Harriton v Stephens

• Jurisdiction: Australia Federal only
• Judge: Gummow J,Gleeson CJ,Kirby J,Hayne J,Callinan J,Heydon J
• Judgment Date: 09 May 2006
• Neutral Citation: 2006-0509 HCA A,[2006] HCA 15
• Court: High Court
• Docket Number: S229/2005
• Date: 09 May 2006

Alexia Harriton (by Her Tutor George Harriton)

Appellant

and

Paul Richard Stephens

Respondent

[2006] HCA 15

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

S229/2005

HIGH COURT OF AUSTRALIA

Harriton v Stephens

Torts — Medical negligence — Wrongful life — Birth of severely disabled child — Agreed for the purposes of separate questions at first instance that the respondent doctor failed to diagnose the mother's rubella infection during pregnancy — Doctor failed to warn the mother of the risk of serious disability as a consequence of the rubella infection — Whether the appellant child born with disabilities can recover from the doctor.

Duty of care — Medical practitioners — Whether the doctor owed the child a duty of care to diagnose rubella and advise the child's mother in relation to the termination of the pregnancy — Foreseeability of risk to the appellant — Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury — Vulnerability of the appellant — Relevance of duty of care owed to the appellant's mother.

Damage — Whether a life with disabilities is actionable damage — Whether it is possible to prove damage by comparing a life with disabilities with non-existence.

Damages — Assessment — Measure of damages — Compensatory principle — Non-existence as a comparator — Comparison to child born without disability — Whether claim for special damages quantifiable — Whether only special damages may be awarded — Corrective justice.

Public policy — Principle of the sanctity of human life — Whether life is capable of constituting a legally cognisable injury — Effect on disabled people of awarding damages for wrongful life — Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects — Whether disabled child could sue his or her mother for failing to terminate her pregnancy — Whether awarding damages for wrongful life would undermine familial relationships — Relevance of unforeseen advances in genetic science.

Statutes — Whether common law can be developed by analogy with legislation — Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction — Relevance of legislature's inaction.

Words and phrases — ‘wrongful life’, ‘wrongful birth’.

Civil Liability Act 2002 (NSW), ss 70, 71.

Civil Liability Act 2003 (Q), s 49A.

Civil Liability Act 1936 (SA), s 67.

Representation:

B W Walker SC with G P Segal and D H Hirsch for the appellant (instructed by Maurice Blackburn Cashman)

S J Gageler SC with J K Kirk for the respondent (instructed by Blake Dawson Waldron)

ORDER

Appeal dismissed with costs.

1 Gleeson CJ. I have had the advantage of reading in draft form the reasons for judgment of Crennan J.

2 I agree that the appeal should be dismissed with costs, for the reasons given by her Honour.

3 Gummow J. The appeal should be dismissed with costs.

4 I agree with the reasons of Crennan J.

5 Kirby J. In Cattanach v Melchior1 this Court decided that the parents of an unplanned child, born following the negligence of a medical practitioner, could claim damages for the cost of raising that child. This type of action has become known as an action for ‘wrongful birth’ 2. The decision in Cattanach followed earlier like decisions in other Australian courts supporting such recovery 3. The holding in that case was not challenged in this appeal.

6 The Court is now required to decide whether a child, born with profound disabilities, whose mother would have elected to terminate her pregnancy had she been aware that there was a real risk of the child being born with such disabilities, is entitled to damages where a medical practitioner negligently failed to warn the mother of that risk. Such actions have been called ‘wrongful life’ actions. This is a value-loaded label. An alternative, namely, ‘wrongful suffering’, has been suggested. However designated, such proceedings have received a generally hostile reception from courts in Australia and elsewhere. Many academic commentators have regarded them as insupportable 4. Yet others have considered that they are compatible with the established principles of the tort of negligence 5.

7 There is no legislation and no settled judicial authority in Australia to resolve the content of the law. It is therefore the duty of this Court to do so in the

usual way. It must proceed by analogous reasoning from past decisions, drawing upon any relevant considerations of legal authority, principle and policy 6.

‘Wrongful life’ and the danger of labels

8 The label ‘wrongful life’ has been criticised as ‘unfortunate’ 7, ‘ill-chosen’ 8, ‘uninstructive’ 9 and ‘misleading and decidedly unhelpful’ 10. In my view, its use, even as a shorthand phrase, should be avoided 11.

9 First, it has been borrowed from another context. The expression was originally used in the United States of America to describe claims brought by healthy but ‘illegitimate’ children against their fathers, seeking damages for the disadvantages caused by reason of their illegitimacy 12. Such actions are quite different from ‘modern’ wrongful life actions because, among other things, the alleged wrong is not in any meaningful sense the cause of the plaintiff's existence 13.

10 Secondly, the epithet ‘wrongful life’ is seriously misleading. It misdescribes the essential nature of the complaint. The plaintiff in a wrongful life action does not maintain that his or her existence, as such, is wrongful 14. Nor

does the plaintiff contend that his or her life should now be terminated. Rather, the ‘wrong’ alleged is the negligence of the defendant that has directly resulted in present suffering. Professor Peter Cane identified this distinction, stating ‘[t]he plaintiff in [wrongful life] cases is surely not complaining that he was born, simpliciter, but that because of the circumstances under which he was born his lot in life is a disadvantaged one’ 15.

11 Thirdly, the expression is apt to obscure potentially important differences between actions brought by or on behalf of children who would not have existed but for the negligence of another. Such actions may arise out of varying circumstances. For instance, the negligence complained of may be a failure to make an accurate diagnosis or a failure to warn the plaintiff's parents. It may precede, or it may follow, conception 16. The range of potential defendants includes medical practitioners, manufacturers of pharmaceuticals, genetic testing laboratories and possibly even the child's parents 17. The extent of the child's disabilities is another variable. By lumping all such cases under the one description there is a danger that important factual distinctions will be overlooked or obscured 18.

12 Fourthly, by referring to actions such as the present as actions for ‘wrongful life’, there is a risk that they will be perceived as the opposite of actions for ‘wrongful birth’. The latter actions are distinguishable on several grounds 19. Actions for ‘wrongful life’ are brought by or for the child. Actions for ‘wrongful birth’ are commenced at the instance of the parents 20. Additionally, ‘wrongful life’ actions are often said to raise concerns about the relative values of existence and non-existence. Such concerns are absent in a case of ‘wrongful birth’. Yet the two actions share certain similarities. One

important similarity is that they both require a birth. Another is that they both involve the contention that the child would not have been born but for the negligence of the defendant. Unless the similarities and differences are properly acknowledged, considerations favouring parental claims might be disregarded in claims brought by or for the child 21.

13 Fifthly, the words ‘wrongful life’ implicitly denigrate the value of human existence. Arguably, because of the law's respect for human life 22, the label has caused judges to recoil from affording remedies in ‘wrongful life’ cases. It discourages dispassionate legal analysis 23. It is essential that the availability of actions such as the present be determined by reference to accepted methods of judicial reasoning rather than by invoking emotive slogans and the contestable religious or moral postulates that they provoke 24.

14 Notwithstanding this analysis, in these reasons I will have to use the phrase ‘wrongful life’. The term is consistently used in the reasons of the other members of this Court and in the reasons of the courts below. Its use is ubiquitous in the legal literature. To adopt a more fitting description would risk confusion 25. However, the appeal should be approached with full awareness of the shortcomings in the label ‘wrongful life’. It must be decided by reference to legal analysis, not emotive labels or slogans.

The agreed facts

15 This appeal was heard concurrently with two other appeals concerning the permissibility of wrongful life actions 26. The facts were agreed between the parties for the purposes of determining whether the appellant had a cause of

action against the respondent and, if so, what heads of damages were available in respect of it 27.

16 Alexia Harriton is the appellant in this Court. In early August 1980, before her birth, her mother, Mrs Olga Harriton, experienced a fever and noticed a rash. Suspecting that she might be pregnant, she contacted Dr Max Stephens, who was a medical practitioner in general practice. Dr Max Stephens (who has since died) was the father of Dr Paul Stevens (‘the respondent’). He was also in general practice. On 13 August 1980, Dr Max Stephens attended on Mrs Harriton. She informed...