health such as warrants a termination under the Crimes Act - might warrant under the Wald test, but it is not - - -

DAWSON J: You are going back to duty now?

MR RARES: I was just going back to the facts just to complete - - -

DAWSON J: I was going to ask you, I am not sure, you may have said it and I may have missed it, but assume that there was a breach of duty and looking at damages, do you draw a distinction between the cost of rearing the child and confinement expenses or the cost of psychiatric treatment, which was necessary as a result of the birth of the child?

MR RARES: Primarily we would say no, but, if the Court were against us on that, we would say that there are - that the cost of confinement, we would say, is a matter that ought to be borne, in any event, by a parent giving birth, just as any other associated expense with giving life.

TOOHEY J: Except it does not square terribly well with your argument that what the plaintiff is seeking to recover is damages for the birth of the child against that prefatory period during which the plaintiff was pregnant.

MR RARES: Well, she would have had to go into some sort of procedure and pay for that, to have a termination. If she has a confinement, one could see that any economic consequences might cancel out. But I accept that if our primary submission is not accepted, then you can make a distinction between actual outgoings of the mother for her own treatment.

DAWSON J: What is the distinction?

MR RARES: That might be a harm to her. Whereas, what is being asserted is that it is harmful to her that she looks after her child. That is where the cutting edge is. We say that is not harmful to anybody in the law.

TOOHEY J: She particularises injuries on page 9 by reference to:

Nausea, pain and mental anguish associated with pregnancy.

and -

Physical and mental pain associated with labour and birth -

of the child. Was this distinction, or possible distinction, canvassed in the courts below?

MR RARES: I just cannot remember how we argued it in the Court of Appeal, but I think that certainly attention was drawn to this claim and - no, it was canvassed in the Court of Appeal, and the way it was dealt with is in Justice Priestley's judgment - - -

DAWSON J: By awarding damages up to the point of birth, in effect.

MR RARES: Yes. But I think what his Honour said was the way the plaintiff pitched her case, it was really - would not be fair in the way that the case ran at the trial to simply say, well, look, if she suffered some damage from what might be called the peripheral claims - without meaning to demean them in any way - as opposed to the main one of bringing up a child, that she might have suffered some minor damage there, but that was not the cause of action she sued on, and that it would not be fair to allow the appeal to succeed on that basis. That appears at 471. At the bottom of the page, there is a submission that is started off - his Honour dealt with. And then, at about point 25 on 472:

On this approach to the case therefore the trial judge deprived the plaintiff of a judgment, even if a small one, to which she was entitled, and also deprived her of damages for the loss of the opportunity of seeking a medical practitioner who might form the opinion, honestly and on reasonable grounds, that because of the danger to her physical or mental health if she did not have an abortion, an abortion should be done.

His Honour says he was attracted at first to that but then he said well, the way the case ran, having looked at the record, she put the case simply fairly and squarely on the basis that if she had been told she was pregnant she would have had the abortion and that was that, so that the damages that she claimed for the matters that your Honour Justice Toohey just discussed, really were not a cause for giving her a new trial in the circumstance of this case.

Justice Kirby agreed with that characterisation. I am sorry, I do not have the page number at my fingertips. Of course, Justice Meagher does not really deal with it. So, that was discussed and those issues were really put to one side as being really by the by in the way the case had run. It really was a case of recovering the cost of the rearing of the child. The only other fact I wanted to draw attention to was the fact that PA paid weekly support for the child which is at page 46, point 12 to point 22, in the plaintiff's evidence.

McHUGH J: Before you sit down, there is a matter which I will be asking Mr Callaway about but I want to see what you have to say about it. It is at page 428 in Justice Kirby's judgment which I have some difficulty in understanding. He seemed to have accepted that this was pleaded as a loss of opportunity case, that that was the damage that completed the cause of action.

MR RARES: Yes.

McHUGH J: But he then goes on to say, at line 39:

This requires proof, according to the civil standard, that, had the first appellant had the chance, she would have successfully secured the termination of the pregnancy.

Now, if it is a loss of chance case, and it seems to me that is the way it is pleaded, that is not the correct approach, is it? That could only be the correct approach if the damage that completed the cause of action was the expenses and matters of that nature and it is either a loss of chance case in which you say, well, she had a 40 or 50 per cent or a 100 per cent chance of obtaining a termination and she gets damages for that, or you say that legal damage is the nausea, the pain, the expense and so on that flowed and that is where there was a duty of care owed in respect of those matters, if we are talking about tort, but I just do not follow that page 428 seems to me, at the moment anyway, subject to hearing Mr Callaway and yourself, that there is an inconsistency. If the loss of the chance is the damage, that is one thing. If the termination is the damage, that is another thing but you do not talk about loss of chance or loss of opportunity in that context.

MR RARES: I think what Justice Dawson has been saying on a couple of occasions in relation to it is its an unnecessary complication in the case, really is the point that your Honour is also driving at in this and it is probably right. The pleading is a loss of opportunity but what she is saying is, by reason of the negligent diagnosis - - -

McHUGH J: But that means it is consequential damage. But she would not be entitled to her full expenses if it is a loss of chance case, unless you conclude that she had a 100 per cent chance of success.

DAWSON J: And then there is no chance involved in it.

McHUGH J: That is right.

DAWSON J: If it is 100 per cent, it is not a case of chance.

MR RARES: That is right and, in this case, she either would have got a termination that was lawful or not.

McHUGH J: And that leads me to this: you kept saying that it is the wrongful birth. It does not seem to me that that is correct, at the moment anyway. The damage has either got to be loss of a chance, or the nausea; the expense, but termination itself cannot be damage, or the birth cannot be damage, just as such.

MR RARES: But the birth is the thing that the plaintiff has to found on in order to say, "I now have a child that I have made a conscious choice to bring up".

McHUGH J: That is the train - one of the steps. If it is an economic loss case, in a different context, leading to a plaintiff's damage, maybe a large train of events , in one sense, a long way removed from the breach itself. But you have got to fasten on the damage; not the steps by which you get to the damage.

MR RARES: But the damage is that she had to go on with her pregnancy and give birth and the birth crystallised the damage.

McHUGH J: Her damage must be - leaving aside loss of chance - that she suffered nausea; that she has got physical and mental pain; that she has got expenses.

MR RARES: The way the case was run, and that is the point that I was just raising before about what Justice Priestley - - -

McHUGH J: We seem to have got a long way from how the case was run.

MR RARES: That point is a long way from the way the case was run. The case was really one of saying, "I should not have had to give birth to this child if you had told me I was pregnant when you were asked, and, I have suffered damage because the child has been born." It has to be what her case is.

BRENNAN CJ: It may be a question of the causation between that which was said to be the carelessness, and that which was postulated as the damage. There is no problem about causation if opportunity is taken, but the further you get away from opportunity, the more links there are in a causation chain and you have got Chapman v Hearse problems.

McHUGH J: The arguments you seem to be putting seem to me to be direct law to causation, leaving aside illegality.

MR RARES: I do not shrink from that because we say the case has been run as a causation question, but the gist of the action is the fact that she progressed through her pregnancy to give birth and that caused responsibility, but we put the case in the alternative and say that the damage is not a damage recoverable or known to the law.

McHUGH J: Supposing the child had been born dead. She may still have had damage, but it would not be the birth, would it? The damage may have been psychiatric damage, it may have been expense.

MR RARES: That may be an injury to her, the psychiatric damage.

McHUGH J: But it is all injury to her. There is no such thing as - we cannot deal with injury to anybody else. It is injury, either physical or economic or psychiatric.

MR RARES: That is the point. That is where we join issue, if I may say so, with respect, whether it is an injury to have a child. It cannot be. It is a different thing if the child is born dead through the negligence of a doctor, she may suffer great pain of mind, which may well be recoverable because the doctor has caused her that distress.

McHUGH J: On the pleadings, it seems to me that it is a loss of opportunity case. If it is not a loss of opportunity case then the damage, the legal damage, that completes the cause of action must be expense, physical pain, psychiatric problems et cetera. The matters that you are talking about, at best, go to causation. It is reasonable foreseeability - something of that nature.

MR RARES: If I accept that analysis for the purposes of the argument, one of the heads of damage is that the child was born and - - -

McHUGH J: But you have got to distinguish between consequential damage and the damage that completes the cause of the action. Damage is the gist of the action of negligence, so there has got to be some legal damage, and then there may be all sorts of consequential damage.

MR RARES: In this context, where you have the hypothetical situation that she would have to undergo a termination operation and associated with it the trauma and the need to recover from that, which she has not undergone, to weigh against the ordinary incidence of pregnancy - and it was a perfectly normal pregnancy - we say it is unreal to say that the ordinary incidence of pregnancy is damage. This is a perfectly natural bodily function - - -

BRENNAN CJ: You have said that a few times, I think, Mr Rares.

MR RARES: Unless there is anything else, and if I can take on board and perhaps put in writing a response to that question your Honour Justice McHugh was asking earlier, those are our submissions.

BRENNAN CJ: Thank you, Mr Rares. Mr Higgs.

MR HIGGS: Your Honours, we firstly adopt the submissions advanced by my learned friend, Mr Rares, and in the alternative, we make these submissions. Our submission starting point is to look at that which is proscribed by sections 82 and 83 of the Crimes Act. In our submission, at the very least the consequence and the proscription in those two sections is to mean that abortions in New South Wales are not available on demand, and the way in which that is effected is because of the interpretation of the word "unlawful" as that word appears in both of those sections.

The word "unlawful" in abortion legislation has been used as long ago as 1803, the history of the legislation being conveniently set out in R v Davidson [1969] VicRp 85; (1969) VR 667, at page 668 lines 5 to about 35. In 1803, and I am picking up at about line 22, there was an Act of the English Parliament that proscribed abortion in these terms:

made it a felony wilfully, maliciously, and unlawfully to administer any deadly poison or other noxious and destructive substance or thing with intent to procure a miscarriage and section 2 made it a felony wilfully and maliciously to administer any substance or thing or employ any instrument or other means with intent to procure a miscarriage of any woman not proved to be quick with child.

His Honour Mr Justice Menhennitt, at about line 23, goes on to say that:

Thus section 2 did not make it an offence to employ an instrument on a woman quick with child.

I think, with respect, that is an error. As we understand it a woman is "quick with child" if you feel movement, if the woman feels movement, and I think that the proper reading of section 2 of the 1803 Act was that section 2 did not make it an offence to employ an instrument on a woman who was not "quick with child", and they go on - - -

GUMMOW J: Does not that reflect the common law in some way, the concept of quickening?

MR HIGGS: Yes, it was. Prior to these enactments, the history of the legislation was that a distinction was made between women who were "quick with child" and who were not "quick with child" because the learning available at the time was that a different value, it would seem, was placed on the rights of the unborn child prior to the woman being "quick with child" as opposed to the rights of the unborn child after the mother was born "quick with child" and there is an earlier authority that I can take your Honours to - I will give you the reference later on - that sets out the history of the common law in that regard.

Just picking up the judgment of Mr Justice Menhennitt, and we rely on this to show the importance of how the word "unlawfully" is used in this type of legislation, he goes on to say that:

The statute of 1828 remedied this omission and also used the word "unlawfully" in the provision. In all of these statutory provisions the word "unlawfully" appeared as an ingredient of the offence save in section 2 of the original Act of 1803.

If your Honours then go to the beginning of the passage that I refer to, at about line 5, the first paragraph on page 668, it sets out the history of the legislation. After the original 1803 Act, there was the amendment note in 28, there was an Act in 1861 called the English Offences Against the Person Act and that, in fact, was the Act under which Dr Bourne was prosecuted. Then, later on, there was the English Abortion Act of 1967, which makes it easier for women to obtain abortions in England; that not applying in New South Wales.

Now, your Honours, at page 669 of the judgment of Mr Justice Menhennitt, his Honour refers to R v Bourne and, rather, going separately to that judgment it conveniently, we would submit with respect, sets out the way in which the word "unlawful" was used there in the legislation under which Dr Bourne was prosecuted. R v Bourne was a trial of an eminent surgeon who openly, in a public hospital, operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape. Mr Justice Macnaghten, the trial judge, in the course of his charge to the jury said:

"Nine years ago Parliament passed an Act called the Infant Life (Preservation) Act, 1929.....Sect. 1, sub-s 1 of that Act provides that `any person who, with the intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.' It is true, as Mr. Oliver has said, that this enactment provides for the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature; but in my view the proviso that it is necessary for the Crown to prove that the act was not done in good faith for the purpose only of preserving the life of the mother is in accordance with what has always been the common law of England with regard to the killing of an unborn child. No such proviso is in fact set out in s. 58 of the Offences Against the Person Act, 1981; but the words of that section are that any person who `unlawfully' uses an instrument with intent to procure a miscarriage shall be guilty of felony. In my opinion the word `unlawfully' is not, in that section, a meaningless word. I think it imports the meaning expressed by the proviso in s. 1, sub-s 1, of the Infant Life (Preservation) Act, 1929, and that s. 58 of the offences Against the Person Act, 1861, must be read as if the words making it an offence to use an instrument with intent to procure a miscarriage were qualified by a similar proviso."

Now, your Honours, at page 670, at about line 35, the third last paragraph, and from there on to the third line on page 671 Bourne, we would submit, is authority for the proposition that "unlawfully" is qualified by reference to the doctrine of necessity, as stated and considered in Stephen v Dudley.

The principle of necessity is stated by Stephen in his Digest of the Criminal Law in the following terms:-

and it is then set out. In the second paragraph:

Whilst necessity is not a justification for every act which would otherwise be criminal.....none the less the concept of necessity finds its place in various branches of the criminal law.

and then various examples are given. And, down the bottom of the page, third last line:

Having regard to the deliberate and repeated use of the word "unlawfully" in s. 65 of the Crimes Act -

which is in similar terms to sections 82 and 83 of the New South Wales legislation:

and the nature of the offence created and the history thereof and in the light of the authorities and views of learned authors to which I have referred, it appears to me that necessity is the appropriate principle to apply to determine whether a therapeutic abortion is lawful or unlawful within the meaning of s. 65.

And then, of course, the test - and I will not read it out - is set out at the bottom of page 671 from line 49 to the end of the page, that being the test that your Honours have already been referred to on a number of occasions.

BRENNAN CJ: That is the point that seems to me to raise real difficulties. His Honour here, in Davidson, was dealing with a criminal charge and, therefore, he had to give the jury a direction which would bring in the elements of criminal responsibility which are appropriate to a particular accused and for that reason, at line 50, he speaks of "honestly believed on reasonable grounds". Up until that point, the elements of the offence have been dealt with in terms of necessity and then when he comes to the direction to the jury in relation to criminal responsibility, he necessarily gives them direction in terms of honestly believing.

Now, that seems to me to be the problem about Wald's Case. In Wald's Case, although the same problem arises, there has been conceived to be an honest belief as an element which goes into the definition of the offence, but it never did and it never does in any other case. It makes no difference in terms of criminal responsibility. It makes a great difference in terms of the questions of what are the elements of the offence as defined.

MR HIGGS: It suits us to adopt that which your Honour is postulating.

BRENNAN CJ: Yes, it makes no difference to you, it seems to me.

MR HIGGS: No, but the argument that I would seek to advance is that even if you take into account and apply Wald which requires a bona fide or an honest belief, which is the subjective element, that on reasonable grounds, which is the objective part of the test, that when you see the tension between the two rights that Wald seeks to address, that that is the starting point in determining what it is; what the rights of the mother are and I will come to it, but our submission is, in a nutshell, one, the statute expressly prescribes an abortion unless the mother - and I am truncating the test for the sake of the argument - would have had serious danger to her. I know that the test is more complicated than that.

Mr Justice Priestley picks up that distinction and the distinction by putting the test that way as opposed to saying that the test is that she could have had serious danger. We say that her rights must be adjudged by reference to whether or not at the time there was available an honest belief on reasonable grounds that she would, as opposed to could, suffer serious consequences and the reason that we say that is, in part, because of the purpose of the legislation which, by reference to all of the authorities, in our submission, is to protect the life of the unborn child. Otherwise, why would the statute be on the books?

If it were to protect the mother, there is no need for sections 82 and 83. She would be protected by the law against assault. She would be protected because there is legislation to ensure that these types of procedures should be carried out by people who are properly qualified. The section does not limit itself by distinguishing between backyard abortions and abortions that are carried out by medically qualified legal practitioners. An express reference to that is made in Sockett's Case that is referred to in our written submissions.

There is no distinction in the legislation as to the rights of the unborn child or the interests of the community in protecting the unborn child by reference to the stage of development the foetus had reached at the time the procedure was proposed. There is no distinction made with respect to the protection that the community would wish to give the child, regardless as to whether or not you regard the foetus as life or as a precursor thereto. If you accept, we would submit with respect, that the purpose of the legislation is to protect life then, in the end, whether or not sections 82 and 83 would deprive the mother in this situation, assuming that there was an offence against section 83 that she was not directly involved with, whether or not she should be deprived of remedies really comes down to how seriously this Court believes those rights of the unborn child are and how important it is for the community to protect those rights.

McHUGH J: I am not quite following this. Could I just go back a stage? You are seeking to rely on illegality to defeat what is otherwise a good cause of action; that is the hypothesis we are dealing with at the moment.

MR HIGGS: The starting point is you have to look at what the duty of care is, we say, and it is not like the normal tort case where a defendant in the normal course as a pedestrian or a driver on the road or in a contractual situation, by reference to Wyong Council v Shirt, normally can turn about and say, "You, the plaintiff, had a duty to exercise reasonable care and skill. In discharging that duty, you are compelled to take reasonable steps to avoid risks that are not far-fetched and fanciful." The right, we would submit, to the mother, because of sections 82 and 83 of the Crimes Act, is that she is entitled to take steps to protect her health, serious injury to her health, in the event of, at the time the proposed abortion was meant to be carried out, there was an honest belief on reasonable grounds that she would have suffered serious problems rather than could.

McHUGH J: I understand, but that seems to indicate you get all of this out of this statute. How do you get it out of the statute? Is it implied in the statute itself or is there some public policy expressed in the statute which then operates generally in contract and tort law?

MR HIGGS: We say that there is an express proscription, because we look at what is expressly prohibited by the section, and you then say from that that you better are able to understand impliedly what the purpose of the legislation was. We say that the purpose of the legislation was to address the tension between the rights of the unborn child and the interest of the community in protecting the unborn child with the rights of the mother to take steps to avoid serious health.

McHUGH J: So it is not an illegality case at all really.

MR HIGGS: No, we say that - - -

McHUGH J: It is a duty of care case and no duty of care arises in this situation, not because of illegality but because of some perceived policy that is behind these sections.

MR HIGGS: We put it on two bases. We say that, in our submission, it is firstly prohibited because of statutory illegality divined from the purpose of the legislation in the way that I have put.

McHUGH J: Can I just interrupt you there. On that basis it could only be her illegality, could it not?

MR HIGGS: No, because we say it depends upon how important it is determined by this Court - it depends upon the - - -

McHUGH J: Once you move out from her illegality, it seems to me that you must be moving into some general public policy area.

MR HIGGS: Your Honour might recall Hurst v Vestcorp.

McHUGH J: Yes.

MR HIGGS: That was a case where there was, as I remember it, an express prohibition for there to be an offer to the public under the Companies Law unless there was a prospectus. There was nothing in the legislation to say what the effect was upon contracts arising out of that offer in the event of a prospectus not having been made available. But the implied purpose of the legislation was to protect people from making investments without the benefit that the legislation wished to provide them by virtue of the prospectus.

There was an express prohibition, an implied purpose and, even though innocent people might be affected by the loan agreement in that case being struck down because of statutory illegality, as I understood the case, your Honour and the President, as he then was, held that, even though it was a difficult situation and even though innocent people might be affected by loans of that type being struck down, nonetheless the illegality deprived anyone relying upon that type of contract.

McHUGH J: Yes, I know, but, (a) we are not dealing with contract for the moment, and if we are, their contract had nothing to do with anything involved in 82 or 83. It was advice about pregnancy. Can I just ask you to test it this way? Supposing the only pleading here was that he was in breach of a duty to prevent damage to her, the damage being the cost of the confinement. Now, that is a legitimate head of damage. Why did he not owe a duty of care in respect of that head of damage, if that was the damage pleaded?

MR HIGGS: Before I answer that question, if I can answer it this way: we say that the illegality affects the existence of the duty of care and/or the question of causation and/or damage. But, to - and I hope I am answering your Honour's question.

McHUGH J: Yes.

MR HIGGS: If we be right, we say that the right that the mother had to protect herself is confined to taking steps in the form of an abortion to avoid serious damage to her health and that does not include the normal consequences of birth. If the confinement is nothing more than the normal consequences of birth, on my submissions in the alternative to what is already been put - - -

DAWSON J: It is not a consequence. It might be a prerequisite.

MR HIGGS: I am sorry, your Honour. Your Honour is right. If that which the mother suffers is nothing more than the normal incidence of birth, then there is no damage, and there is no duty to save her from that. If, for example, she were to suffer economic loss, directly that would not be damage either, unless that was part of the reason why she suffered physical and/or mental health of a type which at the time was available to a person to believe would be the consequence on the basis that someone could form an honest belief on reasonable grounds.

It is in the alternative to what has been put, but we say that you have to focus on what it is she is permitted to do, unlike the normal plaintiff. She is not able to insist that people take steps to avoid the possibility of any damage. She is not entitled to insist that people take steps to avoid damage that could occur, which is normally a right that a plaintiff does have, because, if you applied that test, then you would in substance have an abortion on demand. That was the analysis of Mr Justice Priestley in the Court of Appeal because most births carry with it, as a normal consequence, the risk of something that could happen as opposed to would happen.

If, for example, a mother of the type your Honour referred to yesterday in the course of argument who had, by reference to the rights that we say flow from sections 82 and 83, had six children, was impecunious on any view and she was perfectly entitled and everyone else was perfectly entitled to form an honest belief on reasonable grounds that for a whole host of reasons, including her impecuniosity that would flow from having a child, that she would suffer mental health problems and physical problems, then we say that we would be negligent and we would be liable for damages, including the economic loss, but only to the extent that would enable her to avoid the danger that the Act directs itself to, namely to get herself back into the position that she does not suffer the health problems that flow from her impecuniosity.

Test it in this way: in a normal case a plaintiff could say, "I love my work, I'm paid well for it. You have bashed me up with a motor vehicle and I am claiming damages for economic loss because I can't do my work". Prior to the trial - a most unusual event - but he wins the lottery. In that situation, because he is able to prove that he would have continued to work anyway, he would be still entitled to damages for his economic loss. Apply the same situation to the mother. She is the lady who is impecunious and has a number of children and the only reason that she is suffering from bad health is because, quite understandably, she is impoverished. She wins the lottery and, had she won the lottery beforehand, she would have gone ahead and had the child and she would not have wanted to have the abortion or, at the very least, she would not have been - - -

McHUGH J: I understand your argument. It seems to me that it can only succeed on the basis that the statute contains some general policy and that policy impacts on the law of torts and therefore she is not defeated because she herself would be committing a criminal act, but because there is this general policy which just prevents anybody from doing certain things except on certain conditions.

DAWSON J: That is not very hard to swallow, is it, that there is no duty of care to commit an illegal act, or to advise someone to engage in what would be an illegal act?

McHUGH J: That is the point of distinction, is it not, because if you are talking about an illegal act, it must be her illegal act? Her duty of care cannot depend upon whether or not somebody else may or may not be liable. If there are two doctors giving advice, one who has an honest belief, and another one who has a dishonest belief or, one who has reasonable grounds, and the other one does not, and they are both doing the operation, what happens then?

MR HIGGS: Your Honour, firstly, we say that it really comes down to the importance that the legislature placed upon the rights of the unborn child. In the event of it being determined by this Court that the legislative intent placed the rights of the unborn child, or viewed them as being extremely important - - -

McHUGH J: Can I just - I will leave the subject alone after this; I have taken up far too much time in this argument pursuing these points, but, supposing you had a situation where you have got a doctor and a nurse performing the operation and the nurse says to herself, "I don't believe this woman is entitled to an abortion under the law - principle, this is my job, I will assist this doctor to carry this out". Now she is committing an offence. The abortion is unlawful as far as she is concerned, but the doctor honestly believes, and has reasonable grounds within Wald, and the plaintiff has been advised by the doctor. Now, what is the plaintiff's situation then? The abortion is a criminal offence so far as the nurse is concerned and she is a participant in it, what is the result in terms of tort?

MR HIGGS: In the event of it coming down to the bona fides of one of the people who participated in the abortion, it would have no consequence. But, in the event of it not being open, on reasonable grounds, to have that - in the event of the objective test not being made available and not being satisfied which, according to Mr Justice Priestley's analysis of the evidence, and that which Mr Justice Newman accepted was the case, we say, it was an abortion that, on any view, should not have occurred and was one, because of statutory policy, should not be recognised as comprising damage.

BRENNAN CJ: I must say, for my part, I simply cannot understand how one can conflate the idea of criminal responsibility of an individual with the criminality of the act. In other words, there is a statute which contains a prohibition of some content, without saying what the content is. There may be a number of persons who are involved in the commission of that act. Some may be guilty, some may be innocent, and that depends relevantly upon the honest and reasonable beliefs which each of them has but if one regards the act as dependent upon the criminal responsibility of individuals, one has, as I see it, conflated the notion of the act which is proscribed with the criminal responsibility of individuals for it.

MR HIGGS: We accept that and I am trying to avoid going over, as I understood it, the argument that has already been put to your Honours and this is we would put it in the alternative.

McHUGH J: I know, but it depends upon what content you give the word "unlawfully". Is it, as Justices Menhennit and Levine held, that the mental state of the person and the reasonableness of the act are all part of the content of the offence under the word "unlawfully"? It is not like the Code States where you have got a prohibition and you have separate sections dealing with criminal responsibility.

MR HIGGS: Firstly, we would submit that the starting point is that the abortion is proscribed unless it is lawful and that it only becomes lawful in the event of their being the mental elements that have been referred to, namely the honest belief on reasonable grounds.

McHUGH J: Well then, you must agree then that is part of the content of the offence?

MR HIGGS: Our primary submission is to adopt that which fell from his Honour the Chief Justice, which I understand has been covered by Mr Rares, but in the alternative, accept that it is part of the offence. Even though in the situation it may be that some people are guilty of a criminal act and some people are not, including the mother, we would submit with respect, that because of the importance that attaches to the rights of the unborn child to be inferred by the legislation as the intent of the policy, that simply because the mother is not guilty of a criminal offence, even though she has not acted unlawfully, does not elevate that status to one of a right to claim damages for the abortion in the event of their being no, on an objective test, serious threat to her health at the time. We would submit with respect, it would be wrong to confuse the fact that simply because something is not unlawful means that you have a right to pursue it in the circumstances of this legislation.

GUMMOW J: Mr Higgs, are you going to take us to any extent to the common law in this?

MR HIGGS: No, your Honour.

GUMMOW J: I see. One hopes for some assistance.

GAUDRON J: One would think it would throw some light on the meaning of "unlawful".

MR HIGGS: Your Honour, our starting point is that which was set out in Davidson at page 668 - - -

GUMMOW J: That may conflate to common law ideas. One, the concept of quickening; two, the concept at any stage, quick or otherwise, of some allowance in the common law for questions of error and mistake - - -

MR HIGGS: There is an authority that I can give your Honour, and I do apologise for this. It was referred to in argument in the Court of Appeal and it does set out the history of the legislation and it is all conveniently bound up in one judgment, and I can give your Honours the reference to that.

GUMMOW J: Very well. The other thing I wanted to ask you is: paragraph 5 of your submissions, are they directed to contract as well as tort?

MR HIGGS: Yes. As we understand it, your Honour, the contract that is relied upon in these proceedings, apart from the causal link, or the question of proximity or causation, but in relation to the duty of a contractual obligation, is one and the same. The contract pleaded was to take reasonable care and skill or to exercise reasonable care and skill. The same applies in tort. From a practical point of view, we would submit that there is no great difference between the consequences that flow in the event of it being a breach of contract or a breach of tort in this situation.

GUMMOW J: I am not worried about illegality. You would say it operates the same way?

MR HIGGS: Yes.

GUMMOW J: Both in formulation of duty of care and in relation to performance of contractual obligations?

MR HIGGS: For the reason that in tort the approach seems to be that if there is an illegality, it impacts upon the duty of care or questions of causation and damage. In the event of contract as in Nelson v Nelson and in the case of - - -

GUMMOW J: What I am trying to get out of you is, how do you say illegality enters into the contract here?

MR HIGGS: The illegality enters - - -

GUMMOW J: Of course it can come out of the statute and infect both contract and tort, but how does it infect contract here?

MR HIGGS: It affects the contract in relation to the obligations that are sheeted home to the doctor to exercise reasonable care and skill; that is a contractual obligation.

GAUDRON J: But the contractual obligation could not have been anything other than to exercise reasonable care and skill in telling this lady whether or not she was pregnant. There is no illegality in that.

MR HIGGS: No, but it is - - -

GAUDRON J: The way in which it is pleaded perhaps obscures that fact, but that is what the contractual obligation was. That is the only one it could have been.

MR HIGGS: I cannot put it any higher than I have. The other way of attacking it is to say that by reason of the illegality, there is no damage.

GAUDRON J: But what illegality?

MR HIGGS: The illegality of the abortion being carried out in circumstances when, by reference to section 83, at least, it should not have occurred.

BRENNAN CJ: That is a damage problem. It is not a contract problem. It is not a question of infecting the contract and making the contract unenforceable.

MR HIGGS: No, your Honour. Going back to where I started from, we say that there is an express prescription. The purpose of the Act is to protect the unborn child, and I have covered that. Our third submission is that normally in tort, a plaintiff is entitled to insist that people exercise reasonable care and skill to avoid evil that could occur as opposed to would occur, and that, we would submit, as I have been over already, impacts upon the rights that the mother has. We would submit, with respect, that this, for example, can be distinguished from sterilisation cases. In the sterilisation cases, there is no law to prevent, and there is no indication from the legislature, that a person does not have the right to be sterilised.

Most of the American authorities that award damages for the birth of a child in the event of their being a negligent failure to affect the sterilisation, we would submit, do not have any direct bearing on the question before this Court now, because in this case, because of the Crimes Act, there is no right, for the reasons that I have already advanced, to have an abortion on demand, whereas, in those cases, there is a right to have a sterilisation, or, in the example that Justice McHugh mentioned in the course of argument this morning, that there is no obligation on a parent who goes to an adoption agency to take on a child. There is a right that they have to say, "In the event of there being something wrong with the child, I have a right not to adopt the child". That is the reason why we say that this case is different to those examples.

In the event, we would submit, of the Court being of the view that the rights of the unborn child are important, in relation to whether or not in this situation where the abortion would have been unlawful, whether it is something that cannot be recovered, really comes down to this: is Wald too hard for this community to abide by now? Is it too difficult to impose an obligation upon others to carry the child in the event, by reference to objective standards, there is no risk of serious harm to them? There are three cases being examples of people being deprived of rights in contract, or in tort, or under a will, when they rely upon an illegal act even if they, themselves, have not been guilty of the illegality themselves.

There is Beresford's Case (1938) AC 586 that is on the list. That is a situation where Colonel Rowlandson was impecunious. He had negotiated with the life insurance company to extend the time to pay his premiums to 3 o'clock in the afternoon on a particular day and he committed suicide at 2.57. It was found that he did so to have his estate benefit from the life assurance policy that he had taken out over his life in relation to which there had been the negotiations for the deferment of the payment of premiums. The beneficiary in that case argued that she as a beneficiary under his will was not guilty of any offence, and yet her rights were defeated because of the illegality of Colonel Rowlandson in committing suicide.

Reference is made in Beresford to other cases where the assignee of a life assurance policy is defeated because of the suicide of the life assured, but the distinction is made by Lord Atkin in the House of Lords judgment to the situation that would apply in the event of a lender having taken a charge over the life assurance policy during the course of the life assured's life as security for the loan. The discussion in relation to the anxiety generated with respect to the position of lenders who take a charge over a life assurance policy in the circumstances that I have just been over, as set out at page 599 to about page 600 point 5.

The distinction was made that in the event of the person such as the lender who is relying upon a charge, that you would classify that as being a right that is claimed independent of the illegal act rather than directly flowing therefrom, that the lender would not have its charge defeated because of the suicide, whereas the people who relied upon their right that directly flows from the illegality, that they would be defeated, such as the assignee or the beneficiary. That generally is dealt with by Lord Atkin on pages 596 and 597 of the report.

I have already referred to Hurst v Vestcorp and both Beresford and the authorities referred to therein are cited in Helton v Allen [1940] HCA 20; 63 CLR 691 at page 709 and, it seemed, with approval.

In relation to the issue which was raised yesterday as to whether or not there should be liability that flows from the illegal abortion in the circumstances that she could have obtained an abortion in a place other than New South Wales, it is our submission that this was a claim made by a plaintiff for relief from a court in New South Wales and, because of the statute and the public policy considerations, even if a person could go off to Kathmandu or some other part of the world and by reference to the law of that country obtain a legal abortion, that a court in New South Wales would not assist and provide remedies of the type that are being sought in this particular case.

GAUDRON J: What about in the other States or the Territories of the Commonwealth, having regard to the full faith and credit provision of the Constitution?

MR HIGGS: Your Honours, in our submission, it comes down to how important the right is, the rights of the unborn child are, as gleaned as a legislative purpose or intention from the Act. If because of the seriousness of the right it is one that - - -

GAUDRON J: I do not know that the full faith and credit provision allows a court to decide to ignore the laws of another State on the grounds that it has a view about the importance of human life or the life of the unborn child.

MR HIGGS: Your Honour, in my submission, it does not mean that that is being breached simply because there is legislation, perhaps, in other States that permit an abortion to be carried out in less stringent circumstances that that apply in New South Wales but because of the importance of the rights, and the importance of the community interests, that the - - -

GAUDRON J: I seem to remember that there are decisions of this Court which denied that a court could refuse to apply the law of another State on public policy rights.

GUMMOW J: Merwin v Moolpa for one.

MR HIGGS: It could refuse to apply.

GAUDRON J: No, could not.

MR HIGGS: Could not. Well, your Honours, we would submit that in this particular case Mr Rares has already made the submissions that it did not seem to ever be suggested that it was a real opportunity to this lady that she could have gone elsewhere and I will not traverse that again. But, in addition to that, we would submit that we are not aware of any legislation in other States that make it easier for abortions to be carried out and, if it applies to going overseas, well, our submission is the one that I have already put.

In relation to the importance of the interests that are being protected in New South Wales, which the legislation seeks to protect, that we would submit, with respect, that that would be an exception to the rule that would prevent otherwise the full faith and credit provisions from applying. Also, we would submit that, in that instance, we would not be ignoring the laws of the other State; we would be applying the law of New South Wales to the recovery of damage alleged to have been incurred in New South Wales. In relation to these proceedings, we submit that the mother bore the onus in relation to the question of damages and causation.

It does not matter as to what would have, or might not have happened in a criminal trial. Simply because a person had been acquitted of a crime in a trial does not give rise to an estoppel; Helton v Allen [1940] HCA 20; 63 CLR 691 at 709. We would submit, with respect, that, at the very least, on the evidence there was a breach of section 83 of the Crimes Act by the doctor that would bar the relief; that the analysis of Mr Justice Priestley at 473, line 45 to 474, line 25 is correct. That is where his Honour held that there was, on the evidence available to the judge who tried the matter at first instance, without being guilty of any palpable error, it was available to him to find as he did, that there was no evidence on the objective test that would lead someone to believe on reasonable grounds that this lady actually did at the time have any serious risk of injury to her.

It is also our submission that, more over, although it was found by his Honour that the mother would have had the abortion had she had the chance, that, in our submission, there was no evidence that she would have had the abortion in the circumstances of being told by a doctor at the time that there would have been - at that time there was a real chance of danger occurring to her health.

It may well be that there was evidence available that there were doctors available to carry out the abortion. But no one was called at the trial who actually carried out terminations of pregnancies. The only person who was called at the trial, who was associated directly with her management at about the time the opportunity arose for an abortion, was Dr Kok, who actually saw her after the opportunity had passed.

DAWSON J: Dr Weisberg's evidence was fairly unequivocal, was it not?

MR HIGGS: Dr Weisberg - but she never saw the plaintiff at the time.

DAWSON J: She said that did not matter.

MR HIGGS: I am simply addressing it on the basis of - but her evidence was not that a doctor in this situation would have said to her, "This abortion is available to you on the basis that you will have the chance of serious danger befalling you in the event of the pregnancy - - -"

DAWSON J: Well, as I read her evidence, it came close to saying that in any pregnancy there is that serious danger, and that justifies an abortion.

MR HIGGS: That is so, but - - -

DAWSON J: But you just said there was no evidence.

MR HIGGS: I do apologise. The evidence that was before his Honour, and that is as best as it gets, we would submit with respect, made a finding of the type that he did make one that was available to him, that he could reject her evidence, as he did, and then he is left with this situation, that there was no evidence that an abortion that would have been available to her, would have been available upon the basis that someone would have sat down with her and said, "You have a real chance of serious injury befalling you, in the event of the pregnancy proceeding".

Mr Justice Priestley's analysis of it was that, putting her case at its highest on the evidence, it may well have been that a doctor would have sat down and said something like that to her, that would have, in turn, meant that she could have avoided prosecution for either aiding and abetting a crime, under section 83 of the Act, or being guilty under section 82 of the Act. We would submit, with respect, that Mr Justice Newman's finding is to the effect that there was a breach of the Act that involved both the hypothetical doctor's criminality and her criminality, and, if that point be right, then it must be, on any view, that we should succeed on the defence of illegality.

It is one thing to say that there were doctors available who would have provided the abortion had she gone along and sought it and we would submit, with respect, that his Honour Mr Justice Priestley, at least, and the learned President as he then was, erred when they came to the view that it was wrong for the trial judge to come to the view that she could have come to a stage where her mind was innocent in the sense that she would have had an honest belief on reasonable grounds because of what she had been told by the doctors. There was just no basis for saying that at all because it would have been a lie and her evidence was that she would have had the abortion irrespective of whether she had an honest belief on reasonable grounds.

She gave that evidence at page 31 at about line 10 of the transcript that when she went to see Dr Nafte early in the piece she wanted to have an abortion because she was not married, she was not ready and that she was a student, from about line 2 to line 15. At page 47 of the transcript she was asked in-chief as to whether or not she had been offered an abortion whether she would have gone ahead and she said, "Absolutely". Then, at page 85 of the transcript she was asked these questions from about line 30:

Q. And if you were told the test was positive -

that is the pregnancy test -

you would, as you have said, done something entirely different?

A. Yes.

That is about proceeding on with the pregnancy:

Q. When you say you would have done something entirely different, do I take it in January 1987 and February 1987 you regarded yourself as a law abiding citizen?

A. Yes.

Q. You would not in January 1876 or February 1987 have undertaken anything that you knew to be illegal, would you?

A. That is right.

Q. As to whether or not a termination at that time was legal or illegal you would have had to have accepted expert advice?

A. Yes.

Q. Whatever the expert advice was I take it you would have acted in accordance with it?

A. I don't know.

Q. Is it now that 6 or 7 years later you just don't know what you would have done?

And the answer was:

I would have had an abortion.

It is one thing to say that the evidence goes, to some extent, both ways, that observation would be correct, but it is wrong to say, we would submit with respect, that his Honour palpably misused his position of advantage in coming to the findings of fact that he did, that there was evidence available to him that she would have proceeded with the abortion. She would have had the abortion regardless as to whether or not, by reference to the correct test, it was legal and that that can hardly be a right that has flow from it an entitlement to damages.

There is evidence that at the time, as opposed to the situation that prevailed thereafter, that there was no indication of serious damage. At page 38 at about line 40, she gave evidence that she was upset when she discovered she was pregnant, but nothing flowed from that. She, unlike the situation that prevailed later on, was not referred off to psychiatric counselling and the like, and I accept what fell from your Honour Justice Gaudron yesterday that that does not, of itself, necessarily mean that there could not have been a serious problem, but it is some evidence and that his Honour was entitled to take into account and weigh up and his line of reasoning, I think it is about - - -

GAUDRON J: This is before she knew she was pregnant?

MR HIGGS: No, at the time she was pregnant. At page 71 - - -

GAUDRON J: Certainly before she knew she was pregnant. Any observations before she knew she was pregnant are hardly likely to impinge upon questions of the risk to her mental health.

MR HIGGS: Before she knew she was pregnant? If there were observations of her beforehand that, by reference to expert evidence, would lead to the conclusion that she - given that this is a case where the only aspect of her health that is in jeopardy is mental health - and it may be that observations of her before she knew she was pregnant would impact upon it. From a practical point of view, I do not think that that applies here. That is the best answer I can give to that which your Honour has just posed.

At page 71 line 40 she as asked about the birth experience, and the evidence from line 40 to line 52 was that it was a happy time. That is corroborated by the antenatal cards at page 264 in volume 2 of the appeal book. There is an antenatal card that was kept - the hospital's antenatal card - and there is not one whit of a reference to any problems during the course of the pregnancy at that time. At pages 282 to 283 of volume 2 there is the obstetric nursing observations of the mother during the course of the birth. She looked happy, was smiling - positive, happy comments - immediately touched the child, cuddled it, examined the child, smiling - in a form that is sent out to obtain information if there is the hint of any distress or problems. When she gave a history to Dr Wilhelm as to how she was coping prior to the birth, at page 299 at line 55 or thereabouts, the last paragraph at line 51:

She became depressed for the first time while pregnant - this was complicated by the anger over her inability to have a termination of pregnancy following 2 false negative pregnancy tests and the general level of care from a medical centre which she regarded as unsatisfactory. She was however looking forward to the birth but didn't have any real concept of what was going to be involved in looking after a baby.

Then she goes on about what happens after the birth, she has gained two stone in weight et cetera.

At page 325 there is a report from Dr Bradbury, who was the treating obstetrician/gynaecologist. He was never called and not any report or indication from him in the report that was obtained from him by the mother's solicitors to any problem that she had during the course of the pregnancy. So, we would submit with respect that although there is evidence that was available to the trial judge that may have persuaded him that there may have been problems, there was also evidence available to him that in the normal way that trial judges weigh up evidence, enabled him to come to the view that he did that Dr Kok was a caring doctor who impressed him, and that on the evidence as to how she reacted during the course of the pregnancy, even though it was not all one way, that nonetheless it was such as to lead him to the view that at that time there was no reasonable grounds to suspect that there was any serious risk that she would, as opposed to could, have problems of a psychiatric kind after the birth.

Her relationship with the boyfriend was relevant, or, the father, I should say, I am sorry. She had been in that relationship, although they had not lived together, since August 1985. One obtains that from the plaintiff's evidence on page 28 of the transcript, lines 24 and 25. The relationship beforehand is dealt with generally from lines 15 to 40. At page 40, about line 30, after, I think it was, she was diagnosed as being pregnant - in a couple of weeks they began living together until May 1988 - page 39, lines 15 to 20 - I am sorry, that is when they started living together, and they separated in May 1988. That is at page 40 about line 30. Later on, and after a short separation, they resumed cohabitation for the latter part of 1988 and one obtains that evidence from the plaintiff's evidence in-chief at page 41, lines 30 to 40.

So, although there were problems that we do not deny for one moment, in relation to the relationship that she had with the father, nonetheless there was, it would seem, evidence available to the trial judge that there was some prospect of the relationship continuing at the time. It did not eventuate and things befell the plaintiff thereafter that were problems for her, but at the time, we would submit, there was ample evidence for the trial judge to come to the view that he did, that there was no serious risk.

Dr Maguire in his report - he was the psychiatrist engaged by the plaintiff - at page 324 at line 35 in the last sentence, even after having seen her and diagnosed a reactive depression at a time years after the birth of the child, says even at that time:

She impressed me as a fairly capable girl and I believe that in time she will come to terms with her situation.

She was obviously an intelligent lady, robust, capable, and that was another factor, we would submit with respect, that the trial judge was able to take into account in coming to the views that he did. Also, I am just reminded, at page 72 of the transcript, lines 11 and 12, in the plaintiff's evidence in cross-examination, she was asked about her feelings of depression at about line 5, and she was asked:

Q. That has come about postnatally, hasn't it, since the birth of the child?

A. Yes.

For those reasons, we would submit, with respect, that the appeal should be allowed.

BRENNAN CJ: Thank you, Mr Higgs. Mr Garling.

MR GARLING: Your Honours, we have taken the opportunity overnight to refine the outline of our submissions and we wish to, as I indicated may be a possibility, we wish to provide to the Court a replacement outline of those submissions which is more refined.

BRENNAN CJ: Thank you. Yes, Mr Garling.

MR GARLING: If the Court please. Firstly, we adopt what the other appellants have submitted and, in particular, on the issues of illegality and the like and do not wish to add to what has been put. On the issue of damage, we submit that the commencement of the analysis is to focus on what it was that the plaintiff was seeking. The plaintiff was bringing proceedings for compensatory damages. The principle of those damages is that the damages should compensate the plaintiff for the legal harm or injury which has been suffered. We, in our submissions, have addressed that by using the term "harm" rather than "injury" to avoid the dichotomy between personal injury or physical damage or economic loss, but we encompass in the term "harm" all of those issues.

The analysis is, in our respectful submission, relevant to both the question of whether it is a breach of duty in the tortious sense or a breach of contract. We submit that the way in which the case was put, which is clearly set out at a reference that your Honours were not given earlier in answer to one of your Honours' questions at page 427 line 30. Your Honours, I think, were given a reference to what the then learned President said at page 428 line 28, which is what Justice McHugh raised with my learned friend, Mr Higgs, but at the preceding page, page 427, his Honour the President characterised the claim in this way:

The damage, allegedly incurred by the first appellant in this case, includes the injuries and economic loss in Ground 22 of the further amended statement of claim, set out.

That, your Honours, is at page 9 and reference has been made to that.

GUMMOW J: Can I just interrupt you, Mr Garling, before lunch? Can I ask you a question about your paragraph 11 which you may want to think about over lunch, that is why I should ask you now.

MR GARLING: Yes, your Honour.

GUMMOW J: In the authorities referred to there - there has been a recent number of decisions of the House of Lords touching on this - and can I refer you to a passage in Guardian Insurance (1995) 2 AC 296 at 342 where Lord Woolf says this:

Before there can be a duty owed in respect of economic loss, it is now clearly established that it is important to be able to show foreseeability of that loss, coupled with the necessary degree of proximity between the parties.

And this may be the controversial part:

It is also necessary to establish that in all the circumstances it is fair, just and reasonable for a duty to be imposed in respect of the economic loss.

What I am wondering is whether you rely on that formulation of the principle in the recent English decisions? It may be that if you add this on as a third leg, as it were - - -

MR GARLING: Yes, and we would submit it is consistent with the notions addressed in a more general way by this Court of whether there are policy considerations which would deny the existence of a duty. So it is consistent with that, in our respectful submission, your Honour.

McHUGH J: I am not sure that it is. In fact, the English use "proximity" as one of the three elements and that "fair justice" and "reasonableness" is an extra category of brake that they put on it or has started to come into the cases in the last four or five years.

MR GARLING: Your Honours, I note the time. Is that a convenient time?

BRENNAN CJ: Yes, very well. How long do you expect to take?

MR GARLING: I said last night, your Honour, about half an hour. I do not think I wish to vary that.

BRENNAN CJ: The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Garling.

MR GARLING: If the Court please. May I deal with the matter that Justice Gummow raised shortly before the adjournment. In my respectful submission, the way in which, consistently with the authority of this Court, it is open to this Court to deal with notions of fairness of the kind that Lord Woolf spoke of, is to regard them as part of the policy considerations which impact upon the existence, nature and extent of a duty with respect to economic loss. For example, the way in which, in dealing with a duty with respect to economic loss, it is potentially open to allow damages to an indeterminate class and an indeterminate amount is dealt with as a policy consideration such as the way in which this Court's judgment in Bryan v Maloney dealt with that issue would be dealing with the concept to which Lord Woolf was addressing himself; namely, is it fair and just to impose the liability in the particular circumstances.

On the other hand, if what his Lordship is speaking of is an idiosyncratic notion of justice as being fairness or justice as a concept which can be imposed, then consistently with authority, we would submit that that would not be an appropriate imposition of an additional requirement in order to determine the duty of care, such concept having been rejected by a number of the judgments of this Court, of which the judgment of Justice Deane in Sutherland Shire Council v Heyman is an example, and in his earlier judgment in Jaensch v Coffey, where he also dealt with that issue.

Your Honours, in this particular case, we submit that it is not necessary to go so far as to examine whether it is fair to impose a duty. We submit if one engages in the process of identifying the legal harm, in the way I used that term earlier, whatever way this case is put by the plaintiff, it is inevitable that the harm which is identified is the birth of a child.

May I address that submission in this way. If the case is put as a loss of opportunity for the plaintiff to have a termination operation procedure, then that loss of opportunity will not amount to harm or damage unless the opportunity has a value. The opportunity can only have a value if the state avoided, ie pregnancy, has a value, and one then gets into the question of whether one can place a value on human life and, we submit, consistently with what the appellants earlier put, that one cannot engage in that exercise because attempting to value a human life is not a fruitful exercise, nor even a possible one.

DAWSON J: But are we in the area of lost opportunity? My next question is, what is the discount for the chance? No one has suggested there is one.

MR GARLING: No, your Honour. We do not suggest it is a lost opportunity case because your Honour will recall I took you to the passage in Justice Kirby's judgment where he adumbrated the way in which the case was put, but if it be put as a lost opportunity case - - -

DAWSON J: That is the way the pleadings put it, but do the evidence and the argument follow that course?

MR GARLING: The way in which Justice Kirby outlined it, we would submit, is an accurate way in which to describe the way in which the trial proceeded.

DAWSON J: But how could it be, because no one said there had to be a discount for it merely being a chance, as I understand it.

MR GARLING: No, your Honour, but what the - - -

DAWSON J: If that is not so, unless the chance was 100 per cent, or the opportunity was 100 per cent, it is not a lost opportunity or chance case.

MR GARLING: That is if the damage is the lost opportunity, but the way the trial went and as I thought Justice Kirby - - -

DAWSON J: That is a what a lost opportunity case is, the damage is the lost opportunity.

MR GARLING: Yes, but as I thought Justice Kirby set it out was that the lost opportunity was a link in the causal chain.

McHUGH J: No. At 428, line 29, he said that:

the loss of opportunity to terminate was pleaded as the cause of the injury.

MR GARLING: But at 427, your Honour, he puts it differently. In the passage I took your Honour to before lunch at line 30, he says:

The damage, allegedly incurred by the first appellant in this case, includes the injuries and economic loss in Ground 22 of the further amended statement of claim, set out. It is the failure of the respondents to advise her that she was pregnant when it would still have been safe for her to seek a termination, which deprived the first applicant of the opportunity so to act. She alleges that this caused the damage which flowed from the resulting birth of her child.

By the terms of the appellants' pleadings it is apparent that it was not asserted that the damage suffered as a consequence of the respondents' negligence was, as such, the loss of the opportunity to terminate the pregnancy.

We would say that is the way in which the case was put.

DAWSON J: Well, it is inconsistent, that is all because he - - -

MR GARLING: Unless what his Honour was referring to at 428, line 28 was that the loss of the opportunity was a causal fact that had to be proved by the appellants rather than a head of damage in itself and we submit, having regard to what his Honour says at 427, that is the way in which that passage at 428 ought to be read. If one treated it as a causal fact, there was no need to assess a discount because once - - -

DAWSON J: You need not say opportunity was the deprivation of the abortion.

MR GARLING: Yes, but I suppose the term "opportunity" was used in the sense of saying, "I did not ever have it. I lost the opportunity to have it" was the expression with which it was used. In other words, used in the sense of being an occasion, "I lost the event".

DAWSON J: Yes.

MR GARLING: Even if it were put that way, namely as damage as a lost opportunity, we would submit that it still falls within the concept that the harm for which damages are being sought is the birth of the child. Equally, with respect, the way in which the case was pleaded has in it these four elements which, we submit, demonstrate that the harm was the birth of the child. The four elements were in the cases pleaded, firstly that information was given which was incorrect; secondly, that there was no termination of the pregnancy; thirdly, that there was the birth of the child and then fourthly that associated, or as a result of that birth, there was pain, suffering, economic loss, in the sense of lost income to the mother, and economic loss in the sense of the costs associated with raising the child.

Upon that analysis, it is our submission, the gist of that sequence of events is still a birth of the child. Therefore, however one analyses it, in our submission, the damage which is the gist of the plaintiff's claim, either in tort or contract, is the birth of the child. That is, we submit, something which the law does not attempt and cannot attempt, and ought not attempt, to value.

Secondly, we submit that the reason, or a second reason why the law would not attempt that process, is that when one examines what it is that a trial court would be asked to do, it is the very examination of what it would be asked to do that excites submissions and comparative concepts that most, or many, would find offensive, and divisive, and contrary to the social good. I do not mean, in putting these submissions, to offend any one of your Honours, it is not my intention to do so.

GUMMOW J: It would be surprising if it were, Mr Garling.

MR GARLING: It is just, your Honour, that when I heard my friends put some submissions yesterday that succeeded in offending at least two of your Honours, it occurred to me to apologise in advance lest it be thought that I was doing so deliberately. But the point I wish to take from that is the very concept that one is trying to value the harm necessarily involves looking at both sides of the equation. In other words, one has to look at the position at the end of the day. Has a harm been caused? This is assuming one gets to valuing a life. Has a harm been caused? One cannot look at that in a narrow way; one cannot look at it simply and say the harm is the economic cost because, if one did that and there was in truth a benefit in that equation and one only looked at the burden or the economic cost side of the equation, one would be overcompensating the recipient of the damages, these being compensatory damages.

So that in order, consistently with the principle of compensatory damages, to assess that, we submit that you have to look at both sides of the equation. That involves the sorts of comparisons to which his Honour Justice Meagher referred below, but which need to be addressed, namely, is the particular child more of a trouble or a benefit to the particular parent? That necessarily involves an examination in Court of subjective views and subjective reactions.

GAUDRON J: I am wondering though why one is not looking at the opportunities foregone, economic opportunities foregone, by the plaintiff in consequence of the pregnancy, which may of course be much greater as a head of damage than the costs of upbringing of the child.

MR GARLING: Yes, your Honour. Let it be assumed the claim is put that way.

McHUGH J: Well, it is in part, is it not, that she had to give up her employment. Was not paragraph 22(b) - - -

MR GARLING: There was certainly an economic loss or lost economic capacity claim made for a limited period, but I rather understood Justice Gaudron's question to be a bit broader than that.

GAUDRON J: Yes, it would include that but it would include the loss of opportunity to progress at relevant times through career or employment ladder and all sorts of things.

MR GARLING: Perhaps to accept a contract of employment that had been offered or may have been available or one of those areas.

GAUDRON J: In realistic terms one knows that the birth of a child has, nine times out of ten, quite serious consequences for the employment and career opportunities available to women.

MR GARLING: There is no question about that, your Honour, but if one was to look - - -

GAUDRON J: And that involves no question of valuing a human life or anything of those matters which everybody has found so difficult to deal with.

MR GARLING: One would then have a circumstance in what your Honour postulates as being something along these lines, that the loss that was identified was a claim for pure economic loss of the mother, not related to the child except in this way: occasioned by reason of the existence of the child. The fact that the birth and the - - -

GAUDRON J: Occasioned by motherhood at that time.

MR GARLING: Yes. We would say, firstly, that a claim framed with those elements is so closely an incident of the birth of the child and its upbringing as would fall within the public policy parameters that we submit would deny a claim.

GAUDRON J: I fail to see why.

MR GARLING: Your Honour, because, even though there is a cost to the mother in that circumstance, if one looked at simply the cost, one would be ignoring the totality of the circumstances which may or may not be categorised as a harm. May I put this answer to your Honour's question in this way. Let it be assumed for a moment that the grandparent had endowed a trust for the benefit of their grandchildren so that when the child turned 18 or 21 the child inherited a large sum of money and was able to commodiously provide for the child's mother. There would be, in that circumstance, as an incident of motherhood, a real and material and economic benefit.

GAUDRON J: You must know different children from the ones I know.

DAWSON J: It is simply - you just say that it is the price to be paid for the price of the gift of a child.

MR GARLING: It is part of the public policy associated with the child, but I was seeking to test it in a different way by saying that one cannot just look at it narrowly, your Honours, because there are all sorts of incidents of motherhood that provide, or may, depending upon the circumstances, either economic or other assessable benefits.

GAUDRON J: I suppose there was evidence about these benefits, was there?

MR GARLING: Well, there was certainly evidence, your Honour, that the mother had received economic benefits to which she would otherwise not have been entitled if she were not a mother, and an issue arose and was raised in submission which did not need to be determined, either by the trial judge or the Court of Appeal, as to whether one was entitled to offset that against the claim. That necessarily involved an exploration of such authorities as Manser v Spry and Lee v Redding, and those authorities, but that did not need to come to fruition. But that was certainly an issue as to whether that sort of benefit was something which the tortfeasor was entitled to have taken into account in their favour.

GAUDRON J: It really depends how the claim for damages is approached and what it is, if anything, that is to be compensated for.

MR GARLING: Yes, your Honour, and that is why we submit that the initial focus must be on what harm, if any, has arisen, and why we submit that the most singular and important element in assessing that is to identify the fact that it is the birth of the child which is what is giving rise to the assessment. And, for the reasons we submit, in paragraph 9 and following of our outline, the very process of attempting to assess, on all sides, the benefit and harm, or burden, however one terms it, the presence of the child is a socially divisive and usually inappropriate and difficult process.

The very fact that in approaching that process one has to raise for debate the issue of what role, if any, the decision of the mother to adopt the child played, or not to adopt, to simply raise it as an issue to debate is something which, we would submit, is not to be encouraged by the law because it raises such difficult issues of personal assessment which the law is not fitted to make.

Additionally, one can avoid, if one follows the public policy considerations for which we contend - one avoids the real possibility that an award of damages is made. As part of that award, there is no obligation imposed by the court making the award, nor can there be as part of a compensatory damages award; no obligation imposed to expend the money for the benefit of the child, or to provide for the child to the extent that the Court has determined to be reasonable in its assessment of the damages claim. Accordingly, the real possibility that circumstances may arise where either parents, having received the damages, do not use the moneys obtained for the benefit of their children, either by spending the money in their own way or, alternatively, by avoiding their obligations to their child by adopting it - their economic obligations to the child, and parental obligations by having the child adopted, or brought up by another member of the family, or some other arrangement - - -

DAWSON J: But what has that got to do with it? I mean, you proceed on the balance of probabilities that the mother will probably care for the child and incur expenditure. It is just like any other case, is it not?

MR GARLING: No, with respect, not, your Honour, because if one takes an ordinary injury case, one assesses the impact of the physical injury on the particular plaintiff. One says as a matter of evidence it is clear that the physical injury will affect the plaintiff for 20 years or a period of time.

DAWSON J: And she or he will probably incur these expenses.

MR GARLING: And will probably incur these expenses referable to that injury - the injury cannot be the subject, in that analysis, of a miraculous cure - in the sense of avoiding the consequences of the injury because the award is made upon the basis that the injury will, on the evidence - - -

DAWSON J: On the basis of the balance of probabilities as to what will happen. You do the same in a case like this.

MR GARLING: That would then mean in the assessment process, which we submit is itself a divisive process in terms of an ordered society, that would mean that one had to examine the very question of: "What is your intention with respect to this child for the future?".

DAWSON J: Of course, she could not recover damages if she was going to abandon it or have it adopted. That would have to be taken into account. It is not a different process.

MR GARLING: We submit that it is a difficult process.

DAWSON J: It sometimes is with damages for injuries, too, but it does not mean that it is a different process.

MR GARLING: No, if your Honour please, but we submit it is a process which, if consistently with principles such as the identification of a policy which would avoid the determination process of claims of this kind, it is a relevant factor to look at in terms of deciding whether or not there is such a policy that would mean that the courts would not recognise the birth of the child as an injury.

DAWSON J: I do not follow that.

MR GARLING: I can express it no more highly than paragraph 9(b) of my submissions on the top of page 3.

McHUGH J: As a matter of forensic argument, counsel for the appellants keep referring to the birth of the child as being the damage, but I do not think, with respect, that really faces up to the problem. That is not the damage the plaintiff claims. It is the consequences, physical, mental and financial, that flow from that. That is the damage. While I am at it, what is your answer to this proposition. In Rose v Ford in 1937 the House of Lords expressly held that the courts could put a value on the shortening of life. If that is so, why can you not value life? Lord Wright at page 848 said:

it is true that no money can be compensation for life or the enjoyment of life, and in that sense it is impossible to fix compensation for the shortening of life. But it is the best the law can do. It would be paradoxical if the law refused to give any compensation at all because none could be adequate.

MR GARLING: Your Honour, firstly, as I understand the common practice in claims for a loss of expectation of life, all that is awarded is a nominal sum.

McHUGH J: But that follows not from Benham v Gambling, does it?

MR GARLING: And the current line of authority is to award a nominal amount without, for example, differentiating between whether one has lost one year or 20 years or how old the plaintiff is or, for example, the nature of the plaintiff's life. Is the plaintiff a severely disabled person as opposed to an entirely healthy person? The courts do not, in engaging in that process - - -

DAWSON J: Does the amount take into account the saving and expense by the shortening of life?

MR GARLING: The court avoids all of that by simply awarding a nominal sum. I do not mean by that, a dollar, but I mean a small amount is awarded conventionally for the loss of expectation of life. Whilst one can recognise that and make an award, it is not an award of compensatory damages in any real sense. It is recognising that there has been an existing duty, an existing breach and a loss which can be identified, the compensation for which is an arbitrarily arrived at and nominal sum.

McHUGH J: I know, but in Rose v Ford, Lord Atkin and Lord Wright, two of the greatest common lawyers that the common law has ever known, both expressly said that these matters were capable of valuation in the courts.

MR GARLING: Your Honour, more recently in the case that my learned friend, Mr Higgs, referred to, McKay v Essex Health Service (1982) 1 QB 1166, the courts expressly declined to value life in that case and rejected the cause of action because the necessary step in it was to place a value on the life of the child in that case.

McHUGH J: I will read the case but Lord Atkin and Lord Wright are great authorities in the common law.

MR GARLING: I accept that, your Honour, but we would not wish your Honour to go away from our submissions thinking that we only frame the damages, the birth of a child, for forensic reasons. We frame it because we say that is, with respect, the proper legal analysis of it. In addition to the matters to which we refer as indicating that a process of assessment would be a divisive and offensive - offensive in the human sense - process, we also submit that whether the claim be in contract or in tort, if the damage is not of a kind which constitutes a harm or injury, it matters not where you have a concurrent liability in tort or contract, it matters not whether one pleads the claim in tort or in contract, the same result will follow because if it is a matter of public policy it is not right to permit damages in tort, it would not be right to permit that in contract because otherwise one would have a compartmentalisation of the basis for recovery of damages to an extent which we would submit would be inappropriate.

DAWSON J: Are you not now allowed to claim in both?

MR GARLING: No question, your Honour.

DAWSON J: Yes, I thought so.

MR GARLING: But what we submit is if one assumes that public policy denies the existence of a duty in tort by reason of its impact on the notion of proximity, one could not avoid the consequence of that by pleading one's claim only in contract and saying even though a claim in tort would not recognise any injury or harm has occurred, one could not avoid that consequence by simply pleading the claim in contract where one wanted to recover more than the nominal damage for the pure breach of the contract. One wanted to recover more damage because the law would view - - -

DAWSON J: Why in contract would it be the same, because there is no contractual duty?

MR GARLING: If, as a matter of policy, the law declined to recognise an injury in the context of tortious conduct and, therefore, provide for damages as a consequence of that alleged harm - - -

DAWSON J: You have to stop there; if the law failed to recognise a duty of care in those situations, is what you are saying?

MR GARLING: Yes, your Honour.

DAWSON J: Yes.

MR GARLING: One could not by simply proceeding in contract avoid the consequence of, firstly, the non-recognition of the claim as an injury because that would be - - -

DAWSON J: You seem to be bundling two things up. The policy may go to the availability of damages as a remedy or may go to the duty. Now, which is it in each case?

MR GARLING: In tort, it goes to both, your Honour, we submit.

GUMMOW J: And in contract to one?

MR GARLING: And in contract at least to one, but it may well go to the contractural duty if one has, as there is in this case, the contractural duty arising out of the obligations implied by reason of the generality of the contract, namely, the obligation to exercise reasonable care and skill and the like, which is - - -

GAUDRON J: That may be an unfortunate bit of pleading, but I would have thought there was probably an express contract to tell this lady what the results of her pregnancy tests were.

MR GARLING: If one assumed this was a case of express contract for a moment, your Honour, we would submit that if there was a breach of that particular term, the plaintiff may be entitled to recover a nominal damage by reason of the fact of the breach, but if the damage for which the plaintiff contends or which the plaintiff seeks to recover flowing from that breach is expressed in any broader sense, such as the way in which the damage is expressed in this case, then it would not be allowable in contract either.

May I just deal with one other matter. Your Honour Justice Gummow raised yesterday the question of how the Federal Courts of the United States of America had dealt with this issue as opposed to State courts.

GUMMOW J: Yes.

MR GARLING: I have given your Honours a reference to a journal article. I have not provided a copy of it, but I - - -

GAUDRON J: Which paragraph?

MR GARLING: It is paragraph 10, which is a review of comparative decisions in United States and England up to 1995, which is the most recent comparative article to which I have been able to find, and I have four other case references that I can provide to the Court staff, which provide references to cases.

GUMMOW J: Thank you.

MR GARLING: May I say this about the four cases to which reference I will provide. They do not seem to have a common thread of principle running through them, but may assist the Court. Your Honours, we submit for the reasons set out in our outline of submissions with the submissions we put that the appeals ought be upheld.

BRENNAN CJ: Mr Garling, if the proposition that you put in relation to the birth of the child as not being legal harm is correct, what is the foundation for any determination of necessity if it cannot be valued?

MR GARLING: As a matter of historical common law analysis, your Honour, we would submit that the defence of necessity was applicable as a matter of history prior to the quickening of the child and it would not have been applicable afterwards. That was based upon a proposition, as a matter of the analysis of the common law at the time, that prior to that point in time there was no life. Firstly, we do not need to go that far to support our submissions in this case.

BRENNAN CJ: You can put it another way, I appreciate, but, as I understand the notion of necessity, it is put on the footing of the balancing of two evils: the man who is being pushed off the plank which is only sufficient to support one surviving seaman or the alpine climber who cuts the others away from him. Here you have a value in the form of, if you like, the quickening foetus. What is the other value?

MR GARLING: The other value which needs to be balanced is the mother's health and physical or mental integrity.

BRENNAN CJ: Determined by reference to what, or by whom?

MR GARLING: That, your Honour, is a classic jury question, if I may avoid your Honour's answer in that way. It must depend upon the particular circumstances in a particular case.

BRENNAN CJ: Yes, thank you.

MR GARLING: That is a process for which a jury is well fitted.

BRENNAN CJ: Thank you.

MR GARLING: If the Court pleases. I am sorry, your Honours, Justice Gummow asked me for the reference to the case that gave a history of the common law. There are two articles referred to in Woolnough's Case (1977) 2 NZLR 508, that is on one of the lists and, in particular, at the top of page 513 point 1. There is a summary leading to those articles at the bottom of page 512. There is also an outline of the common law history in Roe v Wade that is conveniently found in Rance v Mid-Downs Health Authority (1991) 1 QB 587 at 618.

BRENNAN CJ: Thank you. Mr Callaway, first, could we have the benefit of your written submissions at this stage?

MR CALLAWAY: Your Honour, we have written submissions, but I would prefer to polish them in the light of what has fallen from the appellants, otherwise I will be - we can provide written submissions, but they will not deal with a large part of the argument that has already been put on behalf of the appellants. I know my opponents have had two bites of the cherry in each case, but - I am told that we cannot provide them, your Honour. We had prepared them, and then I am told they have been scribbled on and have not been reproduced in typewritten form.

BRENNAN CJ: I see.

MR CALLAWAY: So, to that extent, we had assumed that, as in the case of our opponents, they would be handed up immediately preceding our oral submissions, and I apologise for that assumption if it, indeed, is an assumption that we should not have made.

BRENNAN CJ: Would it be possible for you to produce your written submissions within a few days?

MR CALLAWAY: Yes, your Honour, we can do that. Perhaps we could wait until we see what Mr Temby produces also, your Honour? That might avoid any duplication or any additional submissions necessary. But, we are in your Honour's hands. If a few days means some time next week, we can do that.

BRENNAN CJ: Fourteen days, Mr Callaway.

MR CALLAWAY: If your Honour pleases.

BRENNAN CJ: In those circumstances, in accordance with the indication the Court has previously given, we will now adjourn. We will adjourn the further hearing of this case to a date to be fixed.

AT 2.56 PM THE MATTER WAS ADJOURNED