''Harriton v Stephens'',
[.] was a decision of the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
handed down on 9 May 2006, in which the court dismissed a "
wrongful life
Wrongful life is the name given to a cause of action in which someone is sued by a severely disability, disabled child (through the child's legal guardian) for failing to prevent the child's birth. Typically, a child and the child's parents will s ...
" claim brought by a disabled woman seeking the right to compensation for being born after negligent medical advice that resulted in her mother's pregnancy not being terminated.
Background
Facts
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
Rubella virus (RuV) is the pathogenic agent of the disease rubella, transmitted only between humans via the respiratory route, and is the main cause of congenital rubella syndrome when infection occurs during the first weeks of pregnancy.
Rube ...
while pregnant with her. These disabilities left Harriton unable to care for herself.
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. Harriton's mother claimed that she would have had her pregnancy terminated had she known of the chances of having a disabled child.
Litigation history
Harriton sued Dr Stephens in the
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales. It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters. Whilst the Supreme Court i ...
, 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. 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'') were appealed to the
New South Wales Court of Appeal
The New South Wales Court of Appeal, part of the Supreme Court of New South Wales, is the highest court for civil matters and has appellate jurisdiction in the Australian state of New South Wales.
Jurisdiction
The Court of Appeal operates pursu ...
(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
James Jacob Spigelman (born 1 January 1946) is a former Australian judge who served as Chief Justice of New South Wales from 1998 to 2011. He was also Lieutenant-Governor of New South Wales from 1998 to 2012. He served on the Court of Final App ...
, 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."
High Court appeal
On 29 April 2005, Harriton and Waller were granted special leave to appeal to the High Court. Their appeals were heard together on 10 November 2005.
Bret Walker
Bret William Walker (born 1954) is an Australian barrister.
Family
Walker is the son of an Anglican minister. His second wife is Sarah Pritchard.
Education
Walker was educated at Concord West Public School and The King's School, Parramatta ...
acted as
senior counsel
The title of Senior Counsel or State Counsel (post-nominal letters: SC) is given to a senior lawyer in some countries that were formerly part of the British Empire. "Senior Counsel" is used in current or former Commonwealth countries or jurisdicti ...
for Harriton instructed by
Maurice Blackburn Cashman;
Blake Dawson
Ashurst Australia is the Australian branch of Ashurst LLP, an international commercial law firm. The Australian headquarters of Ashurst are in Sydney.
Prior to its acquisition by Ashurst, the Australian firm was named Blake Dawson, one of th ...
acted for Stephens with
Stephen Gageler
Stephen John Gageler (; born 5 July 1958) is a Justice of the High Court of Australia. He was previously a barrister based in Sydney and the Solicitor-General of Australia, the Commonwealth's second-ranking law officer.
Early life and educatio ...
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.
[.] The leading judgment was written by Justice
Crennan, with whom Chief Justice
Gleeson and Justices
Gummow and
Heydon concurred, giving her reasons majority support. Justices
Callinan and
Hayne Hayne is a surname of English origin.
Etymology
According to the ''Oxford Dictionary of Family Names in Britain and Ireland'', modern names ''Haine'', ''Hayne'', '' Haines'', ''Hains'', ''Hanes'', and '' Haynes'' all in four different medieval nam ...
wrote separate judgments agreeing to dismiss the appeal, while Justice
Kirby
Kirby may refer to:
Buildings
* Kirby Building, a skyscraper in Dallas, Texas, United States
* Kirby Hall, an Elizabethan country house near Corby, Northamptonshire, England
* Kirby House (disambiguation), various houses in England and the Unit ...
dissented.
Reaction to judgment
Press reaction
The High Court's judgment was reported in the media as a "landmark case". Richard Ackland, a journalist and lawyer, criticised the judgment in the
Sydney Morning Herald
''The Sydney Morning Herald'' (''SMH'') is a daily compact newspaper published in Sydney, New South Wales, Australia, and owned by Nine. Founded in 1831 as the ''Sydney Herald'', the ''Herald'' is the oldest continuously published newspaper i ...
, 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 arritonand Keeden aller
Aller may refer to:
Places Rivers
* Aller (Germany), a major river in North Germany
*Aller (Asturian river), a river in Asturias, Spain
*River Aller, a small river on Exmoor in Somerset, England
Inhabited places in the United Kingdom
*Aller, Devo ...
is precisely what the doctors were engaged to prevent being created.
Academic reaction
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". 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
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
.
The outcome of the judgment was criticised in the ''
Sydney Law Review
The ''Sydney Law Review'' is a peer-reviewed law journal established in 1953.
References
External links
*
SydLRev Online Australasian Legal Information Institute
The Australasian Legal Information Institute (AustLII) is an institution ...
'', which concluded:
Logic might have demanded the outcome reached by the High Court in ''Harriton'', but fairness demands another.
Dean Stretton, a lawyer writing in the ''
Melbourne University Law Review
The ''Melbourne University Law Review'' is a triannual law journal published by a student group at Melbourne Law School covering all areas of law. It is one of two student-run law journals at the University of Melbourne, the other being the '' M ...
'', 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".
[ (2006) 30(3) ]Melbourne University Law Review
The ''Melbourne University Law Review'' is a triannual law journal published by a student group at Melbourne Law School covering all areas of law. It is one of two student-run law journals at the University of Melbourne, the other being the '' M ...
972
References
Footnotes
Cited texts
*
*
*{{cite book, last=Walmsley, first=Stephen, author2=Abadee, Alister , author3=Zipser, Ben , title=Professional liability in Australia, publisher=Lawbook Co, location=NSW, year=2007, edition=2nd, isbn=978-0-455-22425-1
High Court of Australia cases
2006 in Australian law
2006 in case law
Australian tort case law