Assessment of damages in wrongful birth cases

More than ten years has passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child in the well know decision of Cattanach v Melchior . A recent decision of the Supreme Court of New South Wales was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases.

Mental harm, rescuers and the Civil Liability Act 2002 (NSW)

At common law, a duty of care may be owed to a claimant who suffers nervous shock or pure mental harm due to witnessing, or hearing about, physical injury caused to another due to a defendant’s negligence. “Pure mental harm” is the ‘impairment of a person’s mental condition’ that is not suffered as a consequence of any other kind of personal injury to them. However, as many accidents have the potential to create a wide circle of mental suffering to bystanders, family members or others not physically injured themselves, it has traditionally been ‘thought impolitic that everybody so affected should be able to recover damages from the tortfeasor.’ ‘To allow such extended recovery would stretch liability too far.’ Nevertheless, whilst adopting a restrictive approach to liability, the common law courts have recognised that a defendant might owe a duty in relation to the pure mental harm suffered by one who foreseeably attends an accident scene to rescue another from a situation created by the defendant’s negligence.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Civil Liability and Other Legislation Amendment Act 2010 (Qld)

On 17 March 2010, the Civil Liability and Other Legislation Amendment Act 2010 (Qld) was assented to.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Will Queensland tort reform change valuation practice and valuers liability

It has been common practice over past property boom and bust cycles in Australia for financial institutions and property owners who have suffered a loss in the property downturn to sue valuers for negligence. Damages claimed are based on the price differential between the valuation at or nearing the peak of the market and the subsequent sale in the market downturn. However, the context of valuers liability has become increasingly complex as a result of statutory reforms introduced in response to the Review of the Law of Negligence Final Report 2002), in particular the introduction of Civil Liability Acts introducing proportionate liability provisions. Legislative reforms have had some positive outcomes for Valuers, however valuers need to continue to maintain high ethical standards, independence and professionalism in valuation practice.

Legal practitioners’ negligence liability for claim investigation and advice

Nigam v Harm (No 2) [2011] WASCA 221, Western Australia Court of Appeal, 18 October 2011

Wrongful birth : assessment of damages in 2013

More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.

Wrongful birth assessment of damages : judgment pending

Damages issues regarding the costs of raising the child argued in a case currently before the NSW Supreme Court - Waller v James litigation pre-dated the Health Care Liability Act 2001 and the Civil Liability Act 2002.

Wrongful birth assessment of damages : judgment pending

Wrongful birth - assessment of damages - overview of damages issues raised in current and previous litigation - breach of duty and causation - cost of raising a child - key damages assessment issues - application of civil liability legislation.

Hospital liability for sexual assault of a patient

Hospital liability for alleged sexual assault upon a medicated patient by an orderly - non-delegable duty owed by a hospital to its patients - vicarious liability - liability for criminal conduct by employer - recruitment processes - assessment of damages.

Gratuitous services - Civil Liability Act 2003 s59

The article considers the decision of the Queensland Court of Appeal in Kritz v King [2006] QCA 351, which examined for the first time s59 of the Civil Liability Act 2003 (Qld) in relation to claims for damages for gratuitous services.

Assessment of damages for defamation of business and personal reputation

An award of damages for defamation is to provide reparation for harm to a plaintiff’s reputation for the publication of defamatory material, compensate for any personal distress caused and vindicate the plaintiff’s reputation.1 Assessing such damages is recognised as a difficult task and perhaps the Queensland courts face further difficulties as there are few awards of damages for defamation in the state. This was pointed out in the recent decision of the Queensland Court of Appeal, Cerutti & Anor v Crestside Pty Ltd & Anor.2 This decision examined in detail the principles of assessing damages for defamation.