(iv) causation, in the sense that the breach of duty to the plaintiff caused her damage.
53 Mr Hirsch submitted that the defendant owed to the first and second plaintiffs a duty to perform the vasectomy procedure with due care and skill and to give adequate advice thereafter as to the effectiveness of the vasectomy, particularly having regard to the implications of the sperm counts on 24 July and 11 August 1998 (see agreed fact 11). He submitted that the same duty was owed to the third plaintiff. The submission was made that the parents ought to be regarded as having been acting for the third plaintiff not then conceived.
54 It is, I think, clear that a duty of care can be owed to an unborn child. In Watt v Rama (1972) VR 353 the plaintiff had been conceived before the accident which led to her being born harmed. Since injury to a foetus was a reasonably foreseeable consequence of the defendant's negligent driving, that was held to be sufficient to constitute "a potential relationship capable of imposing a duty on the defendant in relation to the child if and when born" (at p 60). See also Burton v Islington Health Authority and De Martell v Merton & Sutton Health Authority (1992) 3 All E R 833.
55 X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 went further. In this case it was determined that a gynaecologist and obstetrician undertaking the care of a patient owed a duty of care to the patient and a child later born to her to submit the plaintiff for testing for syphilis. When, because of a breach of that duty, the child was born disabled, it was held that the specialist was liable to the child in damages for such harm as was proved to be referable to the syphilis.
56 It was determined that the duty of care owed may extend to a child not conceived at the time of the negligent act, provided such child was within the class to whom the duty was owed. In his judgment, Clarke JA said (at 37):
"I would express the position in these terms - A may be liable in damages to B notwithstanding that B had not been conceived at the time A acted carelessly if the following conditions be satisfied:
(a) in all the circumstances A owed a duty to take care of a particular class of persons;
(b) A breached that duty;
(c) B was subsequently born suffering from damage which was causally related to those actions/omissions of A which constituted a breach of duty to the particular class of persons;
(d) B was a member of the relevant class of persons.
If the matter is expressed in that way then, as I see it, there is no need for a court to concern itself with perceived difficulties arising from the apparent awkwardness of a concept that A may both owe a duty to B and breach that duty before B is born (or even conceived)."
57 And, later in considering the liability of the doctor whose negligence in treating the mother of the child occurred before that child's conception, his Honour said (at 44):
"Once it is accepted that Dr Pal owed a duty of care to his patient and that it was foreseeable that if he did not exercise due care in treating her he may cause damage to children later born to her it is difficult to see why those children should not be within the category of persons to whom the doctor was in a relevant relationship of proximity. The fundamental elements underlying his proximity relationship with his patient were assumption of responsibility and reliance. The doctor assumed the responsibility of exercising due care in the treatment of his patient and the patient relied upon him to administer that treatment with due care. Furthermore, the doctor was working in an area in which he could, if he were not careful, so damage his patient and the child she was carrying that either that child or children later born to the patient might suffer damage."
58 Hence I consider, following X & Y v Pal, that a doctor treating a person capable of parenting when conception was foreseeable could owe a potential duty of care to the child not yet conceived, as well as to a child en ventre sa mere. However, whilst it could be stated that the relationship of the defendant and the first and the second plaintiffs in the present case was such as to give rise to a duty to those plaintiffs with the content for which Mr Hirsch has argued, I am not persuaded that any duty of care owed to the third plaintiff had that same content. Indeed, I can find no authority to support the existence of such a duty to the third plaintiff.
59 In Watt v Rama, Burton v Islington Health Authority and De Martell v Merton & Sutton Health Authority, the tort feasors caused harm to the foetus by negligent acts; in X & Y v Pal the tort feasor caused harm to the foetus by omitting to detect and treat syphilis in the mother. In those cases then the liability of the tort feasor arose in consequence of breach of a duty, be it by act or omission, not to cause injury to the unborn child. I do not understand any of those cases to be authority for the broad definition of the duty which it is claimed was here owed to the third plaintiff. Moreover the agreed facts reveal that the reason why the third plaintiff's parents decided on the vasectomy was because they considered their family was complete with six children. It has not been suggested that any of the six children had any disability or that there was some failure on the defendant's part to take measures to detect the genetic disability with which, tragically, Chelsea was born. The negligence complained of is in the manner of the performance of the vasectomy, in the failure to follow up on advice given to the first plaintiff that he have further testing, and in wrongful advice as to the significance of the sperm tests that had been undertaken.
60 In McKay the duty in the relevant authority's laboratory and in the doctor was defined by Stephenson LJ as being a duty not to injure the child during the mother's pregnancy (at 1178-79). Ackner LJ (at 1188) rejected the submission that the duty of care to the foetus, albeit indirectly by advice to the mother, was to cause its death, and said:
"I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person whether or not in utero to terminate his existence. Such a proposition runs wholly contrary to the concept of sanctity of human life."
61 Griffiths LJ said (at 1192):
"It surely cannot be asserted that the doctor owes a duty to the foetus to urge its destruction."
62 I cannot accept that the defendant owed to the third plaintiff a duty to prevent her conception, or to give to her parents advice such as would have prevented her conception, and I consider that to recognise any such duty would be contrary to public policy. Moreover, I cannot accept that the law would regard the parents of the child, not then conceived, as acting as her agents in taking effective steps to avoid her conception.
63 Consistent with authority, it seems to me that the only duty owed by the defendant to the third plaintiff was a duty not to cause injury to her, be it by act or omission, and whether in her mother's womb or not.
64 In my opinion, the conclusion that the defendant's only duty to the third plaintiff was that which I have defined determines the outcome of this matter.
65 Mr Hirsch submitted that the defendant's duty of care "was called into existence" to prevent the conception of a child, that his negligence caused the conception and that it was foreseeable that a child could be born suffering from a genetic disorder. Hence he submitted that the defendant's negligence was causative of the child's birth with disabilities.
66 However, the argument advanced by Mr Hirsch in his thorough written submissions was dependent in its development upon a finding that the defendant owed a duty to the third plaintiff with the content for which he argued. It must be accepted that liability for negligence arises only where breach of a duty of care which is owed results in damage. There was here no breach of the duty which the defendant owed to the third plaintiff because it cannot be said that the defendant, either by act or omission, caused harm to her.
67 In this context I refer to what was said by McHugh J in Chappel v Hart (1998) 195 CLR 232 at 243:
"In March (1991) 171 CLR 506 this Court specifically rejected the 'but for' test as the exclusive test of factual causation. Instead the Court preferred the same common sense view of causation which it had expressed in its decision in Fitzgerald v Penn (1954) 91 CLR 268. There, the Court said that the question is to be determined by asking 'whether a particular act or omission…can fairly and properly be considered a cause of the accident' ( Fitzgerald v Penn (1954) 91 CLR 268 at 276). As a natural consequence of the rejection of the 'but for' test as the sole determinant of causation, the Court has refused to regard the concept of remoteness of damage as the appropriate mechanism for determining the extent to which policy considerations should limit the consequences of causation-in-fact ( Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412-13: 'In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense ( Fitzgerald v Penn (1954) 91 CLR 268 at 277-278, per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515, per Mason CJ; at 522-523, per Deane J). In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude ( March v Stramare (E & MH) Pty Ltd ).') Consequently, value judgments and policy as well as our 'experience of the "constant conjunction" or "regular sequence" of pairs of events in nature' (Hart and Honore, Causation in the Law , 2nd ed (1985), p 14) are regarded as central to the common law's conception of causation."
68 Common sense has a central role to play in determining causation. In Stapley v Gypsum Mines Ltd (1953) AC 663 at 681, Lord Reid said that what caused an accident from the point of view of legal liability "must be determined by applying common sense to the facts of each particular case". Lord Reid's dicta were cited with approval in March v Stramare (1991) 171 CLR 506 by Mason CJ at 515 and by Deane J at 523-524, and in Chappel v Hart (supra) by Gaudron J at 238. The application of common sense cannot be divorced from value judgments and policy considerations: March v Stramare (at 516) and Chappel v Hart (at 243).
69 The disabilities with which the third plaintiff was born did not result from any breach of duty owed to her by the defendant. The defendant owed to the third plaintiff no duty to prevent her conception and her disabilities were genetic not iatrogenic. The defendant did not cause injury to the third plaintiff.
70 There are other reasons why, in my opinion, the third plaintiff cannot succeed against the defendant. If the third plaintiff had been able to establish breach of duty causing the disabilities with which she was born, it would remain for this plaintiff to prove damage, that being an essential element in order to establish liability in the tort of negligence. Upon proof of damage, damages may be awarded to compensate for the damage suffered.
71 In the joint judgment of the High Court in Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 at 527, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ expressed the following statement of principle:
"In negligence, 'damage' is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, 'damage' includes both the injury itself and other foreseeable consequences suffered by the plaintiff. The distinction between 'damage' and 'damages' is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff…"
72 What is the damage which the third plaintiff has suffered?
73 Mr Hirsch submitted that the third plaintiff's claim is one to be compensated for being born with disabilities and he embraced the analysis of the court in Curlender (supra, at para 37, and at p 489):
"…we reject the notion that a 'wrongful-life' cause of action involves any attempted evaluation of a clamed right not to be born. In essence we construe the 'wrongful life' cause of action by the defective child as the right of such child to recover damages for the pain and suffering to be endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition."
74 In the above passage the court was determining on an approach to the assessment of damages, but I do not find in the judgment a persuasive determination as to the "damage" for which the court decided it should proceed to compensate the plaintiff. Nor do I find it in any of the other American cases where "wrongful life" claims were successful but only special damages were awarded. Until the "damage" is identified, how can a court determine what damages are appropriate to compensate for such damage? I adopt in this context what was said in Walker v Mart (supra, at para 35(3)).
75 The third plaintiff's only opportunity for life was an opportunity for life with the disabilities with which she was born; it is not as though the defendant did anything to bring about those disabilities and it would not be legitimate to compare her life disabled with a life free of disability. Hence, in order to determine whether the plaintiff suffered "damage" in being born with disabilities inevitably involves comparing the value of non-existence and the value of existence in a disabled state. There are many disabled members of society who lead valuable and fulfilling lives notwithstanding their significant physical handicaps. These citizens, by their achievements, are a source of inspiration to others, be those others disabled or able-bodied. To all such persons the notion that non existence may be considered preferable to living with disabilities would surely be perceived to be offensive. Then there are many in society who believe that the gift of life affords the opportunity for life after death and to all such persons the notion that non existence may be preferable to life with disabilities, however severe, is surely unacceptable. It is to be acknowledged, of course, that there are many who do not believe in an afterlife, but how can a worldly court resolve this conflict between believers and non-believers? In any event, adopting the language of Ackner LJ in McKay, "how can a court begin to value non existence, 'the undiscovered country from whose bourn no traveller returns?'".
76 Whilst it is agreed between the parties in this case that the third plaintiff's disabilities are severe, in my opinion, the task of determining whether this plaintiff suffered "damage" in being born with disabilities, involving a comparison of the value of non-existence with the value of existence in a disabled state, is an impossible exercise and I so conclude, having reflected upon all of the authorities to which consideration of this difficult case and this difficult concept have taken me. Mr Hirsch in the present case, and Mr Segal and Mr Bates in the other matters referred to in para 4 of this judgment, were critical of the decision in McKay, but, as earlier remarked, notwithstanding such criticisms, I find the reasoning in the judgments in McKay to be very persuasive.
77 In the present context, I refer in particular to the dicta of Stephenson LJ earlier set out in paras 16 and 17, the dicta of Ackner LJ set out in para 21 and the dicta of Griffiths LJ set out in para 22 of this judgment.
78 Moreover, the American authorities previously reviewed (with the exception of those decisions considered in paras 37-43 above) contain many expressions of principle which I also find persuasive that recognise the significance of the impossibility of determining damage in the context of "wrongful life" cases. I instance but two such expressions: in Becker v Schwartz (earlier cited in para 35(1)), the Court of Appeals of New York said:
"However, there are two flaws in plaintiffs' claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. (Cf Williams v State of New York, 18 NY2d 481, 484 , supra .) There is no precedent for recognition at the Appellate Division of 'the fundamental right of a child to be born as a whole, functional human being' ( 60 AD2d, at p 88 ). Surely the use of somewhat similar words in another context affords no such basis. (Cf. Endresz v Friedberg , 24 NY2d 478, 483 , distinguishing Woods v Lancet , 303 NY 349 .) Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honoured, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?"
79 To the like effect, the Supreme Court of Texas in Nelson v Crusen & Anor (also earlier cited in para 35(1)) rejected a "wrongful life" claim and in doing so said:
"Our holding is not based on a mere difficulty in assessing a dollar amount of damages. It has long been held that imprecision of damages is not a bar to recovery. Hindman v Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957); Southwest Battery Corp. v Owen , 131 Tex. 423, 115 S.W.2d 1097 (1938) . But this is not just a case in which the damages evade precise measurement. Here, it is impossible to rationally decide whether the plaintiff has been damaged at all. That 'is a mystery more properly to be left to the philosophers and the theologians.' Becker v Schwartz , 413 N.Y.S.2d 895, 386 N.E.2d at 812 ."
80 In my opinion, the impossibility of determining "damage" in a case such as the present of itself compels the rejection of this claim. Mr Hirsch did adopt the alternative submission eventually made by Mr Segal in Harriton that the claim may be treated as one in which the third plaintiff seeks to be compensated for pure economic loss. By this approach it was submitted the necessity to make a comparison between existence and non existence in order to establish "damage" is avoided. That submission was further addressed in the joint written submissions on behalf of the plaintiffs in Edwards and in Harriton presented after I reserved my decisions in these matters. In my opinion, this alternative approach must be rejected for the reasons I stated in Harriton (at para 47):
"It is, of course, to be acknowledged that the circumstances in which recovery of damages for pure economic loss are not rigidly defined and that this is an area in which the law of negligence is still developing: see Bryan v Maloney (1994-95) 182 CLR 609 per Mason CJ, Deane and Gaudron JJ at 618; and Perre v Apand Pty Ltd (1999) 198 CLR 180 per Gaudron J at para 25 and per Kirby J at para 231. However, any development of the law in this area should be cautious and should be influenced by considerations of public policy. Those considerations of public policy against the recognition of "wrongful life" claims that I identify elsewhere in this judgment should not be ignored. There is no precedent for recognising this claim in the manner in which Mr Segal invites recognition, and, in my opinion, it would not be appropriate to do so. To categorise the "damage" suffered by the plaintiff as pure economic loss disregards the essential nature of the claim, namely that it is one which allegedly arises in consequence of physical harm suffered; hence it ignores the fundamental distinction emphasised in Mahoney v Kruschich (Demolitions) Pty Limited (supra) between 'damage' and 'damages'. The need for a comparison to be made between non existence and existence with disabilities before any attempt can be made to determine whether 'damage' has been occasioned is inescapable. In my opinion, it cannot be avoided by this alternative approach advanced by Mr Segal, which approach I regard as fundamentally flawed and, further, it assumes, in my opinion incorrectly, that the duty of care owed to the plaintiff had the same content as the duty of care owed to the mother of the plaintiff."
81 If, however, one was to move from this problem of seeking to define the damage to the task of quantifying damages, this task also would present what I consider to be insurmountable difficulties.
82 Damages are awarded in claims for personal injuries by way of compensation and are to be determined by the application of common sense: see British Transport Commission v Gouley (1956) AC 185. The objective of an award of damages is to put the plaintiff, so far as an award of money can do this, in the position that the plaintiff would have been in, had damage not been suffered.
83 In Haynes v Bendall (1991) 172 CLR 60 is to be found the following authoritative statement of principle in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ at 63:
"The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 Todorovic v Waller (1981) 150 CLR 402 at 412; 37 ALR 481; Redding v Lee (1983) 151 CLR 117 at 133; 47 ALR 241; Johnson v Perez (1988) 166 CLR 351 at 355, 386; 82 ALR 587; MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203; 98 ALR 193; Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 British Transport Commission v Gourley [1956] AC 185 at 197, 212 Compensation is the cardinal concept."
84 Their Honours then went on to state with approval what Windeyer J said in Skelton v Collins (1966) 115 CLR 94 at 128:
"The one principle that is absolutely firm and which must control all else, is that damages for the consequence of mere negligence are compensatory."
85 To award compensatory damages in this case would necessitate taking non-existence as a point of comparison. To recognise this is to recognise the impossibility of assessing damages if a "wrongful life" claim such as the present was to be maintainable at common law. The impossibility of assessing damages was acknowledged in McKay (supra), in Lacroix (supra) and in many of the decisions in the United States: see the cases cited at para 35(1) above.
86 In only one of the cases in which "wrongful life" claims have been recognised in the United States (see paras 36-43 above) was an allowance of general damages made. That was in the case of Curlender (see para 38 above). However, only special damages were allowed in Turpin v Sortini (supra, at para 40), Procanik v Cillo (supra, at para 42) and Harbeson v Parke-Davis Inc. (supra, at para 43), and in Procanik the court recognised the existence of sound reasons for not allowing general damages (see the passage in the judgment set out at para 42 above). Quinn v Blau (supra, at para 41) being in the nature of an interlocutory proceeding did not consider damages.
87 As I observed earlier, the need to prove "damage" does not seem to have been addressed in those cases where "wrongful life" claims were allowed. I do not find in this group of cases any assistance in attempting to solve what I consider to be the insoluble task of assessing compensatory damages in a "wrongful life" claim.
88 In Siemienic v Lutheran Gen. Hosp. (supra), a decision of the Supreme Court of Illinois, the concept of an entitlement to damages for "wrongful life" was rejected. The court referred to Turpin critically, saying:
"In awarding special damages, however, the Turpin court ignored the reasoning that prevented an award of general damages. The problem of establishing the effect of injury was simply passed over, and all discussion focussed on the non-speculative nature of a recovery for extraordinary medical expenses."
89 That criticism was taken up and adopted by the Court of Special Appeals in Maryland in Kassama v Magat (supra, at para 35(1)). A similar criticism was expressed in Nelson v Crusen (supra):
"Thus, the cause of action unavoidably involves the relative benefits of an impaired life as opposed to no life at all. All courts, even the ones recognizing a cause of action for wrongful life, have admitted that this calculation is impossible. We do not believe that the measure of damages can be circumscribed as the Californian, Washington and New Jersey courts have attempted. As was said by the Michigan court in Strohmaier , 'The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist.' 332 N.W.2d at 435 . We hold that there is no cause of action in Texas for wrongful life."
90 I regard the criticisms in Siemienic, Kassama and Nelson to be well founded.
91 In reaching my decision in this case, I do not overlook the arguments of Mr Segal and of Mr Bates in Harriton v Stephens and in Waller & Ors v James & Ors. I shall, however, address those arguments in my judgments in those two cases.
92 In my opinion, the impossibility of assessing damages is yet another reason why the third plaintiff's claim is not maintainable. I so conclude notwithstanding the further arguments advanced by Mr Hirsch based upon the "wrongful birth" cases, which I shall now address.