Harriton v Stephens
Encyclopedia
Harriton v Stephens was a decision of the High Court of Australia
handed down on 9 May 2006, in which the court dismissed a "wrongful life
" 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.
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.
, 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 (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
, 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."
acted as senior counsel
for Harriton instructed by Maurice Blackburn Cashman; Blake Dawson acted for Stephens with Stephen Gageler 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
wrote separate judgments agreeing to dismiss the appeal, while Justice Kirby dissented.
.
The outcome of the judgment was criticised in the Sydney Law Review, which concluded:
Dean Stretton, a lawyer writing in the Melbourne University Law Review, 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".
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
handed down on 9 May 2006, in which the court dismissed a "wrongful life
Wrongful life
Wrongful life is the name given to a legal action in which someone is sued by a severely disabled child for failing to prevent the child's birth....
" 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.
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 virusRubella virus
Rubella virus is the pathogenic agent of the disease Rubella, and is the cause of congenital rubella syndrome when infection occurs during the first weeks of lunacy.Humans are the only known host of this virus....
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 WalesSupreme 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...
, 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 (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 Spigelman
James Jacob Spigelman AC QC is a former Australian judge. He served as Lieutenant Governor of New South Wales and Chief Justice of the Supreme Court of New South Wales from 19 May 1998 until 31 May 2011.-Early years and education:...
, 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. Brett WalkerBrett Walker
Carl Brett Walker is an American songwriter, musician, and record producer. As a singer/songwriter, his music can be heard on over 300 network television shows, including The Young and the Restless, One Tree Hill, Felicity, CSI: Miami, Everwood, Malcolm in the Middle, Baywatch, and One Life to...
acted as senior counsel
Senior Counsel
The title of Senior Counsel or State Counsel is given to a senior barrister or advocate in some countries, typically equivalent to the title "Queen's Counsel" used in Commonwealth Realms...
for Harriton instructed by Maurice Blackburn Cashman; Blake Dawson acted for Stephens with Stephen Gageler 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
Susan Crennan
Susan Maree Crennan AC , is an Australian judge, a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
, with whom Chief Justice Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...
and Justices Gummow
William Gummow
William Montague Charles Gummow AC is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:...
and Heydon
Dyson Heydon
John Dyson Heydon AC QC is a Justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Education:...
concurred, giving her reasons majority support. Justices Callinan
Ian Callinan
Ian David Francis Callinan, AC, QC is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Education:...
and Hayne
Kenneth Hayne
Kenneth Madison Hayne AC is a Justice of the High Court of Australia which is the highest court in the Australian court hierarchy.-Education and professional life:...
wrote separate judgments agreeing to dismiss the appeal, while Justice Kirby dissented.
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, 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 [Harriton] and Keeden [Waller] 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 KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
The outcome of the judgment was criticised in the Sydney Law Review, 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, 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".