Date: Sat, 13 May 2006 00:13:11 +1000

From: Harold Luntz

Subject: Wrongful life

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.

Harold.

At 06:25 PM 9/05/2006, Robert Stevens wrote:

The decisions in Harriton and Waller seem to me to be plainly right, but perhaps the most interesting aspect, for those with a theoretical bent, is Crennan J's bold foray in Harriton into Aristotelian corrective justice (paras 271-275). Bold, but right.

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