Harriton v Stephens

Harriton v Stephens - [2006] HCA 15 - HCA 2006 case summary — Zoe

[14]

The label "wrongful life" has been criticised as "unfortunate"[7], "ill-chosen"[8], "uninstructive"[9] and "misleading and decidedly unhelpful"[10]. In my view, its use, even as a shorthand phrase, should be avoided[11].
First, it has been borrowed from another context. The expression was originally used in the United States of America to describe claims brought by healthy but "illegitimate" children against their fathers, seeking damages for the disadvantages caused by reason of their illegitimacy[12]. Such actions are quite different from "modern" wrongful life actions because, among other things, the alleged wrong is not in any meaningful sense the cause of the plaintiff's existence[13].
Secondly, the epithet "wrongful life" is seriously misleading. It misdescribes the essential nature of the complaint. The plaintiff in a wrongful life action does not maintain that his or her existence, as such, is wrongful[14]. Nor does the plaintiff contend that his or her life should now be terminated. Rather, the "wrong" alleged is the negligence of the defendant that has directly resulted in present suffering. Professor Peter Cane identified this distinction, stating "[t]he plaintiff in [wrongful life] cases is surely not complaining that he was born, simpliciter, but that because of the circumstances under which he was born his lot in life is a disadvantaged one"[15].
Thirdly, the expression is apt to obscure potentially important differences between actions brought by or on behalf of children who would not have existed but for the negligence of another. Such actions may arise out of varying circumstances. For instance, the negligence complained of may be a failure to make an accurate diagnosis or a failure to warn the plaintiff's parents. It may precede, or it may follow, conception[16]. The range of potential defendants includes medical practitioners, manufacturers of pharmaceuticals, genetic testing laboratories and possibly even the child's parents[17]. The extent of the child's disabilities is another variable. By lumping all such cases under the one description there is a danger that important factual distinctions will be overlooked or obscured[18].
Fourthly, by referring to actions such as the present as actions for "wrongful life", there is a risk that they will be perceived as the opposite of actions for "wrongful birth". The latter actions are distinguishable on several grounds[19]. Actions for "wrongful life" are brought by or for the child. Actions for "wrongful birth" are commenced at the instance of the parents[20]. Additionally, "wrongful life" actions are often said to raise concerns about the relative values of existence and non-existence. Such concerns are absent in a case of "wrongful birth". Yet the two actions share certain similarities. One important similarity is that they both require a birth. Another is that they both involve the contention that the child would not have been born but for the negligence of the defendant. Unless the similarities and differences are properly acknowledged, considerations favouring parental claims might be disregarded in claims brought by or for the child[21].
Fifthly, the words "wrongful life" implicitly denigrate the value of human existence. Arguably, because of the law's respect for human life[22], the label has caused judges to recoil from affording remedies in "wrongful life" cases. It discourages dispassionate legal analysis[23]. It is essential that the availability of actions such as the present be determined by reference to accepted methods of judicial reasoning rather than by invoking emotive slogans and the contestable religious or moral postulates that they provoke[24].
Notwithstanding this analysis, in these reasons I will have to use the phrase "wrongful life". The term is consistently used in the reasons of the other members of this Court and in the reasons of the courts below. Its use is ubiquitous in the legal literature. To adopt a more fitting description would risk confusion[25]. However, the appeal should be approached with full awareness of the shortcomings in the label "wrongful life". It must be decided by reference to legal analysis, not emotive labels or slogans.

[21]

Relying heavily on the decision of the English Court of Appeal in McKay v Essex Area Health Authority[33], in which the admissibility of wrongful life actions was rejected[34], Studdert J answered the first question in the negative[35]. The second question therefore did not need to be decided. His Honour identified several reasons why the appellant lacked a cause of action.
First, he found that whilst a health care provider owes a duty of care to an unborn child to take reasonable care to avoid causing that child physical injuries in utero, that duty did not include an obligation to give advice to the mother of an unborn child that could deprive that unborn child of the opportunity of life[36].
Secondly, Studdert J held that there was no breach of the accepted duty of care that health care providers owe to unborn children to guard against acts or omissions which might cause physical injury because the respondent did not do anything which caused her mother to contract the rubella virus[37]. Nor was the respondent negligent in failing to take prophylactic measures either to ameliorate the risk of the appellant's being infected with rubella or to reduce the severity of the appellant's disabilities. It was accepted by the appellant that no such measures exist[38].
Thirdly, Studdert J considered that, to recover for negligence, the appellant's claim necessitated a comparison between her present position and the position that she would have been in but for the respondent's negligence. As the appellant would not have been born had the respondent exercised reasonable care, Studdert J found such a comparison was "an impossible exercise"[39].
Finally, Studdert J found that public policy considerations militated against recognising wrongful life actions. He stated that recognising wrongful life actions would erode the value of human life; undermine the perceived worthiness of those born with disabilities; open the door to actions brought by anyone born with a disability regardless of the severity of their disability; enable children born with disabilities to sue their mothers for failing to undergo an abortion if advised of the risk of disability; and place unacceptable pressure on the cost of insurance premiums of medical practitioners[40].
Studdert J also rejected the appellant's alternative action in contract. On the basis of this Court's decision in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd[41], it had been argued for the appellant that she enjoyed a derivative cause of action as a beneficiary of the contract between the respondent and her mother[42]. In rejecting this argument, Studdert J found that the agreed facts did not enable him to find that the contract created a trust in favour of the appellant[43] and that, in any case, such action did not avoid the foregoing problems of how damages could be assessed[44].
Decision of the Court of Appeal: The appellant appealed to the New South Wales Court of Appeal[45]. A majority of that Court (Spigelman CJ and Ipp JA; Mason P dissenting) dismissed the appeal. Spigelman CJ found that no relevant duty of care was owed to the appellant by the respondent. The principal reasons that led the Chief Justice to this conclusion were the absence of the requisite degree of directness in the relationship between the appellant and the respondent[46] and of any clear moral support for the existence of the alleged duty[47]. Spigelman CJ also found that the agreed statement of facts did not include sufficient information for it to be established that the appellant would have been better off had she not been born, proof of which he considered necessary for the appellant to succeed[48].
In Ipp JA's view, the main difficulty with the appellant's action was that damages could not be quantified because of the impossibility of comparing existence with non-existence[49]. Ipp JA would also have rejected the appellant's action on the basis of the absence of a duty of care[50] and causation[51]. He cited a number of policy arguments militating against recognition of the interest asserted by the appellant[52]. It is convenient to address these policy arguments later in these reasons[53].
In dissent, Mason P identified the argument that "life" cannot be a legal injury and the supposed impossibility of quantifying the appellant's damage as the main barriers to the appellant's succeeding in her action. His Honour was not persuaded by these arguments. In relation to the argument that life itself cannot constitute a legal injury, Mason P perceived this as a question-begging statement which contained its own conclusion. It did not supply a reason for denying relief[54]. Mason P also drew attention to the fact that the creation of life is the main trigger of the damage in wrongful birth actions and that it was not clear why the "life cannot be a legal injury" argument should have more force in the context of wrongful life than in the context of wrongful birth[55].
Mason P also rejected the proposition that the appellant's action should be disallowed by reason of the impossibility of determining the damage she suffered. He did so for several reasons[56]. These included that the law values other intangible losses and explicitly or implicitly weighs existence against non-existence in other legal contexts.
Grant of special leave: By special leave, the appellant now appeals to this Court. The questions requiring determination are the same as those in the courts below. They are (1) whether a wrongful life action constitutes a valid cause of action and, if so, (2) what heads of damages are recoverable[57]. The appellant abandoned her contractual action before this Court, electing to rely exclusively on the tort of negligence.

[23]

The breach issue: Two issues can be exposed which do not present any real problem for this Court. The first is the breach element of the tort of negligence. As already mentioned, the parties agreed that, if the respondent owed the appellant a relevant duty of care, the respondent had breached that duty[61].
The causation issue: Secondly, although contested by the respondent, it is clear, in my view, that no real difficulty arises over causation. The respondent pointed to several factual considerations which, he submitted, sustained a finding adverse to the appellant on causation. These considerations included the fact that the respondent had played no part in the appellant (or her mother) actually contracting rubella; the absence of any measures which could have been taken to reduce either the risk that the appellant would be infected with rubella or the severity of the appellant's disabilities once she had been exposed to that virus; and that no other life was possible for the appellant than the one she was living.
These submissions are unconvincing[62]. Had it not been for the respondent's negligence, the appellant would not have been born. The suffering, expenses and losses of which she now complains would therefore have been avoided. True, the respondent did not give rise to, or increase, the risk that the appellant would contract rubella. However, he did, through his carelessness, cause the appellant to suffer, as she still does, the consequences of that infection[63]. As Mason P observed in the Court of Appeal, "[d]octors seldom cause their patients' illnesses. But they may be liable in negligence for the pain and cost of treating an illness that would have been prevented or cured by reasonable medical intervention."[64]
In the present case, the only way in which the appellant's suffering could have been prevented was by terminating the pregnancy. The respondent's negligence deprived the appellant's parents of the opportunity to act on that preventative measure. As such, the respondent was a cause of the appellant's damage.

[29]

Other than the present case, and the appeals in Waller v James[65], heard at the same time, there have only been three reported wrongful life actions brought in Australia. In each case, the plaintiff failed.
The first was Bannerman v Mills[66]. The plaintiff there was born with severe defects as a result of contracting rubella from her mother while a foetus. The facts of the case are not entirely clear from the report. However, it appears that the mother, while pregnant with the plaintiff, had consulted the defendants about her infection. The plaintiff alleged that the defendants were negligent in failing to advise her, among other things, to terminate her pregnancy. The defendants brought a motion for summary dismissal of the proceedings on the basis that no reasonable cause of action was disclosed. A Master of the Supreme Court of New South Wales, after surveying decisions in the United Kingdom and the United States, dismissed the plaintiff's action on the basis that it was unarguable as a matter of law.
The next case was Hayne v Nyst[67]. That was a proceeding commenced by a mother in her own right and on behalf of the child. The mother had given birth to a child who had contracted rubella in utero. An application for leave to bring the proceedings outside the applicable limitation period was ultimately discontinued with the apparent acquiescence of counsel for both sides. However, Williams J commented that, in any event, he did not consider that the child had a viable cause of action.
The third case was Edwards v Blomeley[68]. The plaintiff there was the seventh child born to her parents. Before she was conceived, her father, Mr Edwards, had approached the defendant, a medical practitioner, for a vasectomy. That operation failed. The parties agreed that the defendant had not only negligently performed the vasectomy but, contrary to indications from sperm count tests, subsequently advised Mr Edwards that the procedure had been successful. Acting in reliance on this advice, Mr Edwards engaged in unprotected sexual intercourse with his wife. This resulted in the plaintiff's conception. At birth it was found that the child suffered from cri du chat syndrome. This is a rare chromosomal disorder that causes severe intellectual and physical disabilities.
In the Supreme Court of New South Wales, Studdert J rejected the child's action for want of a relevant duty of care. His Honour stated[69] "I cannot accept that the defendant owed to the ... plaintiff a duty to prevent her conception, or to give to her parents advice such as would have prevented her conception". Studdert J also rejected the action on the basis of causation[70] and the impossibility of assessing the damage that the plaintiff suffered[71]. Finally, his Honour considered that public policy militated against recognition of the plaintiff's action. He found that wrongful life actions, among other things, erode the sanctity of human life and devalue members of society living with disabilities[72]. The parallels with Studdert J's reasoning in the present case are obvious[73].
The preponderance of decisions on wrongful life actions in countries other than Australia is also against the appellant. It is useful to identify the leading international authorities and their reasoning.

[30]

United Kingdom: The most important decision in the United Kingdom is that of McKay[74]. In that case a mother and her daughter sued the defendants for negligently misinterpreting tests of the mother's blood for the rubella virus, with the result that the mother was not properly advised of the risk that her infection with rubella presented to her daughter in utero[75].
The defendants brought a motion to strike out the daughter's claim on the ground that it failed to disclose a reasonably arguable cause of action. That motion was granted by a Master of the High Court. However, it was overturned by Lawton J on appeal. In the Court of Appeal, Stephenson and Ackner LJJ, in separate reasons, restored the orders of the Master. In dissent, Griffiths LJ would have upheld the orders made by Lawton J on the basis that the issue to be determined was not so straight-forward that it should be summarily decided[76]. However, because this was a minority view, his Lordship proceeded to hold that wrongful life actions should not be recognised by English law[77]. In retrospect, and in the light of the later development of authority in England on the proper approach to strike-out applications in cases of such a kind, it can probably be said that Griffiths LJ's initial conclusion (that there should first be a trial) was one that would probably now be followed[78].
Stephenson LJ, who wrote the principal reasons for the majority in McKay, held that the daughter's action was unarguable. In his Lordship's opinion this was because (1) the defendants' negligence had merely caused her birth, as opposed to her disabilities[79]; (2) wrongful life actions postulate a duty to terminate life and this would make an unacceptable inroad on the principle of the sanctity of human life[80]; (3) such actions would expose medical practitioners to liability in respect of "mercifully trivial abnormalit[ies]"[81]; (4) they would open the door for wrongful life actions to be brought against mothers for failing to abort[82]; and (5) it would be impossible to assess damages because one cannot compare the daughter's disabled position with non-existence[83]. In addition to these arguments, the Court of Appeal obviously placed considerable weight on the fact that, not long before proceedings were commenced (but after the daughter's birth), Parliament had enacted the Congenital Disabilities (Civil Liability) Act 1976 (UK)[84]. That Act, which did not apply to the daughter's claim[85], expressly prohibited wrongful life actions[86]. It had been drafted pursuant to recommendations of the Law Commission[87].
Canada: Few actions for wrongful life have been reported in Canada. Those that have been have failed[88]. All but two were struck out before trial[89].
In Arndt v Smith[90], a wrongful life action was commenced in respect of severe mental and physical disabilities suffered by a child as a result of her mother becoming infected while pregnant with the virus which causes chickenpox. While actions for wrongful birth and wrongful life were commenced, at trial, the wrongful life action was abandoned. Citing McKay, Hutchison J stated that the[91]:

[39]

Deciding the existence of a duty: In this appeal, the first issue of law is whether the respondent owed the appellant a relevant duty of care. In Australia, there is no settled methodology or universal test for determining the existence of a duty of care[120] such as is provided in most common law countries by the Caparo test[121]. The inability of this Court to agree on a principle of general application is unfortunate[122]. "[C]onfusion approaching chaos has reigned."[123] This is evident in decisions such as Northern Sandblasting Pty Ltd v Harris[124], Perre v Apand Pty Ltd[125], Crimmins v Stevedoring Industry Finance Committee[126] and Graham Barclay Oysters Pty Ltd v Ryan[127].
However, in practice, the absence of an agreed legal formula has not caused difficulty for the overwhelming majority of tort actions. Most tort actions fall within a recognised duty of care category. Of the actions that fall outside, or lie on the boundary of, an established duty category, the test of reasonable foreseeability will ordinarily provide guidance in determining whether a duty is in fact owed. This is not because satisfying this test is sufficient to establish a duty of care. This Court has repeatedly affirmed that this is not the case[128]. Rather, it is because, in so far as physical injuries arising from a positive act are concerned, it is accepted that if the reasonable foreseeability test is satisfied, the elusive additional component of a duty of care will generally exist[129].
Furthermore, instruction on the duty issue can be secured from several "salient features"[130] that have been identified as potentially relevant to the existence of a duty. In Sullivan v Moody[131] three particular considerations were identified which will often point against the existence of a duty. These were (1) that finding a duty of care would cut across or undermine other legal rules[132]; (2) that the duty asserted would be incompatible with another duty[133]; and (3) that to recognise a duty would expose the defendant to indeterminate liability[134].
Elsewhere, factors capable of supporting a duty of care have been identified. These include (1) vulnerability on the part of the plaintiff[135]; (2) special control[136]; or (3) knowledge[137] possessed by the defendant about the circumstances that gave rise to the damage suffered by the plaintiff.
An established duty category exists: Originally, the common law accepted a principle that, because legal personality arises at birth, duties cannot be owed to a person before that person is born[138]. However, it is now established that health care providers owe a duty to an unborn child to take reasonable care to avoid conduct which might foreseeably cause pre-natal injury. Such a duty has been held to exist even before conception[139]. Once the child is born, the damage accrues in law and the child is able to maintain an action for damages. Unless some disqualifying consideration operates, the present case falls within the duty owed by persons such as the respondent to take reasonable care to prevent pre-natal injuries to a person such as the appellant.
In the Court of Appeal, Ipp JA, whose reasons were supported in this Court by the respondent, considered that the interest asserted by the appellant was distinguishable from that of an unborn child in respect of pre-natal injuries. His Honour gave the following reasons for adopting this distinction[140]:

[42]

The appellant does indeed need to prove the matters to which Ipp JA refers in order to succeed in her action. However, these are not matters directly relevant to the issue of the existence of a duty of care, but to the issue of causation[142]. Needless to say, the question of causation cannot be entirely quarantined from the duty of care element. None of the definitional elements of the tort of negligence stand alone[143]. This is particularly so in relation to the duty of care, which is intimately bound to the other elements constituting the integrated tort of negligence. Thus, it is relevant, in deciding whether a duty of care exists, to ask (among other things) how the postulated duty might be discharged[144] and the type of damage to which it relates[145]. But this does not alter the fact that it is a mistake to fragment duty categories in an artificial fashion.
Primarily, the duty of care issue is concerned with the directness of the association between the injurer and the injured. In Donoghue v Stevenson[146], Lord Atkin stated that "there must be, and is, some general conception of relations giving rise to a duty of care". In Neindorf v Junkovic[147], I proffered three reasons why enquiries relating to the duty of care should, as Lord Atkin indicated, be made at a relatively general level of abstraction. These were that (1) the duty concept is already overworked and unduly complex; (2) particularising the duty of care to too great a level of specificity carries with it the risk of eliding questions of law and fact; and (3) making specific enquiries at the duty stage subverts the traditional structure of the cause of action in negligence, which is designed to pose increasingly specific questions as each successive element falls for decision.
There are additional reasons supporting this approach. Lifting considerations relating to the breach and damage elements into the duty element of the tort threatens the continued relevance of the duty of care in the negligence context. For this reason, it is important to avoid unnecessarily conflating the different components of the cause of action. Furthermore, defining the content of the duty of care to an excessive degree would diminish the precedential value of decisions on duty. Decisions that cast duties of care in narrow terms are of limited assistance to litigants and to judges in future cases. As a matter of practicality, it is desirable that determinations on points of law be framed with a sufficient degree of generality to make them useful in later cases where the facts are necessarily different but where the concepts will necessarily be the same[148].
The duty owed by health care providers to take reasonable care to avoid causing pre-natal injury to a foetus is sufficiently broad to impose a duty of care on the respondent in this case. In order to discharge that duty, the respondent did not need to engage in conduct that was significantly different from conduct that would ordinarily be involved in a medical practitioner's fulfilling the pre-natal injury category of duty. Furthermore, the damage involved immediate, discernible physical damage, which the duty relating to pre-natal injuries ordinarily encompasses. This is not a case involving pure economic loss or another type of loss which is distinguishable from physical damage that could take this case outside the ambit of the pre-natal injury duty of care.
Subject to what follows, therefore, the appellant's case on the duty issue is an unremarkable one in which she sues a medical practitioner for failure to observe proper standards of care when she was clearly within his contemplation as a foetus, in utero of a patient seeking his advice and care. She was thus in the standard duty relationship for such a case. She evidenced the important "salient feature" of vulnerability to harm (in the event great harm), should the respondent not observe proper standards of case with respect to her. Denying the existence of a duty amounts, in effect, to the provision of an exceptional immunity to health care providers. The common law resists such an immunity[149].
Conflicting duties: It is suggested that a significant impediment to recognising a duty of care in this case is that it would potentially conflict with the duty the respondent owed to the appellant's mother[150]. The fact that a putative duty may conflict with an existing duty has been identified as a reason for not recognising the first-mentioned duty[151]. However, while this concern may initially appear persuasive, closer analysis reveals that it is impossible to justify. There are at least three reasons why this is so.
First, it is strongly arguable that the fact that a defendant is under conflicting duties of care is a consideration more satisfactorily accommodated under the rubric of breach than duty[152]. For the reasons which I explained above, the structure of the tort of negligence is threatened by injecting the duty element with too much content[153]. This Court has recognised that the existence of conflicting obligations is a relevant consideration in determining whether a defendant lived up to the required standard of care[154]. In the event that a defendant's legal duties are divided between a mother and the foetus, this will bear upon whether there has been a breach of either duty. A mere potential for conflict will not prevent a duty of care arising.
Secondly, this argument would logically apply to exclude the duty owed by medical practitioners to unborn children in respect of pre-natal injuries. Such a duty has the same potential in every case to conflict with the duty owed to the mother. For example, a medical practitioner may decide to withhold treatment from a foetus on the basis that such treatment, while necessary to address a risk of injury to the foetus, would be harmful or conceivably harmful to the pregnant woman. However, it is not suggested that the duty of care concerning pre-natal injuries should be abolished.
Thirdly, invoking suggested incompatibility between duties as a reason for refusing to recognise a new duty fails to explain why the suggested duty should yield to an existing duty. Reasons may exist in a particular case for favouring the propounded duty to the child over that already in existence to the mother.
Conclusion: In the result, the respondent owed the appellant a relevant duty of care.

[49]

This principle has been endorsed by this Court on many occasions[160]. However, it is subject to numerous qualifications, three of which are relevant to this appeal. First, assessing damages is always a practical exercise in approximation[161]. There can never be an exact equivalence between a personal injury and money. Obviously, a court cannot restore the appellant to her pre-tort position by way of an award of damages any more than it can restore plaintiffs in everyday personal injury cases to their pre-tort position.
Secondly, notwithstanding the compensatory principle, the courts have been willing to assign monetary values to many intangible injuries and nebulous losses. Thus, Fleming pointed to examples in the personal injury context, namely, pain and suffering and loss of expectation of life[162]. Outside the personal injury context lie many other examples including injury to intangibles such as reputation and deprivation of liberty[163]. Merely because the damage is imperfectly translated into monetary terms will not necessarily preclude a court from awarding compensation in respect of that damage. It is a mistake to think otherwise.
Thirdly, it has long been established that difficulties of quantification do not preclude relief where it is accepted that the plaintiff has suffered actionable damage[164]. A judge faced with a paucity of evidence must simply do the best that he or she can to assess the extent of the plaintiff's loss. So much is clear law[165]. There is no reason to conclude that it is otherwise in a wrongful life case.
Application of the compensatory principle: It was not disputed by the appellant that the compensatory principle applies to this case. The appellant did not submit that this Court should fashion a new principle in order to do justice to her case, such as by comparing the appellant with a hypothetical "normal" person[166]. The question thus becomes whether the compensatory principle, and the necessity for the appellant to postulate that careful conduct on the part of the respondent would have averted her life of suffering, denies her a legal remedy for the accepted lack of care and the profound (and unquestioned) damage the appellant suffers and the costs she incurs every day of her life. The respondent urged the logic of his argument. However, as Justice Oliver Wendell Holmes famously observed, the life of legal systems derived from the common law of England has not been fashioned by logic alone[167]. It is the product of experience, judgment and opinion offered by the judges[168].
The problem in the present case is, in large part, an outcome of new technology that permits genetic and other tests to identify grave foetal defects in utero and medical and social changes that permit abortions to occur in some such cases that once would have been impossible, unprofessional or even criminal. To apply logic alone would be to defy the wisdom of the law in responding to a novel problem. It is necessary to draw on past examples expressed in very different circumstances. But it is also necessary to adapt those principles to the circumstances of the present case in the present time[169].
Special damages for needs created: It is important to observe that the "impossible comparison" argument, as Fleming pointed out[170], falls away entirely in so far as special damages are concerned[171]. This includes damages under the principle in Griffiths v Kerkemeyer[172]. Because a plaintiff in a wrongful life action would not have any economic needs had the defendant exercised reasonable care, a loss in this regard is directly caused by the defendant's negligent acts and omissions. In this respect, at least, the assessment of the appellant's damages presents no unusual or peculiar problem whatsoever. Courts in some jurisdictions in the United States have acknowledged this fact and awarded special damages in wrongful life actions whilst denying general damages[173].
This approach has been criticised on the basis that it would be incongruous to award only special damages. For instance, in Turpin[174], in the Supreme Court of California, Mosk J, who would have awarded both general and special damages, reasoned that an "order is internally inconsistent which permits a child to recover special damages for a so-called wrongful life action, but denies all general damages for the very same tort"[175]. In Procanik v Cillo, Schreiber J, who would have rejected wrongful life actions in toto, stated that the "position that the child may recover special damages despite the failure of his underlying theory of wrongful life violates the moral code underlying our system of justice from which the fundamental principles of tort law are derived"[176].
A variant of this criticism is stated by the Court of Appeals of Michigan in Strohmaier v Associates in Obstetrics & Gynecology PC[177]:

[51]

Such criticisms are not convincing. The reasoning in Strohmaier offends the principle that a collateral benefit under one head of damage, enjoyed as a result of the defendant's tort, cannot be applied to offset, still less to destroy, a separate head[178]. Furthermore, it would be a curious result if special damages were denied for the needs created because of difficulties arising in the assessment of general damages when special damages will normally constitute the greater part of the damages claimed in a wrongful life action.
A claim for damages under one head of damage can be denied while allowing the residue of a claim. Consider, for instance, an action that includes a claim for damages in respect of a diminution of earning capacity following negligently inflicted personal injury. If that lost capacity would have been applied to derive earnings in contravention of the criminal law, a claim for damages in respect of that loss may be denied[179]. Yet damages may be awarded under other heads.
In short, criticisms of awarding special damages while denying general damages buy into a specious "all or nothing" mentality. I know of no other situation where a claim for damages is denied in totality, regardless of the fact that quantifiable damage has been sustained under certain heads, merely because objections exist to awarding damages under another head. Appealing to "the moral code underlying our system of justice"[180] in explanation for so doing hardly furnishes a compelling reason for such an approach.
It follows that by ordinary principles, at least special damages are recoverable in a case such as the present. There is no difficulty in the computation of such damage. In my view this application of basic principles of law discloses starkly that the impediment to recovery is founded in policy considerations, not law.
But are general damages recoverable in accordance with the compensatory principle?
Comparing existence and non-existence: The proposition that it is impossible to value non-existence is undermined by the fact that, for some time, the courts have been comparing existence with non-existence in other legal settings. Thus, courts have declared lawful the withdrawal of life-sustaining medical treatment from severely disabled newborns[181] and adults[182] and from the terminally ill[183]. The English Court of Appeal authorised separation surgery on conjoined twins in order to preserve the life of one twin, although doing so would result in the death of the other[184]. Such cases are distinguishable from the present. Unlike the case at hand, they are not concerned with assigning a monetary figure to the difference between existence and non-existence. However, one cannot escape the fact that they entail a judicial comparison between existence and non-existence. Furthermore, some courts which have denied wrongful life actions have done so not because the damage cannot be quantified but because they consider that existence will always be preferable to non-existence[185]. As Professor Harvey Teff points out, "[p]aradoxically, this very premise logically entails the measurability in principle of non-existence"[186].
Guidance from another context: The appellant has unarguably suffered, and continues to suffer, significant pain and discomfort which she would not have had to endure had the respondent acted with reasonable care. It would be wrong to deny compensation where resulting damage has occurred merely because logical problems purportedly render that damage insusceptible to precise or easy quantification. As Pollock J stated in Procanik[187], reflecting the observations of Holmes J[188] already mentioned:

[57]

Notwithstanding these concessions, Waite J declined to follow Turley on the ground that, on his reading of the SDA, a strict comparison was not required. His Lordship's approach was later confirmed by the English Court of Appeal in Webb v EMO Air Cargo (UK) Ltd[195]. In that case, Glidewell LJ stated that holding that the dismissal of a pregnant woman was not contrary to the SDA because of the impossibility of making a comparison "would be so lacking in fairness and in what I regard as the proper balance to be struck in the relations between employer and employee that we should only [accede to that argument] if we are compelled by the wording of the [SDA] to do so"[196].
The judicial discourse in the State Supreme Court in the present case and in other like Australian and overseas cases has been permeated by a search for the appropriate "comparator". It looms large in the reasons of the majority in this Court[197]. It has resulted in a conclusion that such a "comparator" does not exist because the posited "comparator" is a foetus whose life would have been terminated by a medical practitioner acting with due care. To this apparently logical argument the foregoing cases afford two answers that, for me, are applicable and compelling. First, the comparator contemplated in this case, non-existence, is purely hypothetical - a fiction, a creature of legal reasoning only. No one is now suggesting the actual death of the appellant. Indeed, it is her very existence that gives rise to the pain, suffering and expense for which she brings her action. And secondly, there are limits to the insistence on this fictitious comparator where doing so takes the law into other inconsistencies and to a conclusion that is offensive to justice and the proper purpose of the law of negligence. A medical practitioner who has been neglectful and caused damage escapes scot-free. The law countenances this outcome. It does nothing to sanction such carelessness. It offers no sanction to improve proper standards of care in the future.
Can non-existence ever be preferable? It is often assumed in the cases that the only obstacle posed by the compensatory principle to the appellant is that of comparing existence and non-existence. However, there is an additional hurdle created by the principle.
In order to recover damages, the compensatory principle requires a plaintiff to show he or she has lost something as a result of the defendant's tort. In other words, a plaintiff needs to establish that he or she is worse off in some respect than he or she would otherwise have been. In ordinary personal injury actions, it is not necessary for a plaintiff to establish that, all in all, his or her life is worse than it would have been but for the defendant's tort[198]. A plaintiff who suffers an injury, which is not sufficiently severe to lead him or her to think that the quality of life is materially less than it would have been but for that injury, is still entitled to bring an action for, and recover damages in respect of, that injury. The compensatory principle does not put such a person out of court.
The position is somewhat different in the case of wrongful life actions. The compensatory principle, if applied in full rigour, requires the appellant to show that, because of the respondent's negligence, she is worse off than she otherwise would have been. Yet, the only way for a person who owes her existence to the respondent's negligence to establish a loss is to show that the alternative, non-existence, would have been preferable[199]. In order to succeed the appellant is required to show that, in light of her present and prospective suffering, non-existence would (in retrospect) have been preferable. In extreme cases, it may be a valid contention[200]. Clearly, people can sometimes express a preference for non-existence. The law has recognised this by declaring it lawful, in certain circumstances, for medical practitioners to accede to requests by the terminally ill to cease treatment that is keeping them alive but at the price of subjecting them to intolerable pain and suffering[201]. It is also reflected in changes to the law on suicide[202].
Furthermore, it is arguable that a life of severe and unremitting suffering is worse than non-existence. Consider the situation of a newborn child who has a very limited life span and has no capacity to think or appreciate his or her surroundings and is only capable of experiencing unrelenting and excruciating pain. In such a case, many people might think that non-existence would be preferable to existence, particularly where heroic measures were necessary to keep the patient alive. In the Supreme Court of the United States, Brennan J suggested that control over the moment and circumstances of death was one of the most important of all rights. He thereby clearly postulated the right in some circumstances to be protected by the law in giving effect to such a preference[203].
A more pressing problem than that of deciding the question of whether non-existence can sometimes be preferable to existence is the difficulty of deciding when this is factually so. Spigelman CJ adverted to this difficulty, stating[204]:

[62]

Supposed policy arguments: It remains for me to consider whether any policy reasons exist that would warrant rejecting wrongful life actions although they are consistent with established tort doctrine. Numerous policy arguments have been suggested in the courts below and in other cases. None of these arguments is convincing. Some of them are premised on a misunderstanding of the tort of negligence. Most depend upon what I regard as a distorted characterisation of wrongful life claims. A number seem to rest on religious beliefs rather than on the application of legal doctrine in a secular community. In today's world a steady adherence to secularism in the law is more important to a mutually respectful civil society than before[208]. Judges have no right to impose their religious convictions (if any) on others who may not share those convictions[209].
The suggested duty to kill: One of the more absurd arguments that has been raised against wrongful life actions (possibly stemming from the inapt label) is that they impose a duty to kill. Stephenson LJ assumed as much in McKay when he posed the question[210] "how can there be a duty to take away life?" Similarly, in Jones, Macaulay J stated[211] "I cannot logically reconcile the duty owed to the mother predicated upon the mother's right to choose whether or not to abort with a duty owed to the foetus to terminate life". Sometimes, this charge is made in a more qualified form. For instance, in the present proceedings, Ipp JA in the Court of Appeal suggested that wrongful life actions involve "the proposition that the foetus should have been terminated"[212].
It is axiomatic that wrongful life actions do not entail the proposition that the foetus should have been terminated. Less still do they impose a duty to kill. It would be impossible to comply with any such duty considering that medical practitioners can never compel an expectant mother to undergo an abortion[213]. A defendant in a wrongful life action will discharge his or her duty of care if reasonable care is exercised in detecting foreseeable risks which may befall the foetus; warning of those risks where the reasonable person would have done so; and taking reasonable care in providing advice and guidance to the patient or sending the patient to those who can give such advice. Sometimes, the duty can be discharged by doing nothing[214]. If a mother chooses to continue a pregnancy or to conceive in the first place where a proper, careful and informative warning has been given, that is her decision to make[215]. No liability will accrue to the health care provider if a mother adopts such a course having been accurately advised of the risks and competently treated.
A related argument for rejecting wrongful life actions is that, as a practical matter, such actions would impose pressure on medical professionals to counsel women to undergo abortions[216]. For instance, in a United Kingdom Royal Commission report, it is claimed that, if the courts countenanced wrongful life actions, "a doctor would be obliged to urge a woman to have an abortion if there was the slightest chance that her child would be born defective"[217].
Contentions of this nature, like the suggestion that wrongful life actions would impose a duty to kill, betray a fundamental misunderstanding of the principles of the tort of negligence. They overlook the tests of reasonable foreseeability and reasonable care. Wrongful life actions could not arise for failing to persuade women to undergo abortions. Nor could they lie, as it is sometimes suggested[218], where there was a failure by the defendant to prevent a child from being born. This is simply not what a duty of care in negligence entails.
In McKay, Griffiths LJ, subject to one qualification, accurately expressed the legal duty that recognising wrongful life actions would create[219]:

[64]

I would endorse this passage with the exception of the proposition that, if there is a risk of deformity, that risk must be explained. Whether in a particular case a possible risk requires investigation or explanation depends on available technology, proper practice and application of the tests of reasonable foreseeability and reasonable care.
"Life" as a legal injury: Most of the decisions in which an action for wrongful life has been denied have relied upon the argument that "life" itself cannot amount to a legal injury because so to hold would violate the "sanctity of human life"[220]. The special features and uniqueness of human life are indeed fundamental principles in the law[221]. But they do not represent absolute principles. They are subject to numerous qualifications. For example, in certain circumstances, such as in some cases of self-defence, it is lawful to kill another human being. The fact that life-sustaining medical treatment can be withdrawn or withheld, the limited acceptance of abortion, and the abrogation of the common law offences of suicide and attempted suicide[222] in some jurisdictions are further examples of qualifications to the principles.
This argument against allowing actions for wrongful life depends upon a false characterisation of such actions. It is not life, as such, which a plaintiff in a wrongful life action claims is wrongful. It is his or her present suffering as a life in being[223]. Nor, for reasons which I have set out, does the plaintiff assert that a duty to kill should be imposed on defendants[224]. Once the real character of an action for wrongful life is understood, it is apparent that it does not infringe the special precious features of human life.
Effect on disabled members of society: In McKay, Stephenson LJ asserted that allowing wrongful life actions "would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving"[225]. This argument is also without justification. Like the argument based on the principle of the sanctity of human life, it evaporates when what is at stake in a wrongful life action is properly understood.
Wrongful life actions arise out of allegedly negligent conduct which causes suffering. Were this Court to allow this appeal, the decision would contribute to the requirement that health care providers such as the respondent exercise reasonable care to detect and warn of risks which a foetus faces. This would say nothing about how disabled individuals, such as the appellant, once born, are to be treated[226]. Accordingly, there is no support for the suggestion[227] that actions for wrongful life are inconsistent with legislation prohibiting discrimination on the basis of disability.
It could not seriously be suggested that awarding damages to an infant who sustained pre-natal injuries would demean that infant or lower him or her in the eyes of others. This is so even if, because of the extent of those injuries and before birth, medical opinion would have advised the infant's mother of her entitlement to terminate her pregnancy. How is such an infant materially different from an infant bringing an action for wrongful life? As Kaus J said in Turpin[228]:

[66]

Contrary to devaluing plaintiffs in wrongful life actions, awarding damages in a case such as this would provide the plaintiff with a degree of practical empowerment. Such damages would enable such a person to lead a more dignified existence. They would provide him or her with a better opportunity to participate in society than he or she might otherwise enjoy where the burden of care and maintenance falls on the disabled person's family, on charity or on social security.
A supposed problem of "minor defects": The respondent submitted that, if wrongful life actions were upheld in a case such as the present, it would be possible that children, born with putative "minor defects" or some "mercifully trivial abnormality"[229], might claim damages in respect of such defects and that it would be inappropriate for the law to accede to such a claim.
This concern is also meritless. Mason P rightly pointed out that it "trivialises the [appellant's claim] to suggest that accepting the cause of action would entitle a child born with a very minor disability, such as a squint, to sue the doctor for not advising an abortion"[230]. The catastrophic injuries suffered by the appellant, and by persons like her, cannot be equated with a squint. To suggest that the appellant's disabilities are analogous to a squint is absurd and insulting. However, there are even more profound problems with this argument.
In terms of legal principle, minor injuries are not apprehended as categorically different from non-minor injuries in ordinary personal injury cases. It is not apparent why such a distinction is necessary as a disqualification in wrongful life actions. None of the arguments militating against recognising wrongful life actions apply with more force to wrongful life actions brought in respect of "minor defects".
Even if there were a convincing reason of principle for regarding the magnitude of the disability as going other than to the extent of the damage (a doubtful proposition), there would be insuperable practical hurdles confronting wrongful life actions brought in respect of "minor defects". For one thing, a plaintiff who suffers from "minor defects" will hardly be able to show, as required by the compensatory principle[231], that non-existence would have been preferable. Such actions would probably also encounter difficulties in establishing causation, that is, that if properly advised of the risk of congenital defects, the mother would have aborted her pregnancy. Equally, proving breach of the duty of care would be problematic. For instance, in wrongful life actions arising out of a failure to diagnose or a failure to warn, depending on the evidence, it may often be reasonable for the defendant to abstain from conducting tests for "minor defects" or from warning the prospective mother about such risks. In the case of some parents, there would be moral and religious inhibitions that would restrain resort to termination for a defect such as a squint.
Effect on familial relationships: An argument against wrongful life actions which has enjoyed support in the cases is that, if wrongful life actions against medical practitioners are countenanced, the logical corollary is that an action should also lie against the child's mother who refuses to undergo an abortion in circumstances where the mother receives competent medical advice that, in all probability, her child would be disabled. Thus, in McKay, Stephenson LJ stated that permitting wrongful life actions would entail "the opening of the courts to claims by children born handicapped against their mothers for not having an abortion"[232]. In a similar vein, in Curlender, Jefferson PJ, with whom Lillie and Rimerman JJ concurred, stated[233]:

[68]

The possibility of litigation of such a kind has occasioned expression of judicial revulsion[234]. It has been condemned on the grounds that it would have the "potential for the disturbance of family life [and] the fabric of society"[235] and "provide a basis for ... interfamilial [sic] warfare"[236].
The flaws in this reasoning are so obvious that they scarcely require expression[237]. First, it is not unknown in Australia for children to sue their parents in tort. Australian law does not recognise any principle of parental immunity in tort[238]. Thus, actions against parents by their children are not uncommon in the context of motor vehicle accidents. It has been held that children even enjoy a right of action against their mothers in respect of pre-natal injuries sustained as a result of the mother's negligent driving[239]. There is no evidence that such proceedings have resulted in any disintegration of the family.
It is true that there are distinctions between actions seeking damages in respect of personal injuries and actions for wrongful life. Most notably, the latter, unlike the former, involve the proposition that, but for the negligence of the defendant, the plaintiff would not have existed. Yet the suggestion that, when compared with run-of-the-mill personal injury actions, wrongful life actions are liable to provoke familial discord is highly contestable. It is possible, perhaps even likely, that a child who suffers from debilitating disabilities might hold greater resentment towards his or her mother if those disabilities flowed from, say, the mother's negligent driving, rather than from a decision not to submit to an abortion once the mother discovered that her child would suffer from such disabilities.
Secondly, this argument ignores the reality of tort litigation. The plaintiff in a wrongful life case is typically a profoundly disabled infant who has little, if any, personal awareness of the proceedings. Accordingly, it is difficult to see how a wrongful life action, if exceptionally commenced against the mother, would be apt to fracture the familial relationship. The reality is that wrongful life actions, like wrongful birth actions, are about money rather than love or family feelings[240]. For such actions to be viable in the first place there normally has to be an insurer or other deep pocket.
Thirdly, just because it is held that a wrongful life action lies against a negligent health care provider, it does not necessarily follow that such an action would lie against the mother. There is a clear difference in the relationship between a child and a health care provider, on the one hand, and between a child and his or her mother, on the other. Particularly important to the former is the professional association involved. In the latter, considerations of the mother's own autonomy and bodily integrity would have to be given full weight[241]. The relationships are fundamentally different. If this Court were to hold that a wrongful life action existed in the present proceedings against the respondent, that decision would say nothing at all about whether such an action lay against the mother.
Fourthly, as a practical matter, it is highly unlikely that any court would conclude that a mother's decision to decline to undergo an abortion would constitute a breach of any duty of care owed to the foetus[242]. Such a duty would only be breached if the trier of fact decided that a reasonable person in the mother's position would have terminated the pregnancy. While the gravity of the harm and the likelihood of the risk of injury might be given weight in favour of a finding of a breach of duty, the right of a woman to be free to make unencumbered choices regarding such serious questions as procreation and abortion would be an overriding consideration pointing against breach[243].
The influence of legislative change: Since 2002, the legislatures of all Australian jurisdictions have enacted legislation[244] that has reduced, or eliminated, the ability of plaintiffs to sue in tort. The chief stated purpose of such legislation has been to reduce the cost of insurance premiums[245], particularly for public liability and medical negligence insurance[246]. A national inquiry, established to make recommendations on how this objective should be realised, was required to proceed on the assumption that "[t]he award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another"[247].
In the present case, in the Court of Appeal, Ipp JA suggested that, in this legislative climate, it would be wrong for a court to expand the range of interests protected by tort law by recognising an action for wrongful life. His Honour said[248]:

[70]

Before considering this issue, it is appropriate to make some preliminary observations about the legislative intervention. First, while there has been a long history of legislation affecting the ambit of the law of torts[249], on the whole, previous changes have been context-specific and supplementary in nature. However, the legislation identified by Ipp JA, by making substantial alterations to the principles of reasonable foreseeability[250] and causation[251], has intruded upon the doctrine of the common law of torts[252].
Secondly, although all Australian jurisdictions have enacted legislation sharing a similar general objective, there are significant differences between the laws of the several jurisdictions. This has resulted in a reduction of the earlier relative uniformity of the law of torts as emanating from this Court. This country now faces the real prospect of a "crazy quilt" of tort legislation, akin to that existing in the United States[253].
Thirdly, the legislation is fundamentally restrictive. The obstacles for plaintiffs seeking damages in tort, especially where the damages are sought in respect of personal injury, have been considerably increased[254]. For instance, in New South Wales, the "far-fetched or fanciful" formula for reasonable foreseeability stated by Mason J in Wyong Shire Council v Shirt[255] has been replaced by one of "not insignificant"[256]. This Court's decision in Rogers v Whitaker[257] has been partly confined. The principle in Bolam v Friern Hospital Management Committee[258] has been resurrected in a modified form[259]. Exemplary and aggravated damages have been abolished in personal injury cases[260]. Of special relevance to the present appeal is the hostile legislative reaction to this Court's decision in Cattanach[261]. Provisions preventing recovery of damages in wrongful birth cases have been enacted in New South Wales[262], Queensland[263] and South Australia[264].
The notion that statutory provisions can cause the common law to alter its course is not new[265]. In McKay, the English Court of Appeal was clearly influenced by the then recent enactment of the British legislation prohibiting wrongful life actions[266]. In Pilmer v Duke Group Ltd (In Liq)[267] this Court considered whether common law notions of contributory negligence, affected by apportionment legislation enacted in all Australian jurisdictions, could diminish awards of equitable compensation for breach of fiduciary duty. Unanimously, that question was answered in the negative[268]. That answer was given principally on the ground that to admit a "defence" of contributory negligence in that context would be opposed to the character of fiduciary duties[269]. Although I agreed with that conclusion, I acknowledged that both equity and the common law were susceptible to influence by statutory changes[270]:

[72]

In the common law of torts, the recent turn of the Australian judicial tide in favour of defendants[276] may not be wholly unrelated to legislative developments. Although the reversal of previous approaches, effected by the courts, preceded the enactment of the most recent legislation, the legislation was widely anticipated. The judicial reversals have arguably gathered momentum since those enactments. This development presents an important issue of judicial methodology. If the courts are, in fact, relying on legislative policy as a reason for altering the course of the common law of torts, that reliance should be disclosed[277]. Without such disclosure, the appropriateness of such reliance could never properly be considered and contested[278].
While I adhere to the views that I expressed in Pilmer[279], in the present case there are significant arguments against developing the common law by analogy with legislation or by reference to a trend said to exist in such legislation. Most obviously, as a practical matter, it is difficult to see how this Court could confidently develop the common law in general conformity with legislation where different approaches have been taken in different jurisdictions and where, in other jurisdictions, no relevant law has been enacted. How could the courts set the common law in a parallel course when the legislatures themselves have struck off in a number of different directions[280]?
Attempts to reformulate the common law in this way would also throw up many imponderables. Discerning the purpose lying behind legislation is often an arduous exercise. Yet it is an immeasurably more difficult exercise to discover what Parliament intended for the law where it has abstained from expressly spelling out what the law should be, as the New South Wales Parliament has on the issue of wrongful life. As Mason P noted in the Court of Appeal[281], s 70 of the Civil Liability Act 2002 (NSW) provides that the restriction on wrongful birth actions contained in s 71 "does not apply to any claim for damages by a child in civil proceedings for personal injury ... sustained by the child pre-natally". Therefore, so far as New South Wales is concerned, Parliament has left the particular question to the courts.
Professor Patrick Atiyah has warned that it is futile to engage in speculation about a failure to legislate because numerous explanations may exist to explain the inaction[282]. They might include a lack of interest, satisfaction with the existing common law, or an absence of agreement on what any different law should be[283]. Professor Atiyah also suggested that to engage in such speculation would be a constitutional mistake on the basis that Parliament's purpose, unless it is realised in legislation, has no legal value whatsoever[284]. Each of these arguments militates against any reliance by this Court in the present case on the tort "reform" legislation as a reason for disallowing this appeal.
On the particular issue before this Court in this appeal the several legislatures of Australia have been totally silent. By inference, they have left it to the courts to perform their constitutional functions unimpeded by legislation[285]. The courts should do their duty in the normal way[286]. That duty, in a novel case, involves the provision of an answer that accords with established judicial authority. Necessarily, to address the novel features of the case, untouched by past decisional authority, this Court must reason by analogy. It must develop legal principle and legal policy to the extent that these are relevant[287].
Irrelevance of the parental action: A further argument that has frequently been advanced against recognising wrongful life actions is that the law, by way of an action for wrongful birth, already provides relief for the consequences of medical negligence that results in the birth of disabled children[288]. Proponents of this argument have sought to bolster it by asserting that wrongful birth actions, unlike wrongful life actions, do not give rise to problems in terms of quantifying the damages[289].
While it may be agreed that, where a wrongful life action lies, it is likely that a wrongful birth action would also exist, with respect, it is little short of astonishing that this line of reasoning has been entertained as a serious answer to wrongful life actions.
Wrongful birth actions are claims brought by parents in their own right for loss incurred by them by reason of the birth of an unplanned or unexpected child. Because the courts in Australia eschew any concern with the manner in which damages awards, once ordered, are used[290], parents who recover any such damages are, at present, under no legal obligation to apply any damages recovered for the benefit of the child[291]. On this basis, damages recovered in wrongful birth actions are prone to dissipation by the parents[292]. As well, there is no guarantee that the damages would correspond with the extent of the child's loss and suffering. Nor is there any assurance that the parents would be willing, or able, to pursue a wrongful birth action. Whether in the particular case a parental action lies is fortuitous[293].
More fundamentally, this argument would lead to an incongruous result whereby the existence of one action (the parental action) is presented as a reason for denying another action, although it is vested in a different legal person and is designed to vindicate injury to a different legal interest. The fact that a parental action may lie is therefore not ultimately relevant to the determination of this appeal, except in so far as it may give rise to a possible problem of the overlapping of damages awards and the adoption of a common law rule that prevents double recovery for the same losses.
Prospects of genetic progress: In the Court of Appeal, Ipp JA suggested that unknowable advances in genetic science should encourage the courts to stay their hand in any development of tort law and stop short of protecting the interest asserted by the appellant. His Honour reasoned[294]:

[74]

I agree with Ipp JA that there are many imponderables presented to the law by advances in genetic, specifically genomic, science. However, I disagree with his Honour's solution which is that, in this respect, the judges should place the common law into a deep freeze. This has not been the usual response of the judges to a time of rapid social and technological change. Quite the contrary.
In medical science, there will always be imponderables. If Ipp JA's argument were taken to its logical conclusion, there would be no future for tort law in the field of medical negligence. The courts would opt out with a unilateral self-denying ordinance on the basis of the possibility (by no means certain) that the several legislatures of Australia, within their respective areas of responsibility, will energetically address the countless problems requiring legal solutions. Part of the genius of the tort of negligence in the common law has been its malleability and versatility, which permit it to respond to the exigencies of changing times[295]. One of the values of a constitutional federation is the scope that it leaves for local innovation to stimulate the eventual emergence of national standards[296]. With reasonable care as the touchstone of liability, the action of negligence has adapted to circumstances which would have been inconceivable when Donoghue v Stevenson[297] was written. The injunction against judging conduct with the benefit of technological hindsight[298] provides a safeguard for defendants. So does the current judicial mood that has constrained the provision of remedies[299], reversing previous remedial and communitarian doctrines[300].
Whether this Court likes it or not, genetic testing and other sophisticated technology is playing an increasingly significant role in reproductive decision-making and subsequent life support to the profoundly disabled. In light of this, it would be erroneous for tort law in Australia to opt out of its function of expressing the rules that govern the rights and obligations of parties in relevant relationships[301]. Tort law, by the threat of a liability to pay damages, can stimulate and require those who offer genetic services to take reasonable care in delivering those services. The prospects of discoveries in genetic science support, rather than detract from, the need for judicial elaboration of tort law in this area. As Justice Allen Linden has said[302]:

[80]

Since Donoghue v Stevenson[304], to establish a cause of action for negligence it has been necessary to demonstrate that the defendant owed the plaintiff a duty of care, to prove a breach of that duty, and to prove damage of which the breach of duty was a cause. Having regard to the origins of the modern tort of negligence in the old action on the case, damage has been seen as the gist of the action for negligence. But none of these three elements of the tort of negligence - duty, breach, or damage - is self‑defining. Over recent decades the courts have considered difficult questions about duty of care and causation of damage by breach. The decisions that have been made yield no single overarching principle that may be understood as uniting them. In this case a central, and the determinative, question is what does the law recognise as "damage"? That question is separate and distinct from questions of duty or causation. To decide the question, it is necessary to consider the place that is to be given to the tort of negligence in the fabric of the law as a whole.
Deciding what is "damage" cannot be undertaken as an exercise in syllogistic logic. The statement of the premise of a syllogism would inevitably embrace the conclusion which is said to follow from it. The real task will be found to lie in identifying what would be the content of the relevant premise. In particular, what constitutes "damage"?
While the task must begin from an understanding of the place of the law of negligence in the fabric of the law, it must also begin with a clear recognition of the difficulties and limitations that are inherent in attempting to classify the law, or the purposes of particular branches of the law. Classification of judge‑made law is hazardous because the common law is a practical instrument which does not develop by reference only to considerations of theoretical harmony and taxonomic elegance. It is only "[f]or convenience, [that] the law creates certain pigeon‑holes (labelled: property, contract, tort, and so on) in which it may file the rather untidy facts of life"[305].
There is not, and never has been, any wholly accurate and concise definition of what should be placed in the pigeon‑hole marked "tort". Nonetheless, as Holmes pointed out[306]:

[83]

As was pointed out in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd[307], it is not useful to attempt to divide the litigious world into only two parts, one marked "civil" and the other marked "criminal". The litigious world is more complex than that. And as Windeyer J pointed out in Uren v John Fairfax & Sons Pty Ltd[308], "the roots of tort and crime ... are greatly intermingled". No doubt this historical intermingling contributes to the considerable overlapping that can be seen between the purposes to which the law of tort and the criminal law seek to give effect. Because both the law of tort and the criminal law have several and overlapping purposes and effects, it is incomplete to see the former as concerned only with harm and its compensation, and the latter as concerned only with fault and its punishment. Yet that does not deny the central importance played in the law of tort by the concept of compensation for harm.
So much appears from the remedy which is granted to a plaintiff who succeeds in an action for negligence. Upon proof of damage, the plaintiff will be awarded damages. Demonstrating no more than that a person owed another a duty of care and acted without reasonable care will not suffice to establish the cause of action. Absent proof of damage, a claim for negligence must fail. Leaving aside the anomaly presented by the power to award exemplary damages[309], the damages that are awarded in an action for negligence are damages to compensate the plaintiff for the harm that is suffered as a result of the defendant's negligence. The well‑known basic rule[310] is that those damages are to be assessed as the sum which will, so far as possible, put the plaintiff in the position the plaintiff would have been in had the tort not been committed.
At once it can be seen that measuring the damages that are to be awarded to a plaintiff who has demonstrated that he or she has suffered damage, of which the defendant's breach of a duty of care owed to the plaintiff was a cause, requires the making of a comparison. It invites attention to the position in which the plaintiff would have been had the tort not been committed and the position in which the plaintiff is shown now to be. Often that comparison is not easily made. Very often, the results of the comparison are not readily expressed as a sum of money. Pain and suffering, loss of enjoyment of life, and the like are not readily measured in dollars[311]. But pecuniary compensation is the best remedy the law has for harms sustained by a person even where those harms do not represent an inroad upon a person's financial or material assets.
To say of a plaintiff that he or she has suffered "damage" or "harm" likewise invites comparison between what would have been and what is. That inquiry cannot be made in the abstract. First, it directs attention to the position of the particular plaintiff, not some hypothetical class of persons of which the plaintiff might be said to be a member. But secondly, and critically, it requires identification of the condition of, or state of affairs concerning, that plaintiff which would have existed had the tort not been committed. This second step is required not just for the purposes of assessing the extent of relief (by way of damages) that is to be allowed, it is a step that is required at the logically prior point of identifying whether the plaintiff has suffered damage. Deciding whether the plaintiff has suffered harm, and what that harm is, requires comparison.
In the appellant's written submissions it was said that she had suffered "grievous injury". It is necessary to understand how that expression is used in this case. It is not used to describe the condition of, or state of affairs concerning, the appellant as differing from some condition or state that previously existed or was previously enjoyed by her. Nor is it used to describe any physical or economic consequence that is alleged to have been caused by any negligent act or omission of the doctor, other than the consequence that the appellant's mother did not terminate her pregnancy and the appellant was born.
The appellant contended that she demonstrated that she had suffered damage (that she had in the relevant sense suffered "injury" or "harm") by comparing her condition with not having been born. The appellant expressly disavowed the argument that the appropriate comparison is with the "ordinary", "able" or "average" person. The appellant insisted that the proper comparison is with "not having been born" because, so the argument ran, the comparison that must be made is with what would have been the case if the doctor had not been negligent. If the doctor had not been negligent, the appellant's mother would have terminated the pregnancy. As the reasons of Crennan J demonstrate, it is not possible to compare the appellant's life with non‑existence. Rather, in order for the appellant's life to be viewed as an "injury" or "harm", it is logically necessary to compare her life with that of another person.
Indeed, a comparison of that kind (a comparison between the plaintiff's condition and the condition of some other person) is implicit in the use of expressions like "grievous injury". That is, by using expressions like "injury" or "harm" the appellant implicitly invited comparison between her condition and the condition of a person who does not have the disabilities she has. So, too, other descriptions given of the damage, or harm, for which the appellant seeks redress implicitly invited the same comparison. Thus, when it was said that she seeks redress for having and living with "disabilities", "deficits", "injuries" or the like, those descriptions, in the end, point to the disabilities the appellant has and hinge upon her comparing her past, present and expected physical and intellectual state and capacities with some hypothetical "ordinary", "able" or "average" person. (I leave aside any consideration of what exactly those words "ordinary", "able" or "average" may encompass and any consideration of the difficulties inherent in their use or application.) A comparison with that other hypothetical person is necessarily implicit in the descriptions given by the appellant of her "injury" because the appellant herself has never had a life free from the disabilities she has. But for the reasons stated earlier, a comparison of that kind does not show that the appellant has suffered what the law recognises as damage.
It is because the appellant cannot ever have and could never have had a life free from the disabilities she has that the particular and individual comparison required by the law's conception of "damage" cannot be made. Because she has never had and can never have any life other than the life she has, with the disabilities she has, she cannot show that she has suffered damage, as that legal concept is now understood, as a result of a failure to give the advice she says her mother should have been given.
Although this conclusion is determinative, it is as well to recognise, and deal with, some further aspects of the appellant's arguments which, together, could be understood as advancing reasons for extending the legal concept of "damage" to include living with the disabilities the appellant has. The features of the appellant's arguments relevant to this aspect of the matter can be summarised as follows. The appellant's disabilities are very severe. She needs constant care. An important element of her case is that the risks of which her mother should have been advised were so grave that termination of the pregnancy would have been warranted. The circumstances of the case might therefore be said to be both exceptional and confined. If the doctor was negligent, why should the cost of providing care not fall upon a party who is shown to be negligent rather than upon the appellant's parents or society at large?
Neither the severity of the appellant's disabilities, nor the (in this case, assumed) demonstration of duty coupled with want of reasonable care, compels the conclusion that living with her disabilities should be recognised as a form of damage. It is as well to explain why that is so. In doing that, it is necessary to touch upon some aspects of questions of causation and policy.
The appellant's case is that a reasonable doctor would have advised the appellant's mother of the risks of her being delivered of a child with severe disabilities and would have advised her that the only way to avoid the risks coming to pass was to terminate the pregnancy. In this case, the risks came to pass. The appellant has severe disabilities. But if the asserted negligence is a failure to recognise and advise of risks, what is to be done in the case where the risks are not fully realised? Is the child of a woman whose doctor should have advised her of the risks consequent upon exposure to rubella to have an action against the doctor if the child has any form of adverse consequence from the mother's exposure and can show that the mother would have chosen lawfully to terminate the pregnancy? Or is the concept of "damage" to be confined to cases where the risk of severe disabilities is substantially realised? What would be the principle which would warrant confining recovery in that way?
These questions provoke examination of some steps that lie behind the appellant's contentions about what is "damage". In particular, they provoke some limited reference to some aspects of questions of duty and causation. The appellant contends that her mother's doctor owed a duty of care to the appellant, not just her mother. For present purposes, the existence of a duty of care may be accepted[312]. It is a duty that the appellant cannot enforce until after birth. Only then does she have legal personality to enforce the duty. But that does not deny the existence of the duty.
The appellant contends that to discharge the duty, the doctor should have offered information and advice to her mother. But her mother would then have been confronted by the choice of terminating the pregnancy or not. Determining the lawfulness of a termination focuses upon the pregnant woman's circumstances - especially upon her health[313]. That inquiry examines the reasonable belief of the doctor who performs the termination but is not directly concerned with the subjective beliefs of the mother. It is, essentially, an objective inquiry. If termination is lawful, the woman must choose whether to take that course. That choice is wholly subjective.
A mother may think it right to take account of all sorts of considerations in deciding whether to terminate a pregnancy. Not least among those considerations are her religious and other beliefs. The choice is hers to make. For a court to decide what a plaintiff's mother would have done if confronted by proper information and advice about the risks of continuing with a pregnancy, it may well be necessary to explore the matters that the mother would or may have taken into consideration in reaching her decision. Necessarily, that would be a difficult[314] and intrusive inquiry. That does not mean that a rule must be adopted which avoids making such inquiries. But what it may be thought to point to is some questions about causation.
The duty posited, owed by the doctor to the unborn, is said to require the doctor to give advice and information to the mother. Whether it would be lawful to terminate the pregnancy is a question decided objectively. How the mother would act in response to proper advice and information would be a matter for her choice. If, given proper information and advice, the woman concerned would have chosen not to terminate the pregnancy, a doctor's failure to give proper information or advice to the mother during pregnancy could not be said to have caused the child, when born, any damage, however broadly "damage" is understood. At least to this extent a doctor's liability to the child would then depend upon the particular subjective views of the mother.
But in a case where it is shown that the mother would have terminated the pregnancy, the subjective nature of the considerations which inform the mother's choice about termination may well be thought to be insufficient reason to conclude that the doctor's failure to tender proper advice was not a cause of the plaintiff being born. And if that is so, rather than pointing to some issue about causation, the interjection of the element of the mother's choice reveals only that there will be a significant number of cases where, because the mother would not have terminated the pregnancy, the doctor who negligently failed to proffer advice about the risks of continuing with the pregnancy would not be liable to the child.
The importance of this observation is that it reveals that to adopt a rule which would extend the concept of "damage", whether by inviting comparison between the life the plaintiff has and the kind of life which others have, or by describing the consequence of the asserted negligence as "living with disabilities", in the name of promoting careful practice by doctors, would be to adopt a rule whose engagement in a particular case would depend upon the mother's choice. Such a rule would, at best, have only indirect effects on the promotion of careful medical practice.
There is, then, no basis demonstrated for departing from the established rule that the law recognises as "damage" the difference between what the particular plaintiff is or has and what that plaintiff was or would have had. The appellant's disabilities in this case are not a form of damage. She could have had no life other than the life she has. The common law should not be developed in the way for which the appellant contended.
The appeal should be dismissed with costs.
CALLINAN J. The question that this appeal raises is one that has exercised the minds of philosophers, theologians, scientists, legislators and lawyers throughout the world: may a child born profoundly disabled who probably would have been aborted by her mother had she been informed of the child's likely condition at birth, as she should have been, but negligently was not, by the medical practitioner responsible for her, sue the practitioner for damages?
There has been no trial. The facts that I summarize have been taken as correct for the purposes of deciding the questions posed at this stage of the proceedings.

[89]

The appellant appealed unsuccessfully to the Court of Appeal of New South Wales (Spigelman CJ and Ipp JA, Mason P dissenting)[317].
Spigelman CJ sought first to identify the loss suffered by the appellant, and asked whether there was a duty with respect to that kind of loss. In answering that question, a court had to be attentive, his Honour said, to the ethical foundation for the relevant legal principles. The duty asserted by the appellant did not reflect values generally, or even widely, held in the community. There was no sufficiently direct relationship between the respondent and the appellant to support the appellant's claim.
Ipp JA was of the opinion that the case was one in which the compensatory principle could simply not be applied: it was impossible to compare existence, even in a profoundly disabled state, with non-existence. His Honour was unable to find any supporting justifications in policy, for a refashioning of the compensatory principle in such a way as to enable damages to be awarded to the appellant. The considerations of policy to which his Honour referred were that the notion of "sanctity of life" militates against recognition of any duty for which the appellant contended. Increasing knowledge of genetics should make courts extremely cautious in varying legal principle to accommodate a law of the kind for which the appellant contended. In any event, there was a remedy available to parents, to whom a disabled child was born if medical negligence caused the disability, and that should suffice.
In dissent, Mason P pointed out that the common law strived to ensure that a claim for damages, even a novel one, attract the full range and measure of damages usually allowed. In his opinion, responsibility of a doctor treating a pregnant woman, extends to the foetus, and is a different duty from the duty not to cause harm or injury. The respondent's negligence precluded the making of any informed decision by the parents. His Honour took the view that there was no conceptual difference between the critical event that might enable parents to sue, and a child's putative claim that he or she should not have been born. The appellant should not fail because she is unable to demonstrate the monetary value of non-existence. Any contention to the contrary offends the principle that the wrongdoer bears the evidential onus of establishing the existence and value of offsets and collateral advantages said to stem from the wrong. The judicial equation of pre-birth non-existence and death arguably offends against the principle of judicial agnosticism.

[90]

In this Court the appellant advances the same arguments as in the courts below. Reference was again made to like cases in many other jurisdictions. The appellant sought to place particular emphasis upon a decision of the Supreme Court of Israel[318] in which as a result of medical negligence a woman was not advised of the possibility of the transmission of an hereditary illness which could affect any child whom she might conceive. She became pregnant, and gave birth to a boy to whom the hereditary disease was passed, and who, in consequence, was severely disabled. The Supreme Court of Israel held that non-life was preferable to impaired life, and that the wrongdoer should compensate the child so that his quality of life would be better as far as money could help. Two judges of the Court, Ben-Porat DP and Barak J, in holding that the child could recover, said that the amount of damages awarded should be as much as he had lost due to his impaired situation. The decision was however tellingly criticized in an article written by David Heyd[319] who pointed out that the reasoning necessarily involved the erection of a fiction which the Court nowhere acknowledged in the reasons for judgment[320].
The appellant also placed weight upon Burton v Islington Health Authority[321]. But that case does not in my opinion assist her. It was a case in which the plaintiff suffered injury after he had been conceived, and as a result directly of the defendant's negligent treatment of his mother and himself during the confinement and delivery. The issue was quite different from the issue here. It was in substance whether any distinction should be drawn between injuries suffered immediately after birth, and injuries after conception[322].
In her submissions in this Court, the appellant acknowledged the necessity to confront the problem of seeking to make a comparison between non-being and disabled being. Her contention was that but for the negligence of the respondent, there would have been a state of affairs (necessarily non-being) which would include neither the pain and suffering arising from the physical condition, nor any incapacity to earn income. It was not argued that the comparison should be between the appellant and a perfect child. Vicissitudes of life should be taken into account. Questions of degree are inevitably involved. A court should not shrink, indeed common law courts generally have not shrunk from making the best approximations that they can, well understanding that perfection or precision in any assessment of general damages, particularly in cases of personal injury, is impossible. Inevitably, many policy considerations were touched upon in argument. A wariness of eugenics, selective breeding, was sensible but does not justify a principle that a negligent act causing the birth of a profoundly disabled child should be left without a remedy.

[91]

There are many other policy concerns arguing in both directions the relevance and significance of which may well vary according to the philosophical, theological and perhaps even economic perceptions of those called upon to give consideration to them. Some of them are touched upon in Cattanach v Melchior[323], in particular by the minority in that case. The matters which influenced Mason P in reaching his dissenting opinion are all weighty ones of legal and social concern. There are also these. Defensive medicine, practised as a result of a decision favourable to the appellant, could lead to a greater readiness on the part of practitioners to counsel abortion[324]. The damages in a case of this kind, unless in some way arbitrarily restricted, are likely to be very great. Should the state therefore rather than the doctor support the child? To seek to compare for the purpose of assessing damages, non-existence with the state of existence is impossible. Nonetheless, that practical impossibility should be outflanked by the erection of a fiction involving a comparison between an ordinary, non-disabled life and a disabled life. Throughout the history of the common law, fictions have been devised and applied as if they represented the true position. Modern jurisprudence leans against fictions. There should be coherence in the law. Absolute coherence, if the appellant were to succeed here, would require that a mother, who knew of, but failed to abort a foetus likely to emerge at full term seriously disabled, be liable to that child, a prospect that I suspect few would contemplate with equanimity. Why should the wrongdoer be obliged to pay damages to the parents, but not to the person actually afflicted? But on the other hand, the law does from time to time impose arbitrary limits and boundaries. One of the purposes of the law of tort is to set standards, and in that respect, it operates as a deterrent to careless conduct. On the other hand however, there are some departures from proper standards which do not attract damages, for example, by reason of indeterminacy of a kind spoken of in cases of claims for economic loss[325]. On the basis of the facts stated, there is every reason to expect that a person in the position of the respondent will however be appropriately very severely disciplined by the relevant disciplinary body. The consequence of failing to allow this appellant to recover, is that a person such as she, catastrophically disabled, will recover nothing, whilst, if after the moment of conception, she had suffered negligently caused injury, even of a much lesser kind, she may be able to recover. A case of this kind is so different from any other, and goes so much to the heart of diverse theological and philosophical opinion, that the courts should leave it to the legislators to state the law to govern it.
What I have just said is not a comprehensive statement of all of the policy considerations which have troubled the minds of those who have already had to deal with this type of problem. I do not however need to make a comprehensive review of those considerations, any more than I need to undertake another review of all of the authorities, an exercise which has been very helpfully performed in the courts below. I do not need to do these because I would decide the case neither on policy grounds, the common law or any adaptation of it, the law of other jurisdictions, nor on the basis of other cases in Australian jurisdictions so far decided, none of which are sufficiently similar to this case to assist in resolving it, but on logic. The appellant's case propounds these propositions. "Had my mother been properly advised, she would have caused me to be aborted. I would never therefore have come into existence as a formed human being. I am, in consequence, entitled to damages upon the basis that I should never have been born." It is not logically possible for any person to be heard to say "I should not be here at all", because a non-being can say nothing at all. If this conclusion is unacceptable to some, or many, it is for the legislature, and the legislature alone, to say so, and in terms which would enable some principled basis of assessment of damages. It has not.
I would dismiss the appeal with costs.
HEYDON J. I agree with Crennan J.
CRENNAN J. This appeal and two appeals in Waller v James and Waller v Hoolahan[326] ("the Waller cases") were heard consecutively and much of what is said in the reasons in this case applies also to the Waller cases. The submissions in the Waller cases bore on the issues in this case and they have also been taken into account. By majority (Spigelman CJ and Ipp JA, Mason P dissenting) the New South Wales Court of Appeal[327] dismissed an appeal brought by the plaintiff Alexia Harriton (the appellant in this Court) against a judgment in the Supreme Court of New South Wales (Studdert J) dismissing with costs a claim for damages against Dr Paul Richard Stephens ("Dr P R Stephens"), a general medical practitioner.
Alexia Harriton was born on 19 March 1981 with severe congenital disabilities caused by the rubella virus with which her mother, Mrs Harriton, had been infected in the first trimester of her pregnancy. Mrs Harriton had an acute illness with a fever and rash in early August 1980. On 13 August 1980 she consulted Dr Max Stephens, father of the respondent in this Court, Dr P R Stephens, and told him she was concerned that she might be pregnant and that her recent illness might be rubella. She told him she was aware that rubella in early pregnancy could produce congenital abnormalities in an unborn child. Dr Max Stephens advised Mrs Harriton to have a blood test to determine whether she was pregnant and whether she was suffering from rubella. On 21 August 1980 Macquarie Pathology Services reported:

[105]

The specific duty of care postulated in respect of Alexia Harriton was a duty upon Dr P R Stephens to diagnose rubella and then advise Mrs Harriton that the only way to prevent a very high risk of bearing a child with grievous injury caused by rubella would be to terminate the pregnancy. The agreed facts do not cover whether it was known in Australia in 1980 that the effects of rubella may be variable[331] or whether treatment to ameliorate the effects of rubella was available[332]. It is only because Mrs Harriton did not have an abortion or miscarry but continued the pregnancy to term that Dr P R Stephens could be liable for his failures to diagnose rubella and advise of rubella's consequences as identified in the agreed statement of facts.
The issue here has arisen elsewhere in both common law and civil law jurisdictions because of advances in reproductive medicine including diagnostic testing during pregnancy. Typically claims have been advanced that a medical practitioner was negligent in failing to provide sufficient information to a mother concerning the risk of foetal abnormality and as a result of such negligence the mother's pregnancy was not terminated and the child was born into a life with disabilities.
The appellant's counsel eschewed labelling the appellant's claim a "wrongful life" claim and emphasised that what was wrongful was Dr P R Stephens's failures to diagnose rubella and to advise. It was those failures which were said to have caused or materially or effectively caused the damage, namely Alexia Harriton's "life with disabilities". However, such claims have come to be recognised internationally for some decades as "wrongful life" claims[333]. The term encompasses claims by disabled children for alleged negligence after conception, including cases such as the instant case involving rubella[334], and claims based on negligent medical advice or diagnosis prior to conception concerning the possible effect of treatment administered to the mother[335], contraception or sterilisation[336], or genetic disability[337], and contradistinguishes such claims from "wrongful birth" claims by parents for the costs of raising a child whether healthy[338] or disabled[339], whose unplanned birth occurs as a result of medical negligence. There have been numerous instances where claims of wrongful birth and wrongful life have been brought concurrently.
While precise facts have differed, a comparative survey reveals that many courts have recognised the difficulty and novelty of the question of whether life with congenital defects can be recognised as damage, at the suit of a disabled person who would not exist in the absence of the alleged negligence[340]. Speaking generally, such claims have been resisted in common law jurisdictions. It appears that on the very few occasions when such claims have been allowed the results have not always been uncontroversial and legislatures have reacted to such decisions, or acted proleptically, to restrict or prohibit such suits[341].
A right of action and a duty of care are inseparable[342]. In a case like this, the existence and extent of a duty of care can usefully be considered by reference to the nature of the damage suffered[343] because a cardinal principle of imposing liability for negligence in novel circumstances is that the party complained of should owe to the party complaining a duty to take care, which the law can recognise as a matter of principle[344], and that the party complaining should be able to prove that actual loss or damage has been suffered as a consequence of a breach of that duty[345]. Proving that actual loss or damage has been suffered requires proof of interference with a right or interest recognised as capable of protection by law[346].
Decisions from overseas jurisdictions where the same issue and identical questions have arisen may assist, despite not being binding, because determining, as a matter of law, whether a duty of care exists or not falls to be considered at a "higher level of abstraction"[347] than, for example, factual questions of breach, turning on local normative standards, and causation.

[112]

In Gleitman v Cosgrove[356], an early cognate decision in the United States of America, to which the Court was referred in McKay[357], a majority of the Supreme Court of New Jersey found that it was impossible to determine the difference between a life with defects and "the utter void of nonexistence"[358] and determined that the child's complaint was "not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law"[359]. In denying a concurrent claim by the parents claiming they were denied their right to an abortion in the circumstances, the Court found that even if their damage were cognisable to the law, their claim would be precluded by the "countervailing public policy supporting the preciousness of human life"[360]. While the objection to the parents' claim may be affected by the decision in Roe v Wade[361], the objection to the child's claim continued to be influential in American jurisprudence concerning wrongful life even as it developed after Roe v Wade[362]. Courts in California, New Jersey and Washington have permitted "wrongful life" claims and the recovery of special damages associated with a plaintiff's disabilities[363] and the Superior Court of Connecticut has declined to strike out such a claim summarily[364]. Stephenson LJ noted in McKay[365] that Gleitman v Cosgrove[366] had been preceded by an article by Tedeschi[367] which dealt with the issue of the impossibility of comparing two alternatives of non‑existence and existence with disease.
Many other American states have rejected "wrongful life" claims both before and after Roe v Wade[368] for a variety of reasons, but two recur. First, such a claim requires an impossible comparison between a life with disability and non‑existence such that the damage claimed, that is a life with disabilities, is not cognisable to the law and, secondly, damages in respect of that damage are not ascertainable. These objections have led a number of courts, since Gleitman v Cosgrove[369], to continue to find that life is not actionable damage or compensable injury at the suit of a disabled child[370]. The trial judge has conveniently dealt with some of the American cases[371].
It appears that numerous state legislatures in the United States since Roe v Wade[372] have prohibited a person from maintaining a cause of action or receiving an award of damages based on a claim that, but for the negligent conduct of another, the foetus would have been aborted[373]. Lesser legislative restrictions include excluding parents from the class of persons against whom such a claim might be made and restricting damages to special damages associated with disease, defect or handicap[374].
In Canada, such claims have not been recognised[375]. The Court of Appeal in Manitoba has rejected a wrongful life claim on the grounds of public policy and because of the impossibility of assessing damages[376], although the Saskatchewan Court of Appeal has declined to uphold the summary dismissal of such a claim[377].
A wrongful life claim has been allowed by the Supreme Court of Israel[378]. It is reported that two judges in a majority of four (of a bench of five judges) deal with the difficulty of comparing life with disability with non‑existence, by employing for the purposes of assessing damages a legal fiction as a comparator, namely "life as a healthy child"[379].
As to Europe's civil law jurisdictions, it is reported that in Germany, a year before McKay[380], a mother's wrongful birth claim for the extra costs of bringing up a handicapped child affected by rubella was allowed by the German Supreme Court but it rejected the child's concurrent wrongful life claim[381].
A wrongful life claim which appears to have been based on contract has been allowed in France[382]. A claim has been upheld under the Dutch Civil Code in the Netherlands[383].

[116]

In the present appeal, particular significance attaches to the need to preserve the coherence of legal principles, as emphasised in Sullivan v Moody[394]. In what follows, consideration will be given to the nature of the damage alleged and to the difficulty of confining the proposed duty of care to grievously disabled persons, a suggestion made during the argument for the appellant. The conclusion will be reached that the nature of the damage alleged is not such as to be legally cognisable in the sense required to found a duty of care. That conclusion will make it unnecessary to determine the other matters referred to, but as they were fully argued, consideration will be given to them.
It was not Dr P R Stephens's fault that Alexia Harriton was injured by the rubella infection of her mother. Once she had been affected by the rubella infection of her mother it was not possible for her to enjoy a life free from disability. The agreed facts assert that Dr P R Stephens should have treated Mrs Harriton differently, in which case rubella would have been diagnosed. However, on the agreed facts, it was not possible for Dr P R Stephens to prevent the appellant's disabilities. Dr P R Stephens would have discharged his duty by diagnosing the rubella and advising Mrs Harriton about her circumstances, enabling her to decide whether to terminate her pregnancy; he could not require or compel Mrs Harriton to have an abortion.
It is important to an understanding of the right or interest which the appellant is seeking to protect, to maintain the distinction between suing the doctor for causing physical damage, being the disability[395], and suing the doctor for causing a "life with disabilities", as the case was put by the appellant in this Court. The former is immediately caused by rubella, whereas the latter is said to be immediately, or materially, or effectively caused by the doctor's failure to advise the mother such that her response would have been to obtain a lawful abortion. In the Court of Appeal, Spigelman CJ was of the opinion that it is not "possible to avoid or obfuscate the fact that an action by a disabled child, as distinct from an action by the parents, involves an assertion by the child that it would be preferable if she or he had not been born"[396]. This raises the difficult question of whether the common law could or should recognise a right of a foetus to be aborted, or an interest of a foetus in its own termination, which is distinct from the recognised right of a foetus not to be physically injured whilst en ventre sa mère, whether by a positive act[397] or by an omission[398].
It is an important consideration in determining whether a duty of care as alleged exists that it is only Mrs Harriton who was entitled to terminate her pregnancy lawfully in New South Wales, by reference to her physical and mental health[399].
A court is not able to infer from a mother's decision to terminate a pregnancy that her decision is in the best interests of the foetus which she is carrying. The law does not require that considerations of the mother's physical and mental health, which may render an abortion lawful, should be co-incident with the interests of her foetus.
Equally, a mother with an ethical, moral or religious objection to abortion is entitled to continue her pregnancy despite risks identified by her doctor to her physical and mental health or despite being advised by her doctor that rubella may have affected the foetus she carries. In the context of wrongful birth claims, the decision of parents not to have even a lawful abortion has been respected by the law[400]. In commenting on wrongful birth claims, and parental decisions not to have an abortion, in Fleming, The Law of Torts[401], it is stated that "it is not unreasonable for a woman to decline an abortion". Such decisions are bound up with individual freedom and autonomy. The duty of care proposed to the foetus (when born) will be mediated through the mother. The damage alleged will be contingent on the free will, free choice and autonomy of the mother. These circumstances can be expected to make it difficult for a court to assume that a possible conflict between the interests of mother and child would be "exceptional"[402] and to complicate the task of a court in formulating normative standards of conduct against which breach of such a duty of care could be assessed.
It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the mother[403]. However, it must be mentioned that those duties are not determinative of the specific question here, namely whether the particular damage claimed in this case by the child engages a duty of care. To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother so that she can terminate a pregnancy in the interest of the foetus in not being born, which may or may not be compatible with the same doctor's duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal principle[404].
A further consideration is that there would be no logical distinction to be made between a duty of care upon a doctor as proposed, and a correlative duty of care upon a mother or parents who decline to have an abortion and choose to continue a pregnancy despite being informed of the risk of disability to the child. Such conduct would then be the intervening immediate cause of the damage claimed. The appellant's answer to this difficulty was that the mother's current right to make a choice and to terminate the pregnancy lawfully or not could not be cut down by recognising the right of a child to sue in respect of a life with disability. But this answer exposes rather than resolves the possible lack of coherence in principle occasioned by the appellant's claim. The risk of a parent being sued by the child in these circumstances was recognised in the United Kingdom in McKay[405] and in California in Curlender v Bio‑Science Laboratories[406]. Further, the need to protect parents from such suits has been addressed both by the United Kingdom legislature[407] and by the Californian legislature[408].

[117]

Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty. Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff's damage or loss caused by the negligent conduct, with the plaintiff's circumstances absent the negligent conduct. In the Court of Appeal, Spigelman CJ recognised that in cases of this kind, to find damage which gives rise to a right to compensation it must be established that non‑existence is preferable to life with disabilities[409]. A right capable of being protected by the law of tort, to not exist (or to be aborted), must necessarily require the comparison which Spigelman CJ identified. The appellant's counsel conceded correctly that it is the usual principles of tort liability which compel the appellant to contest her own existence.
A comparison between a life with disabilities and non‑existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. Judges in a number of cases have recognised the impossibility of the comparison and in doing so references have been made to philosophers and theologians as persons better schooled than courts in apprehending the ideas of non‑being, nothingness and the afterlife[410].
There is no present field of human learning or discourse, including philosophy and theology, which would allow a person experiential access to non‑existence, whether it is called pre‑existence or afterlife. There is no practical possibility of a court (or jury) ever apprehending or evaluating, or receiving proof of, the actual loss or damage as claimed by the appellant. It cannot be determined in what sense Alexia Harriton's life with disabilities represents a loss, deprivation or detriment compared with non‑existence. Physical damage such as a broken leg is within the common experience of a trier of fact who then has no difficulty apprehending the loss, deprivation or detriment claimed. With more complex physical damage, outside the common experience of a trier of fact, evidence can be led from medical experts to assist the trier of fact to apprehend the loss, deprivation or detriment by comparison with prior circumstances, which can also be the subject of evidence. The same applies with loss or deprivation which is economic. Imaginative access to non‑existence, not based on experience, or on a proved sub‑stratum of fact, cannot assist a court or jury in the forensic tasks necessary to determine a claim such as that of the appellant.
The practical forensic difficulty is independent of arguments about the value (or sanctity) of human life and any repugnance evoked by the appellant's argument that her life with disabilities is actionable. This objection to the cause of action is in no way affected or diminished by shifts in any absolute value given to human life (if such shifts have occurred), occasioned by liberalised abortion laws or other developments in the law in respect of lawful discontinuation of medical treatment where the welfare of a suffering person is the main consideration. A duty of care cannot be stated in respect of damage which cannot be proved by persons alleging such a duty has been breached, and which cannot be apprehended by persons said to be subject to the duty, and which cannot be apprehended or evaluated by a court (or jury).
It was submitted for the appellant that if the majority's rejection of a cause of action in the Court of Appeal on this basis is a legal principle, it is a flawed legal principle or a legal principle wrongly applied because the law has shown itself regularly as capable of balancing a present life of suffering against a therapeutically accelerated death as evidenced in a number of cases in the parens patriae jurisdiction[411]. It was next contended that the "impossible comparison" argument was either an aspect, or a corollary, of the "sanctity of life" argument, which did not preclude recovery in Cattanach v Melchior[412].
The cases involving discontinuation of medical treatment have been conveniently collected by Spigelman CJ in the Court of Appeal[413]. Analogy to decisions in the parens patriae jurisdiction is not apt, chiefly because the wardship cases do not require a forensic establishment of damage by reference to non‑existence. The comparisons generally called for (in a non‑tortious context) are between continuing medical treatment prolonging life and discontinuing medical treatment which may hasten death, always determined by reference to the best interests of the child or person unable to decide for themselves. It is possible for a court to receive evidence allowing it to undertake a balancing exercise in respect of those two possible courses of action[414] before making a decision. As accepted in In re J (A Minor) (Wardship: Medical Treatment)[415], such comparisons involve matters of degree and lack the absolute quality of a comparison between a life with disability (or suffering) and death. The analogy between this case and the wardship cases is also inapt because of the clear distinction between death accelerated by non‑intervention or the withholding of medical treatment and death by the intervention of lawful abortion, a difference recognised in In re J[416].
These considerations highlight the differences between claims for wrongful birth and wrongful life. These differences show the latter cannot be considered incremental claims in relation to the former. Damage was not in issue in Cattanach v Melchior[417]. The Court there was not considering whether the damage claimed was capable of being evaluated by a court. Likewise in Watt v Rama[418] there was evidence of damage capable of being evaluated by the Court and the question was whether established principle could encompass that damage. In the present case, the damage claimed cannot be the subject of evidence or forensic analysis. This highlights the need to distinguish between considerations going to the existence of a duty of care and considerations going to breach, a distinction referred to by Gummow J in Vairy v Wyong Shire Council[419]. The Court in Cattanach v Melchior[420] was considering whether the law would require a doctor defendant to bear certain costs. That question was resolved by reference to "general principles, based upon legal values"[421], and legal policy considerations, encompassing the corporate welfare of the community, coherence and fairness[422], a common law technique for dealing with novel claims[423]. Considering the question here by reference to that technique exposes many formidable obstacles to recognition of the appellant's claim. Another problem is the difficulty of assessing damages, in respect of the damage, a topic to be discussed later in these reasons. Not every claim for damage is actionable. The principles of negligence are designed to set boundaries in respect of liability. The analytical tools therefor, such as duty of care, causation, breach of duty, foreseeability and remoteness, all depend for their employment on damage capable of being apprehended and evaluated.

[118]

There is nothing in the majority's rejection of the "blessing" argument in Cattanach v Melchior[424] or in their disinclination to bar a wrongful birth claim because of the law's recognition of broad underlying values of the importance of life[425], which prevents the additional observation in this case that it is odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities.
In the eyes of the common law of Australia all human beings are valuable in, and to, our community, irrespective of any disability or perceived imperfection. The premises upon which cases are conducted in the parens patriae jurisdiction, which have already been mentioned, do not contradict that proposition. While Alexia Harriton's disabilities are described in the agreed statement of facts, her disabilities are only one dimension of her humanity. It involves no denial of the particular pain and suffering of those with disabilities to note that while alive, between birth and death, human beings share biological needs, social needs and intellectual needs and every human life, within its circumstances and limitations, is characterised by an enigmatic and ever-changing mixture of pain and pleasure related to such needs.
The Court knows very little about Alexia Harriton but it is possible for the Court to infer that Alexia Harriton is no different in this respect from fellow human beings, despite the fact that her grave disabilities include mental retardation. A seriously disabled person can find life rewarding[426] and it was not contended to the contrary on behalf of the appellant. It was not contended as a fact that Alexia Harriton cannot experience pleasure[427]. The Court was informed Alexia Harriton commanded the devotion of her parents.
Arguments giving primacy to the value of Alexia Harriton's life, which are additional to and independent of the arguments based on the forensic impossibility of proving and apprehending the nature of the damage claimed, highlight the lack of certainty about the class of persons to whom the proposed duty is owed. Is it only owed to persons whose disability is so severe they could be said to constitute a group for whom life is not worth living? Other categories of established negligence, in which a duty of care exists, do not discriminate between those damaged by a breach of the duty on the basis of the severity or otherwise of the damage.
A further consideration is that to recognise a cause of action at the suit of a person living a life with disabilities would occasion incompatibility with other areas of the law. Such incompatibility is pervasive but can be illustrated by two examples. Statutes advancing equality of treatment in our legal system prohibit differential treatment of the disabled, which may have as its wellspring, or be otherwise connected with, eugenic anxieties[428]. As was noted in the judgment of McHugh and Gummow JJ in Cattanach v Melchior[429], differential treatment of the worth of the lives of those with ill health or disabilities has been a mark of the societies and political regimes we least admire.
To allow a disabled person to claim his or her own existence as actionable damage, is not only inconsistent with statutes prohibiting differential treatment of the disabled, but it is also incompatible with the law's sanction of those who wrongfully take a life. No person guilty of manslaughter or murder is entitled to defend the accusation on the basis that the victim would have been better off, in any event, if he or she had never been born. All human lives are valued equally by the law when imposing sentences on those convicted of wrongfully depriving another of life.

[122]

Many examples demonstrating the principle were referred to in the Court of Appeal[432]. Whilst Mason P did not consider that the impossibility of a comparison between life with disability and non‑existence should bar the claim, he recognised the damages issues were "quite profound"[433]. It can be accepted that mere difficulty in the calculation of damages is not a bar to recognising a cause of action, especially when damages conventionally awarded in personal injuries can assist[434]. However, it is not possible on the facts of this case to apply the compensatory principle. Alexia Harriton's condition before the alleged breach of duty of care by Dr P R Stephens was that she was a foetus affected by rubella. The comparison which is called for on the agreed facts is a comparison between her life with disabilities and the state of non‑existence in which she would have been, absent the doctor's alleged carelessness in failing to advise her mother, which advice would have led her mother to obtain a lawful abortion. It is not that the comparison is difficult or problematic. It is impossible, for the reasons already explained.
To posit that the necessary comparison can be achieved by comparing Alexia Harriton's "notional life without disabilities" with her actual "life with disabilities" (the comparator used in Zeitsov v Katz[435] and suggested by the appellant in the Waller cases) depends on a legal fiction. So too does a comparison of her "life with disabilities" with the life of "someone otherwise comparable with her in all respects except for her suffering and her needs", the "fictional healthy person"[436]. In the United States, courts of the three states which have recognised recovery of special damages for a child/plaintiff's disabilities (California, New Jersey and Washington) have, on occasion, frankly acknowledged that the inherent problems arising out of the impossibility of comparing a life with disabilities with non‑existence and the related problem of assessing damages, have been put to one side for reasons of social or economic policy. For example, in Curlender[437], the only case in the United States in which general damages were awarded, the Court said[438]:

[131]

Aristotelian notions of "corrective justice"[449], requiring somebody who has harmed another without justification to indemnify that other, and "distributive justice"[450], requiring calculation of benefits and losses and burdens in society, were referred to by Lord Steyn in McFarlane v Tayside Health Board[451], for the purpose of explicating the dynamic interrelationship between differing values, which values need to be considered when faced with a novel claim in negligence. The Aristotelian backdrop to the notions of "corrective justice" and "distributive justice" was a community whose common good included laws, both reflecting the community's common values and enabling individual members to achieve reasonable objectives[452]. However, there remains a problem in Aristotle's analysis, relevant to this submission. In emphasising "corrective justice", even as added to by his consideration of "distributive justice", Aristotle left unexplored the dependence of "correction" on the prior establishment of principles. As Finnis[453] puts it, "'[c]orrection' and 'restitution' are notions parasitic on some prior determination of what is to count as a crime, a tort, a binding agreement, etc". The values of fairness, coherence, and the corporate welfare of the community or community expectations as referred to in Cattanach v Melchior[454], are not considered singly, in isolation from each other or from relevant matters, particularly the doctrines and well‑established principles determining what constitutes negligence.
Putting aside doubt as to whether a need for "corrective justice" arises when a person is affected by rubella, for which no‑one is responsible, a need for "corrective justice" alone could never be determinative of a novel claim in negligence. Moreover, to the extent that it may be a factor to be taken into account when considering a novel claim, a need for "corrective justice" is not a persuasive factor here. The claim here is to extend a boundary in respect of liability for compensation when the liability is precluded by "an array of other factors"[455].

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