Harriton (by her tutor) v Stephens; Waller

• "wrongful conception or pregnancy" claims by parents of a healthy but unplanned child;

• "wrongful birth" claims by parents of a child born with congenital disabilities;

• "wrongful life" claims by children themselves. 69 Teff, op cit pp427-8 warns that dispassionate analysis may be diverted by the very message conveyed by emotive terms such as "wrongful life" and "wrongful birth". These particular concepts suggest categorically opposite ideas, yet they overlap significantly, with policies favouring parental claims being disregarded in relation to the child's claim. The labels themselves have contributed to instinctive opposition to certain claims, because of their implicit denigration of life. They tap into justifiable revulsion against doctrines and practices hostile to the sanctity of life or that tend to undermine the family as a vital social institution. I shall endeavour to heed this warning against sloppy reasoning, not that there is anything wrong with the law paying proper regard to these and other fundamental principles. 70 A related warning is also appropriate, in my view. It is not a sufficient answer to a relevant proposition to say that it is based upon policy, morality, theology or a (particular) religious point of view. To pick up on the examples given in the previous paragraph, respect for life and recognition of the family (however defined) as a vital social institution are principles valued by common law, statute, international law, morality and theological discourse. To swipe away a proposition with the comment that it lies in the field of morality or religion is not in itself a sufficient answer to a legal issue. Of course, there are some matters that lie outside the law's ken. 71 Because there is no controlling precedent in Australian common law for this widely-debated cause of action, and because policy issues properly demand to be assessed, I do not understand and cannot accept Ipp JA's dismissal of the appellants' claims as based "purely on policy". If necessary, I would debate his implicit suggestion that they "violate the moral code underlying our system of justice" (see passage cited by Ipp JA from Procanik v Cillo 478 A 2d 755, 772 (1984)). I must address his conclusions that the policy underlying acceptance of the claims involves "departure from recognized principle" disturbing "otherwise settled principles of law".

The main arguments denying recovery 72 The most common reasons why "wrongful life" claims have failed are because courts have held that life itself cannot be a legal injury, and because courts are unable or unwilling to measure compensation that involves comparing the harm of living with that of never having lived at all. The two propositions are clearly enunciated in the leading New York decision of Becker v Schwartz 413 NYS 2d 895, 900-1 (1978) (citations omitted): However, there are two flaws in plaintiffs' claims on behalf of the… infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. … There is no precedent for recognition at the Appellate Division of "the fundamental right of a child to be born as a whole, functional human being"….. … Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined? There is also a second flaw. The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. … Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant's parents in a non-negligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant's negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant's parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Sim ply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. … Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant's damages is best reserved for legislative, rather than judicial, attention. … Accordingly, plaintiffs' complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action. 73 In this passage, the two reasons are presented as value-free propositions involving the application of neutral principles taken from well-established case law. Many decisions denying recovery speak in similar terms, although policy factors are often added or peep out from under language suggesting strict legalism. McKay is a good example of this. 74 A third reason, essentially conclusory, is that the defendant has in no way caused the child's disabilities (see eg McKay at 1181, Lininger v Eisenbaum 764 P 2d 1202, 1212 (1988), passages quoted by Ipp JA). I shall attempt to demonstrate why this view cannot be accepted in areas where the march of medical science has made prevention easy at the hands of professionals who hold themselves out as competent to diagnose, prevent or treat particular conditions.

Cattanach v Melchoir 75 Because Cattanach v Melchior throws considerable light upon the issues, and the framework in which they ought to be addressed by an Australian court, I turn first to that case. 76 The High Court held that damages representing the reasonable costs of maintaining and raising a child were recoverable by the parents of a healthy child born in consequence of negligent advice by a doctor as to the outcome of a sterilisation operation. 77 For present purposes, it is useful to go first to the dissenting judgments. 78 Gleeson CJ noted that the law relevantly required proof that the medical practitioners owed the parents a duty of care to avoid causing damages of the kind actually suffered ([21]-[24], [30]). In the case at hand, an integral part of the actionable damage had to be the parent-child relationship arising out of the medical negligence ([25]-[27]). 79 His Honour characterised the claim as one for economic loss, a field in which policy reasons dictate caution ([28]-[29]). (See also Callinan J at [302]. Contrast McHugh and Gummow JJ at [66], Kirby J at [148], Hayne J at [193], [218].) 80 A reason for caution as regards economic loss claims is concern based upon the potential indeterminacy of the financial consequences of the negligent act or omission ([32]). Another, and related, reason is the lack of precision in the concept of economic loss, as distinct from injury to person or property ([33]). Proceeding from these considerations, the Chief Justice highlighted the impossibility of listing a calculus of (monetary) benefits and burdens stemming from the creation of a parent-child relationship. This was in the context of the birth of a healthy child. 81 Among the problematic offsets that would have to go into the scales against a claim to recover the dollars and cents of rearing a healthy child to adulthood (at least), the Chief Justice instanced the financial benefits parents might hope to obtain from being supported by their children ([34]). He also referred to the indeterminate nature of the financial consequences, in the following terms ([38]): The indeterminate nature of the financial consequences, beneficial and detrimental, of the parent-child relationship has already been noted. In deciding whether, in the contemplation of the law, the creation of that relationship is actionable damage, it is material to note that it is unlikely that the parties to the relationship, or the community, would regard it as being primarily financial in nature. It is a human relationship, regarded by domestic law and by international standards as fundamental to society. To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible. 82 By contrast, the present appellants point to no relationship beyond that with the medical practitioners who attended their parents before birth. The appellants' claims are also undoubtedly based upon personal injury, not economic loss. 83 Gleeson CJ cited McKay with approval (at [35], [38]). His Honour saw that case as establishing that the common law does not allow a person to treat his or her own birth as actionable damage ([35]). McKay was also seen as demonstrating that one of the grounds upon which "wrongful life" claims by children have been rejected is the impossibility of making a rational or fair assessment of damages ([38]). I shall return to these observations. 84 Hayne J observed that neither duty of care nor liability for the immediate financial consequences to the mother of pregnancy and childbirth were in issue ([189]-[192]). Unlike the Chief Justice, Hayne J was not prepared to label the wife's claim as one for economic loss ([193], [218]). He held that the relevant wrong was the negligent failure to give proper advice ([193]). 85 Hayne J considered various arguments, none of which he thought determinative ([194]-[210]). These were (a) the "blessing" argument, (b) the "set off" argument, (c) the "impossible prediction" argument, (d) the "damage to the child" argument and (e) the "motives and damages" argument. Arguments (b) and (c) tracked matters addressed by Gleeson CJ, but (in contrast to the Chief Justice) Hayne J did not view them as determinative. Hayne J thought that prediction about what the future would hold for parent and child would be hard, but not impossible ([200]). 86 The crux of Hayne J's reasoning leading to the dismissal of the parents' claim was the impossibility and unreality of awarding fair compensation for the economic consequences of bringing up a child that left out of account many contingencies and intangible benefits ([247]-[262]). It supports an ultimate proposition that a valuation exercise that is incapable of concrete and rational description or fair outcome cannot ground an award of damages at common law. The detailed steps in his Honour's reasoning appear to cast no light on the issues that arise in the present case. 87 Hayne J was at pains to point out that he was not addressing a claim to recover the costs of rearing a child with special needs ([256], [263]). Indeed, his recognition of that point of distinction offers hope for the present appellants insofar as he said (at [263]):

Other considerations would arise if the child had special needs which would require the expenditure of money to meet those needs. In such a case the parent could seek to demonstrate the costs incurred in meeting those needs without in any way denying or diminishing the benefits of being parent to the child. 88 Heydon J, the third Cattanach dissentient, covers an array of issues in his comprehensive reasons. He advanced several compelling policy arguments against allowing the type of claim under consideration. I pass over them, simply because they do not, I think, claim to address the present situation. 89 The portion of Heydon J's reasons that is of relevance is that demonstrating the difficulty of assessing loss, having regard to many factors, including the non-comparability of human life and money ([349]-[362]). 90 Once again, I venture to suggest this discussion offers indirect but significant support for a basal legal principle (embraced directly in McKay) that the impossibility of rational and fair assessment of damages will lead to the denial of a novel claim. 91 As had Gleeson CJ, Heydon J adverted to an argument based upon consistency of legal principles. This led him to deny the parents' claim because of inconsistency with rejection of the child's "wrongful birth" claim. Heydon J said ([406]-[409]):

406 There is a fourth possible reason why the conclusion of the majority of the Court of Appeal is invalid. It rests on an arguable inconsistency between permitting parents the right to recovery of damages, particularly rearing costs, in relation to the birth of an unplanned child and denying unplanned children the right to recovery of damages in relation to their own birth. 407 Children may sue defendants, including professionals who have negligently caused them to suffer disabilities, whether by conduct before conception (592) or by conduct after conception but before birth (593) . But the law in England (594) , Scotland (595) , Canada (596) , most American States (597) and Australia (598) prevents children suffering disabilities from suing negligent professionals responsible for their birth but not otherwise responsible for causing any harm which led to those disabilities. 408 In McFarlane v Tayside Health Board (599) Lord Steyn referred to the following passage from Trindade and Cane, The Law of Torts in Australia (600) : "[I]t might seem somewhat inconsistent to allow a claim by the parents while that of the child, whether healthy or disabled, is rejected. Surely the parents' claim is equally repugnant to ideas of the sanctity and value of human life and rests, like that of the child, on a comparison between a situation where a human being exists and one where it does not." Lord Steyn said: "In my view this reasoning is sound. Coherence and rationality demand that the claim by the parents should also be rejected." 409 However, it is undesirable to deal with this issue in this case. Lord Steyn's point was not developed by the defendants in this Court, and the plaintiffs did not deal with it. fn (592) Kosky v The Trustees of the Sisters of Charity [1982] VR 961 fn (593) Watt v Rama [1972] VR 353; X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26 fn (594) McKay v Essex Area Health Authority [1982] QB 1166. fn (595) P's Curator Bonis v Criminal Injuries Compensation Board 1997 SLT 1180 at 1199 per Lord Osborne. fn (596) Arndt v Smith [1994] 8 WWR 568 at 573-575 [17]-[28] (BCSC); Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743 at 748 (Ont Ct (General Division)); Jones (Guardian ad litem of) v Rostvig (1999) 44 CCLT (2d) 313 (BCSC); Lacroix (Litigation Guardian of) v Dominique (2001) 202 DLR (4th) 121 (Man CA). fn (597) See the analysis of the authorities made by Studdert J in Edwards v Blomeley [2002] NSWSC 460 at [33]-[43]. fn (598) eg Bannerman v Mills (1991) Aust Torts Rep ¶81-079; Edwards v Blomeley [2002] NSWSC 460; Harriton v Stephens [2002] NSWSC 461; Walter v James [2002] NSWSC 462. fn (599) McFarlane v Tayside Health Board [2000] 2 AC 59 at 83. fn (600) 3rd ed (1999) at 434.

92 As with Gleeson CJ's acceptance of the correctness of McKay, this passage supports the respondents generally. It also supports them specifically in its apparent endorsement of the decisions of Studdert J presently under appeal. 93 Of course, Heydon J does not suggest that the present issue was argued in Cattanach. Furthermore, the very fact that the majority of the High Court disagreed with the conclusions of the minority means that the inconsistency argument is capable of being turned against the present respondents. I shall later seek to demonstrate why it is incoherent to allow the parents' claim (a fortiori in relation to a healthy child) but to reject the child's direct "wrongful life" claim. Each is based upon losses stemming from the creation of life (by God or nature) in circumstances where medical negligence contributed to this outcome with all of its consequences. 94 Each of the justices in the majority emphasised that the Cattanach appellants were liable under ordinary negligence principles for the foreseeable consequences of the doctor's negligence. The doctor's duty of care was not in dispute, nor was his liability for some heads of damages, including the costs of and compensation for the pain and suffering associated with the pregnancy and birth (McHugh and Gummow JJ at [51], [66], Kirby J at [179], Callinan J at [281], [294]). 95 I have already indicated that, of the majority justices, McHugh, Gummow and Kirby JJ thought, like Hayne J, that the claim should not be characterised as one for pure economic loss. 96 From this and other starting points, the majority held that it was for the negligent defendants to point to some legitimate basis recognised in the law for providing an immunity from a head of damages for personal injury well recognised at law (per McHugh and Gummow JJ at [57]-[59], per Kirby J at [177]-[179], per Callinan J at [295]). 97 The legal consistency argument was invoked by three of the majority justices when they pointed out the anomaly of allowing recovery for some heads of damages stemming from the negligence, but not the full scope of reasonably foreseeable loss (per McHugh and Gummow JJ at [91]), Kirby J at [161]-[162] (describing the attempt to limit damages as "arbitrary and unjust"). Cf Callinan J at [300], [302], emphasising that no issue about the other heads of damages had been raised). 98 Kirby J rejected the contention that compensation for the costs of upbringing were too difficult to calculate and should therefore not be attempted. His Honour said (at [144], omitting footnotes):

None of these arguments bears close analysis. The calculation of the value of countervailing considerations such as joy and love may indeed be difficult. On the other hand, for a very long time judges and juries have been obliged to put money values on equally nebulous items such as pain and suffering and loss of reputation. Calculation of the cost of rearing a child is, by comparison, relatively straightforward. Such calculations are regularly performed for insurance and other purposes. The mechanics of calculation may be solved although the question of principle remains. 99 Callinan J also dismissed the argument that the damages claimed required the Court to assess what was in reality unassessable. He said (at [297], omitting footnotes):

Here, in truth the damages can be assessed with a reasonably high degree of precision unlike damages for pain and suffering or damages for defamation which this Court has held should be assessed with an eye to the damages conventionally awarded in cases of personal injuries. Nor is it novel for a court to look solely to, and give compensation for financial consequences, and to ignore emotional ones. Lord Campbell's Act enacted in various but generally consistent forms in the States requires no less of judges than this. No one would seriously suggest that an offset (assuming it were legally permissible) should be made against the value of the support lost by a surviving spouse on the death of a good provider who was also incidentally a tyrannical, unpleasant and generally disagreeable companion whose company the survivor would thereafter be spared. 100 In a different context, Kirby J was equally dismissive of the idea that a clear entitlement to damages should be lost because of a remote, non-correlative offset. His Honour said (at [175]):

It might be appropriate to deduct from the costs of child-rearing any proved economic benefits received, or likely to be received, by the parents as a result of the birth of the child. However, the emotional and other benefits and burdens resulting from such a birth cannot be assessed comprehensively at the beginning of life. They are different in quality from the costs incurred in child-raising. They have nothing to do with the legal wrong for whose foreseeable consequences the tortfeasor must restore the parents. Legal principle requires that such joys and any like benefits of the unexpected birth be ignored in calculating the recoverable damages. 101 I have touched on numerous themes drawn from the judgments in Cattanach. It is not suggested that the decision offers direct guidance in the present case. Nevertheless, I would draw the following points of guidance. 102 First, the instant case should be seen as one that involves a claim for damages for personal injury. Even the parents' claim in Cattanach was not viewed as one based on pure economic loss by the majority of the justices. The concerns about indeterminacy and remoteness that particularly troubled those who viewed the Melchiors' claim as one for economic loss have no application to the present appeals (see also Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 at [155] (Kirby J). 103 Secondly, the common law of Australia is averse to accepting that even a novel claim for damages for personal injury will carry less than the full range of damages normally allowed. This does not foreclose the solution of awarding damages for care and treatment but withholding general damages (cf Turpin v Sortini, 643 P 2d 954 (1982)) but it is the reason why I would not restrict the appellants' claim so that it excluded general damages. See also Walker at 739-40. (Damages for economic loss would not be excluded in principle, but will almost certainly fail for want of proof (Luntz, Assessment of Damages for Personal Injury 4th ed, 2002 at [5.3.4].) 104 Thirdly, and related to the second proposition, a firm onus rests upon those who would deny the availability of a recognised head of damages (a fortiori a recognised cause of action) because of damages assessment difficulties stemming from speculative or suppositional offsets and deductions. 105 Fourthly, the invocation of McKay by Gleeson CJ and Heydon J in support of arguments based upon legal consistency left the majority justices unmoved. This suggests at least the possibility that McKay may not represent the law in Australia, otherwise there would be that structural inconsistency of principle abhorred by the law that concerned the minority justices. 106 Fifthly, nothing in Cattanach supports the view that tort liability does not operate as a system of corrective justice. Professor Atiyah's views (cited by Ipp JA) do not represent the way that Australian tort law is viewed in theory and (to a limited degree) operates in practice. There is express affirmation of this in the Cattanach judgments of Kirby J (at [177]), Hayne J (at [213]-[214]) and Callinan J (at [301]). See also Perre v Apand Pty Ltd (1999) 198 CLR 180 at 216 [91], 220 [103], 228 [123], 236 [151] (McHugh J), Woolcock at [106] (McHugh J).

Duty of care, foreseeability and causation: general 107 I recognise the need to grapple with the main arguments that have been raised denying recovery. But I start by considering whether the appellants' claims are consistent with negligence principles at the basic levels of duty of care, foreseeability of damage and causation. 108 At the most basic level, it is clear that the appellants are persons whom the medical practitioners would have known as likely to come into being and as likely to suffer and have special needs of care if certain steps were not taken. Those steps were so well-recognised that one can label as negligent the assumed doctors' failure to take them. 109 The appellants' disabilities are genetic in their origin, but that in itself does not preclude adverse holdings as to duty of care and causation against the doctors. This, in general terms, is because the disabilities were easily detectible and easily preventible by the exercise of due care by the treating professionals. 110 Doctors 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. As medical science advances, certain conditions and illnesses become seen as so preventible that responsibility for failure to detect and/or treat them may properly be seen as lying at the feet of medical professionals who undertake care of the patient (usually for reward). In the realm of genetic diseases, we are no longer content to view as fate abnormalities preventable by widely-used screening techniques. 111 Those who would deny the present cause of action usually speak of the doctor's duty of care to a patient as a duty to avoid injury (see eg McKay at 1178 per Stephenson LJ). This was the content of the duty of care found by Studdert J. This characterization is often used as the springboard for the conclusory propositions (see below) that birth is not an injury. The starting point mistakes the scope of the duty of care and skews later analysis. The scope of the doctor's duty to a patient is not necessarily limited to an obligation not to cause harm or injury. For example, in the case of a psychiatric patient it can extend to a duty to exercise reasonable care to prevent the patient from self-harm (Jones, Medical Negligence, Sweet & Maxwell, 2003 pp75, 355). Treatment and advice generally may relate to palliative care or the avoidance or retardation of a medical condition. A surgeon who negligently fails to perform a procedure to relieve a condition will be liable with respect to the reasonably preventable consequences of the ongoing medical problem. 112 A doctor who treats a woman who is pregnant or seeking to become pregnant owes her an undoubted duty of care. The doctor's responsibility extends to the care of the foetus, a duty of care enforceable by the child if he or she is born alive (Watt v Rama [1972] VR 353, X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26, Burton v Islington Health Authority [1993] QB 204). Subject to the requirement of reasonable foreseeability, the latter duty extends to render the medical practitioner liable in negligence for injuries or disabilities suffered by a person in consequence of acts or omissions preceding that person's conception. In X and Y, a paediatrician who failed to diagnose syphilis in a woman during a previous pregnancy was held liable to a child later conceived to whom the syphilis was transmitted. 113 Before the child is born, the doctor's duty to the child is usually discharged by advice to and treatment of the mother. (Exceptional cases involving a possible conflict of interests as between mother and child or the situation that would be presented if the mother were incapable of consenting to treatment may be placed to one side.) 114 How a doctor discharges concurrent duties towards the mother and the child that is yet to be conceived or born depends on various matters, including the history provided by the mother, the information obtained by the doctor from other sources and the usual standards of medical practice. In the present appeals negligence is assumed in the separate questions stated for decision. 115 Ipp JA considers the interests of five categories of plaintiffs, including the appellants' category. I respectfully agree that this approach is helpful, but I think that my colleague sees a non-existent antipathy between the mother's interest that may justify abortion and the child's interest in the present case. I agree that the law does not recognize any interest in the foetus in whether or not the pregnancy is terminated. But that is not the present issue. The perceived dichotomy of interests between mother and child is in fact a false one. The putatively negligent act of the doctors included failing to give the mothers advice with which they would have arranged to terminate their pregnancies. This, ex hypothesi, would have been in their best interest as well as the interests of Alexia and Keeden as advanced by them in the proceedings. It is agreed that Alexia's mother would have arranged to terminate her pregnancy. I assume that Keeden's mother would have considered doing the same if the respondents' negligence had been picked up early enough. It is agreed (or assumed) that it was negligent for the mothers not to have been given this opportunity. Since, however, an element of the appellants' claim is that they were born into a life of suffering, their interest is entirely congruent with that of their mothers in the matter at hand. 116 Subject to the significant legal complications that lie at the heart of these appeals, there is no reason in principle why the medical practitioners' negligence in the advice and treatment they gave the mothers cannot sound in damages being awarded to the appellants. The appellants were born alive and their disabilities were in one sense caused by the negligence of the respective doctors, who omitted to give advice and treatment to the mothers that would have prevented the suffering presently endured by the appellants. The case law referred to above shows that it is not essential that a plaintiff must be in existence as a legal personality at the time of the injury giving rise to the damage suffered. Product liability law takes a similar position. 117 The complaint raised by Alexia and Keeden is that they are severely afflicted and disabled. To say that the assumed negligence of the doctors preceded conception (in Keeden's case) or birth (in Alexia's case) provides no answer based upon the legal personality of the appellants, foreseeability or causation. 118 In McKay, Stephenson LJ simply walked past the duty and causation issues by stating (at 1178) that: … this child has not been injured by either defendant, but by the rubella which has infected the mother without fault on anybody's part. Her right not to be injured before birth by the carelessness of others has not been infringed by either defendant, any more than it would have been if she had been disabled by disease after birth. Neither defendant has broken any duty to take reasonable care not to injure her. The only right on which she can rely as having been infringed is a right not to be born deformed or disabled, which means, for a child deformed or disabled before birth by nature or disease, a right to be aborted or killed; or, if that last plain word is thought dangerously emotive, deprived of the opportunity to live after being delivered from the body of her mother. The only duty which either defendant can owe to the unborn child infected with disabling rubella is a duty to abort or kill her or deprive her of that opportunity.

See also at 1179B. See also Ackner LJ at 1188. 119 Having thus defined the issue, his Lordship posed the question: "how can there be a duty to take away life? How indeed can it be lawful?" (at 1179). This drew him into a discussion about the lawfulness of abortion and the question whether "the foetus has a legal right to die" (at 1180). Sanctity of life principles were cited, leading to the conclusion that no relevant duty was owed to the child infected with rubella when a foetus. 120 Some of the American cases denying "wrongful life" claims also proceed from assertions that the defendant bore no causal responsibility for the plaintiff's condition (see eg Lininger v Eisenbaum 764 P 2d 1202, 1212 (1988), the passage set out by Ipp JA). 121 I cannot accept this reasoning. To state that a person is inflicted with a (congenital) disease is no answer to a posited duty of care or the application of normal causation principles in relation to a treating doctor. If the doctor becomes involved and has the capacity to avoid or negate the disease by the exercise of reasonable care and skill then he or she will normally be held liable for the consequences of the breach of duty of care. This is commonplace in medical negligence litigation involving disabilities stemming from preventable or curable diseases that befall plaintiffs during their lifetime. 122 This still leaves the difficult issues lying at the heart of these appeals. Stephenson LJ addressed them separately in McKay and so shall I. But it is in my view quite wrong to do so from the starting point of regarding the doctor as having no causal responsibility, or treating the plaintiff child as asserting no more than a right to be killed or aborted or not to be born. 123 To describe the doctor's negligence as mere failure to have "taken steps to prevent [the child] being born injured by another cause" (McKay at 1181 per Stephenson LJ) is artificial and dismissive. And to demonise the child's claim as asserting a right to be killed before birth, contrasting this with an anodyne characterisation of the defendants' negligent behaviour, gets the real issues off to a false start (cf Teff, op cit, p440). It sidesteps the crucial point that in each case it was the doctor's negligence that precluded any informed parental decision not to conceive or not to abort the foetus. 124 It is one of the hallmarks of a compassionate society that care and treatment is made available to the severely disabled. To suggest that the appellants are somehow impugning life itself by seeking just recompense for even the cost of care is quite irrational, indeed disturbing. 125 The respondents nevertheless contend that any duty of care is negated because non-negligent medical care would have resulted in Alexia's mother terminating the pregnancy that brought Alexia to birth. Keeden would not have been conceived had Dr P R Stephens exercised reasonable care and skill. 126 At first blush, these submissions go to causation, not duty. The respondents submit nevertheless that duty is negated because an award of damages would offend the general rule of damages in tort known as the "compensatory principle". As Ipp JA explains, this principle requires a court assessing damages to compare the position of the plaintiff as it is with how it would have been but for the defendant's tort or breach of contract. It is the size of this gap that the court endeavours to address by an appropriate monetary award. This is a principle of assessment, it is not a means of identifying "damage" where that is the gist of a cause of action. I agree with what Spigelman CJ has written on this issue. 127 According to the respondents, and Ipp JA, this basic principle cannot operate in "wrongful life" cases like the present. This is because the court is called upon to make and value an impossible comparison that "goes to the root of the whole cause of action" (McKay at 1189 per Ackner LJ). The comparison is said to be "between the value of non-existence (the doctor's alleged negligence having deprived [the appellants] of this) and the value of [their] existence in a disabled state" (ibid). (This is the second broad answer to "wrongful life" claims that is offered in the authorities.) 128 Ipp JA aptly poses the issue as one involving a comparison between "the plaintiff's physical and psychological state, brought about by the negligent conduct of the defendant, compared with the plaintiff's physical and psychological state had that conduct not occurred". This gives rise to the central issues in the appeal. Is the conceptual comparison between existence and non-existence required to be made? If so, is the comparison simply impossible, with the consequence that the posited cause of action cannot be recognised? 129 I now address the two main arguments against recovery in "wrongful life" claims. 130 When I deal with the second argument I shall endeavour to show that it rests upon the flawed foundation of the first. Close analysis reveals that the two propositions substantially overlap.

(1) "Life itself cannot be a legal injury" 131 In my view, this proposition is a question-begging conclusion. It illustrates the problems stemming from the label "wrongful life", with its spurious invocation of legal and ethical principles upholding the sanctity of life. 132 To say that "all they [the doctors] have done is not having taken steps to prevent [the child] being born injured by another cause" (McKay at 1181 per Stephenson LJ) is to state a conclusion on the ultimate issue. In one sense, the conclusion is self-evidently true. In another, it is question-begging, all the more so because it deals fallaciously with the causation issue (see above). 133 The term "wrongful life" was originally used in the United States to describe a situation vastly different from the present case, namely one where a healthy child sought damages from his father for inflicting upon him the disadvantaged status of illegitimacy (Zepada v Zepada 190 NE 2d 849 (1963)). Comparable complaints about being born into socially or economically unfavourable situations have also surfaced, only to be universally rejected (see Williams v State 223 NE 2d 343 (1966) and generally ALR Annot at s16). 134 If there is to be labelling, these cases should be dubbed "dissatisfied life" claims (Teff, op cit, p425). Their rejection is based upon understandable judicial concerns about litigation floodgates and the undesirability, if not impossibility, of compensating for social differences that are seen as part of the human condition in a way that is different from the way profound and preventible suffering is viewed. I do not pause to develop the policy reasons behind these somewhat categorical propositions. 135 There are however real points of distinction between the "dissatisfied life" class of cases and ones like the present where the plaintiff complains about profound suffering stemming from a preventible genetic disease. The type of case attracting the duty of care that I would uphold in this appeal will be limited, practically and possibly legally, by the requirement that one is dealing with children grown from a foetus that would not have been conceived and/or have been aborted had the mother received proper medical advice and care. With respect, it trivialises the appellants' claims 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 (cf McKay at 1188 per Ackner LJ). (Whether such a child could sue for the cost of remediation of a condition preventible in utero is another matter entirely. I see no difficulty in principle with such a claim.) 136 To brand the appellants' claims as complaints about life itself has additional problems. Why is it self-evidently wrong for them to raise this complaint when it is the very subject matter of what could have been their parents' "wrongful birth" claim (Cattanach)? Is it any different to the argument that the birth of a child must be deemed a "blessing" that the High Court rejected in Cattanach? 137 Does it not involve the very metaphysical, theological considerations that are said to lie outside the law's ken in other contexts? In my view, there is no conceptual difference between the critical event that generates the parents' recognised "wrongful birth" or "wrongful conception" claims and the child's putative "wrongful life" claim. For all three, the creation of life is the main trigger of the claim. If there is any relevant distinction as regards "life" being the nub of the complaint, the child's "wrongful life" claim is superior to that of the parents, because the gravamen of the claim by the severely disabled child is much more than the parent-child "relationship" as discussed by Gleeson CJ in Cattanach. 138 In Harbeson, Pearson J (who gave the reasons of the Supreme Court of Washington said (at 496) that: … the policies which persuade [courts] to recognise parents' claims of wrongful birth apply equally to recognition of claims of wrongful life. Imposition of a corresponding duty to the child will similarly foster the societal objectives of genetic counselling and prenatal testing, and will discourage malpractice.

I agree. 139 One strand of the American "wrongful life" jurisprudence is concern about children suing their parents and the policy implications of allowing this (see eg Walker at 740. See also McKay at 1181, 1188. Cf Lynch v Lynch (by her Tutor Lynch) (1991) 25 NSWLR 411, Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843, (1999) 25 Fam LR 86 at [787]-[798], Dobson v Dobson [1999] 2 SCR 753). I share these concerns, but the issue of parental immunity based upon policy considerations does not arise in the present appeals. This particular problem should be faced in its own context. It does not provide a negligent medical practitioner with an immunity. 140 Another strand in some American cases is concern that allowing "wrongful life" claims will undercut the mother's constitutional rights to control her own body in the early stages of pregnancy (Walker at 740). Almost the opposite concern formed part of the reasoning of Stephenson LJ (at 1181) and Ackner LJ (at 1188) in McKay, who suggested that abortions will be encouraged if wrongful life claims are countenanced. These abortion issues are not aspects of current legal discourse in Australia and none of the parties to the present appeals suggested that concern about abortion is a basis for denying the claim (see also Cattanach at [292] per Callinan J). 141 The American case law offers an additional pragmatic argument for denying children the right to bring "wrongful life" claims, even when severely disabled by a preventible genetic disability. It recognises the risk inherent in allowing parents with "wrongful conception" or "wrongful birth" claims to recover large sums needed to care for their child in that "experience teaches that some parents cannot be trusted" [to safeguard the verdict moneys] (Walker at 741). But American law offers the solution of imposing a fiduciary duty on the parents (ibid). Australian law has rejected this approach in the field of Griffiths v Kerkemeyer claims (see Kars v Kars (1996) 187 CLR 354) and it would take a similar approach as regards "wrongful birth" claims, I perceive. From a pragmatic perspective, funds needed for the lifelong care of a profoundly injured child are better protected in the hands of the Public Trustee, subject to continuing judicial control, than under a regime that treats the damages as the parents' own property. This appears to be the view of Professor Luntz (op cit at [11.8.8]). 142 There are further difficulties with allowing the parental claim to be the preferred vehicle for requiring the negligent doctor to make just recompense (cf McKay at 1178). One of these lies in the uncertainty as to whether the parents' claim extends beyond the child's majority (cf Cattanach at [32] per Gleeson CJ). 143 In my opinion, the proposition that birth or life is deemed incapable of being a legal injury proves, on analysis, to be an assertion (sometimes a mere slogan) that covers often unstated legal and policy issues that must be confronted openly. When they are confronted, they do not answer the prima facie case based on duty, foreseeability of injury and causation or the injured child's call for corrective justice. 144 I agree that it is unjust to allow a child to recover from a doctor for an injury that the law does not recognise. But it is simply question-begging to assert that "life is not an injury" as if that were a relevant or self-evident legal proposition. 145 One is reminded of Lord Ellenborough's categorical but flawed proposition that "in a civil court the death of a human being could not be complained of as an injury" (Baker v Bolton (1808) 1 Camp 493, 170 ER 1033. See generally Fleming, The Law of Torts 9th ed, pp729-30).

(2) Impossibility of comparing existence and non-existence 146 My analysis of the dissenting judgments in Cattanach shows the legitimacy of approaching a novel tort problem by considering whether courts can make a rational and just comparison between the plaintiff's condition affected and unaffected by the impact of the defendant's conduct. If the two divergent lines cannot be depicted then the law has no framework for attempting the "costing" exercise. Impossibility, not difficulty, is the touchstone (Cattanach at [200] per Hayne J). 147 This basal legal principle was invoked in the present context in several of the American cases and in McKay, the English decision cited with apparent approval by Gleeson CJ and Heydon J in Cattanach. On this analysis, any attempt to compare existence with non-existence is regarded as entering the realms of theology, metaphysics or pure speculation and thus, so the argument goes, beyond the ken of the law. 148 One answer suggested by the minority of United States cases that favour recovery for "wrongful life" is to restrict the plaintiff's damages to medical and care expenses, to the exclusion of general damages (Turpin v Sortini 643 P 2d 954 (1982, Supreme Court of California), Harbeson). However, some authorities regard it as illogical and contrary to principle to award special but not general damages (see eg Walker). Of course, if one holds to this logic, it is not self-evident whether the outcome is to accept or deny the claim in toto. Cattanach suggests the former. 149 This second argument presents as a neat, logical proposition in which the absurdity of the outcome appears to answer the question posed. However, the issue cannot be reduced to a neat mathematical conundrum. The late Professor John Fleming was, in my view, entitled to refer sceptically to "the supposedly value-free ground that it is legally and logically impossible to assess damages on a comparison between non-existence and life even in a flawed condition" (op cit, p184). 150 When a living person is injured in an accident, the costs of reasonable medical treatment and care with respect to his or her injuries are regarded as an automatic entitlement. No one seeks to compare the injured plaintiff with some hypothetical uninjured plaintiff. Nor is it relevant to consider the likelihood of some later accident befalling the hapless plaintiff. His or her pre-accident condition may affect how much of the cost of care it is reasonable to lay at the door of the tortfeasor, but it is the defendant's onus to adduce the evidentiary basis for any reduction in damages (Watts v Rake (1960) 108 CLR 158). Likewise, it is the defendant that bears an evidential onus in relation to proof of collateral benefits and offsets (see Luntz, op cit at [1.9.17] and see further below). 151 The putative torts engaged in these appeals are unusual in that the plaintiff must be born alive to sue, yet the negligent act or omission preceded birth or even conception. As indicated above, this presents special issues in relation to foreseeability and causation. But those issues are not trumped by any argument that seeks to build upon the temporal gap between the negligent act and the birth of the plaintiff. Attempts to exploit some logical conundrum based on these factors were rebuffed in Watt v Rama and the cases that followed it. 152 In my view, to contend that the appellants cannot prove any loss because they cannot demonstrate the monetary value of non-existence offends common sense and principle. 153 Those who state the impossibility of comparing existence and non-existence, and use this to deny recovery of the cost of care, start from the proposition that the nub of the plaintiff's complaint is that he or she was born. Ipp JA has set out the key passages in McKay. For present purposes it is sufficient to repeat portion of what Stephenson LJ said (at 1181): The only way in which a child injured in the womb can be compensated in damages is by measuring what it has lost, which is the difference between the value of its life as a whole and healthy normal child and the value of its life as an injured child. But to make those who have not injured the child pay for that difference is to treat them as if they have injured the child, when all they have done is not having taken steps to prevent its being born injured by another cause. The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child? Even if a court were competent to decide between the conflicting views of theologians and philosophers and to assume an "after life" or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the injured child's life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained? 154 This shows that the second argument really stands on the wobbly shoulders of the first. I have already pointed to the flawed and question-begging analysis that really lies behind the first proposition. 155 In my opinion, it is quite unrealistic to characterise the nub of the appellants' complaint in this way. Assuming the appellants could enunciate their plaint, it would be directed to their present and future suffering and the needs it creates. Like Job, they might curse the day they were born or conceived (Job 3:3), but that would really be a poetic exclamation about their present plight. 156 In fact, the appellants are so profoundly disabled that they are unlikely to think in this way. Their perception of need and their carers' perception of need is in the here and now. Why should a just damages assessment start from a different perspective? 157 When judges have endeavoured to explain the impossibility of the damages assessment exercise they have characterised the nature (and offset value) of non-existence as a task for philosophers or theologians. Yet, on one view, it is no different from assessing damages for shortening of life expectancy in the case of an insensate victim (Sharman v Evans (1977) 138 CLR 563 at 584). Life-sustaining treatment may be withheld, with judicial approval, for severely defective newborn-infants and the terminally ill (Re B (a minor) (wardship: medical treatment) [1981] 1 WLR 1421 at 1424, Re J (a minor) (wardship: medical treatment) [1991] Fam 33). This necessarily involves the law in weighing up the unknown uncertainty of death or non-existence against the known reality of severe, irremediable suffering. In McKay itself, the sanctity of human life and perceived evil of abortion were invoked in support of the argument that to uphold "wrongful life" claims would deprive unborn foetuses of rights to which the law should pay regard. It seems to me that this was an attempt to place legal value on the very "non-existence" that their Lordships elsewhere said was beyond measurement when they presented the "impossibility of calculation" conundrum. 158 There are at least two fundamental objections to the reasoning that denies recovery of the cost of care because of the impossibility of computing the offset value of non-existence. 159 First, it offends the basic principle that a proved wrongdoer bears the evidential onus of establishing the existence and value of offsets and collateral advantages said to stem from the wrong and to reduce its otherwise compensable impact. Luntz, op cit at [1.9.17] cites several examples drawn from various fields. Thus, if a widow establishes her loss of support as a result of the tortious death of her husband, the onus is on the defendant to show that she is likely to receive equivalent support elsewhere (Hollebone v Greenwood (1968) 71 SR(NSW) 424 at 429). This may be a difficult and distasteful task for the defendant because of the range of speculative contingencies. Like the issue of non-existence in the present case, it "involves the consideration of many imponderable matters" (Goodburn v Thomas Cotton Ltd [1968] 1 QB 845 at 854 per Davies LJ, cited in Hollebone at 428). 160 Another example offered by Professor Luntz is the proposition that if an injured employee has received payments from an employer during a period of incapacity, the defendant must show their true nature before they can be set off against damages for loss of earning capacity (Volpato v Zachory [1971] SASR 166). 161 Second, in equating non-existence with the "after life" or death, judges are contradicting the very principle upon which a general duty of care towards plaintiffs such as the appellants is perceived in the law. The judicial equation of pre-birth non-existence with the state of death arguably offends the very principle of judicial agnosticism upon which the conundrum is based. But any concern lies at a deeper level than this distinction, which some will see as a mere debating point, but which is significant when one considers the conceptual basis of the doctor's duty of care towards a child in utero or in vitro. The general duty of care exists in favour of a person who is born alive even though the medical practitioner's negligent care preceded birth or even conception. By the application of general causation principles, the suffering of the living can be attributed to the neglect that occurred before life (as a person endued with legal rights) even existed. In this context, to accuse the appellants of seeking to avoid allowing a just offset for the "value" of non-existence that would have been the plaintiff's lot had negligence not intervened is to contradict the assumption upon which the recognised duty of care generally exists. In so doing, the framework of consistent principle is snapped. 162 In Cattanach, the parents recovered damages for the rearing of a healthy but unplanned child. In allowing such recovery, the High Court rejected the doctor's attempt to offset the tangible and intangible benefits flowing from the birth of a child. The majority justices were unimpressed with the "blessing" argument that sought to destroy the putative cause of action by positing an incalculable offset. Passages from the reasons of Kirby J (at [144]) and Callinan J at [297]) have already been set out. Hayne J also rejected this argument and was at pains to distinguish the possible outcome of a parental claim concerning a disabled child. Given these indications, why should courts be markedly more sympathetic to such claims than to those of the children themselves? (cf Teff, op cit at p439).

Concluding remarks 163 I agree with Ipp JA that Alexia's trust-contract claim fails. 164 Ipp JA suggests that acceptance of the appellants' claims involves the common law going beyond the "keep out" signs erected by Parliaments throughout the country in their recent response to the pressures on insurance funds said to stem from the march of tort law. This, with respect, is extra-legal analysis. I do not deny that legislation may exercise a gravitational pull upon the development of legal principle in particular fields (see generally Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 at 230 [170]). But I know of no legal principle that directs the common law to pause or to go into reverse simply because of an accumulation of miscellaneous statutory overrides. Parliaments have frequently overridden or modified fundamental legal doctrines such as legal client privilege, self-incrimination privilege and natural justice. But the common law has stood resolute to its fundamental principles except when clearly expressed legislation indicates that they must be abandoned in particular contexts. 165 In any event, Parliament in this State has deliberately stepped back from the present issue. Part 11 of the Civil Liability Act 2002 (ss70-71) effectively reversed Cattanach, but in so doing expressly refrained from precluding "any claim for damages by a child in civil proceedings for personal injury … sustained by the child pre-natally or during birth" (s70(2)). Even the capping of parental claims "does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arises by reason of the disability" (s71(2)). 166 I acknowledge that this is an area where the Australian common law must decide what to do in a novel situation, but I see no pattern or guidance in the spate of statutory modifications operating in areas other than the one presented for determination in these appeals. I have anxiously considered the admittedly controversial ethical issues involved in the present claims and Spigelman CJ's sensitive analysis of them. It is because of the essential consistency that I see between the parents' admitted cause of action and the child's putative cause of action that I have respectfully reached a different conclusion on the matter. 167 New categories of wrong may generate novel remedial responses. The maxim that the law will not permit a wrong to go without a remedy is not a licence to write a blank cheque, but it reflects the way that the law has often responded when faced with the need to decide whether to accept or reject a novel claim.

Disposition 168 I would therefore uphold the appeal and answer the separate questions:

The categories available in personal injuries cases. 169 It would be wrong to read too much into the second answer. This is a dissenting judgment and very little time was spent at the hearing considering the damages issues on the assumption that the cause of action exists. They remain quite profound. Should the cost of care include the full cost of care of a "healthy" child (cf Cattanach)? On what theory does the child recover for care (particularly past care) if the parents have already paid such costs under a duty to do so, especially if the parents have or had a viable claim in their own right (cf Luntz, op cit at [4.5.2], Willcock v Andrews [1965] WAR 129, Gillespie v Steer (1973) 6 SASR 200)? How are competing claims between the parents and the child to be addressed in Keeden's case? Any claim for economic loss has evidentiary difficulties to which I have already adverted. 170 IPP JA:

The questions in the three appeals 171 These reasons relate to three appeals. Although the facts in each differ, the issues raised for determination by this Court are substantially identical. For that reason, with the consent of all, the appeals were heard together. 172 In the first appeal where Keeden Waller is the appellant, the first respondent is Dr C James, an obstetrician and gynaecologist, and the second respondent is Sydney IVF Pty Limited. In the second appeal where Keeden is the appellant, the respondent is Brian Hoolahan, a specialist gynaecologist and obstetrician. In the appeal where Alexia Harriton is the appellant, the respondent is Dr P R Stephens, a medical practitioner in general practice. 173 The appeals involve actions that have been described as claims for "wrongful life". This phrase is a commonly used shorthand means of identifying the nature of the claims in question. In using this description I do not in any way intend to pass some kind of moral or other judgment on the claims. 174 Each of the appeals concerns a claim by a person (the appellant, in each case) who was born disabled to a catastrophic degree. The disabilities, in each case, were caused by circumstances that occurred prior to birth and, according to the present state of medical science, could not have been prevented by any human agency. 175 The particular circumstances giving rise to the risk of the appellants being born disabled were capable of being discovered prior to their birth. The parents of the appellants relied on the respondents in each case to detect and advise them of the existence of those circumstances. The respondents failed to do so. 176 The circumstances in each case differ, and I will describe them in some detail, but it is sufficient at this stage to say that, had the respondents done what the parents of the appellants relied on them to do, the mothers or parents of the appellants would have taken steps to prevent the appellants' births. 177 The appellants claim damages, being the harm they suffered by being born in their disabled condition. They do not, and could not, assert that any of the respondents brought about their disabled condition. They each assert, rather, that had the respective respondents properly diagnosed the particular circumstances that resulted in each being born disabled, the suffering that each has had to and will endure, and the needs and expenses that each has had to and will incur, would not have materialised. That is because, as I have stated, the mothers or parents of the appellants would have taken steps to ensure that they would not have been born. 178 On 25 February 2002 Studdert J, the trial judge, on the application of the respondents in each case, made consent orders pursuant to Pt 31 r 2 of the Supreme Court Rules to the effect that there be a separate determination of the following questions: "1. If the [defendants in each case] failed to exercise reasonable care in their management of the [parents of Keeden and Alexia, respectively], and but for that failure [Keeden and Alexia] would not have been born, [do each of Keeden and Alexia] have a cause of action against … the [respective] defendants; and 2. If so, what categories of damages are available?" 179 Thus, the appeals relate only to the claims of Keeden and Alexia. Keeden's parents have brought proceedings in their own right for the damages they have personally sustained by reason of Keeden having been born in a disabled condition. However, by arrangement between the parties, their claims stand in abeyance pending the resolution of Keeden's claim. Alexia's parents have not brought proceedings in their own right as the Limitation Act 1969 bars any claims that may otherwise have been available to them. 180 Two further preliminary observations need to be made. Firstly, for the purposes of these particular proceedings, the respondents in each case made a number of concessions. The facts set out below are based on those concessions. Secondly, in oral argument, Mr Bates, for Keeden, adopted the oral submissions of Mr Walker SC who, together with Mr Segal, appeared for Alexia. Therefore, I shall - when dealing with the appellants' oral submissions - refer mainly to those of Mr Walker.

The facts relating to Keeden's claim 181 Keeden was born on 10 August 2000 after a process of in vitro fertilisation. 182 Keeden's father, Mr Waller, had a genetic deficiency known as anti-thrombin 3 deficiency ("AT3 deficiency"). This is a condition that results in a propensity for blood to clot. At all material times, the respondents in Keeden's appeals should have known that this condition was genetically transmittable and could give rise to cerebral thrombosis in children of a father suffering from this condition. 183 The respondents in Keeden's appeals ought to have but did not investigate Mr Waller's AT3 deficiency and did not advise Mr and Mrs Waller about its potential consequences. 184 Keeden was born with a genetic AT3 deficiency. This is a permanent disability in itself. 185 Within days of Keeden's birth, he was diagnosed to be suffering from cerebral thrombosis. As a result of the thrombosis, Keeden suffers from permanent brain damage, cerebral palsy and uncontrolled seizures. 186 Had Mr and Mrs Waller been advised by the respondents that Mr Waller's AT3 deficiency was genetic and could be passed on to any child of his, they would have: (a) deferred egg harvest and/or embryo transfer until methods to ensure transfer of only AT3 deficiency free embryos were identified; or

(b) used donor sperm; or (c) sought and obtained a lawful termination of Mrs Waller's pregnancy. 187 Keeden's injuries and disabilities have produced needs and will result in a level of care greater than would be expected of a child who did not have his disabilities. Keeden's ongoing needs and disabilities will continue past the age of 18. 188 Keeden claims general damages, economic loss and damages for gratuitous care.

The facts relating to Alexia's claim 189 Alexia was born on 19 March 1981. 190 In early August 1980, Alexia's mother, Mrs Harriton, had an acute illness with a fever and rash. She also thought that she might be pregnant. On 13 August 1980, Dr Max Stephens, the father of the respondent in Alexia's appeal, attended on Mrs Harriton at her home. Mrs Harriton told Dr Max Stephens that she was concerned that she might be pregnant and that her illness might be rubella. She also said to him that she was aware that rubella in early pregnancy could produce congenital abnormalities in an unborn child. She asked him whether she was pregnant and whether her illness was rubella. Dr Max Stephens advised Mrs Harriton that she should have a blood test done to determine whether she was pregnant and whether she was suffering from rubella. 191 On 21 August 1980, Macquarie Pathology Services reported in the following terms: "Rubella - 30

If no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities.

Preg test - positive." 192 On 22 August 1980, Mrs Harriton attended on Dr Paul Richard Stephens ("Dr P R Stephens") the respondent in Alexia's appeal. Mrs Harriton informed him that she had had a fever and a rash and that she was concerned that the illness was rubella. 193 Dr P R Stephens was in possession of the Macquarie Pathology Services Report when Mrs Harriton consulted him. He informed Mrs Harriton that she was pregnant and assured her that her illness was not rubella. 194 On the basis of the Macquarie Pathology Services report, Dr P R Stephens ought not to have assured Mrs Harriton that she did not have rubella. 195 A prudent general practitioner would not have relied on the blood test on which Macquarie Pathology Services had reported, but rather would have arranged an lgM blood test. 196 If an lgM blood test had been performed in August 1980, it would have been positive for rubella antibodies and rubella would have been diagnosed. 197 It would have been prudent medical practice to advise a pregnant woman who had rubella in the first trimester of her pregnancy (as was the case with Mrs Harriton) that there was a very high risk that the unborn child would suffer grievous injury as a result of the rubella infection. 198 In these circumstances, prudent medical practice would have been to counsel a woman that the only way to prevent her child from suffering these injuries throughout its life would be to terminate the pregnancy. 199 Had the rubella been diagnosed, Mrs Harriton would have exercised her lawful right to terminate the pregnancy. 200 Alexia was born with severe congenital disabilities caused by the rubella virus with which Mrs Harriton had been infected in the first trimester of her pregnancy. 201 Alexia's injuries include blindness, deafness, mental retardation, spasticity, inability to care for herself and the need for 24 hour care. 202 Alexia has already attained her age of majority; she has required and will continue to require care for the rest of her life. There is unlikely to be any improvement in her condition. 203 Alexia did not become infected in utero with rubella by reason of any neglect on the part of Dr P R Stephens. 204 Alexia claims damages for pain and suffering and loss of amenities and for health care, including gratuitous services.

The differences between the two cases 205 In oral argument, no distinction was made between the three appeals either in respect of the grounds of appeal or the issues raised by the facts (albeit that neither the facts relating to Keeden and Alexia nor the grounds of appeal were identical). The differences between the facts and the grounds of appeal should, nevertheless, be noticed, albeit that they do not affect the basal issues raised in the appeals. 206 In the case of Keeden (unlike that of Alexia), his birth could have been prevented before conception (by the respondents in Keeden's cases ensuring that an embryo without an AT3 deficiency was implanted in Mrs Waller). Mrs Waller might then have given birth to another child, but that child would not have been Keeden. 207 In the case of Alexia, Mrs Harriton asked Dr P R Stephens whether she had rubella. Mr and Mrs Waller, on the other hand, did not address any specific queries to the respondents in Keeden's case concerning an AT3 deficiency. 208 Neither Mr Bates nor Mr Walker submitted that these differences were material in any way. Mr Brereton SC, who appeared for all the respondents, also did not suggest that the differences were material.

The conclusions of the trial judge 209 Studdert J, in a thorough and careful judgment, answered the questions for separate determination in each case as follows:

2. This does not arise. 210 As regards Keeden, his Honour reached the following conclusions: "(1) Each of the defendants owed to [Keeden] a duty of care.

(2) The content of that duty owed by each defendant was a duty not to injure [Keeden].

(3) None of the three defendants was in breach of that duty so defined.

(4) None of the defendants caused injury to [Keeden]. [Keeden] was not born disabled because of any breach of duty owed to him by any of the first, second and/or third defendants.

(5) In a claim such as [Keeden] here brings, had it become relevant to consider these matters, it would be impossible to determine that 'damage' was suffered by [Keeden] by reason of being born disabled or with AT3 deficiency and it would also be impossible to assess compensatory damages.

(6) The impossibility of determining 'damage' would of itself compel the rejection of the claim, as would the impossibility of assessing compensatory damages.

(7) There are weighty considerations of public policy against the recognition of 'wrongful life' claims such as the claim brought by [Keeden]." 211 In the case of Alexia, Studdert J stated that his conclusions were as follows: "1. The duty owed by the defendant to [Alexia] was a duty not to injure her.

2. The defendant committed no breach of such duty towards [Alexia].

[Alexia] was not born disabled because of any breach of duty by the defendant towards her.

Had it become relevant to consider these matters, it would be impossible to determine that 'damage' has been suffered by [Alexia], even though born severely disabled, and it would also be impossible to assess compensatory damages.

The impossibility of determining 'damage' would, of itself, compel the rejection of the claim, as would the impossibility of assessing compensatory damages.

There are weighty considerations of public policy against the recognition of 'wrongful life' claims such as this claim brought by [Alexia].

No claim is maintainable by [Alexia] against the defendant in tort or in contract."

The grounds of appeal 212 The grounds of appeal of both Keeden and Alexia are substantially the same, although there are differences. The grounds themselves are many in number but they can conveniently be grouped in categories. 213 The grounds of appeal (in category form) are as follows: (a) The trial judge erred in failing to find that the duty of care owed by the respondents in each case to Keeden and Alexia, respectively, encompassed a duty to provide the mother of each with the necessary information to enable an informed choice to be made in regard to whether the pregnancy should be terminated.

(b) His Honour erred in failing to find that Keeden and Alexia did not suffer a recognised or "legally cognisable" injury or damage. Related to this ground is a ground relied on by Alexia, but not Keeden, namely that his Honour erred in finding that, had it become relevant, it would have been impossible to assess compensatory damages.

(c) His Honour erred in failing to find that the respondents in each case caused or materially contributed to the injuries of Keeden and Alexia and their disabilities.

(d) Alexia, but not Keeden, asserts that his Honour erred in not finding that she had a cause of action as a beneficiary of a contract between Dr P R Stephens and her mother.

The established compensatory principle 214 The appellants claim under the common law relating to actions for negligence. The merits of their claims must be determined by common law principles. Thus, the considerations as to the assessment of damages that were discussed in Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26 in the context of a statutory definition of damage do not apply. "Damage" in the context of these appeals cannot be given a meaning other than that recognised by the common law. 215 Therefore, a formidable obstacle in the way of the claims by Keeden and Alicia is the compensatory principle that is the cornerstone of tort law. The classic formulation of this principle was expressed by Lord Blackburn in Livingstone v Rawyards Coal Company (1880) 5 App Cas 25 (at 39) as follows: "[W]here any injury is to be compensated by damages, in settling the sum of money to be given for … damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation …". 216 This principle is commonly known as the "compensatory principle" (see, for example, Luntz, Assessment of Damages for Personal Injury and Death, 4th Ed, at para 1.1.4). It was described by Lord Scott in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 at 350 as "[t]he basic rule of damages". According to McGregor on Damages (17th ed), it is a basic rule of the common law of torts "from which one must always start in resolving a problem as to the measure of damages" (at 1-022) and it "has been consistently referred to or cited with approval, or restated in similar language" (at 1-022). 217 An early authoritative statement of the compensatory principle in Australia is that of Griffiths CJ in Registrar of Titles v Spencer (1909) 9 CLR 641 where the Chief Justice said (at 645): "[The plaintiff] must show that he has sustained 'loss or damage' by reason of the issue of the certificate of title, and if he establishes that position he is entitled to recover 'damages.' What damages? There is only one possible answer to the question, namely, damages commensurate with the loss he has sustained, that is to say, he is to be put in the same position, so far as money can do it, as if the wrongful act complained of had not been done." [my emphasis]

218 As is the case in England, in Australia the principle, in one or other formulation, has long been accepted as an inviolate rule of the common law. A statement of the principle, often quoted, is that in Haines v Bendall (1991) 172 CLR 60 at 63 (per Mason CJ, Dawson, Toohey and Gaudron JJ) where the following was said: "The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed …"

219 Recent restatements of the principle are to be found in Husher v Husher (1999) 197 CLR 138 (per Gleeson CJ, Gummow, Kirby and Hayne JJ at 142-143), The Nominal Defendant v Gardikiotis (1996) 186 CLR 49 (per McHugh J at 54) and Cattanach v Melchior (2003) 199 ALR 131 (per Gleeson CJ at 143). 220 It is true that in Cattanach v Melchior Kirby J referred to the compensatory principle as expressed in Livingstone v Rawyards Coal Company and said (at 159): "This principle of compensation (or restoration) is, however, of limited value as a guide to the answers that should be given to the problem now before us. Courts have repeatedly acknowledged that the calculation of damages in tort is an inexact activity 'accomplished to a large extent by the exercise of a sound imagination and the practice of the broad axe' (Watson, Laidlaw and Co Limited v Pott, Cassels and Williamson (1914) 31 RPC 104 at 118 (HL) per Lord Shaw.)"

221 In making the remark quoted by Kirby J, Lord Shaw was expanding on the proposition that in the class of cases comprising loss of life, faculty, or limb, restoration is "impossible". His Lordship said (at 118): "[T]he task of restoration under the name of compensation calls into play inference, conjecture and the like. This is necessarily accompanied by those deficiencies which attach to the conversion into money of certain elements which are very real, which go to make up the happiness and usefulness of life, but which were never so converted or measured." 222 Lord Shaw then made the remark quoted by Kirby J and proceeded to say (at 118): "In all these cases, however, the attempt which justice makes is to get back to the status quo ante in fact, or to reach imaginatively, by the process of compensation, a result in which the same principle is followed." 223 The "same principle" to which Lord Shaw was referring had earlier been stated by him (at 117-118) as follows: "In the case of damages in general, there is one principle which does underlie the assessment. It is what may be called that of restoration. The idea is to restore the person who has sustained injury and loss to the condition in which he would have been had he not so sustained it." This "same principle" was nothing more than the compensation principle as expressed in Livingstone v Rawyards Coal Company . 224 In other words, Lord Shaw in Watson Laidlaw and Co Limited v Pott, Cassels and Williamson was discussing the difficulties of assessing intangible loss brought about by personal injuries. His Lordship was not suggesting that there should be a departure in any way from the orthodox compensation principle. It is in this sense that Lord Shaw recognised that the calculation of damages in tort was an inexact activity. 225 In the circumstances, I do not understand Kirby J's remark that the well- established principle of compensation was "of limited value as a guide" to the problem in Cattanach v Melchior as being an indication that his Honour was of the view that courts had in the past departed from that principle in cases of common law tort and were free to depart from it now.

226 I would add that, for a period from the early part to about the middle of the last century, courts in England, particularly when referring to cases of damage to ships, made reference to the measure of damages as being the principle of restitutio in integrum: see for example the Valeria [1922] 2 AC 242 and the Liesbosch Dredger [1933] AC 449. This was later said to be incorrect terminology. Indeed, even in the Valeria Viscount Dunedin criticised this usage by the Court of Appeal. He said (at 248): "I agree with the Lords Justices in the Court of Appeal, but I cannot refrain from a slight criticism upon the use of the phrase 'Restitutio in integrum.' 'Restitutio in integrum' is a phrase which is properly applied when you wish to express the condition which is imposed upon a person seeking to rescind a contract. I do not think it can be properly applied to questions of tort".

This criticism was repeated in British Transport Commission v Gourley [1956] AC 185 by Earl Jowitt (at 197) and Lord Goddard (at 208). The criticism does not reflect on the compensatory principle itself, merely on the terminology used to describe it (see the discussion in McGregor op cit at 1-023). 227 In these cases the courts were applying the established compensation principle as stated in Livingstone v Rawyards Coal Company but were making the point that it is inappropriate to describe tortious damages as restitutio in integrum damages. This is because, in applying the established compensatory principle, the courts can only attempt to arrive at a fair estimate - true restitution not being possible. This approach is a reflection of the views of Lord Shaw in Watson Laidlaw (referred to by Kirby J in Cattanach v Melchior). 228 I therefore proceed on the basis that, as was said in Husher v Husher (at 142), the compensatory principle is "well settled" and "long … established", and, therefore, that it must be followed. 229 Compensation for pain, suffering and loss of amenities is not measurable in money terms. Nevertheless, damages in negligence are awarded for such non-pecuniary loss. The principle was expressed by Windeyer J in Teubner v Humble (1962) 108 CLR 491 (at 507): "[I]n so far as the possession of money can in a particular case give pleasure or provide comfort, money can properly be said to compensate for pain and suffering [and other non-pecuniary losses]." 230 Despite the problems of assessing damages for non-pecuniary loss, the common law rule is that the compensatory principle, as formulated in Livingstone v Rawyards Coal Company, Haines v Bendall and the other cases to which I have referred, is applied to such claims: Luntz, op cit at para 1.1.7. By applying that principle, courts attempt to assess what would be "fair" compensation for non-pecuniary loss, even if it is not "perfect" compensation. 231 Keeden's claims are for the same heads of damage as those claimed by Alexia, save that he also claims loss of income. Mr Bates submitted that the strongest head of damages claimed by Keeden was that in relation to his various needs (and expenses to cater for those needs), then pain and suffering, then loss of income. 232 Each one of these heads of damage, however, is faced with the obstacle of the compensatory principle. Thus, for example, the claim for expenses to cater for the needs caused by Keeden's disabilities must, according to well-settled principle, be based on a comparison between the actual financial position of Keeden compared with his financial position had the respondents not been negligent. Had the respondents not been negligent, Keeden would not have been born at all. At common law, even an award of damages for the expenses incurred and likely to be incurred would require a comparison with a non-existent state.

Compensatory damages a relative concept 233 Compensatory damages is a relative concept. In the case of non-pecuniary damage the comparison is between the plaintiff's physical and psychological state, brought about by the negligent conduct of the defendant, compared with the plaintiff's physical and psychological state had that conduct not occurred. 234 Accordingly, the application of the compensatory principle in its orthodox form defeats claims of the kind brought by Keeden and Alexia. As it is put by Luntz, op cit, at para 11.8.8:

"Conceptually such actions are not reconcilable with tort principles, since in accordance with such principles they involve a comparison between being born with a handicap and non-existence, a comparison which it is impossible to make in money terms." 235 This conflict with well-settled principle is the paramount reason for the plaintiff's failure in the leading English case of McKay v Essex Area Health Authority [1982] QB 1166. In that case Stephenson LJ said (at 1181): "The only duty of care which courts of law can recognise and enforce are duties owed to those who can be compensated for loss by those who owe the duties, in most cases, including cases of personal injury, by money damages which will as far as possible put the injured party in the condition in which he or she was before being injured. The only way in which a child injured in the womb can be compensated in damages is by measuring what it has lost, which is the difference between the value of its life as a whole and healthy normal child and the value of its life as an injured child. But to make those who have not injured the child pay for that difference is to treat them as if they have injured the child, when all they have done is not having taken steps to prevent its being born injured by another cause. The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child? Even if a court were competent to decide between the conflicting views of theologians and philosophers and to assume an "after life" or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the injured child's life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained?"

Stephenson LJ went on to say (at 1181-1182): "To measure loss of expectation of death would require a value judgment where a crucial factor lies altogether outside the range of human knowledge and could only be achieved, if at all, by resorting to the personal beliefs of the judge who has the misfortune to attempt the task. If difficulty in assessing damages is a bad reason for refusing the task, impossibility of assessing them is a good one." 236 Ackner LJ said (at 1189): "[The plaintiff] cannot say that, but for [the defendant's] negligence, she would have been born without her disabilities. What the doctor is blamed for is causing or permitting her to be born at all. Thus, the compensation must be based on a comparison between the value of non-existence (the doctor's alleged negligence having deprived her of this) and the value of her existence in a disabled state. But how can a court begin to evaluate non-existence, 'the undiscovered country from whose bourn no traveller returns?' No comparison is possible and therefore no damage can be established which a court could recognise. This goes to the root of the whole cause of action." 237 Griffiths LJ said (at 1192): "To my mind, the most compelling reason to reject this cause of action is the intolerable and insoluble problem it would create in the assessment of damage. The basis of damages for personal injury is the comparison between the state of the plaintiff before he was injured and his condition after he was injured. This is often a hard enough task in all conscience and it has an element of artificiality about it, for who can say that there is any sensible correlation between pain and money? Nevertheless, the courts have been able to produce a broad tariff that appears at the moment to be acceptable to society as doing rough justice. But the whole exercise, difficult as it is, is anchored in the first place to the condition of the plaintiff before the injury which the court can comprehend and evaluate. In a claim for wrongful life how does the court begin to make an assessment? The plaintiff does not say, 'But for your negligence I would have been born uninjured.' The plaintiff says, 'But for your negligence I would never have been born.' The court then has to compare the state of the plaintiff with non-existence, of which the court can know nothing; this I regard as an impossible task." 238 Mason P observes: "it is the defendant's onus to adduce the evidentiary basis for any reduction in damages (Watts v Rake (1960) 108 CLR 158)". That is undoubtedly so, but the appellants' damages are not to be "reduced" by identifying their pre-accident condition. Unless there is a departure from the compensatory principle (for example, by using a notional - presumably, "average" - person as a yardstick against which the appellants' disabled condition is to be measured), there is no comparator against which the appellants' damages can be calculated. In my opinion, the problem is one of calculation (and, hence, determination) of the damages alleged to have been sustained, not one involving the amount by which otherwise determined damages is, possibly, to be reduced.

Damage is the gist of the action for negligence 239 It is impermissible in law to separate "harm" from the concept of "duty of care". The proposition that actionable negligence is separate from proof of legally recoverable damage is contrary to the established principle that damage is the gist of the cause of action in negligence. 240 In J R Munday Ltd v London County Council [1916] 2 KB 331, facts giving rise to negligence were admitted, but not damage. Lord Reading CJ, in rejecting the proposition that an admission of negligence (without proof of damage) amounted to an admission of liability, said (at 334): "Negligence alone does not give a cause of action, damage alone does not give a cause of action; the two must co-exist."

241 In Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd ("the Wagon Mound") [No 1] [1961] AC 388, Simonds LC said (at 425): "But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded … It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and no other." 242 In Caparo Industries Plc v Dickman [1990] 2 AC 605 Lord Bridge said (at 627): "It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless." 243 In Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Lord Hoffmann said (at 211) that a duty of care does not exist in the abstract. It must be shown that the defendants breached "a duty in respect of the kind of loss which [the plaintiff] has suffered." See also at 216 and 217. 244 In Rees v Darlington Memorial Hospital NHS Trust it was accepted that, where a head of loss is irrecoverable at law, no duty of care arises: see Lord Steyn at 322-323, Lord Hope at 328, Lord Hutton at 337-338 and Lord Millett at 344-345. 245 In Australia, this principle is well settled. Brennan J, in Sutherland Shire Council v Heyman (1985) 157 CLR 424, said at 487 (in a passage referred to by Lord Bridge in Caparo Industries Plc v Dickman at 627): "[A] postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member. I venture to repeat what I said in John Pfeiffer Pty Limited v Canny (1981) 148 CLR 218, at 241-242: 'His duty of care is a thing written on the wind unless damage is caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide. … For the purposes of determining liability in a given case, each element can be defined only in terms of the others.' …

[T]he actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it." 246 In Cattanach v Melchior Gleeson CJ said (at 137): "In order to succeed in their claim, the respondents must show that they have jointly suffered damage (which is the gist of an action in negligence), and that the appellants owed them a duty of care to avoid causing damage of that kind." 247 Damages being the gist of an action in negligence has been recognised and applied in very many cases of the highest authority in Australia. See, for example, Bunyan v Jordan (1937) 57 CLR 1 at 16; Caltex Oil (Australia) Pty Limited v The Dredge "Willemstad" (1976) 136 CLR 529 at 569; John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 at 574; Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 at 262, 290; Sullivan v Moody (2001) 207 CLR 562 at 579-580; Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 at 432; Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 at 388. 248 Contrary to the appellants' submissions, not all harm caused by negligence is recoverable in law, and not all negligence gives rise to recoverable harm. Certain kinds of damage are not actionable. For example, harm resulting from grief or emotional distress not involving a recognised psychiatric injury is not recoverable (Tame v New South Wales; Annetts v Australian Stations Pty Ltd); nor, save for some exceptions, is financial harm, even if it is reasonably foreseeable (Perre v Apand Pty Limited (1999) 198 CLR 180); nor is harm suffered in carrying out a joint criminal enterprise (Gala v Preston (1991) 172 CLR 243); nor is harm caused by negligent prosecution by the Crown prosecution service or delays in investigation by the police (Cran v State of New South Wales [2004] NSWCA 92, cf Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335); nor is harm caused in certain circumstances by negligent conduct on the part of arbitrators (Sutcliffe v Thackrah [1974] AC 727), or university examiners (Thorne v University of London [1966] 2 QB 237), or barristers (Giannarelli v Wraith (1988) 165 CLR 543), or fire brigades (Capital and Counties Plc v Hampshire County Council [1997] QB 1004), or the coastguard (O L L Ltd v Secretary of State for Transport [1997] 3 All ER 897). 249 As Lord Nicholls said in Rees v Darlington Memorial Hospital NHS Trust (at 318): "[I]t is important to keep in mind that the law's evaluation of the damages recoverable for a legal wrong is not an automatic, mechanical exercise." 250 Certain heads of loss may be held to be irrecoverable on the grounds of policy. As Lord Steyn pointed out in Rees (at 321-322), in McFarlane v Tayside Health Board [2000] 2 AC 59 some of the Law Lords held that the plaintiff in that case failed on the grounds that the head of loss claimed was irrecoverable. In Rees, the House of Lords was unanimous that there should be no departure from McFarlane. The fact that in Cattanach v Melchior the majority, differing from the House of Lords in McFarlane, held that the head of loss in question was recoverable does not detract from the proposition that, in law, certain heads of loss may, for policy or other reasons, be held to be irrecoverable. 251 The remarks of Gleeson CJ, Hayne J and Heydon J in Cattanach v Melchior (at 137-144, 198, and 229-232) and the reasons for judgment in McKay v Essex Area Health Authority show that, in this case, the question whether the damage claimed is actionable is fundamental.

252 Of course, for damage to be actionable it must be capable of calculation. This bears directly on the significance of the compensatory principle in the present case. While the established compensatory principle governs how damages are to be measured (and does not relate directly to the determination of liability), if damages are not capable of measurement, the damage claimed will not be actionable and no duty of care will arise. 253 Accordingly, the issue whether, in the actions brought by Keeden and Alexia, a relevant duty was owed to each by the respective respondents cannot be decided without determining whether the harm each suffered, and for which each claims, gives rise to damages that are capable of measurement and recoverable in law.

The treatment of the compensatory principle and the "gist" principle in "wrongful life" cases in other countries 254 The compensatory principle is the ratio of McKay v Essex Area Health Authority and precludes wrongful life claims in England. 255 The only authority at appellate level in Canada (other than in connection with a strike out application) is Lacroix (Litigation Guardian of) v Dominique (2001) 202 DLR (4th) 121, a decision of the Court of Appeal of Manitoba. This decision follows the reasoning in McKay. 256 In the United States of America at least 23 states have rejected claims for wrongful life: Kassama v Magat 767 A 2d 348 (2001). Typical of the reasoning in these cases is that of Justice Weintraub of the New Jersey Supreme Court in Gleitman v Cosgrove 49 NJ 22 (1967) who said (at 63): "Ultimately, the infant's complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so. We must remember that the choice is not between being born with health or being born without it … Rather the choice is between a worldly existence and none at all … To recognise a right not to be born is to enter an area in which no one could find his way." According to Harvey Teff ("The Action for "Wrongful Life" in England and the United States" (1985) 34 International and Comparative Law Quarterly 423 at 429), Gleitman v Cosgrove is "perhaps the most influential American 'wrongful life' case". 257 Another articulate statement on the question is that of the majority of the Colorado Supreme Court in Lininger v Eisenbaum 764 P 2d 1202 (1988), namely (at 1212): "In the end, the question must be whether we will continue to adhere to well-established tort principles, or instead will discard those principles so as to permit a plaintiff to recover damages from a defendant who cannot fairly be said to have caused any injury to the plaintiff. … We do not question that Pierce will face substantial expenses throughout his life with respect to his blindness. We merely conclude that his life, however impaired and regardless of any attendant expenses, cannot rationally be said to be a detriment to him when measured against the alternative of his not having existed at all." 258 A small minority of cases have upheld wrongful life claims. Most of these have rejected claims for general damages but have allowed claims for special damages, a distinction that seems to me to be lacking in any principle, but has been justified on what are essentially policy grounds. The claims that have succeeded involve a departure from recognised principle, on policy grounds. 259 Typical of the reasoning of those courts in the USA that, in actions for wrongful life, have recognised claims for special (but not general) damages is Procanik v Cillo 478 A 2d 755 (1984), a decision of the Appellate Division of the Supreme Court of New Jersey. There, the majority said (at 763): "We find, however, that the infant's claim for pain and suffering and for a diminished childhood presents insurmountable problems. … We need not become preoccupied, however, with these metaphysical considerations. Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction." 260 The decision in Procanik v Cillo, like all the other cases that have followed the same line, was based purely on policy; policy that disturbed the otherwise settled principles of the law. These cases have been criticised in the USA, see, for example, Lininger v Eisenbaum where, in rejecting the reasoning in Procanik v Cillo, the majority noted that in Nelson v Krusen 678 SW 2d 918 (1984) at 924-925 it was said that recognition of a limited cause of action for special damages in wrongful life cases does not avoid the problem of the basic tort compensation rule that plaintiffs are to be put in the position that they would have been in "absent the defendant's negligence". The majority also quoted with approval the statement (at 772) of Schreiber J, dissenting in part in Procanik v Cillo, 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." 261 The following remarks of the Supreme Court of Arizona in Walker v Mart 760 P 2d 735 (1990) on this issue are also pertinent (at 740): "We believe, therefore, the limited recovery allowed by the courts recognizing the tort of wrongful life exhibits a fundamental casuistry in their reasoning. The conclusion that the child is impaired does not ineluctably imply that the child has suffered a legally cognisable injury." 262 We were referred to cases from Germany, Austria, France, Holland and Israel. Actions for wrongful life have met with varying results in these countries. The judgments in the cases in question are based on statutes and laws that differ from our common law; in any event, their reasoning appears to be reliant substantially on policy. As Studdert J observed, they are not particularly helpful. 263 Typical of the reasoning in question is Zeitzoff v Katz [1986] 40(2) PD 85, a judgment of the Supreme Court of Israel. The judgment is reviewed in Shapira, " 'Wrongful Life' Lawsuits for Faulty Genetic Counselling: The Impaired Newborn as a Plaintiff" (1997) 13 Tel Aviv University Studies 97. According to the author, two justices of the Israeli Supreme Court (apparently forming part of the majority) concluded that legal responsibility for "wrongful life" could be established without measuring non-life against impaired life and without endorsing a "right not to be born". According to the author (at 106) the justices expressed the following views: "Indeed, such a comparison is logically impossible, and a right to non-existence is inconceivable. Judges are incapable of gauging the meaning of non-life and of evaluating its worth in comparison to hampered life. Furthermore, a distinction between grave defects and less serious impairments is difficult to make and bound to leave individuals suffering from lesser yet substantial handicaps without remedy". Nevertheless, the justices found for the plaintiff child. Their reasoning, according to the author (also at 106), was as follows: "These justices view a physician's "wrongful life" liability toward a disabled infant as resting on the plaintiff's right to a life free of handicap. Accordingly, the responsibility of a negligent genetic expert is based not on the actual generation of life nor on the prevention of non-life, but, rather, on the creation of impaired life. Because a genetic counselor was professionally negligent, he or she must bear responsibility for the damage that ensued (defective life), and it is irrelevant that a non-defective life was a practical impossibility. Thus, the quantum of damage should be measured by comparing the actual impaired life of a plaintiff to a hypothetical unimpaired life, rather than by comparing defective life to non-existence. The compensation awarded for such damage is not intended to restore a plaintiff to the condition of non-life that would have existed were it not for the defendant's faulty behaviour, but, rather, to redress the plaintiff for the impairment with which he or she was born." 264 Again, the reasoning of the justices concerned appears to be based on policy, not established principle as known to our law. The policy is that where genetic defects result in the birth of a person with serious disabilities, and where professional negligence contributed to their birth, the law should respond to "the call of the living for help in bearing the burden of their affliction" (Procanik v Cillo).

Non-existence as a comparator 265 Virtually all of the judges who have not upheld wrongful life claims have focused on the impossibility of comparing a state of non existence with disabled existence, and the suffering that that state brings about. 266 In my opinion, it is indeed impossible to use non-existence as a comparator. 267 This view has been criticised on the basis that it is tainted by personal beliefs involving religion, morality and the sanctity of life. Save where I have otherwise expressly stated, I have attempted to avoid the influence of any of these factors. 268 The proposition that non-existence cannot be used as a comparator has, at times, been pejoratively described as legalistic, theoretical or technical. Those who deny the proposition frequently make reference to the long-standing rule that judges must do the best they can with the available material to assess damages, and it is argued that to say that non-existence cannot be used as a comparator offends against this rule. 269 While acknowledging the force of the "doing the best one can" rule, I am of the view that this is not a case of fashioning damages from a few strands of vague evidence. No amount of imagination and broad-axe wielding can conjure up a basis for assessment when no such basis exists or is known to human ken. 270 It is a salutary exercise to leave the field of polemics and attempt to undertake the real task of comparing non-existence with a catastrophically disabled, but live child. The evidence will establish the extreme degree of suffering of the child. Then one turns to non-existence. How does one begin to attempt to understand what that might mean? 271 It would be quite wrong to equate non-existence with a child born without disability. That is not the comparison. The judge would not be entitled to regard the comparator as some blank canvas so that on one side of the ledger there is, as it were, a nil factor. Who can say that non-existence is a nil factor? And, in any event, the philosopher (and jurist) will ask: what precisely is meant by a nil factor? This is a question to which no answer can be given. So, immediately after one begins the practical exercise of comparison with non-existence, one comes up against a totally unknown and undefinable factor. 272 Courts have sanctioned conduct that could lead to life ending. For example, in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 the English Court of Appeal accepted that, on behalf of a severely injured child, a court might sanction a course of action that would fail to avert the death of the child (that is, by sanctioning the withdrawal of life support systems). Lord Donaldson MR said (at 149) that while there was a very strong presumption in favour of a course of action that would prolong life, that presumption was not irrebuttable. Balcombe LJ emphasised that the paramount issue was: what is in the interests of the child? He observed (at 154) that to preserve life may not be in the interests of the child. See also In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 (discussed in McKay at 1188) and In re B (Termination of Contact: Paramount Consideration) [1993] 3 WLR 63. 273 But, as was observed in In re J (A Minor) (Wardship: Medical Treatment), the exercise of comparison undertaken in McKay is very different from determining whether life support systems should be removed from a severely injured child. In In re J (A Minor) (Wardship: Medical Treatment) the Court of Appeal pointed out that McKay involved a claim for damages and the decision in that case was that no monetary comparison could be made between disabled existence and non-existence (see Lord Donaldson at 146 and Balcombe LJ at 153). That was not the issue in In re J (A Minor) (Wardship: Medical Treatment). 274 The differences in the issues that arise are manifest from Airedale NHS Trust v Bland [1993] AC 789 where the House of Lords held that the test for deciding whether life support should be removed from a terminally ill patient was the best interests of the patient. Lord Goff said (at 873): "[T]he true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life …" This statement draws a clear distinction "between the bounds of lawful treatment of a living patient, and unlawful euthanasia".

Lord Goff reiterated (at 868) that: "[T]he question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care." 275 The court, in deciding a question of the kind considered in In re J (A Minor) (Wardship: Medical Treatment) and Airedale NHS Trust, has to balance the quality of life of the patient, should the treatment be prolonged, against death, should the treatment be withdrawn. In this exercise, the court does not make a comparison between a state of never having been alive and a severely disabled existence; it also does not make a monetary comparison between existence and non-existence. In my view, the distinction drawn in In re J (A Minor) (Wardship: Medical Treatment) between the issues in that category of case and the issues in the McKay category is valid. 276 In my opinion, the fact that the law recognises that there may be cases where it may sanction life support systems being turned off says nothing about whether a comparison can be made, for the purposes of assessing damages, between a disabled state and non-existence. 277 In Cattanach v Melchior Gleeson CJ (at 142) relied on McKay as authority in saying "[t]he common law does not allow a person to treat his or her own birth as actionable damage". Hayne J said (at 198): "To value the life of the new child would at least be unrealistic if not impossible." Heydon J, implicitly, also approved of the approach in McKay . His Honour said (at 230): "Human life is invaluable in the sense that it is incapable of valuation. It has no financial worth which is capable of estimation." See also his Honour's observations at 232; see also Rees v Darlington Memorial Hospital NHS Trust at 315, 328 and 345-346. 278 In Cattanach v Melchior the parents, not the child, claimed damages. The damages that were the subject of the appeal to the High Court were "limited to the question of damages for raising and maintaining the child" (see at 136). The judgments of the members of the High Court concerned damages awarded for a defined amount of financial loss. Mr and Mrs Melchior's damages were established in accordance with the orthodox compensatory principle; they were determined by comparing the financial position they were in as a result of Dr Cattanach's negligence with the financial position they would have been in had he not been negligent. For these reasons, in my respectful view, the judgments of the majority are not inconsistent with the abovementioned remarks of Gleeson CJ, Hayne J and Heydon J. 279 I conclude that, without recourse to considerations of policy that compel a departure from both the compensatory principle and the principle that damage is the gist of the cause of action in negligence, the appellants' arguments must fail. 280 This was indeed recognised by the appellants. They did not dispute that the compensatory principle, as stated in cases such as Livingstone v Rawyards Coal Company and Haines v Bendall, was irreconcilable with their claims. In effect, they accepted that their claims could not be based on that principle. 281 Mr Walker said that the premise of Alexia's case was that, but for the respondent's conduct, she would not have existed, but she does now exist and suffers terrible harm. He said that he could not submit that the damages his client had suffered could be determined by assessing the amount of money needed to put her into the position she would have been in if the harm had not occurred. 282 In written submissions filed on behalf of Alexia, it was "conceded that it is impossible to say whether a life with disabilities is worse [than] non-existence" (emphasis in original). As I have noted, Mr Bates adopted Mr Walker's submissions. 283 The appellants were correct in recognising that their claims could not be calculated by comparing a disabled life (whatever the extent of the disability) with never having been born. A loss on this basis is not susceptible to calculation.

The appellants' answer to the compensatory principle 284 To avoid the consequences that would ordinarily flow from the inability to bring the claims within the confines of the compensatory principle, Mr Walker advanced a proposition that lay at the heart of the arguments advanced on behalf of both appellants. He described this proposition as the "compensatory principle of corrective justice". He said: "The rule is that, if by your negligence you have caused harm, and that is the word I deliberately choose, to a person to whom you owe a duty of care, then it follows that you are liable to compensate for that harm".

Mr Walker, in effect, repeated this proposition when he submitted that the Court should apply "basal legal principle", which he described as being if harm to the plaintiff is brought about by a breach of duty, then damages should be awarded. 285 This argument involves an attempt to separate the duty owed by the respondents from the damages suffered by them. 286 As regards the damage sustained, Mr Walker submitted that "[t]he harm is the terrible … suffering which would be most likely the lot of a child born who was conceived, or [was] in utero at the critical period of rubella infection. You avoid that harm by termination". Mr Walker submitted that the approach the Court should take was that: "[T]he measure of damages is what is necessary to compensate for the disability and suffering, the prospect of which was the very harm to be avoided by engagement of professional duty."

Mr Walker argued that the appellants' damages should be assessed by comparing their condition and needs with a person born without disability (that is, a notional person who is not either of the appellants). Such a measure of damage would be novel and would create a special category of claims for negligence. 287 The appellants' fundamental submission was that, according to "the compensatory principle of corrective justice", once a duty of care, established without reference to the identification of the particular harm suffered, has been breached, then all harm that has thereby been caused should be compensated by an award of damages. As it was put by Mr Bates, the court has "sufficient power to [and must] fashion a remedy". 288 Thus, this argument is not supported by the underlying theme of the majority in Cattanach v Melchior where the claim was for "a head of damages recoverable in negligence under general and unchallenged principles" (per McHugh and Gummow JJ at 148). 289 In summary, the measure of damages on the appellants' argument is not one that would arrive at a sum of money which would put them in the same position as they would have been in had they not sustained the wrongs for which they are suing. The appellants' argument was that, in the novel circumstances that exist, the law should fashion new tools to assess the appropriate amount of damages. Mr Walker submitted that the harm sustained by the appellants "is compensable to the extent the law can do it". He said that the test for damages was a "tool, in order to achieve the realisation of a principle, which is the compensatory principle of corrective justice". He said that the law should not allow the "tool" to control the application of principle in a case to which the principle applies but the tool fails "because it was made at a time which would never include the kind of situation this case presents".

Do the interests of the appellants attract the protection of the law? 290 In Sutherland Shire Council v Heyman, Gibbs CJ (at 441) commented on cases other than those where the facts fall into a category already recognised by the authorities as attracting a duty of care, the scope of which is settled. His Honour said, in regard to those relatively novel cases: "In deciding whether the necessary relationship exists, and the scope of the duty which it creates, it is necessary for the court to examine closely all the circumstances that throw light on the nature of the relationship between the parties." 291 In Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173, Spigelman CJ said (at 187): "[T]his is a case in which it is appropriate to identify the interests which are said to require the protection of law (see Modbury Triangle Shopping Centre Pty Limited v Anzil at 262 [14]; Perre v Apand (at 251 [191]); Reynolds v Katoomba RSL All Services Club Limited [2001] 53 NSWLR 43 at 45 [9]-[18].)" 292 While the duty, in general terms, owed by a medical practitioner and a hospital not to cause injury to a patient is well-settled, the duty contended for, namely, one owed to a person born disabled that, in its scope, would require the practitioner to have taken steps that would have resulted in the disabled person not being born at all, is novel. Accordingly, this is also a case "in which it is appropriate to identify the interests which are said to require the protection of law". 293 Mr Walker submitted that the duty of care owed by the respondents to the appellants was to give the appellants' parents an opportunity to make an informed decision about terminating the respective foetuses. In my view, however, a more accurate description of the scope of the duty contended for would be "to give the parents an opportunity of terminating the foetus while it is in utero". Whatever the true scope might be, in my view the interest which the appellants assert is an interest in their mothers having had an opportunity of preventing their birth.

294 In considering the interest claimed by the appellants, there are, I think, five different sets of circumstances (including the set of circumstances giving rise to the appellants' claims) that give rise to interests that, while superficially similar, are distinguishable from each other. It is helpful to examine them. The differences illustrate why the law does not recognise an interest of the kind asserted by the appellants but, as regards the other four sets of circumstances, accepts that interests arise that are entitled to protection. 295 The first set of circumstances is that which results in injury to the foetus. The law, as Mason P points out at [112], recognises the interest of the disabled child to sue for injuries of that kind. 296 The second is that which justifies a lawful abortion. The interest that is recognised here is that of the mother, not the child. 297 The third is that which results in the court ordering life support systems to be removed from a severely disabled person. The interest in question is that of the disabled person. 298 The fourth is that which allows the parents of a severely disabled child, born in circumstances akin to those under which the appellants were born, to claim the financial cost of rearing and maintaining the child. It is common ground that such an interest is recognised by the law. The interest is that of the parents.

299 The fifth is that which concerns the appellants, namely where the child claims an interest in a medical practitioner affording its parents the opportunity of terminating the foetus from which it developed. The law has not yet recognised such an interest.

300 I turn, firstly, to the distinction between the first set of circumstances (namely, where injuries are sustained by the foetus in utero) and the interest asserted by the appellants.

301 In my view, the principal distinction is that, unlike the position with regard to the interest claimed by the appellants, no part of the interest of a plaintiff who claims damages caused by injuries suffered in utero involves the proposition that the foetus should have been terminated. 302 The appellants are required to assert, as part of their cause of action, that, as a matter of causation, had the respondents not been negligent, they would not be alive in their disabled condition. But no such allegation forms part of the cause of action of a plaintiff suing for damages for injuries caused to the foetus in utero. 303 The need on the part of the appellants to allege and prove, that - but for the respondents' negligence - they would not be alive in their disabled condition, is significant. The significance lies in the fact that the principle of the sanctity of life stands as an obstacle to the existence of a duty of care owed to a child to take steps that might lead to the child not being born. The principle is not absolute (Cattanach v Melchior at 153-155 and 171; Airedale NHS Trust v Bland at 864), but it is weighty. 304 There is a further significant distinction. In order to prove that, but for the respondents' negligence, the appellants would not have been born, the appellants would have to prove that their mothers would have terminated their pregnancy lawfully. A mother is only able to terminate her pregnancy lawfully if she has an honest belief on reasonable grounds that an abortion would be necessary to preserve her from serious danger to her life or physical or mental health, which the continuance of the pregnancy would entail: CES v Superclinics (Australia) Pty Limited (1995) 38 NSWLR 47 at 59-60, 80. This element of the mother's interest forms no part of the claim for damages by a child for injuries caused to the foetus in utero. 305 I would add that, in the case of a plaintiff suing for injuries caused in utero (unlike the case of the appellants), the claim is based on the established compensatory principle. 306 I turn now to the distinction between the second set of circumstances (namely, where a mother takes lawful steps to terminate the foetus) and the interest asserted by the appellants. 307 The law accords the mother alone the right to decide whether the pregnancy should be terminated. See in this regard the decision of the Full Court of the Supreme Court of Queensland in Attorney General (Qld) (Ex rel Kerr) v T (No 1) (1983) 8 Fam LR 871 at 873-874. 308 The foetus has no rights in this respect. In Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 Sir George Baker P said (at 279): "The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country (I except the criminal law …) and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia and, I have no doubt, in others." 309 In R v King [2003] NSWCCA 399 Spigelman CJ (with whom Dunford and Adams JJ agreed) said that for the purposes of the civil law, including the parens patriae jurisdiction and the law of torts, the position is as stated in Paton (see at [73] et seq; see also Attorney General (Qld) (Ex rel Kerr) v T (No 1) at 873 and Attorney General for the State of Queensland (Ex rel Kerr) v T (1983) 57 ALJR 285 at 286 per Gibbs CJ). 310 In Attorney General (Qld) (Ex rel Kerr) v T (No 1) it was pointed out (at 873) that, if the foetus had rights recognised by the law and, in particular, a right to prevent an abortion, then the father "is an appropriate person to set the machinery of the law in motion". But the Court held that the foetus (and, hence, the father) had no right to bring a claim for an order that would prevent its termination. 311 The rule that the foetus cannot invoke the protection of the law against its own termination underlines the difference between the interests of the mother in terminating her pregnancy and that claimed by the appellants. 312 Again, there is the further factor that a mother is only able to terminate her pregnancy lawfully if she has an honest belief on reasonable grounds that an abortion would be necessary to preserve her from serious danger to her life or physical or mental health. Thus, the interest involved in the case of a lawful abortion is the interest of the mother, not the child.

313 I turn now to the distinction between the third set of circumstances (namely where the court orders life support systems to be removed from a severely disabled person) and the interest asserted by the appellant. 314 I have discussed this distinction above under the heading "Non-existence as a comparator". As Taylor LJ said In re J (A Minor) (Wardship: Medical Treatment) (at 53), the court never sanctions steps to terminate life. His Lordship observed, "The court is concerned only with the circumstances in which steps should not be taken to prolong life."

The interest that is recognised in applications such as in In re J (A Minor) (Wardship: Medical Treatment) , Airedale NHS Trust v Bland and Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449 is that of the disabled person not to prolong or preserve his or her life. This distinguishes the interest recognised in these cases from that claimed by the appellants. The interest claimed by the appellants does not concern the issue whether life should be preserved; the contrary is the case. 315 Finally, there is the distinction between the interest of parents of a severely disabled child in recovering their expenses in bringing up and maintaining the child and the interest claimed by the appellants.

316 The parents' claim for such expenses rests on the basis that the medical practitioner caused the parents financial harm which, by Cattanach v Melchior, is recoverable in law. The interest of the parents is essentially financial.

317 The interest claimed by the appellants, on the other hand, involves a person's right not to be born or a right to be born without disability (which implies the existence of a right on the part of the child to have the congenitally impaired foetus, from which the child developed, terminated prior to birth). The difficulties facing such a claim (to which I have referred when discussing the rule that the foetus cannot invoke the protection of the law against its own termination) do not apply to the parents' claim. 318 A further distinction, that is also important, is that the interest of the parents involves financial loss determined in accordance with established principles, whereas the interest of the appellants involves damage that is not capable of being so determined. 319 In my view, the distinctions that are to be drawn between the interest claimed by the appellants and those discussed above are sound reasons for the law to refuse to accord recognition to the interest claimed by the appellants. 320 In Becker v Schwartz 413 NYS 2d 895 (1978), the New York Court of Appeal stated (at 900): "… Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no [precedent] at common law or in statutory enactment for the judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honoured, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?"

Policy and the "compensatory principle of corrective justice" 321 The appellants in the present appeals eschew any reliance on policy. They submit that their claims should succeed on the application of the ordinary principles of negligence. I have attempted to demonstrate that, on the application of those principles, namely, the compensatory principle and the principle that damage is the gist of the action for negligence, the appellants cannot succeed. The reality is that, in substance, the appellants' arguments are based on policy, the same policy that underlies cases such as Procanik v Cillo and Zeitzoff v Katz. 322 Despite the appellants' express disavowal of any recourse to policy, it remains to consider whether policy considerations warrant a material deviation from established principle. 323 I have described above, under the heading "The appellants' answer to the compensatory principle", the appellants' argument. This is said to derive from what they submit to be the "compensatory principle of corrective justice", namely, that the law should fashion a means for assessing damages different to that laid down by established principle in Livingstone v Rawyards Coal Company and cases such as Haines v Bendall. The appellants' policy argument relies on "corrective justice". 324 Professor Atiyah has exposed as a myth the proposition that tort law is a system of corrective justice. The topic is examined with clarity and perception in his article, "Personal Injuries in the 21st Century: Thinking the Unthinkable", in P Birks (ed), Wrongs and Remedies in the 21st Century (Clarendon Press, Oxford, 1996). 325 In that article, Professor Atiyah says (at 12): "Personally I have the greatest possible difficulty in seeing personal injury tort law, as it operates today, as a system of corrective justice, for one simple reason. Although tort liability is in theory generally predicated on the fault of some guilty individual, that person hardly ever pays a single penny of the damages which are awarded." [footnote omitted] 326 Professor Atiyah explains (at 13) that, in some respects, the law mandates this state of affairs (for example, third party insurance relating to motor vehicle accidents and employer's liability). In other instances it is the effect of legal and practical provisions, for example, vicarious and corporate liability, and limitations on the liability of the Crown and public authorities such as the police. 327 Then of course there is indemnity insurance. Most organisations and individuals today are protected in some form or another by public liability insurance. While there may be an excess payable under a particular policy, the vast majority of negligence claims are met by insurance companies, and this is particularly so in the field of professional negligence. As claims are increasingly successful and large amounts of damages are awarded, premiums rise and insurance becomes more difficult to obtain. The social implications of this phenomenon are infinite and serious. Not least, the cost of the payment of damages to individual plaintiffs is borne, eventually, by the community, in general, and those who pay increased premiums, in particular. 328 As Professor Atiyah points out (at 15), even when a corporation (or public body) is held liable to pay damages, or is obliged to pay insurance premiums against that possibility, the cost ultimately falls on persons such as employees, managers and shareholders, consumers and the general public. 329 He concludes (at 17) that: "The notion that tort law requires negligent individuals to pay for the consequences of their negligence is patently untrue. At every stage of the proceedings the practical operation of the legal and insurance system effectively shields the wrongdoer from any personal consequences following his actions." [footnote omitted] 330 Professor Atiyah goes on (at 22) to observe that "those accident victims who receive damages are frequently just plain lucky, in comparison with many other victims of accidents or similar misfortunes". 331 Professor Atiyah, after describing various anomalies and respects in which tort law seems to be "hopelessly unfair", and demonstrating that the tort system is not an appropriate system of distributive justice, remarks (at 26) that if the cost of misfortunes is to be spread, "the spreading must surely be done according to some rational principles, not just in the arbitrary and haphazard way that tort law works today." 332 A final aspect of Professor Atiyah's article, of pointed relevance to the issues in these appeals, is his observation (at 10) that: "If third party insurance for personal injuries is increasingly understood to resemble a welfare benefit it will surely come to seem amazing that judges are able to increase the benefits without any kind of control on the total cost to the community." 333 Equally pertinent is the observation (at 10-11): "Few lawyers in England probably perceive the connection between tort liability and the welfare state in the way I have sketched, and even among those who understand and sympathise with the need to control the social security budget, probably the great majority remain happily convinced that tort liabilities can and should continue to expand more or less indefinitely. There appears to be no recognition that expansion of personal injury law, or higher damages in personal injury cases, even if desirable in themselves (which is of course highly arguable) involve changes which must compete for resources with other claims on society." 334 Professor Luntz op cit at paragraphs 1.1.12 to 1.1.16 echoes, strongly, the views expressed by Professor Atiyah. 335 In my view, the opinions expressed by Professor Atiyah and Professor Luntz are compelling. They demonstrate that idiosyncratic attempts to extend liability in tort law by fundamentally changing established principles and rules, motivated as they are by sympathy for plaintiffs, come at an immeasurable cost to the community, and involve judicial legislation that will ultimately result in loss of respect for the law. 336 In my opinion, no considerations of corrective (or distributive) justice justify altering the established compensatory principle laid down in Livingstone v Rawyards Coal Company and Haines v Bendall. 337 Generally speaking, at the present time, when legislatures throughout the country have legislated or have foreshadowed legislation restricting liability for negligence (see Spigelman CJ, "Negligence and Insurance Premiums: Recent Changes in Australian Law" (2003) 11 Torts Law Journal 291; Commonwealth of Australia, Reform of Liability Insurance Law in Australia, February 2004), it would be quite wrong to expand, by judicial fiat, the law of negligence into new areas. 338 I would add, moreover, that discoveries and potential discoveries in the field of genetics should make courts cautious in altering established principle so as to accommodate claims for wrongful life. At this stage of genetic science it is simply not possible to know what consequences would follow from the making of such changes. 339 Geneticists are now able to detect genes in the human body that give rise to risks of certain diseases materialising at various stages of an individual's life. According to an Information Paper issued by The National Health and Medical Research Council in February 2000, entitled Ethical Aspects of Human Genetic Testing (at 11): "Testing for monogenic adult-onset disorders can also be performed during pregnancy to determine whether the foetus will, after a healthy childhood and early adult life, develop the disorder in question in mid-late adult life." 340 According to the Information Paper (at 17): "A prenatal test may be performed because it is known that the foetus is at increased risk of having a particular disorder, as for example when the parents have had an affected child previously, or are both known to be carriers of a recessive disorder or when a woman is older and at increased risk of conceiving a child with Down syndrome. The procedures used to obtain foetal cells for testing are chorionic villus sampling (CVS), amniocentesis and occasionally foetal blood sampling (cordocentesis); ... Prenatal tests may also be performed as a population screening test such as when all pregnant women are offered maternal serum screening to determine if their foetus is at increased risk of having spina bifida or Down Syndrome, or ultrasound screening for malformations in the foetus." 341 The Information Paper refers (at 30) to the possibility of prenatal diagnostic testing in populations where particular groups are known to be susceptible to certain genetic diseases. Examples given are the Tay-Sachs disease in the Jewish community or beta-thalassaemia in communities having their origins around the Mediterranean. 342 As the Information Paper notes (at 11) "[i]nformation gained from predictive and prenatal tests can prompt profound questions about what constitutes a worthwhile human life …". 343 The Information Paper notes further (at 13): "These developments in genetics pose ethical questions for individuals and families, as well as for society. Some arise from the nature of genes and genetic information, which are at the same time both personal and shared with family members and, in many cases, with people outside the family e.g. with members of an ethnic group. Other questions arise from the fact that until now, individuals and society have not had to deal with predictive information of such quantity and accuracy and there is no considered community view about access to, and use of, predictive genetic information by family members and people or organisations outside the family. There is concern about the possibility of stigmatisation and unfair discrimination based on genetic information."

And (at 42): "The psycho-social consequences of predictive and carrier testing of children are unknown." 344 According to Mattick, "The Human Genome and the Future of Medicine" (2003) 179 Medical Journal of Australia 212 (at 214): "[G]enetic tests have been used widely and effectively to reduce the incidence of some genetic diseases (notably thalassaemia) in some communities, although this raises ethical issues on which there are different views in society." 345 According to the learned author (at 214), advances in DNA diagnostic technologies should make prenatal genetic testing a reality within a few years, and "lead to widespread prenatal screening for common genetic disorders, including chromosomal abnormalities and familial diseases". The author says that the technology of DNA-based diagnostics "is already well-advanced" and "is developing incredibly quickly". He emphasises (at 215) that, "underlying many of these particular issues are deeper ethical and philosophical tensions". 346 Geneticists are working on the discovery and identification of genes that may affect human behaviour, for example, a gene that results in a tendency to violence. There is, or may be, a risk that genes of this kind could be transmitted to children. 347 As geneticists and medical practitioners constantly warn, the ethical and legal difficulties that will arise from this novel area of human endeavour are infinite and are as yet unfathomable. Some more obvious questions come to mind: will children be able to sue medical practitioners who fail to advise their parents that, for genetic reasons, they might become seriously disabled when, say, 35 years of age? Or that, for genetic reasons, they might be prone to serious depression? Or that they might be genetically programmed to commit acts of criminal violence? And what will be the duties of medical practitioners to carry out genetic testing? These difficult questions show the potentially far-reaching and incalculable reach of the changes to principle for which the appellants, in effect, contend. Many of these questions raise issues of privacy, confidentiality and psychological harm that, at the present time, cannot properly be understood. It follows that the implications of any changes to the framework of liability for negligence, capable of expanding liability for acts or omissions relating to predictive genetic testing, cannot properly be understood. I do not think that these considerations can be dismissed as being a mere "floodgates" argument. 348 I have pointed out that an essential element of the appellants' cause of action is proof that, but for the respondents' negligence, they would not be alive in their disabled condition. In my opinion, the principle of the sanctity of life is a further policy factor that militates against the recognition of a duty of care owed to a child to take steps that might lead to the child not being born.

349 Finally, as regards matters of policy, the law already affords a remedy for damage brought about by medical negligence resulting in the birth of disabled children. That remedy is the action available to the parents of such children by which they can claim the financial expenses of raising and maintaining the children. In other words, damages of the kind recognised in Cattanach v Melchior. As Gleeson CJ observed in that case (at 141), there is no reason to suppose that the adverse financial consequences to the parents will cease when disabled children turn 18, and there is no reason to restrict parents to claims for the foreseeable adverse financial consequences until the age of 18 (see also his Honour's remarks in this respect at 137 and 139). The existence of the parents' remedy underlies the following remarks in Walker v Mart (at 740): "Because defendants negligently failed to provide the parents with information that would have prompted [the mother] to exercise her right to terminate the pregnancy, any wrong that was done was a wrong to the parents, not to the [foetus]." 350 In my view, policy does not justify a re-fashioning of the principle that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the tort had not been committed. 351 In the circumstances, I consider that Studdert J correctly found that the respondents in each case did not owe a duty of care to Keeden and Alexia, respectively, of the kind asserted.

Causation 352 In view of the conclusion to which I have come, it is not strictly necessary for me to deal with causation. The issue was, however, fully argued and I shall express my views as to the argument raised. 353 On the respondents' argument, Alexia's pain and suffering and loss of amenities and needs for health care were caused by the rubella, for which Dr P R Stephens had no historical responsibility, and Keeden's pain and suffering and other losses were caused by Mr Waller's AT3 deficiency. This view is epitomised by the observation of Stephenson LJ in McKay v Essex Area Health Authority at 1181 when discussing whether the defendants had injured the disabled child. His Honour said: "All they have done is not having taken steps to prevent [the disabled child] being born injured by another cause."

Ackner LJ expressed a like opinion (at 1189) when he said that the disabled child could not say that, but for the doctor's negligence, she would have been born without her disability. He observed: "What the doctor is blamed for is causing or permitting her to be born at all." 354 As I understand the argument advanced on the appellants' behalf, their pain and suffering, loss of amenities and need for health care were a consequence of them being born. This argument recognises that the respondents did not directly cause their disabilities and their consequences. The appellants' argument as to damage and causation is that the respondents materially contributed to their birth and, hence, to them being alive in a disabled condition. On this argument the appellants' very existence constitutes the source of their damage. The primary causative link relied upon is that between the conduct of the respondents and the existence of the appellants. 355 While the appellants accept that the respondents did not cause their disabled condition, they argue that the respondents caused them to be born and, hence, to suffer by reason of their disabled condition (which they did not bring about). 356 In my opinion, the two-limbed test applied in Tambree v Travel Compensation Fund [2004] NSWCA 24 and Harvey v PD [2004] NSWCA 97 is of application in this case. 357 The first limb of this test concerns the factual aspect of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, which is the subject of the claim. The question to be asked is whether the omissions of the respondents were a historical (factual) cause of the appellants' damage. 358 This is not ordinarily a difficult issue, but I have found it so in the present circumstances. The problem is while the respondents' conduct led to the appellants' birth, that conduct did not have any effect on the foetus in each case. The disabilities from which the appellants suffer could not have been prevented by any action presently known to medical science. Nothing the respondents did resulted in the existence of the disabilities. Rather, the conduct of the respondents resulted in the birth of the appellants with disabilities. 359 The application of the "but for" test results in the same answer. The negligence of the appellants had no bearing on the existence or otherwise of the disabilities. On the other hand, but for the negligence of the respondents the appellants would not have been born with disabilities. 360 To answer the question posed by the first limb, the precise nature of the appellants' damage must be identified. I think that the true damage is being born with disabilities. For the purposes of identifying the damage or loss, the fact of being born cannot be separated from the disabilities. 361 Once the damage is identified in this way, the answer to the first limb of the test must be in the affirmative; the respondents caused the appellants' loss by causing them to be born in a disabled condition. 362 I would interpose here that this view of the appellants' loss, in my view, is fatal to their case on duty of care (for the reasons I have expressed based on the compensatory principle and the gist of the action for negligence principle). But it does result in them succeeding on this part of the causation issue. 363 The second limb of the two-limbed test involves the application of normative considerations. For the reasons set out under the heading "Policy and the 'Compensatory Principle of Corrective Justice'", I would not hold that the respondents are liable for the appellants' damage.

Alexia as a beneficiary of a contract between Dr P R Stephens and her mother 364 Alexia's grounds of appeal assert that Studdert J erred in not finding that she had a cause of action as a beneficiary of a contract between Dr P R Stephens and her mother. 365 Keeden did not raise a like argument and Mr Walker, on behalf of Alexia, did not mention the argument in his oral submissions. 366 Studdert J dealt with the issue as follows: "Mr Segal advanced the submission that the Court should recognise the existence of a trust of any contractual promise expressed by the defendant to the plaintiff's mother, and he submitted the existence of a trust can be inferred from the circumstance that any contract with the plaintiff's mother was made for the benefit of the plaintiff. I was referred to the joint judgment of Mason CJ and Wilson J in Trident General Insurance Co. Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 120-121 in support of this submission. The agreed statement of facts does not permit me to find any such trust and I find no basis for any contractual obligation in the defendant towards the plaintiff. …

I would add that even if the plaintiff had been able to establish contractual rights in her and corresponding obligations in the defendant, fundamental problems would have remained in proving breach of any contractual obligation towards her and in proving loss and damage. For these reasons the claim in contract must fail." 367 In my view, the reasoning of Studdert J is correct. I would not uphold this ground of appeal.

Conclusion 368 I would dismiss each appeal with costs. **********

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