Grey, Alice --- "Harriton v Stephens: Life, Logic and Legal Fictions" [2006] SydLawRw 25; (2006) 28(3) Sydney Law Review 545
† Sincere thanks to Ross Anderson for his invaluable advice and assistance, and in particular, for his insightful comments regarding the High Court’s decision in Sullivan v Moody, (2001) 207 CLR 562. All opinions, and any errors, are my own.
[1] [2006] HCA 15; (2006) 226 ALR 391 (hereafter Harriton J).
[2] [1982] QB 1166 (hereafter McKay).
[3] For example, Gleitman v Cosgrove 227 A 2d 689 (1967) (hereafter Gleitman); Curlender v Bio-Science Laboratories 165 Cal Rep 477 (1980) (hereafter Curlender); Turpin v Sortini 182 Cal Rep 337 (1982); Procanik v Cillo 478 A 2d 755 (1984).
[4] Gleitman, id at 711 (Weintraub CJ).
[5] The label ‘wrongful life’ has attracted strong criticism for being unduly emotive, and because it identifies the plaintiff’s life, rather than the suffering that he or she endures, as the ultimate source of complaint: see Harriton, above n1 at 393–395 (Kirby J); Joseph Kashi, ‘The Case of the Unwanted Blessing: Wrongful Life’ (1977) 31 U Miami LR 1409 at 1432; Harvey Teff, ‘The Action for ‘Wrongful Life’ in England and the United States’ (1985) 34 ICLQ 423 at 427–428.
[6] Waller v James; Waller v Hoolahan [2006] HCA 16; (2006) 226 ALR 457 (hereafter Waller).
[7] The relevant disease was antithrombin 3 (AT3) deficiency, which affects the propensity of the blood to clot. The facts of Waller are similar to those in the Californian case of Curlender, above n3. In that case, a wrongful life action was successfully brought against a pathology laboratory which negligently failed to detect the presence of Tay-Sachs disease (a genetically transmittable condition) in the plaintiff’s father.
[8] See Waller, above n6 at 471 (Crennan J).
[9] [2003] HCA 38; (2003) 215 CLR 1 (hereafter Cattanach). Wrongful birth claims were in fact recognised in the earlier cases of Dahl v Purnell (1992) 15 Qld Lawyer Reps 33, Veivers v Connolly [1995] 2 Qd R 326 and CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 (hereafter CES). However, Cattanach was the first High Court decision on the issue.
[10] Tort law reform has significantly affected the damages available in actions for wrongful birth, particularly in respect of healthy children. Section 71(1)(a) of the Civil Liability Act 2002 (NSW) was implemented in response to the High Court’s decision in Cattanach, ibid, and prevents recovery of the costs associated with rearing a child born as the result of another’s negligence. However, by virtue of s71(2), parents are able to recover for additional costs associated with any disability suffered by such children.
[11] Teff, above n5 at 431
[12] Harriton, above n1 at 435 (Callinan J).
[13] Now deceased.
[14] Section 5O of the Civil Liability Act 2002 (NSW) provides that the standard of care to which medical practitioners must adhere is determined by reference to conduct that is widely accepted as competent by peer professional opinion at the time the service is provided. This largely reflects the common law test established in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
[15] Limitation Act 1969 (NSW), s14(1)(b).
[16] Even though tort law reform has limited the damages available in wrongful birth actions, the Harritons (if successful in their claim) could have recovered the costs associated with Alexia’s disability: see above n10.
[17] The case was originally pleaded on the grounds of negligence alone. However the plaintiff sought, and was granted, leave to amend the statement of claim such that a claim in contract was pleaded in the alternative. The contractual claim was based on the argument that Alexia was a beneficiary of the contract between her mother and Dr Stephens.
[18] Pursuant to Pt 31, r2 of the Supreme Court Rules 1970 (NSW) (now r28.2 Uniform Civil Procedure Rules 2002 (NSW)). The order was made at the request of the defendant, and with the plaintiff’s consent.
[19] See Harriton v Stephens [2002] NSWSC 461 (hereafter Harriton (Supreme Court)) at [2] (Studdert J). At the same time, Studdert J handed down two other decisions rejecting actions for wrongful life: Edwards v Blomeley [2002] NSWSC 460 and Waller & Ors v James & Ors [2002] NSWSC 462. For an overview of these cases, see Rachel Young, ‘Harriton v Stephens; Edwards v Blomeley; Waller v James’ (2002) 10 JLM 163.
[20] For details of the grounds of appeal, see Harriton (by her tutor) v Stephens; Waller (by his tutor) v James; Waller (by his tutor) v Hoolahan [2004] NSWCA 93; (2004) 59 NSWLR 694 (hereafter Harriton (Court of Appeal)) at 728 (Ipp JA).
[21] In this same judgment, the court dismissed an appeal against Studdert J’s decision in Waller & Ors v James & Ors [2002] NSWSC 462. For an overview of the Court of Appeal’s decision, see Bill Madden, ‘Wrongful Life: ‘Born Disabled to a Catastrophic Degree’’ (2004) 42(10) Law Society Journal 70.
[22] Harriton (Court of Appeal), above n21 at 700–701 (Spiegelman CJ).
[23] Id at 702–705 (Spiegelman CJ).
[24] Id at 704–705 (Spiegelman CJ).
[25] Id at 733–735 (Ipp JA).
[26] Id at 728–732 (Ipp JA).
[27] Id at 707 (Mason P).
[28] Id at 717 (Mason P).
[29] See above n9.
[30] Harriton (Court of Appeal), above n20 at 718 (Mason P).
[31] Id at 721 (Mason P).
[32] The parties submitted an agreed statement of facts for the purposes of determining the threshold questions of whether a duty of care existed, and of what damages would be available with respect to a breach of any such duty. As such, issues of breach and causation were of secondary importance to the decision: Harriton, above n1 at 440–441(Crennan J).
[33] See Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465. See also Harold Luntz & David Hambly, Torts: Cases and Commentary (5th ed, 2002) at 335, 535; John Fleming, The Law of Torts (9th ed, 1998) at 216, cited in Harriton id at 407 (Crennan J).
[34] Harriton, ibid. For a more detailed discussion on this point, see Harriton (Court of Appeal), above n20 at 733–735 (Ipp JA).
[35] Harriton, id at 407 (Kirby J).
[36] Id at 408 (Kirby J). The existence of a medical practitioner’s duty to avoid causing prenatal injury was recognised in X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26 (hereafter Pal).
[37] Harriton, id at 454 (Crennan J).
[38] Id at 447 (Crennan J).
[39] For a discussion of the distinction between torts that are actionable per se, and those that depend upon proof of damage, see Peter Cane, The Anatomy of Tort Law (1997) at 89.
[40] Harriton, above n1 at 449 (Crennan J). See also the comments of Hayne J at 431.
[41] See, for example, Procanik v Cillo, above n3 at 763–764 (Pollock J); Berman v Allan 404 A 2d (1979) (hereafter Berman) 11 (Pashman J); Gleitman, above n3 at 692 (Procter J); McKay, above n2 at 1189 (Lord Ackner); Kush v Lloyd 616 So 2d 415 (1992), 423 (Overton, Grimes, Harding, Barket & Kogan JJ).
[42] Harriton, above n1 at 431–432 (Hayne J), 438–439 (Callinan J), 449 (Crennan J). See also the comments of Spiegelman CJ in the Court of Appeal (Harriton (Court of Appeal), above n20 at 701).
[43] See the expansive list of authorities on this point cited in the judgment of Studdert J: Harriton (Supreme Court), above n19 at [49].
[44] For a discussion of the various ways in which courts have rejected plaintiffs’ assertions that they have suffered injury, see David Pace, ‘The Treatment of Injury in Wrongful Life Claims’ (1986) 20 Columbia Journal of Law and Social Problems 145 at 147–151.
[45] See, for example, Berman, above n41 at 13; Blake v Cruz 698 P 2d 315 (1984), 322 both cited in Pace, id at 147–148.
[46] Berman, ibid, cited in Pace, id at 148.
[47] Harriton, above n1 at 449–451 (Crennan J).
[48] Harriton (Court of Appeal), above n20 at 717 (Mason P).
[49] See Harriton, above n1 at 450 (Crennan J).
[50] Id at 451–452 (Crennan J).
[51] Id at 451 (Crennan J).
[52] In conjunction with the related issue of the impossibility of assessing damages.
[53] This is particularly apparent from the remarks of Callinan J: Harriton, above n1 at 438–439 . See also 429, 432 (Hayne J) and 440 (Crennan J).
[54] Charles Pigden, ‘Naturalism’ in Peter Singer (ed), A Companion to Ethics (1991) at 423.
[55] For commentary on this point, see Teff, above n5 at 433.
[56] Harriton, above n1 at 410–411 (Kirby J).
[57] Id at 409 (Kirby J).
[58] See, for example, Turpin v Sortini, above n3; Procanik v Cillo, above n3; Harbeson v Parke-Davis Inc Wash 656 P 2d 483 (1983). 59 Harriton, above n1 at 411 (Kirby J).
[60] See Luntz & Hambly, above n33 at 535. This point has been made in a number of wrongful life cases in the United States: see Becker v Schwartz 386 NE 2d 807 (1978), 812; Nelson v Krusen 678 SW 2d 918 (1984), 928 (cited in Pace, above n44 at 150). In the context of his discussion about the existence of a duty of care, Kirby J makes a brief remark asserting that Alexia had suffered damage. His sole reason for this was that her claim was in respect of physical injury, which therefore falls within the type of harm that the defendant had a duty to avoid: Harriton, above n1 at 408. It is submitted that this in no way constitutes a determinative response to the question of whether damage had occurred.
[61] This becomes apparent if we consider, for example, the position of negligence law with respect to pure economic loss before the case of Hedley Byrne & Co v Heller & Partners [1963] UKHL 4; [1964] AC 465.
[62] Harriton, above n1 at 413–416 (Kirby J).
[63] Id at 415 (Kirby J).
[64] Id at 416 (Kirby J).
[65] Id at 415 (Kirby J).
[66] Ibid. For criticism of this analogy, see Harriton, above n1 at 450–451 (Crennan J). See also Harriton (Court of Appeal), above n20 at 704 (Spiegelman CJ), 738 (Ipp JA).
[67] Harriton, id at 453 (Crennan J).
[68] Livingstone v Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 at 39 (Lord Blackburn); Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 142–143 (Gleeson CJ, Gummow, Kirby and Hayne JJ).
[69] Harriton, above n1 at 456 (Crennan J).
[71] Id at 580. Crennan J refers to this passage in her judgment: Harriton, above n1 at 447.
[72] Harriton, id at 448 (Crennan J).
[73] Ibid. The principal Australian authority on this point is Pal, above n36.
[74] Harriton, ibid.
[75] Crimes Act 1900 (NSW) s83, as interpreted in R v Wald [1971] 3 DCR (NSW) 25 at 29 (Levine DCJ). See also CES, above n9 at 59–60 (Kirby A-CJ).
[76] Pal, above n36.
[77] For a full description of the facts of this case, see X v A Pal; Y v A Pal (Unreported, Supreme Court of New South Wales, Sully J, 16 February 1990) 3–7; Pal, id at 34–35 (Clarke JA).
[78] There is a substantial amount of medical research on this topic. See for example D Heather Watts, ‘Management of Human Immunodeficiency Virus Infection in Pregnancy’ (2002) 346(24) New England Journal of Medicine 1879.
[79] See Gonzague Jourdain, Nicole Ngo-Giang-Huong, Sophie Le Coeur, Chureeratana Bowonwatanuwong, et al, ‘Intrapartum Exposure to Nevirapine and Subsequent Maternal Responses to Nevirapine-Based Antiretroviral Therapy’ (2004) 351(3) New England Journal of Medicine 229.
[80] Jenny Morgan, ‘Foetal Imaginings: Searching for a Vocabulary in the Law and Politics of Reproduction’ (2000) 12 Canadian Journal of Women & the Law 371 at 373.
[81] Id at 403, discussing John Seymour, Fetal Welfare and the Law: A Report of an Inquiry Commissioned by the Australian Medical Association (1995) at 49.
[82] Morgan, id at 382–387, 403.
[83] Harriton, above n1 at 437–438 (Callinan J), 449 (Crennan J). Callinan J, however, seemed to accept that a desire for coherence should not necessarily be determinative if other factors supported recognition of the claim.
[84] Id at 438 (Callinan J).
[85] See, for example, McKay, above n2 at 1181 (Stephenson LJ) and Curlender, above n3 at 488 (Jefferson PJ).
[86] As is apparent from his comment at 438 (see above n84), Callinan J rejects the proposition out of hand. Crennan J merely observes that the idea has attracted judicial and legislative disapproval in the United Kingdom and California (Harriton, above n1 at 449).
[87] Id at 421 (Kirby J).
[88] This is especially the case given that Australian courts have recognised the rights of children to sue their mothers in respect of negligent acts committed whilst pregnant, in the specific context of motor vehicle accidents: Lynch v Lynch (By her Tutor Lynch) (1991) 25 NSWLR 411.
[89] Harriton, above n1 at 420 (Kirby J).
[90] Dobson v Dobson [1999] 2 SCR 753 at 770 (Lamer CJ, Gonthier, Cory, Iacobucci and Binnie JJ).
[91] This point is made by Kirby J in his judgment: see Harriton, above n1 at 421–422.
[92] See Morgan, above n80.
[93] See for example Curlender, above n3 at 489 (Jefferson PJ). See also the dissenting opinion of Jacobs J in Gleitman, above n3 at 703.
[94] See Gleitman, ibid. See also Curlender, id at 486–487 (Jefferson PJ).
[95] Harriton (Court of Appeal), above n20 at 705–706 (Mason P). See also the similar comment
made by Kirby J: Harriton, above n1 at 413.
[96] See the comment of Mason P to this effect: Harriton (Court of Appeal), id at 706.
[97] Harriton, above n1 at 414 (Kirby J).
[98] Ibid.
[99] Ibid.
[100] See, for example, Curlender, above n3 at 489 (Jefferson PJ).
[101] Ipp JA in the Court of Appeal, however, devotes considerable attention to the matter: Harriton (Court of Appeal), above n20 at 744–745.
[102] Harriton, above n1 at 438 (Callinan J).
[103] Id at 456 (Crennan J). Harvey Teff has commented on the tendency of courts in wrongful life
cases to underplay the causative role of the defendant doctor, thus minimising the extent of culpability and the corresponding need for corrective action: Teff, above n5 at 440.
[104] See Harriton, id at 399–400 (Kirby J).
[105] For example, O’Shea v Sullivan (1994) Aust Torts Reports 81–273.
[106] For example, Pal, above n36.
[107] Harriton, above n1 at 455–456 (Crennan J).
[108] Harriton, ibid.
[109] See above n70. In this case, the High Court unanimously rejected the proposition that social workers and doctors owed a duty of care to the father of a child that they examined on suspicion of sexual abuse, for damage caused by the negligent way in which their investigations were carried out.
[110] Harriton, above n1 at 414–415 (Kirby J).
[111] Id at 438 (Callinan J).
[112] Id at 433–434 (Hayne J).
[113] Id at 434 (Hayne J).
[114] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.
[115] Instead of proving that they would have abstained from the particular procedure or treatment altogether, patients in failure to warn cases may also succeed by proving that they would have pursued an alternative, safer path (such as finding a more qualified surgeon or delaying surgery until such time as the risk was diminished: see, for example, Chappel v Hart (1998) 195 CLR 232).
[116] Of course, wrongful life cases can be distinguished from failure to warn cases on the basis that the person responsible for making the decision is not the person to whom the relevant duty is owed. But such a distinction is not relevant to the question of whether a duty of care serves to promote prudent medical practice.