Harriton v Stephens

Case [2004] NSWCA 93

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…

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AGLC
Harriton v Stephens [2004] NSWCA 93
Case
[2004] NSWCA 93
Decision Date

CaseChat Overview and Summary

The case of *Harriton v Stephens* concerned appeals brought by three appellants against the respondents, who were medical practitioners. The appellants alleged that the respondents had been negligent in failing to provide their mothers with sufficient information regarding a genetic condition, which, had it been known, would have led to the termination of the pregnancies. The appellants claimed that as a result of this alleged negligence, they were born with disabilities and sought damages for wrongful life. The appeals were heard by the Court of Appeal of New South Wales, comprising Spigelman CJ, Mason P, and Ipp JA.

The central legal issues before the Court of Appeal were whether the respondents owed a duty of care to the appellants to provide their mothers with information enabling an informed choice about pregnancy termination, and whether the harm suffered by the appellants, namely their existence with disabilities, was recoverable in law. The Court also considered whether the appellants could be beneficiaries of any contract between their mothers and the medical practitioners, and whether policy considerations justified a departure from established principles of tortious liability. A further issue was whether the alleged omissions by the respondents had caused the appellants' disabilities.

The Court of Appeal ultimately dismissed each appeal. The majority reasoned that the law of negligence does not recognise a cause of action for "wrongful life" because it would require the court to compare the appellants' existence with a disability to a state of non-existence, a comparison that is logically impossible and contrary to the fundamental compensatory principle of tort law. The Court held that damages are awarded to compensate for loss or harm, and that the "harm" of being born with a disability cannot be compensated by awarding damages for the loss of a non-existent life. Furthermore, the Court found that the alleged omissions did not cause the appellants' disabilities, but rather the disabilities themselves were the condition of their birth. The contractual claims were also dismissed.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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