Ces V Superclinic

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Unit outline 5-7
18-25 case note unit reader
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plain English
identify the ratio decendi
the ratio for this case is
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for commonwealth, the high courts use of the judicial notion of
marriage happens to lead to potential provisions etc..
reference the article from the unit reader previously to support
this.
CES v Superclinics (Aust) Pty Ltd [1995]
Failure to diagnose a pregnancy led to a claim for damages for
loss of chance to have an abortion the cost of bringing up
the child
Kirby P extended Levines test to include consideration of the
impact of going to term on the womans health after the birth
of the child.
I am of the view (which Priestly JA said at first attracted him)
that the plaintiff's claim is repelled by statutory illegality. As
Newman J said:
the common law does not categorise the loss of an
opportunity to procure an illegal act as a matter for which
damages may be recovered.
The position is perfectly clear: s 82 and s 83 of the
Crimes Act 1900 make abortion illegal. There is an apparent
and unstated exception in cases where an abortion is
necessary to preserve the mother's health: R v Wald [1971] 3
NSWDCR 25.This apparent exception has no application on the
present facts. per Meagher J
Newman J found the plaintiff's health excellent at all times.
Nor could a medical practitioner, however progressive, have
had honest or reasonable grounds to think otherwise so
much is expressly found by his Honour. Moreover, in these

circumstances the plaintiff could hardly have had honest or
reasonable grounds for believing an abortion to
be legal. But, I am also of the view that the plaintiff's action
contravenes the general public policy of the law as well as the
provisions of specific sections of the Crimes Act 1900. It is
important to focus attention on precisely what the plaintiff was
trying to do.
The case is not about the morality of abortion; nor is it really
about whether the plaintiff would or would not be legally
entitled to have an abortion. It is about the question whether
a woman may in our courts sue a defendant because he
allegedly deprived her of the opportunity
of having an operation, with the result that she involuntarily
gave birth to a child. Having given birth to a healthy child in
August 1987, the plaintiff claimed at a court hearing in
December 1993 that the child, then over six years old, was
unwelcome, a misfortune, perhaps a disaster, certainly a head
of damages. per Meagher J
For all I know the child was in court to witness her mother's
rejection of her. Perhaps, on the other hand, the plaintiff had
the taste to keep her child out of court. Even if
that be so, it does not mean the unfortunate infant will never
know that her mother has publicly declared her to be
unwanted. When she is at school some ame charitable
perhaps the mother of one of her friends can be trusted
to direct her attention to the point. That a court of law should
sanction such an action seems to me improper to
the point of obscenity. It seems to me that our law has always
proceeded on the premise that human life is sacred. That is so
despite an occasional acknowledgment that existence is a
vale of tears. per Meagher J
Hence, in criminal law, except within closely defined limits, to
take another's life is murder; to threaten to do so is a criminal
offence. To abort a child in utero is a common law
misdemeanour.
per Meagher J
I would underline the need to consider the likelihood of such
a termination being found to be unlawful. This reflects the
reality of the availability of termination procedures in our
society today. Taking that reality into account would permit
commonsense to intrude into the
Court's deliberations. It would allow the Court to take into
account the fact that it would be most unlikely that any
medical practitioner, still less the first appellant, would have
been prosecuted and taken to trial. per Kirby J
There is an air of unreality in the contrary approach favoured
by Newman J and favoured by the majority in this Court. I
realise that termination of pregnancy is a subject which is

prone to engender very strong feelings. It has a tendency, in
some cases, to divide the attitudes of women (who must, in
practice, bear most of the
consequences) and of men (who number most of the judges
enforcing the law). But a point is reached in this case where I
feel bound to remind the Court of the reality of the application
of s 83 of the Crimes Act in this State following Wald. per
Kirby J
It may or may not be a desirable reality. Upon that question,
theologians, philosophers and citizens will differ, but to
interpret that law without reference to such
reality in a claim for civil damages where serious breaches of
duty have been accepted to have occurred is, in my view,
quite unrealistic. Effectively, it shifts the burden of the
respondents' proved breaches of duty of care in this case from
them to a patient who came to their Superclinic and
received careless treatment. It sanctions without civil redress
serious acts and defaults which have resulted in very
substantial losses to the appellants. This cannot be, and is
not, the law. per Kirby J
It is quite inappropriate for a court to declare that a child,
initially unwanted, and whose birth was caused by the
negligence of a medical practitioner, should always be
regarded for all purposes as a blessing, whatever the
facts of the particular case. Similarly it is unconvincing (at
least to me) that to deny recovery for the undoubted
economic loss that accrues would demean the sanctity of
human life, whatever the circumstances of the case.
The inadequacy of such reasoning is highlighted by the fact
that the parents themselves have already, in a case such as
the present, assessed the situation. per Kirby J
They concluded that the child would, in fact, be a greater
burden that a desired blessing. This conclusion was
manifested by the steps taken, or the desires expressed, to
secure a termination of the pregnancy at a time when this
could have been safely done. The widespread use of
contraceptive measures is itself an indication of a
general social disagreement with the theory that every
potential child must necessarily be considered an unalloyed
blessing. per Kirby J

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Page 35 case note considred by known journalists

Known status of case = distinguished, applied or followed

much is expressly found by his Honour. Moreover, in these

realise that termination of pregnancy is a subject which is

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