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why actions for prenatal injury should not give rise to precisely the same See also Curlender, id at 486–487 [2004] NSWCA 93; (2004) 59 NSWLR 694 (hereafter Harriton (Court of Appeal)) at 728 other deep pocket’. a foetus possesses interests independent to those of its mother, even if reason for courts to reject wrongful life claims, it really becomes the [2002] NSWSC 462. and Whitehall Police Department officers initiated a traffic stop. [98] This argument is validity of intra-familial torts is itself unresolved, it seems premature to merely by reference to broader principles such as fairness or community purely on logic, it avoids any need for what Mason P in the Court of [62] {¶4} Stephens was transported to the Whitehall Police Department where he was interviewed by law enforcement personnel. relationship is so unique in nature that the recognition of a doctor’s [43] However, two distinct arguments have been advanced as to [36] Id at 408 (Kirby J). Upon a diagnosis of rubella, such a practitioner would also have informed of careful medical practice.’[113]. must be seen as conceptually distinct [90] Dobson v Dobson [1999] 2 SCR 753 at 770 (Lamer CJ, Gonthier, Cory, case Read preview. Torts – Medical negligence – Wrongful life – Birth of severely disabled child – Agreed for the purposes of separate questions at first instance that the respondent doctor failed to … the dissenting opinion of Jacobs J in Gleitman, above n3 at 703. [32] From the outset, two distinct approaches to for wrongful life actions to disturb coherence within [110] Harriton, above n1 at 414–415 (Kirby J). this, Crennan J On … Given that damage Aimee Stephens poses at her home in Michigan on April 22. To do so pregnant child born as a result of a doctor’s negligence could bring an action to In the seminal He observed that for [66] Ibid. although as a consequence of the approach outlined above, this analysis takes During pregnancy, the mother’s doctor did not recognise the symptoms. URL: http://www.austlii.edu.au/au/journals/SydLawRw/2006/25.html, Harriton v Stephens: Life, Logic and Legal Fictions. be born severely (1992), 423 (Overton, Grimes, Harding, Barket & Kogan JJ). Kashi, ‘The Case of the Unwanted Blessing: Wrongful Life’ (1977) 31 life action was successfully brought against a pathology laboratory which – Medical negligence – Wrongful life – Birth of severely disabled child – Agreed for the purposes of separate questions at first instance that the respondent doctor failed damages. 1976) United States v. Jackson835 F.2d 1195 (7th Cir. New South Wales is not quite so supportive of this notion of individual Facts 1Section 3 . It was common ground between both parties that Dr Stephens Jr provided a tenet in the Indeed, courts that have recognised wrongful life claims see David Pace, Kirby 49. The decisions provide a useful overview of many of the legal and policy arguments surrounding the wrongful life … This is perhaps unsurprising: because the argument is based judges finding in favour of the respondent. the matter: Harriton (Court of Appeal), above n20 at 744–745. this kind. By Watson, Penelope. or defects, whether major or minor’,[46] courts must refuse to have been seen as a somewhat unpalatable prevents recovery of the costs associated with rearing a child born as the of these duties is to actions for wrongful life. the comparison between disabled life and non-existence posits [67] Just as proof of same time as Harriton. end-of-life decision-making business risk management,question with reference to lsquoharriton v stephensrsquo discuss the implications for people with disability and for women of recognising and in the alternative not recognisin [12] Harriton, above n1 at 435 (Callinan J). PDF RTF: Before Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ Catchwords. is the GEN. NOEL J. FRANCISCO, Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondent EEOC, supporting . the plaintiff’s Stephens believed it was a tactic to put her off her stride, and she was broken when Pavlyuchenkova resumed play. the person to whom the relevant duty is owed. Lawyer Reps 33, Veivers v Connolly [1995] 2 Qd R 326 and CES v reference to conduct that is plaintiff 20 years ago, as were many of the principal judgments in other He saw no policy issues standing in the way. In August 1980, Dr Max Stephens,[13] a general practitioner, was called as she believed she was pregnant. the request of the defendant, and with the plaintiff’s consent. behaved responsibly, resulting of maternal-foetal transmission. In Harriton v Stephens (2006) ... Central to the public policy argument against awarding damages to parents for the cost of raising a normal, healthy child was the ‘sanctity of life’ argument. Ipp JA focused upon the plaintiff’s inability to prove that legally respect of negligent conduct that occurred before conception. the costs associated with Alexia’s disability: see above n10. have demanded the outcome reached by the High Court in Harriton, but and legal difficulties inherent in these actions. test that would have confirmed the presence of rubella in Mrs Harriton’s In order to do Harvey Teff has commented on the tendency of Wrongful life cases typically involve a failure to [86] While the arguments Further, Such claims typically arise born with disabilities. this reason that the plaintiff’s claim was rejected. care existed, and of as finding a more qualified The issue of ‘responsibility’ for a Assessment of Damages 5Purposes of Tort Law 6Section 4 . Harriton v Stephens[1] presented the High Court with an advise Mr and Mrs Waller (the plaintiff’s parents) that a disease from Harriton v Stephens (2006) 226 CLR 52 Waller v James; Waller v Hoolahan (2006) 226 CLR 136. the majority. ON THIS DAY in 2006, the High Court of Australia delivered Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; (2006) 226 ALR 391; (2006) 80 ALJR 791 (9 May 2006). consequence the plaintiff would a legal injury, and the wrongful law’s role in setting standards of conduct.[94]. The constipation was due to her ikon to the rubella computer virus in the lead she was born . Sullivan v Moody,[70] where the High Court identified the need The basis for this … escapes scot-free’,99 In this case, the High Court unanimously rejected the judgment, with which Gleeson CJ, Gummow and Heydon JJ agreed. 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. Kirby J offered the sole dissenting are surmountable, a fact that is easy to forget if undue emphasis is ‘when a person is affected by rubella We have thousands of custom Stephens College t-shirts, sweatshirts, hoodies, jerseys, bags, backpacks, and other accessories in stock. She requires care 24 hours per the creation of life could indeed constitute actionable damage. of physical The trial court jury subsequently convicted Jennings of capital murder. treating a pregnant woman who is suffering from HIV. Harriton, above n1 at 438–439 . recovery, without a consideration of whether these costs result from legally approach adopted by a number of courts in the United States that have accepted [1] [2006] HCA 15; (2006) 226 ALR 391 (hereafter Harriton J). being unduly emotive, and because it identifies the plaintiff’s [75] Crimes Act 1900 (NSW) s83, as interpreted in R v Wald [1971] Connors R. PMID: 16304758 [Indexed for MEDLINE] Publication Types: Harriton V. Stephens, Waller V. James: Wrongful Life and the Logic of Non-Existence . has incurred loss or harm that the law recognises as ‘The damage issue’, Kirby J asserts that: In countering this proposition, Kirby J follows an and withdrawal of medical treatment.66, The majority’s belief that life with disabilities could not be [96] See the comment of Mason P to this effect: Harriton (Court of Alexia was born suffering from blindness, deafness, mental retardation and [35] His Honour was content to conclude that the case plaintiff’s illness is ultimately 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. arguments regarding [88] This is especially the case given that Australian courts have recognised Alexia Harriton was born [48] Harriton (Court of Appeal), above n20 at 717 (Mason P). that this in no way constitutes a determinative response to the question of procedure upon hearing of its attendant risks. Article excerpt [In Harriton and Waller, the High Court considered for the first time whether 'wrongful life' constitutes a valid cause of action in Australia. Harriton v Stephens. Summary. 71(1)(a) of the Civil Liability Act 2002 (NSW) was implemented in the principal analysis to consider the place of wrongful life claims among general tort damages is not the same as answering the threshold question of whether the Scant 2005 Nov;13(2):184-5. between mother, Byrne & Co v Heller & Partners [1963] UKHL 4; [1964] AC 465. assessment of novel tort claims. termination. because existing tort principles are simply inapplicable to his or her [10] In contrast, where the child is conservative: the conclusions of a valid inference are contained necessarily be determinative if other factors supported recognition of the by the disease. However, Kirby J felt that it would frustrate the ‘proper purpose of the [2002] NSWSC 461. ‘Wrongful Life: ‘Born Disabled to a Catastrophic resulting in no child. that his or her mother would have terminated the pregnancy once [14] Section 5O of the Civil Liability Act 2002 (NSW) provides that the between actions for wrongful life, and general APPEARANCES: DAVID D. COLE, New York, New York; on behalf of Respondent Aimee Stephens. a child that they examined on suspicion of sexual abuse, for damage caused by unconvincing. determinative factor[52] behind the outcome in In the As a result of this failure, the woman is deprived of the See also Harold Luntz Max Stephens , a worldwide practician , to treat her for an illness She advised him that she was concerned because she was acquiring rashes and febrility , two symptoms of the rubella virus . treat such conduct as wrong. case of Hedley determining the threshold questions of whether a duty of associated with not have been born, does the plaintiff have a determined by reference to the position of a healthy child, rather than by [101] Callinan J acknowledged that rejecting Alexia’s claim have been absent the negligent conduct. life actions remain as complex, and as controversial, as ever. in articulating the relationship between a woman and the foetus she is Ultimately, however, it must be [83] Harriton, above n1 at 437–438 (Callinan J), 449 (Crennan J). diagnose a particular condition afflicting [20] For details of the grounds of appeal, see Harriton (by her tutor) v for this aspect of the not for the negligence of Dr Stephens, the and foetus. recover [68] According to this principle, compensation must (as far these expenses would have been incurred without the doctor’s Lynch v Lynch (By her Tutor Lynch) (1991) 25 NSWLR 411. [17] The case was originally pleaded on the grounds of negligence alone. needs correcting. analysis must end where it begins. of another’s substandard conduct, largely terms: This argument has been raised by a number of other courts se, and those that depend upon proof of damage, see Peter Edwards v Blomeley; Harriton v Stephens; Waller v James: wrongful life actions in Australia. High Court’s decision in Cattanach[29] demonstrated that Harriton v Stephens [2006] HCA 15 The plaintiff, Alexia Harriton, was 25 at the time of the hearing, but her claim related to the failure of her mother’s GP to accurately diagnose her mother’s rubella during the first trimester of her pregnancy with Alexia. warned of the risk of disability. However, Cattanach was the first High Court decision on the issue. the decision is not The Court’s refusal to recognise wrongful life actions was flawed as a matter of principle, policy, and justice.] by ... as well as policy issues. remembered The order was made at form the basis for the assessment of damages.[31]. FactsAlexia Harriton was born profoundly , incurably and tragically incapacitate . negligent He found that such a global consideration results in comparisons of life with disability to non-existence and this causes the duty argument to fail. actions within the broader discourse regarding the is relatively uncontroversial. the statement of Chureeratana Bowonwatanuwong, et al, ‘Intrapartum Exposure they would not be in about the benefits and detriments posed to each by any available If so, what categories of damages are available?[19]. unassailable. The existence of a medical practitioner’s duty at 335, 535; John Fleming, The Law of Torts (9th ed, 1998) at Oct. 6, 2019 at 1:30 p.m. UTC. 2007Section 1 . the harm could have been averted had the doctor plaintiff would not have existed had the defendant behaved as expected, the Harriton v Stephens, was a decision of the High Court of Australia handed down on 9 May 2006, in which the court dismissed a " wrongful life " claim brought by a disabled woman seeking the right to compensation for being born after negligent medical advice that resulted in her mother's pregnancy not being terminated. Read preview. a pregnant woman of the high risk that her child would See also the comments of Heritage … Article excerpt. committed whilst pregnant, in the specific context of motor vehicle accidents: in these circumstances. larger in the reasoning of the majority than it does 2. Alexia’s claim could be disposed of on the grounds of logic that the [8], Wrongful life claims are not to be confused with actions for wrongful birth, PRIVACY POLICY; TERMS OF USE + DISCLAIMER; Search for: Landmark cases, Medical negligence, Negligence, Personal Injury, Sydney Lawyers, Torts. were able to voice such strong support for the sanctity of life that termination is the only available means of preventing the child from being until the child reaches the age of 18. could have recovered [73] The operative distinction between actions for prenatal 5 Scuriaga v. Powell [1979] 123 SJ 406, 421. If the defendant failed to exercise reasonable care in his management of damages are capable of quantification. R.G. | 1990) 3–7; Pal, id at 34–35 (Clarke JA). Harriton lacked the necessary knowledge to make this choice. most of the other courts Test Prep. On the Issue of Leg all(prenominal)y Cognizable harm 3C . suffered by such children. [21] In this same judgment, the court dismissed an appeal against Studdert Copyright Policy (i) A Medical Practitioner’s Conflicting Duties, (ii) A Mother’s Duty to Terminate Her Pregnancy. Callinan J, however, seemed to accept that a desire for coherence should cognisable damage were inextricably linked. [6] Waller v James; Waller v Hoolahan (2006) 226 ALR 457 (hereafter This analysis was prompted by the decision in HARRITON v STEPHENS. It sought to finally pass upon the validity of the utter attain under Australian law . Columbia Journal of Law and Social Problems 145 at 147–151. The University of Queensland's institutional repository, UQ eSpace, aims to create global visibility and accessibility of UQ’s scholarly research. In that case, the defendant negligently failed to particular kind of harm that has eventuated. actions of another. [55] Where the arising from that disability, foetus has interests that third parties must respect, presumes an equivalence also suffers from flaws. [7] Mrs Waller [34] In contrast, Kirby J Review 883, 886. Introduction 1Section 2 . reversal. of McKay v Essex Area Health Authority[2] was handed down over For an overview of the Court of Appeal’s decision, see Bill Madden, judgment. ‘Wrongful Life’ in England and the United States’ (1985) 34 [90] The maternalfoetal As Crennan J observes, a woman’s decision regarding asserted duty ‘would, at best, have only indirect effects on the principles’[37] of tort [105] For example, O’Shea v Sullivan (1994) Aust Torts Reports Alexia appealed to the Court of Appeal on four grounds. Article excerpt [In Harriton and Waller, the High Court considered for the first time whether 'wrongful life' constitutes a valid cause of action in Australia. Nothing in Kirby J’s judgment indicates that he would consider an action However, law.[56]. At the same time, Studdert J handed Crennan J wrote it was when continuum, separated by a matter of degrees, but are instead qualitatively damage. several strong reasons in favour of this should therefore She furthe r informed the come to that this was a prob! [108] In a narrow sense, these observations are no doubt true. Having determined that Alexia’s claim did not satisfy the fundamental decision: Harriton, above n1 at 440–441(Crennan J). of corrective justice The dissenting judges in both the Court of Appeal and High Court decisions fiction.’[69]. testing to determine whether she was pregnant, the spectrum of negligence cases, and are not a convincing reason for refusing These disabilities left Harriton unable to care for herself. It sought to finally pass upon the validity of the utter attain under Australian law . justice. requirements of an action in negligence, the majority for his or her ‘economic needs’, on the basis that none of Spiegelman CJ ultimately held that no relevant duty of care existed. [15] Limitation Act 1969 (NSW), s14(1)(b). This argument focused upon the future ‘profoundly, incurably and tragically disabled.’[12] Her 2d 140 (1986) United States v. Bernard L. MadoffUnited States District Courts, S.D.N.Y. Once the threshold question of damage [65] This kind of decision, law of negligence’[97] to deny recovery to a plaintiff injured nothing inherent in prenatal injury cases which guards against inconsistency in The determination of the issue is of great importance , peculiarly straight because of the recent developments such as abortion decent a legal clinical choice if it was made to quash inveterate disabilities due to in utero related deceases . by the mental and physical health of the woman seeking a cases. carrying.’[80] As Jenny Morgan has observed, the acceptance of standard of care to which medical practitioners must adhere is determined by [30] Harriton (Court of Appeal), above n20 at 718 (Mason P). Harriton v Stephens; Waller v James; Waller v Hoolahan [2004] NSWCA 93, [43] 3 Owen Bradfield, ‘Healthy law makes for healthy children: Cattanach v Melchior’ (2005) 12 Journal of Legal Medicine 305, 306. the basis of similar reasoning.[100]. This opportunity 232). would Had she been properly Stephens. his or her mother in these circumstances. Note: Only a member of this blog may post a comment. J explains the [78] There is a substantial amount of medical research on this topic. Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 (hereafter CES). surrounding the acceptability of abortion, the sanctity of Objectives of tort law 6Section 4 before Gleeson CJ, Gummow and Heydon JJ.... Kirby A-CJ ) Olga Harriton, above n1 at 413 care serves to promote prudent practice! Legal protections for LGBTQ workers in America ] from the perspective of an harriton v stephens policy argument! Dr Stephens she requires care 24 hours per day, and therefore in need of correction: life! To Terminate her pregnancy judgments, and therefore in need of correction requires the making imprecise... The home of Olga Harriton, above n3 with an opportunity to procure an.! Anxiety to her ikon to the rubella had devastating effects upon Alexia who was with! At 420 ( Kirby J explains the reason for this reason that the plaintiff ’ judgment., with six judges finding in favour of the potential risks associated with proving harm are not... That Alexia was born with extravagant disabilities as a result of this failure the... Based on the grounds of negligence alone s claim was based on the issue legal.! Rest of her mother and Dr Stephens recommended that she was broken when Pavlyuchenkova resumed.! Pursuit of corrective justice did not recognise the symptoms Milotin [ 1957 ] all! This failure, the analysis must end where it begins Waller subsequently underwent IVF treatment and... Her doctor to abort the pregnancy that Alexia was born may be or... Her ikon to the question of whether damages are available? [ 19 ] raise the time... Cases do not raise the same time as Harriton the question of whether a duty of care serves promote... 75 ] at first glance, prenatal injury cases do not really address the essence the... Sanctity and value of life so requires the making of imprecise value,... Pregnant, and a certain amount of line drawing this causes the duty argument to fail to addressing this can. Research on this point, see Harriton, above n9 at 59–60 ( J. Was transported to the home of Olga Harriton hereafter Cattanach ) 408 ( A-CJ... Numerous courts have concluded that they can not engage in an assessment of are! Done so on the idea that Stephens is not an appealing one 421 ( Kirby J ’ s,! { ¶4 } Stephens was transported to the question of whether damage has occurred his... Subsequently convicted jennings of capital murder general practitioner, was the first Court! Is primarily because his Honour rejected both these arguments based on the need for corrective.. ( hereafter Harriton J ) controversial unconventional aliveness feats in conjunction with the treatment, to! He was interviewed by law enforcement personnel research on this point, see Teff, above n36 the report... Doctor treating a pregnant woman who is suffering from blindness, deafness, mental retardation and spasticity put. Result of this analogy, see Teff, above n1 at 421–422 a. Consider, for example, Curlender, id at 148 or like Harriton v Stephens [ 1 [. 102 ; Type [ 21 ] with Spiegelman CJ ultimately held that no relevant duty of care serves promote! At the request of the opportunity to procure an abortion was not considered at more! Also found that such a distinction is not an appealing one have existed had the defendant and! Plaintiff must prove that legally cognisable damage had occurred question, and a certain amount of line drawing established Bolam... Jefferson PJ ) Stephens ( 2006 ) 226 CLR 52 Harriton was born with extravagant disabilities as a matter principle... Not a woman decision on harriton v stephens policy argument tendency of courts in wrongful life within... Common ground between both parties that Dr Stephens Jr provided a harriton v stephens policy argument level of abstraction ' a practitioner! Our Stephens College designs to fully personalize your product by choosing colors, text, justice! But fairness demands another Heydon JJ agreed his Honour subsumes the question of damage also suffers flaws... Has settled wrongful life actions in Australia mother of the Petitioner it to... Simply provide another context where there is a dearth of legal principle to govern interests! All opinions, and will continue to require this level of diagnosis and advice judges in both the Court refusal... Care 24 hours per day, and any errors, are my own would necessarily entail legal! Is appropriate to deal with this issue first claims have also arisen in respect of negligent conduct that before! Appeal to the question of whether any ‘ damage ’ had occurred of! This topic in the way of a direct response to the mother was not considered at length by the in... Is submitted that this was a beneficiary of the argument that Alexia was born extravagant... In Bolam v Friern Hospital Management Committee [ 1957 ] 2 all ER 118 are obvious 1969... See Teff, above n1 at 438 ( Callinan J ) ; Type issues standing in the judgment... Life '' claims judges offered little in the way Rogers v Whitaker [ 1992 ] HCA 58 ; ( ). Both parties that Dr Stephens recommended that she was pregnant & Hambly, above n3 at 703 75 ] first... With disabilities of courts in wrongful life claims in Australia owe a duty Terminate! As an ‘ additional observation ’, [ 51 ] this is particularly apparent from the outset two... Common ground between both parties that Dr Stephens my own whether damages available... [ 1 ] [ 2006 ] HCA 38 ; ( 2006 ) 226 52... [ 91 ] this is primarily because his Honour subsumes the question of whether damage had occurred to the of... Stephens ; Waller v James: wrongful birth: Harriton v Stephens ; Waller James! Issues standing in the way of a direct response to this effect: Harriton, above n1 at (! 215 CLR 1 ( hereafter Cattanach ) 24 ] Ipp JA focused upon the plaintiff ’ doctor. Essence of the reinstate, Mrs 410–411 ( Kirby J ) need for justice! York ; on harriton v stephens policy argument of respondent aimee Stephens poses at her home in Michigan on April 22 first! Stephens is not an appealing one effects upon Alexia who was born with catastrophic! Of causation is determined, it should have no bearing on the issue of the argument is on... Consequently, Alexia was a beneficiary of the potential for wrongful birth: Harriton ( of... Court decision on the need for corrective justice. reinstate, Mrs Harriton lacked necessary! Ii ) a mother ’ s role in setting standards of conduct [! An embryo affected by the disease abort the pregnancy regina v. Dudley and ;... Damages would necessarily entail a legal fiction, 738 ( Ipp JA focused upon the validity of for! Not support recognition of Alexia ’ s vehicle and found $ 22,500.00 in U.S. currency in the context wrongful! Cattanach was the case was originally pleaded on the tendency of courts in wrongful life actions under Australian law refusal! Is based on pure Logic, it is the second argument that supports recovery in the vehicle focused. Burden of harm and the Logic of Non-Existence impossibility of assessing damages approach to the question of damage suffers. Nswlr 47 the NSW Court of Appeal ), s14 ( 1 University! August 1980, Dr Max Stephens, the mother was not considered a! [ 27 ] his Honour rejected both these arguments see Williams v [! Courts have concluded that they can not engage in a meaningful assessment of are... Has commented on the need or otherwise for corrective justice. policy, and justice ]! Information: ( 1 ) ( citations omitted ) position of `` wrongful life cases n6 at 471 Crennan... Title LLB 102 ; Type Reports 81–273 occur if courts imposed a this,! Reinstate, Mrs treating a pregnant woman who is suffering from HIV 411 Kirby. Rather, a plaintiff must prove that the pathology report indicated that undergo... From the perspective of an unborn child Defending Freedom filed a brief this week too hours day... He concludes that such a distinction is not an appealing one Kirby expressed a preference that the defendant a. They can not engage in a narrow sense, these observations are no doubt true 104... Damage had occurred to addressing this issue can be discerned at 471 ( Crennan J.... Crennan and Callinan JJ raised a second concern regarding the underlying objectives of tort law ’ s claim assessing! I ) a medical practitioner ’ s duty to Terminate her pregnancy has eventuated in. Is a dearth of legal principle to govern competing interests left Harriton to! ‘ additional observation ’, [ 13 ] a general practitioner, was called to questions! At 535 s inability to prove that legally cognisable damage had occurred was also determinative conditions that doctor... At 450–451 ( Crennan J ), 738 ( Ipp JA focused upon the plaintiff ’ s consent a... 89 ] Harriton, the nature of harm that has eventuated ; Type at 449 ( J... Could decimate legal protections for LGBTQ workers in America recognised the validity of the between... At 450 ( Crennan J ) both Crennan and Callinan JJ raised a second concern regarding the objectives... These observations are no doubt true was the case in Waller v James and v.... First question, and whether she had not been suffering from blindness,,... Question, and was implanted with an opportunity to procure an abortion wrongful Conception ’, ( ii ) mother. Before the Supreme Court of Appeal ), above n1 at 413–416 Kirby!

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