Justices of the High Court

Majority of the Justices of the High Court concurred with the decision penned by Crennan J. Hayne J and Callinan J agreed that the appeal should be dismissed with cost but wrote their separate judgments. As noted earlier, dissentient was written by Kirby J. Crennan J recognised the duty of the doctor to advise a mother of any problem arising in her pregnancy as well as the duty of the doctor to care for the foetus which may be mediated through the mother.

However, her Honor rejected the theory that a doctor has a further duty of care to a foetus (when born) to advise the mother so that she can terminate the pregnancy in the interest of the foetus in not being born. She found this theory to be incompatible with the doctor’s duty to care for the mother anent her interests.

On the basis of the accepted precept that the essential element for an action for negligence is actual damage or loss and approving the statement of Chief Justice Spigelman of the NSW Court of Appeal that “to find damage which gives rise to a right of compensation it must be established that non-existence is preferable to life with disabilities”, Crennan J declared it impossible to assess actual damage on the basis of such comparison. Accodrdingly, he resolved that “life with disabilities” is not actionable.

According to Crennan J, the reliance of the appellant on the Cattanach v. Melchior case is misplaced considering that the said case which involves the discontinuation of a medical treatment is a parens patria case and it does not require the establishment of damage by comparing the present state of the person to a life of non-existence. Crennan J proceeded to rule that the value of the life of a disabled person should not be considered as less valuable than that of any other person.

In so ruling, she asserted the fundamental right to equality of all persons. Hayne J denied Alexia Harriton’s claim for damages based on the fact that she failed to show that she suffered any damage considering that she has never had and can never have any other life other than the life she has. He stressed that what the established rule recognises as damage is the “difference between what the particular plaintiff is or has and what the plaintiff was or would have had”.

While Crennan J invited comparison to a life with disabilities from non-existence which she declared impossible, Hayne J compared appellant’s life with disabilities to the life of a hypothetical “able” person. After making such comparison, Hayne J pronounced that such comparison does not show that the appellant has suffered a damage recognised by law. He advanced the theory that living with disabilities is not a form of damage. Otherwise, according to him, a rule would be adopted which is entirely dependent on the mother’s choice.

This pronouncement was based on his Honor’s analysis that if the doctor provided the proper information to the mother, it was solely the latter’s choice whether to terminate the pregnancy or not. Callinan J advanced a similar argument as Crennan J. that comparing appellant’s state of existence with the state of non-existence for the purpose of assessing damages is impossible. However, Callinan J did not anchor his decision on legal authorities or on policy considerations but on logic alone.

According to him, the claim of appellant is illogical since she is claiming damages on the basis that she should never have been born. The dissentient of Kirby J divided the issues into three (3), namely:  (1) the duty of care issue, whether it falls within the duty of the doctor to take reasonable care to avoid causing pre-natal injury to the foetus (2) the damage issue, whether the damage done to the appellant may be quantified, and (3) the policy issue, whether allowing the claim would contravene public policy.

In his dissentient, Kirby J noted that Australian authorities rejected similar claims on wrongful life. In Bannerman v Mills, the plaintiff who was born with disabilities due to the rubella virus she contracted from her mother, failed to recover any damages from the medical practitioner who failed to advise the mother to terminate her pregnancy as the action was dismissed. Similarly, in Hayne v Nyst, the mother whose child contracted rubella virus in her womb, failed to recover damages from her health care provider. The ruling in Edwards v Bloomeley was also along this line.

In the said case, the  plaintiff was the seventh child of Mr. Edwards, who was born after the latter had a vasectomy operation which was certified by his doctor to be successful. The child had intellectual as well as physical disabilities. The aforementioned authorities were evaluated by Kirby J as not appropriate for the present milieu when medical advances have made it possible to diagnose possible disabilities of the foetus. Kirby J ruled in favor of the appellant, thereby imposing a duty of care by a medical practitioner to the foetus, contrary to the ruling of the majority.

While Kirby J adhered to the compensatory principle cited in the majority decision, he professed that the same is subject to qualifications. First, the assessment of damages is not an exact science but an exercise of rough calculation. Second, notwithstanding the compensatory principle, in many instances, the courts have assigned monetary value to intangible injuries. Third, the difficulties of quantification should not prohibit recovery for damages where it is established that the plaintiff has suffered damage. Kirby J stressed that a negligent medical practitioner should not be  held blameless.

Considering that appellant has suffered and continues to suffer, respondent should be made to pay appellant special damages. It is required that decisions should have basis in law or jurisprudence. In this respect, the decision in this case is correct. Although the decision is considered correct for adhering to established principles in law, it does not mean that it is a just decision. Rather, it is an unjust decision because a medical practitioner who is apparently negligent in diagnosing antenatal disabilities of a child is held blameless for such negligent act.

The duty of care should extend to the foetus and not to the mother alone. As aptly pointed out by Kirby J, the decision may be applicable in the past but not in  recent times when medical advances already make it possible for medical practitioners to detect the possible disabilities of the foetus. The ruling of the majority allows medical practitioners to be negligent in their job of  properly diagnosing the disabilities of a foetus  and denies that child any relief for such negligence. In effect, this ruling of the High Court is the law on the matter in Australia.

Susequent cases on the  same matter will be dismissed on the basis that these kind of claims are not recognised, pursuant to the judgment in this case. Warwick J. Neville and Buddhima Lokuge, in their article entitled “Wrongful life claims: dignity, disability and ‘a line in the sand’” agreed with the decision of  the majority and commented that the responsibility of the medical practitioner towards pregnant women is not diminished by the  decision in  this case does not diminish the responsibility of medical practitioners.

They  praise the High Court for making a clear-cut distinction as to what is considered as compensable damage under the law. The stance taken by the two (2) writers is comprehensible. They belong to the medical field and the judgment made in this case is favorable to them, thus, they celebrated their triumph.


Civil Procedure Act 2005 Harriton v. Stephens, [2006] HCA 15 Neville, W. and Lokuge, B. , Wrongful life claims: dignity, disability and ‘a line in the sand. Medical Journal of Australia: www. mja. com. au. public/issues/185_10_201106. Supreme Court Act 1970