Page 2788 - Week 09 - Wednesday, 17 August 2005

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injuries. Some time later she had a procedure to tie her fallopian tubes. Because of the earlier accident, the doctor who performed the procedure wrongly assumed that one of the tubes was dysfunctional and did not need to be tied. In fact, the tube was totally functional and the woman later became pregnant, subsequently giving birth to a child she did not want. The doctor was held to be clearly negligent. The argument revolved around the rationale and the extent of the damages to be awarded. The doctor’s insurance company contended that the damages should only be awarded for the mother’s medical expense, and pain and suffering.

The mother’s lawyers argued, as the child was unwanted, she would be out of pocket until he was 18. His very existence was damaging her financially. In this sense, the child itself was to be seen as damage or loss. Accordingly, they requested damages for the full cost of raising the child. The insurance company contended that to do so would cause immense psychological damage to the child. He would know he was unwanted and that his parents considered him as their loss. The Queensland court found for the insurance company. On appeal, the High Court divided 4-3 to agree with the mother, overturning the ruling and awarding her $150,000 for the cost of raising the child between birth and the age of 18.

We do not accept and do not think the law should endorse the opinion that a healthy child is somehow a loss or damage. Just think what that means: we are saying to that child—that innocent human being—“Your mother and father never wanted you.” “You were an accident: they are worse off for having you and the law agrees that they are worse off for having for you.” The real damage in this instance is that done to the child, to know they were unwanted, that their parents considered their very existence to be damaging. This is hardly the mark of a civilised society.

Certainly, the Labor governments of Queensland, New South Wales and South Australia took this view when they subsequently introduced statutes to change the common law and bring their legislation into line with community standards. This is precisely what is proposed by this amendment bill. As clause 99A states:

This part applies to all claims for damages for the birth of a child whether brought in tort, in contract, or under statute or otherwise.

Section 99B(1) provides:

In a proceeding involving a claim for damages for the birth of a child, damages must not be awarded for economic loss for the costs associated with rearing and maintaining the child.

It is relevant to note this very same issue was considered by Britain’s highest court, the House of Lords, in McFarlane v Tayside Health Board 2000. The House of Lords judgment was the exact opposite of the High Court judgment. It said that, “for the purpose of public policy, a healthy child cannot be considered a loss.” The Lords then refined this principle in Parkinson v St James University Hospital 2002 when it held that, where an unwanted disabled child was born as a result of medical negligence, the parents were entitled to damages for the difference between the costs of raising a disabled child and the costs of raising a healthy child. We agree with this exception, which is reflected in section 99B(2) of our amendment bill, which provides:

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