Harriton v Stephens [2006] HCA 15 - BarNet Jade - BarNet Jade

Tags

Top Highlights

• Studdert J held that there was no breach of the accepted duty of care that health care providers owe to unborn children to guard against acts or omissions which might cause physical injury because the respondent did not do anything which caused her mother to contract the rubella virus[37].

• whilst a health care provider owes a duty of care to an unborn child to take reasonable care to avoid causing that child physical injuries in utero, that duty did not include an obligation to give advice to the mother of an unborn child that could deprive that unborn child of the opportunity of life[36].

• It was common ground that, assuming that a relevant duty of care existed, the respondent was negligent in informing the appellant that she did not have rubella and in failing to arrange further and more detailed blood testing.

• It was also agreed that, in 1980, a reasonable medical practitioner in the position of the respondent would have advised Mrs Harriton of the high risk that a foetus which had been exposed to the rubella virus would be born profoundly disabled

• oes the [appellant] have a cause of action against the [respondent]?

• Nor was the respondent negligent in failing to take prophylactic measures either to ameliorate the risk of the appellant's being infected with rubella or to reduce the severity of the appellant's disabilities.  It was accepted by the appellant that no such measures exist[38].

• he appellant's claim necessitated a comparison between her present position and the position that she would have been in but for the respondent's negligence.

• As the appellant would not have been born had the respondent exercised reasonable care, Studdert J found such a comparison was "an impossible exercise"[39].

• hat public policy considerations militated against recognising wrongful life actions.