Australia: Wrongful birth: Harriton v Stephens; Waller v James; Waller v Hoolahan

Last Updated: 22 November 2011
Article by Robert Samut

The Facts

Alexia Harriton and Keeden Waller, the plaintiffs, were born catastrophically disabled.The disabilities in each case were caused by circumstances prior to birth and it was alleged on their behalf that the defendant medical practitioners failed to diagnose the circumstances which resulted in their being born with disabilities.

In the case of Keeden Waller, the claim also included allegations relating to the management of his birth. However, his claim for physical injuries relating to the birth was stayed pending determination of the wrongful life issues. The claim by Keeden Waller's parents for wrongful birth was also stayed pending the determination of the wrongful life issues.

Alexia Harriton was born with maternal rubella. Alexia's mother had told her GP that she thought she was pregnant, but also thought she was ill with rubella. The pregnancy was confirmed but rubella was excluded. It was common ground that in 1980 a reasonable medical practitioner would have informed Alexia's mother of the risk that a foetus exposed to the rubella virus would be born with profound disabilities. Keeden Waller's condition was as a result of his father's anti-thrombin 3 deficiency being passed on to him during the process of IVF.

The particular circumstances giving rise to the separate risks of these two plaintiffs being born disabled were capable of being discovered prior to birth. The parents of the plaintiffs relied on the medical practitioners in each case to detect and advise them of the existence of those circumstances. It was alleged on behalf of each plaintiff that had the medical practitioners properly diagnosed the particular circumstances that resulted in each being born disabled, the parents of the plaintiffs would have terminated the pregnancy or avoided conception.

The Issues

The litigation was ventilated in the Supreme Court by preliminary determination, rather than by a trial. Both matters were heard together. The issues to be determined in relation to both matters were:

  • Whether the medical practitioners failed to exercise reasonable care in the management of the plaintiffs' mothers and, if as a result of that failure the plaintiffs would not have been born, do the plaintiffs have a cause of action against the doctors'
  • If so, what categories of damages are available to the plaintiffs'

The Decision on Appeal

By majority, the Court of Appeal dismissed the plaintiffs' appeal.

Justice Ipp considered that compensation within the law of negligence requires a comparison between the plaintiffs' physical and psychological state brought about by the negligence of the medical practitioners and the plaintiffs' physical and psychological state had that conduct not occurred. Justice Ipp concluded that this required a comparison between being born with a disability and non-existence, a comparison that was impossible. Such a comparison could not be reconciled with the compensatory principle upon which tort law is based which requires a court, to the extent possible, to put the injured party in the same position they would have been but for the tort.

Chief Justice Spigelman cited ethical grounds, stating that the duty asserted by the plaintiffs did not reflect values generally held in the community. He also found that the relationship between the medical practitioners and the unborn plaintiffs was not sufficiently direct.

In dissent, President Mason found that the scope of a doctor's duty is not necessarily limited to an obligation not to cause harm. In these cases, the negligence of the medical practitioners in failing to detect the relevant circumstances prevented the parents from making any informed decision not to conceive or to terminate the pregnancy, both of which would have prevented the disabilities. President Mason saw no conceptual difference between the critical event that generates a parent's recognised wrongful birth claim and a child's putative wrongful life claim, stating that there was an essential consistency between the two.

The Appeal to the High Court

The plaintiffs were granted special leave to appeal to the High Court.

The issues before the High Court involved a reconsideration of the two questions initially determined by Justice Studdert in the New South Wales Supreme Court, that is:

  • Whether the medical practitioners owed a duty of care to the then unborn children to provide their mothers with information upon which the mothers could make an informed decision about termination or conception, and
  • Whether the harm suffered by the children, having been born, was capable of compensation within the law of negligence.

The Decision in the High Court

By a majority of 6:1 the High Court dismissed the plaintiffs' appeal. Separate reasons were published in respect of the two plaintiffs, but in relation to the wrongful life issues, the claims were dismissed on the same grounds.

Justice Crennan, in the leading judgment, found that the damage claimed by the plaintiffs was not amenable to determination by application of legal methodology:

'A duty of care cannot be clearly stated where the [child] can never prove' the actual damage claimed, the essential ingredient of the tort of negligence.'

In this way, the High Court found that the plaintiffs were not able to show legally recognisable damage, that is, a loss caused by an alleged breach of duty.

Consistent with the majority in the Court of Appeal, the High Court majority focused on the impossibility of comparing life with non-existence.

The High Court also found that to work around this comparison to resolve on a method of damages assessment would create an 'unworkable legal fiction'. The majority also found that a cause of action for wrongful life would be incompatible with common law values.

In dissent, Justice Kirby found that the duty issue was unremarkable as the foetus was clearly in the contemplation of the medical practitioner and the accepted duty to take reasonable care to avoid harm to a foetus would also extend to encompass a duty of care in the present circumstances. Justice Kirby noted that in most of the instances where a duty was excluded, that finding was based on a more global consideration of not just duty, but causation and damage as a whole, as well as policy issues. He found that such a global consideration results in comparisons of life with disability to non-existence and this causes the duty argument to fail. Justice Kirby expressed a preference that the duty be considered at a more 'general level of abstraction'.

On the question of damage, Justice Kirby found that it was wrong to focus on the 'impossible comparison' argument. He found that while it can be difficult, where there is actionable damage, courts will provide relief and will undertake the exercise to assign a dollar value to intangibles in such circumstances. In any event, such difficulty assessing damages relates only to damages for pain and suffering as claims for special damages, including claims for care and assistance, are easily quantifiable by comparing needs with the absence of needs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.