Page 2724 - Week 09 - Wednesday, 26 September 2007
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These practical reasons pale into insignificance when we look at the impact that this has both morally and culturally on individuals and on society as a whole. The strong public policy case against the awarding of damages was summed up by Justice Thomas, who delivered a dissenting judgement in the Queensland Supreme Court in Cattanach v Melchior. Justice Thomas considered the notion of limited damages and said:
The reasons for such a rule are varied and extensive. They include the sanctity of life; the benefits of a healthy child being regarded as outweighing any economic loss; protection of the mental and emotional health of the child; the notion that it is unreasonable to shift the cost of maintenance to the negligent physician thereby creating a windfall for parents for that is disproportionate to the physician’s culpability; the view that such damages are too speculative or remote; the undesirability of a child learning that the court has declared its birth to be a mistake; the prospect that little or no damages would be awarded for loving mothers and fathers while generous compensation would be obtained by those who disparage and reject their child; the general view that the birth of a child is a blessing and an occasion for rejoicing; and the crassness of a court making the child’s existence the subject of a contest in value.
Justice Thomas went on to say:
Perhaps not all of these considerations are persuasive, although in my view most of them are. Considered as a whole they provide a strongly persuasive and rational basis in favour of recognising a rule such as the ‘limited damages rule’.
Justice Thomas wanted to limit the damage to all those things, except making a judgement about the life of the child. In a nutshell, the justice put forward a persuasive argument that the legal system should not reward people for declaring their resentment of their children. The legal system should not create incentives for parents to repudiate their children.
The majority decisions in both the Queensland Supreme Court and the High Court in Cattanach v Melchior fundamentally changed the way that we look at children when they sought to characterise the birth of a healthy child as a calamitous event that should be rectified by money. Before this, children were viewed as having intrinsic value. We should look at what impact Cattanach v Melchior would have and how you actually weigh this up. In Cattanach v Melchior, the claimants were compensated for the cost of raising their child to the age of 18. The economic benefit and all the other benefits that may accrue to the parents beyond the age of 18 were ignored.
You do not have to talk about indeterminate things like love and joy. What about the prospect, as Mr Smyth talked about, of the child looking after the parents in their dotage? It is the nature of a parent-child relationship that there will be costs and benefits on both sides of the ledger. These will vary from person to person. In some cases, the child may well be in the debt of the parents in the final analysis; in other cases not.
We then have to think about the children. Today, somewhere, probably in Queensland, there is a 10-year-old boy name Jordan Melchior. Jordan Melchior has got nothing
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