Wrongful death claims. Harriton v Stephens. [2002] NSWSC 461. Edwards v Blomeley. [2002] NSWSC 460. Waller v James [2002] NSWSC 462

Abstract

Studdert J in all three cases went to great length to summarise the global judicial position of "wrongful life" claims. He did not, however, examine in great length how or whether "wrongful life" claims or "wrongful birth" claims are reconcilable with tort and common law principles. Although the cases identify the difficulty in assessing and quantifying damages, they do not directly address the strict legal principles which apply in the assessment of damages. The main conclusion of the three judgments was that no duty of care is owed to the plaintiff in these circumstances and, even if a duty could be established, the impossibility of quantifying damages and public policy considerations warrant the rejection of such a claim: "thus conscience does make cowards of us all." The significance of the decisions cannot be understand. The decisions deny recognition of "wrongful life" claims in circumstances where a disabled person has incurred injuries en ventre sa mere (in the mother's womb) as a result of infections contracted by a plaintiff's mother or genetic material passed on by a plaintiff's parents. Some countries have now legislated for the abolition of "wrongful life and birth" suits. In January 2002 the French legislature passed a Bill overturning the "wrongful life" decision of the Cour de Cassation in Perruche (17 November 2000). As the issue now falls for ultimate determination by the French Senate, the French pro-life movement continues to lobby for the prohibition of "wrongful birth" suits as well. Furthermore, eight States in the United States have prohibited either one or both actions and the State of Michigan prohibited both actions in 2001. It is likely that all three cases will be appealed. The appeal in Harriton will re-examine the viability of a "wrongful life" claim in Australia whereas the cases of Edwards and Waller still need to determine the "wrongful birth" claims brought by the plaintiffs' parents. It is likely that the latter two cases will not be determined until the High Court has considered the Queensland "wrongful birth" case of Melchior v Cattanach, expected to be late in 2002.