Date: Wed, 10 Dec 2003 14:40:53 -0400

From: Jennifer K Bankier

Subject: Mitigation by adoption

I think everyone would agree that the "life is special" factor has some relevance, e.g. the traditional position re defense of property that people are more important than property, and therefore that one cannot use force that is likely to cause death or serious bodily harm to defend property, in the absence of grounds for self-defense.

This does not, however, answer the question of what the role of this specialness should be in any given context.

The problem arises here because the creation of an additional human life through a failed sterilization imposes negative consequences on *other* people, as a result of the negligence of the person who performed the bungled sterilization. These include ethical problems *on the part of the parents* that may preclude the use of adoption (e.g. the reluctance of adopters to accept children with disabilities, or racially visible children would present problems with the adoption option for some parents, since there is an increased risk the child will wind up in foster care rather than in a good adoptive family).

It could be argued, for example, that the specialness of human life should argue against any mitigation obligation that requires adoption, *and* argues in favour of financial compensation for the costs of raising the child, because this would permit impecunious parents to do a better job of raising the "special" child, in situations where the parents would not otherwise have the money to do this well and without financial strains that would stress the relationship between child and parents.

In other words, even the "specialness of life" argument does not, in and of itself, yield a clear answer.

JKB

On Wed, 10 Dec 2003, Jason Neyers wrote:

Dear Colleagues,

I want to thank everyone for their discussion on this issue since it has really helped me clarify my views.

I think that these types of cases are ones where the mechanical/surface application of the law, rather than the casuistic, arguably leads one down the incorrect path (which is what Allan was poking at, I think). For example, Andrew asserts that it is obviously unreasonable to take into account the fact that the plaintiff has not mitigated or has kept the baby. If this is the case, then it follows that this fact cannot be taken into account when assessing damages and she is entitled to financial compensation on the application of ordinary principles which do not allow set-offs between different types of damages. (I mean this with no hostility or disrespect to Andrew or anyone else, btw).

But this dodges the question of why it is unreasonable to demand mitigation. I do not know Andrew's answer (since it appears he assumes it is self-evident) but I will assume that many people would say "because life is special" and/or that human life cannot be treated as if it were just any other asset/liability. I can follow that line of reasoning. But when it comes to assessing damages, the plaintiff backs away from the implicit assertion that is hidden in the "mitigation is unreasonable argument" and then asserts that the wrongful birth is to be treated as if it were just any other legal wrong in which the normal rules of financial compensation should apply. To be frank, I find that to be somewhat contradictory. If "life is special" gets you over the mitigation hump, then it is something that should factor into the assessment of damages as well.

This is the approach that Lord Scott employed in Rees when he worked through the law with a nuanced argument that took into account the unique nature of human life. This also seems to be the import of the quote of Gleeson CJ (which Jamie mentioned) from Cattanach v Melchior (which I still have to read).

If on the other hand, life is not so special when it comes to the issue of damages, then I think one might then ask the plaintiff to mitigate in the normal way if they now find being a parent unappealing. The plaintiff would of course then be entitled to the costs, if any, involved in mitigating as Jennifer suggests.

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