Harriton v Stephens; Waller v James & Anor - [2005] HCATrans 918

[2005] HCATrans 918

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S229 of 2005

B e t w e e n -
ALEXIA HARRITON (BY HER TUTOR GEORGE HARRITON)
Appellant
and
PAUL RICHARD STEPHENS
Respondent

Office of the Registry
Sydney No S231 of 2005

B e t w e e n -
KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER)
Appellant
and
CHRISTOPHER JAMES
First Respondent
SYDNEY IVF PTY LIMITED
Second Respondent

Office of the Registry
Sydney No S232 of 2005

B e t w e e n -
KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER)
Appellant
and
BRIAN HOOLAHAN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 NOVEMBER 2005, AT 10.18 AM

MR B.W. WALKER, SC: May it please the Court, in Harriton, I appear with my learned friends, MR G.P. SEGAL and MR D.H. HIRSCH, for the appellant. (instructed by Maurice Blackburn Cashman)

MR P.W. BATES: May it please the Court, I appear for the appellant, Keeden Waller, in each of his appeals. (instructed by Autore & Associates)

MR S.J. GAGELER, SC: If the Court pleases, in each matter I appear with MR J.K. KIRK for the respondent or respondents. (instructed by Blake Dawson Waldron)

GLEESON CJ: Thank you. Justice Callinan has had to return unexpectedly to Queensland. I understand that the parties are agreeable to his joining in the decision in these matters on the basis of reading the papers and the transcript of argument.

MR WALKER: Yes, your Honour.

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the crux of the insuperable difficulty perceived by the majority in the Court of Appeal in the way of my client’s claim was the absence of or, if it be different, the inability to show in law damage. That is the crux. It carried with it, of course, the observations that one finds in the majority concerning the calculation of damages.

GLEESON CJ: Can I raise a question of procedure about that, Mr Walker.

MR WALKER: Yes, your Honour.

GLEESON CJ: I notice that the questions appear on page 52 and 99 and that the answers to those questions for which both appellants contend are the answers given by Justice Mason in the Court of Appeal.

MR WALKER: Yes.

GLEESON CJ: On page 252 in paragraph 169 Justice Mason made some remarks about the answer he gave to question 2. I simply wanted to alert you to the fact that you should not assume that I, for my part, would accept that the answer there given to question 2 is an answer to question 2 or that I, for my part, would accept that you can answer question 1 “yes” without facing up to what Justice Mason described as the profound issues in relation to question 2.

MR WALKER: Thank you, your Honour, and I accept that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] HCATrans 918
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals in two separate cases, *Harriton v Stephens* and *Waller v James & Anor*. In *Harriton v Stephens*, the plaintiff, born with severe disabilities, alleged that her mother's doctor, Dr. Stephens, negligently failed to advise her mother about the risks of continuing a pregnancy, specifically the risk of the child being born with severe disabilities. In *Waller v James & Anor*, the plaintiffs, who were children born with severe disabilities, alleged that their mother's doctor, Dr. James, negligently failed to advise their mother about the risks of continuing a pregnancy, specifically the risk of the child being born with severe disabilities. In both cases, the plaintiffs sought damages for the injuries they sustained as a result of being born with disabilities.

The central legal issue before the High Court was whether a child born with disabilities could recover damages from a medical practitioner for the practitioner's alleged negligence in failing to advise the child's mother of the risk of such disabilities occurring during pregnancy. This raised fundamental questions about the nature of the wrong allegedly committed, the existence of a duty of care owed by the medical practitioner to the unborn child, and the assessment of damages in such circumstances, particularly concerning the concept of "wrongful birth" or "wrongful life" claims.

The High Court, by a majority, held that a child cannot recover damages for the injury of being born with disabilities. The majority reasoned that the law does not recognise a cause of action for "wrongful life" because it would require the court to conclude that non-existence is preferable to existence with disabilities, a value judgment the law is not equipped to make. Furthermore, the court found that no duty of care was owed by the medical practitioners to the unborn child in relation to the decision to continue or terminate the pregnancy. The duty of care was owed to the mother, and the damages sought by the child were not for a physical injury caused by the doctor's negligence, but rather for the condition of being born. The court distinguished these claims from cases where a child suffers injury due to negligence during birth or pre-natal treatment.

Consequently, the appeals in both *Harriton v Stephens* and *Waller v James & Anor* were dismissed. The High Court affirmed that the law does not permit a child to sue for the "wrongful" act of being born with disabilities.

Orders