Cattanach v Melchior

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Cattanach v Melchior
Coat of Arms of Australia.svg
Court High Court of Australia
Full case name Cattanach & Anor v Melchior & Anor
Decided 16 July 2003
Citation(s) (2003) 215 CLR 1, [2003] HCA 38
Case history
Prior action(s) Melchior v Cattanach & Anor [2001] QCA 246; Queensland Court of Appeal
Subsequent action(s) none
Case opinions
(4:3) Appeal dismissed. Benefits received by having a child not legally relevant to the head of damage that compensates for cost of raising and maintaining the child.
Court membership
Judge(s) sitting Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ

Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, was a significant case decided in the High Court of Australia regarding the tort of negligence in a medical context. It was held by a majority of the High Court (Gleeson CJ, Hayne and Heydon JJ dissenting) that the negligent doctor could be held responsible for the costs of raising and maintaining a healthy child.


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.

Procedural History[edit]

In the Queensland Supreme Court 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 Cattanach and the State of Queensland 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 child.

High Court[edit]

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.

The respondents contended that no special exception should be granted as this was simply a case of medical negligence; that the costs claimed were only those the parents were legally obliged to incur; that the benefit from the child's existence is of a different class to the fiscal cost of raising it and therefore cannot offset the latter; that the appellant's argument that the child would be psychologically harmed was mere speculation; and that difficulty in calculating damages should not preclude their award.

Despite the ruling in a similar British House of Lords case, McFarlane v Tayside Health Board [2000] 2 AC 59, that damages for the cost of raising a healthy child are not recoverable, the majority of the High Court of Australia held that those damages can be recovered. It was accepted by some of the judges (e.g. Kirby J at [180]) that interference in this matter, seen to be one of social policy, was for the legislature rather than the judiciary.

Legislative reform[edit]

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 effect.

Further, the Civil Liability Act 1936 (SA) Section 67 again has a very similar effect, though is expressed slightly differently.