Sorry you were born? Tough!

The NSW Court of Appeal yesterday rejected (by a 2/1 majority) a claim by two profoundly disabled children (Harriton and Waller) for damages for wrongful birth. The doctor respondents had failed to diagnose their disabilities while in utero, effectively denying the parents the opportunity to terminate the pregnancies. See this SMH article and the judgment itself.

The Court of Appeal’s decision stands in contrast to the High Court’s fairly recent decision in Cattanach v Melchior (2003) 77 ALJR 1312 , where parents of a normal child succeeded in winning damages (mainly the cost of raising the child) for the birth which had occurred following a botched sterilisation procedure. One critical distinction in the Harriton and Waller cases was that the claim was by the children rather than their parents. As Spigelman CJ observed:

It is not, in my opinion, possible to avoid or obfuscate the fact that an action by a disabled child, as distinct from an action by the parents, involves an assertion by the child that it would be preferable if she or he had not been born. This proposition raises ethical issues of the same character as those involved in the debate over euthanasia. It is sufficient for present purposes to note that the issues are highly contestable and are strenuously contested. There is no widely accepted ethical principle. The law of negligence should not, therefore, recognise a legal duty to the child.

Not being especially expert in tort law, I’m a little puzzled. On the face of it, I would imagine the parents might have succeeded on Cattanach v Melchior principles, had they sued in their own right. Do any lawyer readers know of any legal or tactical reasons why the plaintiffs in this matter chose to sue by their disabled children (suing through tutors/litigation guardians) rather than in their own right?

In any event, another interesting aspect is that Australian courts do seem to be responding to the evident determination of politicians to restrain the growth of personal injury litigation (e.g. the Ipp and Neaves reports – now largely implemented – see my previous posts on this subject). In fact Justice Ipp was part of the majority in the Harriton and Waller cases, and made some fascinating comments about the policy aspects of expansion of tort law:

324 Professor Atiyah has exposed as a myth the proposition that tort law is a system of corrective justice. The topic is examined with clarity and perception in his article, “Personal Injuries in the 21st Century: Thinking the Unthinkable”, in P Birks (ed), Wrongs and Remedies in the 21st Century (Clarendon Press, Oxford, 1996).

325 In that article, Professor Atiyah says (at 12):

“Personally I have the greatest possible difficulty in seeing personal injury tort law, as it operates today, as a system of corrective justice, for one simple reason. Although tort liability is in theory generally predicated on the fault of some guilty individual, that person hardly ever pays a single penny of the damages which are awarded.” [footnote omitted]

327 Then of course there is indemnity insurance. Most organisations and individuals today are protected in some form or another by public liability insurance. While there may be an excess payable under a particular policy, the vast majority of negligence claims are met by insurance companies, and this is particularly so in the field of professional negligence. As claims are increasingly successful and large amounts of damages are awarded, premiums rise and insurance becomes more difficult to obtain. The social implications of this phenomenon are infinite and serious. Not least, the cost of the payment of damages to individual plaintiffs is borne, eventually, by the community, in general, and those who pay increased premiums, in particular.

328 As Professor Atiyah points out (at 15), even when a corporation (or public body) is held liable to pay damages, or is obliged to pay insurance premiums against that possibility, the cost ultimately falls on persons such as employees, managers and shareholders, consumers and the general public.

329 He concludes (at 17) that:

“The notion that tort law requires negligent individuals to pay for the consequences of their negligence is patently untrue. At every stage of the proceedings the practical operation of the legal and insurance system effectively shields the wrongdoer from any personal consequences following his actions.” [footnote omitted]

330 Professor Atiyah goes on (at 22) to observe that “those accident victims who receive damages are frequently just plain lucky, in comparison with many other victims of accidents or similar misfortunes”.

331 Professor Atiyah, after describing various anomalies and respects in which tort law seems to be “hopelessly unfair”, and demonstrating that the tort system is not an appropriate system of distributive justice, remarks (at 26) that if the cost of misfortunes is to be spread, “the spreading must surely be done according to some rational principles, not just in the arbitrary and haphazard way that tort law works today.”

332 A final aspect of Professor Atiyah’s article, of pointed relevance to the issues in these appeals, is his observation (at 10) that:

“If third party insurance for personal injuries is increasingly understood to resemble a welfare benefit it will surely come to seem amazing that judges are able to increase the benefits without any kind of control on the total cost to the community.”

333 Equally pertinent is the observation (at 10-11):

“Few lawyers in England probably perceive the connection between tort liability and the welfare state in the way I have sketched, and even among those who understand and sympathise with the need to control the social security budget, probably the great majority remain happily convinced that tort liabilities can and should continue to expand more or less indefinitely. There appears to be no recognition that expansion of personal injury law, or higher damages in personal injury cases, even if desirable in themselves (which is of course highly arguable) involve changes which must compete for resources with other claims on society.”

334 Professor Luntz op cit at paragraphs 1.1.12 to 1.1.16 echoes, strongly, the views expressed by Professor Atiyah.

335 In my view, the opinions expressed by Professor Atiyah and Professor Luntz are compelling. They demonstrate that idiosyncratic attempts to extend liability in tort law by fundamentally changing established principles and rules, motivated as they are by sympathy for plaintiffs, come at an immeasurable cost to the community, and involve judicial legislation that will ultimately result in loss of respect for the law. …

337 Generally speaking, at the present time, when legislatures throughout the country have legislated or have foreshadowed legislation restricting liability for negligence (see Spigelman CJ, “Negligence and Insurance Premiums: Recent Changes in Australian Law” (2003) 11 Torts Law Journal 291; Commonwealth of Australia, Reform of Liability Insurance Law in Australia, February 2004), it would be quite wrong to expand, by judicial fiat, the law of negligence into new areas.

This consciousness of the need to restrain indefinite expansion in the scope of tort law is also evident (though slightly less clearly) in the High Court’s recent decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 (1 April 2004). Woolcock was a claim by a commercial building owner for damages for negligence (latent defect in the building’s footings/foundations) against the builder. The owner was not the original owner who had contracted with the builder. The Court declined to extend the principle in Bryan v Maloney (1995) 182 CLR 609, where it had found a builder liable for relevantly indistinguishable damage to the owner of a private dwelling house (as opposed to commercial premises).

The Court in Woolcock asserted a distinction from the Bryan v Maloney situation based mainly on the allegedly lesser vulnerability of commercial building owners compared with owners of private houses. However, the claimed distinction is fairly unpersuasive; to my eyes at least, the vulnerability factors the Justices listed appear to be pretty much the same irrespective of whether the building is residential or commercial. It’s difficult to avoid the conclusion that the real reason the Court declined to extend the Bryan v Maloney principle to commercial buildings was the same as the one discussed by Ipp J. Judges have to draw a line in the sand somewhere.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2022 years ago

They may have sued in the children’s names to broaden the damages available – ie the costs of care for the whole life of the child, rather than just the costs of raising the child to independence. I don’t know enough about the extent of the disabilities to know whether this would have made a difference.

I think that Cattanach v Melchior would have been distinguished even if the parents had sued. In Cattanach, one of the exacerbating factors was that the court could not have held that the plaintiffs should have mitigated their loss because this would have been contra to public policy – indicating that they should have had an abortion rather than having the child.

In this case, it was all about having the option to terminate the pregnancy on the assumption that it would have been exercised had the disabilities been known. Seems the same public policy argument would work against them – the court should not be making a finding which would indicate that the proper course of affairs was to terminate the child.

Ken Parish
Ken Parish
2022 years ago

Thanks QM. I’ll add your blog to TA’s blogroll. I hadn’t known it existed until now. I’ll put you on my “to be frequently visited list”, and look forward to more comments from you on TA. Cheers!

2022 years ago

“The social implications of this phenomenon are infinite and serious.”

what a strange thing to say.

A. J.
A. J.
2022 years ago

Hi Troppo.
In the Woolcock case, the majority of judges looked at vulnerability as meaning the capacity one has to protect oneself from the consequences of potentially negligent conduct of another.
Their Honours held that an investment company such as Woolcock is much more able to afford investigative building/structural inspections and that, in retaining solicitors to arrange the purchase contract, could have inserted some form of warranty from the vendor. Which is more than one could expect from a person purchasing a private dwelling, as in Bryan v Maloney.
Hopefully this helps to explain why ‘vulnerability’ was considered to be different between the types of entities who purchase private dwellings and those that purchase commercial premises.
Cheers, A.J.

Ken Parish
Ken Parish
2022 years ago


I know that’s what they SAID, but the point is whether it’s true. Solicitors can insert warranties in contracts just as easily when acting for private purchasers as commercial ones. It’s a question of the respective bargaining positions of the parties. Moreover, if the the HC had found for the vendor in Bryan v Maloney, standard form contracts and standard conveyancing practice would no doubt have been amended to cover the situation. Similarly with engineering inspections etc. When I first started practising in Darwin, no-one ever obtained an engineering report when buying a residential property. Now everyone gets at least a Building Status (Building Code compliance) report, and full engineering reports are by no means uncommon.

The High Court’s decision on “vulnerability” in Woolcock is therefore based on asserted distinctions from Bryan v Maloney which are almost entirely illusory. That’s why I suggested that the decision was based more on a generalised “drawing a line in the sand” basis than on the Court’s ostensible rationales for commercial purchasers’ supposedly lesser vulnerability.