Page 2710 - Week 09 - Wednesday, 26 September 2007
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touch on some of the legal arguments discussed in the High Court ruling which, despite the result, demonstrate, I believe, that the court erred in their landmark decision. The parent of a child does not suffer because of that child. The only “damage”, and I use that word very loosely, is the monetary cost of raising that child. It is worth noting that it is an established principle of tort law that purely economic loss is only actionable under controlled circumstances.
Under common law—and I again refer to Chief Justice Gleeson’s minority decision—there has been a reluctance to impose a duty of care on an individual purely to avoid causing economic loss to someone else. The court, in Cattanach v Melchior, departed from this reluctance and this is how, as a result, the law in the ACT can now be interpreted.
It is highly questionable that the presence of a child in a parent’s life can be considered a damage. In fact, I do not accept it. The only damages that this legislation seeks to prevent are purely economic—a position that the common law recognises as inherently difficult. The economic damages that this bill seeks to prevent—the cost of raising a healthy child—are almost impossible to quantify, a point recognised by almost all justices in the pivotal High Court case. It is a financial harm that cannot be accurately quantified either by legislation or by the judiciary in a rational or fair manner. The very question of the monetary value, negative or positive, of a child is morally repugnant and should not be put. The overall benefits of a child should be universally recognised.
Several High Court justices have made the point that the ordinary costs of rearing a child should not be an admissible head of damage. This position would prevent the law from regarding, and I quote from Lord Millett’s decision in the House of Lords case McFarlane v Tayside Health Board, “a normal healthy baby as more trouble and expense than it is worth”. Justice Hayne stated, “No less importantly, the law would refuse to allow a parent to seek to demonstrate the contrary.”
Quantifying the cost of raising a healthy child is a proposition that is difficult even on purely economic terms, but it is made impossible when the human element of a parent-child relationship is considered. What dollar term possibly could be placed on the positive events that flow as a result of raising a child? The question of how these are to be factored against economic costs is, in my view and that of the dissenting judges in Cattanach v Melchior, an impossible and, indeed, undesirable task.
The position of Justice Hayne is worth noting. Justice Hayne stated, “If assigning value to the benefits of having a new child is impossible, it means that no value can sensibly be determined for the balance between benefits and burdens.” The accepted approach in law stated by Justice Brennan in the High Court case Sutherland Shire Council v Heyman is that “the law should develop novel categories of negligence incrementally and by analogy with established categories”. The position in Cattanach v Melchior goes beyond this.
The ACT Liberal Party firmly believes that it is not in the public interest and should not be public policy for people to be able to claim financial damages for the birth of healthy children. On a legal basis, the change made by the court in that case goes too far and should be corrected. It extends beyond the previously existing position of the
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