Harriton v Stephens, Waller v James & Anor, Waller v Hoolahan

[2005] HCATrans 301

[2005] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 2004

B e t w e e n -

ALEXIA HARRITON (BY HER TUTOR GEORGE HARRITON)

Applicant

and

PAUL RICHARD STEPHENS

Respondent

Office of the Registry
  Sydney  No S197 of 2004

B e t w e e n -

KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER)

Applicant

and

CHRISTOPHER JAMES

First Respondent

SYDNEY IVF PTY LIMITED

Second Respondent

Office of the Registry
  Sydney  No S198 of 2004

B e t w e e n -

KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER)

Applicant

and

BRIAN HOOLAHAN

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 11.25 AM

Copyright in the High Court of Australia

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

MR P.W. BATES:   May it please the Court, I appear for the applicant Waller in matters No S197 and S198 of 2004.  (instructed by Autore Solicitors)

MR P.L.G. BRERETON, SC:   May it please your Honours, I appear for the respondents in all three matters.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Now, Mr Brereton, having regard to the importance of the principle involved in these cases and to the division in the Court of Appeal, how can we decline special leave?

MR BRERETON:   There are very many tests for special leave which this application meets, and I do not deny that, but none of them is a substitution for the requirement that the case have ultimate prospects of success and that sufficient doubt attend the decision of the Court of Appeal.  In my submission, insufficient doubt attends the decision of Justice Studdert, the decision of the majority of the Court of Appeal, the unanimous decision of the Court of Appeals of New York in Becker v Schwartz, the unanimous decision of the Court of Appeal of Michigan in Strohmaier and the unanimous decision of the Court of Appeal of England and Wales in McKay v Essex.

GLEESON CJ:   You may ultimately succeed in persuading the Court to the point of view for which you contend, but the process of reasoning of the President of the Court of Appeal is one that we should have a look at, is it not?

MR BRERETON:   Well, can I take your Honours directly to a couple of passages in his Honour’s process of reasoning which, with respect, can be exposed.  Perhaps if you turn to page 199 of the application book – let me find a civil one, not a criminal one.  Essentially, starting at paragraph 152 on page 199, there his Honour says that:

to contend that the appellants cannot prove any loss because they cannot demonstrate the monetary value of non-existence offends common sense and principle.

And his Honour comes back to that at page 159 and says:

it offends the basic principle that a proved wrongdoer bears the evidential onus of establishing the existence and value of offsets ‑

What his Honour is saying, in effect, is that non-existence is an offset, the value of which would have to be proven by the defendants.  Now, with the greatest respect to his Honour, that proposition is absurd.  The plaintiff bears the onus of proving what the plaintiff’s condition would have been but for negligence.  In an ordinary case, the plaintiff bears the onus of proving what the plaintiff’s future would have held, what his or her earning capacity would have been, but for negligence.  That is not an offset; it is the starting point, the comparator from which loss is measured.

By an impermissible, illogical and unexplained process of reasoning, the President turns that into an offset and says the defendant has to prove what the plaintiff’s hypothetical position in the absence of negligence would have been worth.  With the greatest respect, that just does not sustain two minutes’ examination and certainly does not warrant being explored on a full hearing of an appeal.

Another point which might be explored in the President’s reasoning is at page 189, paragraph 113, of his Honour’s judgment.  His Honour there says:

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 . . . may be placed to one side.)

In our submission, that just cannot be passed off as “exceptional cases”, given the range of views which are held in this country about issues such as termination of pregnancy.  This possible conflict of interests arises and is inherent in every case.  When a doctor advises parents that a child, if conceived, may be disabled, or a child, if a pregnancy proceeds, may be disabled, there is inherently a potential conflict between the interests of the parents and the child.

GLEESON CJ:   There was no question of termination in the second and third cases, was there?

MR BRERETON:   No, your Honour, but in that case there was a question of conception.

GLEESON CJ:   That was IVF conception.

MR BRERETON:   Yes.

GLEESON CJ:   And the proposition was that if reasonable care had been exercised, they simply would never have been conceived.

MR BRERETON:   Exactly.  Now, it is impossible to see what the potential interest of the child is that would be served by the imposition of a duty to the child, as distinct from a duty to the parents.  One of the errors into which the President has, with respect, fallen is to apply to facts completely different to those considered in Cattanach v Melchior the process of reasoning of the majority in Cattanach v Melchior.

Now, of course if one took the minority reasoning in Cattanach v Melchior, that would apply a fortiori to deny the plaintiff success in this case.  In my submission, the majority reasoning in Cattanach v Melchior was a perfectly orthodox application of principle which said there was a duty owed to the parents who were the plaintiffs, they suffered loss in respect of an interest which they had, namely, not to bear the economic burden of a child in those circumstances, and they recovered that loss in respect of a breach of a duty owed to them.  Although it occurred in controversial moral and social circumstances, perhaps, the legal principle involved is far from novel or unorthodox.  It is a perfectly orthodox principle.

This case turns that on its head and says that somehow a duty is to be created to a potential child not yet in existence, in circumstances in which the result of performance of the supposed duty would be that the child would never come into existence, and somehow the child’s suffering, in the abstract, is to be measured and quantified in terms of damages when the only legitimate comparator is a state of non-existence.

If I can go to one other aspect of his Honour’s reasoning, and it is picked up also at page 189, at paragraph 114.  The President acknowledged potential difficulties in the discharge of “concurrent duties towards the mother and the child” and said it “depends on various matters”, but his Honour gives no reasons for explaining how that conflict can be reconciled.  In the absence of any such reasons, it is impossible to see how that is a basis for imposing a duty to the child on which the child can sue.

In my submission, those are enormous difficulties with the President’s reasoning.  Perhaps it is best to come back to this.  At the risk of repeating the almost notorious, “The fundamental purpose of an award of damages is to put the person who has been injured or who has suffered in the same position as he would have been in if he had not sustained the wrong”, and that has been said, as your Honours know, in many different ways in many different cases – ultimately, the dominant rule of the law in this field is the principle of restitution, and subsidiary rules can only be justified if they give effect to that rule.

The only available comparator in this case is a state of non-existence, and the law is simply not equipped to compare a state of existence with suffering with a state of non-existence.  In my submission, despite the President’s efforts to show a contrary argument ‑ ‑ ‑

GUMMOW J:   Why do you say that is the only comparator possible, conceptually, in this situation, which the law has not had to cope with before?

MR BRERETON:   Because the comparator is the situation which would obtain but for the negligence with the situation which obtains with negligence.  Existence without suffering was never an option in any of these cases.  It was never possible for the present plaintiffs to be born without disabilities.  Nothing that the doctors could do could bring about their birth without disabilities.  So that is not an available comparator.

The interest in the case – and, indeed, I was contemplating at the outset referring to Justice Gaudron’s test of “but it’s interesting, Mr Brereton”, which I remember hearing on more than one occasion – it no doubt passes that test.  But, in my submission, that does not justify taking the time of this Court, and, equally importantly, the resources of the parties, on a case which ultimately would fly in the face of established principle so far as both the owing of a duty of care and the identification of damage is concerned.  May it please the Court.

GLEESON CJ:   Very well.  In these three cases, there will be a grant of special leave to appeal. 

We will adjourn for a moment to reconstitute.

AT 11.37 AM THE MATTERS WERE CONCLUDED