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...non-existence, second because the recognition of wrongful life actions would be contrary to sound legal policy. This case note argues that these conclusions were unjustified. The 'impossible comparison' argument ignores the comparisons between existence and non-existence routinely made in other contexts, while the policy concerns prove to be groundless on critical examination. The Court's refusal to recognise wrongful life actions was flawed as a matter of principle, policy, and justice.]
CONTENTS I Introduction II Proceedings and Facts A Harriton: Negligent Failure To Diagnose Rubella B Waller: Negligent Failure To Investigate and Warn of a Genetic Disorder III Judgments and Issues A Justice Crennan B Justice Hayne C Justice Callinan D Justice Kirby IV Duty of Care A The Wrongful Life Plaintiff Suffers No Damage B Conflict with Existing Duty of Care C Suing Parents for Wrongful Life V Establishing Damage: The 'Impossible Comparison' Argument A Necessity of a Comparison with Non-Existence B Impossibility of the Comparison C Comparisons with Non-Existence in Law D Comparisons with Non-Existence in Common Sense E Justice Crennan's Response VI Recoverable Damages A Damages for Life with Disabilities B Objection Based on the Compensatory Principle C Damages for Disability D Objection Based on Causation VII Policy Concerns A Devaluing the Lives of Disabled People B Specifying the Gravity of Disability C Differential Treatment of Disabled People D The Equal Culpability of Killing VIII Summary of the Case for Wrongful Life IX Conclusion
I INTRODUCTION
Common law jurisdictions have generally been hostile to actions for 'wrongful life', (1) where a disabled plaintiff born as a result of medical negligence sues the negligent doctor for the pain and suffering and the financial costs of life with disabilities. (2) The High Court considered wrongful life for the first time in Harriton and Waller. In Harriton, the plaintiff's disabilities resulted from her mother's exposure to rubella during pregnancy. In Waller, the plaintiff's disabilities resulted from a genetic blood clotting disorder. In both cases, the plaintiffs owed their very existence to the doctor's conduct. If the negligence had not occurred--if the doctors had properly informed the parents of the risks of disease and disability--then the parents, who did not want a disabled child, would have prevented or terminated the pregnancies, and the plaintiffs would never have been born. The fact that the doctors were responsible for the disabled plaintiffs' very existence placed the claims in the category of wrongful life. (3)
The High Court held by a 6:1 majority (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting) that wrongful life is not a valid cause of action. It was held that the plaintiffs could not prove they had suffered damage, because proving damage would require an impossible comparison between the plaintiffs' present state--life with disabilities--and non-existence (the state in which they would have been had the negligence not occurred). (4) The majority also gave policy reasons for rejecting wrongful life actions. (5) The result is that, where a child is born as a result of medical negligence, Australian common law--in line with jurisprudence in the UK, (6) Canada, (7) and most US states (8)--will recognise an action by the parents for wrongful birth, but not an action by the child for wrongful life. (9)
It will be argued that Harriton and Waller were incorrectly decided. Contrary to the High Court, wrongful life actions are consistent with ordinary tort law principles; the 'impossible comparison' argument fails; and the policy arguments against recovery are weak. By depriving wrongful life plaintiffs of the means to secure the care and treatment they deserve, the High Court has inflicted a serious injustice.
II PROCEEDINGS AND FACTS
The parties in Harriton and Waller agreed on a set of facts to allow the determination of two threshold issues at a joint preliminary hearing in the Supreme Court of New South Wales: whether wrongful life is a valid cause of action; and if so, what categories of damages are recoverable. (10)
In the Supreme Court, Studdert J held that wrongful life is not a valid cause of action, and that no damages are recoverable. (11) This decision was upheld by the Court of Appeal, (12) and by the High Court. (13) Since wrongful life was rejected as a cause of action, the matters never reached a full hearing.
A Harriton: Negligent Failure To Diagnose Rubella
Alexia Harriton was born on 19 March 1981 with severe congenital disabilities, caused by her mother, Olga, having been exposed to rubella during the first trimester of pregnancy. (14) In August 1980, Olga had visited her general practitioner, Dr Max Stephens, because she thought she might be pregnant, and was concerned that her recent fever and rash might have been rubella. Dr Stephens ordered blood tests. The pregnancy test was positive, while the rubella test result was inconclusive but stated: 'If no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities.' (15)
Olga received these test results from Dr Paul Stephens, the son of Dr Max Stephens, who worked at the same practice. Dr Paul Stephens listened to Olga's history, reassured her that her illness was not rubella, and referred her to a gynaecologist for further management of the pregnancy.
The reassurance was a mistake. Since Olga had recently had a 'rubella-like rash', proper practice would have been to order a follow-up blood test for rubella antibodies. Had the test been ordered, it would have shown that Olga did in fact have rubella. Such a diagnosis would have revealed the risks of congenital abnormalities for the foetus, which would have led Olga to terminate the pregnancy lawfully. As it was, she was not diagnosed, the pregnancy was not terminated, and Alexia was born with disabilities including blindness, deafness, mental retardation, spasticity and the need for 24-hour lifelong care.
Since the limitation period for a wrongful birth action had expired, (16) Alexia herself (by her father and tutor, George Harriton) brought proceedings against Dr Paul Stephens.
B Waller: Negligent Failure To Investigate and Warn of a Genetic Disorder
Lawrence and Deborah Waller visited their general practitioner because they had experienced trouble conceiving a child. (17) After a test showed that Lawrence had a low sperm count and motility, the practitioner referred them to a fertility specialist, Dr Christopher James. The referral letter noted that Lawrence had anti-thrombin 3 ('AT3') deficiency, a genetic condition that causes blood clots. Dr James discussed the condition with the Wailers, but did not investigate it further or provide advice in relation to it. He arranged fertility and other tests (performed by the infertility treatment clinic, Sydney IVF), and recommended that the Wallers begin in vitro fertilisation ('IVF') treatment. They did so, and Deborah became pregnant.
When the pregnancy was confirmed, Dr James referred Deborah to an obstetrician, Dr Brian Hoolahan, for antenatal care. Dr Hoolahan ordered tests that ruled out Down syndrome, but he did not investigate the AT3 deficiency or provide any advice in relation to it.
Keeden Waller was born on l0 August 2000. He had inherited genetic AT3 deficiency from Lawrence, but because this had not been diagnosed at the time of birth, Keeden was discharged from hospital on 14 August 2000. A day later he was brought back to hospital suffering cerebral thrombosis. The thrombosis resulted from his AT3 deficiency, and caused severe permanent disability including brain damage, cerebral palsy, uncontrolled seizures and the need for lifelong care.
On the agreed facts, Dr James, Sydney IVF and Dr Hoolahan should have investigated Lawrence's AT3 deficiency and advised the Wallers that there was a 50 per cent chance of the deficiency being transmitted to any children. Had they done so, Deborah would have delayed IVF until tests to rule out transmission were available, used donor sperm, or terminated the pregnancy. As it was, she was not informed, Keeden was born, and the disabilities soon followed. Keeden brought proceedings (by his tutor Deborah) against Dr James, Sydney IVF and Dr Hoolahan. (18)
III JUDGMENTS AND ISSUES
A Justice Crennan
The leading majority judgment was delivered by Crennan J, and adopted by Gleeson C J, Gummow and Heydon JJ. Crennan J held that the doctor's alleged duty of care to the child should not be recognised, because that duty could be incompatible with the doctor's existing duty of care to the mother, thereby 'introduc[ing] conflict, even incoherence, into the body of relevant legal principle'. (19)
Crennan J also accepted what may be called the 'impossible comparison' argument. Ordinary tort principles require plaintiffs 'to prove actual damage or loss'--to prove they are 'worse off as a result of the negligence' than they would otherwise have been. (20) In the case of wrongful life, this requires establishing that non-existence--the state in which the plaintiff would be had there been no negligence--'is preferable to life with disabilities', which is the state the plaintiff is in 'as a result of the negligence'. (21) However, as a court lacks 'experiential access to non-existence', (22) any such comparison between existence and non-existence is 'impossible', (23) and no damage (nor indeed any duty of care) can be established.
Similarly, the purpose of damages is to place the plaintiff, so far as possible, in the same position as if the negligence had not occurred--a principle which, when applied to wrongful life, would require another impossible comparison between existence and non-existence. (24) Therefore, no damages can be awarded.
Crennan J also raised policy concerns about: the 'risk of a parent being sued by the child' for wrongful life; (25) devaluing the lives of the disabled; (26) the possibility of claims for trivial disabilities; (27) differential treatment of the disabled; (28) and infringement of the principle that the killing of disabled and non-disabled people is equally culpable. (29) Her Honour concluded that '[l]ife with disabilities, like life, is not actionable', (30) and hence wrongful life actions must fail.
B Justice Hayne
Hayne J stressed that harm or damage is an essential element of negligence, (31) and that these concepts necessarily require a comparison. (32) The required comparison is between 'what would have been and what is'--between 'the [actual] position of the particular plaintiff', and the position in which the plaintiff would have been 'had the tort not been committed.' (33) In wrongful life actions, this would require a comparison between life with disabilities (the plaintiff's actual position) and non-existence (the position in which the plaintiff would have been had the tort not been committed). However, '[a]s the reasons of Crennan J demonstrate,' (34) such a comparison is impossible; hence wrongful life actions must fail for lack of provable damage.
Hayne J thus endorsed the same 'impossible comparison' argument as Crennan J, although his Honour did not rely on additional policy arguments, and preferred to 'leave aside any consideration of what [the lack of provable damage] might suggest about the existence of a duty of care.' (35)
Finally, his Honour rejected the view that promotion of careful medical practice would justify extending the ordinary concept of damage to allow wrongful life actions. (36) The extended concept of damage 'would, at best, have only indirect effects on the promotion of careful medical practice', (37) because it would apply only in those limited cases where the mother is inclined to prevent or terminate pregnancy. (38)
C Justice Callinan
Callinan J noted that there are 'policy concerns arguing in both directions', (39) but thought the issue of wrongful life could be decided 'on logic' alone. (40) The plaintiffs, his Honour said, claimed damages 'upon the basis that [they] should never have been born'. (41) However '[i]t is not logically possible for any person to be heard to say' (42) that they should never have been born, because if they had never been born then they 'would not have been able to say anything at all.' (43) Hence the action must fail.
If the 'logic' here is difficult to follow, that is perhaps because it is a complete non sequitur: a non-being's inability to say something (such as that he or she should never have been born) hardly prevents a plaintiff who does exist from saying the same thing. Nevertheless, the broader point--reading charitably -is presumably that if the plaintiffs had never been born, they would not exist, and so would have no voice, no perspective--nothing on which to base any kind of comparison. To the extent, then, that it does not rest on an elementary logical error, Callinan J's judgment appears to repeat the 'impossible comparison' argument of Crennan and Hayne JJ.
D Justice Kirby
Kirby J held, in dissent, that wrongful life actions can succeed on 'ordinary principles of negligence law'. (44) His Honour saw the issues of breach and causation as straightforward, since the parties agreed that if a duty of care was owed then it was breached, (45) and the defendant's conduct was clearly a cause (though not the sole cause) of the plaintiff's suffering, since the suffering would have been avoided if the negligent conduct had not occurred. (46) The remaining issues were duty of care, damage and damages, and policy.
Although wrongful life actions differ in some respects from other cases, Kirby J saw the doctor's alleged duty of care as 'unremarkable', (47) and as 'within the [established] duty owed by persons such as the [defendant] to take reasonable care to prevent prenatal injuries to a person such as the [plaintiff].' (48)
On damage and damages, Kirby J held that the 'impossible comparison' argument 'falls away entirely' for special damages (the costs of gratuitous care and medical treatment). (49) Since the plaintiff 'would not have any economic needs had the defendant exercised reasonable care', (50) the negligence has caused a loss and the plaintiff could recover accordingly: 'In this respect, at least, the assessment of the appellant's damages presents no unusual or peculiar problem whatsoever.' (51) Moreover, the 'impossible comparison' argument fails even for general damages (pain and suffering), because the courts have 'for some time ... been comparing existence with non-existence in other legal settings', (52) such as withdrawal of treatment cases, and 'it is arguable that a life of severe and unremitting suffering is worse than non-existence.' (53) In such cases, general...
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