Edwards v Blomeley

[2002] NSWSC 460

CITATION:	Edwards v Blomeley [2002] NSWSC 460
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20425/01
HEARING DATE(S):	11-12 March 2002
JUDGMENT DATE:	12 June 2002
PARTIES :	Robert Andrew Edwards (1st Plaintiff) Donna Rachelle Edwards (2nd Plaintiff) Chelsea Grace Edwards by her tutor Robert Andrew Edwards (3rd Plaintiff) Dr Neville Raymond Blomeley (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	D. Hirsch (Plaintiffs) P.R. Garling SC/S. Woods (Defendant)
SOLICITORS:	Maurice Blackburn Cashman (Plaintiffs) Blake Dawson Waldron (Defendant)
CATCHWORDS:	NEGLIGENCE - failed vasectomy - whether duty of care owed by medical practitioner performing procedure to child subsequently conceived - if so, content of duty - child born disabled - whether breach of duty to child - causation of disabilities - disabilities genetic and not iatrogenic. "WRONGFUL LIFE" claim - whether maintainable - impossibility of determining whether "damage" suffered - impossibility of assessing compensatory damages - public policy considerations
LEGISLATION CITED:	Congenital Disabilities (Civil Liability) Act 1976 U.K. Fair Trading Act, 1989 (Qld) Health Care Liability Act, 2001 Limitation Act, 1969 Property Law Act, 1974 (Qld)
CASES CITED:	Ahsan v Olsen 4 Conn L. Rptr. 282, 3 CSCR 55 Arndt v Smith [1994] 8 WWR 568 (BCSC) Atlanta Obstetrics & Gynecology Group v Abelson 398 S.E.2d 557 (Ga. 1990) Azzolino v Dingfelder 337 S.E.2d 528 (N.C. 1985) Bannerman v Mills (1991) ATR 81-079 Beardsley v Wierdsma 650 P.2d 288 (Wyo. 1982) Becker v Schwartz 386 N.E.2d 807 (N.Y. 1986) Blake v Cruz 698 P.2d 315 (Idaho 1984) British Transport Commission v Gouley (1956) AC 185 Bruggeman v Schimke 718 P.2d 635 (Kan. 1986) Bryan v Mahoney (1994-95) 182 CLR 609 Bundesgerichtshof (Sixth Civil Senate, 18 January 1983): see Institute of Global Law, German decisions, BGHZ 86, 240, JZ 1983) Bundesvefassungsgerichts (First Division, 12 November 1997): see Institute of Global Law, German decisions, B Verf GE 96, 375) Burton v Islington Health Authority; De Martell v Merton & Sutton Health Authority (1992) 3 All ER 833 CES v Superclinics (Australia) Pty Limited (1995-96) 38 NSWLR 47 Chappel v Hart (1998) 195 CLR 232 Cowe v Forum Group, Inc. 575 N.E.2d 630 (Ind. 1991) Curlender v Bio-Science Labs 106 Cal. App. 3d 811, 165 Cal.Rptr 477 De Martell v Merton & Sutton Health Authority (1992) 3 All ER 833 Donnelly v Candlewood Obstetric-Gynecological Associates, P.C. (6 Conn. L. Rptr. 532) Dumer v St Michael's Hosp. 233 N.W.2d 372 (Wis. 1975) Elliott v Brown 361 So. 2d 546 (Ala. 1978) Ellis v Sherman 515 A 2d 1327 (Pa. 1986) Emeh v Kensington & Chelsea & Westminster Health Authority (1985) QB 1012 Flanagan v Williams 623 N.E. 2d 185 (Ohio Ct App. 1993) Frost v Chief Constable of South Yorkshire Police (1999) 2 AC 455 Garrison v Medical Ctr of Del. Inc. 581 A.2d 288 (Del. 1989) Gleitman v Cosgrove (1967) 227 A 2d 689 Greco v United States 893 P.2d 345 (Nev. 1995) Groom v Selby (2001) EWCA Civ 1522 Harbeson v Parke-Davis Inc. 656 P 2d 483 Harriton v Stephens [2002] NSWSC 460 Hayne v Nyst (unreported, Williams J, Qld Supreme Court, 7 October 1995) Haynes v Bendall (1991) 172 CLR 60 Hester v Dwivedi (2000) 89 Ohio St 3d 575 Institute of Global Law, Austrian decisions, 10b 91/99k, JBI 1999 1593 James G v Caserta 332 S.E. 2d 872 (W.Va. 1985) Jones v Rostvig (1999) 44 CCLT (2d) 312 (BCSC) Kassama v Magat (Court of Special Appeals of Maryland, February 2001) Kinzett v McCourt (1999) 46 NSWLR 32 Kush v Lloyd 616 So. 2d 415 (Fla. 1992) Lacroix v Dominique [2001] MBCA 122 Lininger v Eisebaum 764 P 2d 1202 (Colo. 1988) Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 March v Stramare (1991) 171 CLR 506 McFarlane v Tayside Health Board (2000) 2 AC 59 McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166 Melchior & Anor v Cattanach & Anor [2001] QCA 246 Nelson v Krusen 678 S.W. 2d 918 (Tex. 1984) P's Curator Bonis v Criminal Injuries Compensation Board (1997) SLT 1180 Parkinson v St James & Seacroft University Hospital (2001) 3 All ER 97 Perre v Apand Pty Limited (1999) 198 CLR 180 Perruche, Cour de Cassation, France (17 November 2000) Petre v Opelousas Gen. Hosp. 517 So. 2d 1019 (La. Ct App. 1987); 530 So. 2d 1151 (La. 1988) Phillips v United States 508 F Supp 537 Procanik v Cillo (1997) NJ 339; 478 A 2d 755 Quinn v Blau (Superior Court of Connecticut, 12 December 1997) Rees v Darlington Memorial Hospital NHS Trust (2002) EWCA Civ. 88 Siemieniec v Lutheran Gen. Hosp. 512 N.E. 2d 691 (Ill. 1987) Skelton v Collins (1966) 115 CLR 94 Smith v Cote 513 A. 2d 341 (N.H. 1986) Stapley v Gypsum Mines Ltd (1953) AC 663 Strohmaier v Associates in Obstetrics & Gynecology, P.C. 332 N.W. 2d 432 (Mich. Ct App. 1982) Thake v Maurice (1986) QB 644 Trident General Insurance Co. Limited v McNiece Bros Pty Limited (1988) 165 CLR 107 Turpin v Sortini 643 P 2d 954 Udale v Bloomsbury Area Health Authority (1983) 1 WLR 1098 Viccaro v Milunsky 551 N.E. 2d 8 (Mass. 1990) Vievers v Connolly (1995) 2 Qd R 325 Walker by Pizano v Mart 790 P. 2d 735 (Ariz. 1990) Waller & Ors v James & Ors [2002] NSWSC 462 Watt v Rama (1972) VR 353 Williams & Humbert v WLH Trademarks Limited [1986] AC 368 Wilson v Kuenzi 751 S.W. 2d 741 (Mo. 1988) Woodruff v Hoffman 10 Conn. Law Trib. 15 X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 Assessment of Damages for Personal Injury and Death, Luntz, 4th ed. The Law of Torts in Australia, Trindade & Cane, 3rd ed. The Law of Torts, Fleming, 9th ed.
DECISION:	See para 136.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE list

STUDDERT J

Wednesday 12 June 2002

20425/01 ROBERT ANDREW EDWARDS & ORS v DR NEVILLE RAYMOND BLOMELEY

JUDGMENT

1 HIS HONOUR: In this cause the plaintiffs, Robert Andrew Edwards, Donna Rachelle Edwards and Chelsea Grace Edwards by her tutor Robert Andrew Edwards, are claiming damages against the defendant, Neville Raymond Blomeley.

2 On the application of the defendant and with the consent of the plaintiffs, I made an order pursuant to Pt 31 r 2 that there be a separate determination of the following questions:

“1. If the defendant failed to exercise reasonable care in his management of the first plaintiff and, but for that failure, the third plaintiff would not have been conceived and born, does the third plaintiff have a cause of action against the defendant; and
2. If so, what categories of damages are available.”

3 For the purposes of the determination of those questions, the parties agreed upon the following statement of facts:

“1. The third plaintiff, Chelsea Grace Edwards (‘Chelsea’) was born at Westmead Hospital, in Westmead, New South Wales, on 8 August 1999. She brings this claim by her tutor, Robert Andrew Edwards (‘Robert’) who is her father.

2. Robert and his wife, Donna Rachelle Edwards (‘Donna’) were married on 5 November 1988. Between July 1990 and February 1998 they had six children. They decided that their family was complete and did not wish to have any more children.

3. Robert consulted the defendant, Dr Neville Raymond Blomeley (‘Dr Blomeley’) on 6 May 1998 for advice regarding a vasectomy.

4. A doctor/patient relationship and contractual relationship was created.

5. Dr Blomeley informed Robert of the need for a sperm test 6 weeks after the procedure and the need to use alternative contraception in the interim.

6. On 29 May 1998 Robert underwent a vasectomy which was performed by Dr Blomeley at his surgery in Indooroopilly, Queensland.

7. On 29 May 1998 Robert was informed that a number of ejaculations were required to clear existing sperm from his body. Robert was again informed that he required a sperm test 6 weeks post procedure.

8. A sperm count done on 24 July 1998 demonstrated 19 million sperm per millilitre and stated ‘motile sperm still present’.

9. On 27 July Dr Blomeley telephoned Robert and advised that the sperm count was higher than normal and recommended a further sperm count in 2 weeks and that he and Donna should use contraception in the interim.

10. A sperm count done on 11 August 1998 demonstrated 5 million sperm per millilitre and stated ‘motile sperm still present’.

11. The sperm counts on 24 July and 11 August demonstrated that the vasectomy had failed or probably failed.

12. Dr Blomeley did not advise Robert that the vasectomy had failed or probably failed but rather that, since the sperm counts were falling, the vasectomy appeared to be successful. Dr Blomeley recommended to Robert that he have a further sperm count in one month.

13. Robert did not do this. Instead, relying on the representation that the vasectomy appeared to be successful in view of the falling sperm count, he and Donna continued to use contraception for about two months and then had unprotected intercourse. Dr Blomeley did not follow up with Robert regarding any subsequent tests.

14. In or around December 1998 Donna fell pregnant with their seventh child, Chelsea.

15. Dr Blomeley failed to perform the vasectomy with reasonable care and skill.

16. Further, had Dr Blomeley advised Robert that his sperm counts demonstrated that the vasectomy had failed, or had probably failed, Robert and Donna would have taken other measures to avoid contraception.

17. Dr Blomeley’s negligent performance of the vasectomy, and his negligent advice that despite the sperm counts obtained following the vasectomy, the vasectomy had not failed, was the cause of Chelsea’s conception and birth.

18. Chelsea suffers from a rare chromosomal disorder called ‘cri du chat’ syndrome. This syndrome can be expected to cause the following disabilities in Chelsea’s life:

a. intellectual disability;
b. speech and language impairment and delay;
c. monotone, weak, cat-like cry;
d. dysmorphic facial features;
e. motor disability;
f. short attention span;
g. hyperactivity; and
h. sleep disorders.


19. Chelsea’s injuries and disabilities due to cri du chat syndrome will result in a level of care greater than what would be expected of a child who did not have cri du chat syndrome.

20. Chelsea’s ongoing needs will continue past the age of 18 years.

21. Chelsea’s disability is genetic and not iatrogenic.”

4 This case is one of three cases heard by me on 11 and 12 March 2002 in which similar questions fell to be determined. The other matters were Harriton v Stephens [2002] NSWSC 461 and Waller & Ors v James & Ors [2002] NSWSC 462 Each case, of course, has required discrete consideration.

5 As emerges from the above statement of facts, the conception and the birth of the third plaintiff, Chelsea Edwards, followed the failure of a vasectomy procedure by the defendant upon her father. Tragically, Chelsea was born severely disabled.

6 As the issues for determination reveal, it is the claim of the third plaintiff only that is to be the subject of this separate determination. The claim has been categorised as a “wrongful life” claim, in the sense that it is a claim brought by a child seeking damages in consequence of a failure to prevent the child from being born. Mr Hirsch, for the plaintiff, submitted at the outset that the expression “wrongful life” claim is uninstructive and unfortunate and that the wrongfulness is to be found only in the negligence preceding birth, and in this case also preceding conception. Any use of the expression “wrongful life” claim is to be employed with that legitimate criticism in mind. Nevertheless, I intend to use this expression for the sake of convenience since it has been commonly used in the reported cases and by textbook authors in decisions and textbooks to which my research has taken me, and since, indeed, the expression has been used in submissions in this case.

Review of decisions in “wrongful life” cases

7 It is common ground that there has been no case decided in this State or in Australia in which a court has determined that a right of action exists in relation to a claim such as the present one.

8 At the outset I propose to consider the existing case law in New South Wales and elsewhere in Australia before considering overseas authorities. Indeed, there is but little relevant case law in this country.

New South Wales

9 In Bannerman v Mills (1991) ATR 81-079 Master Greenwood heard and acceded to an application for summary dismissal of a claim by an infant born with disabilities in consequence of her mother suffering from rubella whilst pregnant with the plaintiff. The negligence alleged in that case was a failure by the defendant doctors to give the mother of the plaintiff appropriate advice such as would have led to an abortion. Master Greenwood determined the plaintiff’s case to be “hopeless”, having concluded that “the tort of wrongful life is not known to the common law and even if it were it would not be possible to assess any damage in monetary terms.” Master Greenwood referred extensively in his reasons for judgment to the decision of the Court of Appeal in England in McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166, and I shall consider that decision shortly.

Queensland

10 In Hayne v Nyst (unreported, Williams J, 7 October 1995) the plaintiff mother had a child born with profound disabilities as a consequence of the mother having been infected by measles whilst carrying her daughter. The plaintiff sought to take proceedings in her own right against the doctor consulted during her pregnancy, her claim being expressed as a claim for the loss of the chance of having an abortion. In the statement of claim a claim by the child was also indicated, but, in the course of argument on an application for extension of time concerning the mother’s claim, the court was informed that the child’s claim was not being pursued. This prompted the following remarks from Williams J, remarks which, of course, were obiter dicta:

“I should record that I cannot see how there could be a viable cause of action vested in the infant child. Assuming there was negligence as alleged on the part of the defendants, that was not the cause of the child having the physical defects from which she suffers. The child could hardly base a claim on the proposition that if the defendants had given the proper, rather than negligent, advice her mother would have had an abortion and she would not have been born (cf. the reasoning of the Court of Appeal in McKay v Essex Area Health Authority [1982] 1 QB 1166).”

11 No other Australian authority directly in point has come to the attention of the Court. The absence of other authority in Australia suggests an acceptance in this country hitherto of the decision of the Court of Appeal in McKay v Essex Area Health Authority, and I shall now turn to a consideration of that case.

United Kingdom

12 The possibility of a “wrongful life” claim has been addressed by statute in the United Kingdom. The Congenital Disabilities (Civil Liability) Act 1976 has been passed and its effect is to deprive any child born after 22 July 1976 of any possible action for “wrongful life”. This statute was passed before the decision of the Court of Appeal in McKay but after the happening of the events sought to be relied on as founding a cause of action in McKay.

13 In this case, the infant plaintiff was born disabled as a result of her mother having been infected with rubella whilst the plaintiff was in her womb. The plaintiff’s case was that but for the negligence of the defendants, the Health Authority and a medical practitioner, her mother would have had an abortion. Because there was no abortion the plaintiff was born severely disabled. The plaintiff’s claim was struck out by a master on the ground that it disclosed no reasonable cause of action against either defendant. On appeal to a judge, the master’s order was set aside, and a further appeal followed to the Court of Appeal where the master’s order was restored. The reasoning in the judgments in the Court of Appeal warrants close attention in the present context.

14 Stephenson LJ said at 1178-1179:

“The importance of this cause of action to this child is somewhat reduced by the existence of her other claim and the mother’s claims, which, if successful, will give her some compensation in money or in care. However, this is the first occasion on which the courts of this country or the Commonwealth have had to consider this cause of action, and I shall give my reasons for holding that it should be struck out.
If, as is conceded, any duty is owed to an unborn child, the authority’s hospital laboratory and the doctor looking after the mother during her pregnancy undoubtedly owed the child a duty not to injure it, and if she had been injured as a result of lack of reasonable care and skill on their part after birth, she could have sued them, as she is suing the doctor, for damages to compensate her for the injury they had caused her in the womb. Compare the thalidomide cases, where it was assumed that such as action might lie: eg, Distillers Co. (Biochemicals) Ltd v Thompson [1971] AC 458. But this child has not been injured by either defendant, but by the rubella which has infected the mother without fault on anybody’s part. Her right not to be injured before birth by the carelessness of others has not been infringed by either defendant, any more than it would have been if she had been disabled by disease after birth. Neither defendant has broken any duty to take reasonable care not to injure her. The only right on which she can rely as having been infringed is a right not to be born deformed or disabled, which means, for a child deformed or disabled before birth by nature or disease, a right to be aborted or killed; or, if that last plain word is thought dangerously emotive, deprived of the opportunity to live after being delivered from the body of her mother. The only duty which either defendant can owe to the unborn child infected with disabling rubella is a duty to abort or kill her or deprive her of that opportunity.
It is said that the duty does not go as far as that, but only as far as a duty to give the mother an opportunity to choose her abortion and death. That is true as far as it goes. The doctor’s alleged negligence is in misleading the mother as to the advisability of an abortion, failing to inform or advise her of its advisability or desirability; the laboratory’s alleged negligence is not so pleaded in terms but the negligence pleaded against them in failing to make or interpret the tests of the mother’s blood samples or to inform the doctor of their results must, like the doctor’s negligence, be a breach of their duty to give the doctor an opportunity to advise the mother of the risks in continuing to let the foetus live in the womb and be born alive. But the complaint of the child, as of the mother, against the authority, as against the doctor, is that their negligence burdened her (and her mother) with her injuries. That is another way of saying that the defendants’ breaches of their duties resulted, not just in the child’s being born but in her being born injured or, as the judge put it, with deformities. But as the injuries or deformities were not the result of any act or omission of the defendants, the only result for which they were responsible was her being born. For that they were responsible because if they had exercised due care the mother would have known that the child might be born injured or deformed, and the plaintiffs’ pleaded case is that, if the mother had known that, she would have been willing to undergo an abortion, which must mean she would have undergone one or she could not claim that the defendants were responsible for burdening her with an injured child. If she would not have undergone an abortion had she known the risk of the child being born injured, any negligence on the defendants’ part could not give either plaintiff a cause of action in respect of the child being born injured.

I am accordingly of opinion that though the judge was right in saying that the child’s complaint is that she was born with deformities, without which she would have suffered no damage and have no complaint, her claim against the defendants is a claim that they were negligent in allowing her, injured as she was in the womb, to be born at all, a claim for ‘wrongful entry into life’ or ‘wrongful life’.”

15 Later, the proposition was rejected that there was a duty owed to the child to give the child’s mother advice such as might influence a decision by her to undergo an abortion (at 1180-1181):

“I am therefore compelled to hold that neither defendant was under any duty to the child to give the child’s mother an opportunity to terminate the child’s life. That duty may be owed to the mother, but it cannot be owed to the child.
To impose such a duty towards the child would, in my opinion, make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving, and it would even mean that a doctor would be obliged to pay damages to a child infected with rubella before birth who was in fact born with some mercifully trivial abnormality. These are the consequences of the necessary basic assumption that a child has a right to be born whole or not at all, not to be born unless it can be born perfect or ‘normal’, whatever that may mean.
Added to that objection must be the opening of the courts to claims by children born handicapped against their mothers for not having an abortion. For the reasons given by the Royal Commission on Civil Liability and Compensation for Personal injury (1978) (Cmnd. 7054-1), cited by Ackner LJ, that is, to my mind, a graver objection than the extra burden on doctors already open to actions for negligent treatment of a foetus, which weighed with the Law Commission.”

16 Stephenson LJ then considered the difficulties that the assessment of the nature of the damage would present if an action was available:

“Finally, there is the nature of the injury and damage which the court is being asked to ascertain and evaluate.
The only duty of care which courts of law can recognise and enforce are duties owed to those who can be compensated for loss by those who owe the duties, in most cases, including cases of personal injury, by money damages which will as far as possible put the injured party in the condition in which he or she was before being injured. The only way in which a child injured in the womb can be compensated in damages is by measuring what it has lost, which is the difference between the value of its life as a whole and healthy normal child and the value of its life as an injured child. But to make those who have not injured the child pay for that difference is to treat them as if they have injured the child, when all they have done is not having taken steps to prevent its being born injured by another cause.
The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child? Even if a court were competent to decide between the conflicting views of theologians and philosophers and to assume an ‘after life’ or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the injured child’s life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained?”

17 And then at 1182:

“If a court had to decide whether it were better to enter into life maimed or halt than not to enter it at all, it would, I think, be bound to say it was better in all cases of mental and physical disability, except possibly those extreme cases already mentioned, of which perhaps the recent case of Croke v Wiseman [1982] 1 WLR 71 is an example, but certainly not excepting such a case as the present. However that may be, it is not for the courts to take such a decision by weighing life against death or to take cognisance of a claim like this child’s. I would regard it on principle as disclosing no reasonable cause of action and would accordingly prefer the master’s decision to the judge’s.”

18 In the concluding paragraph of his judgment at 1184, Stephenson LJ considered the impact of public policy:

“The defendants must be assumed to have been careless. The child suffers from serious disabilities. If the defendants had not been careless, the child would not be suffering now because it would not be alive. Why should the defendants not pay the child for its suffering? The answer lies in the implications and consequences of holding that they should. If public policy favoured the introduction of this novel cause of action, I would not let the strict application of logic or the absence of precedent defeat it. But as it would be, in my judgment, against public policy for the courts to entertain claims like those which are the subject of this appeal, I would for this reason, and for the other reasons which I have given, allow the appeal, set aside the judge’s order and restore the master’s order.”

19 Turning to the judgment of Ackner LJ (at 1188):

“I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person, whether or not in utero, to terminate his existence. Such a proposition runs wholly contrary to the concept of the sanctity of human life.”

20 Ackner LJ then went on to address the implications of the submission being advanced on the respondent’s behalf:

“Mr Wilmers contends that where it can be established that a child’s disabilities are so severe that it can be properly stated that she would be better off dead, the duty of care involves the duty to terminate its life…
Mr Wilmers was constrained to concede that if his submission was correct, then a child born with a very minor disability, such as a squint, would be entitled to sue the doctor for not advising an abortion, which advice would have been accepted, given that the risk (which fortunately did not eventuate) was of serious disabilities due to some infection which the doctor should have diagnosed. This would indeed be an odd position. Moreover, he accepted that if the duty of care to the foetus involved a duty on the doctor, albeit indirectly, to prevent its birth, the child would have a cause of action against its mother, who had unreasonably refused to have an abortion. Apart from the complicated religious and philosophical points that such an action would raise, the social implications in the potential disruption of family life and bitterness which it would cause between parent and child led the Royal Commission on Civil Liability and Compensation for Personal Injury (1978) (Cmnd. 7054-1) to conclude that such a right of action would be against public policy: see paragraph 1465.”

21 Ackner LJ considered the problem of determining how damages were to be assessed if an action was maintainable in the following passage (at 1189):

“The disabilities were caused by the rubella and not by the doctor… What then are her injuries, which the doctor’s negligence has caused? The answer must be that there are none in any accepted sense. Her complaint is that she was allowed to be born at all, given the existence of her pre-natal injuries. How then are her damages to be assessed? Not by awarding compensation for her pain, suffering and loss of amenities attributable to the disabilities, since there were already in existence before the doctor was consulted. She cannot say that, but for his negligence, she would have been born without her disabilities. What the doctor is blamed for is causing or permitting her to be born at all. Thus, the compensation must be based on a comparison between the value of non-existence (the doctor’s alleged negligence having deprived her of this) and the value of her existence in a disabled state.
But how can a court begin to evaluate non-existence, ‘the undiscovered country from whose bourn no traveller returns?’ No comparison is possible and therefore no damage can be established which a court could recognise. This goes to the root of the whole cause of action.”

22 Griffiths LJ did not consider that the procedure of summary judgment was appropriate but, recognising himself to be in the minority on this, expressed “the firm conclusion that our law cannot recognise a claim for ‘wrongful life’” at 1190. Griffiths LJ was particularly influenced by the difficulties in the assessment of damage, and said at 1192-93:

“To my mind, the most compelling reason to reject this cause of action is the intolerable and insoluble problem it would create in the assessment of damage. The basis of damages for personal injury is the comparison between the state of the plaintiff before he was injured and his condition after he was injured. This is often a hard enough task in all conscience and it has an element of artificiality about it, for who can say that there is any sensible correlation between pain and money? Nevertheless, the courts have been able to produce a broad tariff that appears at the moment to be acceptable to society as doing rough justice. But the whole exercise, difficult as it is, is anchored in the first place to the condition of the plaintiff before the injury which the court can comprehend and evaluate. In a claim for wrongful life how does the court begin to make an assessment? The plaintiff does not say, ‘But for your negligence I would have been born uninjured.’ The plaintiff says, ‘But for your negligence I would never have been born.’ The court then has to compare the state of the plaintiff with non-existence, of which the court can know nothing; this I regard as an impossible task. Mr Wilmers suggested that the court should assess the damages on the assumption that the plaintiff’s injury had been caused by the hospital, and then discount the damages because it had not been so caused. But he was quite unable – and I do not blame him – to suggest any principle upon which the discount should be calculated.
Again, suppose by some happy chance the child is born with only a slight deformity, can it bring an action upon the basis that it would have been killed in the womb if the mother had been told of the risk of greater deformity? Such a claim seems utterly offensive; there should be rejoicing that the hospital’s mistake bestowed the gift of life upon the child. If such claims are rejected, upon what basis could a claim be brought for a more serious injury? Only, it would seem, on the basis that the state of the child is such that it were better dead than alive. But knowing nothing of death, who is to answer this question, and what two minds will approach the answer by the same route? I regard the question as wholly outside the competence of judicial determination.
I would reject this novel cause of action because I see no way of determining which plaintiffs can claim; that is, how gravely deformed must the child be before a claim will lie; and secondly because of the impossibility of assessing the damage it has suffered.
The common law does not have the tools to fashion a remedy in these cases. If society feels that such cases are deserving of compensation, some entirely novel and arbitrary measure of damage is called for which, I agree with Jasen J in Becker v Schwartz , 413 NYS 2d 895, would be better introduced by legislation than by judges striving to solve the insoluble.”

23 There was criticism of the decision in McKay v Essex Area Health Authority in Williams & Humbert v WLH Trademarks Limited [1986] AC 368, but only concerning the use of the summary dismissal procedure. For relevant purposes, McKay remains undisturbed in England.

24 McKay was applied in a matter to which my attention has been drawn since the conclusion of the hearing in P’s Curator Bonis v Criminal Injuries Compensation Board (1997) SLT 1180. This was a petition for judicial review of a decision of the Criminal Injuries Compensation Board refusing an application on behalf of a ward for an award under the criminal injuries compensation scheme. The ward was born to a mother in consequence of the mother being raped by her father. The ward was born with genetic disabilities that arose directly from the consanguinity of her parents. Any compensation to which the ward was entitled was to be assessed on the basis of common law damages and it was in this context that Lord Osborne, in considering the claim brought for the ward, addressed McKay and commented upon American authorities (at 1199):

“It is quite evident that from the decisions which I have reviewed and in particular McKay v Essex Area Health Authority that such an assessment, in this case, would be impossible. The common law, in my opinion with logical justification, has set its face against the possibility of making an assessment of damages in a case such as this. Indeed that impossibility has figured prominently in the reasoning in many of the American cases, to which I have referred, and also in the case of McKay . It appears to me that that state of affairs is one which I can properly take into account in interpreting the expression ‘personal injury’ where it occurs in para 5 of the scheme.”

25 Lord Osborne went on to refuse the application.

Canada

26 In Arndt v Smith [1994] 8 WWR 568 (BCSC) Hutchinson J stated:

“There is no viable suit in this province [British Columbia] for ‘wrongful life’, i.e. a claim by a person born with disabilities asserting he or she should not have been born at all.”

27 In Jones v Rostvig (1999) 44 CCLT (2d) 312 (BCSC), Macaulay J in the Court of British Columbia rejected a “wrongful life” claim by a child born with Downes syndrome.

28 The Court of Appeal in Manitoba recently considered a “wrongful life” claim in Lacroix v Dominique [2001] MBCA 122. Claims were brought by parents and an infant after the infant was born with physical and mental disabilities. It was found that the defendant doctor had failed to advise the parents of the risks that the foetus would be exposed to if the mother conceived whilst taking medication for epilepsy, and that it was this medication which caused the child’s disabilities. The parents’ claims were statute barred and the trial judge dismissed the infant’s claim. On appeal, the decision of the trial judge was upheld.

29 In his judgment, with which the other members of the court agreed, Twaddle JA referred (at para 31) to several first instance decisions in Canada where a “wrongful life” claim had been dismissed, on application of the reasoning in McKay:

“As far as I am aware, no appellate court in Canada has dealt with a case of wrongful life. We have been referred to three trial decisions in which a claim for wrongful life has been considered, namely Arndt v Smith , [1994] 8 WWR 568 (BCSC) (rev’d on another issue [1995] 2 SCR 539); Mickle v Salvation Army Grace Hospital (1988) 166 DLR (4th) 743 (Ont. Gen. Div.); and Jones (Guardian ad litem of) v Rostvig (1999), 44 CCLT (2d) 312 (BCSC). The claim for wrongful life was rejected in each case essentially for the reasons given by the English Court of Appeal in McKay v Essex Area Health Authority, supra.”

30 His Honour later went on (at para 37):

“Despite a valiant attempt by the plaintiffs’ counsel to persuade me otherwise, I am unable to accept that an action for wrongful life should be recognized in Canada. I find the reasoning of the judges in McKay v Essex Area Health Authority, supra , too compelling to do otherwise and I am unaware of any Canadian circumstances which would cause judges here to think differently.”

31 And then (at para 41):

“It is thus quite clear that, if the doctor had fulfilled his duty of care to the mother, the child would not likely have been born. The fact that the child’s injury was caused by the medication does not result in liability against the doctor as he was under no duty of care to the child. And the damages, as in McKay v Essex Area Health Authority, supra , are impossible to assess.”

32 The decision in Lacroix v Dominique so recently delivered (on 29 June 2001) can, it would seem, be taken as reflecting continuing acceptance in Canada of the persuasive authority of McKay.

United States of America

33 There are many decisions in the United States of America in which “wrongful life” claims have been considered. I do not propose to record here an analysis of those decisions case by case, but rather to summarise what I glean from my reading of them.

34 It appears that in most of the American States in which such claims have been made, the claims have been rejected. It seems that claims of this nature have been recognised only in California, Connecticut, New Jersey and Washington.

35 In those states in which “wrongful life” claims have been rejected, it can, I think, be said that the principle grounds of rejection can be summarised in the following manner:

(1) The impossibility of calculating damages.
In one of the most recent of the American decisions, Kassama v Magat (Court of Special Appeals of Maryland, February 2001), Salmon J identified no less than twenty-three states in which “wrongful life” claims had been rejected:

“I believe that it would be an impossible task to calculate damages based on a comparison between life in an impaired state and non-existence.”


The judgment of Salmon J conveniently identifies those judgments in which the impossibility of determining damages was a basis for rejecting the claim: Elliott v Brown , 361 So. 2d 546 (Ala. 1978); Walker by Pizano v Mart 790 P.2d 735 (Ariz. 1990); Lininger v Eisenbaum , 764 P.2d 1202 (Colo. 1988); Garrison v Medical Ctr of Del. Inc. 581 A.2d 288 (Del. 1989); Kush v Lloyd 616 So. 2d 415 (Fla. 1992); Atlanta Obstetrics & Gynecology Group v Abelson 398 S.E.2d 557 (Ga. 1990); Blake v Cruz , 698 P.2d 315 (Idaho 1984); Siemieniec v Lutheran Gen. Hosp. 512 N.E.2d 691 (Ill. 1987); Cowe v Forum Group, Inc . 575 N.E.2d 630 (Ind. 1991); Bruggeman v Schimke 718 P.2d 635 (Kan. 1986); Petre v Opelousas Gen. Hosp . 517 So. 2d 1019(La. Ct App. 1987), aff’d in part and rev’d in part on other grounds, 530 So. 2d 1151 (La. 1988); Viccaro v Milunsky 551 N.E.2d 8 (Mass. 1990); Strohmaier v Associates in Obstetrics & Gynecology, P.C. 332 N.W.2d 432 (Mich. Ct App. 1982); Wilson v Kuenzi 751 S.W.2d 741 (Mo. 1988); Greco v United States 893 P.2d 345 (Nev. 1995); Azzolino v Dingfelder 337 S.E.2d 528 (N.C. 1985); Smith v Cote 513 A.2d 341 (N.H. 1986); Becker v Schwartz 386 N.E.2d 807 (N.Y. 1986); Flanagan v Williams 623 N.E.2d 185 (Ohio Ct App. 1993); Ellis v Sherman 515 A 2d 1327 (Pa 1986); Nelson v Krusen 678 S.W.2d 918 (Tex. 1984); Dumer v St Michael’s Hosp. 233 N.W.2d 372 (Wis. 1975); and Beardsley v Wierdsma 650 P.2d 288 (Wyo. 1982).

I add a reference to Gleitman v Cosgrove (1967) 227 A 2d 689 (a decision of the Supreme Court of New Jersey).

(2) Claims have also been rejected on the basis of a failure to prove causation: James G v Caserta 332 S.E.2d 872 (W.Va. 1985); Lininger v Eisebaum 764 P 2d 1202; and Hester v Dwivedi (2000) 89 Ohio St 3d 575.

(3) Claims have also been rejected because of inability to establish damage. As it was expressed in Walker v Mart (supra):

“Principles of tort law require that the existence of injury be ascertained first; courts should allow the injury caused by the defendant’s negligence to define the damages recoverable, rather than allow impairment/damage the defendant did not cause to define the nature of the injury.”

See also Lininger v Eisebaum (supra); Blake v Cruz (supra); Hester v Dwivedi (supra); and Phillips v United States 508 F Supp 537.

(4) Public policy grounds and the preciousness of human life: Phillips v United States (supra); Blake v Cruz (supra); Elliott v Brown (supra); Bruggeman v Schimke (supra) and Siemieniec v Lutheran Gen. Hosp . (supra).

As it was expressed in Bruggeman :

“We are convinced that an action for wrongful life should not be judicially recognised in Kansas. It has long been a fundamental principle of our law that human life is precious. Whether the person is in perfect health, in ill health, or has or does not have impairments or disabilities, the presence of life is valuable, precious and worthy of protection. A legal right not to be born – to be dead rather than to be alive with deformities – is a theory completely contradictory to our law. We agree with the Supreme Courts of Idaho, Alabama and North Carolina and with the Court of Appeals in New York…”

36 This brings me to a consideration of the decisions in those four States in which claims for “wrongful life” have been recognised.

37 The first of the States to recognise a claim for “wrongful life” was California: Curlender v Bio-Science Labs 106 Cal. App. 3d 811, 165 Cal.Rptr 477 and Turpin v Sortini 643 P 2d 954.

38 Curlender was a decision of the Court of Appeal of the Second District. The appellate court recognised a cause of action by a child born severely disabled as a result of negligence by the defendants in their conduct of genetic tests on the parents, which, had they been properly carried out, would have enabled the parents to have been alerted to the risk that conception, if achieved, would result in the birth of a child with Tay-Sachs disease. In allowing the claim, the court decided the plaintiff was entitled to

“recover damages for the pain and suffering that he endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition.”

39 It is noteworthy that the court was dismissive of the fear voiced in earlier decisions to which the court had been taken that if the action was maintainable nothing would prevent a child from suing its own parents for allowing the child to be born. The court said as to this:

“In our view, the fear is groundless. The ‘wrongful-life’ cause of action with which we are concerned is based upon negligently caused failure by someone under a duty to do so to inform the prospective parents of facts needed by them to make a conscious choice not to become parents. If a case arose where, despite due care by the medical profession in transmitting the necessary warnings, parents made a conscious choice to proceed with a pregnancy, with full knowledge that a seriously impaired infant would be born, that conscious choice would provide an intervening act of proximate cause to preclude liability insofar as defendants other than the parents were concerned. Under such circumstances, we see no sound public policy which should protect those parents from being answerable for the pain, suffering and misery which they have wrought upon their offspring.”

40 Turpin v Sortini was a decision of the Supreme Court of California and this concerned a claim by a child born deaf following the wrongful diagnosis of an hereditary defect in the child’s older sister in circumstances where, had the parents been made aware of such defect, they would have had the chance not to conceive the plaintiff. In Turpin, a different panel of judges in the Court of Appeal from that panel which had decided Curlender, disagreed with the decision in Curlender and dismissed an appeal from a decision at first instance disallowing the plaintiff’s claim. When the matter found its way to the Supreme Court of California, the appeal of the plaintiff was allowed in part. It was decided that the plaintiff’s claim for general damages had been properly rejected but that the claim for “the extraordinary expenses for specialised teaching, training and hearing equipment” that the plaintiff would incur during her lifetime because of her deafness was compensable.

41 In Quinn v Blau (Superior Court of Connecticut, 12 December 1997) the court refused a motion to strike out a claim for “wrongful life” following two earlier decisions in Connecticut: Woodruff v Hoffman 10 Conn. Law Trib. 15, and Ahsan v Olsen (4 Conn. L. Rptr. 282, 3 CSCR 55) The court also noted a contrary Connecticut decision in Donnelly v Candlewood Obstetric-Gynecological Associates, P.C. (6 Conn. L. Rptr. 532). The decision contains no detailed discussion or analysis of principles.

42 In Procanik v Cillo (1997) NJ 339; 478 A 2d 755, the Supreme Court of New Jersey allowed a claim by a child born with congenital rubella syndrome as a consequence of his mother’s infection during her pregnancy. The plaintiff’s claim was based upon the negligence of the defendants treating the mother in consequence of which the parents were deprived of the choice of terminating the pregnancy. The court allowed the plaintiff’s claim to recover as special damages the extraordinary medical expenses referable to his disability, but not the claim for general damages. In rejecting the claim for general damages, the court said:

“We find, however, that the infant’s claim for pain and suffering and for a diminished childhood presents insurmountable problems. The philosophical problem of finding that such a defective life is worth less than no life at all has perplexed not only Justice Schreiber, but such other distinguished members of this Court as Chief Justice Weintraub, Gleitman, supra 49 N.J. at 63 (Weintraub, C.J., dissenting in part), Justice Proctor, Gleitman, supra 49 N.J. at 30 , and Justice Pashman, Berman v Allan, supra, 80 N.J. at 429 . We need not become preoccupied, however, with these metaphysical considerations. Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.
Sound reasons exist not to recognize a claim for general damages. Our analysis begins with the unfortunate fact that the infant plaintiff never had a chance of being born as a normal, healthy child. Tragically, his only choice was a life burdened with his handicaps or no life at all. The congenital rubella syndrome that plagues him was not caused by the negligence of the defendant doctors; the only proximate result of their negligence was the child’s birth.
The crux of the problem is that there is no rational way to measure non-existence or to compare non-existence with the pain and suffering of his impaired existence.”

43 In Harbeson v Parke-Davis Inc. 656 P 2d 483, the Supreme Court of Washington allowed a claim by children born disabled in consequence of their mother taking certain medication for her epilepsy during pregnancy. The mother had not been properly advised as to the risks of damage to a foetus by her use of such medication. In allowing the claim by the children, the court restricted the claim to special costs referable to their disability:

“The minor plaintiffs suffer an actionable injury to the extent that they require special medical treatment and training beyond that required by children not affected with fetal hydantoin syndrome. They may recover damages to the extent of the cause of such treatment and training.”

France

44 The Court’s attention has been directed to a decision in France of the Adviser to the Cour de Cassation in the matter of Perruche (ruling 17 November 2000). The complainant’s mother was infected with rubella whilst pregnant and the complainant was born severely handicapped as a consequence. A “wrongful life” claim based upon the negligence of the laboratory and of the doctor consulted by the mother was rejected at first instance but was upheld by the Full Chamber of the Cour de Cassation. The claim was one based on the general principle under the French Civil Code that a third party to a contract may be compensated for loss resulting from harm caused in the irregular performance of a contract. I have considered this case, mindful that it is determined by reference to the French Civil Code and mindful further that the system of precedent as known to the common law does not form part of the French legal system (see the report of Mr McKillop provided by Mr Hirsch and to be read in conjunction with the documents from the Cour de Cassation).

Germany

45 The defendants have taken me to reports on decisions addressing the position in Germany in relation to “wrongful life” claims. I have been referred in particular to translations concerning decisions of the Bundesgerichtshof (Sixth Civil Senate, 18 January 1983): see Institute of Global Law, German decisions, BGHZ 86, 240, JZ 1983) and the Bundesvefassungsgerichts (First Division, 12 November 1997): see Institute of Global Law, German decisions, B Verf GE 96, 375). It would seem from a reading of the translations that the rejection of these claims was based in part upon the reason that a duty to prevent the birth of the child, if found to exist, would be alien to a consideration of the sanctity of life and, in part, by consideration of the impossibility of determining damage.

Austria

46 The Austrian Supreme Court also rejected a “wrongful life” claim on 25 May 1999: see Institute of Global Law, Austrian decisions, 10b 91/99k, JBI 1999 1593. I note that according to the translation concerning this decision, the Austrian Court referred to German case law saying that such law “denies a claim of this kind with convincing arguments.”

Text writers

47 In Fleming, The Law of Torts, 9th ed. at 184, the learned author states:

“Negligent failures of contraception, voluntary sterilisation or abortion or failures to diagnose genetic defects have raised the question of liability by physicians, pharmacists and even parents for an unwanted birth. Such claims have particular poignancy where the unwanted child was born, as feared, with congenital defects. Even so, the critical distinction from the foregoing cases remains that here the defendant has not caused the infant’s injury but merely failed to prevent its birth. To hold a physician responsible for possibly lifetime support of the child may well strike one as a disproportionate sanction for his fault.
There appears to be a broad consensus against such claims by the infant himself (‘wrongful life’), whether born healthy or impaired.”

48 I add the following extract from Luntz Assessment of Damages for Personal Injuries and Death, 4th ed. at pp 640-641, para 11.8.8:

“Actions brought by the children themselves have come to be known as ‘wrongful life’ actions. Apart from a few states of the United States, where limited damages have been held to be available in actions brought on behalf of handicapped children, the general view is that no damages are recoverable where a child would not have been born but for the negligent conduct of the defendant. Conceptually such actions are not reconcilable with tort principles, since in accordance with such principles they involve a comparison between being born with a handicap and non-existence, a comparison which it is impossible to make in money terms. There are also policy reasons for denying the action.”

49 The “few States” referred to in Luntz are California, Washington and New Jersey and the authorities from those States are identified by the author as being Turpin (supra), Procanik (supra) and Harbeson (supra): see paras 37-43 above. I would add Connecticut: see Quinn (supra).

50 The above text summaries accord then with my analysis of the authorities which I have had the opportunity of considering. There has been widespread rejection of claims broadly classified as “wrongful life” claims. Of course, I remind myself that none of the decisions I have considered is binding on this Court and any one of the cases reviewed above can be treated as being of persuasive effect only. However, I have found the reasons expressed for the rejection of “wrongful life” claims in the cases I have reviewed to be cogent. Mr Hirsch was critical of the reasoning in McKay. He submitted that the characterisation of the duty issue was wrong, because the child asserted no duty to be killed. It was also submitted that the court was in error in its approach to the problem of damages. I have considered the judgments in McKay, with the submissions of Mr Hirsch, and of Mr Segal in Harriton and of Mr Bates in Waller very much in mind, but it is appropriate that I record now that, as did the Court of Appeal in Manitoba in Lacroix, I have found McKay to be very persuasive authority.

51 I now turn to consider the present case and the competing submissions that have been made.

The claim of the third plaintiff considered

52 At the outset it is appropriate to state the fundamental elements in the tort which this plaintiff was required to prove:

(i) the existence of a duty of care to the plaintiff;

(ii) breach of that duty;

(iii) damage;

(iv) causation, in the sense that the breach of duty to the plaintiff caused her damage.

53 Mr Hirsch submitted that the defendant owed to the first and second plaintiffs a duty to perform the vasectomy procedure with due care and skill and to give adequate advice thereafter as to the effectiveness of the vasectomy, particularly having regard to the implications of the sperm counts on 24 July and 11 August 1998 (see agreed fact 11). He submitted that the same duty was owed to the third plaintiff. The submission was made that the parents ought to be regarded as having been acting for the third plaintiff not then conceived.

54 It is, I think, clear that a duty of care can be owed to an unborn child. In Watt v Rama (1972) VR 353 the plaintiff had been conceived before the accident which led to her being born harmed. Since injury to a foetus was a reasonably foreseeable consequence of the defendant’s negligent driving, that was held to be sufficient to constitute “a potential relationship capable of imposing a duty on the defendant in relation to the child if and when born” (at p 60). See also Burton v Islington Health Authority and De Martell v Merton & Sutton Health Authority (1992) 3 All E R 833.

55 X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 went further. In this case it was determined that a gynaecologist and obstetrician undertaking the care of a patient owed a duty of care to the patient and a child later born to her to submit the plaintiff for testing for syphilis. When, because of a breach of that duty, the child was born disabled, it was held that the specialist was liable to the child in damages for such harm as was proved to be referable to the syphilis.

56 It was determined that the duty of care owed may extend to a child not conceived at the time of the negligent act, provided such child was within the class to whom the duty was owed. In his judgment, Clarke JA said (at 37):

“I would express the position in these terms – A may be liable in damages to B notwithstanding that B had not been conceived at the time A acted carelessly if the following conditions be satisfied:
(a) in all the circumstances A owed a duty to take care of a particular class of persons;
(b) A breached that duty;
(c) B was subsequently born suffering from damage which was causally related to those actions/omissions of A which constituted a breach of duty to the particular class of persons;
(d) B was a member of the relevant class of persons.
If the matter is expressed in that way then, as I see it, there is no need for a court to concern itself with perceived difficulties arising from the apparent awkwardness of a concept that A may both owe a duty to B and breach that duty before B is born (or even conceived).”

57 And, later in considering the liability of the doctor whose negligence in treating the mother of the child occurred before that child’s conception, his Honour said (at 44):

“Once it is accepted that Dr Pal owed a duty of care to his patient and that it was foreseeable that if he did not exercise due care in treating her he may cause damage to children later born to her it is difficult to see why those children should not be within the category of persons to whom the doctor was in a relevant relationship of proximity. The fundamental elements underlying his proximity relationship with his patient were assumption of responsibility and reliance. The doctor assumed the responsibility of exercising due care in the treatment of his patient and the patient relied upon him to administer that treatment with due care. Furthermore, the doctor was working in an area in which he could, if he were not careful, so damage his patient and the child she was carrying that either that child or children later born to the patient might suffer damage.”

58 Hence I consider, following X & Y v Pal, that a doctor treating a person capable of parenting when conception was foreseeable could owe a potential duty of care to the child not yet conceived, as well as to a child en ventre sa mere. However, whilst it could be stated that the relationship of the defendant and the first and the second plaintiffs in the present case was such as to give rise to a duty to those plaintiffs with the content for which Mr Hirsch has argued, I am not persuaded that any duty of care owed to the third plaintiff had that same content. Indeed, I can find no authority to support the existence of such a duty to the third plaintiff.

59 In Watt v Rama, Burton v Islington Health Authority and De Martell v Merton & Sutton Health Authority, the tort feasors caused harm to the foetus by negligent acts; in X & Y v Pal the tort feasor caused harm to the foetus by omitting to detect and treat syphilis in the mother. In those cases then the liability of the tort feasor arose in consequence of breach of a duty, be it by act or omission, not to cause injury to the unborn child. I do not understand any of those cases to be authority for the broad definition of the duty which it is claimed was here owed to the third plaintiff. Moreover the agreed facts reveal that the reason why the third plaintiff’s parents decided on the vasectomy was because they considered their family was complete with six children. It has not been suggested that any of the six children had any disability or that there was some failure on the defendant’s part to take measures to detect the genetic disability with which, tragically, Chelsea was born. The negligence complained of is in the manner of the performance of the vasectomy, in the failure to follow up on advice given to the first plaintiff that he have further testing, and in wrongful advice as to the significance of the sperm tests that had been undertaken.

60 In McKay the duty in the relevant authority’s laboratory and in the doctor was defined by Stephenson LJ as being a duty not to injure the child during the mother’s pregnancy (at 1178-79). Ackner LJ (at 1188) rejected the submission that the duty of care to the foetus, albeit indirectly by advice to the mother, was to cause its death, and said:

“I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person whether or not in utero to terminate his existence. Such a proposition runs wholly contrary to the concept of sanctity of human life.”

61 Griffiths LJ said (at 1192):

“It surely cannot be asserted that the doctor owes a duty to the foetus to urge its destruction.”

62 I cannot accept that the defendant owed to the third plaintiff a duty to prevent her conception, or to give to her parents advice such as would have prevented her conception, and I consider that to recognise any such duty would be contrary to public policy. Moreover, I cannot accept that the law would regard the parents of the child, not then conceived, as acting as her agents in taking effective steps to avoid her conception.

63 Consistent with authority, it seems to me that the only duty owed by the defendant to the third plaintiff was a duty not to cause injury to her, be it by act or omission, and whether in her mother’s womb or not.

64 In my opinion, the conclusion that the defendant’s only duty to the third plaintiff was that which I have defined determines the outcome of this matter.

65 Mr Hirsch submitted that the defendant’s duty of care “was called into existence” to prevent the conception of a child, that his negligence caused the conception and that it was foreseeable that a child could be born suffering from a genetic disorder. Hence he submitted that the defendant’s negligence was causative of the child’s birth with disabilities.

66 However, the argument advanced by Mr Hirsch in his thorough written submissions was dependent in its development upon a finding that the defendant owed a duty to the third plaintiff with the content for which he argued. It must be accepted that liability for negligence arises only where breach of a duty of care which is owed results in damage. There was here no breach of the duty which the defendant owed to the third plaintiff because it cannot be said that the defendant, either by act or omission, caused harm to her.

67 In this context I refer to what was said by McHugh J in Chappel v Hart (1998) 195 CLR 232 at 243:

“In March (1991) 171 CLR 506 this Court specifically rejected the ‘but for’ test as the exclusive test of factual causation. Instead the Court preferred the same common sense view of causation which it had expressed in its decision in Fitzgerald v Penn (1954) 91 CLR 268. There, the Court said that the question is to be determined by asking ‘whether a particular act or omission…can fairly and properly be considered a cause of the accident’ ( Fitzgerald v Penn (1954) 91 CLR 268 at 276). As a natural consequence of the rejection of the ‘but for’ test as the sole determinant of causation, the Court has refused to regard the concept of remoteness of damage as the appropriate mechanism for determining the extent to which policy considerations should limit the consequences of causation-in-fact ( Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412-13: ‘In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense ( Fitzgerald v Penn (1954) 91 CLR 268 at 277-278, per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515, per Mason CJ; at 522-523, per Deane J). In resolving that question, the ‘but for’ test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude ( March v Stramare (E & MH) Pty Ltd ).’) Consequently, value judgments and policy as well as our ‘experience of the “constant conjunction” or “regular sequence” of pairs of events in nature’ (Hart and Honore, Causation in the Law , 2nd ed (1985), p 14) are regarded as central to the common law’s conception of causation.”

68 Common sense has a central role to play in determining causation. In Stapley v Gypsum Mines Ltd (1953) AC 663 at 681, Lord Reid said that what caused an accident from the point of view of legal liability “must be determined by applying common sense to the facts of each particular case”. Lord Reid’s dicta were cited with approval in March v Stramare (1991) 171 CLR 506 by Mason CJ at 515 and by Deane J at 523-524, and in Chappel v Hart (supra) by Gaudron J at 238. The application of common sense cannot be divorced from value judgments and policy considerations: March v Stramare (at 516) and Chappel v Hart (at 243).

69 The disabilities with which the third plaintiff was born did not result from any breach of duty owed to her by the defendant. The defendant owed to the third plaintiff no duty to prevent her conception and her disabilities were genetic not iatrogenic. The defendant did not cause injury to the third plaintiff.

70 There are other reasons why, in my opinion, the third plaintiff cannot succeed against the defendant. If the third plaintiff had been able to establish breach of duty causing the disabilities with which she was born, it would remain for this plaintiff to prove damage, that being an essential element in order to establish liability in the tort of negligence. Upon proof of damage, damages may be awarded to compensate for the damage suffered.

71 In the joint judgment of the High Court in Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 at 527, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ expressed the following statement of principle:

“In negligence, ‘damage’ is what the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission. Where a tortfeasor’s negligent act or omission causes personal injury, ‘damage’ includes both the injury itself and other foreseeable consequences suffered by the plaintiff. The distinction between ‘damage’ and ‘damages’ is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff…”

72 What is the damage which the third plaintiff has suffered?

73 Mr Hirsch submitted that the third plaintiff’s claim is one to be compensated for being born with disabilities and he embraced the analysis of the court in Curlender (supra, at para 37, and at p 489):

“…we reject the notion that a ‘wrongful-life’ cause of action involves any attempted evaluation of a clamed right not to be born. In essence we construe the ‘wrongful life’ cause of action by the defective child as the right of such child to recover damages for the pain and suffering to be endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition.”

74 In the above passage the court was determining on an approach to the assessment of damages, but I do not find in the judgment a persuasive determination as to the “damage” for which the court decided it should proceed to compensate the plaintiff. Nor do I find it in any of the other American cases where “wrongful life” claims were successful but only special damages were awarded. Until the “damage” is identified, how can a court determine what damages are appropriate to compensate for such damage? I adopt in this context what was said in Walker v Mart (supra, at para 35(3)).

75 The third plaintiff’s only opportunity for life was an opportunity for life with the disabilities with which she was born; it is not as though the defendant did anything to bring about those disabilities and it would not be legitimate to compare her life disabled with a life free of disability. Hence, in order to determine whether the plaintiff suffered “damage” in being born with disabilities inevitably involves comparing the value of non-existence and the value of existence in a disabled state. There are many disabled members of society who lead valuable and fulfilling lives notwithstanding their significant physical handicaps. These citizens, by their achievements, are a source of inspiration to others, be those others disabled or able-bodied. To all such persons the notion that non existence may be considered preferable to living with disabilities would surely be perceived to be offensive. Then there are many in society who believe that the gift of life affords the opportunity for life after death and to all such persons the notion that non existence may be preferable to life with disabilities, however severe, is surely unacceptable. It is to be acknowledged, of course, that there are many who do not believe in an afterlife, but how can a worldly court resolve this conflict between believers and non-believers? In any event, adopting the language of Ackner LJ in McKay, “how can a court begin to value non existence, ‘the undiscovered country from whose bourn no traveller returns?’”.

76 Whilst it is agreed between the parties in this case that the third plaintiff’s disabilities are severe, in my opinion, the task of determining whether this plaintiff suffered “damage” in being born with disabilities, involving a comparison of the value of non-existence with the value of existence in a disabled state, is an impossible exercise and I so conclude, having reflected upon all of the authorities to which consideration of this difficult case and this difficult concept have taken me. Mr Hirsch in the present case, and Mr Segal and Mr Bates in the other matters referred to in para 4 of this judgment, were critical of the decision in McKay, but, as earlier remarked, notwithstanding such criticisms, I find the reasoning in the judgments in McKay to be very persuasive.

77 In the present context, I refer in particular to the dicta of Stephenson LJ earlier set out in paras 16 and 17, the dicta of Ackner LJ set out in para 21 and the dicta of Griffiths LJ set out in para 22 of this judgment.

78 Moreover, the American authorities previously reviewed (with the exception of those decisions considered in paras 37-43 above) contain many expressions of principle which I also find persuasive that recognise the significance of the impossibility of determining damage in the context of “wrongful life” cases. I instance but two such expressions: in Becker v Schwartz (earlier cited in para 35(1)), the Court of Appeals of New York said:

“However, there are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. (Cf Williams v State of New York, 18 NY2d 481, 484 , supra .) There is no precedent for recognition at the Appellate Division of ‘the fundamental right of a child to be born as a whole, functional human being’ ( 60 AD2d, at p 88 ). Surely the use of somewhat similar words in another context affords no such basis. (Cf. Endresz v Friedberg, 24 NY2d 478, 483 , distinguishing Woods v Lancet, 303 NY 349 .) Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honoured, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?”

79 To the like effect, the Supreme Court of Texas in Nelson v Crusen & Anor (also earlier cited in para 35(1)) rejected a “wrongful life” claim and in doing so said:

“Our holding is not based on a mere difficulty in assessing a dollar amount of damages. It has long been held that imprecision of damages is not a bar to recovery. Hindman v Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957); Southwest Battery Corp. v Owen , 131 Tex. 423, 115 S.W.2d 1097 (1938) . But this is not just a case in which the damages evade precise measurement. Here, it is impossible to rationally decide whether the plaintiff has been damaged at all. That ‘is a mystery more properly to be left to the philosophers and the theologians.’ Becker v Schwartz, 413 N.Y.S.2d 895, 386 N.E.2d at 812 .”

80 In my opinion, the impossibility of determining “damage” in a case such as the present of itself compels the rejection of this claim. Mr Hirsch did adopt the alternative submission eventually made by Mr Segal in Harriton that the claim may be treated as one in which the third plaintiff seeks to be compensated for pure economic loss. By this approach it was submitted the necessity to make a comparison between existence and non existence in order to establish “damage” is avoided. That submission was further addressed in the joint written submissions on behalf of the plaintiffs in Edwards and in Harriton presented after I reserved my decisions in these matters. In my opinion, this alternative approach must be rejected for the reasons I stated in Harriton (at para 47):

“It is, of course, to be acknowledged that the circumstances in which recovery of damages for pure economic loss are not rigidly defined and that this is an area in which the law of negligence is still developing: see Bryan v Maloney (1994-95) 182 CLR 609 per Mason CJ, Deane and Gaudron JJ at 618; and Perre v Apand Pty Ltd (1999) 198 CLR 180 per Gaudron J at para 25 and per Kirby J at para 231. However, any development of the law in this area should be cautious and should be influenced by considerations of public policy. Those considerations of public policy against the recognition of “wrongful life” claims that I identify elsewhere in this judgment should not be ignored. There is no precedent for recognising this claim in the manner in which Mr Segal invites recognition, and, in my opinion, it would not be appropriate to do so. To categorise the “damage” suffered by the plaintiff as pure economic loss disregards the essential nature of the claim, namely that it is one which allegedly arises in consequence of physical harm suffered; hence it ignores the fundamental distinction emphasised in Mahoney v Kruschich (Demolitions) Pty Limited (supra) between ‘damage’ and ‘damages’. The need for a comparison to be made between non existence and existence with disabilities before any attempt can be made to determine whether ‘damage’ has been occasioned is inescapable. In my opinion, it cannot be avoided by this alternative approach advanced by Mr Segal, which approach I regard as fundamentally flawed and, further, it assumes, in my opinion incorrectly, that the duty of care owed to the plaintiff had the same content as the duty of care owed to the mother of the plaintiff.”

81 If, however, one was to move from this problem of seeking to define the damage to the task of quantifying damages, this task also would present what I consider to be insurmountable difficulties.

82 Damages are awarded in claims for personal injuries by way of compensation and are to be determined by the application of common sense: see British Transport Commission v Gouley (1956) AC 185. The objective of an award of damages is to put the plaintiff, so far as an award of money can do this, in the position that the plaintiff would have been in, had damage not been suffered.

83 In Haynes v Bendall (1991) 172 CLR 60 is to be found the following authoritative statement of principle in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ at 63:

“The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 Todorovic v Waller (1981) 150 CLR 402 at 412; 37 ALR 481; Redding v Lee (1983) 151 CLR 117 at 133; 47 ALR 241; Johnson v Perez (1988) 166 CLR 351 at 355, 386; 82 ALR 587; MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203; 98 ALR 193; Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 British Transport Commission v Gourley [1956] AC 185 at 197, 212 Compensation is the cardinal concept.”

84 Their Honours then went on to state with approval what Windeyer J said in Skelton v Collins (1966) 115 CLR 94 at 128:

“The one principle that is absolutely firm and which must control all else, is that damages for the consequence of mere negligence are compensatory.”

85 To award compensatory damages in this case would necessitate taking non-existence as a point of comparison. To recognise this is to recognise the impossibility of assessing damages if a “wrongful life” claim such as the present was to be maintainable at common law. The impossibility of assessing damages was acknowledged in McKay (supra), in Lacroix (supra) and in many of the decisions in the United States: see the cases cited at para 35(1) above.

86 In only one of the cases in which “wrongful life” claims have been recognised in the United States (see paras 36-43 above) was an allowance of general damages made. That was in the case of Curlender (see para 38 above). However, only special damages were allowed in Turpin v Sortini (supra, at para 40), Procanik v Cillo (supra, at para 42) and Harbeson v Parke-Davis Inc. (supra, at para 43), and in Procanik the court recognised the existence of sound reasons for not allowing general damages (see the passage in the judgment set out at para 42 above). Quinn v Blau (supra, at para 41) being in the nature of an interlocutory proceeding did not consider damages.

87 As I observed earlier, the need to prove “damage” does not seem to have been addressed in those cases where “wrongful life” claims were allowed. I do not find in this group of cases any assistance in attempting to solve what I consider to be the insoluble task of assessing compensatory damages in a “wrongful life” claim.

88 In Siemienic v Lutheran Gen. Hosp. (supra), a decision of the Supreme Court of Illinois, the concept of an entitlement to damages for “wrongful life” was rejected. The court referred to Turpin critically, saying:

“In awarding special damages, however, the Turpin court ignored the reasoning that prevented an award of general damages. The problem of establishing the effect of injury was simply passed over, and all discussion focussed on the non-speculative nature of a recovery for extraordinary medical expenses.”

89 That criticism was taken up and adopted by the Court of Special Appeals in Maryland in Kassama v Magat (supra, at para 35(1)). A similar criticism was expressed in Nelson v Crusen (supra):

“Thus, the cause of action unavoidably involves the relative benefits of an impaired life as opposed to no life at all. All courts, even the ones recognizing a cause of action for wrongful life, have admitted that this calculation is impossible. We do not believe that the measure of damages can be circumscribed as the Californian, Washington and New Jersey courts have attempted. As was said by the Michigan court in Strohmaier , ‘The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist.’ 332 N.W.2d at 435 . We hold that there is no cause of action in Texas for wrongful life.”

90 I regard the criticisms in Siemienic, Kassama and Nelson to be well founded.

91 In reaching my decision in this case, I do not overlook the arguments of Mr Segal and of Mr Bates in Harriton v Stephens and in Waller & Ors v James & Ors. I shall, however, address those arguments in my judgments in those two cases.

92 In my opinion, the impossibility of assessing damages is yet another reason why the third plaintiff’s claim is not maintainable. I so conclude notwithstanding the further arguments advanced by Mr Hirsch based upon the “wrongful birth” cases, which I shall now address.

Should the decisions in “wrongful birth” cases influence the outcome?

93 Mr Hirsh submitted that “wrongful life” claims ought to be recognised consistently with the recognition that has been afforded to “wrongful birth” claims. I use the expression “wrongful birth” claim in the sense of an action brought by parents following the birth of a child who would not have been born but for the negligence of the defendant. In England a separate class of claim has been recognised, namely that of “wrongful conception” but I do not regard it as necessary to examine these sub-categories separately in order to consider this present submission by Mr Hirsch. It suffices to consider both categories as “wrongful birth” claims in the present context. It is now settled that “wrongful birth” claims by parents are maintainable, although the case law indicates that there is some division as to what damages are recoverable in this category of claim.

94 I will shortly review the outcome of cases in this country and in England.

Australia

95 In Vievers v Connolly (1995) 2 Qd R 325 the plaintiff had lost the opportunity of lawfully terminating her pregnancy in consequence of the negligence of the defendant. In the result, a severely handicapped child was born. It was held by De Jersey J that damages recoverable included costs associated with past and future care of the child and it is to be observed that the costs were based upon a need extending for thirty years.

96 Then in CES v Superclinics (Australia) Pty Limited (1995-96) 38 NSWLR 47 the plaintiff claimed damages for loss of the opportunity to lawfully terminate her pregnancy, an opportunity lost after repeated failure by the defendants to diagnose her pregnancy. It was held on appeal that the claim was maintainable but the damages recoverable did not include the costs of raising the child. Those costs were excluded because the child could have been adopted out. The failure of the claim by the parents for the cost of caring for the child followed disagreement between the members of the court. Kirby A-CJ considered costs of keeping and rearing the child ought to be recoverable; Priestley JA considered they should not be because of the opportunity to have the child adopted; and Meagher JA considered the cause should fail altogether. The decision of the court reflected “the highest majority of concurrence which the majority [could] produce” (at 79). It would seem likely that the result would have been different in CES had the child been born severely disabled with no realistic opportunity to be adopted.

97 In Melchior & Anor v Cattanach & Anor [2001] QCA 246 the plaintiff gave birth to a healthy baby following a failed sterilisation procedure. It was held by the Queensland Court of Appeal, declining to follow the decision of the House of Lords in McFarlane v Tayside Health Board (2000) 2 AC 59, that the reasonable costs of raising the child were recoverable in an action by the parents of the child. Leave to appeal to the High Court in this case was granted on 19 March 2002.

England

98 In Udale v Bloomsbury Area Health Authority (1983) 1 WLR 1098 a sterilisation procedure performed on the plaintiff failed because of the incorrect placement of clips on the plaintiff’s fallopian tubes. The plaintiff subsequently gave birth to a healthy child. The plaintiff claimed damages for her pain and discomfort, including her fears and anxieties concerning the unsuccessful operation, loss of earnings during pregnancy, birth and early rearing of the child, the cost of enlarging the family home to accommodate the child and the cost of the child’s upbringing to the age of sixteen. It was held that the plaintiff was entitled to damages for pain and suffering and loss of earnings during pregnancy as well as damages to reflect the disturbance of the family finances. However, the claim for the cost of the child’s upbringing was rejected on the ground of public policy.

99 In Emeh v Kensington & Chelsea & Westminster Health Authority (1985) QB 1012 the plaintiff underwent an unsuccessful sterilisation procedure and subsequently gave birth to a child with congenital abnormalities. Damages were claimed for breach of contract in respect of the pregnancy and the birth and the upkeep of the child. It was held in the Court of Appeal, where Udale was disapproved, that the damages claimed were recoverable. A submission that the cost of upbringing should be limited to the extra costs attributable to the child’s upbringing was rejected in this case.

100 Then in Thake v Maurice (1986) QB 644, following the failure of a vasectomy procedure, a healthy child was born. An action was brought in tort and in contract. The Court of Appeal held by majority that damages were recoverable in tort for the mother’s pain and suffering associated with the pregnancy, as well as damages for the upbringing of the child.

101 However, Emeh and Thake were overruled in McFarlane (supra). In this case, as in Thake, the failure of a vasectomy procedure was followed by the birth of a healthy child. Damages were claimed by the mother for the pain and physical discomfort associated with the pregnancy, confinement and delivery, and damages were claimed by the parents for the costs of caring for the child and her upbringing. The House of Lords held that the mother’s claim was maintainable but not the claim by the parents. The latter claim was considered not to be fair, just and reasonable by Lord Slynn of Hadley, Lord Steyne and Lord Hope of Craighead. Lord Steyne also said that distributive justice also precluded acceptance of the claim. Lord Clyde considered that to relieve the parents of the financial obligations of caring for their child went beyond restitution for the wrongdoing.

102 The House of Lords did not deal with the position of the disabled child in McFarlane, but this issue arose subsequently in Parkinson v St James & Seacroft University Hospital (2001) 3 All ER 97. As a consequence of negligence, a sterilisation procedure failed and the plaintiff gave birth to a disabled child. It was held, notwithstanding the earlier decision in McFarlane, that the plaintiff was entitled to recover damages in respect of care costs of the child, limited to the extra expenses associated with the child’s disability.

103 In Groom v Selby (2001) EWCA 1522 the defendant doctor was negligent in failing to discover the plaintiff’s pregnancy and the plaintiff later gave birth to a child who shortly after birth was diagnosed with meningitis. The plaintiff recovered those additional costs referable to the difference between bringing up a healthy child and a disabled child.

104 In Rees v Darlington Memorial Hospital NHS Trust (2002) EWCA Civ. 88 the plaintiff underwent a sterilisation procedure because she was severely visually handicapped and was concerned that her eyesight would prevent her from looking after a child. The sterilisation was unsuccessful and the plaintiff had a son. At first instance the claim for the cost of the upbringing of the child was rejected and on appeal the plaintiff sought to be awarded those extra costs of the upbringing of the child which were attributable to her disability. The Court of Appeal determined that such costs were recoverable.

The present position in Australia on “wrongful birth” claims

105 The High Court has not yet had occasion to consider whether the costs of rearing a child in a “wrongful birth” case are recoverable as damages in a claim by the parents of the child, but the above case review indicates that in an action brought by the parents for “wrongful birth”, some damages are recoverable to compensate for the past costs and the ongoing costs of caring for a child born disabled. The measure of such damages may be regarded as unsettled at the present time: cf CES (supra), Melchior (supra) and Parkinson (supra). Is a claim to be limited to the difference in the costs in caring for a disabled child on the one hand and the costs of caring for a healthy child on the other hand? For what period of time may future care costs be brought into account in an assessment of damages? These are matters which will have to be considered in the claim being made by the first and the second plaintiffs in the present case.

106 Let it be assumed for present purposes that some costs of caring for the third plaintiff can be recovered in a claim by the first and the second plaintiffs upon proof of the negligence of the defendant. If that be so, the third plaintiff submits that such costs should also be recoverable at her suit in the interests of consistency and coherence, and also in taking into account the concept of distributive justice.

107 As to the interests of consistency and coherence, reference has been made to the following statement in The Law of Torts in Australia, Trindade & Cane, 3rd ed, at 434:

“However, it might seem somewhat inconsistent to allow a claim by the parents while that of the child, whether healthy or disabled, is rejected. Surely the parents’ claim is equally repugnant to ideas of the sanctity and value of human life and rests, like that of the child, on a comparison between a situation where a human being exists and one where it does not. Admittedly, we have experience of what the alternatives are to having unwanted or disabled children, but how is the difference between having a child, however disadvantaged, and having no child, to be valued in money terms? The way the courts have overcome this objection is by concentrating on the financial cost of rearing a child and ignoring the intangible benefits (and burdens) of parenthood.”

108 The above passage was referred to by Lord Steyne in McFarlane (at 83). Having first recognised that there was no support either in Scotland or England for a claim by a disadvantaged child for damage to him arising from his birth, citing McKay, Lord Steyne cited the above passage with approval in the context of rejecting the claim concerning the costs of the upbringing of a healthy child. Lord Steyne considered that “coherence and rationality demand[ed] that the claim by the parents should also be rejected”. However, it is argued that where a parent’s claim is recognised “coherence and rationality” demand that a like claim by the child should be afforded recognition.

109 Mr Hirsch also supported his argument by reference to Luntz Assessment of Damages for Personal Injury and Death 4th ed. at para 11.8.8 (pp 640-641) where, in the context of referring to care costs being recoverable in an action by the parents, the learned author expressed this view:

“Rather than awarding damages for the care of the child in the parents’ action…, it would be preferable in Australia to allow the child to sue and to award the damages in the child’s action. The damages could then be retained under the control of the court…and would not be at risk of dissipation by the parents.”

110 Mr Hirsch referred to Frost v Chief Constable of South Yorkshire Police (1999) 2 AC 455 as affording an illustration of the concept of distributive justice at work. In that case, the concept influenced the failure of the claim brought by the police officers following the Hillsborough disaster. Lord Steyne commented on the Frost decision in McFarlane (at 83):

“The principal theme of the judgments of the majority was based on considerations of distributive justice. In separate judgments Lord Hoffmann and I reasoned that it would be morally unacceptable if the law denied a remedy to bereaved relatives as happened in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 but granted it to police officers who were on duty. Lord Hoffmann expressly invoked considerations of distributive justice: [1999] 2 AC 455, 503-504. Lord Browne-Wilkinson and I expressed agreement with this reasoning. In my judgment I observed, at p 498D: ‘The claim of the police officers on our sympathy, and the justice of the case, is great, but not as great as that of others to whom the law denies redress.’ That is the language of distributive justice. The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches.”

111 Mr Hirsch argued that not only do these considerations of consistency and coherence and of distributive justice call for a recognition of the claim of the third plaintiff, but compensation can be more complete if provision for care costs can be made in the claim of the third plaintiff rather than of her parents. This is because the parents’ claim is arguably to be limited to the period of the third plaintiff’s minority. Moreover, Mr Hirsch argued that there are these general considerations: a disabled child has no control over how damages awarded to a parent will be dispersed; nor does a child have control over the making of a decision by the parents whether to sue or not; and a parent’s claim may be defeated by the Limitation Act.

112 In my opinion, this thoughtfully constructed argument cannot be accepted. It is not to be assumed that a claim available to parents of a disabled child must be limited to the period of the child’s minority. In any event, whatever be the advantages of a claim for care costs in respect of a disabled child being sought and awarded in a claim brought by the child, rather than in a claim by the parent, the fundamental question has to be faced as to whether a claim such as that which the third plaintiff here seeks to bring is cognisable.

113 For reasons earlier stated, I do not accept that the defendant owed the same duty of care to the third plaintiff as to the first and the second plaintiffs or that he breached the duty which he did owe to the third plaintiff. Therefore I do not accept that there is that inconsistency or lack of coherence which Mr Hirsch has asserted. Nor can I accept that the concept of distributive justice requires that the third plaintiff’s claim be recognised since I do not find that the defendant caused the disabilities with which the third plaintiff was born. Moreover, I do not consider that to allow damages limited to the provision of costs for care of the disabled child could properly be regarded as an award based upon those long settled principles which govern the assessment of damages for the tort of negligence. Such an award would ignore the fundamental difficulties arising from the impossibility of determining both “damage” and “damages” in the third plaintiff’s case. To my mind, these are insuperable barriers to the approach which the Court is now being invited to take.

Public policy considerations

114 Mr Hirsch submitted that public policy dictated that a negligent doctor should be required to pay for the cost of caring for a disabled child in circumstances where, had the defendant not been negligent, that child would not have been born.

115 That submission has not been received favourably in the past, as the earlier review of the case law concerning “wrongful life” claims demonstrates. Moreover it must be rejected in this case in view of the finding here made that there was no breach of duty causing injury to the third plaintiff.

116 Further, contrary to what Mr Hirsch has submitted, I consider that there are weighty policy considerations against the recognition of any such claim, and that it is proper to have regard to such considerations in determining whether the third plaintiff’s claim for “wrongful life” is maintainable.

117 In Perre v Apand (1999) 198 CLR 180 regard was had to public policy when considering the existence and the extent of a duty of care in tort, in a case in which the claim did not fall within a previously recognised category: see the judgments of Gaudron J at paras 31-33, of McHugh J at paras 101-105, of Kirby J at paras 297-302, and of Hayne J at para 335. See also Bryan v Maloney (1994-95) 182 CLR 609, and in particular the joint judgment of Mason CJ and Deane and Gaudron JJ at 618 and following.

118 Public policy considerations were identified as relevant in other “wrongful life” claims to which earlier reference has been made: see McKay at 1180 and 1188; Phillips v United States (supra); Blake v Cruz (supra); Elliott v Brown (supra); and Bruggeman v Schimke (supra).

119 There are, in my opinion, clearly identifiable public policy considerations against a recognition of “wrongful life” claims:

(i) the precious nature of human life itself, and the erosive effect that the acceptance of such claims would have upon the value to be accorded to human life: see McKay per Stephenson LJ at 1180 and per Ackner LJ at 1188; see also Phillips v United States (supra); Blake v Cruz (supra); Elliott v Brown (supra); Bruggeman v Schimke (supra); and Siemieniec v Lutheran Gen. Hosp. (supra);

(ii) allied to this is the impact that the recognition of this class of claim would have upon the self esteem of those born with disabilities and upon their perceived worthiness by other members of society.

Whilst the third plaintiff in this case has been born with severe disabilities, it is important to appreciate and to emphasise in relation to considerations (i) and (ii) that recognition of “wrongful life” claims, if it occurred, would not be limited to those claimants who are born grossly disabled: see McKay per Stephenson LJ at para 15 above and per Ackner LJ at para 20 above.

(iii) the recognition of this type of claim would lead to the exposure to liability at the suit of a child born disabled not only the doctor who had undertaken the care of the expectant mother but also to the exposure to liability of the mother of that child in the event that the mother was perceived to act unreasonably in deciding to continue with a pregnancy and to have the child with an appreciation of the risk that the child might be born disabled. The potential for the disturbance of family life that this could have, and for the wider disturbance of the fabric of society is obvious and has been recognised in the United Kingdom. Again see McKay per Ackner LJ at para 20 above. As to the acknowledgement of the exposure of parents to the risk of being sued by a child born disabled, see also Curlender v Bio-Science Labs (supra, at paras 38-39), although in Curlender the court could see no sound public policy reason for protecting parents who were negligent in deciding to continue a pregnancy.

120 The recognition of the cost stresses of claims in the field of professional indemnity insurance in this State prompted the passing of the Health Care Liability Act, 2001. Very recently, because of an insurer’s difficulties, there arose the need for Commonwealth government action to address concerns in relation to certain categories of claims of alleged medical negligence. There would plainly be further considerable cost pressures in relation to professional indemnity insurance, affecting insurers and insured alike, if “wrongful life” claims were to be recognised. The Court should not be dismissive of such a factor, when it is being asked to recognise a previously unrecognised category of claim. As Spigelman CJ said in Kinzett v McCourt (1999) 46 NSWLR 32 at 51: “The judiciary cannot be indifferent to the economic consequences of its decisions.” However, there is no evidence before this Court that would permit of any assessment of the potential impact of the recognition of this class of claim, nor was any argument addressed concerning this possible public policy issue. In the circumstances, and having regard to the conclusions I have otherwise reached, I do not consider it necessary or appropriate for me to bring into account this insurance issue as a public policy consideration.

121 It would be contrary to those weighty policy considerations I have identified in para 119 to recognise the claim of the third plaintiff.

The pleading of the cause of action of the third plaintiff

122 In its earlier form the statement of claim expressed the basis upon which the defendant’s liability to each plaintiff arose as being for breach of duty, and I take that pleading as basing the allegation of liability on the tort of negligence. The plaintiffs were, however, allowed to proceed on an amended statement of claim filed in Court when the hearing began on 8 March 2002. Under the heading “Liability”, para 22 was expressed thus:

“In the circumstances, Dr Blomeley entered into a doctor/patient relationship with Robert and/or a contract for services for reward. The contract was oral and included the implied term that he would manage Robert with reasonable care and skill and also express terms as to the success of the vasectomy procedure and his management of Robert following the operation done on 29 May 1998.”

123 In para 23 it was asserted that the defendant “breached his duty of care and/or the terms of his contract” in the respects thereunder particularised.

124 There was then pleaded, in paras 23-26, an asserted liability under the Fair Trading Act, 1989 (Qld).

125 Then in paras 27-29 damage was alleged:

(i) para 27 alleged the first plaintiff suffered injury, loss and damage by reason of the defendant’s “breach of duty and/or breach of contract and/or contravention of the Fair Trading Act , 1989 (Qld);

(ii) para 28 alleged the second plaintiff suffered injury, loss and damage by reason of the defendant’s “breach of duty and/or contravention of the Fair Trading Act , 1989 (Qld);

(iii) para 29 alleged the third plaintiff suffered injury, loss and damage by reason of the defendant’s “breach of duty and/or contravention of the Fair Trading Act , 1989 (Qld).

126 The amended pleading does not allege a liability in the defendant towards the third plaintiff arising in contract. The claim has been so expressed only in relation to the first plaintiff. Nor did Mr Hirsch seek to argue that the defendant was liable to the third plaintiff in contract.

127 This is understandable because the third plaintiff was not a party to the contract alleged to have been made between the first plaintiff and the defendant.

128 However, in the course of argument in the matter of Harriton v Stephens (supra), Mr Segal placed reliance upon the decision in Trident General Insurance Co. Limited v McNiece Bros Pty Limited (1988) 165 CLR 107 in support of a submission that liability in the defendant arose in Harriton under contract as well as in tort. I here record that I accept Mr Garling’s submission concerning the decision in that case, namely that the decision was on the limited question of the extent of liability under a public liability policy. I shall, of course, return to consider this more fully when addressing Mr Segal’s submissions in Harriton.

129 I observe here, however, that the contract between the first plaintiff and the defendant was a contract seemingly entered into in Queensland (see agreed facts 3-6). Mr Garling has properly drawn the Court’s attention to the Property Law Act passed in that State in 1974. Section 55(1) of that statute provides:

“(1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.”

130 “Beneficiary” is defined in s 55(6) for the purposes of the section:

“‘Beneficiary’ means a person other than the promisor or promisee, and includes a person who, at the time of acceptance is identified and in existence, although that person may not have been identified or in existence at the time when the promise was given.”

131 Could it be said that what the defendant promised to do for the first plaintiff was “for the benefit” of the third plaintiff for the purposes of s 55(1)? Mr Hirsch did not, of course, seek to argue the operation of the section was enlivened in the circumstances of this case and it seems to me to be plain that it was not. I do not consider that the due performance of the contract intended to prevent the third plaintiff’s conception could be regarded as being for her “benefit” within the contemplation of s 55.

132 Even if it had been open to the third plaintiff to rely upon the contract entered into by her father, a claim based upon contract would have faced the same difficulties as the claim in tort in relation to the impossibility of assessing damages.

133 What of the alternative claim which was asserted on behalf of the third plaintiff under the Fair Trading Act? No attempt was made to advance this claim in written or oral submissions. Suffice it to say that the claim would face the same difficulties which have defeated the claim in tort. Breaches of ss 38 and 40 of the Fair Trading Act may give rise to an action for damages under s 99 at the suit of a person “who suffers loss or damage by an act or omission of another person that is a contravention of part 3…” and in such action that person “may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention.”

134 However, it would be encumbent upon the third plaintiff to prove “loss or damage” by the defendant’s act or omission. For the reasons earlier expressed, nothing that the defendant did caused loss or damage to the third plaintiff. The disabilities with which the third plaintiff was born were caused solely by genetic defect. Further, it is impossible to determine that the third plaintiff suffered damage for the reasons considered previously.

Summary of conclusions

135 I shall now proceed to state in summary form my conclusions in relation to this claim:

1. The duty owed by the defendant to the third plaintiff was a duty not to injure her.

2. The defendant committed no breach of such duty towards the third plaintiff.

3. The third plaintiff was not born disabled because of any breach of duty by the defendant towards her.

4. Had it become relevant to consider these matters, it would be impossible to determine that “damage” has been suffered by the third plaintiff, even though born seriously disabled, and it would also be impossible to assess compensatory damages.

5. The impossibility of determining “damage” would of itself compel the rejection of the claim, as would the impossibility of assessing compensatory damages.

6. There are weighty considerations of public policy against the recognition of “wrongful life” claims such as the claim brought by the third plaintiff.

7. No claim is maintainable by the third plaintiff in tort, in contract or under the Fair Trading Act .

Questions answered

136 For the reasons stated, I answer the questions expressed in para 2 of this judgment as follows:

(1) No;

(2) Does not arise.

The matter is to be relisted at 9.30 am on Tuesday 18 June 2002 when I will afford to the parties an opportunity to make submissions as to costs of the separate trial, and as to what orders and/or directions should now be made in this cause.

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Last Modified: 06/12/2002