Page 2723 - Week 09 - Wednesday, 26 September 2007
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to be seen to be just shedding more crocodile tears on various issues, to reconsider their position, to change their mind and say very loudly, very clearly and very strongly that we will do everything in our power to ensure that the children of the ACT are loved, cared for and nurtured to the best of our individual and our collective ability.
MRS DUNNE (Ginninderra) (4.59), in reply: This bill prevents parents from suing for the cost of raising a healthy child where the birth is the result of medical negligence. It does nothing more than that. It does not, as Mr Corbell has said, take away people’s right to sue for medical negligence. There are many other harms that people can meet when they give birth to an unplanned child as a result of medical negligence—loss of income, mental shock, pain and suffering; husbands can claim lack of consorting and they can claim loss of income. Mr Corbell asked what the message from this bill would be. The message is that the Liberal Party draws the line at calling a child one of those damages. All of the other things are damages that people face and incur, but we draw the line at damages.
It was interesting to listen to Dr Foskey. I suppose it reflects the Greens’ image of the Liberal Party as comprising people who want to go back in time. I almost expected her to use the words “picket fence” and “1950s”. But in the farrago of her wide-ranging discussion of contraceptive and reproductive law and the impact of the Dalkon shield, she did not address this bill. The people who sued in relation to the Dalkon shield will still be able to sue, because that is medical negligence. That is the short and long of it.
The impetus for this bill came from the reaction by various state governments to the High Court case of Cattanach v Melchior. In this case, a couple successfully sought damages through the Queensland court for a range of harm that they claimed they suffered as a result of a botched tubal ligation. The parents received over $100,000 for damages in pregnancy medical expenses, loss of income and depression following the birth of their son. The court also awarded $105,249.33 for the cost of raising the child. It was this latter award that was unsuccessfully appealed to the High Court, and nothing else. It was not about what the minister said on radio the other day; it was only about the cost of raising the child. The minister clearly does not understand it. He is either entirely incompetent in his portfolio and he should resign, or he was deliberately misleading the community.
In their decisions, the justices referred to the lack of direction and precedent. In response, the Queensland, New South Wales and South Australian parliaments decided to give direction and definitively assert that the damages could not be awarded for costs of raising a healthy child. They did not limit damages in any other way. It is my view that the ACT should also go down this path.
In practical terms, such cases always benefit wealthy people over poor. Wealthy people will have higher expectations of the cost of raising a child, such as private school fees, while more modest claims will be made by families of modest means. In addition, the rising costs of insurance resulting from decisions like this would place a heavier burden on the poor. Also, the damages are paid in a lump sum, and there is no way that a court can guarantee that the money is actually directed towards raising the child.
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