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Baigent, Louis; Vallance, Sarah --- "Wrongful birth claims: What to expect when you re not expecting" [2019] PrecedentAULA 19; (2019) 151 Precedent 14

WRONGFUL BIRTH CLAIMS

WHAT TO EXPECT WHEN YOU’RE NOT EXPECTING

By Louis Baigent and Sarah Vallance

While legislation has modified and in some cases eroded the entitlements of plaintiffs in certain jurisdictions,^[1] courts in Australia have long held the view that damages arising from ‘wrongful birth’ are recoverable by parents. Unfortunately, there is still very limited guidance under common law as to just how far those damages extend and how they are to be assessed.

Since the seminal decision of the High Court in Cattanach v Melchior (Cattanach),^[2] only a handful of judgments have contemplated issues of damages and in the vast majority of those cases, such issues have been dealt with only in an incidental manner. Thus, there is a wide gambit of unsettled questions concerning the method of calculating damages in these types of claims.^[3]

For the purposes of this article, the discussion will be confined to three distinct matters. The first will consider whether compensation can extend beyond the date of a child’s 18th birthday. The second will discuss whether damages for unpaid care can properly be recoverable by parents. Finally, the third part of this article will address whether compensation can be awarded for the costs of future commercial care when parents do not have the means to pay for commercial carers in the absence of a substantial verdict. If compensation can be awarded in all these circumstances, it will significantly affect the quantum of damages available in wrongful birth claims. These issues are therefore worthy of careful consideration by practitioners operating in this area.

CLAIMING DAMAGES BEYOND 18 YEARS

One of the main contentions yet to be resolved by Australian courts is whether the damages recoverable under a claim for wrongful birth should extend beyond the date of the child’s 18th birthday.

In deciding Cattanach, the High Court left this question largely unanswered, primarily because the plaintiffs had only claimed the anticipated costs of raising their child until age 18 years and not beyond that time. The issue before the Court was not the extent of the plaintiffs’ entitlement to damages, but whether such an entitlement even existed under the laws of Australia.

In addressing this question, however, certain judges considered reasons as to why claims of this nature should not be limited to the first 18 years of life. Chief Justice Gleeson expressed the view that if the damages claimed by the plaintiffs were considered recoverable, it was not easy to see why the claim should be limited in this way.^[4] As His Honour pointed out:

‘It is a feature of affluent societies that children remain financially dependent upon their parents for longer periods. Many children are supported by their parents well beyond the age of 18. The claim in the present case did not cut out at the age when attendance at school was no longer compulsory (in Queensland, 15). Why it did not continue into a period of tertiary education is not clear.’^[5]

Justice Heydon also queried, in the rhetorical sense, why parents should not be entitled to recover the costs of maintaining their child beyond the age of 18 if it was their practice to do so.^[6] Both justices were, however, part of the 3:4 minority which determined that the ordinary costs of raising a healthy child ought not to be recoverable. In posing these questions, Gleeson CJ and Heydon J were merely attempting to demonstrate that the potential duration of the plaintiffs’ loss was indeterminate and should not therefore be compensable. This view did not find favour with the majority.

Since the decision in Cattanach, there has been little jurisprudence to guide practitioners on the issue of whether damages are recoverable once a child has attained majority. In the most recent case to have considered this issue, Nouri v Australian Capital Territory (Nouri),^[7] Elkaim J held that any entitlement to damages would cease upon the child’s 18th birthday.^[8] This finding reinforces the views previously espoused by the judiciary in Waller v James (Waller)^[9] and, before that, G & M v Armellin (Armellin).^[10] It is notable, however, that the issue was not decided by an appellate court in any one of those matters. Perhaps more telling is the fact that the plaintiffs were unsuccessful in all cases, so that issues of damages were only considered in obiter.

The other common thread in each of these decisions is that the question of damages extending beyond the date of majority was answered by reference to the plaintiffs’ ‘legal obligations’. In Waller, Hislop J determined that the nature of the harm for which compensation is awarded is the burden of raising the child, which is incurred by the plaintiffs only because of their legal obligation to care for and maintain the child.^[11] By the same reasoning, the court in Armellin refused the plaintiffs’ claim for ongoing support during the course of their child’s tertiary education, adopting the view that it is not part of a parent’s legal responsibility to support their child through university.^[12]

The relevant legal ‘responsibilities’ or ‘obligations’ are set out within Part VII to the Family Law Act 1975 (Cth) (Family Law Act) which imposes responsibility on any parent of a child who is not yet 18^[13] to provide for that child’s care, welfare and development.^[14] According to the courts in Armellin, Waller and Nouri, the losses sustained by the parents arise from the imposition of these legal obligations, as distinct from any moral obligations which might otherwise motivate them.^[15] As those obligations cease upon the child turning 18, the parents’ recoverable losses are also said to cease at that time. In arriving at this conclusion, reliance has been placed on the judgment in Lutton v Lessels,^[16] in which it was articulated that ‘The natural and moral obligation of a parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt.’^[17]

It is perhaps logical that courts of first instance would seek to reduce a claim for wrongful birth to one arising purely from legal obligation, particularly in the absence of any significant guiding authority. In doing so, they ensure that there is a well-defined ceiling on the award of damages, thereby avoiding the dangers alluded to by Gleeson CJ and Heydon J in Cattanach when they discussed the possibility of claims enduring for an indeterminate amount of time.^[18]

However, this narrow view is seldom consistent with modern realities and it is not uncommon for children to be assisted financially by their parents well beyond the age of majority. Thus, even where a legal relationship ceases to exist, there is almost a societal expectation that parents will continue to provide support until such time as their child becomes self-sufficient. In those instances, it is the parents’ moral standing and personal connection with their child that compels them to incur further losses.

Even prior to the child turning 18, one might argue that the legal obligations of the parent are only relevant because their own moral and personal obligations drive them to maintain their child. In CES v Superclinics (Australia) Pty Ltd,^[19] which was decided before Cattanach, it was held by a majority of the NSW Court of Appeal that although the plaintiffs were entitled to claim damages for the economic consequences of an unplanned pregnancy, the defendant was not liable for any losses sustained by the parents as a result of their decision to keep the child rather than adopting it out.^[20] While many would consider these views abhorrent by today’s standards, they serve to highlight the fact that a parent’s legal obligation to their child can very easily be conferred on another party through the process of adoption, long before the child attains majority. One might therefore argue that the driving force behind a parent’s ongoing support and maintenance of their offspring is moral not legal obligation, which can persist for many years after their child’s 18th birthday.

This view is consistent with the majority of UK authority. Indeed, there have been a number of English first-instance decisions where damages awarded for the additional costs of raising disabled children have extended well beyond the date of majority.^[21] Further, in McDonald v Sydney South West Area Health Service,^[22] the first notable decision following Cattanach, the court permitted recovery of an additional sum to reflect the possibility that the child in question may or may not undertake tertiary study,^[23] consistent with the principles in Malec v JC Hutton Pty Ltd.^[24]

Even if one accepts that it is legal obligation which manifests in losses to a parent, a recent publication by Carver, Cockburn and Madden relevantly points out that legal obligation can also extend beyond the age of 18.^[25] Section 66L of the Family Law Act, in particular, allows for the ongoing maintenance of an adult child if such maintenance is necessary to allow them to complete their education (including tertiary studies) or by virtue of the fact that the child has a disability and is therefore incapable of supporting themselves.

When referring to the Family Law Act, courts have seemingly overlooked these provisions while also disregarding the objects of Part VII, namely to ensure ‘that the best interests of children are met’.^[26] While wrongful birth claims are concerned with compensating the parents for losses arising out of negligence, it is the needs of the child which are causative of such losses. The upshot is that if an inadequate award of damages is made, it is primarily the child who will be deprived of the benefit that those additional damages might otherwise have afforded.

There is perhaps some cause for argument that courts should therefore do away with notions of legal responsibility and instead assess damages according to the reasonable expectations of the child themselves. This would be largely consistent with the approach taken in dependency or ‘fatal accidents’ claims, which are directed in part towards compensating plaintiffs for pecuniary losses not unlike those which arise out of wrongful birth. The main difference is that dependency claims are concerned with the loss of financial support that a beneficiary expected to receive, whereas claims for wrongful birth are concerned primarily with financial support that the plaintiffs are now expected to provide. In this way, one could almost be described as the inverse of the other.

Why, then, should wrongful birth compensation be limited only to the time during which parents remain legally obligated to their children, when for the purpose of a dependency claim a plaintiff need only show that there was a reasonable expectation of ongoing support, irrespective of whether a legal obligation was held to exist or not? Particularly in the case of a disabled child, it would be in keeping with general compensatory principles to assess the potential losses of the parents by reference to the individual circumstances of the child and the expectations that would reasonably flow from those circumstances.

For now, the question of damages extending beyond a child’s 18th birthday remains unresolved.

CLAIMING COMPENSATION FOR CARE PROVIDED TO THE UNWANTED CHILD

In wrongful birth claims, especially in those where the unwanted child has disabilities and the parents provide significant amounts of care, one of the issues to be decided is whether compensation could be awarded for the unpaid care provided by the parents. The Australian cases to date indicate that it is unlikely that parents will be able to recover compensation for unpaid care provided to the child and, instead, compensation will be awarded for actual financial loss, such as loss of income.

In Cattanach, the High Court in a 4:3 majority found that the past and future costs of raising and maintaining a child were recoverable. However, they were not required to specifically consider whether unpaid care provided by a parent to a child was a financial cost that could be recovered from the defendant. Justices Gummow and McHugh reached the conclusion that the damage suffered by the parents was the expenditure that they had incurred and would incur in the future rather than the creation or existence of the parent-child relationship. They went on to specifically exclude the recovery of damages for voluntary care that would be provided to the child.^[27] Justices Kirby and Callinan did not address whether unpaid care was recoverable.^[28] However, Kirby J’s reference to ‘economic harm’^[29] and ‘economic consequences’^[30] indicates that he would not have made an allowance for unpaid care given that no actual financial loss would be incurred by the parents in this circumstance.

Waller was the first wrongful birth case following the High Court’s decision in Cattanach where the parents claimed the costs of gratuitous care provided to their son. Although the plaintiffs were unsuccessful in proving liability, Hislop J assessed damages and specifically considered whether compensation could be recovered by the plaintiffs for the unpaid care provided to their son. Justice Hislop noted that the parents’ claim differed from a Griffiths v Kerkemeyer^[31] claim because the parents were the providers of the unpaid care, rather than the recipients of the care.^[32] Justice Hislop also noted that the claim was not a CSR Limited v Eddy^[33] claim, as the claim was for the provision of care rather than loss of the ability to provide care.^[34] After consideration of the plaintiffs’ and defendant’s submissions, Hislop J said that his preference would be to compensate on a Griffiths v Kerkemeyer-type basis for the supply of gratuitous care. However, because it involved policy considerations, he adopted the alternative course of awarding compensation for loss of income.^[35] This issue was not considered on appeal, as the parents failed to establish that they were entitled to recover damages for the harm suffered.^[36]

In Neville v Lam (Neville),^[37] the court found that at common law, compensation could not be recovered for the cost or value of any voluntary care of the child provided by anyone.^[38] Justice Beech-Jones went on to consider whether the plaintiffs could recover non-pecuniary losses due to the time involved in raising the unwanted child. However, he felt that the judgments in Cattanach suggested that once the loss involved an assessment of the benefits and detriments of rearing a child, it could not be entertained.^[39] Damages for loss of income were precluded in that case due to the operation of s71(1)(b) of the Civil Liability Act 2002 (NSW).

In Nouri, Elkaim J did not specifically consider whether the costs of unpaid care could be claimed. However, he noted that the plaintiffs accepted that a claim for gratuitous services for past care was not available.^[40] In that case, the parents succeeded in proving that there would be future loss of earnings as a result of the care that would be provided to their son and compensation would have been awarded on that basis if the plaintiffs had succeeded in proving liability.

In light of the above decisions and the High Court’s reluctance in CSR Limited v Eddy to extend the principles enunciated in Griffiths v Kerkemeyer, it seems unlikely that parents will be able to recover compensation for unpaid care provided to their child. If recovery of damages is limited to the losses flowing from a parent’s inability to work, then this will result in greater awards of damages to parents with a higher income than those with a lower income, even though the care requirements for each child may be the same. However, this is not dissimilar to assessments made in personal injury claims, where higher-income earners are awarded more in compensation than lower-income earners if they can show that the loss is attributable to their injury.

COMPENSATION FOR COMMERCIAL COSTS OF CARE

Even if parents are precluded from recovering compensation for unpaid care, they should still be able to recover compensation for any commercial care that has been provided or will be provided. The costs of commercial carers can be significant, especially in cases where the child has significant impairments. Thus, if parents have the foresight and the means to pay for commercial carers, the award of damages is likely to be greater. However, a question remains as to whether parents can claim the cost of future commercial care when they have provided all previous care on a gratuitous basis.

In Waller, the parents made a claim for the costs of commercial care as an alternative to their claim for gratuitous care and/or loss of earnings. However, the parents had not engaged any paid carers, it was noted that they had provided adequate and appropriate care to their son and there was no evidence that they would be able to fund commercial carers in the absence of a substantial verdict.^[41] In their submissions, the defendant referred to a number of cases, including Blundell v Musgrave^[42] and CSR Limited v Eddy. They submitted that the application of the ‘compensatory principles’ prevented the plaintiffs from recovering compensation for expenditure that they would not incur in the absence of an award of damages.^[43] Justice Hislop found this submission unattractive. However, he said that a court at first instance may be bound to accede to it but that a more pragmatic approach may well prevail. Justice Hislop found that the parents would continue to care for their son save for four to seven hours of respite a week. However, he did not specifically say whether he would have awarded compensation to the parents for the cost of this respite care.^[44]

In Neville, the court continued along similar lines and in the discussion about future out of pocket expenses, made reference to the High Court’s decision in CSR Limited v Eddy and commented that to be recoverable expenditure, it needed to be incurred regardless of the verdict.^[45]

However, in the recent case of Nouri, Elkaim J found that if the parents had succeeded in their claim, he would have awarded a sum to compensate them for future commercial costs involved in caring for their child, even though there was no evidence that they would use commercial carers or that they had the means to fund future care.^[46]

In personal injury claims, compensation is often awarded for future out-of-pocket expenses in circumstances where the plaintiff would be unable to pay for the expense without the benefit of a substantial verdict. However, this seems to be justified on the basis that the plaintiff has reasonable needs resulting from their injury. In a wrongful birth claim, it could be argued that the parent has reasonable needs for commercial carers, particularly if not having carers will prevent them from working or meeting their legal obligations under the Family Law Act. However, the extent to which parents may be able to claim for future commercial care if they do not have the financial means to fund that care remains unclear.

CONCLUSION

While courts in Australia have given consideration to the assessment of damages in wrongful birth claims, it is fair to say that much of the law in this area remains unsettled. Among the more significant of the unresolved questions is whether damages ought to be calculated up to the point that a child maintains a reasonable expectation of support, or whether parents only retain a right to such damages for as long as they have a legal obligation to the child. With regards to gratuitous care, it would appear that parents would be unable to claim compensation unless the High Court extended the principles first enunciated in Griffiths v Kerkemeyer. While parents may be able to claim the costs of commercial carers, they may be prevented from recovering the costs of commercial care if there is no evidence that commercial carers have previously been employed and the parents do not have the financial means to fund such care in the absence of a substantial verdict.

A handful of first instance judgments have provided some limited indication of the position that might ultimately be adopted by the judiciary as settled law. However, it remains unclear whether appellate courts would favour the same approach. Practitioners operating within the current legal landscape must therefore reflect very carefully on how best to approach the assessment of damages in wrongful birth claims, bearing in mind some of these competing considerations.

Louis Baigent is a lawyer at Maurice Blackburn Lawyers specialising in medical negligence claims. PHONE (07) 5430 8717 EMAIL lbaigent@mauriceblackburn.com.au. Sarah Vallance is a senior associate at Maurice Blackburn Lawyers specialising in medical negligence claims. PHONE (07) 3014 5049 EMAIL svallance@mauriceblackburn.com.au WEB www.mauriceblackburn.com.au .

^[1] In NSW and SA, courts are not permitted to award damages for the ordinary costs of rearing and maintaining a healthy child: Civil Liability Act 2002 (NSW), ss70-1; Civil Liability Act 1936 (SA), s67. Queensland has imposed the same restriction on damages; however, this only applies to claims involving negligent ‘sterilisation’ procedures and negligent ‘contraceptive’ procedures and advice: Civil Liability Act 2003 (Qld), ss49A and 49B.

^[2] Cattanach and Another v Melchior and Another [2003] HCA 38; (2003) 199 ALR 131 (Cattanach).

^[3] For a comprehensive overview of all relevant issues, see T Carver, T Cockburn and B Madden, ‘Wrongful birth children and assessing damages for costs of care: Australian and British jurisprudence compared’, Monash University Law Review, Vol. 44, 2018, 198.

^[4] Cattanach, [20].

^[5] Ibid.

^[6] Ibid, [309].

^[7] [2018] ACTSC 275 (Nouri).

^[8] Ibid, [447].

^[9] [2013] NSWSC 497 (Waller).

^[10] [2008] ACTSC 68 (Armellin).

^[11] Waller, [278].

^[12] Armellin, [225].

^[13] Family Law Act 1975 (Cth), s61C(1) (Family Law Act).

^[14] Ibid, s60B(2)(c).

^[15] Nouri, [446]-[447].