Date: Jamie Edelman

From: Fri, 28 Nov 2003 17:58:03 +0800

Subject: Rees v Darlington, cont

Some judicial comment on this issue in the Australian Cattanach v Melchior:

McHugh and Gummow JJ:

The coal miner, forced to retire because of injury, does not get less damages for loss of earning capacity because he is now free to sit in the sun each day reading his favourite newspaper. Likewise, the award of damages to the parents for their future financial expenditure is not to be reduced by the enjoyment that they will or may obtain from the birth of the child.

Compare Gleeson CJ:

An answer that has been given is that, in awarding damages in tort, it may be appropriate to set off like against like, but if a financial loss is suffered, it is neither necessary nor appropriate to set off a non-financial benefit. In this connection, the exemplar, referred to in argument in the Scottish courts in McFarlane, and in the judgments in that case[45], is the coal miner who, having been injured, and having suffered the loss of his future earning capacity, does not have his damages reduced to allow for the benefit of a future life of unemployed leisure in the open air. With respect to those who think otherwise, that example seems to me to re-state, rather than to answer, the present problem. As with many suggested analogies, the real question is whether it is analogous. The injured miner's claim for loss of earning capacity is for financial loss consequent upon physical harm, a well recognised form of actionable damage. He will be compensated for the consequences of that harm, including financial loss in the form of loss of earning capacity. His loss of earning capacity, a recognised head of damages, is not mitigated by his enforced leisure. Here, however, the question is whether human reproduction and the creation of a parent-child relationship is actionable damage. It is disputed that, in answering that question, some of the detrimental financial consequences of that relationship can be selected, and all the other consequences, financial and non-financial, ignored.

Jamie

----- Original Message -----
From: Andrew Tettenborn
Date: Friday, November 28, 2003 5:26 pm
Subject: ODG: Fwd: Re: Rees v Darlington, cont

I'm sorry to have made Lizzie's blood boil: but my point was serious (if a bit flippantly put).

I quite accept that children aren't gladioli: furthermore, there may be very good reasons for disallowing claims for the cost of bringing them up (for example, the effect on a child of court proceedings making it clear she wasn't wanted in the first place, the effect on the NHS, etc). All I was saying was that we shouldn't follow Scott in trying to reason this on the basis that there is somehow no loss, or an unquantifiable loss, because we should set off the joy of having the child against the monetary loss engendered by her birth. If we want to deny, or limit, claims for costs of raising her, we should be open about why we're doing it.

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