The law has regularly struggled with how to deal justly with disability associated with medical interventions, particularly in relation to competence and consent, as well as causality and compensability.

For example, at least since the landmark litigation in the 1970s arising out of the effects of thalidomide,1,2 courts have trod warily in defining what is actionable and what is compensable. In the 1990s, leaving aside the ongoing ramifications of the Rogers v Whitaker decision,3 perhaps the most controversial medicolegal cases dealt with by the High Court of Australia were the decisions in Marion’s Case4 and P v P,5 both of which concerned the rights of children with profound disability, and whether, in their alleged best interests, they should be sterilised. Following judgment in both cases authorising the sterilisation, there was significant and understandable dispute about what enhanced, and what impaired, the human dignity of those with disability.6

Courts have endeavoured to be careful in recognising and awarding damages in novel areas of law, such as “wrongful birth” and “wrongful life”. The High Court of Australia has recently given judgment in both kinds of action: in 2003 allowing a claim for wrongful birth (Cattanach v Melchior),7 but in May 2006 disallowing two separate claims for wrongful life (Harriton v Stephens8 and Waller v James/Waller v Hoolahan9).

Here, we briefly summarise the wrongful birth action,7 and then examine in detail the most recent High Court judgment on claims for wrongful life,8,9 which involved the intersection of congenital disability, claims for negligence and the award of damages. The terms “wrongful birth” and “wrongful life” are defined in the Box.

In the 2003 claim for wrongful birth (Cattanach v Melchior),7,12 the High Court of Australia by a bare majority of 4 : 3, and contrary to recent authority in the United Kingdom,13 held a consultant obstetrician and gynaecologist, who had negligently performed a sterilisation procedure, liable for the costs of raising the child born subsequent to the failed procedure. The finding of negligence was relatively unproblematic.7,14 However, what did cause concern was the judgment that the medical specialist was liable for the costs of raising the healthy, but initially unwanted, child. Understandably, the decision unleashed a significant tide of comment.15,16 The then Premier of New South Wales, Bob Carr, called on the federal government to introduce legislation “that protects doctors in other categories, in private medicine . . .”.17

One immediate consequence of the Cattanach v Melchior judgment was the decision by three states — NSW, Queensland, and South Australia — to enact legislation that now prevents the bringing of wrongful birth suits in those jurisdictions (Civil Liability Act 2002 (NSW), s.71; Civil Liability Act 2003 (Qld), s.49A; Civil Liability Act 1936 (SA), s.67).

The 2006 decision of the High Court in Harriton v Stephens and Waller v James/Waller v Hoolahan, this time by a majority of 6 : 1, rejecting two separate claims for wrongful life, is certain to be welcomed by medical practitioners and politicians alike. The High Court resoundingly rejected claims for damages by two disabled children. The claims were on the basis that they would have been better off not being born rather than being born with their severe disabilities.8,9 The child appellants argued that their births were the result of negligent action by the treating medical practitioners and they sought compensation for being born with disabilities. Justice Susan Crennan summarised the issue at the end of her leading judgment in Harriton v Stephens:

Cattanach v Melchior [in 2003] represents the present boundary drawn in Australia by the common law . . . in respect of claims of wrongful birth and wrongful life. Life with disabilities, like life, is not actionable [par. 277].8

Before going to the High Court, these cases were presented to the NSW Supreme Court, and this Court was asked, based only on an agreed set of facts, to determine whether the novel claim for wrongful life could, and should, be recognised. If this was so, the Court was then asked to assess what damages would flow from such a finding. The two children involved, Alexia Harriton and Keeden Waller, were unsuccessful in their claims. Later, in the High Court, reservations were expressed about the lack of a formal trial before the Supreme Court hearing and the difficulties that ensued in properly evaluating the untested evidence presented in the agreed set of facts. As well, the agreed set of facts was somewhat lacking in clinical detail. Indeed, the agreed set of facts posed a range of unanswered questions: for example, why was Dr Paul Stephens advised to concede that he was negligent in reassuring Alexia Harriton’s mother that she did not have rubella when the pathology report was very vague in its detail? Also not explained in any judgment is how or why Alexia’s parents’ claims were out of time and therefore statute-barred.

Justice Crennan wrote the leading judgment in both cases. Gleeson CJ and Gummow, Hayne and Heydon JJ all concurred with her reasons. Callinan J wrote short separate judgments in both appeals which also found against the children in their claims. Kirby J was the sole dissentient in both matters. He accepted that a “compensatory principle” should apply so as to allow recovery.

The remainder of this article considers the reasoning of the Court and what it might portend for the future.

A crucial issue for the dissentient, Kirby J, was that

While contentious, especially given that the High Court has never claimed or sought to quarantine health care providers, or anyone else for that matter, from the general operation of the law in relation to negligence, Kirby’s approach is consistent with the majority judgment in Cattanach v Melchior,7 but not with recent decisions in the UK.18

The crucial question for the majority of the Court was whether Alexia and Keeden suffered “damage” which was recognisable at law. The antecedent questions of whether either child was owed a duty of care, and whether there had been a relevant breach of that duty, were effectively subsumed by the focus of most of the majority Justices on whether there was damage recognisable by the law for which the defendants should be held liable. The duty postulated by Alexia was that Dr Paul Stephens should have diagnosed rubella and then advised Mrs Harriton to terminate the pregnancy. This duty also proposed that the measure of damages required that an assessment should be made so as to compensate Alexia to the degree necessary to place her in the position she would otherwise have been in but for the negligence of Dr Paul Stephens. That comparative position was one of “non-existence”. The High Court held that the law does not, and could not, recognise “non-existence” as a relevant comparator and, therefore, there was no compensable damage. Hayne J said emphatically:

After reviewing judgments from both common and civil law jurisdictions around the world (in which, with very few exceptions, claims for wrongful life have been rejected), and that Alexia had no cause of action against Dr Paul Stephens, Crennan J accepted the remarks of the Chief Justice of NSW, James Spigelman, when he said in his judgment in the NSW Court of Appeal that

Crennan J rejected arguments that (a) life with disability was a devalued life — rather, Alexia’s disabilities “are only one dimension of her humanity”; (b) a “new compensatory principle” required the awarding of damages in this case; and (c) a principle of “corrective justice” in this case would, and should, overcome the difficulties inherent in the claim.19 In relation to the rights of the parents, Alexia’s parents were statute-barred. The wrongful life action of Keeden’s parents has yet to be determined.

So what does this case mean for the law and for medical practice? Firstly, it certainly does not diminish the responsibility of medical practitioners in their duty of care owed to patients, especially pregnant women. Secondly, it is clear that a “line in the sand” has been drawn as to what the law will recognise as compensable damage. As Crennan J said:

The Court pointed out that Dr Stephens did not cause the damage suffered by Alexia; that was caused by her mother’s rubella. Thirdly, it is more than a philosophical or jurisprudential point made by the Court and worthy of further consideration — that non-existence cannot be compared favourably to living a life with disabilities (Disability Discrimination Act 1992 [Cwlth]).20 As Gleeson CJ said in one of the three dissenting judgments in Cattanach v Melchior:

This was undoubtedly the case here. Perhaps the larger question then is what, for a community, is the responsibility owed to people with disability and those who care for them? That is a question that politicians, judges and the rest of us must grapple with.