Grey, Alice --- "Harriton v Stephens: Life, Logic and Legal Fictions" [2006] SydLawRw 25; (2006) 28(3) Sydney Law Review 545

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• 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?

• It was accepted that Mrs Harriton would have procured an abortion if advised of the risks of continuing with her pregnancy, and that an abortion would have been legal in these circumstances.

• Actions for wrongful life[5] are claims brought by disabled plaintiffs who assert that, but for the negligent behaviour of the defendant, they would not be in existence and hence would not be suffering the pain and impairment associated with their disability

• However, due to Dr Stephen’s conduct, Mrs Harriton lacked the necessary knowledge to make this choice. Consequently, Alexia was born suffering from blindness, deafness, mental retardation and spasticity. She requires care 24 hours per day, and will continue to require this level of care for the rest of her life.

• Mrs Harriton informed the doctor that she had been suffering from a fever and rash and was concerned that these might be symptomatic of rubella.

• He advised her that the pathology report indicated that she was pregnant, but that she had not been suffering from rubella.

• Mason P stated that the two main arguments against wrongful life claims were the proposition that life cannot constitute a legal injury, and the suggestion that damages are impossible to assess.

• He asserted that the first merely constituted a ‘question-begging conclusion’[28] and suggested that the High Court’s decision in Cattanach[29] demonstrated that the creation of life could indeed constitute actionable damage

• 30] In response to the second argument, Mason P found that the essence of the plaintiff’s claim was her present needs, and that this should therefore form the basis for the assessment of damages.[31]

• Alexia appealed to the Court of Appeal on four grounds.[20] The appeal failed,[21] with Spiegelman CJ and Ipp J finding in favour of the respondent. Mason P dissented.

• he drew upon underlying policy arguments regarding the sanctity of life, contending that duties of care must reflect values widely held in the community.[22]

• The question of whether any ‘damage’ had occurred was also determinative. His Honour found that for this aspect of the claim to succeed, it would have to be demonstrated, from the perspective of Alexia, that non-existence was preferable to life with disabilities.[23] The plaintiff’s case was not argued on this basis, according to Spiegelman J, but on the basis that her parents would have

• pp JA focused upon the plaintiff’s inability to prove that legally cognisable damage had occurred.[25] He also found that it was impossible to engage in a meaningful assessment of damages according to ordinary tort principles.[26]

• The principal issue to be determined in the case was whether Dr Stephens owed a duty of care to Alexia to provide Mrs Harriton with the necessary advice to enable her to procure an abortion, and thus bring about Alexia’s non-existence

• Given that damage is the ‘gist’ of an action in negligence,[33] reasoned the majority, the existence of a duty of care cannot be established in the abstract.

• Rather, a plaintiff must prove that the defendant owes a duty to avoid the particular kind of harm that has eventuated.

• In contrast, Kirby J placed less emphasis on the relevance of the question of damage to the existence of a duty of care

• The majority places great emphasis on the contention that damage is logically impossible to prove: although such an argument has always served as a prominent reason for courts to reject wrongful life claims, it really becomes the determinative factor[52] behind the outcome in Harriton.

• Their force as stand-alone contentions should not be confused with their significance in the context of the plaintiff’s claim as a whole, and the broader issues that surround it.

• It offers a value-neutral way to rebuff the plaintiff’s claim, allowing the court to sidestep murky issues of policy and morality surrounding the acceptability of abortion, the sanctity of life and the perceived worth of disabled individuals in society.4