Harriton v Stephens; Waller v James & Anor

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.