Wrongful birth and Sullivan v Gordon damages claims: An argument for consistency and reform in New South Wales

Abstract

This article critically analyses the relationship between wrongful birth and Sullivan v Gordon type claims in New South Wales. Although somewhat different in nature, both types of claims may relate to care expenses associated with children born as a result of another's negligence. The authors explore the legal, ethical and social issues that have been discussed extensively in cases such as Cattanach v Melchior (2003) 215 CLR 1, Sullivan v Gordon (1999) 47 NSWLR 319 and CSR Ltd v Eddy (2005) 226 CLR 1. The legislative provisions in New South Wales are then considered and an assessment made whether the legislature contemplated all the relevant issues as discussed in such cases. The authors argue that both s 15B and s 71 of the Civil Liability Act 2002 (NSW) should be reformulated to allow care expenses to be claimed for children who are born as a result of the negligence of another and that Sullivan v Gordon claims and wrongful birth claims should be treated consistently under the legislation.