Cattanach v Melchior
Cattanach v Melchior  HCA 38; (2003) 215 CLR 1, was a
significant case decided in the
High Court of Australia
High Court of Australia regarding the
tort of negligence in a medical context. It was held by a majority of
the High Court (by McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ,
Hayne and Heydon JJ dissenting) that the negligent doctor could be
held responsible for the costs of raising and maintaining a healthy
2 Supreme Court of Queensland
3 High Court
4 Legislative reform
Mrs Kerry Anne Melchior had seen the obstetrician and gynaecologist
Stephen Alfred Cattanach, and asked for a tubal ligation procedure to
be performed on her, citing financial inability to support a third
child. She recalled having one ovary removed when she was fifteen
years of age and that her fallopian tube had at that time also been
removed. While performing the operation Dr Cattanach could see no
evidence of a second fallopian tube and so assumed that Mrs Melchior's
recollection was accurate.
Some time after the operation Mrs Melchior became pregnant by her
husband, Craig Melchior and gave birth to the healthy baby Jordan.
Kerry Anne and Craig Melchior brought actions against, inter alia, Dr
Cattanach for negligence. Mrs Melchior applied for damages for loss
and damage caused by pregnancy and birth, Mr Melchior applied for
damages for loss of consortium and they jointly applied for damages
for the cost of raising and maintaining the child to majority.
Supreme Court of Queensland
In the Supreme Court of Queensland, Holmes J held that the failure of
Dr Cattanach to warn the Melchiors of their capacity to conceive and
his negligent advice caused them to become parents of an unplanned
child. Mrs Melchior was awarded $103,672.39 for loss and damage caused
by pregnancy, Mr Melchior was awarded $3,000 for loss of consortium
and they were jointly awarded $105,249.33 for the cost of raising and
maintaining the child.
The appeal of Dr Cattanach and the State of Queensland (which was
vicariously liable for Dr Cattanach's negligence) to the Queensland
Court of Appeal (McMurdo P, Davies and Thomas JJA) was dismissed by a
majority, Thomas JA dissenting.
Special leave was later granted for
the defendants to appeal to the High Court exclusively on the issue of
the award of damages for the cost of raising and maintaining a healthy
The State of Queensland and the defendant Dr Cattanach argued that the
birth of a healthy child was not a harm and therefore could not be
compensated; that the damages do not arise from a physical injury to
the plaintiff; that such damages would open the floodgates to
lawsuits; and that the benefit of raising a child may be greater than
the cost, though it is immeasurable. Intervening by leave were also
the Solicitors-General for Western Australia and South Australia,
arguing the same lines.
In November 2003 the Queensland parliament passed the Justice and
Other Legislation Amendment Act 2003. Section 41 of that Act inserted
new sections 49A and 49B into the Civil Liability Act 2003. These
sections prevent a court from awarding damages for a financial loss
suffered in rearing a healthy child. This effectively prevents a
decision awarding the same damages that were awarded in Cattanach v
Melchior being awarded again in Queensland - however, the amendment
does not prevent a successful Wrongful Birth claim.
Section 71 of the New South Wales Civil Liability Act 2002 has similar
Further, the Civil Liability Act 1936 (SA) Section 67 again has a very
similar effect, though is expressed slightly differently.
Cattanach v Melchior
Cattanach v Melchior  HCA 38; (200