Supreme Court of New South Wales

This case, which was decided by the High Court of Australia on 09 May 2006, originated from the Supreme Court of New South Wales who had jurisdiction over the case,   a tort or negligence case, pursuant to the Supreme Court Act 1970. The said Court, through Studdert J. ruled against the plaintiff. The case was then brought on appeal to the Court of Appeal of New South Wales where two (2) of the magistrates, Spigelman CJ and Ipp JA likewise ruled in favor of the plaintiff, with Mason P as the only dissentient. The majority of the Justices of the High Court of Australia ruled to dismiss the appeal with costs.

The lone dissentient was  Kirby J. The facts of the case were not disputed. Sometime in early August 1980, Mrs. Olga Harriton suffered from fever and rashes. She sought medical help from Dr. Max Stephens, father of the respondent, for fear that she might be pregnant and her illness might have an adverse effect on her unborn child. Dr. Max Stephens then recommended that she should provide a blood sample to determine whether she is pregnant and whether her illness is rubella. The pathology report disclosed the following results: "Rubella – 30

If no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities. Preg test – positive. "  [par. 210 ] Subsequently, on 22 August 1980, consulted the respondent. Despite having the pathology report in his possession, respondent gave the assurance to Mrs. Harriton that he illness was not caused by rubella virus. On 19 March 1981, Alexia Harriton was born with congenital disabilities, which include blindness, deafness, mental retardation and spasticity, as a result of her exposure to rubella virus while she was still in the womb of her mother.

Certainly, she will require constant care throughout her lifetime. Alexia Harriton, represented by her guardian and father, George Harriton, is the plaintiff in this case, who is also named as the appellant, as the case  was brought on appeal to the High Court. The respondent is Dr. Paul Richard Stephens, the doctor who gave the false assurance that plaintiff’s mother did not contract rubella. Appellant contended that she suffered grievous injury due to the negligence of the respondent for which she must be compensated.

Likewise, it is contended that the doctor should have provided information to the mother as to her illness and the possible effects thereof on her unborn child. The parties to the case had an agreed stipulation of facts for the purpose of resolving the following issues: "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? " [par. 213] The resolution of the High Court of the foregoing issues constitutes the ratio decidendi of this case, thus:  A child born to a “life with disabilities” has no cause of action against the doctor who failed to advise the mother that her child may be born with such disabilities by reason of which the mother failed to make the choice of terminating the life of the foetus. Such is not considered as an actionable wrong, hence, it does not entitle the child to any damages. For damages to be  awarded in cases of negligence, there must be proof of actual damage.

In a “wrongful life” case, there is no proof of actual damage, thus, recovery of any damage is barred. The High Court, as an obiter dictum, recognises the importance of all human beings, irrespective of any disability or imperfection. The judgment of the majority of the Court of Appeal of New South Wales was affirmed and the case was ordered dismissed with costs. As a consequence of the said order, which was issued after a determination of the merits of the case, the plaintiff may no longer claim any relief pertaining to the same cause of action in any subsequent proceedings before the High Court or any other court.