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.

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