Harriton v Stephens

The appellant, Alexia Harriton, was a 25-year-old woman with severe congenital disabilities that had been caused by her mother's infection with the rubella virus while pregnant with her.{{Cite Case AU|HCA|15|2006}} See Crennan J at [210]. These disabilities left Harriton unable to care for herself.{{Cite Case AU|HCA|15|2006}} See Crennan J at [212].

The defendant, Paul Richard Stephens, was the doctor of Harriton's mother while she was pregnant. After conducting and reviewing pathological tests, Dr Stephens advised the mother that she did not have the rubella virus.{{Cite Case AU|HCA|15|2006}} See Crennan J at [211]. Harriton's mother claimed that she would have had her pregnancy terminated had she known of the chances of having a disabled child.

Harriton sued Dr Stephens in the Supreme Court of New South Wales, claiming that Dr Stephens failed to exercise reasonable care in his treatment of her mother, and but for that failure her mother would have terminated her pregnancy and Harriton would not have been born.{{Cite Case AU|HCA|15|2006}} See Kirby J at [21] and [22]. The judge hearing the action, Justice Tim Studdert, dismissed the action as well as two other wrongful life cases brought at the same time.

Two of the three wrongful life cases dismissed by Justice Studdert (Harriton and Waller v James{{cite AustLII|NSWSC|461|2002|litigants=Harriton v Stephens |courtname=Supreme Court (NSW)}}.) were appealed to the New South Wales Court of Appeal (an appellate division of the Supreme Court). The Court of Appeal, by a majority of 2–1 dismissed both appeals. According to Chief Justice James Spigelman, the proposition that the duty of doctor to an unborn child extended to conduct that, properly performed, would lead to the termination of the pregnancy "should not be accepted as it does not reflect values generally, or even widely, held in the community."{{Harvnb|Walmsley|Abadee|Zipser|2007|p=293}}{{cite AustLII|NSWCA|93|2004|litigants=Harriton v Stephens |parallelcite=(2004) 59 NSWLR 694 |courtname=NSW Court of Appeal}} per Spigelman CJ at [21].

On 29 April 2005, Harriton and Waller were granted special leave to appeal to the High Court.{{Cite Case AU|HCATrans|301|2005}} Their appeals were heard together on 10 November 2005.{{Cite Case AU|HCATrans|918|2005}} Bret Walker acted as senior counsel for Harriton instructed by Maurice Blackburn Cashman; Blake Dawson acted for Stephens with Stephen Gageler as senior counsel.

The High Court decided on 9 May 2006, by a 6–1 majority, to dismiss Harriton's appeal. Waller's appeal was dismissed on the same day with the majority in that judgment following the reasons in Harriton's appeal.{{cite AustLII|HCA|16|2006|litigants=Waller v James |parallelcite=(2006) 226 CLR 136 |courtname=High Court}}. The leading judgment was written by Justice Crennan, with whom Chief Justice Gleeson and Justices Gummow and Heydon concurred, giving her reasons majority support.{{Harvnb|Ellis|McGivern|2007|p=149}} Justices Callinan and Hayne wrote separate judgments agreeing to dismiss the appeal, while Justice Kirby dissented.{{Harvnb|Walmsley|Abadee|Zipser|2007|p=294}}

The High Court's judgment was reported in the media as a "landmark case".{{cite news|url=http://www.abc.net.au/rn/breakfast/stories/2006/1634889.htm|title=Wrongful life decision|date=10 May 2006|publisher=Radio National|accessdate=21 January 2010}} Richard Ackland, a journalist and lawyer,{{cite news|url=http://www.abc.net.au/corp/pubs/media/s1003095.htm|title=Richard Ackland returns to ABC Radio National this summer|date=2 December 2003|publisher=ABC|accessdate=21 January 2010}} criticised the judgment in the Sydney Morning Herald, arguing:

What the majority position fails to accommodate is that there is a new modern order. Medical technology can detect abnormalities at very early stages of the development of a foetus. Good medical practice regularly results in the non-existence of human beings. What has been created by way of Alexia [Harriton] and Keeden [Waller] is precisely what the doctors were engaged to prevent being created.{{cite news|url=http://www.smh.com.au/news/opinion/justice-missing-in-wrongful-life-cases/2006/05/11/1146940674458.html|title=Justice missing in wrongful life cases|last=Ackland|first=Richard|date=12 May 2006|work=The Sydney Morning Herald|accessdate=21 January 2010}}

Margaret Fordham, a legal academic, wrote after the judgment that for wrongful life claims to gain acceptance, "the courts would have to undergo a complete change of heart with respect to the moral and ethical implications of such actions".{{Harvnb|Fordham|2007|p=149}} Academics Evelyn Ellis and Brenda McGivern referred to the judgment as an emphatic rejection of claims for wrongful life and compared the judgment to similar rejections of wrongful life claims by courts in the United Kingdom.{{Harvnb|Ellis|McGivern|2007|p=135 (headnote)}}

The outcome of the judgment was criticised in the Sydney Law Review, which concluded:

Logic might have demanded the outcome reached by the High Court in Harriton, but fairness demands another.{{cite journal |last=Grey |first=Alice |title=Harriton v Stephens: Life, Logic and Legal Fictions|journal=Sydney Law Review |date=29 January 2024 |url=http://www.austlii.edu.au/au/journals/SydLawRw/2006/25.html}} (2006) 28(3) Sydney Law Review 545 {{issn|0082-0512}}

Dean Stretton, a lawyer writing in the Melbourne University Law Review, claimed that the High Court's judgment "regressed", "depriving the plaintiffs of a legally justified remedy by resort to inconsistent logic and ill-considered policy".{{cite journal |last=Stretton |first=Dean |title=Wrongful life and the logic of non-existence |journal=Melbourne University Law Review |date=29 January 2024 |url=http://www.austlii.edu.au/au/journals/MULR/2006/31.html}} (2006) 30(3) Melbourne University Law Review 972 {{issn|0025-8938}}

{{Reflist}}

• {{cite journal|last1=Ellis|first1=Evelyn|last2=McGivern |first2=Brenda|year=2007|title=The wrongfulness or rightfulness of actions for wrongful life|journal=Tort Law Review|publisher=Law Book Co.|location=North Ryde, NSW|volume=15|pages=135|issn=1039-3285}}
• {{cite journal|last=Fordham|first=Margaret|year=2007|title=A life less ordinary—The rejection of actions for wrongful life|journal=Torts Law Journal|publisher=Law Book Co.|location=North Ryde, NSW|volume=15|pages=123|issn=1038-5967}}
• {{cite book|last1=Walmsley |first1=Stephen |last2=Abadee |first2=Alister |last3=Zipser |first3=Ben |title=Professional liability in Australia|publisher=Lawbook Co|location=NSW|year=2007|edition=2nd|isbn=978-0-455-22425-1}}

Category:High Court of Australia cases

Category:2006 in Australian law

Category:2006 in case law

Category:Australian tort case law