Everyday life and the edges of existence : wrongs with no name or the wrong name?

Morgan, Derek M. & White, Benjamin P. (2010) Everyday life and the edges of existence : wrongs with no name or the wrong name? Journal of Professional Negligence, 26(1), 39-48 (reprinted with permission of University of New South Wales Law Journal).

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Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence.

Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.

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ID Code: 33689
Item Type: Journal Article
Refereed: Yes
Keywords: Health law, Medical law, Medical negligence, Wrongful life
ISSN: 1746-6709
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Copyright Owner: Copyright 2010 Thomas Reuters
Deposited On: 03 Aug 2010 22:08
Last Modified: 24 Jun 2017 14:33

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