Date: Fri, 12 May 2006 16:46:34 +0100

From: Robert Stevens

Subject: Wrongful life

If we thought that what the law of torts was about was compensating the deserving, I can well see that giving compensation to itinerant parents rather than to severely disabled children is ridiculous. The children are obviously more deserving than the parents. The difficulty I have with that view is that if we take it seriously, it leads to the inevitable conclusion that the law of torts makes no sense and ought to be abolished, possibly to be replaced by a no-fault compensation scheme (eg H Luntz, A Personal Journey Through the Law of Torts).

I don't think the law of torts is about compensating the deserving. I think it is about vindicating rights. We do not have a right not to be born. Indeed, it is difficult to imagine how such a right could be formulated as it is only upon birth that any such right could accrue. It doesn't help in Harriton to try and rely upon a right not to be born disabled, as that was the only life the claimant could have. Conceptually, the child's claim was doomed in Harriton.

The parents (or at least the mother) do have rights they can allege have been infringed by the medical practitioner. They can allege that the medical practitioner has assumed responsibility towards them that he will take care in treatment (sometimes the right will be contractual) and they should be able to recover for all loss which is not too remote that they suffer as a consequence of carelessness. (There is of course a difference of opinion as to what can legitimately be said to be loss.)

Third parties to rights have no claim, except in very exceptional cases. One such case is where the right holder is dead, can no longer choose what to do with the money and where giving damages to his estate would not approximate to the wrong not having occurred (eg fatal accidents). I see no case for making another exception in Harriton.

If you injure me so that I cannot work, and I am a well known feckless drunk who will spend his damages on booze, would this justify giving my children a free standing claim against you for their loss as a result of my injuries? I don't think so. (Although I suppose they are 'vulnerable' and so perhaps they would have a claim in Australia?)

There are some cases where the English courts will impose a trust on damages. These cases are really concerned with preventing the defendant's unjust enrichment from a collateral benefit received by the claimant from a third party (cf Hunt v Severs). They are a long way away from Harriton.

Harriton was just an attempt to get over the problem that the parent's claim could not be brought, presumably because it was time barred. I am impressed by Crennan J. Not Kirby J.

(We should also pass quickly over Hayne J's silly statements about classification and the difference between torts and the criminal law [163]-[164].)

Robert Stevens
Barrister
University of Oxford

Harold Luntz writes:

Robert,

The decisions are right only if one takes a conceptual approach. From a practical point of view, Kirby's dissent is preferable, for the reasons he gives in [147]. Years ago I was phoned by a solicitor for one of the medical defence organisations. He told me that he had a case where there was clearly negligence in failing to detect defects on an ultrasound examination. He was also satisfied that if the mother had been advised, she would have terminated the pregnancy. The parents were bringing a wrongful birth claim. However, they were itinerants and, in his view, they would take the money he was proposing to pay and abandon the child. What could he do to ensure that the damages went to care for the child? Since Australian courts, unlike some elsewhere, refuse to impose a trust on the damages, the answer, as far as I could see, was nothing. If one recognises that the child itself has an action for medical and like expenses, the court would retain control of the damages and ensure that they fulfilled the purpose for which they were awarded.

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