Thomas, Cordelia --- "Claims for Wrongful Pregnancy and Damages for the Upbringing of the Child" [2003] UNSWLawJl 5; (2003) 26(1) UNSW Law Journal 125
[*] Senior Lecturer, Massey University, Wellington Campus, New Zealand.
[1] Thake v Maurice [1984] 2 All ER 513, 526.
[2] Edwards v Blomeley [2002] NSWSC 460 (Unreported, Studdert J, 12 June 2002).
[3] McFarlane v Tayside Heath Board [1999] UKHL 50; [2000] 2 AC 59. ‘It was plainly foreseeable that if the operation did not succeed, or recanalisation of the vas took place, but the husband was told that contraceptive measures were not necessary, the wife might become pregnant’: at 74 (Lord Slynn).
[4] Becker v Schwartz, 413 NYS 2d 895, 907 (NY, 1978).
[5] Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] 1 QB 1012, 1019:
In my view it is trite to say that if a woman becomes pregnant, it is certainly foreseeable that she will have a baby, but in my judgment, having regard to the fact that in a proportion of all births – between one in two hundred and one in four hundred were the figures given at the trial – congenital abnormalities might arise, makes the risk clearly one that is foreseeable, as the law of negligence understands it (Waller J).
[6] In the United States, for example, wrongful conception relates to those cases which result from a negligent sterilisation or advice that leads to an unwanted pregnancy. Wrongful birth is used to describe those cases where a child is born subsequent to a negligent abortion. See Angus Stewart, ‘Damages for the Birth of a Child’ (1995) 40 Journal of the Law Society of Scotland 298, 298.
[7] Parkinson v St James and Seacroft University Hospital WHS Trust [2001] EWCA Civ 530; [2002] QB 266, [46].
[8] [2001] EWCA Civ 1522 (Unreported, Broker LJ, Hale LJ and Steele J, 18 October 2001).
[9] Ibid [28].
[10] See below Part II(A).
[11] [1999] UKHL 50; [2000] 2 AC 59.
[12] [2003] HCA (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 16 July 2003).
[13] [2001] QCA 246 (Unreported, McMurdo P, Davies and Thomas JJA, 26 June 2001).
[14] See Brooker’s Statutes of New Zealand, Brooker ’s Accident Compensation in New Zealand, vols 1–2, 0864720998.
[15] A person injured at work receives compensation for the first week, whereas compensation for non-work injuries starts after the first week. See Injury Prevention, Rehabilitation and Compensation Act (2001) (NZ) ss 97–9 and Schedule 1(32).
[16] These are, the Accident Compensation Act 1972 (NZ), the Accident Compensation Act 1982 (NZ), the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), the Accident Insurance Act 1998 (NZ) and Injury Prevention Rehabilitation and Compensation Act 2001 (NZ).
[17] New Zealand, Royal Commission to Inquire into and Report Upon Workers’ Compensation, Woodhouse Report (1967).
[18] Ibid [484].
[19] Accident Compensation Act 1972 (NZ) ss119–20.
[20] Accident Compensation Act 1982 (NZ) ss 78–9.
[21] Rodney Harrison, Matters of Life and Death: the Accident Rehabilitation and Compensation Insurance Act 1992 and Common Law Claims for Personal Injury Legal Research Foundation (University of Auckland) 1993.
[22] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 394.
[23] For example, attempts have been made to extend the role of exemplary damages, commence litigation for nervous shock and extend the scope of claims based on negligence, breaches of fiduciary duty and breaches of the New Zealand Bill of Rights Act 1990 (NZ).
[24] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 26.
[25] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 8.
[26] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 317.
[27] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) ss 20, 26.
[28] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 26. Cases filed include: W v Health South Canterbury (High Court, Timaru, CP 2/95, 1995) – $1.5 million compensatory damages sought for mental trauma from the switching of newborn babies by a hospital, settled on confidential terms; W v Counties Manukau Health Ltd (High Court, Auckland, CP 5 83/94, Barker J, 13 April 1995) – $200 000 exemplary damages sought against the hospital for sexual abuse of two children by a paedophile inadequately supervised on release from a mental hospital; B v Residual Health Unit (High Court, Wellington, AP 289/96, Gallen J and Neazor J, 28 July 1997) – $1 million compensatory damages claimed by parents for mental trauma and $400 000 exemplary damages for brain damage caused to an infant in hospital.
[29] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 21. Cases filed include: W v Attorney-General (High Court, Wellington, CP 42/97, Smellie J, 3 October 2002) – claim for compensatory and exemplary damages for child abuse while in foster care.
[30] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 319. Cases filed include: Jackson v Burcher (High Court, Hamilton, CP56/94 Master Faire, 19 September 1997) – claim for $1.5 million exemplary damages for medical negligence and alleged cover-up of radioactive damage as the result of a scan; A v Bottrill [2002] UKPC 44; [2002] 3 WLR 1406 – claim for exemplary damages for medical negligence.
[31] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 54.
[32] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 380. Schedule 1, ss 54–8, Injury Prevention, Rehabilitation and Compensation (lump sum and independence allowance) Regulations 2002 SR2002/22 set the amounts of lump sum payments available, such as: 10 per cent disability = $2500; 20 per cent = $6459; 40 per cent = $19 920.
[33] Bryan v Philips New Zealand Ltd [1995] 1 NZLR 632, 640 (Barker J).
[34] See, eg, ‘Doctor sued over failed sterilisation’, New Zealand Herald (Auckland), 21 March 2002, 1. In the case discussed in this article, a New Plymouth woman is suing a doctor for $50 000 for pain and suffering caused when she became pregnant after a failed sterilisation operation five years before.
[35] (Unreported, High Court of New Zealand, Master Thomson, 24 October 2001).
[36] The case has not yet reached a substantive hearing.
[37] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 317.
[38] The Accident Insurance Act 1998 (NZ) has since been repealed and replaced by the Injury Prevention Rehabilitation and Compensation Act 2001 (NZ). However, the bar from 1998 continues and the discussion in SGB v WDHB remains relevant.
[39] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) s 32.
[40] Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ) ss 34, 36.
[41] See, eg, DK v ARCIC [1995] NZACC 90; [1995] NZAR 529, Bell v ARCIC (Unreported, District Court of Wellington, Middleton J, 22 April 1999; Pritchard v ARCIC (Unreported, District Court of Wellington, Lovell-Smith J, 3 October 1996; MT v ARCIC (Unreported, District Court of Rotorua, Middleton J, 25 September, 1996; Harrild v Director of Proceedings [2002] NZHC 1401; [2002] NZAR 513.
[42] Accident Insurance Act 1998 (NZ) s 39(2)(b).
[43] Accident Insurance Act 1998 (NZ) s 36.
[44] SGB v WDHB [2002] NZAR 413 (Unreported, Gendall J, 15 February 2002).
[45] Chester v Afshar [2002] EWCA Civ 724; [2002] 3 All ER 552.
[46] [2003] HCA (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 16 July 2003).
[47] J Ellis Cameron-Perry, ‘Return of the Burden of the “Blessing”’ (1999) 149 New Law Journal 1887.
[48] McFarlane v Tayside Heath Board [1999] UKHL 50; [2000] 2 AC 59.
[50] Ibid 531.
[51] Ibid.
[53] Ibid 668.
[54] Ibid 667.
[55] Ibid 666.
[56] Thake v Maurice (CA) [1984] 2 All ER 513.
[58] Angus Stewart, ‘Damages for the Birth of a Child’ (1995) 49 Journal of the Law Society of Scotland 298, 300.
[59] [1977] UKHL 4; [1978] AC 728.
[60] [1991] UKHL 2; [1991] 1 AC 398.
[62] Ibid 658.
[64] Ibid 145.
[65] Ibid.
[67] Ibid 585 [D]-[E].
[68] McFarlane [2002] 2 AC 59, 73.
[69] McFarlane v Tayside Health Board [1997] SLT 211 (Unreported, Lord Gill, 20 September 1996).
[70] Ibid 216.
[71] McFarlane v Tayside Health Board [1998] SLT 307 (Unreported, Lord Cullen, Lord McCluskey and Lord Allanbridge, 9 January 1998) 308.
[72] This was the wrongful birth claim.
[73] McFarlane [1999] UKHL 50; [2000] 2 AC 59, 75–6.
[74] Ibid.
[75] [1990] UKHL 2; [1990] 2 AC 605, 617–1 8.
[76] Ibid.
[77] Williams v Natural Life Health Foods Ltd [1998] UKHL 17; [1998] 1 WLR 830, 834.
[78] McFarlane [1999] UKHL 50; [2000] 2 AC 59, 76.
[79] Ibid 79.
[80] Ibid 81–2.
[81] Ibid 83.
[82] Ibid.
[83] Ibid 95.
[84] Ibid 97.
[85] Ibid.
[86] Ibid 106.
[87] Ibid.
[88] Ibid.
[89] Ibid 102–3.
[90] Ibid 113.
[91] Ibid 114.
[92] Ibid.
[93] Ibid.
[94] [2001] EWCA Civ 113 (Unreported, Buxton LJ, May LJ and Laws LJ, 24 January 2001).
[95] [2001] EWCA Civ 530; [2002] QB 266.
[96] Caparo [1990] UKHL 2; [1990] 2 AC 605, 617–18.
[97] Parkinson [2001] EWCA Civ 530; [2002] QB 266, [50].
[98] Ibid [75].
[99] Ibid [90].
[100] [2001] EWCA Civ 1522 (Unreported, Brooke LJ, Hale LJ and Steele J, 18 October 2001).
[101] Ibid [23].
[102] Ibid [31].
[103] Parkinson [2001] EWCA Civ 530; [2002] QB 266 [69].
[104] Ibid [74].
[105] Ibid [86].
[106] Ibid [90].
[107] Ibid [87]–[90]. Cf Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88 (Unreported, Waller LJ, Walker LJ and Hale LJ, 14 February 2002) [35], [38], [50] (Walker LJ and Waller LJ).
[108] Parkinson [2001] EWCA Civ 530; [2002] QB 266 [90].
[109] Ibid [90].
[110] Ibid.
[111] Groom EWCA Civ 1522 (Unreported, Brooker LJ, Hale LJ and Steele J, 18 October 2001) [32]. See also Parkinson [2001] EWCA Civ 530; [2002] QB 266 [92].
[112] Parkinson [2001] EWCA Civ 530; [2002] QB 266 [51]–[2].
[113] Ibid [52].
[114] Children Act 1989 (UK). See Parkinson [2001] EWCA Civ 530; [2002] QB 266 [91].
[115] [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001) [29].
[116] Ibid [96].
[117] Edwards v Blomeley [2002] NSWSC 460 (Unreported, Studdert J, 12 June 2002). ‘It is not to be assumed that a claim available to parents of a disabled child must be limited to the period of the child’s minority’: at [112].
[118] Kimberley Wilcoxon, ‘Statutory Remedies for Judicial Torts: The Need for Wrongful Birth Legislation’ (2001) 69 University of Cincinnati Law Review 1023.
[119] Anthony Jackson, ‘Wrongful Life and Wrongful Birth’ (1996) 17 The Journal of Legal Medicine 349–81.
[120] Mark Strasser, ‘Misconceptions and Wrongful Births: A Call for a Principled Jurisprudence’ (1999) 31 Arizona State Law Journal 161, 194.
[121] Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88 (Unreported, Waller LJ, Walker LJ and Hale LJ, 14 February 2002) [10].
[122] Ibid.
[123] Ibid [10].
[124] Ibid [23].
[125] Ibid [37].
[126] Ibid [41].
[127] Ibid [35]–[8].
[128] Ibid [52].
[129] Ibid [53]–[4].
[130] Ibid [55].
[131] [2003] HCA (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 16 July 2003).
[132] (1993) 15 Qld Lawyer Rep 33.
[133] Melchior [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001) [37] discussing Dahl v Purnell.
[134] Ibid [37].
[137] Ibid 73.
[138] Ibid 79.
[139] Ibid 86–7.
[140] [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001).
[141] Melchior v Cattanach [2000] NSWCA 275; [2001] Aust Torts Reports 81-591.
[142] Ibid 66,629.
[143] Ibid.
[144] Ibid.
[145] Ibid.
[146] Ibid 66,630.
[147] Ibid.
[148] Ibid.
[149] Ibid.
[150] Ibid 66,630–66,631.
[151] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001).
[152] Perre v Appand Pty Ltd (1999) 198 CLR 189, 191.
[153] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001) [37]–[44].
[154] Ibid [51].
[155] Ibid [49].
[156] Ibid [61].
[157] Ibid [99].
[158] Ibid [89].
[159] Ibid [169].
[160] Ibid.
[161] [2002] NSWSC 460 (Unreported, Studdert J, 12 June 2002).
[162] Ibid 105.
[163] Ibid.
[164] Ibid.
[165] See also Harriton v Stephens [2002] NSWSC 461 (Unreported, Studdert J, 12 June 2002); Waller v James [2002] NSWSC 462 (Unreported, Studdert J, 12 June 2002).
[166] Melchior [2003] HCA (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 16 July 2003) [54].
[167] Ibid [65]–[66].
[168] Ibid [292].
[169] Ibid [301].
[170] Ibid [30].
[171] Ibid [39].
[172] Ibid [259].
[173] Ibid [347], [356].
[174] Ibid [371].
[175] Ibid [411] – [412].
[176] Kealey v Berezowski (1996) 136 DLR (4th ) 708, 741.
[177] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001) [16] discussing Administrator, Natal v Edouard [1990] (3) SALR 581.
[178] Melchior Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001). See also Terrell v Garcia, 496 SW 2d, 124 (Tex Civ App, 1973); Rieck v Medical Protective Co of Fort Wayne Ind, 219 NW 2d, 242 (Wis, 1974); Cockrum v Baumgartner, 95 Ill 2d 193; 447 N E 2d 385 (Ill, 1983), McKerna v Aasheim, 447 NE 2d, 385 (Ill, 1983) and Girdley v Coats, 687, P 2d 850 (Wash, 1984).
[179] Cameron-Perry, above n 47, 1887.
[180] See Lady Justice Hale The Staple Inn Reading: The Value of Life and the Cost of Living – Damages for Wrongful Birth (2001) <http://www.actuaries.org.uk/files/pdf/library/staple_inn_read_2001.pdf> at 5 June 2003.
[181] [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001) [52].
[182] John Seymour, ‘Actions for Wrongful Birth and Wrongful Life’ (2001) 2(1) New Zealand Bioethics Journal 26.
[183] Ibid 31.
[184] See, eg, Parkinson [2001] EWCA Civ 530; [2002] QB 266.
[185] See Johnson v University Hospital, 540 NE 2d 1370, 1373–4, 1378 (Ohio, 1989) at 14 (Douglas J citing Beardsley v Wierdsma, 650 P 2d 288, 293 (Wyo, 1982)):
If the concept of benefit or offset were applied to actions for wrongful pregnancy … benefits could be greater than damages, in which event someone could argue that the parents would owe something to the tortfeasors … [A] child should not be viewed as a piece of property.
[186] See, eg, Christopher D Jerram, ‘Child Rearing Expenses as Compensable Damage in Wrongful Conception Case: Burke v Rivo 24 Creighton Law Review 1643, 1665.
[187] Iraida J Alvarez, ‘A Critique of the Motivational Analysis in Wrongful Conception Cases’ (2000) 41 (3) Boston College Law Review 585, 601.
[188] Ochs v Borrelli, 445 A 2d 883, 885 (Conn, 1982).
[189] Alvarez, above n 188, 602.
[190] Ibid 603.
[191] David Kerrane, ‘Parenting: Damages for Wrongful Pregnancy’ (2000) 11 Journal of Contemporary Legal Issues 467.
[192] Brenda McGivern, ‘Tortious Liability for (Selected) Genetic Harm: Exploring the Arguments’ (2002) 10 Torts Law Journal 41, 38.
[193] Melchior [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001) [59].
[194] Ibid [97].
[195] See McFarlane [2000] AC 59, 76, 83, 100, 108.
[196] Ibid 95.
[197] Ibid 83.
[198] Ibid 100.
[199] Ibid 108.
[200] Ibid 99.
[201] Melchior v Cattanach [2000] NSWCA 275; [2001] Aust Torts Reports 81-591.
[202] Melchior v Cattanach [2001] QCA 246 (Unreported, McMurdo P, Davies JA and Thomas JA, 26 June 2001).
[203] Melchior [2003] HCA (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 16 July 2003).
[204] See, eg, Gold v Haringey [1988] 1 QB 481. ‘At one time there was a conflict of decisions at first instance as to whether it was against public policy to allow a plaintiff to recover damages for the birth of a healthy child. But that conflict has been resolved, so far as this court is concerned by the unanimous decision of this court in Emeh …’: at 484 (Lloyd LJ).
[205] McFarlane [1999] UKHL 50; [2000] 2 AC 59, 165.
[207] Ibid 897.
[208] Ibid 977–8.
[209] [1983] 2 All ER 522, 531.
[210] Lady Justice Hale The Staple Inn Reading: The Value of Life and the Cost of Living – Damages for Wrongful Birth (2001) <http://www.actuaries.org.uk/files/pdf/library/staple_inn_read_2001.pdf> at 5 June 2003, 20.
[211] Ibid 21.
[212] Ibid.
[213] Ibid 22.
[214] Ibid.
[215] Ibid 23.
[216] Ibid 24.
[217] Ibid 25.
[218] Ibid 24.
[219] Ibid 24–5.
[220] The Status of Women in New Zealand 1998: The Combined Third and Fourth Reports on New Zealand’s Progress on Implementing the Convention on the Elimination of All Forms of Discrimination Against Women February (1998) Ministry of Women’s Affairs <http://www.mwa.govt. nz/women/status/index.html> at 5 June 2003; Briefing the Incoming Minister (1999) Ministry of Women’s Affairs <http://www.brazentraining.co.nz/text/pnzfacts.htm> at 9 June 2003.
[221] Ibid.
[222] Ibid.
[223] Ibid.
[225] [2001] EWCA Civ 530; [2002] QB 266 [93].
[226] Melchior [2003] HCA (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 16 July 2003).
[227] McFarlane [1999] UKHL 50; [2000] 2 AC 59, 95. ‘The question for the court is ultimately one of law, not of social policy. If the law is unsatisfactory, the remedy lies in the hands of the legislature’: at 95 (Lord Hope).
[228] Szechter v Szechter [1970] 3 All ER 905, 909:
If there is a substantial area of hardship which the existing law does not reach, the remedy nowadays lies in the hands of Parliament, which has at its service the advice of the executive as to all foreseeable repercussions of the decision (an advantage denied to courts of law); and if even the most sagaciously framed general rule is still liable to throw up, exceptionally, some cases of hardship, it is open to Parliament, should it be so advised, to establish a court of equity to deal with such cases on their merits. But it is not open to a court of law to deal out what is sometimes called ‘palm-tree justice’: at 909 (Simon P)
[229] There are however, cases where the procedure was to avoid the birth of a child with a suspected defect and once the child is born healthy, it is a wanted child. In that case the parents have suffered no loss, as they wanted a healthy child, but not a disabled child. John Seymour, ‘Actions for Wrongful Birth and Wrongful Life’ (2001) New Zealand Bioethics Journal 26, 32–3.