Where the birth of a child is caused by medical negligence, are the parents of the child entitled to damages for the ordinary costs of raising the child, or are the recoverable damages limited to the costs associated with the child’s disability?
In Western Australia, the determination of this issue remains the subject of common law, as opposed to New South Wales, Queensland and South Australia, where the scope of recoverable damages has been restricted under statute.
Cattanach authority
In the leading Australian High Court decision of Cattanach v Melchior [2003] HCA 38, the majority established that the parents of an unintended (but healthy) child were entitled to recover damages for the ordinary costs associated with raising the child.
In this case, the mother underwent a sterilisation procedure. Prior to the procedure, the mother advised the sterilising doctor that her right fallopian tube had been removed. The mother ceased contraception after the sterilisation procedure, but later conceived and gave birth to a healthy child. The sterilising doctor was found negligent in failing to investigate the mother’s assertion that her right fallopian tube had been removed, and to then warn her that if it had not been, there was a risk that she may conceive
On appeal, the doctor submitted that the birth of a healthy child should not be regarded as a wrong for which damages can be ordered.
The 4:3 majority of the High Court held that the parents had suffered damage in that they were required to incur the costs associated with the rearing of their unwanted child. The parents were entitled to recover the past and future economic cost of raising and maintaining their healthy child up until the age of 18, on the basis that, but for the Appellant’s negligence, the child would have not otherwise been conceived. Damages were assessed in the region of $105,249.00.
Cattanach was distinguishable from prior wrongful birth cases, such as CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR. In this case, the court held that damages for the cost of raising a healthy child that was born as a result of a doctor’s negligence in failing to diagnose a pregnancy could not be recovered.
Cattanach overturned
Subsequent amendments to the Civil Liability Act in New South Wales, Queensland and South Australia have effectively overturned the Cattanach decision. In these jurisdictions, claimants in wrongful birth actions are not entitled to an award of damages for the economic cost of raising a healthy child, but are entitled to the additional costs of maintaining a disabled child (which are incurred by reason of the child’s disability). The amendments to the respective Civil Liability Acts were fuelled by concerns about the effect on rising premiums for medical indemnity insurance, as the majority of damages would be awarded against doctors. Additionally, there was community apprehension about the award of damages for the birth of a healthy child, which ought not to be treated as an injury to its parents.
The position in WA?
There remains uncertainty in WA about whether claimant parents of a disabled child are entitled to damages for consequential rearing costs. There are few reported cases concerning the Court’s approach to these wrongful birth claims, and whether Cattanach ought to be followed, but it seems likely it will be.
The issue of whether Cattanach is applicable in WA becomes more complicated in wrongful birth cases where the conception of a child is wanted, but there is medical negligence with respect to the health of the foetus (such as the failure to identify a disability in the antenatal period), which denies the parents an opportunity to terminate the pregnancy. Interesting causation arguments arise as to the award of damages to parents for negligent antenatal care and the resultant birth of a disabled child.
Whilst there is no precedent in WA, this issue was considered in the NSW case of Waller v James [2013] NSWSC 97 (which predated the amendments to the NSW Civil Liability Act) where the parents of a disabled child commenced proceedings against a gynaecologist who they consulted for IVF treatment. Following IVF, the parents had a child who was diagnosed with a genetic anti-thrombin deficiency. A few days after birth, the child suffered a stroke which resulted in the development of brain damage and cerebral palsy.
The parents alleged that the gynaecologist failed to advise them of the risk that their child would inherit a genetic condition, and said that if this advice was given, they would not have proceeded with the IVF treatment. On this basis, the parents claimed damages for the economic cost of raising a healthy child, and submitted that Cattanach was applicable to their case.
The gynaecologist was ultimately not held to be liable for the plaintiffs’ loss, however Justice Hislop commented on the nature of the recoverable loss and damage. Waller was distinguished from Cattanach, on the basis that the parents in Cattanach elected not to have any more children, whereas in Waller, the parents wanted to conceive a child, albeit a healthy one. Recoverable damages were limited to those occasioned by reason of the child’s stroke and resultant disabilities.
Conclusion
Absent changes to the Civil Liability Act 2002 (WA), it seems that the positon articulated in Cattanach will continue to determine the scope of recoverable damages for wrongful birth claims in WA. The Waller decision suggests that Cattanach will not be strictly applied in circumstances where the negligent act occurs during the antenatal period, rather than at the time of conception.
The public concerns arising from Cattanach (that sparked the amendments to the NSW, QLD and SA Acts) do not appear to have materialised or caused the disruption and flood of claims originally anticipated in the 14 years that have passed since the decision was handed down. It remains to be seen whether WA will follow the lead of its neighbouring states, and amend its own Civil Liability Act to restrict the recovery of damages available to parents in wrongful birth claims.
This article was written by Sarah Harrison, Partner and Lauren Aspley, Solicitor.