<em>Harriton</em> is Down: Wrongful Life, Damage and The Duty of Care

Although not strictly technology-related, I note with interest that the High Court of Australia today handed down judgment in Harriton v Stephens. In this long-awaited decision, the Court dismissed an action brought on behalf of a child disabled as a result of exposure to the rubella virus in utero. The Court was called upon to decide the matter as a question of law only, in terms of whether a duty of care was owed to the unborn foetus in these circumstances by the diagnosing physician, and whether the plaintiff has suffered an actionable harm. The plaintiff unsuccessfully argued that the doctor’s failure to advise the mother of the risk to the child amounted to negligence (or alternatively breach of contract).

In the result, Hayne J rejected the claim on the narrow basis that no cognisable damage was done to the plaintiff, since properly advising the mother would have entailed terminating the pregnancy, thereby denying the plaintiff any existence at all. In addition to this basis, Crennan J (with whom Gleeson CJ and Gummow J agreed) raised doubts about the existence of a duty of care. Justice Kirby dissented on the basis that the duty issues were not insurmountable and that damage could be quantified in the normal manner for personal injury cases.

The running theme throughout the majority judgments is that a disabled life is better than no life at all. In one of Crennan J’s first judgments of any length, her Honour appears to take the view that burdening a doctor with a duty of care to a foetus when advising an expectant mother so that she may terminate a pregnancy would be incompatible with such a doctor’s duty to to the mother, and that — in any event — no damage can arise as a result of occasioning an existence, since any comparison with the alternative (non-existence) is impossible. Interestingly, her Honour also speaks for Gleeson CJ and Gummow J.

The following paragraph provides a useful summary of the issues that combined to defeat the plaintiff’s claim:

The … autonomy of a mother in respect of any decision to terminate or continue a pregnancy, the problematic nature of the right or interest being asserted, the uncertainty about the class of persons to whom the proposed duty would be owed and the incompatibility of the cause of action with values expressed generally in the common law and statute all support the conclusion that the appellant does not have a cause of action against the respondent on the agreed facts. For these reasons Cattanach v Melchior represents the present boundary drawn in Australia by the common law (subject to retreat of the legislatures in New South Wales, South Australia and Queensland) in respect of claims of wrongful birth and wrongful life. Life with disabilities, like life, is not actionable. (citations ommitted)

The result, although eminently predictable given comments made by the Court in Cattanach v Melchior, has been vigorously defended by medical groups and academic commentators. Although this decision hardly looks set to become Australia’s Roe v Wade, it is certainly an interesting decision for followers of tort law and policy.