TORTS 2 RESEARCH ESSAY – QUESTION 3
INTRODUCTION
Wrongful birth and wrongful life actions remain a contentious and controversial area
of law, both in Australia and overseas. In order to understand the nature of a claim of
damages, it is imperative to discern between each action. Wrongful birth actions are
brought forth by the
and involve the birth of an unintended child1 and the
parents claim the negligence of a medical practitioner caused the ‘wrongful’ birth of
the child.2 The circumstances surrounding such an incident may encompass negligent
events such as a doctor’s failure to detect foetal abnormalities3 to an unsuccessful
sterilisation procedure or the incorrect implantation of a contraceptive device.4 In
contrast, wrongful life actions involve a claim made by a disabled child, that but for
the negligence of a medical practitioner, the mother would have chosen to terminate
the pregnancy in order to avoid the suffering incurred by the child’s disability.5 This
essay focuses on the notion of damages in relation to each claim and discusses the
development of the tort both in Australia and abroad.
NATURE OF A CLAIM OF DAMAGES
In the tort of wrongful birth and wrongful life, the nature of a claim of damages
involves the negligence of a medical professional that has had an effect on the
capacity of the mother to terminate the pregnancy, or led to the child’s conception. In
order for a successful claim in negligence, the plaintiff must illustrate that the
defendant owed a duty to meet an established standard of care, and, consequently, that
the defendant has failed to meet this standard, causing a breach of their duty to the
plaintiff.6 The aim of awarding damages is to return the plaintiff to the position they
would have otherwise been in, but for the negligence of the defendant. In South
Australia, New South Wales and Queensland, damages will not be awarded to cover
Bernadette Richards, ‘Life as Loss?’ (2010) Issues at the Borders of Life 53, 54.
Mirko Bagaric and Penny Dimopolous, ‘Why wrongful birth actions are right’ (2003) 11 Journal of
Law and Medicine 230.
3
Veivers v Connolly [1995] 2 Qd R 326.
4
Dean Stretton, ‘Wrongful Life and the Logic of Non-Existence’ (2006) 30 Melbourne University Law
Review 927.
5
Christopher J Grainger, ‘Wrongful life: a wrong without a remedy’ (1994) Tort Law Review 164.
6
Richards above n 1, 54.
1
2
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the costs of raising a child unless that child is disabled,7 but this is not a requirement
at common law.
DEVELOPMENT IN AUSTRALIA AND THE INFLUENCE OF
POLICY AND PRINCIPLE
In Cattanach v Melchior,8 the leading authority for wrongful birth actions in
Australia, the Court determined that parents should be able to recover damages to
cover the costs of raising and maintaining a healthy child that was conceived
following a negligently performed sterilisation procedure. The major arguments
presented to challenge the Melchior’s claim were set out in the joint judgement of
Justices McHugh and Gummow9 and included concerns over the potential for
psychological harm on an ‘unwanted child’ and the view that children should be seen
as a ‘blessing’, in addition to concerns that the healthcare profession deserves a level
of immunity. The judgement also presented the notion that awarding damages to a
healthy child is contrary to public policy. At the foundation of these arguments is a
view that the value of life will be lessened.10 While these arguments present genuine
concerns, as Kirby J highlighted ‘money, not love or the preservation of the family
unit, is what is in issue.’11
In order to award damages in wrongful life claims, the Court is required to draw a
comparison between living with a disability and non-existence.12 Harriton v
Stephens13 and Waller v James14 both relied on public policy arguments to oppose
recognising a duty of care owed to the plaintiff, with the absence of a legal
consignable injury and the ‘impossibility’ of calculating damages a hindrance to the
validity of the claim within the traditional tort framework.15 In Harriton, Crennan J
highlighted the ‘impossible comparison’ between life with a disability and non7
See Civil Liability Act 1936 (SA) s 67(2); Civil Liability Act 2002 (NSW) ss 70, 71; Civil Liability Act
2004 (Qld) s 49 A).
8
(2003) 215 CLR 1 (‘Cattanach’).
9
Ibid 41–92 (McHugh J and Gummow J).
10
Richards, above n 1, 56.
11
Cattanach (2003) 215 CLR 1, 56 (Kirby J).
12
Rebecca Sharman, ‘Wrongful Life Actions: The Legal and Ethical Hurdles’ (2001) 9 Journal of Law
and Medicine 233, 235.
13
(2006) 226 CLR 52 (‘Harriton’).
14
(2006) 226 CLR 136 (‘Waller’).
15
Gisele Kapterian, ‘Harriton, Waller and Australian negligence law: Is there a place for wrongful
life?’ (2006) 13 Journal of Law and Medicine 336, 338.
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existence and that the court is unable to practically assess ‘the actual loss or damage
as claimed’,16 an argument which has been the basis for wrongful life actions to fail
locally and internationally.17 While on a narrow application of tort principle and
practicality it would appear that damages can not be ascertained, it should be noted
that ‘approximate justice is superior to no justice at all’.18
DEVELOPMENT OVERSEAS AND THE INFLUENCE OF
POLICY AND PRINCIPLE
On the basis of public policy, most American states deny damages for the costs of
child rearing in wrongful birth cases when the child is born healthy.19 However, there
have been some occasions in the United States20 where recovery has been allowed for
the costs of child-rearing but damages were balanced by the emotional benefits the
parents were likely to experience as a consequence of parenthood, with the Supreme
Court of Minnesota labelling this compromise ‘a mortal attempt to do justice in an
imperfect world.’
Since McFarlane v Tayside Health Board,21 recovery of rearing costs in the United
Kingdom has been restricted to ‘extra’ costs incurred by the parents of a disabled
child, irrespective of any association between the disability and the negligent act.22
The defence in McFarlane sought to rely on the precedent established in Thake v
Maurice23 that pregnancy did not constitute personal injury, a notion that ignores the
pain and suffering regularly experienced throughout pregnancy and childbirth.24 Thus,
mothers would be entitled to claim general damages for pain and suffering
experienced as a consequence of the pregnancy.
16
Harriton (2006) 226 CLR 52 [253] 126, (Crennan J).
Margaret Fordham ‘A life less ordinary – The rejection of actions for wrongful life’ (2007) 15 Torts
Law Journal 123.
18
Bagaric and Dimopolous, above n 2, 234.
19
Evelyn Ellis and Brenda McGivern, ‘The wrongfulness or rightfulness of actions for wrongful life’
(2007) 15 Tort Law Review 135, 138.
20
Sherlock v Stillwater Clinic 260 NW 2d 169 (1977).
21
[2000] 2 AC 59 (‘McFarlane’).
22
Clare Lake, ‘The kid and the cash: Categorising damage in wrongful birth and wrongful pregnancy’
(2009) 17 Torts Law Journal 55.
23
[1986] QB 644 (‘Thake’).
24 Lake above n 23, 57.
17
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Similar to its stance on wrongful birth, few American states have permitted children
to succeed in wrongful life actions, with recovery of damages limited to extraordinary
expenses and an exclusion of recovery for pain and suffering.25 Wrongful life actions
in the United States are largely rejected, with legislation in some states prohibiting
such claims.26 Despite this, the development of wrongful life actions in the United
States continues, with California,27 New Jersey28 and Washington29 recognising the
claims.
The landmark wrongful life decision in the United Kingdom is McKay v Essex Area
Health Authority,30 where the English Court of Appeal rejected the action on the basis
that there was no duty for the doctor to prevent the birth and that the disability was
caused by rubella, not the doctor’s negligence therefore a calculation of damages was
impossible.31 The paramount importance of the sanctity of life to the law32 was also
used as an argument against the recognition of wrongful life actions in McKay, with
Stephenson J asserting that finding these claims to be valid would cause
‘a further inroad on the sanctity of human life which would be contrary to public
policy’.33
CONCLUSION
While the area of wrongful birth and wrongful life is one that needs to be approached
with sensitivity, many believe that that the arguments in favour of the recognition of
these actions far outweigh those raised against it,34 and that as the elements of the
claim fall within the traditional tort framework it should be recognised within the
Australian tort system.35 Arguments for policy and principle have been utilised to
support and oppose the recognition of these claims both domestically and overseas,
with wrongful birth the more established and developed of the actions.
25
Grainger, above n 5, 165.
Ibid.
27
Curlender v Bio-Science Laboratory 106 Cal App 3d 811 (1980); Turpin v Sortini 643 P 2d 954
(1982).
28
Procanik v Cillo 478 A 2d 755 (1984).
29
Harbeson v Parke-Davis 656 P 2d 483 (1983).
30
[1982] 1 QB 1166 (‘McKay’).
31
Ibid 1178 (Stephenson LJ).
32
Richards above n 1, 54.
33
[1982] 1 QB 1166 at 1180.
34
Kapterian above n 17, 336.
35
Ibid.
26
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BIBLIOGRAPHY
Journal Articles
Mirko Bagaric and Penny Dimopolous, ‘Why wrongful birth actions are right’ (2003)
11 Journal of Law and Medicine 230.
Evelyn Ellis and Brenda McGivern, ‘The wrongfulness or rightfulness of actions for
wrongful life’ (2007) 15 Tort Law Review 135.
Margaret Fordham ‘A life less ordinary – The rejection of actions for wrongful life’
(2007) 15 Torts Law Journal 123.
Christopher J Grainger, ‘Wrongful life: a wrong without a remedy’ (1994) Tort Law
Review 164.
Gisele Kapterian, ‘Harriton, Waller and Australian negligence law: Is there a place for
wrongful life?’ (2006) 13 Journal of Law and Medicine 336.
Clare Lake, ‘The kid and the cash: Categorising damage in wrongful birth and
wrongful pregnancy’ (2009) 17 Torts Law Journal 55.
Bernadette Richards, ‘Life as Loss?’ (2010) Issues at the Borders of Life 53.
Dean Stretton, ‘Wrongful Life and the Logic of Non-Existence’ (2006) 30 Melbourne
University Law Review 927.
Rebecca Sharman, ‘Wrongful Life Actions: The Legal and Ethical Hurdles’ (2001) 9
Journal of Law and Medicine 233.
Cases
Cattanach v Melchior (2003) 215 CLR 1.
Curlender v Bio-Science Laboratories 165 Cal Rptr 447 (Ct App, 1980).
Harbeson v Parke-Davis 656 P 2d 483 (1983).
5
Harriton v Stephens (2006) 226 CLR 52
McFarlane v Tayside Health Board [2000] 2 AC 59.
McKay v Essex Area Health Authority [1982] 1 QB 1166.
Procanik v Cillo 478 A 2d 755 (1984)
Sherlock v Stillwater Clinic 260 NW 2d 169 (1977).
Thake v Maurice [1986] QB 644.
Turpin v Sortini 643 P 2d 954 (1982).
Veivers v Connolly [1995] 2 Qd R 326.
Waller v James (2006) 226 CLR 136.
Legislation
Civil Liability Act 1936 (SA).
Civil Liability Act 2002 (NSW).
Civil Liability Act 2004 (Qld).
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