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Harriton v Stephens gave the High Court an opportunity to make a morally and socially important decision that was legally justified, as it managed to do for wrongful birth. However, the court’s reluctance to acknowledge the legal rights of an individual life justified by a logical fallacy, depriving the case of any real significance and left the plaintiff with undesirable outcomes.
This case was brought by Alexia Harriton who was born with ‘catastrophic disabilities’ as a result of her mother’s GP failing to diagnose rubella during her first trimester. It was accepted that a reasonable medical practitioner would have taken more care in analyzing the tests and explaining the catastrophic effects such a disease can have. The main issue was whether the duty of care was owed to Alexia. The court, by a six to one majority, dismissed Harriton’s claim, finding that there were three major issues in finding a duty of care – the difficulty of confining the duty of care to severely disabled persons, coherency of the law and the nature of the damage alleged. Ultimately, the case was decided on the third round, the name that ‘a comparison between a life with disabilities and non-existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible.’
Although it was found that is impossible for a court to determine what damages are recoverable from a claim of life with disabilities due to the fact that existence is better than nonexistence, there are still other actions that could give rise to potentially recoverable damages. Pursuant to foreseeability a defendant will be liable if the damage is reasonably foreseeable and the damage is the result of negligence. The issues that stem from a life with disabilities including pain and medical expenses are some of the clearly foreseeable types of damage in this case. Given that it was acknowledged that a reasonable medical practitioner would have taken more care in observing rubella, the damage is the result of the defendant’s negligence. Thus, under the ordinary meaning of foreseeability, the doctor would be liable.
The ‘compensatory principle, attempts to put a plaintiff ‘in the same position as he or she would have been in if the tort had not been committed.’ In this case, this becomes problematic as it requires a ‘comparison between existence and non-existence,’ because the plaintiff is effectively claiming that she would be better off never being born. Crennan J objected to the possibility of assessing damages here since it is an ‘impossible comparison.’ However, courts have been able to assess damages between existence and non-existence before. Moreover, in the situation where the plaintiff would be if it wasn’t for the negligence of the doctor, namely non-existence she would be suffering any pain or the bearing the significant cost of living. From this perspective, it is possible to assess damages and award them based on the level of pain and suffering and the costs of medical expenses that otherwise wouldn’t exist. However, if this is accepted there cannot be compensated for the loss of earning capacity and there must be a consideration for the welfare benefits that the plaintiff would inevitably receive.
Perhaps a more plausible line of reasoning for the plaintiff so as to avoid some of the inherent issues with arguing the comparison between existence and non-existence would be to bring a case based on sole disabilities rather than life as a whole. As there is no requirement to prove that you are worse off holistically from negligence, the plaintiff would simply be required to prove that her disabilities are worse than non-existence. It is easy to see how non-existence is better in this sense given that there is no pain or suffering that comes from disability. The impossibility comparison is thus not so far-fetched and the plaintiff can establish damage based on one aspect of her life rather than life as a whole.
However, this claim would almost certainly be objected on the basis that the defendant did not cause the disabilities. However, doctors ‘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.’ Moreover, they can be liable if proper intervention would have stopped its continuation. Here, if the defendant provided the reasonable standard of medical advice, the plaintiff would not have been born and therefore would not have disabilities. By allowing the plaintiff to be born, the defendant opened himself to legally recognizable damage.
Thus, while the doctor did not directly cause the damage, he allowed the damage to continue through his own negligence, and thus according to the ‘but for’ test can be held to have caused the plaintiffs disability. The damages would be limited to costs sustained as a result of the disability. Effectively, it is not so much of a stretch for the court to reconcile the detriment of disabilities as opposed to life itself.
Despite it being apparent that a wrongful life case can succeed, there are a number of public policy grounds that are a court must take into consideration before reaching any verdict. Here, the majority pointed towards four policy concerns that must be taken into consideration in the wrongful life cases.
The ‘sanctity of life,’ is often touted as a policy concern for wrongful life cases, which states that any life is better than no life at all and to suggest that someone’s life is worthless because they have disabilities is ‘odious and repugnant.’ However, this is not necessarily true and it does little to account for the obvious difficulties that arise from disabilities as outlined above. Awarding damages in this area ‘would provide the plaintiff with a degree of practical empowerment.’ Finding negligence in this area isn’t a devaluing people with disabilities lives its acknowledging and catering for the costs, time and effort that is born from it.
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