Harriton v Stephens

[2002] NSWSC 461

CITATION:	Harriton v Stephens [2002] NSWSC 461
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20558/01
HEARING DATE(S):	11-12 March 2002
JUDGMENT DATE:	12 June 2002
PARTIES :	Alexia Harriton by her tutor George Harriton (Plaintiff) Paul Richard Stephens (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	G. Segal (Plaintiff) P.R. Garling SC/S. Woods (Defendant)
SOLICITORS:	Maurice Blackburn Cashman (Plaintiff) Blake Dawson Waldron (Defendant)
CATCHWORDS:	NEGLIGENCE - rubella during pregnancy - whether duty of care owed by the medical practitioner attending on mother to child subsequently born - if so, content of duty - child born profoundly disabled due to rubella virus - whether breach of duty of care to child - causation of infection in utero not by reason of neglect on part of defendant. "WRONGFUL LIFE" claim - whether maintainable - impossibility of determining whether "damage" suffered - impossibility of assessing compensatory damages - public policy considerations.
LEGISLATION CITED:	Limitation Act, 1969
CASES CITED:	Atlanta Obstetrics & Gynecology Group v Abelson 398 S.E.2d 557 (Ga. 1990) Azzolino v Dingfelder 337 S.E.2d 528 (N.C. 1985) Beardsley v Wierdsma 650 P.2d 288 (Wyo. 1982) Becker v Schwartz 386 N.E.2d 807 (N.Y. 1986) Blake v Cruz 698 P.2d 315 (Idaho 1984) Bruggeman v Schimke 718 P.2d 635 (Kan. 1986) Bryan v Mahoney (1994-95) 182 CLR 609 Burton v Islington Health Authority; De Martell v Merton & Sutton Health Authority (1992) 3 All ER 833 CES v Superclinics (Australia) Pty Limited (1995-96) 38 NSWLR 47 Cowe v Forum Group, Inc. 575 N.E.2d 630 (Ind. 1991) Curlender v Bio-Science Labs 106 Cal. App. 3d 811, 165 Cal.Rptr 477 De Martell v Merton & Sutton Health Authority (1992) 3 All ER 833 Dumer v St Michael's Hosp. 233 N.W.2d 372 (Wis. 1975) Edwards v Blomeley [2002] NSWSC 460 Elliott v Brown 361 So. 2d 546 (Ala. 1978) Ellis v Sherman 515 A 2d 1327 (Pa. 1986) Emeh v Kensington & Chelsea & Westminster Health Authority (1985) QB 1012 Flanagan v Williams 623 N.E. 2d 185 (Ohio Ct App. 1993) Frost v Chief Constable of South Yorkshire Police (1999) 2 AC 455 Garrison v Medical Ctr of Del. Inc. 581 A.2d 288 (Del. 1989) Gleitman v Cosgrove (1967) 227 A 2d 689 Greco v United States 893 P.2d 345 (Nev. 1995) Harbeson v Parke-Davis Inc. 656 P 2d 483 Hayne v Nyst (unreported, Williams J, Qld Supreme Court, 7 October 1995) Haynes v Bendall (1991) 172 CLR 60 Kassama v Magat (Court of Special Appeals of Maryland, February 2001) Kush v Lloyd 616 So. 2d 415 (Fla. 1992) Lacroix v Dominique [2001] MBCA 122 Lininger v Eisebaum 764 P 2d 1202 (Colo. 1988) Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 McFarlane v Tayside Health Board (2000) 2 AC 59 McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166 Melchior & Anor v Cattanach & Anor [2001] QCA 246 Nelson v Krusen 678 S.W. 2d 918 (Tex. 1984) Parkinson v St James & Seacroft University Hospital (2001) 3 All ER 97 Perre v Apand Pty Limited (1999) 198 CLR 180 Perruche, Cour de Cassation, France (17 November 2000) Petre v Opelousas Gen. Hosp. 517 So. 2d 1019 (La. Ct App. 1987); 530 So. 2d 1151 (La. 1988) Phillips v United States 508 F Supp 537 Procanik v Cillo (1997) NJ 339; 478 A 2d 755 Quinn v Blau (Superior Court of Connecticut, 12 December 1997) Rees v Darlington Memorial Hospital NHS Trust (2002) EWCA Civ. 88 Siemieniec v Lutheran Gen. Hosp. 512 N.E. 2d 691 (Ill. 1987) Skelton v Collins (1966) 115 CLR 94 Smith v Cote 513 A. 2d 341 (N.H. 1986) Strohmaier v Associates in Obstetrics & Gynecology, P.C. 332 N.W. 2d 432 (Mich. Ct App. 1982) Thake v Maurice (1986) QB 644 Trident General Insurance Co. Limited v McNiece Bros Pty Limited (1988) 165 CLR 107 Turpin v Sortini 643 P 2d 954 Udale v Bloomsbury Area Health Authority (1983) 1 WLR 1098 Viccaro v Milunsky 551 N.E. 2d 8 (Mass. 1990) Vievers v Connolly (1995) 2 Qd R 325 Walker by Pizano v Mart 790 P. 2d 735 (Ariz. 1990) Waller & Ors v James & Ors [2002] NSWSC ?? Watt v Rama (1972) VR 353 Wilson v Kuenzi 751 S.W. 2d 741 (Mo. 1988) X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 Assessment of Damages for Personal Injury and Death, Luntz, 4th ed. The Law of Torts in Australia, Trindade & Cane, 3rd ed. The Law of Torts, Fleming, 9th ed.
DECISION:	See para 82.

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

STUDDERT J

Wednesday 12 June 2002

20558/01 ALEXIA HARRITON (by her tutor George Harriton) v PAUL RICHARD STEPHENS

JUDGMENT

1 HIS HONOUR: In this cause the plaintiff, Alexia Harriton, by her tutor George Harriton, sues Paul Stephens seeking damages for negligence.

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

(1) If the defendant failed to exercise reasonable care in his management of the plaintiff’s mother and, but for that failure the plaintiff’s mother would have obtained a lawful termination of the pregnancy, and as a consequence the plaintiff would not have been born, does the plaintiff have a cause of action against the defendant?

(2) If so, what categories of damages are available?

3 I entertained submissions in this matter and in two other cases in which similar issues fell to be decided on 11 and 12 March last. The other matters were Edwards v Blomeley [2002] NSWSC 460 and Waller & Ors v James & Ors [2002] NSWSC 462. Each of these three cases of course has required discrete consideration, although common issues arise, and it will be necessary in this case to consider matters already addressed in Edwards.

4 In the original statement of claim, the plaintiff’s case was pleaded only in negligence. However, on 8 March 2002 the plaintiff filed in Court and was permitted to rely upon an amended statement of claim basing the cause of action in the alternative in contract.

5 Unlike in the cases of Edwards and Waller, the parents of this plaintiff are not themselves plaintiffs bringing a separate claim for damages, and Mr Segal pointed out that for this plaintiff no provision at all can be made through an award of damages at the suit of her parents; any claim that may have been available to them is barred by the Limitation Act.

6 For the purposes of the determination of the questions set out in para 2 above, the parties agreed upon the following statement of facts:

“1. The plaintiff, Alexia Harriton (‘Alexia) was born at The Royal Hospital for Women in Paddington, New South Wales on 19 March 1981. She brings this claim by her tutor, George Harriton who is her father.

2. In early August 1980, Alexia’s mother, Olga Harriton (‘Olga’) had an acute illness with a fever and rash. She also thought that she might be pregnant.

3. On 13 August 1980 Olga was attended at home by Dr Max Stephens, a general practitioner. Dr Max Stephens is deceased. He was, at the material time, in general practice with his son who is the defendant, Dr Paul Richard Stephens.

4. Olga advised Dr Max Stephens that she was concerned that she might be pregnant and that her acute illness might be rubella. She told Dr Max Stephens that she was aware that rubella in early pregnancy could produce congenital abnormalities in an unborn child and wanted to know whether she was pregnant and whether her acute illness was rubella.

5. Dr Max Stephens advised Olga that, upon being well enough to attend the blood collection centre, she should have a blood test done to determine whether she was pregnant and to determine whether her acute illness was rubella.

6. On 20 August 1981 Dr Max Stephens requested that the blood test be performed by Macquarie Pathology Services (‘Macquarie Pathology’). He provided a clinical history as follows:
‘Urgent,? pregn,? recent rubella contact’.
7. In a report dated 21 August 1980, Macquarie Pathology reported to ‘Dr Stephens’ in the following terms:
‘Rubella - 30
If no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities.
Preg test – positive’.

8. On 22 August 1980 Olga attended Dr Paul Richard Stephens (‘the defendant’). She advised the defendant of her last menstrual period, the fact that she had an acute illness some two weeks earlier, that she had had a fever and a rash with that illness and that she was concerned that the illness was rubella.

9. The defendant was in possession of the Macquarie Pathology report dated 21 August 1980 at the time that Olga consulted him.

10. The defendant informed Olga that she was pregnant. Her acute illness some two weeks earlier meant that, if it was rubella, this illness occurred during the first trimester of her pregnancy.,

11. The defendant reassured Olga that her acute illness was not rubella.

12. The defendant wrote a referral note to Dr Gabriel Rose, a gynaecologist/obstetrician regarding the further management of the pregnancy. The note stated:
‘Herewith Mrs Olga Harriton. (illegible) LMP [last menstrual period] 15.7/80. +ve preg test. She had ? viral illness 2/52 ago and rubella titre 30 . I have reassured her that she has no problems. Could you please see and continue. Paul. PS: Morning sickness. Debendox PRN’. (underlining in original)

13. The defendant ought not to have reassured Olga that she did not have rubella on the basis of the Macquarie Pathology report dated 21 August 1980.

14. In light of Olga’s ‘rubella-like rash’ , and the time at which the blood test was taken, a prudent general practitioner would not have relied on the blood test actually done but rather would have arranged an IgM blood test.

15. If an IgM blood test had been performed in this case in August 1980, the test would have been positive for rubella antibodies and rubella would have been diagnosed.

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.

19. Alexia was born with severe congenital disabilities caused by the rubella virus with which Olga had been infected in the first trimester of her pregnancy. Alexia’s injuries include:
a. blindness;
b. deafness;
c. mental retardation;
d. spasticity;
e. inability to care for herself;
f. the need for 24 hour care.

20. Alexia has already attained her age of majority. She has required and will continue to require care for the rest of her life.

21. Any causes of action available to Alexia’s parents for damages arising from Alexia’s birth are now statute-barred.

22. The plaintiff did not become infected in utero with rubella by reason of any neglect on the part of the defendant.”

7 It emerges from the above statement of facts that the plaintiff is, tragically, profoundly disabled. Having been born with severe congenital disabilities caused by the rubella virus with which her mother had been infected in the first trimester of her pregnancy, the plaintiff can look forward to no improvement in her condition in the future.

8 For the sake of convenience and consistently with the expression used in other cases, this claim has been described as a “wrongful life” claim. However, Mr Segal has submitted that the expression is uninstructive and that it tends to obscure the real issues. Mr Hirsch made a like submission in Edwards v Blomeley. The “wrongfulness” underlying the claim is the alleged negligence of the defendant. I recognise what underlies this submission but nevertheless, as in Edwards, I intend to employ that terminology of “wrongful life” for the sake of convenience, particularly having regard to the common usage of this expression in cases which I have been required to consider, including those to which I have been taken by counsel in the course of submissions.

Review of decisions in “wrongful life’ cases

9 As I observed in Edwards, there has been no decision in this country in which a court has recognised the existence of a right of action in a “wrongful life” claim. In Edwards, I reviewed the relevant authorities in Australia, in England, in Canada and in the United States. I also referred to the position in Germany and in Austria, and to the French decision in Perruche (Cour de Cassation, 17 November 2000). I will not repeat what I wrote in paras 9-46 of my judgment in Edwards but that review of the case law assumes the same significance in this case as in Edwards. Having completed that review, I made reference to what is to be found in Fleming and in Luntz and I propose to repeat those references.

10 In Fleming The Law of Torts, 9th edition at 184, the learned author states:

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

11 The above analysis, as I remarked in Edwards, is in sympathy with what appears in Luntz Assessment of Damages for Personal Injury and Death, 4th edition at pp 640-641 para 11.8.8:

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

12 The above text summaries accord with my analysis of those authorities which I have had the opportunity of considering. In the passage from Luntz the author identified the decisions in which limited damages were recoverable as being Turpin v Sortini 643 P 2d 954, Procanik v Cillo (1997) NJ 339; 478 A 2d 755 and Harbeson v Parke-Davis Inc. 656 P 2d 483 (to which I referred in paras 37-43 of my judgment in Edwards, adding also reference to Curlender v Bio-Science Labs 106 Cal. App. 3d 811, 165 Cal.Rptr 477 and to Quinn v Blau (Superior Court of Connecticut, 12 December 1997)). In Edwards I referred to criticism of the above three cases, criticism which I considered to be well founded (see judgment in Edwards at paras 86-90). Nor have I found the French decision in Perruche (supra) helpful, having regard to the matters I referred to in Edwards (at para 44). What emerges from my consideration of the authorities is that there has been consistent and widespread rejection of claims classified as “wrongful life” claims. Again I remind myself, as I did in Edwards, that none of the cases to which my reading has taken me binds this Court, and any one of the cases I reviewed in paras 9-50 of my judgment in Edwards can be treated as of persuasive effect only. Nevertheless, whilst I shall identify Mr Segal’s criticisms of McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166 hereunder, it is appropriate that I now repeat what I wrote in Edwards at para 50 after my review of the cases considered:

“…I have found the reasons expressed for the rejection of ‘wrongful life’ claims in the cases I have reviewed to be cogent. Mr Hirsch was critical of the reasoning in McKay . He submitted that the characterisation of the duty issue was wrong, because the child asserted no duty to be killed. It was also submitted that the court was in error in its approach to the problem of damages. I have considered the judgments in McKay , with the submissions of Mr Hirsch, and of Mr Segal in Harriton and of Mr Bates in Waller very much in mind, but it is appropriate that I record now that, as did the Court of Appeal in Manitoba in Lacroix , I found McKay to be very persuasive authority.”

13 I propose now to address the plaintiff’s claim, and the competing submissions of counsel.

The claim of the plaintiff

14 In order to succeed against the defendant, the plaintiff must prove:

(i) that the defendant owed her a duty of care;

(ii) that there was a breach of that duty;

(iii) damage;

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

15 Mr Segal submitted that the defendant owed to the mother of the plaintiff as his patient a duty to inform the mother of her rubella status and to give her advice as to the risk of her infection passing to the child. Mr Segal submitted further that the doctor owed the plaintiff a duty with exactly the same content. Any decision then to be taken was to be the decision of the mother, not the doctor. Mr Segal submitted this was where the analysis in McKay & Anor v Essex Area Health Authority & Anor (supra) went astray because in McKay the duty identified and rejected was a duty to terminate the pregnancy. I shall return to this criticism of McKay shortly. Mr Segal submitted that mother and child were “a unity in duality” during the pregnancy, and that the mother was to be regarded as acting as agent for the baby. Mr Garling, on the other hand, submitted that it was unacceptable for the law to recognise such concurrent duties owed by a doctor to a mother and her unborn child when the discharge of the duty owed to the mother might influence a decision of the mother adverse to the unborn child. In any event Mr Garling submitted that the only duty to the plaintiff which the law recognised in the circumstances was a duty not to harm the plaintiff.

16 I consider that Mr Garling’s submission is correct. The authorities reviewed in Edwards (para 54-60) establish that a duty of care can be owed to an unborn child: Watt v Rama (1972) VR 353; Burton v Islington Health Authority; De Martell v Merton & Sutton Health Authority (1992) 3 All ER 833. Moreover that duty of care may be owed to a child not conceived at the time of the negligent act, provided the child was within the class to whom the duty was owed: X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 (see in particular the judgment of Clarke JA at 38-42).

17 However, those authorities do not support the proposition that there is owed to an unborn child a duty with the content for which Mr Segal contends. In Watt v Rama (supra) and Burton v Islington Health Authority; De Martell v Merton & Sutton Health Authority (supra) the tort feasors caused harm to the unborn child by negligent acts, and in X & Y v Pal (supra) the unborn child was harmed when there was a failure to detect syphilis in the mother and then to treat that condition. Not only do those decisions not assist the plaintiff as to the content of the duty owed, but the decision in McKay is directly against the plaintiff. As I observed in Edwards (at paras 60-61):

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

‘I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person whether or not in utero to terminate his existence. Such a proposition runs wholly contrary to the concept of sanctity of human life.’
Griffiths LJ said (at 1192):
‘It surely cannot be asserted that the doctor owes a duty to the foetus to urge its destruction.’”

18 I return at this point to Mr Segal’s criticism of McKay, to the effect that the Court of Appeal wrongly characterised the content of the duty which it was claimed was owed to the unborn child, because the unborn child was not asserting a duty to be killed but merely a duty that the mother be given appropriate advice, thus putting the mother in a position to make an informed decision whether or not to continue with her pregnancy.

19 As I understand McKay, there was no such error made in considering the content of the duty proposed. Stephenson LJ considered the duty contended for and considered where that led (at pp 1178-1179):

“If, as is conceded, any duty is owed to an unborn child, the authority’s hospital laboratory and the doctor looking after the mother during her pregnancy undoubtedly owed the child a duty not to injure it, and if she had been injured as a result of lack of reasonable care and skill on their part after birth, she could have sued them, as she is suing the doctor, for damages to compensate her for the injury they had caused her in the womb. Compare the thalidomide cases, where it was assumed that such as action might lie: eg, Distillers Co. (Biochemicals) Ltd v Thompson [1971] AC 458. But this child has not been injured by either defendant, but by the rubella which has infected the mother without fault on anybody’s part. Her right not to be injured before birth by the carelessness of others has not been infringed by either defendant, any more than it would have been if she had been disabled by disease after birth. Neither defendant has broken any duty to take reasonable care not to injure her. The only right on which she can rely as having been infringed is a right not to be born deformed or disabled, which means, for a child deformed or disabled before birth by nature or disease, a right to be aborted or killed; or, if that last plain word is thought dangerously emotive, deprived of the opportunity to live after being delivered from the body of her mother. The only duty which either defendant can owe to the unborn child infected with disabling rubella is a duty to abort or kill her or deprive her of that opportunity.
It is said that the duty does not go as far as that, but only as far as a duty to give the mother an opportunity to choose her abortion and death. That is true as far as it goes. The doctor’s alleged negligence is in misleading the mother as to the advisability of an abortion, failing to inform or advise her of its advisability or desirability; the laboratory’s alleged negligence is not so pleaded in terms but the negligence pleaded against them in failing to make or interpret the tests of the mother’s blood samples or to inform the doctor of their results must, like the doctor’s negligence, be a breach of their duty to give the doctor an opportunity to advise the mother of the risks in continuing to let the foetus live in the womb and be born alive. But the complaint of the child, as of the mother, against the authority, as against the doctor, is that their negligence burdened her (and her mother) with her injuries. That is another way of saying that the defendants’ breaches of their duties resulted, not just in the child’s being born but in her being born injured or, as the judge put it, with deformities. But as the injuries or deformities were not the result of any act or omission of the defendants, the only result for which they were responsible was her being born. For that they were responsible because if they had exercised due care the mother would have known that the child might be born injured or deformed, and the plaintiffs’ pleaded case is that, if the mother had known that, she would have been willing to undergo an abortion, which must mean she would have undergone one or she could not claim that the defendants were responsible for burdening her with an injured child. If she would not have undergone an abortion had she known the risk of the child being born injured, any negligence on the defendants’ part could not give either plaintiff a cause of action in respect of the child being born injured.
I am accordingly of opinion that though the judge was right in saying that the child’s complaint is that she was born with deformities, without which she would have suffered no damage and have no complaint, her claim against the defendants is a claim that they were negligent in allowing her, injured as she was in the womb, to be born at all, a claim for ‘wrongful entry into life’ or ‘wrongful life’.”

20 Later, Stephenson LJ specifically rejected the proposition that there was a duty to the child to give to the mother of the child advice such as might influence a decision to be taken by her to have an abortion (at 1180-1181):

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

21 Nor do I see in the judgments of Ackner LJ or Griffiths LJ any misconception of what was being submitted was the content of the duty for which the appellant was arguing in McKay. Contrary to Mr Segal’s submission, I find the decision in McKay to be most persuasive, and I propose to follow it. Whilst the plaintiff was subsequently born with severe disabilities, I cannot accept, and I do not accept, that the defendant owed to the plaintiff a duty to give such advice to the plaintiff’s mother during pregnancy as would or could deprive the plaintiff of the opportunity of life. Consistently with McKay, in my opinion the content of the duty of care owed to the plaintiff was not to injure her, and nothing else. I am fortified in this conclusion by considerations of public policy to which I shall later refer.

22 Was there a breach of the duty of care with the content I have defined? Did the defendant by act or omission cause injury to the plaintiff? Unless these questions are answered in the affirmative, the plaintiff cannot succeed.

23 On this issue of causation I repeat what I wrote in Edwards at para 68:

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

24 In my opinion, it cannot be said, consistently with the application of settled principles, that the defendant caused injury to the plaintiff either by act or omission, given that the duty of care that existed had the content I have defined. Indeed, Mr Segal’s submissions on causation depended upon the acceptance by the court of the broader content of the duty of care for which he contended, and which I have rejected.

25 It is not contended that the defendant was in any way responsible for the plaintiff’s mother becoming infected with rubella. Indeed, it is an agreed fact that:

“The plaintiff did not become infected in utero with rubella by reason of any neglect on the part of the defendant.”

26 Nor is it suggested that there was any treatment the defendant could have given the plaintiff’s mother to protect the plaintiff from the harmful effects of the rubella upon her.

27 With the above in mind, it follows, in my opinion, that there was no breach of that duty of care I have determined was owed by the defendant and the plaintiff’s claim must fail.

28 However I propose to consider other issues argued in this case, as I did in Edwards. Should it be assumed, contrary to the conclusions I have reached, that the plaintiff has met the requirements of establishing the content of the duty of care asserted, breach of that duty and a causative link between breach and the disabilities with which the plaintiff was born, it would remain to be determined whether the plaintiff has suffered damage. Without proof of damage an action in tort is not maintainable. It is only if damage is proved that damages may be awarded to compensate a plaintiff.

29 I referred in Edwards to what the High Court said as to the significance of this distinction in Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522. I here repeat what was said by Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ at 527:

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

30 The issue must be addressed as to what was the damage which the plaintiff has suffered.

31 In written submissions Mr Segal acknowledged “the impossibility of assessing general damages by comparing the value of life with disabilities against non existence.” He further acknowledged that it was offensive to people with disabilities for a suggestion to be advanced that “non life is preferable to a life with disabilities.”

32 Nevertheless, it was submitted that the “damage” suffered by the plaintiff was properly to be categorised as “birth with disabilities”. I am unable to accept this submission.

33 In order to find “damage” in the plaintiff’s case, it is necessary to make a comparison between non existence and life with disabilities. The plaintiff’s case is that she was born in consequence of the defendant’s negligence and it has to be remembered that the plaintiff’s only opportunity for life was life with the profound disabilities that the plaintiff has been required to endure. Therefore here, as in Edwards, in order to determine whether the plaintiff suffered “damage” in being born with disabilities inevitably involves comparing the value of non existence with the value of existence in a disabled state. Whilst the plaintiff’s disabilities are extremely severe, I nevertheless conclude that the comparison required as a matter of legal principle is an impossible exercise.

34 Once again, I state that I have found the reasoning of the Court of Appeal in McKay on this question of “damage” and the assessment of damages to be very persuasive and I refer in particular to the following passages:

(a) Stephenson LJ said at 1181:


“Finally, there is the nature of the injury and damage which the court is being asked to ascertain and evaluate.

The only duty of care which courts of law can recognise and enforce are duties owed to those who can be compensated for loss by those who owe the duties, in most cases, including cases of personal injury, by money damages which will as far as possible put the injured party in the condition in which he or she was before being injured. The only way in which a child injured in the womb can be compensated in damages is by measuring what it has lost, which is the difference between the value of its life as a whole and healthy normal child and the value of its life as an injured child. But to make those who have not injured the child pay for that difference is to treat them as if they have injured the child, when all they have done is not having taken steps to prevent its being born injured by another cause.

The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child? Even if a court were competent to decide between the conflicting views of theologians and philosophers and to assume an ‘after life’ or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the injured child’s life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained?”

Then, at 1182:

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

(b) Ackner LJ said in McKay (at 1189):


“The disabilities were caused by the rubella and not by the doctor… What then are her injuries, which the doctor’s negligence has caused? The answer must be that there are none in any accepted sense. Her complaint is that she was allowed to be born at all, given the existence of her pre-natal injuries. How then are her damages to be assessed? Not by awarding compensation for her pain, suffering and loss of amenities attributable to the disabilities, since there were already in existence before the doctor was consulted. She cannot say that, but for his negligence, she would have been born without her disabilities. What the doctor is blamed for is causing or permitting her to be born at all. Thus, the compensation must be based on a comparison between the value of non-existence (the doctor’s alleged negligence having deprived her of this) and the value of her existence in a disabled state.

But how can a court begin to evaluate non-existence, ‘the undiscovered country from whose bourn no traveller returns?’ No comparison is possible and therefore no damage can be established which a court could recognise. This goes to the root of the whole cause of action.”

(c) Then, turning to the judgment of Griffiths LJ, I quote what appears at 1192-1193:


“To my mind, the most compelling reason to reject this cause of action is the intolerable and insoluble problem it would create in the assessment of damage. The basis of damages for personal injury is the comparison between the state of the plaintiff before he was injured and his condition after he was injured. This is often a hard enough task in all conscience and it has an element of artificiality about it, for who can say that there is any sensible correlation between pain and money? Nevertheless, the courts have been able to produce a broad tariff that appears at the moment to be acceptable to society as doing rough justice. But the whole exercise, difficult as it is, is anchored in the first place to the condition of the plaintiff before the injury which the court can comprehend and evaluate. In a claim for wrongful life how does the court begin to make an assessment? The plaintiff does not say, ‘But for your negligence I would have been born uninjured.’ The plaintiff says, ‘But for your negligence I would never have been born.’ The court then has to compare the state of the plaintiff with non-existence, of which the court can know nothing; this I regard as an impossible task. Mr Wilmers suggested that the court should assess the damages on the assumption that the plaintiff’s injury had been caused by the hospital, and then discount the damages because it had not been so caused. But he was quite unable – and I do not blame him – to suggest any principle upon which the discount should be calculated.

Again, suppose by some happy chance the child is born with only a slight deformity, can it bring an action upon the basis that it would have been killed in the womb if the mother had been told of the risk of greater deformity? Such a claim seems utterly offensive; there should be rejoicing that the hospital’s mistake bestowed the gift of life upon the child. If such claims are rejected, upon what basis could a claim be brought for a more serious injury? Only, it would seem, on the basis that the state of the child is such that it were better dead than alive. But knowing nothing of death, who is to answer this question, and what two minds will approach the answer by the same route? I regard the question as wholly outside the competence of judicial determination.

I would reject this novel cause of action because I see no way of determining which plaintiffs can claim; that is, how gravely deformed must the child be before a claim will lie; and secondly because of the impossibility of assessing the damage it has suffered.

The common law does not have the tools to fashion a remedy in these cases. If society feels that such cases are deserving of compensation, some entirely novel and arbitrary measure of damage is called for which, I agree with Jasen J in Becker v Schwartz , 413 NYS 2d 895, would be better introduced by legislation than by judges striving to solve the insoluble.”

35 Then there are the American authorities I reviewed in Edwards in which “wrongful life” claims were rejected and in which there are many expressions of principle which I find to be persuasive and which also emphasise the significance of the impossibility of determining “damage”. Again, I instance the expression to this effect by the Court of Appeals in New York in Becker v Schwartz 386 N.E. 2d 807 (N.Y. 1986):

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

36 I also refer to the judgment of the Supreme Court of Texas in Nelson v Krusen 678 S.W. 2d 918 (Tex. 1984) where, in rejecting a “wrongful life” claim, the court said:

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

37 I remain of the opinion stated in Edwards that “the impossibility of determining damage in a case such as the present of itself compels the rejection of this claim.”

38 The plaintiff’s difficulties do not stop here. How could damages be assessed, bearing in mind the settled principles governing the assessment of compensatory damages as stated in Haynes v Bendall (1991) 172 CLR 60 at 63 in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ:

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

39 In his first written submissions, Mr Segal acknowledged that

“[the plaintiff’s] birth with disabilities ought, on general principles to sound in damages, including general and special damages.”

However, acknowledging as he did in those written submissions

“the impossibility of assessing general damages by comparing the value of a life with disabilities against non existence”,

Mr Segal submitted there was

“no valid policy reason to prevent a child from recovering at least care costs arising from disability.”

40 Again, when asked early in his oral submissions what categories of damages were available, Mr Segal responded (T 24):

“In my case, it is the cost of the past and future care including medical and associated expenses.”

41 As I understand Mr Segal’s submissions up to this point, the claim of this particular plaintiff was so limited because of her mental condition and lack of awareness of her plight. However, in principle this would not seem to preclude some modest assessment of general damages for loss of amenities, objectively determined, if such a claim was otherwise maintainable in law: see Skelton v Collins (1966) 115 CLR 94. Be that as it may, the claim made by this plaintiff is expressed to be limited to a claim for past and future care costs, including medical and associated expenses.

42 Counsel referred to the few American cases in which damages were awarded in “wrongful life” claims. In this context it is convenient that I repeat what I wrote as to those few cases in Edwards at paras 37-43:

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

Curlender was a decision of the Court of Appeal of the Second District. The appellate court recognised a cause of action by a child born severely disabled as a result of negligence by the defendants in their conduct of genetic tests on the parents, which, had they been properly carried out, would have enabled the parents to have been alerted to the risk that conception, if achieved, would result in the birth of a child with Tay-Sachs disease. In allowing the claim, the court decided the plaintiff was entitled to
‘recover damages for the pain and suffering that he endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition.’
It is noteworthy that the court was dismissive of the fear voiced in earlier decisions to which the court had been taken that if the action was maintainable nothing would prevent a child from suing its own parents for allowing the child to be born. The court said as to this:
‘In our view, the fear is groundless. The “wrongful-life” cause of action with which we are concerned is based upon negligently caused failure by someone under a duty to do so to inform the prospective parents of facts needed by them to make a conscious choice not to become parents. If a case arose where, despite due care by the medical profession in transmitting the necessary warnings, parents made a conscious choice to proceed with a pregnancy, with full knowledge that a seriously impaired infant would be born, that conscious choice would provide an intervening act of proximate cause to preclude liability insofar as defendants other than the parents were concerned. Under such circumstances, we see no sound public policy which should protect those parents from being answerable for the pain, suffering and misery which they have wrought upon their offspring.’
Turpin v Sortini was a decision of the Supreme Court of California and this concerned a claim by a child born deaf following the wrongful diagnosis of an hereditary defect in the child’s older sister in circumstances where, had the parents been made aware of such defect, they would have had the chance not to conceive the plaintiff. In Turpin , a different panel of judges in the Court of Appeal from that panel which had decided Curlender , disagreed with the decision in Curlender and dismissed an appeal from a decision at first instance disallowing the plaintiff’s claim. When the matter found its way to the Supreme Court of California, the appeal of the plaintiff was allowed in part. It was decided that the plaintiff’s claim for general damages had been properly rejected but that the claim for ‘the extraordinary expenses for specialised teaching, training and hearing equipment’ that the plaintiff would incur during her lifetime because of her deafness was compensable.
In Quinn v Blau (Superior Court of Connecticut, 12 December 1997) the court refused a motion to strike out a claim for “wrongful life” following two earlier decisions in Connecticut: Woodruff v Hoffman 10 Conn. Law Trib. 15, and Ahsan v Olsen (4 Conn. L. Rptr. 282, 3 CSCR 55) The court also noted a contrary Connecticut decision in Donnelly v Candlewood Obstetric-Gynecological Associates, P.C. (6 Conn. L. Rptr. 532). The decision contains no detailed discussion or analysis of principles.
In Procanik v Cillo (1997) NJ 339; 478 A 2d 755, the Supreme Court of New Jersey allowed a claim by a child born with congenital rubella syndrome as a consequence of his mother’s infection during her pregnancy. The plaintiff’s claim was based upon the negligence of the defendants treating the mother in consequence of which the parents were deprived of the choice of terminating the pregnancy. The court allowed the plaintiff’s claim to recover as special damages the extraordinary medical expenses referable to his disability, but not the claim for general damages. In rejecting the claim for general damages, the court said:
‘We find, however, that the infant’s claim for pain and suffering and for a diminished childhood presents insurmountable problems. The philosophical problem of finding that such a defective life is worth less than no life at all has perplexed not only Justice Schreiber, but such other distinguished members of this Court as Chief Justice Weintraub, Gleitman, supra 49 N.J. at 63 (Weintraub, C.J., dissenting in part), Justice Proctor, Gleitman, supra 49 N.J. at 30 , and Justice Pashman, Berman v Allan, supra, 80 N.J. at 429 . We need not become preoccupied, however, with these metaphysical considerations. Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.
Sound reasons exist not to recognize a claim for general damages. Our analysis begins with the unfortunate fact that the infant plaintiff never had a chance of being born as a normal, healthy child. Tragically, his only choice was a life burdened with his handicaps or no life at all. The congenital rubella syndrome that plagues him was not caused by the negligence of the defendant doctors; the only proximate result of their negligence was the child’s birth.
The crux of the problem is that there is no rational way to measure non-existence or to compare non-existence with the pain and suffering of his impaired existence.’
In Harbeson v Parke-Davis Inc . 656 P 2d 483, the Supreme Court of Washington allowed a claim by children born disabled in consequence of their mother taking certain medication for her epilepsy during pregnancy. The mother had not been properly advised as to the risks of damage to a foetus by her use of such medication. In allowing the claim by the children, the court restricted the claim to special costs referable to their disability:
‘The minor plaintiffs suffer an actionable injury to the extent that they require special medical treatment and training beyond that required by children not affected with fetal hydantoin syndrome. They may recover damages to the extent of the cause of such treatment and training.’”

43 Curlender was the only case in which general damages were awarded and in Procanik in the passage above set out the court acknowledged that there were good reasons not to award general damages.

44 I do not find in Curlender, in Turpin, in Procanik or in Harbeson any recognition of the need to prove “damage” before moving on to assess damages and I find none of these cases to be persuasive authority. As I indicated in Edwards, I regard the criticisms expressed of these decisions in the cases to which I referred in paras 88-89 of my judgment in Edwards to be well founded. I now repeat the references to Siemieniec v Lutheran Gen. Hosp. 512 N.E. 2d 691 (Ill. 1987), Kassama v Magat (Court of Special Appeals of Maryland, February 2001) and Nelson v Krusen (supra):

“In Siemienic v Lutheran Gen. Hosp. (supra), a decision of the Supreme Court of Illinois, the concept of an entitlement to damages for ‘wrongful life’ was rejected. The court referred to Turpin critically, saying:
‘In awarding special damages, however, the Turpin court ignored the reasoning that prevented an award of general damages. The problem of establishing the effect of injury was simply passed over, and all discussion focussed on the non-speculative nature of a recovery for extraordinary medical expenses.’
That criticism was taken up and adopted by the Court of Special Appeals in Maryland in Kassama v Magat (supra, at para 35(1)). A similar criticism was expressed in Nelson v Crusen (supra):
‘Thus, the cause of action unavoidably involves the relative benefits of an impaired life as opposed to no life at all. All courts, even the ones recognizing a cause of action for wrongful life, have admitted that this calculation is impossible. We do not believe that the measure of damages can be circumscribed as the Californian, Washington and New Jersey courts have attempted. As was said by the Michigan court in Strohmaier , “The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist.” 332 N.W.2d at 435 . We hold that there is no cause of action in Texas for wrongful life.’”

45 In his submissions in reply, and in later written submissions jointly presented in Edwards and in Harriton, Mr Segal advanced an alternative approach to the assessment of damages, this time based upon a determination of what he submitted were the consequences of the negligence of the defendant. Had the defendant given to the plaintiff’s mother on her own behalf and on behalf of the plaintiff sound advice, there would have been no loss suffered because the plaintiff would not have been born. The plaintiff’s mother would have terminated her pregnancy. Because of the failure to give sound advice, the plaintiff was born and is confronted with extraordinary expenses by reason of her disabilities. The plaintiff should be compensated for those extraordinary expenses, which are in the nature of hospital, medical, pharmaceutical and other health profession costs, and also costs of home care.

46 Mr Segal submitted that by approaching the case in this way the necessity to make a comparison between existence with disability and non existence is avoided. He submitted that the claim may properly be regarded as a claim for pure economic loss rather than a claim for damages for personal injury.

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

48 A proper analysis of the plaintiff’s claim compels the recognition that non existence has to become a point of comparison, and as I wrote in Edwards (at para 85):

“To recognise this is to recognise the impossibility of assessing damages if a ‘wrongful life’ claim such as the present was to be maintainable at common law.”

49 The impossibility of assessing general damages by comparing the value of a life with disabilities against non existence was recognised by Mr Segal in his written submissions, to which I made earlier reference, and the impossibility of assessing damages in a “wrongful life” claim has been acknowledged in McKay (see the passages set out at para 34 above); in the Canadian decision in Lacroix v Dominique [2001] MBCA 122; and in many American decisions to which I referred in para 35 of my judgment in Edwards. For the sake of convenience I again cite those relevant American authorities: Kassama v Magat (supra); Elliott v Brown, 361 So. 2d 546 (Ala. 1978); Walker by Pizano v Mart 790 P.2d 735 (Ariz. 1990); Lininger v Eisenbaum, 764 P.2d 1202 (Colo. 1988); Garrison v Medical Ctr of Del. Inc. 581 A.2d 288 (Del. 1989); Kush v Lloyd 616 So. 2d 415 (Fla. 1992); Atlanta Obstetrics & Gynecology Group v Abelson 398 S.E.2d 557 (Ga. 1990); Blake v Cruz, 698 P.2d 315 (Idaho 1984); Siemieniec v Lutheran Gen. Hosp. (supra); Cowe v Forum Group, Inc. 575 N.E.2d 630 (Ind. 1991); Bruggeman v Schimke 718 P.2d 635 (Kan. 1986); Petre v Opelousas Gen. Hosp. 517 So. 2d 1019(La. Ct App. 1987), aff’d in part and rev’d in part on other grounds, 530 So. 2d 1151 (La. 1988); Viccaro v Milunsky 551 N.E.2d 8 (Mass. 1990); Strohmaier v Associates in Obstetrics & Gynecology, P.C. 332 N.W.2d 432 (Mich. Ct App. 1982); Wilson v Kuenzi 751 S.W.2d 741 (Mo. 1988); Greco v United States 893 P.2d 345 (Nev. 1995); Azzolino v Dingfelder 337 S.E.2d 528 (N.C. 1985); Smith v Cote 513 A.2d 341 (N.H. 1986); Becker v Schwartz (supra); Flanagan v Williams 623 N.E.2d 185 (Ohio Ct App. 1993); Ellis v Sherman 515 A 2d 1327 (Pa 1986); Nelson v Krusen (supra); Dumer v St Michael’s Hosp. 233 N.W.2d 372 (Wis. 1975); Beardsley v Wierdsma 650 P.2d 288 (Wyo. 1982); and Gleitman v Cosgrove (1967) 227 A 2d 689 (a decision of the Supreme Court of New Jersey).

50 In my opinion, the impossibility of assessing damages in the plaintiff’s case is yet another reason why this action is not maintainable.

Consideration of “wrongful birth” cases – should these decisions influence the outcome?

51 As Mr Hirsch did in Edwards, Mr Segal in the present case referred to the “wrongful birth” cases and to damages awarded to parents in such cases to meet the costs of caring for a child as supporting the claim of this plaintiff, and recognition of “wrongful life” claims. I use the expression “wrongful birth”, as I did in Edwards, in the sense of an action brought by a parent or parents following the birth of a child who would not have been born or who would not have been conceived but for the negligence of the defendant.

52 It was submitted by Mr Segal that consistency demanded the recognition of “wrongful life” claims.

53 In Edwards (at paras 95-104) I reviewed decisions in this country and in England in which consideration has been given to claims of parents for the cost of bringing up a child in a “wrongful birth” class of case. I will not repeat that review in full here but in summary.

In Australia

54 (i) In Vievers v Connolly (1995) 2 Qd R 325 the mother was awarded damages following the birth of a severely disabled child that included provision for past and future costs of caring for the child.

(ii) In CES v Superclinics (Australia) Pty Limited (1995-96) 38 NSWLR 47 the Court of Appeal held damages were recoverable in a “wrongful birth” claim but excluding the cost of maintaining a healthy child because it could have been adopted out.

(iii) In Melchior & Anor v Cattanach & Anor [2001] QCA 246 the Queensland Court of Appeal awarded the parents the reasonable costs of raising a healthy child.

In England

55 (i) In Udale v Bloomsbury Area Health Authority (1983) 1 WLR 1098 a claim for the cost of raising a healthy child was rejected on the ground of public policy.

(ii) In Emeh v Kensington & Chelsea & Westminster Health Authority (1985) QB 1012, Udale was disapproved and the costs of the upkeep of a disabled child were held recoverable, not just the extra costs associated with the child’s disabilities.

(iii) In Thake v Maurice (1986) QB 644 damages were awarded to include the costs of the upbringing of a healthy child.

(iv) In McFarlane v Tayside Health Board (2000) 2 AC 59, Emeh and Thake were overruled in the House of Lords and a claim by parents for the cost of caring for a healthy child was rejected.

(v) In Parkinson v St James & Seacroft University Hospital (2001) 3 All ER 97 the cost of caring for a disabled child was recoverable, limited to the extra expenses associated with the disabilities.

(vi) In Rees v Darlington Memorial Hospital NHS Trust (2002) EWCA Civ 88 a disabled mother who, because of her disabilities, underwent an unsuccessful sterilisation procedure recovered the extra costs involved in discharging her parental responsibility to a healthy child conceived after the sterilisation procedure.

The present position in Australia

56 As I observed in Edwards, the High Court has not yet considered whether the costs of rearing a child in a “wrongful birth” case are recoverable as damages in a claim by the parents of the child, but may well do so shortly in Melchior in which leave to appeal was granted in March 2002.

57 The above case review however indicates that in an action brought by a parent or parents for “wrongful birth” some damages are recoverable for the past costs and the ongoing costs of caring for a child who was born disabled. In CES (supra) what prevented recovery of costs of caring for the child was the consideration that the child could have been adopted out, but this would not apply in the case of a disabled child. Precisely what damages may be recovered I consider to be unsettled: cf CES (supra), Melchior (supra) and Parkinson (supra). However, it is unnecessary for present purposes to resolve this uncertainty. From Mr Segal’s point of view it is sufficient that the courts recognise some claim for damages concerning the cost of caring for a disabled child in a “wrongful birth” case.

58 Since this is so, it is submitted by Mr Segal that it would be wrong to recognise a remedy as being available to the parent and yet deny that same remedy to the child when in a very real way the burden of meeting costs associated with her disabilities is the burden of the child born disabled and any damages recoverable for the cost of maintaining that child in an action brought by the parent would be for the benefit of the child.

59 Mr Segal drew the attention of the Court to a statement in Trindade & Cane, The Law of Torts in Australia, 3rd ed., where the authors, having considered many of the authorities rejecting “wrongful life” claims (at p 432-434) went on to consider “wrongful birth” claims, as to which the authors stated: “The courts have been much less hostile.” Having made a review of decisions concerning claims by parents, the authors addressed the question of consistency in this passage:

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

60 As I noted in Edwards, that passage was referred to by Lord Steyne in McFarlane (supra) and Mr Segal in his submissions drew attention to what Lord Steyne said about considerations of distributive justice. Lord Steyne’s remarks were made in the context of a reference to Frost v Chief Constable of South Yorkshire Police (1999) 2 AC 455. Claims for nervous shock by the bereaved parents of the victims were not allowed in Frost and claims by the police officers who were on duty at the Hillsborough soccer stadium were also rejected. Commenting on the judgments in Frost, Lord Steyne said in McFarlane:

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

61 Mr Segal relied upon the above dicta in support of the proposition that distributive justice was against giving inconsistent recognition from the same factual situations.

62 Further Mr Segal submitted that it was inconsistent with legal policy to permit a wrong without a remedy.

63 The submissions advanced by Mr Segal based upon the “wrongful birth” claims which I have above endeavoured to summarise are essentially the same submissions advanced by Mr Hirsch in Edwards. I found myself unable to accede to those submissions in Edwards and I find myself in the same position in the present case for precisely the same reasons as in Edwards. Those reasons I now repeat.

64 Whatever advantages may attend the pursuit of a claim for care costs in respect of a disabled child in an action brought by that child rather than in an action brought by the parents of the child, the question which must be addressed is whether an action is maintainable by the child in the first place.

65 As previously stated, I do not consider that the defendant owed to the plaintiff a duty of care with the same content as that owed to her mother. Moreover, I do not accept that the defendant was in breach of that duty which he did owe to the plaintiff, namely a duty not to injure her. Accordingly, I do not accept that there is that inconsistency or lack of coherence for which Mr Segal contends. Nor do I accept that considerations of distributive justice call for the recognition of the claim of the plaintiff because I do not find that the defendant caused the disabilities with which the plaintiff was so sadly born. Moreover, to award damages limited to the provision of costs of caring for the plaintiff could not properly be considered as an award based upon those long settled principles that govern the assessment of damages for the tort of negligence. Such an award would ignore the fundamental impossibility of determining “damage” in the plaintiff’s case, and the further fundamental impossibility of making a proper assessment of damages.

Public policy

66 Mr Segal submitted that considerations of public policy applied to “wrongful birth” and “wrongful life” cases alike. Public policy was expressly considered in the wrongful birth case CES v Superclinics (supra), and in particular the judgment of Kirby A-CJ at 70-77; see also Melchior v Cattanach (supra) per McMurdo P at 49-62, Davies JA at 97-99 and Thomas JA at 174 and 207. Nor did such considerations bar recovery in the other “wrongful birth” claims earlier considered.

67 However it must be recognised that the nature and extent of the duty of care owed to a parent/patient which is so well settled differs from the nature and extent of any duty thus far recognised as being owed to an unborn child.

68 I consider nevertheless that it is appropriate to have regard to considerations of public policy in determining whether this claim is maintainable, and there are decisions which support this. In Perre v Apand (supra) regard was had to considerations of public policy when considering the existence and extent of a duty of care in tort, and that was a case in which the claim under consideration did not fall within any category of claim previously recognised: see the judgments of Gaudron J at 615-616, of McHugh J at 631-632, of Kirby J at 688-690 and of Hayne J at 699; see also Bryan v Maloney (supra) and in particular the joint judgment of Mason CJ and Deane and Gaudron JJ at 618 and following.

69 Public policy considerations were identified as relevant in other “wrongful life” claims: see McKay v Essex Area Health Authority (supra) per Stephenson LJ at 1180 and Ackner LJ at 1188; Phillips v United States 508 F Supp 537; Blake v Cruz (supra); Elliott v Brown (supra) and Bruggeman v Schimke (supra).

70 In this case I regard it as legitimate therefore to have regard to public policy considerations which are clearly identifiable and which are against the recognition of “wrongful life” claims.

71 Those policy considerations to which I refer were identified in para 119 of the judgment in Edwards and for convenience I set that paragraph out here, together with my observations in para 120:

“There are, in my opinion, clearly identifiable public policy considerations against a recognition of “wrongful life” claims:
(i) the precious nature of human life itself, and the erosive effect that the acceptance of such claims would have upon the value to be accorded to human life: see McKay per Stephenson LJ at 1180 and per Ackner LJ at 1188; see also Phillips v United States (supra); Blake v Cruz (supra); Elliott v Brown (supra); Bruggeman v Schimke (supra); and Siemieniec v Lutheran Gen. Hosp. (supra);
(ii) allied to this is the impact that the recognition of this class of claim would have upon the self esteem of those born with disabilities and upon their perceived worthiness by other members of society.
Whilst the third plaintiff in this case has been born with severe disabilities [in this present case of Harriton , it is the sole plaintiff who has been born severely disabled], it is important to appreciate and to emphasise in relation to considerations (i) and (ii) that recognition of “wrongful life” claims, if it occurred, would not be limited to those claimants who are born grossly disabled: see McKay per Stephenson LJ at para 15 above and per Ackner LJ at para 20 above.
(iii) the recognition of this type of claim would lead to the exposure to liability at the suit of a child born disabled not only the doctor who had undertaken the care of the expectant mother but also to the exposure to liability of the mother of that child in the event that the mother was perceived to act unreasonably in deciding to continue with a pregnancy and to have the child with an appreciation of the risk that the child might be born disabled. The potential for the disturbance of family life that this could have, and for the wider disturbance of the fabric of society is obvious and has been recognised in the United Kingdom. Again see McKay per Ackner LJ at para 20 above. As to the acknowledgement of the exposure of parents to the risk of being sued by a child born disabled, see also Curlender v Bio-Science Labs (supra, at paras 38-39), although in Curlender the court could see no sound public policy reason for protecting parents who were negligent in deciding to continue a pregnancy.
The recognition of the cost stresses of claims in the field of professional indemnity insurance in this State prompted the passing of the Health Care Liability Act , 2001. Very recently, because of an insurer’s difficulties, there arose the need for Commonwealth government action to address concerns in relation to certain categories of claims of alleged medical negligence. There would plainly be further considerable cost pressures in relation to professional indemnity insurance, affecting insurers and insured alike, if ‘wrongful life’ claims were to be recognised. The Court should not be dismissive of such a factor, when it is being asked to recognise a previously unrecognised category of claim. As Spigelman CJ said in Kinzett v McCourt (1999) 46 NSWLR 32 at 51: ‘The judiciary cannot be indifferent to the economic consequences of its decisions.’ However, there is no evidence before this Court that would permit of any assessment of the potential impact of the recognition of this class of claim, nor was any argument addressed concerning this possible public policy issue. In the circumstances, and having regard to the conclusions I have otherwise reached, I do not consider it necessary or appropriate for me to bring into account this insurance issue as a public policy consideration.”

72 It would be contrary to those weighty public policy considerations (i), (ii) and (iii) referred to above to recognise this claim.

The alternative claim in contract

73 The plaintiff pleaded her case in the alternative in contract:

“Further, or in the alternative, in the circumstances set forth in paragraph 9 Olga entered into a contract of services for reward with the defendant. It was an implied term of this contract that the defendant would, for her own benefit and for the benefit of her unborn child, manage Olga with reasonable care and skill regarding the risk of her acute illness having been rubella.”

74 The plaintiff was not a party to any contract with the defendant. The statement of agreed facts does not specifically address the issue of contract, but any contract into which the defendant entered could only have been with the plaintiff’s mother.

75 In my opinion, the defendant is correct therefore in submitting that since the plaintiff was not a party to any contract with the defendant, no action for breach of contract is maintainable by her.

76 Mr Segal has sought to rely upon the decision of the High Court in Trident General Insurance Co. Limited v McNiece Bros Pty Limited (1988) 165 CLR 107.

77 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 at 120-121 in support of this submission.

78 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. I accept Mr Garling’s submission that the decision in Trident turned upon the limited question of the extent of the insurer’s liability under a public liability policy. I do not treat that case as authority for the proposition that the plaintiff here has any contractual rights in the circumstances of this case. Indeed, as I understood Mr Segal in the course of his oral submissions, he acknowledged that it would not be appropriate for me as a judge of first instance to seek to extend the principles in Trident in the manner for which he contends.

79 I would add that even if the plaintiff had been able to establish contractual rights in her and corresponding obligations in the defendant, fundamental problems would have remained in proving breach of any contractual obligation towards her and in proving loss and damage.

80 For these reasons the claim in contract must fail.

Summary of conclusions

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

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

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

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

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

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

7. No claim is maintainable by the plaintiff against the defendant in tort or in contract.

Questions answered

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

(i) No.

(ii) Does not arise.

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

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Last Modified: 06/12/2002