Wrongful birth is a recognised form of compensation claim which is brought by the parents of a child whose birth was unplanned or unexpected, and whose life came about by virtue of the negligent advice or treatment of a medical practitioner.
The leading Australian High Court decision on wrongful birth is Cattanach v Melchior, which held, by a majority of four to three, that in addition to the medical costs and pain and suffering associated with an unwanted pregnancy and childbirth, the costs of raising their healthy son were recoverable, where the child is born as a result of medical negligence. The case involved a failed tubal ligation, where, only the left fallopian tube was clipped based on an incorrect assumption that the right tube and ovary had previously been surgically removed1. As a result of the mistake, Mrs Melchior later became pregnant and subsequently gave birth to a healthy son, Jordan. A case was brought against Dr Cattanach and the State of Queensland for failure to adequately investigate and perform the sterilisation so as to prevent conception.
The key argument in favour of allowing recovery was that wrongful birth claims fall within ordinary principles of negligence, and that the plaintiff should be able to recover from the defendant all aspects of harm that are reasonable and not too remote2. The damage in these claims was ‘not the child or the parent-child relationship, but rather the burden of the legal and moral responsibilities arising from parenthood’3, or the economic harm of bringing a child into the world4.
The damages awarded in Cattanach were for the costs of raising a non-disabled child to adulthood, age 18. However, the law is yet to be settled in relation to whether special damages can be claimed beyond age 18 in the case of children who suffer from severe disabilities5 or otherwise, as many children remain dependent upon their parents beyond the age of 18.
Since the Cattanach decision, some states, including Queensland, New South Wales and South Australia, have limited the scope of damages by legislation, to prevent wrongful birth claims being pursued in cases where the child is non-disabled. The legislation allows claims for any additional costs associated with caring for a disabled child. In Western Australia, damages are not restricted by statute and damages are assessed by reference to the common law and general principles.
These issues were ventilated in a quantum only trial in the matter of O’Loughlin v McCallum, which was heard in May 2021. In O’Loughlin, the Defendant admitted to negligently performing a sterilisation procedure (tubal ligation) on the Plaintiff, which subsequently led to a surprise pregnancy and the birth of a non-disabled child, her seventh.
Assessment of damages in O’Loughlin
The Court was asked to consider four issues with respect to quantum, as follows:
Ms O’Loughlin’s loss of earning capacity caused as a result of the birth of the child;
general damages for Ms O’Loughlin’s pain and suffering and loss of amenities;
assessment of the cost of raising the child; and whether there should be an offset of any government assistance provided to Ms O’Loughlin on account of the child.
The Court awarded a global sum of $20,000.00 for loss of earning capacity, on the basis that Ms O’Loughlin was precluded from seeking employment on account of having to care for her seventh child. Although there was an acknowledgment that she had six other children to care for, the Court considered that the Defendant’s negligence did diminish her earning capacity to seek employment during school hours for the period before her seventh child started school.
In relation to general damages, the Court considered that general damages should be awarded for the loss of the ability to participate in normal activities, to enjoy life to the full and to take advantage of opportunities, as well as pain and suffering including distress, grief, anxiety and disappointment. Flynn DCJ considered that there was evidence that Ms O’Loughlin suffered emotionally following the diagnosis of pregnancy and birth of her seventh child, including anxiety at the risks of the pregnancy, the pain and trauma of the birth process and coping with her children following the birth. Notably, the Court considered that Ms O’Loughlin’s inability to care for her children following the birth was compensable as a loss of amenities6.
The Court’s assessment of the costs of raising the child in this matter appear to have been somewhat limited by the lack of evidence provided by the Plaintiffs in support of the claim, and the assessment was made by reference to actuarial calculations and statistics, although it is interesting to note that the Court assessed the costs of raising damages only up to age 18. Reference is made, however, to the fact that a number of the Plaintiffs other children were independent before they reached 18, and it appears to leave open the question of whether a claim could be made for damages beyond age 18 if there had been evidence that the child’s older siblings remained dependent upon the Plaintiff beyond 18 years.
It appears that the Court might be persuaded to find that the costs of raising a child should continue beyond the age of 18 if there was evidence of such support to other children of the Plaintiff extending into early adulthood.
Social security benefits – can they offset the ‘costs of raising’ damages?
There was further consideration as to whether there should be an offset to factor in the benefit the Plaintiffs received by way of government support payments on account of the child (including the Family Tax Benefit). His Honour considered the nature of the family assistance legislation, and concluded that such an offset should not be made in circumstances where the purpose of the government benefit was to assist a carer and not in substitution of the cost of raising a child, and as such should not affected as a result of a claim made against a tortfeasor on account of negligence.7
The Court noted that the decision regarding whether government support benefits should be offset differed to the provisional damages assessment in other cases including Stobart v Al-Hakeem8 and Mollenhauer v Gilroy9, but said that “in neither of those cases it was considered necessary to undertake a consideration of the text of the Family Assistance Act”10.
Conclusion
The assessment of damages for the costs of raising the Plaintiffs’ child was relatively low, although this appears to be due to the particular circumstances of the family in this matter. If the same reasoning was applied in different circumstances, the award of damages might be significantly greater, for example, if evidence was led to establish a dependence of children in the family beyond legal adulthood, and of other costs likely to be incurred as part of raising the child (e.g. private school fees).
While it remains to be seen whether the O’Loughlin decision regarding the assessment of damages and the government benefits offset will withstand scrutiny at a higher level, it is an interesting development in the assessment of these claims.
This article was written by Erica Hartley, Partner and Erica Dobson, Special Counsel.
1 (2003) 215 CLR1 at [273]
2 Ibid., at [179] per Kirby J
3 Watson-Scheuber, K, “Case Note: victory for reluctant parents: Cattanach v Melchior1‘ (2003) UNSW Law Journal Vol. 26 No. 3, 719, referring to the decisions of Gummow and McHugh JJ
4 Ibid., 719, referring to Kirby J
5 Madden, B ‘Wrongful birth assessment of damages – judgment pending”, Australian Health Law Bulletin, April 2012
6 At [63]
7 See [102] – [105]
8 [2017] WADC 127 – this case the Plaintiff was unsuccessful in establishing liability and a notional assessment of quantum was made.
9 [2004] QSC 377 – in this case the parties had agreed the quantum of damages which included an offset for government family tax benefits.
10 At [107]
