GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
ALEXIA HARRITON (BY HER TUTOR GEORGE HARRITON) APPELLANT
AND
PAUL RICHARD STEPHENS RESPONDENT
Harriton v Stephens [2006] HCA 15 9 May 2006 S229/2005
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with G P Segal and D H Hirsch for the appellant (instructed by Maurice Blackburn Cashman)
S J Gageler SC with J K Kirk for the respondent (instructed by Blake Dawson Waldron)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Harriton v Stephens
Torts – Medical negligence – Wrongful life – Birth of severely disabled child – Agreed for the purposes of separate questions at first instance that the respondent doctor failed to diagnose the mother's rubella infection during pregnancy – Doctor failed to warn the mother of the risk of serious disability as a consequence of the rubella infection – Whether the appellant child born with disabilities can recover from the doctor.
Duty of care – Medical practitioners – Whether the doctor owed the child a duty of care to diagnose rubella and advise the child's mother in relation to the termination of the pregnancy – Foreseeability of risk to the appellant – Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury – Vulnerability of the appellant – Relevance of duty of care owed to the appellant's mother.
Damage – Whether a life with disabilities is actionable damage – Whether it is possible to prove damage by comparing a life with disabilities with non-existence.
Damages – Assessment – Measure of damages – Compensatory principle – Non-existence as a comparator – Comparison to child born without disability – Whether claim for special damages quantifiable – Whether only special damages may be awarded – Corrective justice.
Public policy – Principle of the sanctity of human life – Whether life is capable of constituting a legally cognisable injury – Effect on disabled people of awarding damages for wrongful life – Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects – Whether disabled child could sue his or her mother for failing to terminate her pregnancy – Whether awarding damages for wrongful life would undermine familial relationships – Relevance of unforeseen advances in genetic science.
Statutes – Whether common law can be developed by analogy with legislation – Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction – Relevance of legislature's inaction.
Words and phrases – "wrongful life", "wrongful birth".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Harriton v Stephens [2006] HCA 15
Case
[2006] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Alexia Harriton, a child born with severe disabilities, against Dr. Max Stephens. The dispute arose from allegations that Dr. Stephens negligently failed to diagnose Mrs. Harriton's rubella infection during her pregnancy and failed to warn her of the significant risk of serious disability to the foetus. The core of the case concerned whether a child born with disabilities, who would not have been born but for the alleged negligence, could recover damages from the medical practitioner.
The legal issues before the High Court included whether the respondent doctor owed a duty of care to the unborn child to diagnose rubella and advise the mother regarding the termination of her pregnancy. The Court also had to determine whether a life with disabilities constitutes actionable damage, and if so, how such damage should be assessed, particularly in comparison to non-existence or a life without disability. Public policy considerations, such as the sanctity of human life and the potential impact of such claims on disabled individuals and familial relationships, were also central to the determination.
The High Court, by majority, dismissed the appeal. The reasoning focused on the fundamental principle that the law does not recognise a cause of action for "wrongful life." The Court held that while medical practitioners owe a duty of care to unborn children to prevent pre-natal injury, this duty does not extend to advising the mother in a way that would deprive the child of the opportunity of life. Furthermore, the Court found that a life with disabilities cannot be considered legally cognisable damage, as there is no logical or legal basis to compare a life with disabilities to non-existence. The principle of corrective justice and the potential for undermining familial relationships were also significant factors in the Court's decision.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Notwithstanding this analysis, in these reasons I will have to use the phrase "wrongful life". The term is consistently used in the reasons of the other members of this Court and in the reasons of the courts below. Its use is ubiquitous in the legal literature. To adopt a more fitting description would risk confusion[25]. However, the appeal should be approached with full awareness of the shortcomings in the label "wrongful life". It must be decided by reference to legal analysis, not emotive labels or slogans.[25]Lininger 764 P 2d 1202 at 1204 n 2 (1988).The agreed facts This appeal was heard concurrently with two other appeals concerning the permissibility of wrongful life actions[26]. The facts were agreed between the parties for the purposes of determining whether the appellant had a cause of action against the respondent and, if so, what heads of damages were available in respect of it[27].[26]Waller [2006] HCA 16.[27]Facts further to those stated here may be found at Harriton (2004) 59 NSWLR 694 at 725-726 [189]-[204]. Alexia Harriton is the appellant in this Court. In early August 1980, before her birth, her mother, Mrs Olga Harriton, experienced a fever and noticed a rash. Suspecting that she might be pregnant, she contacted Dr Max Stephens, who was a medical practitioner in general practice. Dr Max Stephens (who has since died) was the father of Dr Paul Stevens ("the respondent"). He was also in general practice. On 13 August 1980, Dr Max Stephens attended on Mrs Harriton. She informed him that she believed that she might be pregnant. She expressed concern that her illness might be rubella (commonly known as German measles). On Dr Max Stephens's advice, Mrs Harriton underwent blood testing to determine whether she was pregnant and whether she had been exposed to the rubella virus. The testing was performed by Macquarie Pathology Services. Dr Max Stephens recorded the following clinical history: "Urgent,? pregn,? recent rubella contact." On 21 August 1980, the Pathology Service reported to Dr Max Stephens in the following terms:"Rubella – 30If no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities." Mrs Harriton consulted the respondent on 22 August 1980. She supplied him with substantially the same history as she had given to his father. The respondent was in possession of the pathology report. He advised her that she was pregnant but assured her that her symptoms were not caused by the rubella virus. It was common ground that, assuming that a relevant duty of care existed, the respondent was negligent in informing the appellant that she did not have rubella and in failing to arrange further and more detailed blood testing. It was also agreed that, in 1980, a reasonable medical practitioner in the position of the respondent would have advised Mrs Harriton of the high risk that a foetus which had been exposed to the rubella virus would be born profoundly disabled. Finally, the parties agreed that, had Mrs Harriton received competent medical advice, she would have terminated the pregnancy.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW J
(dissent)
KIRBY J
(dissent)
Alexia Harriton was born on 19 March 1981. She suffered from catastrophic disabilities as a consequence of exposure to the rubella virus in utero. Her disabilities include blindness, deafness, mental retardation and spasticity. She will require constant supervision and care for the rest of her life. The decisional history Decision at first instance: By her tutor and father, Mr George Harriton, the appellant sued the respondent in the Supreme Court of New South Wales. Her claim was pleaded in tort and contract. She claimed damages for pain and suffering, loss of amenities, medical expenses and under the principle in Griffiths v Kerkemeyer[28]. Damages for a loss of earning capacity were not claimed[29]. Her parents did not commence proceedings in their own names. By reason of the expiry of the relevant limitation period, they are now precluded from doing so[30]. [28](1977) 139 CLR 161. [29]Counsel for the appellant submitted otherwise during argument and in written submissions but the appellant's pleadings do not make a claim for damages for a loss of earning capacity. [30]Harriton (2004) 59 NSWLR 694 at 724 [179]. Pursuant to Pt 31 r 2 of the Supreme Court Rules 1970 (NSW)[31] and with the consent of both parties, Studdert J on 25 February 2002 ordered that there be a separate determination of the following questions[32]: "1.If the [respondent] failed to exercise reasonable care in his management of the [appellant's] mother and, but for that failure the [appellant's] mother would have obtained a lawful termination of the pregnancy, and as a consequence the [appellant] would not have been born, does the [appellant] have a cause of action against the [respondent]?2. If so, what categories of damages are available?"[31]See now Uniform Civil Procedure Rules 2005 (NSW), r 28.2.[32]Harriton [2002] NSWSC 461 at [2]. Relying heavily on the decision of the English Court of Appeal in McKay v Essex Area Health Authority[33], in which the admissibility of wrongful life actions was rejected[34], Studdert J answered the first question in the negative[35]. The second question therefore did not need to be decided. His Honour identified several reasons why the appellant lacked a cause of action.[33][1982] QB 1166.[34]See below these reasons at [49]-[51].[35]Judgment was delivered concurrently with judgments in two other wrongful life actions, Waller v James [2002] NSWSC 462 and Edwards v Blomeley [2002] NSWSC 460. Studdert J also found for the defendants in these actions for substantially the reasons that he gave in Harriton. First, he found that whilst a health care provider owes a duty of care to an unborn child to take reasonable care to avoid causing that child physical injuries in utero, that duty did not include an obligation to give advice to the mother of an unborn child that could deprive that unborn child of the opportunity of life[36]. [36]Harriton [2002] NSWSC 461 at [21]. Secondly, Studdert J held that there was no breach of the accepted duty of care that health care providers owe to unborn children to guard against acts or omissions which might cause physical injury because the respondent did not do anything which caused her mother to contract the rubella virus[37]. Nor was the respondent negligent in failing to take prophylactic measures either to ameliorate the risk of the appellant's being infected with rubella or to reduce the severity of the appellant's disabilities. It was accepted by the appellant that no such measures exist[38]. [37]Harriton [2002] NSWSC 461 at [25]. [38]Harriton [2002] NSWSC 461 at [26].