Harriton v Stephens - [2004] NSWCA 93

No judgment structure available for this case.

Reported Decision:
59 NSWLR 694

Court of Appeal

CITATION: Harriton (by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan [2004] NSWCA 93

HEARING DATE(S): 04/09/03

JUDGMENT DATE:
29 April 2004

JUDGMENT OF: Spigelman CJ at 1; Mason P at 57; Ipp JA at 170

DECISION: (CA 40542/02; CA 40656/02; CA 40657/02): Each appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - WRONGFUL LIFE - Whether respondents owed duty of care to appellants to provide appellants' mothers with necessary information to enable an informed choice to be made in regard to termination of pregnancy - Whether harm suffered by appellants is recoverable in law - Compensatory principle - Damages as the gist of the cause of action - Non-existence as a comparator - Whether policy considerations justify refashioning of compensatory principle - Whether the omissions of the respondents caused the appellants' disabilities - CONTRACTS - Whether appellant is beneficiary of a contract between mother and respective respondent. D

LEGISLATION CITED: Civil Liability Act 2002, Pt 11, ss 70-71
Limitation Act, 1969
Supreme Court Rules, Pt 31 r 2

CASES CITED: Admiralty Commissioners v SS Susquehanna [1926] AC 655
Admiralty Commissioners v SS Valeria ("the Valeria") [1922] 2 AC 242
Airedale NHS Trust v Bland [1993] AC 789
Arndt v Smith [1994] 8 WWR 568
Attorney General (Qld) (Ex rel Kerr) v T (No 1) (1983) 8 Fam LR 871
Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285
Auckland Area Health Board v Attorney-General (NZ) [1993] 1 NZLR 235
Baker v Bolton (1808) 1 Camp 493, 170 ER 1033
Bannerman v Mills (1991) Aust Torts Rep 81-079
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
Becker v Schwartz 413 NYS 2d 895 (1978)
British Transport Commission v Gourley [1956] AC 185
Bunyan v Jordan (1937) 57 CLR 1
Burton v Islington Health Authority [1993] QB 204
Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185
Caltex Oil (Australia) Pty Limited v The Dredge "Willemstad" (1976) 136 CLR 529
Capital and Counties Plc v Hampshire County Council [1997] QB 1004
Caparo Industries Plc v Dickman [1990] 2 AC 605
Cattanach v Melchior (2003) 199 ALR 131; 77 ALJR 1312
CES v Superclinics (Australia) Pty Limited (1995) 38 NSWLR 47
Cran v State of New South Wales [2004] NSWCA 92
Deyong v Shenburn [1946] KB 227
Dobson v Dobson [1999] 2 SCR 753
Donoghue v Stevenson [1932] AC 562
Edwards v Blomeley [2002] NSWSC 460
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335
Gala v Preston (1991) 172 CLR 243
Gardner; Re BVW [2003] VSC 173
Giannarelli v Wraith (1988) 165 CLR 543
Gillespie v Steer (1973) 6 SASR 200
Gleitman v Cosgrove 49 NJ 22 (1967)
Goodburn v Thomas Cotton Ltd [1968] 1 QB 845
Grant v Australian Knitting Mills Ltd [1936] AC 85
Haines v Bendall (1991) 172 CLR 60
Harbeson v Parke-Davis Inc 656 P 2d 483 (1983)
Harriton v Stephens [2002] NSWSC 461
Harvey v PD [2004] NSWCA 97
Hollebone v Greenwood (1968) 71 SR(NSW) 424
Husher v Husher (1999) 197 CLR 138
In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147
In re B (Termination of contact: Paramount consideration) [1993] 3 WLR 63
In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421
In re J (A Minor) (Child in Care: Medical Treatment) [1993] Fam 15
In re J (A Minor) (Wardship: Medical Treatment [1991] Fam 33
Jaensch v Coffey (1984) 155 CLR 549
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503
Johnson v Perez (1988) 166 CLR 351
Jones (Guardian ad litem of) v Rostvig (1999) 44 CCLT (2d) 313 (BCSC)
J R Munday Ltd v London County Council [1916] 2 KB 331
Kars v Kars (1996) 187 CLR 354
Kassama v Magat 767 A 2d 348 (2001)
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413
Kosky v The Trustees of the Sisters of Charity [1982] VR 961
Lacroix (Litigation Guardian of) v Dominique (2001) 202 DLR (4th) 121
Liesbosch Dredger (Owners Of) v Owners of SS Edison ("the Liesbosch Dredger") [1933] AC 449
Lininger v Eisenbaum 764 P 2d 1202 (1988)
Livingstone v Rawyards Coal Company (1880) 5 App Cas 25
Lynch v Lynch (by her Tutor Lynch) (1991) 25 NSWLR 411
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
McFarlane v Tayside Health Board [2000] 2 AC 59
McKay v Essex Area Health Authority [1982] QB 1166
Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26
Nelson v Krusen 678 SW 2d 918 (1984)
Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173
O L L Ltd v Secretary of State for Transport [1997] 3 All ER 897
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd ("the Wagon Mound") [No 1] [1961] AC 388
Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388
Paton v British Pregnancy Advisory Service Trustees [1979] QB 276
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625
Perre v Apand Pty Limited (1999) 198 CLR 180
Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165
Procanik v Cillo 478 A 2d 755 (1984)
P's Curator Bonis v Criminal Injuries Compensation Board (1997) SLT 1180
Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449
Re G [1997] 2 NZLR 201
R v King [2003] NSWCCA 399
Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309
Registrar of Titles v Spencer (1909) 9 CLR 641
Reynolds v Katoomba RSL All Services Club Limited [2001] 53 NSWLR 43
Sharman v Evans (1977) 138 CLR 563
Sullivan v Moody (2001) 207 CLR 562
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sutcliffe v Thackrah [1974] AC 727
Tambree v Travel Compensation Fund [2004] NSWCA 24
Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317
Teubner v Humble (1962) 108 CLR 491
Thatcher v Charles (1961) 104 CLR 57
The Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Thorne v University of London [1966] 2 QB 237
Todorovic v Waller (1981) 150 CLR 402
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Turpin v Sortini 643 P 2d 954 (1982)
Veivers v Connelly (1994) Aust Torts Reports 81-309
Volpato v Zachory [1971] SASR 166
Walker v Mart 790 P 2d 735 (1990)
Waller v James [2002] NSWSC 462
Watson, Laidlaw and Co Limited v Pott, Cassels and
Williamson (1914) 31 RPC 104
Watt v Rama [1972] VR 353
Watts v Rake (1960) 108 CLR 158
Willcock v Andrews (1965) WAR 129
Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843
Williams v State 223 NE 2d 343 (1966)
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16
X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26
Zeitzoff v Katz [1986] 40(2) PD 85
Zepada v Zepada 190 NE 2d 849 (1963)

PARTIES :
CA 40542/02
Alexia Harriton (by her tutor George Harriton) (Appellant)
Paul Richard Stephens (Respondent)
CA 40656/02
Keeden Waller (by his tutor Deborah Waller) (Appellant)
Christopher James (First Respondent)
Sydney IVF Pty Limited (Second Respondent)
CA 40657/02
Keeden Waller (by his tutor Deborah Waller) (Appellant)
Brian Hoolahan (First Respondent)

FILE NUMBER(S): CA 40542/02; 40656/02; 40657/02

COUNSEL: (CA 40542/02)
B Walker SC/G P Segal (Appellant)
P Brereton SC (Respondent)
(CA 40656/02)
P W Bates SC (Appellant)
P Brereton SC (First & Second Respondents)
(CA 40657/02)
P W Bates SC (Appellant)
P Brereton SC (Respondent)

SOLICITORS: (CA 40542/02)
Maurice Blackburn Cashman (Appellant)
Blake Dawson Waldron (Respondent)
(CA 40656/02)
Autore & Associates (Appellant)
Blake Dawson Waldron (First & Second Respondents)
(CA 40657/02)
Autore & Associates (Appellant)
Blake Dawson Waldron (Respondent)

LOWER COURTJURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20558/01; SC 20527/01

LOWER COURT
JUDICIAL OFFICER : Studdert J

CA 40542/02
SC 20558/01
CA 40656/02
CA 40657/02
SC 20527/01
SPIGELMAN CJ
MASON P
IPP JA

Thursday 29 April 2004

ALEXIA HARRITON (by her tutor GEORGE HARRITON) v PAUL RICHARD STEPHENS

KEEDEN WALLER (by his tutor DEBORAH WALLER) v CHRISTOPHER JAMES & ANOR

KEEDEN WALLER (by his tutor DEBORAH WALLER) v BRIAN HOOLAHAN

FACTS

The appellants, Alexia and Keeden, were each born disabled to a catastrophic degree. The appellants claimed damages, being the harm they suffered by being born in their disabled condition. They do not assert that any of the respondents brought about their disabled condition. Rather, they assert that, had the respective respondents properly diagnosed the particular circumstances that resulted in each being born disabled (maternal rubella and paternal AT3 deficiency, respectively), the suffering that each has had to and will endure, and the needs and expenses that each has had to and will incur, would not have materialised. That is because the mothers or parents of the appellants would have taken steps to ensure that the appellants would not have been born (in the case of Alexia) or conceived (in the case of Keeden).

Studdert J, the trial judge, made consent orders pursuant to Pt 31 r 2 of the Supreme Court Rules to the effect that there be a separate determination of the following questions. First, if the respondents failed to exercise reasonable care in their management of the appellants' parents, and, but for that failure, the appellants would not have been born, do the appellants have a cause of action against the respondents? If so, what categories of damages are available?

His Honour answered the first question in the negative and, therefore, the second question did not arise. His Honour held that, although the respondents owed the appellants a duty of care to not injure the appellants in the respective cases, there was no duty to provide the mother of the appellants with the necessary information to enable an informed choice to be made in regard to whether the pregnancy should be terminated. In relation to an argument based on contract, raised only by Alexia, his Honour held that there was no claim maintainable by Alexia against the defendant in contract.

Alexia and Keeden appeal against his Honour’s findings.

HELD per Spigelman CJ:

The Appellants’ claim in negligence: duty of care and legally recoverable damage

i. The formulation of the compensatory principle must not be treated as if it is to be found in a statute that has to be construed.

ii. The preferable starting point in recognising a novel category of liability is the identification of the loss which the plaintiff has suffered and the determination of whether there was a duty with respect to that kind of loss.

iii. Cases such as the present require attention to the ethical foundation of the relevant legal principles. The most important aspect of that ethical basis is that a duty in negligence must reflect values generally, or at least widely, held in the community.

iv. The duty asserted by the Appellants should not be accepted as it does not reflect values generally, or even widely, held in the community.

v. The persons whom the medical provider “ought reasonably have in contemplation” are the parents, particularly the mother. Any decision will be theirs or hers alone. The relationship between the tortfeasor and the child is not sufficiently ‘direct’.

vi. In the case of Keeden there are further difficulties, since Keeden’s case raises questions of scope and indeterminate outcome of liability.

vii. It is not and has never been the law that a person who suffers foreseeable harm attributable to the negligence of another should receive compensation.

viii. The only permissible perspective on the issue of “damage” is that of Alexia or Keeden, and no case has been propounded that there was legally cognisable damage, from the sole perspective of Alexia and Keeden.

Alexia’s claim as a beneficiary of a contract between her mother and Dr Stephens

i. Alexia’s trust-contract claim fails.

HELD per Mason P (dissenting):
The Appellants’ claim in negligence:

duty of care and legally recoverable damage

i. The present case is one that involves a claim for damages for personal injury. The common law is averse to accepting that even a novel claim for damages for personal injury will carry less than the full range of damages normally allowed.

ii. A doctor who treats a woman who is pregnant or seeking to become pregnant owes her an undoubted duty of care. This responsibility extends to the care of the foetus, which is enforceable by the child if he or she is born alive.

iii. The scope of the doctor’s duty is not necessarily limited to an obligation not to cause harm or injury. The appellants’ disabilities were easily detectible and preventible (by the termination or prevention of the pregnancy) by the exercise of due care by the doctors. The doctors’ negligence precluded any informed parental decision not to conceive or not to abort the foetus.

iv. The “compensatory principle” is a principle of assessment, it is not a means of identifying “damage” where that is the gist of a cause of action.

v. The present case cannot be seen as belonging to the same class as where a healthy child seeks damages for being born into socially or economically unfavourable situations. The type of case attracting the duty of care would be limited by the requirement that one is dealing with children grown from a foetus that would not have been conceived and/or would have been aborted had the mother received proper medical advice and care.

vi. There is no conceptual difference between the critical event that generates the parents’ recognised “wrongful life” claims and the child’s putative “wrongful birth” claim. There is an essential consistency between the parents’ admitted cause of action and the children’s putative cause of action.

vii. It is legitimate to approach a novel tort problem by considering whether courts can make a rational and just comparison between the plaintiff’s condition affected and unaffected by the impact of the defendant’s conduct. Impossibility rather than difficulty of assessment is the touchstone.

viii. The contention that the appellants cannot prove any loss because they cannot demonstrate the monetary value of non-existence offends the principle that a wrongdoer bears the evidential onus of establishing the existence and value of offsets and collateral advantages said to stem from the wrong. The judicial equation of pre-birth non-existence and death arguably offends the principle of judicial agnosticism upon which such analysis is based.

Alexia’s claim as a beneficiary of a contract between her mother and Dr Stephens

i. Alexia’s trust-contract claim fails.

HELD per Ipp JA

:

The appellants’ claim in negligence: duty of care and legally recoverable damage

i. The compensatory principle, that the injured party should receive compensation of an amount that will, so far as money can, place that party in the same position they would have been, but for the tort, has long been applied to damages in negligence claims, including claims for non-pecuniary loss. The comparison is between the plaintiff’s physical and psychological state, brought about by the negligence of the defendant, compared with the plaintiff’s physical and psychological state had that conduct not occurred.

ii. It is contrary to the established principle that damage is the gist of the cause of action in negligence to separate actionable negligence from proof of legally recoverable damage. The question whether a relevant duty was owed to the appellants cannot be decided without determining whether the harm each suffered, and for which each claims, is recoverable in law.

iii. Not all harm caused by negligence is recoverable in law, and not all negligence gives rise to recoverable harm.

iv. Without recourse to considerations of policy that would compel a departure from these principles, the appellants’ claims must fail, as such claims require a comparison between being born with a disability and non-existence, which is impossible to make in any terms.

vi. Policy does not justify a re-fashioning of the compensatory principle.

vi. The respondents do not owe a duty of care to the appellants of the kind asserted.

i. The two-limbed test of causation is applicable in this case (Tambree v Travel Compensation Fund [2004] NSWCA 24; Harvey v PD [2004] NSWCA 97).

ii. The answer to the first limb of the test is in the affirmative; the respondents caused the appellants’ loss by causing them to be born in a disabled condition. The second limb of the test involves the application of normative considerations. For the same policy reasons as were considered above, the respondents are not liable for the appellants’ damage.

i. The facts do not permit the inference of the existence of a trust (arising from the contract between Dr Stephens and Alexia’s mother) for the benefit of Alexia. There is no basis for any contractual obligation in the respondent towards Alexia. The claim in contract must fail.

Orders

i. Each appeal is dismissed with costs.- 1 -

CA 40542/02
SC 20558/01
CA 40656/02
CA 40657/02
SC 20527/01

SPIGELMAN CJ
MASON P
IPP JA
Thursday 29 April 2004

ALEXIA HARRITON (by her tutor GEORGE HARRITON) v PAUL RICHARD STEPHENS

KEEDEN WALLER (by his tutor DEBORAH WALLER) v CHRISTOPHER JAMES & ANOR

KEEDEN WALLER (by his tutor DEBORAH WALLER) v BRIAN HOOLAHAN

Judgment

1 SPIGELMAN CJ: In this matter I have had the considerable advantage of reading the judgments of Mason P and Ipp JA in draft. Their Honours set out the facts, issues and refer to the case law of other jurisdictions with respect to this complex and difficult problem at the intersection of law and morality. I have profited greatly from their Honours’ careful consideration of the issues.

2 Ipp JA commences his analysis of the legal issues with a consideration of the compensatory principle, which his Honour identifies as the “cornerstone of tort law”. This principle forms an important part of the reasoning of a number of the authorities which have rejected the kind of claim made in these proceedings. (See e.g. McKay v Essex Area Health Authority [1982] QB 1166 esp at 1181-1182, 1189 and 1192; Becker v Schwartz 413 NYS 2d 895, 900-901 (1978).)

3 The statement of the principle that is most frequently quoted is that of Lord Blackburn in Livingstone v Rawyards Coal Company (1880) 5 App Cas 25 (HL) at 39 set out by Ipp JA. The central words are “in the same position as he would have been if he had not sustained the wrong”.

4 The principle as stated by Lord Blackburn has frequently been applied in Australia. (In addition to the authorities referred to by Ipp JA, see Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191; Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 at 646; Todorovic v Waller (1981) 150 CLR 402 at 412; Johnson v Perez (1988) 166 CLR 351 at 367, 371.)

5 In its Latin form of “restitutio in integrum”, the compensatory principle was described as “the dominant rule of law” by Lord Wright in Owners of Dredger Liesbosch v Owners of Steamship Edison (The Liesbosch) [1933] AC 449 at 463.

6 The compensatory principle is a statement as to the measure of damages. It is not a statement about liability. The gist of an action in negligence is damage, not damages. The former is a reference to loss or injury. The latter is concerned with measurement, leading to a consequential inquiry to determine a sum of money. See Mahony v J. Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527; Kenny and Good Pty Ltd v MGICA (1992)Ltd (1999) 199 CLR 413 at [79]; Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002), LexisNexis Butterworths, p 1 at par [1.1.1].

7 The formulation of the principle by Lord Blackburn must not be treated as if it is to be found in a statute that has to be construed. The principle is capable of being stated in different terms, not all of which mandate the same answer in a case with unique characteristics, such as the proceedings presently before the Court. (See, e.g., “damages commensurate with the loss he has sustained”, Registrar of Titles v Spencer (1909) 9 CLR 641 at 645; “reparation for the wrongful act and for all the natural and direct consequences of the wrongful act”, Admiralty Commissioners v SS Susquehanna [1926] AC 655 at 661).

8 In the case of personal injury restitution is, of course, not possible. The traditional formulation of ‘putting a person back into the same position in which he or she would have been but for the wrong’, requires a qualification in terms of “insofar as money can do so”. (See British Transport Commission v Gourley [1956] AC 185 at 212; Admiralty Commissioners v SS Valeria [1922] 2 AC 242 at 248; Thatcher v Charles (1961) 104 CLR 57 at 63, 76-77; Luntz, Assessment of Damages, at par [1.1.5].) This qualification indicates that the language of ‘restoring’ a person to a particular ‘position’ cannot be regarded as precisely applicable in a literal sense.

9 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, commonly referred to as the SAAMCO case, concerned the liability of a valuer who had provided a lender with a negligent overvaluation of property. The Court of Appeal had referred to Lord Blackburn in Livingstone v Rawyards Coal Company, and other such statements, as “the necessary point of departure”. On appeal, Lord Hoffmann said at 211:

“I think that this was the wrong place to begin. Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation. A correct description of the loss for which the valuer is liable must precede any consideration of the measure of damages. For this purpose it is better to begin at the beginning and consider the lender’s cause of action.”

10 His Lordship went on to identify two principles which are equally applicable in Australian law: a plaintiff “must show that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered” (211H).

11 In a case such as the present, where the Court is asked to recognise a category of liability that is distinctly problematic, the preferable starting point, in my opinion, is not a principle concerned with the computation of damage but the identification of the loss which the Appellants have suffered and the determination of whether there was a duty with respect to that kind of loss.

12 As Studdert J recognised, a medical adviser to prospective parents does owe a duty of care to the prospective child. (See e.g. Watt v Rama [1972] VR 353; X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26; Burton v Islington Health Authority [1993] QB 204). Mason P elaborates on the scope of that duty. Mr P Brereton SC, who appeared for the Respondents, accepted that a duty to the child could extend to ensuring that a child is not injured in the course of pregnancy or birth and even to ensuring that the child when born is in a better condition than would otherwise be the case.

13 The issue to be determined in the cases before the Court, however, is whether this recognised duty encompasses conduct which, if it had been properly performed without negligence, would have led to termination of the pregnancy or non-conception. The afflictions from which the Appellants suffer were not preventable in any other way. (Although Keeden’s case does not, as discussed below, clearly link all his disabilities to the genetic defect, the separate question posed by Studdert J operates on that assumption). In neither case was there an option of being born without disability.

14 A case of this character requires a return to first principles. The well known dictum of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580 bears repetition:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

15 Although these words have received much elaboration and specific application over the three quarters of a century in which they have served as a general principle, they remain a reference point. There are several aspects of the dictum which are pertinent for the resolution of the present case. These are:

(i) The express recognition of the ethical foundations of the legal rule, i.e. “love your neighbour”.

(ii) The recognition that the persons to whom a duty is owed must be confined – “a restricted reply” – namely, to those who are both “closely” and “directly” in fact “affected” by the conduct which is “called in question”.

(iii) The nature of the consequences for which a person is to be held responsible must answer the description of an “injury” to the person who asserts the duty.

16 In my opinion, notwithstanding the fluctuations of subsequent tort jurisprudence, nothing in the case law affects the matters I have identified.

17 The ethical foundations of the law of negligence may be found in alternative sources. The religious minded may refer to the New Testament – “love thy neighbour as thyself” (Matthew 19:19). The secular minded may refer to Immanuel Kant’s categorical imperative – act according to the maxim that what you will, should become a universal law.

18 The delineation of legal duties has never been derived from an exclusively legal analysis. The law is not, nor has it ever been, an entirely autonomous, isolated and self-sufficient intellectual construct.

19 We have, however, become so accustomed to finding legal ‘duties’ by the application of principles expressed in legal analysis that the determination of duty has come to have the appearance of a purely legal decision. Decades of decision making which employed only legal concepts has created a situation in which there is false appearance of intellectual autonomy. Cases such as the present require attention to the ethical foundation of the relevant legal principles.

20 The most important aspect of the ethical basis for legal duties that have been recognised by the law of negligence is that a duty must reflect values generally, or at least widely, held in the community. Such values often emerge from what Oliver Wendell Holmes famously described as “the felt necessities of the times”. The values change and the courts must adapt to new community standards.

21 In my opinion, the duty asserted by the Appellants should not be accepted as it does not reflect values generally, or even widely, held in the community.

22 It is common ground that, in the respective circumstances of the two appeals, termination of the pregnancy would have been lawful. However, the fact that conduct is acceptable is only a necessary, but not a sufficient, foundation for acknowledging a duty to act in such a way as may lead to the conduct occurring.

23 The majority in Cattanach v Melchoir (2003) 77 ALJR 1312 (at [79] per McHugh and Gummow JJ, [141]-[148] and [151] per Kirby J, [292] per Callinan J, see also [195]-[197] per Hayne J) rejected the “blessing” argument that the benefit of a child outweighs the damage which the parents suffer. The determination of the value to a parent of the life of a child, it appears to me, raises quite different considerations to a case in which it is the child who, directly or by an agent, puts in issue the value of her or his own life, to herself or himself. Such a claim directly raises sanctity of life considerations. A claim by parents does not. There is, in my opinion, no issue of inconsistency or legal coherence if the two kinds of proceedings lead to different results.

24 It is not, in my opinion, possible to avoid or obfuscate the fact that an action by a disabled child, as distinct from an action by the parents, involves an assertion by the child that it would be preferable if she or he had not been born. This proposition raises ethical issues of the same character as those involved in the debate over euthanasia. It is sufficient for present purposes to note that the issues are highly contestable and are strenuously contested. There is no widely accepted ethical principle. The law of negligence should not, therefore, recognise a legal duty to the child.

25 The second relevant aspect of Lord Atkin’s dictum is the need for “directness” in the relationship between the persons to whom and by whom a duty is said to be owed. In the cases before the Court, the relationship is mediated through the parents, to whom the provider of medical services owes duties which overlap, in substantial measure, with those said to be owed to the child. Furthermore, the duty to the child is said to be fully performed if the medical provider puts the parents, or the mother alone (in the submissions put on behalf of Alexia), in a position to make a fully informed decision to terminate the pregnancy (or otherwise avoid conception, in the case of Keeden).

26 The quality of ‘directness’ contains an inherent amorphousness. Nevertheless, I cannot see that a duty so mediated has the requisite directness when the issue arising – the conduct “called in question”, in Lord Atkin’s phrase – does not relate to the health of the child, but to whether it will be born at all.

27 The persons whom the medical provider “ought reasonably have in contemplation”, in Lord Atkin’s words, are, in my opinion, the parents, particularly the mother. (See e.g. Veivers v Connelly [1995] 2 Qd R 326; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47). Any decision will be theirs or hers alone. Whether they, or she, take into consideration the interests of the child is a matter for them, or her. With respect to the decision as to whether or not a child will be born at all, I do not find it appropriate to characterise the parents as, in some way, acting on behalf of the child. They are entitled to act in their own interests. That in a particular case they would act only in the child’s interests does not determine whether a duty is owed to the child.

28 Furthermore, if there were a duty to avoid harm to the child, I do not see how that duty could be discharged merely by providing information to the parents. That the Appellants accept that this is so indicates, in my opinion, that the relationship between the tortfeasor and the child is not sufficiently ‘direct’.

29 On the issue of duty, matters arise in the case of Keeden that do not arise in the case of Alexia. The implications of recognising a duty in a case involving the effects of a maternal disease on a child are not the same as the transmission of characteristics through genetic inheritance.

30 As the discussion by Ipp JA of the implications of the expansion of genetic knowledge shows, Keeden’s case raises questions of scope and indeterminate outcome of liability, which do not arise in Alexia’s case. In particular, the case raises an important issue of how public policy should respond to the practicability of eugenics.

31 The identification of what is to be regarded as “acceptable” physical characteristics of children is a field into which the law should not, at least at this stage of the development of knowledge, in my opinion, enter. Specifically, the law should be very slow to decide how much “disability” is to be regarded as acceptable. Is, for example, hereditary deafness enough? (See Turpin v Sortini 643 P2d 954 (1982) Supreme Court of California). It is a short step to being asked to compensate for disappointed expectations about physical characteristics which parents wished their children to have.

32 Subject to the above observations, I agree with the reasons of Ipp JA in that part of his Honour’s judgment under the sub-heading “Do the interests of the Appellants attract the protection of the law?”

33 In my opinion, there was no relevant duty of care in either case. In the case of Keeden there are additional reasons for so concluding. Each appeal should be dismissed.

34 The third element in Lord Atkin’s dictum is the need for “injury”. This was the very terminology employed by Studdert J. The Appellants contest his Honour’s use of that terminology as the delineation of the scope of the duty owed by the doctor in the case of Alexia and by the medical providers in the case of Keeden.

35 Mr B Walker SC, who appeared for Alexia, submitted that his Honour’s statement of the scope of the duty was too limited. The duty was to prevent foreseeable harm which, it was submitted, occurs wherever preventable pain, suffering or loss is endured.

36 Mr P Bates, who appeared for Keeden, also submitted that his Honour’s statement of the scope of the duty was too narrow. He submitted that the duty to Keeden extended to informing his parents of all material facts that could bear on his potential health and that any decision by them, whether to proceed with conception or, after conception, to terminate, would be determinative. He focused on the preventable creation of unique needs and suffering which, in his oral submissions, he identified as the relevant “harm”.

37 I do not see that anything turns on the use of the word “injury” rather than “harm”. Studdert J’s use of the word “injury” in its context, would encompass pain, suffering or loss. His Honour’s judgment turned on other considerations, primarily his adoption of the reasoning in McKay v Essex Area Health Authority. His Honour did not, by use of the word “injury”, have in mind a narrower conception of “harm” than that urged on the Court by the Appellants.

38 In his oral submissions, Mr Walker invoked a principle of “corrective justice” that compensation is to be awarded wherever harm is brought about by negligent conduct. (T3, 19-20). In my opinion, the law of negligence has never attributed liability on so broad a basis.

39 It is not and has never been the law that a person who suffers foreseeable harm attributable to the negligence of another should receive compensation. The law has always taken into account a range of considerations in addition to foreseeability. (See Sullivan v Moody (2001) 207 CLR 562 at [42]). The law has always imposed restrictions on the liability to compensate, which deny legal effect to a factual linkage between conduct and consequences. Such considerations have been variously expressed in terms of duty, reasonableness, standards of conduct, causation and remoteness. Many of these considerations are able to be classified under more than one of these elements.

40 As du Parq LJ said in Deyong v Shenburn [1946] KB 227 at 233:

It is not true to say that wherever a man finds himself in such a position that unless he does a certain act another person may suffer, or that if he does something another person will suffer, then it is his duty in the one case to be careful to do the act and in the other case to be careful not to do the act. Any such proposition is much too wide. There has to be a breach of a duty which the law recognizes…”.

Jaensch v Coffey

Clerk & Lindsell on Torts

Grant v Australian Knitting Mills Ltd

41 Both Alexia and Keeden have special needs and endure particular suffering by reason of their existence. Is this legally cognisable damage at the suit of themselves?

42 The terminology of the relevant law is the terminology of comparison. “Need” and “suffering” have, in my opinion, the same quality in this respect, as the terminology more frequently employed – “damage”, “loss”, “injury”, “harm”. All involve a comparison.

43 In a case of the kind now before the Court, if the relevant conduct had been performed without negligence, the child would not exist. In such a case, in order to constitute damage which is legally cognisable, i.e. which gives rise to a right to compensation, it must be established that non-existence is preferable to life with the disabilities to the child. Unless that is so, there is, in my opinion, no “damage”, of the character which constitutes the gist of an action in negligence, for purposes of an action by the child.

44 As noted above, in my opinion, this proposition does not raise an issue of inconsistency with the result in Cattanach v Melchior. An action by parents to recover the costs of care of a disabled child is based on damage suffered by the parents, who must ensure that such care is given including, in my opinion as presently advised, by way of provision after their own deaths. (cf Cattanach v Melchior at [32]). (I note that the scope of recovery has not been argued in this case). Proceedings by the disabled child raise the issue of whether, from the sole perspective of the child, non-existence is preferable to life with the disabilities. Damage of that character does not arise in proceedings by the parents.

45 There have been cases involving cessation of life support facilities, in which the law has recognised, or at least tolerated, the existence of circumstances in which life could be terminated. (See e.g. Airedale NHS Trust v Bland [1993] AC 789; In re J (a minor) (Child in Care: Medical Treatment) [1993] Fam 15; Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235; Re G [1997] 2 NZLR 201; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147; Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; Gardner; Re BVW [2003] VSC 173). However, in all such cases, the decision is taken, and taken exclusively, from the perspective of the person whose life is to cease. That person is not in a position to make or even influence the decision. Nevertheless, the only relevant considerations are those relating to that person. After birth, that is the only legitimate perspective.

46 No such case is propounded by or on behalf of the Appellants in these proceedings. Nothing in the pleadings or in the agreed facts asserts that either Alexia or Keeden suffered damage in the sense that they would be better off if they had never been born. The case propounded is that their parents, on the basis of whatever considerations they thought appropriate, would have ensured that they would not have come into existence. That may be relevant to an issue of causation. It is not, in my opinion, relevant, let alone determinative on the issue of whether either Appellant has suffered legally cognisable damage.

47 In the case of Alexia, the agreed relevant facts include:

“16. It would have been prudent medical practice in 1980 to advise a pregnant woman who had rubella in the first trimester of her pregnancy that there was a very high risk that the unborn child would suffer grievous injury as a result of the rubella infection.

17. In these circumstances, prudent medical practice would have been to counsel a woman that the only way to prevent a child from suffering these injuries throughout its life would be to terminate the pregnancy.

18. Had the rubella been diagnosed, Olga would have exercised her lawful right to terminate the pregnancy.”

48 In the case of Keeden, the agreed facts relevantly include:

“44. If the first and second plaintiffs had been advised by the first, second and/or third defendants that the second plaintiff’s antithrombin 3 deficiency was genetic and could be passed to any child, the first and second plaintiffs would have:

(a) deferred egg harvest and/or embryo transfer until methods to ensure transfer of only AT3 deficiency free embryos were identified; or

(b) used donor sperm; or

(c) if informed after confirmation of pregnancy of the 50% chance or the certainty of the foetus suffering from the AT3 deficiency, sought and obtained a lawful termination.”

49 The only permissible perspective on the issue of “damage” is that of Alexia or Keeden. That is not the perspective adopted in the agreed facts. They were not treated in these proceedings as separate moral agents. The hypothetical decisions of their parents on which reliance was placed in the agreed facts were not necessarily decisions made in the name of the children alone.

50 I am not prepared to accept that a parent’s statement that he or she would not have permitted a child to be born is determinative of the issue that the child has suffered the damage necessary to found an action in his or her own name, i.e. in the sense that non-existence is preferable to her or his life with disability.

51 The submissions proceeded on the basis that Alexia’s and Keeden’s cases raised the same considerations. However, the agreed facts in the latter case do not suggest that Keeden’s serious disabilities were a result only of the genetic abnormality. The trauma of his birth played an unspecified but, it appears, important role.

52 In Keeden’s case the statement of damage is:

“45. The third plaintiff’s injuries and disabilities have produced needs and will result in a level of care greater than would be expected of a child who did not have his disabilities.”

53 However, these disabilities are not said to be related only to the AT3 deficiency. Keeden suffers from permanent brain damage and cerebral palsy as a result of a cerebral thrombosis which occurred, at least in part, by reason of the circumstances of his delivery. Those circumstances are not encompassed within the separate question stated and answered by Studdert J. The fourth and fifth defendants, being the hospital and its medical officer, were not parties to the determination of the separate question. The relationship between the proceedings against them and the proceedings against the first three defendants, in terms of responsibility for loss or damage, does not appear from the agreed facts. In Keeden’s case, the facts before the Court may not be sufficient to address the separate question.

54 In any event, in both Alexia’s and Keeden’s proceedings, no case has been propounded that there was legally cognisable damage, from the sole perspective of Alexia and Keeden.

55 On this alternative basis, the questions posed were correctly answered in the negative by Studdert J. The appeals should be dismissed.

56 I agree with Ipp JA that Alexia’s trust-contract claim fails.

57 MASON P: I have had the benefit of reading the judgment of Ipp JA in draft. It sets out the facts and issues. It concludes that the respondents did not owe a duty of care to Keeden and Alexia respectively, of the kind asserted. It also acquits the respondents of causal responsibility for the appellants’ injuries.

58 I disagree on each issue.

59 In the present appeals we are required to assume that the exercise of reasonable care and skill by the doctor caring for Alexia's mother would have meant that her rubella would have been detected, in consequence of which she would have terminated the pregnancy, in consequence of which Alexia would not have been born. The assumed exercise of reasonable care and skill by the doctors assisting Keeden's mother in her attempt to conceive through IVF would have meant that any child that she did conceive would not have been Keeden.

60 We also know that Alexia and Keeden are persons whose suffering and needs are of the type commonly addressed in personal injury litigation. The reality of their plight is that they exist and suffer due to the assumed negligence of others who had represented professional competence in relation to medical procedures they embarked upon for reward. Of course, more needs to be established before liability ensues.

61 These appeals throw up a question where there is no controlling precedent. There is a preponderance of overseas judicial opinion averse to the appellants’ claim but unanimity is lacking and the weight of numbers cannot be decisive. In any event, I discern principles favouring the appellants in the High Court’s recent decision of Cattanach v Melchior [2003] HCA 38, 199 ALR 131. I hasten to add that Cattanach’s ratio does not dictate the result of these appeals and that some of the minority reasoning speaks strongly against the appellants’ arguments.

62 The cases that I have found most useful for discussing the issues of principle are the decision under appeal, McKay v Essex Area Health Authority [1982] QB 1166 (English Court of Appeal), Harbeson v Parke-Davis Inc 656 P 2d 483 (1983, Supreme Court of Washington), Walker v Mart 790 P 2d 735 (1990, Supreme Court of Arizona) and P’s Curator Bonis v Criminal Injuries Compensation Board (1997) SLT 1180 (Scottish Court of Session (Outer House), Lord Osborne).

63 There is much case law in the United States: see generally Annotation “Tort Liability for Wrongfully Causing One to be Born”, 83 ALR 3d 15 483, (hereafter ALR Annot).

64 Harvey Teff, “The Action for ‘Wrongful Life’ in England and the United States” (1985) 34 ICLQ 423 has been particularly helpful and persuasive.

65 Any survey of case law and legal commentary in this field shows that discussion is bedevilled by different views as to the legal concepts that are engaged.

66 Some authorities speak in terms of strict logic, viewing the outcome as an inexorable consequence of applying ostensibly neutral and universal principles of tort law, causation and compensatory damages. Others recognize the influence of policy.

67 Some see the issue in terms of causation, others in terms of recoverable damages, others in terms of identifying the proper plaintiff to recover the damages. Many authorities talk in terms of a duty of care, although closer examination of this group discloses that some deny duty because of fundamental problems in assessing damages and/or problems in describing the nature of the injury inflicted.

68 Labelling sometimes causes its own problems. These may include suggesting distinctions that do not exist and eliding those that do. With these caveats, there is recognition of three general categories of relevant claims against a medical practitioner, pharmacist or pharmaceutical manufacturer:

• “wrongful conception or pregnancy” claims by parents of a healthy but unplanned child;

• “wrongful birth” claims by parents of a child born with congenital disabilities;

69 Teff, op cit pp427-8 warns that dispassionate analysis may be diverted by the very message conveyed by emotive terms such as “wrongful life” and “wrongful birth”. These particular concepts suggest categorically opposite ideas, yet they overlap significantly, with policies favouring parental claims being disregarded in relation to the child’s claim. The labels themselves have contributed to instinctive opposition to certain claims, because of their implicit denigration of life. They tap into justifiable revulsion against doctrines and practices hostile to the sanctity of life or that tend to undermine the family as a vital social institution. I shall endeavour to heed this warning against sloppy reasoning, not that there is anything wrong with the law paying proper regard to these and other fundamental principles.

70 A related warning is also appropriate, in my view. It is not a sufficient answer to a relevant proposition to say that it is based upon policy, morality, theology or a (particular) religious point of view. To pick up on the examples given in the previous paragraph, respect for life and recognition of the family (however defined) as a vital social institution are principles valued by common law, statute, international law, morality and theological discourse. To swipe away a proposition with the comment that it lies in the field of morality or religion is not in itself a sufficient answer to a legal issue. Of course, there are some matters that lie outside the law’s ken.

71 Because there is no controlling precedent in Australian common law for this widely-debated cause of action, and because policy issues properly demand to be assessed, I do not understand and cannot accept Ipp JA’s dismissal of the appellants’ claims as based “purely on policy”. If necessary, I would debate his implicit suggestion that they “violate the moral code underlying our system of justice” (see passage cited by Ipp JA from Procanik v Cillo 478 A 2d 755, 772 (1984)). I must address his conclusions that the policy underlying acceptance of the claims involves “departure from recognized principle” disturbing “otherwise settled principles of law”.

72 The most common reasons why “wrongful life” claims have failed are because courts have held that life itself cannot be a legal injury, and because courts are unable or unwilling to measure compensation that involves comparing the harm of living with that of never having lived at all. The two propositions are clearly enunciated in the leading New York decision of Becker v Schwartz 413 NYS 2d 895, 900-1 (1978) (citations omitted):

However, there are two flaws in plaintiffs' claims on behalf of the… 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. … 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"….. … 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 honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?

73 In this passage, the two reasons are presented as value-free propositions involving the application of neutral principles taken from well-established case law. Many decisions denying recovery speak in similar terms, although policy factors are often added or peep out from under language suggesting strict legalism. McKay is a good example of this.

74 A third reason, essentially conclusory, is that the defendant has in no way caused the child’s disabilities (see eg McKay at 1181, Lininger v Eisenbaum 764 P 2d 1202, 1212 (1988), passages quoted by Ipp JA). I shall attempt to demonstrate why this view cannot be accepted in areas where the march of medical science has made prevention easy at the hands of professionals who hold themselves out as competent to diagnose, prevent or treat particular conditions.

Cattanach v Melchoir

75 Because Cattanach v Melchior throws considerable light upon the issues, and the framework in which they ought to be addressed by an Australian court, I turn first to that case.

76 The High Court held that damages representing the reasonable costs of maintaining and raising a child were recoverable by the parents of a healthy child born in consequence of negligent advice by a doctor as to the outcome of a sterilisation operation.

77 For present purposes, it is useful to go first to the dissenting judgments.

78 Gleeson CJ noted that the law relevantly required proof that the medical practitioners owed the parents a duty of care to avoid causing damages of the kind actually suffered ([21]-[24], [30]). In the case at hand, an integral part of the actionable damage had to be the parent-child relationship arising out of the medical negligence ([25]-[27]).

79 His Honour characterised the claim as one for economic loss, a field in which policy reasons dictate caution ([28]-[29]). (See also Callinan J at [302]. Contrast McHugh and Gummow JJ at [66], Kirby J at [148], Hayne J at [193], [218].)

80 A reason for caution as regards economic loss claims is concern based upon the potential indeterminacy of the financial consequences of the negligent act or omission ([32]). Another, and related, reason is the lack of precision in the concept of economic loss, as distinct from injury to person or property ([33]). Proceeding from these considerations, the Chief Justice highlighted the impossibility of listing a calculus of (monetary) benefits and burdens stemming from the creation of a parent-child relationship. This was in the context of the birth of a healthy child.

81 Among the problematic offsets that would have to go into the scales against a claim to recover the dollars and cents of rearing a healthy child to adulthood (at least), the Chief Justice instanced the financial benefits parents might hope to obtain from being supported by their children ([34]). He also referred to the indeterminate nature of the financial consequences, in the following terms ([38]):

The indeterminate nature of the financial consequences, beneficial and detrimental, of the parent-child relationship has already been noted. In deciding whether, in the contemplation of the law, the creation of that relationship is actionable damage, it is material to note that it is unlikely that the parties to the relationship, or the community, would regard it as being primarily financial in nature. It is a human relationship, regarded by domestic law and by international standards as fundamental to society. To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible.

82 By contrast, the present appellants point to no relationship beyond that with the medical practitioners who attended their parents before birth. The appellants’ claims are also undoubtedly based upon personal injury, not economic loss.

83 Gleeson CJ cited McKay with approval (at [35], [38]). His Honour saw that case as establishing that the common law does not allow a person to treat his or her own birth as actionable damage ([35]). McKay was also seen as demonstrating that one of the grounds upon which “wrongful life” claims by children have been rejected is the impossibility of making a rational or fair assessment of damages ([38]). I shall return to these observations.

84 Hayne J observed that neither duty of care nor liability for the immediate financial consequences to the mother of pregnancy and childbirth were in issue ([189]-[192]). Unlike the Chief Justice, Hayne J was not prepared to label the wife’s claim as one for economic loss ([193], [218]). He held that the relevant wrong was the negligent failure to give proper advice ([193]).

85 Hayne J considered various arguments, none of which he thought determinative ([194]-[210]). These were (a) the “blessing” argument, (b) the “set off” argument, (c) the “impossible prediction” argument, (d) the “damage to the child” argument and (e) the “motives and damages” argument. Arguments (b) and (c) tracked matters addressed by Gleeson CJ, but (in contrast to the Chief Justice) Hayne J did not view them as determinative. Hayne J thought that prediction about what the future would hold for parent and child would be hard, but not impossible ([200]).

86 The crux of Hayne J’s reasoning leading to the dismissal of the parents’ claim was the impossibility and unreality of awarding fair compensation for the economic consequences of bringing up a child that left out of account many contingencies and intangible benefits ([247]-[262]). It supports an ultimate proposition that a valuation exercise that is incapable of concrete and rational description or fair outcome cannot ground an award of damages at common law. The detailed steps in his Honour’s reasoning appear to cast no light on the issues that arise in the present case.

87 Hayne J was at pains to point out that he was not addressing a claim to recover the costs of rearing a child with special needs ([256], [263]). Indeed, his recognition of that point of distinction offers hope for the present appellants insofar as he said (at [263]):

88 Heydon J, the third Cattanach dissentient, covers an array of issues in his comprehensive reasons. He advanced several compelling policy arguments against allowing the type of claim under consideration. I pass over them, simply because they do not, I think, claim to address the present situation.

89 The portion of Heydon J’s reasons that is of relevance is that demonstrating the difficulty of assessing loss, having regard to many factors, including the non-comparability of human life and money ([349]-[362]).

90 Once again, I venture to suggest this discussion offers indirect but significant support for a basal legal principle (embraced directly in McKay) that the impossibility of rational and fair assessment of damages will lead to the denial of a novel claim.

91 As had Gleeson CJ, Heydon J adverted to an argument based upon consistency of legal principles. This led him to deny the parents’ claim because of inconsistency with rejection of the child’s “wrongful birth” claim. Heydon J said ([406]-[409]):

(592)

(593)

(594)

(595)

(596)

(597)

(598)

(599)

(600)

409 However, it is undesirable to deal with this issue in this case. Lord Steyn's point was not developed by the defendants in this Court, and the plaintiffs did not deal with it.

Kosky v The Trustees of the Sisters of Charity

Watt v Rama

X and Y (by her Tutor X) v Pal

McKay v Essex Area Health Authority

P’s Curator Bonis v Criminal Injuries Compensation Board

Arndt v Smith

Mickle v Salvation Army Grace Hospital

Jones (Guardian ad litem of) v Rostvig

Lacroix (Litigation Guardian of) v Dominique

Edwards v Blomeley

Bannerman v Mills

Edwards v Blomeley

Harriton v Stephens

Walter v James

McFarlane v Tayside Health Board

92 As with Gleeson CJ’s acceptance of the correctness of McKay, this passage supports the respondents generally. It also supports them specifically in its apparent endorsement of the decisions of Studdert J presently under appeal.

93 Of course, Heydon J does not suggest that the present issue was argued in Cattanach. Furthermore, the very fact that the majority of the High Court disagreed with the conclusions of the minority means that the inconsistency argument is capable of being turned against the present respondents. I shall later seek to demonstrate why it is incoherent to allow the parents’ claim (a fortiori in relation to a healthy child) but to reject the child’s direct “wrongful life” claim. Each is based upon losses stemming from the creation of life (by God or nature) in circumstances where medical negligence contributed to this outcome with all of its consequences.

94 Each of the justices in the majority emphasised that the Cattanach appellants were liable under ordinary negligence principles for the foreseeable consequences of the doctor’s negligence. The doctor’s duty of care was not in dispute, nor was his liability for some heads of damages, including the costs of and compensation for the pain and suffering associated with the pregnancy and birth (McHugh and Gummow JJ at [51], [66], Kirby J at [179], Callinan J at [281], [294]).

95 I have already indicated that, of the majority justices, McHugh, Gummow and Kirby JJ thought, like Hayne J, that the claim should not be characterised as one for pure economic loss.

96 From this and other starting points, the majority held that it was for the negligent defendants to point to some legitimate basis recognised in the law for providing an immunity from a head of damages for personal injury well recognised at law (per McHugh and Gummow JJ at [57]-[59], per Kirby J at [177]-[179], per Callinan J at [295]).

97 The legal consistency argument was invoked by three of the majority justices when they pointed out the anomaly of allowing recovery for some heads of damages stemming from the negligence, but not the full scope of reasonably foreseeable loss (per McHugh and Gummow JJ at [91]), Kirby J at [161]-[162] (describing the attempt to limit damages as “arbitrary and unjust”). Cf Callinan J at [300], [302], emphasising that no issue about the other heads of damages had been raised).

98 Kirby J rejected the contention that compensation for the costs of upbringing were too difficult to calculate and should therefore not be attempted. His Honour said (at [144], omitting footnotes):

99 Callinan J also dismissed the argument that the damages claimed required the Court to assess what was in reality unassessable. He said (at [297], omitting footnotes):

100 In a different context, Kirby J was equally dismissive of the idea that a clear entitlement to damages should be lost because of a remote, non-correlative offset. His Honour said (at [175]):

101 I have touched on numerous themes drawn from the judgments in Cattanach. It is not suggested that the decision offers direct guidance in the present case. Nevertheless, I would draw the following points of guidance.

102 First, the instant case should be seen as one that involves a claim for damages for personal injury. Even the parents’ claim in Cattanach was not viewed as one based on pure economic loss by the majority of the justices. The concerns about indeterminacy and remoteness that particularly troubled those who viewed the Melchiors’ claim as one for economic loss have no application to the present appeals (see also Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 at [155] (Kirby J).

103 Secondly, the common law of Australia is averse to accepting that even a novel claim for damages for personal injury will carry less than the full range of damages normally allowed. This does not foreclose the solution of awarding damages for care and treatment but withholding general damages (cf Turpin v Sortini, 643 P 2d 954 (1982)) but it is the reason why I would not restrict the appellants’ claim so that it excluded general damages. See also Walker at 739-40. (Damages for economic loss would not be excluded in principle, but will almost certainly fail for want of proof (Luntz, Assessment of Damages for Personal Injury 4th ed, 2002 at [5.3.4].)

104 Thirdly, and related to the second proposition, a firm onus rests upon those who would deny the availability of a recognised head of damages (a fortiori a recognised cause of action) because of damages assessment difficulties stemming from speculative or suppositional offsets and deductions.

105 Fourthly, the invocation of McKay by Gleeson CJ and Heydon J in support of arguments based upon legal consistency left the majority justices unmoved. This suggests at least the possibility that McKay may not represent the law in Australia, otherwise there would be that structural inconsistency of principle abhorred by the law that concerned the minority justices.

106 Fifthly, nothing in Cattanach supports the view that tort liability does not operate as a system of corrective justice. Professor Atiyah’s views (cited by Ipp JA) do not represent the way that Australian tort law is viewed in theory and (to a limited degree) operates in practice. There is express affirmation of this in the Cattanach judgments of Kirby J (at [177]), Hayne J (at [213]-[214]) and Callinan J (at [301]). See also Perre v Apand Pty Ltd (1999) 198 CLR 180 at 216 [91], 220 [103], 228 [123], 236 [151] (McHugh J), Woolcock at [106] (McHugh J).

107 I recognise the need to grapple with the main arguments that have been raised denying recovery. But I start by considering whether the appellants’ claims are consistent with negligence principles at the basic levels of duty of care, foreseeability of damage and causation.

108 At the most basic level, it is clear that the appellants are persons whom the medical practitioners would have known as likely to come into being and as likely to suffer and have special needs of care if certain steps were not taken. Those steps were so well-recognised that one can label as negligent the assumed doctors’ failure to take them.

109 The appellants’ disabilities are genetic in their origin, but that in itself does not preclude adverse holdings as to duty of care and causation against the doctors. This, in general terms, is because the disabilities were easily detectible and easily preventible by the exercise of due care by the treating professionals.

110 Doctors seldom cause their patients' illnesses. But they may be liable in negligence for the pain and cost of treating an illness that would have been prevented or cured by reasonable medical intervention. As medical science advances, certain conditions and illnesses become seen as so preventible that responsibility for failure to detect and/or treat them may properly be seen as lying at the feet of medical professionals who undertake care of the patient (usually for reward). In the realm of genetic diseases, we are no longer content to view as fate abnormalities preventable by widely-used screening techniques.

111 Those who would deny the present cause of action usually speak of the doctor’s duty of care to a patient as a duty to avoid injury (see eg McKay at 1178 per Stephenson LJ). This was the content of the duty of care found by Studdert J. This characterization is often used as the springboard for the conclusory propositions (see below) that birth is not an injury. The starting point mistakes the scope of the duty of care and skews later analysis. The scope of the doctor’s duty to a patient is not necessarily limited to an obligation not to cause harm or injury. For example, in the case of a psychiatric patient it can extend to a duty to exercise reasonable care to prevent the patient from self-harm (Jones, Medical Negligence, Sweet & Maxwell, 2003 pp75, 355). Treatment and advice generally may relate to palliative care or the avoidance or retardation of a medical condition. A surgeon who negligently fails to perform a procedure to relieve a condition will be liable with respect to the reasonably preventable consequences of the ongoing medical problem.

112 A doctor who treats a woman who is pregnant or seeking to become pregnant owes her an undoubted duty of care. The doctor’s responsibility extends to the care of the foetus, a duty of care enforceable by the child if he or she is born alive (Watt v Rama [1972] VR 353, X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26, Burton v Islington Health Authority [1993] QB 204). Subject to the requirement of reasonable foreseeability, the latter duty extends to render the medical practitioner liable in negligence for injuries or disabilities suffered by a person in consequence of acts or omissions preceding that person's conception. In X and Y, a paediatrician who failed to diagnose syphilis in a woman during a previous pregnancy was held liable to a child later conceived to whom the syphilis was transmitted.

113 Before the child is born, the doctor's duty to the child is usually discharged by advice to and treatment of the mother. (Exceptional cases involving a possible conflict of interests as between mother and child or the situation that would be presented if the mother were incapable of consenting to treatment may be placed to one side.)

114 How a doctor discharges concurrent duties towards the mother and the child that is yet to be conceived or born depends on various matters, including the history provided by the mother, the information obtained by the doctor from other sources and the usual standards of medical practice. In the present appeals negligence is assumed in the separate questions stated for decision.

115 Ipp JA considers the interests of five categories of plaintiffs, including the appellants’ category. I respectfully agree that this approach is helpful, but I think that my colleague sees a non-existent antipathy between the mother’s interest that may justify abortion and the child’s interest in the present case. I agree that the law does not recognize any interest in the foetus in whether or not the pregnancy is terminated. But that is not the present issue. The perceived dichotomy of interests between mother and child is in fact a false one. The putatively negligent act of the doctors included failing to give the mothers advice with which they would have arranged to terminate their pregnancies. This, ex hypothesi, would have been in their best interest as well as the interests of Alexia and Keeden as advanced by them in the proceedings. It is agreed that Alexia’s mother would have arranged to terminate her pregnancy. I assume that Keeden’s mother would have considered doing the same if the respondents’ negligence had been picked up early enough. It is agreed (or assumed) that it was negligent for the mothers not to have been given this opportunity. Since, however, an element of the appellants’ claim is that they were born into a life of suffering, their interest is entirely congruent with that of their mothers in the matter at hand.

116 Subject to the significant legal complications that lie at the heart of these appeals, there is no reason in principle why the medical practitioners' negligence in the advice and treatment they gave the mothers cannot sound in damages being awarded to the appellants. The appellants were born alive and their disabilities were in one sense caused by the negligence of the respective doctors, who omitted to give advice and treatment to the mothers that would have prevented the suffering presently endured by the appellants. The case law referred to above shows that it is not essential that a plaintiff must be in existence as a legal personality at the time of the injury giving rise to the damage suffered. Product liability law takes a similar position.

117 The complaint raised by Alexia and Keeden is that they are severely afflicted and disabled. To say that the assumed negligence of the doctors preceded conception (in Keeden's case) or birth (in Alexia's case) provides no answer based upon the legal personality of the appellants, foreseeability or causation.

118 In McKay, Stephenson LJ simply walked past the duty and causation issues by stating (at 1178) that:

… 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.

119 Having thus defined the issue, his Lordship posed the question: “how can there be a duty to take away life? How indeed can it be lawful?” (at 1179). This drew him into a discussion about the lawfulness of abortion and the question whether “the foetus has a legal right to die” (at 1180). Sanctity of life principles were cited, leading to the conclusion that no relevant duty was owed to the child infected with rubella when a foetus.

120 Some of the American cases denying “wrongful life” claims also proceed from assertions that the defendant bore no causal responsibility for the plaintiff’s condition (see eg Lininger v Eisenbaum 764 P 2d 1202, 1212 (1988), the passage set out by Ipp JA).

121 I cannot accept this reasoning. To state that a person is inflicted with a (congenital) disease is no answer to a posited duty of care or the application of normal causation principles in relation to a treating doctor. If the doctor becomes involved and has the capacity to avoid or negate the disease by the exercise of reasonable care and skill then he or she will normally be held liable for the consequences of the breach of duty of care. This is commonplace in medical negligence litigation involving disabilities stemming from preventable or curable diseases that befall plaintiffs during their lifetime.

122 This still leaves the difficult issues lying at the heart of these appeals. Stephenson LJ addressed them separately in McKay and so shall I. But it is in my view quite wrong to do so from the starting point of regarding the doctor as having no causal responsibility, or treating the plaintiff child as asserting no more than a right to be killed or aborted or not to be born.

289 In summary, the measure of damages on the appellants’ argument is not one that would arrive at a sum of money which would put them in the same position as they would have been in had they not sustained the wrongs for which they are suing. The appellants’ argument was that, in the novel circumstances that exist, the law should fashion new tools to assess the appropriate amount of damages. Mr Walker submitted that the harm sustained by the appellants “is compensable to the extent the law can do it”. He said that the test for damages was a “tool, in order to achieve the realisation of a principle, which is the compensatory principle of corrective justice”. He said that the law should not allow the “tool” to control the application of principle in a case to which the principle applies but the tool fails “because it was made at a time which would never include the kind of situation this case presents”.

290 In Sutherland Shire Council v Heyman, Gibbs CJ (at 441) commented on cases other than those where the facts fall into a category already recognised by the authorities as attracting a duty of care, the scope of which is settled. His Honour said, in regard to those relatively novel cases:

“In deciding whether the necessary relationship exists, and the scope of the duty which it creates, it is necessary for the court to examine closely all the circumstances that throw light on the nature of the relationship between the parties.”

291 In Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173, Spigelman CJ said (at 187):

“[T]his is a case in which it is appropriate to identify the interests which are said to require the protection of law (see Modbury Triangle Shopping Centre Pty Limited v Anzil at 262 [14]; Perre v Apand (at 251 [191]); Reynolds v Katoomba RSL All Services Club Limited [2001] 53 NSWLR 43 at 45 [9]-[18].)”

292 While the duty, in general terms, owed by a medical practitioner and a hospital not to cause injury to a patient is well-settled, the duty contended for, namely, one owed to a person born disabled that, in its scope, would require the practitioner to have taken steps that would have resulted in the disabled person not being born at all, is novel. Accordingly, this is also a case “in which it is appropriate to identify the interests which are said to require the protection of law”.

293 Mr Walker submitted that the duty of care owed by the respondents to the appellants was to give the appellants’ parents an opportunity to make an informed decision about terminating the respective foetuses. In my view, however, a more accurate description of the scope of the duty contended for would be “to give the parents an opportunity of terminating the foetus while it is in utero”. Whatever the true scope might be, in my view the interest which the appellants assert is an interest in their mothers having had an opportunity of preventing their birth.

294 In considering the interest claimed by the appellants, there are, I think, five different sets of circumstances (including the set of circumstances giving rise to the appellants’ claims) that give rise to interests that, while superficially similar, are distinguishable from each other. It is helpful to examine them. The differences illustrate why the law does not recognise an interest of the kind asserted by the appellants but, as regards the other four sets of circumstances, accepts that interests arise that are entitled to protection.

295 The first set of circumstances is that which results in injury to the foetus. The law, as Mason P points out at [112], recognises the interest of the disabled child to sue for injuries of that kind.

296 The second is that which justifies a lawful abortion. The interest that is recognised here is that of the mother, not the child.

297 The third is that which results in the court ordering life support systems to be removed from a severely disabled person. The interest in question is that of the disabled person.

298 The fourth is that which allows the parents of a severely disabled child, born in circumstances akin to those under which the appellants were born, to claim the financial cost of rearing and maintaining the child. It is common ground that such an interest is recognised by the law. The interest is that of the parents.

299 The fifth is that which concerns the appellants, namely where the child claims an interest in a medical practitioner affording its parents the opportunity of terminating the foetus from which it developed. The law has not yet recognised such an interest.

300 I turn, firstly, to the distinction between the first set of circumstances (namely, where injuries are sustained by the foetus in utero) and the interest asserted by the appellants.

301 In my view, the principal distinction is that, unlike the position with regard to the interest claimed by the appellants, no part of the interest of a plaintiff who claims damages caused by injuries suffered in utero involves the proposition that the foetus should have been terminated.

302 The appellants are required to assert, as part of their cause of action, that, as a matter of causation, had the respondents not been negligent, they would not be alive in their disabled condition. But no such allegation forms part of the cause of action of a plaintiff suing for damages for injuries caused to the foetus in utero.

303 The need on the part of the appellants to allege and prove, that – but for the respondents’ negligence – they would not be alive in their disabled condition, is significant. The significance lies in the fact that the principle of the sanctity of life stands as an obstacle to the existence of a duty of care owed to a child to take steps that might lead to the child not being born. The principle is not absolute (Cattanach v Melchior at 153-155 and 171; Airedale NHS Trust v Bland at 864), but it is weighty.

304 There is a further significant distinction. In order to prove that, but for the respondents’ negligence, the appellants would not have been born, the appellants would have to prove that their mothers would have terminated their pregnancy lawfully. A mother is only able to terminate her pregnancy lawfully if she has an honest belief on reasonable grounds that an abortion would be necessary to preserve her from serious danger to her life or physical or mental health, which the continuance of the pregnancy would entail: CES v Superclinics (Australia) PtyLimited (1995) 38 NSWLR 47 at 59-60, 80. This element of the mother’s interest forms no part of the claim for damages by a child for injuries caused to the foetus in utero.

305 I would add that, in the case of a plaintiff suing for injuries caused in utero (unlike the case of the appellants), the claim is based on the established compensatory principle.

306 I turn now to the distinction between the second set of circumstances (namely, where a mother takes lawful steps to terminate the foetus) and the interest asserted by the appellants.

307 The law accords the mother alone the right to decide whether the pregnancy should be terminated. See in this regard the decision of the Full Court of the Supreme Court of Queensland in Attorney General(Qld) (Ex rel Kerr) v T (No 1) (1983) 8 Fam LR 871 at 873-874.

308 The foetus has no rights in this respect. In Paton v British PregnancyAdvisory Service Trustees [1979] QB 276 Sir George Baker P said (at 279):

“The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country (I except the criminal law …) and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia and, I have no doubt, in others.”

309 In R v King [2003] NSWCCA 399 Spigelman CJ (with whom Dunford and Adams JJ agreed) said that for the purposes of the civil law, including the parens patriae jurisdiction and the law of torts, the position is as stated in Paton (see at [73] et seq; see also Attorney General (Qld) (Ex rel Kerr) v T (No 1) at 873 and Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285 at 286 per Gibbs CJ).

310 In Attorney General (Qld) (Ex rel Kerr) v T (No 1) it was pointed out (at 873) that, if the foetus had rights recognised by the law and, in particular, a right to prevent an abortion, then the father “is an appropriate person to set the machinery of the law in motion”. But the Court held that the foetus (and, hence, the father) had no right to bring a claim for an order that would prevent its termination.

311 The rule that the foetus cannot invoke the protection of the law against its own termination underlines the difference between the interests of the mother in terminating her pregnancy and that claimed by the appellants.

312 Again, there is the further factor that a mother is only able to terminate her pregnancy lawfully if she has an honest belief on reasonable grounds that an abortion would be necessary to preserve her from serious danger to her life or physical or mental health. Thus, the interest involved in the case of a lawful abortion is the interest of the mother, not the child.

313 I turn now to the distinction between the third set of circumstances (namely where the court orders life support systems to be removed from a severely disabled person) and the interest asserted by the appellant.

314 I have discussed this distinction above under the heading “Non-existence as a comparator”. As Taylor LJ said In re J (A Minor) (Wardship: Medical Treatment) (at 53), the court never sanctions steps to terminate life. His Lordship observed,

“The court is concerned only with the circumstances in which steps should not be taken to prolong life.”

In re J (A Minor) (Wardship: Medical Treatment)

Airedale NHS Trust v Bland

Re B (Adult: Refusal of Medical Treatment)

315 Finally, there is the distinction between the interest of parents of a severely disabled child in recovering their expenses in bringing up and maintaining the child and the interest claimed by the appellants.

316 The parents’ claim for such expenses rests on the basis that the medical practitioner caused the parents financial harm which, by Cattanach v Melchior, is recoverable in law. The interest of the parents is essentially financial.

317 The interest claimed by the appellants, on the other hand, involves a person’s right not to be born or a right to be born without disability (which implies the existence of a right on the part of the child to have the congenitally impaired foetus, from which the child developed, terminated prior to birth). The difficulties facing such a claim (to which I have referred when discussing the rule that the foetus cannot invoke the protection of the law against its own termination) do not apply to the parents’ claim.

318 A further distinction, that is also important, is that the interest of the parents involves financial loss determined in accordance with established principles, whereas the interest of the appellants involves damage that is not capable of being so determined.

319 In my view, the distinctions that are to be drawn between the interest claimed by the appellants and those discussed above are sound reasons for the law to refuse to accord recognition to the interest claimed by the appellants.

320 In Becker v Schwartz 413 NYS 2d 895 (1978), the New York Court of Appeal stated (at 900):

“… 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 [precedent] at common law or in statutory enactment for the 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?”

I would endorse these remarks.
Policy and the “compensatory principle of corrective justice”

321 The appellants in the present appeals eschew any reliance on policy. They submit that their claims should succeed on the application of the ordinary principles of negligence. I have attempted to demonstrate that, on the application of those principles, namely, the compensatory principle and the principle that damage is the gist of the action for negligence, the appellants cannot succeed. The reality is that, in substance, the appellants’ arguments are based on policy, the same policy that underlies cases such as Procanik v Cillo and Zeitzoff v Katz.

322 Despite the appellants’ express disavowal of any recourse to policy, it remains to consider whether policy considerations warrant a material deviation from established principle.

323 I have described above, under the heading “The appellants’ answer to the compensatory principle”, the appellants’ argument. This is said to derive from what they submit to be the “compensatory principle of corrective justice”, namely, that the law should fashion a means for assessing damages different to that laid down by established principle in Livingstone v Rawyards Coal Company and cases such as Haines v Bendall. The appellants’ policy argument relies on “corrective justice”.

324 Professor Atiyah has exposed as a myth the proposition that tort law is a system of corrective justice. The topic is examined with clarity and perception in his article, “Personal Injuries in the 21st Century: Thinking the Unthinkable”, in P Birks (ed), Wrongs and Remedies in the 21st Century (Clarendon Press, Oxford, 1996).

325 In that article, Professor Atiyah says (at 12):

“Personally I have the greatest possible difficulty in seeing personal injury tort law, as it operates today, as a system of corrective justice, for one simple reason. Although tort liability is in theory generally predicated on the fault of some guilty individual, that person hardly ever pays a single penny of the damages which are awarded.” [footnote omitted]

326 Professor Atiyah explains (at 13) that, in some respects, the law mandates this state of affairs (for example, third party insurance relating to motor vehicle accidents and employer’s liability). In other instances it is the effect of legal and practical provisions, for example, vicarious and corporate liability, and limitations on the liability of the Crown and public authorities such as the police.

327 Then of course there is indemnity insurance. Most organisations and individuals today are protected in some form or another by public liability insurance. While there may be an excess payable under a particular policy, the vast majority of negligence claims are met by insurance companies, and this is particularly so in the field of professional negligence. As claims are increasingly successful and large amounts of damages are awarded, premiums rise and insurance becomes more difficult to obtain. The social implications of this phenomenon are infinite and serious. Not least, the cost of the payment of damages to individual plaintiffs is borne, eventually, by the community, in general, and those who pay increased premiums, in particular.

328 As Professor Atiyah points out (at 15), even when a corporation (or public body) is held liable to pay damages, or is obliged to pay insurance premiums against that possibility, the cost ultimately falls on persons such as employees, managers and shareholders, consumers and the general public.

329 He concludes (at 17) that:

“The notion that tort law requires negligent individuals to pay for the consequences of their negligence is patently untrue. At every stage of the proceedings the practical operation of the legal and insurance system effectively shields the wrongdoer from any personal consequences following his actions.” [footnote omitted]

330 Professor Atiyah goes on (at 22) to observe that “those accident victims who receive damages are frequently just plain lucky, in comparison with many other victims of accidents or similar misfortunes”.

331 Professor Atiyah, after describing various anomalies and respects in which tort law seems to be “hopelessly unfair”, and demonstrating that the tort system is not an appropriate system of distributive justice, remarks (at 26) that if the cost of misfortunes is to be spread, “the spreading must surely be done according to some rational principles, not just in the arbitrary and haphazard way that tort law works today.”

332 A final aspect of Professor Atiyah’s article, of pointed relevance to the issues in these appeals, is his observation (at 10) that:

“If third party insurance for personal injuries is increasingly understood to resemble a welfare benefit it will surely come to seem amazing that judges are able to increase the benefits without any kind of control on the total cost to the community.”

333 Equally pertinent is the observation (at 10-11):

“Few lawyers in England probably perceive the connection between tort liability and the welfare state in the way I have sketched, and even among those who understand and sympathise with the need to control the social security budget, probably the great majority remain happily convinced that tort liabilities can and should continue to expand more or less indefinitely. There appears to be no recognition that expansion of personal injury law, or higher damages in personal injury cases, even if desirable in themselves (which is of course highly arguable) involve changes which must compete for resources with other claims on society.”

334 Professor Luntz op cit at paragraphs 1.1.12 to 1.1.16 echoes, strongly, the views expressed by Professor Atiyah.

335 In my view, the opinions expressed by Professor Atiyah and Professor Luntz are compelling. They demonstrate that idiosyncratic attempts to extend liability in tort law by fundamentally changing established principles and rules, motivated as they are by sympathy for plaintiffs, come at an immeasurable cost to the community, and involve judicial legislation that will ultimately result in loss of respect for the law.

336 In my opinion, no considerations of corrective (or distributive) justice justify altering the established compensatory principle laid down in Livingstone v Rawyards Coal Company and Haines v Bendall.

337 Generally speaking, at the present time, when legislatures throughout the country have legislated or have foreshadowed legislation restricting liability for negligence (see Spigelman CJ, “Negligence and Insurance Premiums: Recent Changes in Australian Law” (2003) 11 Torts Law Journal 291; Commonwealth of Australia, Reform of Liability Insurance Law in Australia, February 2004), it would be quite wrong to expand, by judicial fiat, the law of negligence into new areas.

338 I would add, moreover, that discoveries and potential discoveries in the field of genetics should make courts cautious in altering established principle so as to accommodate claims for wrongful life. At this stage of genetic science it is simply not possible to know what consequences would follow from the making of such changes.

339 Geneticists are now able to detect genes in the human body that give rise to risks of certain diseases materialising at various stages of an individual’s life. According to an Information Paper issued by The National Health and Medical Research Council in February 2000, entitled Ethical Aspects of Human Genetic Testing (at 11):

“Testing for monogenic adult-onset disorders can also be performed during pregnancy to determine whether the foetus will, after a healthy childhood and early adult life, develop the disorder in question in mid-late adult life.”

340 According to the Information Paper (at 17):

“A prenatal test may be performed because it is known that the foetus is at increased risk of having a particular disorder, as for example when the parents have had an affected child previously, or are both known to be carriers of a recessive disorder or when a woman is older and at increased risk of conceiving a child with Down syndrome. The procedures used to obtain foetal cells for testing are chorionic villus sampling (CVS), amniocentesis and occasionally foetal blood sampling (cordocentesis); ...

Prenatal tests may also be performed as a population screening test such as when all pregnant women are offered maternal serum screening to determine if their foetus is at increased risk of having spina bifida or Down Syndrome, or ultrasound screening for malformations in the foetus.”

341 The Information Paper refers (at 30) to the possibility of prenatal diagnostic testing in populations where particular groups are known to be susceptible to certain genetic diseases. Examples given are the Tay-Sachs disease in the Jewish community or beta-thalassaemia in communities having their origins around the Mediterranean.

342 As the Information Paper notes (at 11) “[i]nformation gained from predictive and prenatal tests can prompt profound questions about what constitutes a worthwhile human life …”.

343 The Information Paper notes further (at 13):

“These developments in genetics pose ethical questions for individuals and families, as well as for society. Some arise from the nature of genes and genetic information, which are at the same time both personal and shared with family members and, in many cases, with people outside the family e.g. with members of an ethnic group. Other questions arise from the fact that until now, individuals and society have not had to deal with predictive information of such quantity and accuracy and there is no considered community view about access to, and use of, predictive genetic information by family members and people or organisations outside the family.

There is concern about the possibility of stigmatisation and unfair discrimination based on genetic information.”

“The psycho-social consequences of predictive and carrier testing of children are unknown.”

344 According to Mattick, “The Human Genome and the Future of Medicine” (2003) 179 Medical Journal of Australia 212 (at 214):

“[G]enetic tests have been used widely and effectively to reduce the incidence of some genetic diseases (notably thalassaemia) in some communities, although this raises ethical issues on which there are different views in society.”

345 According to the learned author (at 214), advances in DNA diagnostic technologies should make prenatal genetic testing a reality within a few years, and “lead to widespread prenatal screening for common genetic disorders, including chromosomal abnormalities and familial diseases”. The author says that the technology of DNA-based diagnostics “is already well-advanced” and “is developing incredibly quickly”. He emphasises (at 215) that, “underlying many of these particular issues are deeper ethical and philosophical tensions”.

346 Geneticists are working on the discovery and identification of genes that may affect human behaviour, for example, a gene that results in a tendency to violence. There is, or may be, a risk that genes of this kind could be transmitted to children.

347 As geneticists and medical practitioners constantly warn, the ethical and legal difficulties that will arise from this novel area of human endeavour are infinite and are as yet unfathomable. Some more obvious questions come to mind: will children be able to sue medical practitioners who fail to advise their parents that, for genetic reasons, they might become seriously disabled when, say, 35 years of age? Or that, for genetic reasons, they might be prone to serious depression? Or that they might be genetically programmed to commit acts of criminal violence? And what will be the duties of medical practitioners to carry out genetic testing? These difficult questions show the potentially far-reaching and incalculable reach of the changes to principle for which the appellants, in effect, contend. Many of these questions raise issues of privacy, confidentiality and psychological harm that, at the present time, cannot properly be understood. It follows that the implications of any changes to the framework of liability for negligence, capable of expanding liability for acts or omissions relating to predictive genetic testing, cannot properly be understood. I do not think that these considerations can be dismissed as being a mere “floodgates” argument.

348 I have pointed out that an essential element of the appellants’ cause of action is proof that, but for the respondents’ negligence, they would not be alive in their disabled condition. In my opinion, the principle of the sanctity of life is a further policy factor that militates against the recognition of a duty of care owed to a child to take steps that might lead to the child not being born.

349 Finally, as regards matters of policy, the law already affords a remedy for damage brought about by medical negligence resulting in the birth of disabled children. That remedy is the action available to the parents of such children by which they can claim the financial expenses of raising and maintaining the children. In other words, damages of the kind recognised in Cattanach v Melchior. As Gleeson CJ observed in that case (at 141), there is no reason to suppose that the adverse financial consequences to the parents will cease when disabled children turn 18, and there is no reason to restrict parents to claims for the foreseeable adverse financial consequences until the age of 18 (see also his Honour’s remarks in this respect at 137 and 139). The existence of the parents’ remedy underlies the following remarks in Walker v Mart (at 740):

“Because defendants negligently failed to provide the parents with information that would have prompted [the mother] to exercise her right to terminate the pregnancy, any wrong that was done was a wrong to the parents, not to the [foetus].”

350 In my view, policy does not justify a re-fashioning of the principle 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 tort had not been committed.

351 In the circumstances, I consider that Studdert J correctly found that the respondents in each case did not owe a duty of care to Keeden and Alexia, respectively, of the kind asserted.

352 In view of the conclusion to which I have come, it is not strictly necessary for me to deal with causation. The issue was, however, fully argued and I shall express my views as to the argument raised.

353 On the respondents’ argument, Alexia’s pain and suffering and loss of amenities and needs for health care were caused by the rubella, for which Dr P R Stephens had no historical responsibility, and Keeden’s pain and suffering and other losses were caused by Mr Waller’s AT3 deficiency. This view is epitomised by the observation of Stephenson LJ in McKay vEssex Area Health Authority at 1181 when discussing whether the defendants had injured the disabled child. His Honour said:

“All they have done is not having taken steps to prevent [the disabled child] being born injured by another cause.”

“What the doctor is blamed for is causing or permitting her to be born at all.”

354 As I understand the argument advanced on the appellants’ behalf, their pain and suffering, loss of amenities and need for health care were a consequence of them being born. This argument recognises that the respondents did not directly cause their disabilities and their consequences. The appellants’ argument as to damage and causation is that the respondents materially contributed to their birth and, hence, to them being alive in a disabled condition. On this argument the appellants’ very existence constitutes the source of their damage. The primary causative link relied upon is that between the conduct of the respondents and the existence of the appellants.

355 While the appellants accept that the respondents did not cause their disabled condition, they argue that the respondents caused them to be born and, hence, to suffer by reason of their disabled condition (which they did not bring about).

356 In my opinion, the two-limbed test applied in Tambree v Travel Compensation Fund [2004] NSWCA 24 and Harvey v PD [2004] NSWCA 97 is of application in this case.

357 The first limb of this test concerns the factual aspect of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, which is the subject of the claim. The question to be asked is whether the omissions of the respondents were a historical (factual) cause of the appellants’ damage.

358 This is not ordinarily a difficult issue, but I have found it so in the present circumstances. The problem is while the respondents’ conduct led to the appellants’ birth, that conduct did not have any effect on the foetus in each case. The disabilities from which the appellants suffer could not have been prevented by any action presently known to medical science. Nothing the respondents did resulted in the existence of the disabilities. Rather, the conduct of the respondents resulted in the birth of the appellants with disabilities.

359 The application of the “but for” test results in the same answer. The negligence of the appellants had no bearing on the existence or otherwise of the disabilities. On the other hand, but for the negligence of the respondents the appellants would not have been born with disabilities.

360 To answer the question posed by the first limb, the precise nature of the appellants’ damage must be identified. I think that the true damage is being born with disabilities. For the purposes of identifying the damage or loss, the fact of being born cannot be separated from the disabilities.

361 Once the damage is identified in this way, the answer to the first limb of the test must be in the affirmative; the respondents caused the appellants’ loss by causing them to be born in a disabled condition.

362 I would interpose here that this view of the appellants’ loss, in my view, is fatal to their case on duty of care (for the reasons I have expressed based on the compensatory principle and the gist of the action for negligence principle). But it does result in them succeeding on this part of the causation issue.

363 The second limb of the two-limbed test involves the application of normative considerations. For the reasons set out under the heading “Policy and the ‘Compensatory Principle of Corrective Justice’”, I would not hold that the respondents are liable for the appellants’ damage.

364 Alexia’s grounds of appeal assert that Studdert J erred in not finding that she had a cause of action as a beneficiary of a contract between Dr P R Stephens and her mother.

365 Keeden did not raise a like argument and Mr Walker, on behalf of Alexia, did not mention the argument in his oral submissions.

366 Studdert J dealt with the issue as follows:

“Mr Segal advanced the submission that the Court should recognise the existence of a trust of any contractual promise expressed by the defendant to the plaintiff’s mother, and he submitted the existence of a trust can be inferred from the circumstance that any contract with the plaintiff’s mother was made for the benefit of the plaintiff. I was referred to the joint judgment of Mason CJ and Wilson J in Trident General Insurance Co. Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 120-121 in support of this submission.

The agreed statement of facts does not permit me to find any such trust and I find no basis for any contractual obligation in the defendant towards the plaintiff. …

For these reasons the claim in contract must fail.”

367 In my view, the reasoning of Studdert J is correct. I would not uphold this ground of appeal.

368 I would dismiss each appeal with costs.

**********

Last Modified: 04/30/2004

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Citations

Harriton v Stephens [2004] NSWCA 93

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CITATION:	Harriton (by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan [2004] NSWCA 93
HEARING DATE(S):	04/09/03
JUDGMENT DATE:	29 April 2004
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 57; Ipp JA at 170
DECISION:	(CA 40542/02; CA 40656/02; CA 40657/02): Each appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - WRONGFUL LIFE - Whether respondents owed duty of care to appellants to provide appellants' mothers with necessary information to enable an informed choice to be made in regard to termination of pregnancy - Whether harm suffered by appellants is recoverable in law - Compensatory principle - Damages as the gist of the cause of action - Non-existence as a comparator - Whether policy considerations justify refashioning of compensatory principle - Whether the omissions of the respondents caused the appellants' disabilities - CONTRACTS - Whether appellant is beneficiary of a contract between mother and respective respondent. D
LEGISLATION CITED:	Civil Liability Act 2002, Pt 11, ss 70-71 Limitation Act, 1969 Supreme Court Rules, Pt 31 r 2
CASES CITED:	Admiralty Commissioners v SS Susquehanna [1926] AC 655 Admiralty Commissioners v SS Valeria ("the Valeria") [1922] 2 AC 242 Airedale NHS Trust v Bland [1993] AC 789 Arndt v Smith [1994] 8 WWR 568 Attorney General (Qld) (Ex rel Kerr) v T (No 1) (1983) 8 Fam LR 871 Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285 Auckland Area Health Board v Attorney-General (NZ) [1993] 1 NZLR 235 Baker v Bolton (1808) 1 Camp 493, 170 ER 1033 Bannerman v Mills (1991) Aust Torts Rep 81-079 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Becker v Schwartz 413 NYS 2d 895 (1978) British Transport Commission v Gourley [1956] AC 185 Bunyan v Jordan (1937) 57 CLR 1 Burton v Islington Health Authority [1993] QB 204 Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185 Caltex Oil (Australia) Pty Limited v The Dredge "Willemstad" (1976) 136 CLR 529 Capital and Counties Plc v Hampshire County Council [1997] QB 1004 Caparo Industries Plc v Dickman [1990] 2 AC 605 Cattanach v Melchior (2003) 199 ALR 131; 77 ALJR 1312 CES v Superclinics (Australia) Pty Limited (1995) 38 NSWLR 47 Cran v State of New South Wales [2004] NSWCA 92 Deyong v Shenburn [1946] KB 227 Dobson v Dobson [1999] 2 SCR 753 Donoghue v Stevenson [1932] AC 562 Edwards v Blomeley [2002] NSWSC 460 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 Gala v Preston (1991) 172 CLR 243 Gardner; Re BVW [2003] VSC 173 Giannarelli v Wraith (1988) 165 CLR 543 Gillespie v Steer (1973) 6 SASR 200 Gleitman v Cosgrove 49 NJ 22 (1967) Goodburn v Thomas Cotton Ltd [1968] 1 QB 845 Grant v Australian Knitting Mills Ltd [1936] AC 85 Haines v Bendall (1991) 172 CLR 60 Harbeson v Parke-Davis Inc 656 P 2d 483 (1983) Harriton v Stephens [2002] NSWSC 461 Harvey v PD [2004] NSWCA 97 Hollebone v Greenwood (1968) 71 SR(NSW) 424 Husher v Husher (1999) 197 CLR 138 In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 In re B (Termination of contact: Paramount consideration) [1993] 3 WLR 63 In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 In re J (A Minor) (Child in Care: Medical Treatment) [1993] Fam 15 In re J (A Minor) (Wardship: Medical Treatment [1991] Fam 33 Jaensch v Coffey (1984) 155 CLR 549 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 Johnson v Perez (1988) 166 CLR 351 Jones (Guardian ad litem of) v Rostvig (1999) 44 CCLT (2d) 313 (BCSC) J R Munday Ltd v London County Council [1916] 2 KB 331 Kars v Kars (1996) 187 CLR 354 Kassama v Magat 767 A 2d 348 (2001) Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 Kosky v The Trustees of the Sisters of Charity [1982] VR 961 Lacroix (Litigation Guardian of) v Dominique (2001) 202 DLR (4th) 121 Liesbosch Dredger (Owners Of) v Owners of SS Edison ("the Liesbosch Dredger") [1933] AC 449 Lininger v Eisenbaum 764 P 2d 1202 (1988) Livingstone v Rawyards Coal Company (1880) 5 App Cas 25 Lynch v Lynch (by her Tutor Lynch) (1991) 25 NSWLR 411 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 McFarlane v Tayside Health Board [2000] 2 AC 59 McKay v Essex Area Health Authority [1982] QB 1166 Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26 Nelson v Krusen 678 SW 2d 918 (1984) Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 O L L Ltd v Secretary of State for Transport [1997] 3 All ER 897 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd ("the Wagon Mound") [No 1] [1961] AC 388 Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 Perre v Apand Pty Limited (1999) 198 CLR 180 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 Procanik v Cillo 478 A 2d 755 (1984) P's Curator Bonis v Criminal Injuries Compensation Board (1997) SLT 1180 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449 Re G [1997] 2 NZLR 201 R v King [2003] NSWCCA 399 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 Registrar of Titles v Spencer (1909) 9 CLR 641 Reynolds v Katoomba RSL All Services Club Limited [2001] 53 NSWLR 43 Sharman v Evans (1977) 138 CLR 563 Sullivan v Moody (2001) 207 CLR 562 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Sutcliffe v Thackrah [1974] AC 727 Tambree v Travel Compensation Fund [2004] NSWCA 24 Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 Teubner v Humble (1962) 108 CLR 491 Thatcher v Charles (1961) 104 CLR 57 The Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Thorne v University of London [1966] 2 QB 237 Todorovic v Waller (1981) 150 CLR 402 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Turpin v Sortini 643 P 2d 954 (1982) Veivers v Connelly (1994) Aust Torts Reports 81-309 Volpato v Zachory [1971] SASR 166 Walker v Mart 790 P 2d 735 (1990) Waller v James [2002] NSWSC 462 Watson, Laidlaw and Co Limited v Pott, Cassels and Williamson (1914) 31 RPC 104 Watt v Rama [1972] VR 353 Watts v Rake (1960) 108 CLR 158 Willcock v Andrews (1965) WAR 129 Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843 Williams v State 223 NE 2d 343 (1966) Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26 Zeitzoff v Katz [1986] 40(2) PD 85 Zepada v Zepada 190 NE 2d 849 (1963)
PARTIES :	CA 40542/02 Alexia Harriton (by her tutor George Harriton) (Appellant) Paul Richard Stephens (Respondent) CA 40656/02 Keeden Waller (by his tutor Deborah Waller) (Appellant) Christopher James (First Respondent) Sydney IVF Pty Limited (Second Respondent) CA 40657/02 Keeden Waller (by his tutor Deborah Waller) (Appellant) Brian Hoolahan (First Respondent)
FILE NUMBER(S):	CA 40542/02; 40656/02; 40657/02
COUNSEL:	(CA 40542/02) B Walker SC/G P Segal (Appellant) P Brereton SC (Respondent) (CA 40656/02) P W Bates SC (Appellant) P Brereton SC (First & Second Respondents) (CA 40657/02) P W Bates SC (Appellant) P Brereton SC (Respondent)
SOLICITORS:	(CA 40542/02) Maurice Blackburn Cashman (Appellant) Blake Dawson Waldron (Respondent) (CA 40656/02) Autore & Associates (Appellant) Blake Dawson Waldron (First & Second Respondents) (CA 40657/02) Autore & Associates (Appellant) Blake Dawson Waldron (Respondent)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20558/01; SC 20527/01
LOWER COURT JUDICIAL OFFICER :	Studdert J