Harriton v Stephens

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

ALEXIA HARRITON (BY HER TUTOR
GEORGE HARRITON)  APPELLANT

AND

PAUL RICHARD STEPHENS  RESPONDENT

Harriton v Stephens [2006] HCA 15
9 May 2006
S229/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with G P Segal and D H Hirsch for the appellant (instructed by Maurice Blackburn Cashman)

S J Gageler SC with J K Kirk for the respondent (instructed by Blake Dawson Waldron)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Harriton v Stephens

Torts – Medical negligence – Wrongful life – Birth of severely disabled child – Agreed for the purposes of separate questions at first instance that the respondent doctor failed to diagnose the mother's rubella infection during pregnancy – Doctor failed to warn the mother of the risk of serious disability as a consequence of the rubella infection – Whether the appellant child born with disabilities can recover from the doctor.

Duty of care – Medical practitioners – Whether the doctor owed the child a duty of care to diagnose rubella and advise the child's mother in relation to the termination of the pregnancy – Foreseeability of risk to the appellant – Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury – Vulnerability of the appellant – Relevance of duty of care owed to the appellant's mother.

Damage – Whether a life with disabilities is actionable damage – Whether it is possible to prove damage by comparing a life with disabilities with non-existence.

Damages – Assessment – Measure of damages – Compensatory principle – Non-existence as a comparator – Comparison to child born without disability – Whether claim for special damages quantifiable – Whether only special damages may be awarded – Corrective justice.

Public policy – Principle of the sanctity of human life – Whether life is capable of constituting a legally cognisable injury – Effect on disabled people of awarding damages for wrongful life – Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects – Whether disabled child could sue his or her mother for failing to terminate her pregnancy – Whether awarding damages for wrongful life would undermine familial relationships – Relevance of unforeseen advances in genetic science.

Statutes – Whether common law can be developed by analogy with legislation – Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction – Relevance of legislature's inaction.

Words and phrases – "wrongful life", "wrongful birth".

Civil Liability Act 2002 (NSW), ss 70, 71.
Civil Liability Act 2003 (Q), s 49A.
Civil Liability Act 1936 (SA), s 67.

1. GLEESON CJ.I have had the advantage of reading in draft form the reasons for judgment of Crennan J.

2. I agree that the appeal should be dismissed with costs, for the reasons given by her Honour.

3. GUMMOW J.   The appeal should be dismissed with costs.

4. I agree with the reasons of Crennan J.

5. KIRBY J.   In Cattanach v Melchior[1] this Court decided that the parents of an unplanned child, born following the negligence of a medical practitioner, could claim damages for the cost of raising that child.  This type of action has become known as an action for "wrongful birth"[2].  The decision in Cattanach followed earlier like decisions in other Australian courts supporting such recovery[3].  The holding in that case was not challenged in this appeal.

   [1](2003) 215 CLR 1 (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting).

   [2]Regarding this choice of label see Cattanach (2003) 215 CLR 1 at 32 [68].

   [3]See, eg, CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47; Veivers v Connolly [1995] 2 Qd R 326.

6. The Court is now required to decide whether a child, born with profound disabilities, whose mother would have elected to terminate her pregnancy had she been aware that there was a real risk of the child being born with such disabilities, is entitled to damages where a medical practitioner negligently failed to warn the mother of that risk.  Such actions have been called "wrongful life" actions.  This is a value-loaded label.  An alternative, namely, "wrongful suffering", has been suggested.  However designated, such proceedings have received a generally hostile reception from courts in Australia and elsewhere.  Many academic commentators have regarded them as insupportable[4].  Yet others have considered that they are compatible with the established principles of the tort of negligence[5].   

   [4]See, eg, Todd, "Wrongful Conception, Wrongful Birth and Wrongful Life", (2005) 27 Sydney Law Review 525 at 538-541; Dimopoulos and Bagaric, "The Moral Status of Wrongful Life Claims", (2003) 32 Common Law World Review 35; Pace, "The Treatment of Injury in Wrongful Life Claims", (1986) 20 Columbia Journal of Law and Social Problems 145; Tedeschi, "On Tort Liability for 'Wrongful Life'", (1966) 1 Israel Law Review 513.

   [5]See, eg, Teff, "The Action for 'Wrongful Life' in England and the United States", (1985) 34 International and Comparative Law Quarterly 423 at 427; Cane, "Injuries to Unborn Children", (1977) 51 Australian Law Journal 704 at 720; Grainger, "Wrongful Life:  A Wrong Without a Remedy", (1994) 2 Tort Law Review 164; Capron, "Tort Liability in Genetic Counseling", (1979) 79 Columbia Law Review 618 at 661; Stretton, "The Birth Torts:  Damages for Wrongful Birth and Wrongful Life", (2005) 10 Deakin Law Review 319 at 320, 364.

7. There is no legislation and no settled judicial authority in Australia to resolve the content of the law.  It is therefore the duty of this Court to do so in the usual way.  It must proceed by analogous reasoning from past decisions, drawing upon any relevant considerations of legal authority, principle and policy[6].

   [6]Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 563; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 252; Northern Territory v Mengel (1995) 185 CLR 307 at 347; Cattanach (2003) 215 CLR 1 at 42 [102].

   "Wrongful life" and the danger of labels

8. The label "wrongful life" has been criticised as "unfortunate"[7], "ill-chosen"[8], "uninstructive"[9] and "misleading and decidedly unhelpful"[10].  In my view, its use, even as a shorthand phrase, should be avoided[11]. 

   [7]Teff, "The Action for 'Wrongful Life' In England and the United States", (1985) 34 International and Comparative Law Quarterly 423 at 425.

   [8]Kashi, "The Case of the Unwanted Blessing:  Wrongful Life", (1977) 31 University of Miami Law Review 1409 at 1432.

   [9]Harriton v Stephens [2002] NSWSC 461 at [8].

   [10]Lininger v Eisenbaum 764 P 2d 1202 at 1214 (1988). See also Viccaro v Milunsky 551 NE 2d 8 at 9 n 3 (1990); Hester v Dwivedi 733 NE 2d 1161 at 1163-1164, 1169 (2000).

   [11]Contra Berman v Allan 404 A 2d 8 at 11 (1979).

9. First, it has been borrowed from another context.  The expression was originally used in the United States of America to describe claims brought by healthy but "illegitimate" children against their fathers, seeking damages for the disadvantages caused by reason of their illegitimacy[12].  Such actions are quite different from "modern" wrongful life actions because, among other things, the alleged wrong is not in any meaningful sense the cause of the plaintiff's existence[13]. 

   [12]Zepeda v Zepeda 190 NE 2d 849 at 858 (1963).

   [13]See Tedeschi, "On Tort Liability for 'Wrongful Life'", (1966) 1 Israel Law Review 513 at 533.

10. Secondly, the epithet "wrongful life" is seriously misleading.  It misdescribes the essential nature of the complaint.  The plaintiff in a wrongful life action does not maintain that his or her existence, as such, is wrongful[14].  Nor does the plaintiff contend that his or her life should now be terminated.  Rather, the "wrong" alleged is the negligence of the defendant that has directly resulted in present suffering.  Professor Peter Cane identified this distinction, stating "[t]he plaintiff in [wrongful life] cases is surely not complaining that he was born, simpliciter, but that because of the circumstances under which he was born his lot in life is a disadvantaged one"[15].

    [14]Hester 733 NE 2d 1161 at 1169 (2000); Viccaro 551 NE 2d 8 at 9 n 3 (1990).

    [15]Cane, "Injuries to Unborn Children", (1977) 51 Australian Law Journal 704 at 719.

11. Thirdly, the expression is apt to obscure potentially important differences between actions brought by or on behalf of children who would not have existed but for the negligence of another.  Such actions may arise out of varying circumstances.  For instance, the negligence complained of may be a failure to make an accurate diagnosis or a failure to warn the plaintiff's parents.  It may precede, or it may follow, conception[16].  The range of potential defendants includes medical practitioners, manufacturers of pharmaceuticals, genetic testing laboratories and possibly even the child's parents[17].  The extent of the child's disabilities is another variable.  By lumping all such cases under the one description there is a danger that important factual distinctions will be overlooked or obscured[18].

    [16]See Waller v James [2006] HCA 16 at [28].

    [17]Although see below these reasons at [127]-[133]. 

    [18]Curlender v Bio-Science Laboratories 165 Cal Rptr 477 at 481, 486 (1980).

12. Fourthly, by referring to actions such as the present as actions for "wrongful life", there is a risk that they will be perceived as the opposite of actions for "wrongful birth".  The latter actions are distinguishable on several grounds[19].  Actions for "wrongful life" are brought by or for the child.  Actions for "wrongful birth" are commenced at the instance of the parents[20].  Additionally, "wrongful life" actions are often said to raise concerns about the relative values of existence and non-existence.  Such concerns are absent in a case of "wrongful birth".  Yet the two actions share certain similarities.  One important similarity is that they both require a birth.  Another is that they both involve the contention that the child would not have been born but for the negligence of the defendant.  Unless the similarities and differences are properly acknowledged, considerations favouring parental claims might be disregarded in claims brought by or for the child[21]. 

    [19]See Harriton (by her tutor Harriton) v Stephens (2004) 59 NSWLR 694 at 743 [315]-[319].

    [20]Actions for wrongful birth are sometimes distinguished from so-called actions for wrongful conception.  The difference between these labels appears to turn on the fact that wrongful conception consists of negligence resulting in conception while wrongful birth, according to those who draw this distinction, involves negligence that deprives a pregnant woman of the opportunity to undergo an abortion or negligence that fails to effect an abortion. 

    [21]Harriton (2004) 59 NSWLR 694 at 706 [69]; Lininger 764 P 2d 1202 at 1214 (1988).

13. Fifthly, the words "wrongful life" implicitly denigrate the value of human existence.  Arguably, because of the law's respect for human life[22], the label has caused judges to recoil from affording remedies in "wrongful life" cases.  It discourages dispassionate legal analysis[23].  It is essential that the availability of actions such as the present be determined by reference to accepted methods of judicial reasoning rather than by invoking emotive slogans and the contestable religious or moral postulates that they provoke[24].   

    [22]See Wilson v The Queen (1992) 174 CLR 313 at 341.

    [23]Harriton (2004) 59 NSWLR 694 at 706-707 [69]; Teff, "The Action for 'Wrongful Life' in England and the United States", (1985) 34 International and Comparative Law Quarterly 423 at 427-428; Kashi, "The Case of the Unwanted Blessing:  Wrongful Life", (1977) 31 University of Miami Law Review 1409 at 1431-1432.

    [24]Berman 404 A 2d 8 at 20 (1979); In re A (Children) (Conjoined Twins:  Surgical Separation) [2001] Fam 147 at 155.

14. Notwithstanding this analysis, in these reasons I will have to use the phrase "wrongful life".  The term is consistently used in the reasons of the other members of this Court and in the reasons of the courts below.  Its use is ubiquitous in the legal literature.  To adopt a more fitting description would risk confusion[25].  However, the appeal should be approached with full awareness of the shortcomings in the label "wrongful life".  It must be decided by reference to legal analysis, not emotive labels or slogans.

    [25]Lininger 764 P 2d 1202 at 1204 n 2 (1988).

    The agreed facts

15. This appeal was heard concurrently with two other appeals concerning the permissibility of wrongful life actions[26].  The facts were agreed between the parties for the purposes of determining whether the appellant had a cause of action against the respondent and, if so, what heads of damages were available in respect of it[27].

    [26]Waller [2006] HCA 16.

    [27]Facts further to those stated here may be found at Harriton (2004) 59 NSWLR 694 at 725-726 [189]-[204].

16. Alexia Harriton is the appellant in this Court.  In early August 1980, before her birth, her mother, Mrs Olga Harriton, experienced a fever and noticed a rash.  Suspecting that she might be pregnant, she contacted Dr Max Stephens, who was a medical practitioner in general practice.  Dr Max Stephens (who has since died) was the father of Dr Paul Stevens ("the respondent").  He was also in general practice.  On 13 August 1980, Dr Max Stephens attended on Mrs Harriton.  She informed him that she believed that she might be pregnant.  She expressed concern that her illness might be rubella (commonly known as German measles).

17. On Dr Max Stephens's advice, Mrs Harriton underwent blood testing to determine whether she was pregnant and whether she had been exposed to the rubella virus.  The testing was performed by Macquarie Pathology Services.  Dr Max Stephens recorded the following clinical history:  "Urgent,? pregn,? recent rubella contact."  On 21 August 1980, the Pathology Service reported to Dr Max Stephens in the following terms:

    "Rubella – 30

    If no recent contact or rubella-like rash, further contact with this virus is unlikely to produce congenital abnormalities."

18. Mrs Harriton consulted the respondent on 22 August 1980.  She supplied him with substantially the same history as she had given to his father.  The respondent was in possession of the pathology report.  He advised her that she was pregnant but assured her that her symptoms were not caused by the rubella virus.

19. It was common ground that, assuming that a relevant duty of care existed, the respondent was negligent in informing the appellant that she did not have rubella and in failing to arrange further and more detailed blood testing.  It was also agreed that, in 1980, a reasonable medical practitioner in the position of the respondent would have advised Mrs Harriton of the high risk that a foetus which had been exposed to the rubella virus would be born profoundly disabled.  Finally, the parties agreed that, had Mrs Harriton received competent medical advice, she would have terminated the pregnancy. 

20. Alexia Harriton was born on 19 March 1981.  She suffered from catastrophic disabilities as a consequence of exposure to the rubella virus in utero.  Her disabilities include blindness, deafness, mental retardation and spasticity.  She will require constant supervision and care for the rest of her life. 

    The decisional history

21. Decision at first instance:  By her tutor and father, Mr George Harriton, the appellant sued the respondent in the Supreme Court of New South Wales.  Her claim was pleaded in tort and contract.  She claimed damages for pain and suffering, loss of amenities, medical expenses and under the principle in Griffiths v Kerkemeyer[28].  Damages for a loss of earning capacity were not claimed[29].  Her parents did not commence proceedings in their own names.  By reason of the expiry of the relevant limitation period, they are now precluded from doing so[30]. 

    [28](1977) 139 CLR 161.

    [29]Counsel for the appellant submitted otherwise during argument and in written submissions but the appellant's pleadings do not make a claim for damages for a loss of earning capacity. 

    [30]Harriton (2004) 59 NSWLR 694 at 724 [179].

22. Pursuant to Pt 31 r 2 of the Supreme Court Rules 1970 (NSW)[31] and with the consent of both parties, Studdert J on 25 February 2002 ordered that there be a separate determination of the following questions[32]:

    "1.If the [respondent] failed to exercise reasonable care in his management of the [appellant's] mother and, but for that failure the [appellant's] mother would have obtained a lawful termination of the pregnancy, and as a consequence the [appellant] would not have been born, does the [appellant] have a cause of action against the [respondent]?

    2.        If so, what categories of damages are available?"

    [31]See now Uniform Civil Procedure Rules 2005 (NSW), r 28.2.

    [32]Harriton [2002] NSWSC 461 at [2].

23. Relying heavily on the decision of the English Court of Appeal in McKay v Essex Area Health Authority[33], in which the admissibility of wrongful life actions was rejected[34], Studdert J answered the first question in the negative[35].  The second question therefore did not need to be decided.  His Honour identified several reasons why the appellant lacked a cause of action.

    [33][1982] QB 1166.

    [34]See below these reasons at [49]-[51].

    [35]Judgment was delivered concurrently with judgments in two other wrongful life actions, Waller v James [2002] NSWSC 462 and Edwards v Blomeley [2002] NSWSC 460. Studdert J also found for the defendants in these actions for substantially the reasons that he gave in Harriton. 

24. First, he found that whilst a health care provider owes a duty of care to an unborn child to take reasonable care to avoid causing that child physical injuries in utero, that duty did not include an obligation to give advice to the mother of an unborn child that could deprive that unborn child of the opportunity of life[36]. 

    [36]Harriton [2002] NSWSC 461 at [21].

25. Secondly, Studdert J held that there was no breach of the accepted duty of care that health care providers owe to unborn children to guard against acts or omissions which might cause physical injury because the respondent did not do anything which caused her mother to contract the rubella virus[37].  Nor was the respondent negligent in failing to take prophylactic measures either to ameliorate the risk of the appellant's being infected with rubella or to reduce the severity of the appellant's disabilities.  It was accepted by the appellant that no such measures exist[38]. 

    [37]Harriton [2002] NSWSC 461 at [25].

    [38]Harriton [2002] NSWSC 461 at [26].

26. Thirdly, Studdert J considered that, to recover for negligence, the appellant's claim necessitated a comparison between her present position and the position that she would have been in but for the respondent's negligence.  As the appellant would not have been born had the respondent exercised reasonable care, Studdert J found such a comparison was "an impossible exercise"[39].  

    [39]Harriton [2002] NSWSC 461 at [33].

27. Finally, Studdert J found that public policy considerations militated against recognising wrongful life actions.  He stated that recognising wrongful life actions would erode the value of human life; undermine the perceived worthiness of those born with disabilities; open the door to actions brought by anyone born with a disability regardless of the severity of their disability; enable children born with disabilities to sue their mothers for failing to undergo an abortion if advised of the risk of disability; and place unacceptable pressure on the cost of insurance premiums of medical practitioners[40]. 

    [40]Harriton [2002] NSWSC 461 at [71].

28. Studdert J also rejected the appellant's alternative action in contract.  On the basis of this Court's decision in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd[41], it had been argued for the appellant that she enjoyed a derivative cause of action as a beneficiary of the contract between the respondent and her mother[42].  In rejecting this argument, Studdert J found that the agreed facts did not enable him to find that the contract created a trust in favour of the appellant[43] and that, in any case, such action did not avoid the foregoing problems of how damages could be assessed[44]. 

    [41](1988) 165 CLR 107.

    [42]Harriton [2002] NSWSC 461 at [73]-[77].

    [43]Harriton [2002] NSWSC 461 at [78].

    [44]Harriton [2002] NSWSC 461 at [79].

29. Decision of the Court of Appeal:  The appellant appealed to the New South Wales Court of Appeal[45].  A majority of that Court (Spigelman CJ and Ipp JA; Mason P dissenting) dismissed the appeal.  Spigelman CJ found that no relevant duty of care was owed to the appellant by the respondent.  The principal reasons that led the Chief Justice to this conclusion were the absence of the requisite degree of directness in the relationship between the appellant and the respondent[46] and of any clear moral support for the existence of the alleged duty[47].  Spigelman CJ also found that the agreed statement of facts did not include sufficient information for it to be established that the appellant would have been better off had she not been born, proof of which he considered necessary for the appellant to succeed[48].   

    [45]Harriton (2004) 59 NSWLR 694. The Court of Appeal heard the appeal in this matter together with appeals against the decision in Waller [2002] NSWSC 462.

    [46]Harriton (2004) 59 NSWLR 694 at 701-702 [25]-[33].

    [47]Harriton (2004) 59 NSWLR 694 at 699-701 [12]-[23].

    [48]Harriton (2004) 59 NSWLR 694 at 704 [45]-[46].

30. In Ipp JA's view, the main difficulty with the appellant's action was that damages could not be quantified because of the impossibility of comparing existence with non-existence[49].  Ipp JA would also have rejected the appellant's action on the basis of the absence of a duty of care[50] and causation[51].  He cited a number of policy arguments militating against recognition of the interest asserted by the appellant[52].  It is convenient to address these policy arguments later in these reasons[53]. 

    [49]Harriton (2004) 59 NSWLR 694 at 737-738 [265]-[271].

    [50]Harriton (2004) 59 NSWLR 694 at 748 [351].

    [51]Harriton (2004) 59 NSWLR 694 at 748-749 [353]-[363].

    [52]Harriton (2004) 59 NSWLR 694 at 744-748 [321]-[351].

    [53]See below these reasons at [110]-[152].

31. In dissent, Mason P identified the argument that "life" cannot be a legal injury and the supposed impossibility of quantifying the appellant's damage as the main barriers to the appellant's succeeding in her action.  His Honour was not persuaded by these arguments.  In relation to the argument that life itself cannot constitute a legal injury, Mason P perceived this as a question-begging statement which contained its own conclusion.  It did not supply a reason for denying relief[54].  Mason P also drew attention to the fact that the creation of life is the main trigger of the damage in wrongful birth actions and that it was not clear why the "life cannot be a legal injury" argument should have more force in the context of wrongful life than in the context of wrongful birth[55]. 

    [54]Harriton (2004) 59 NSWLR 694 at 717 [131], 719 [144].

    [55]Harriton (2004) 59 NSWLR 694 at 718 [136]-[137].

32. Mason P also rejected the proposition that the appellant's action should be disallowed by reason of the impossibility of determining the damage she suffered.  He did so for several reasons[56].  These included that the law values other intangible losses and explicitly or implicitly weighs existence against non-existence in other legal contexts. 

    [56]Harriton (2004) 59 NSWLR 694 at 721-722 [157]-[162].

33. Grant of special leave:By special leave, the appellant now appeals to this Court.  The questions requiring determination are the same as those in the courts below.  They are (1) whether a wrongful life action constitutes a valid cause of action and, if so, (2) what heads of damages are recoverable[57].  The appellant abandoned her contractual action before this Court, electing to rely exclusively on the tort of negligence. 

    [57]See above these reasons at [22].

    The absence of a trial

34. A threshold consideration which must be borne in mind in deciding this appeal is the fact that the appellant has not yet had a trial.  As such, the facts available to this Court are brief and unelaborated.  While the parties doubtless had in mind cost-saving and tactical considerations in adopting the abbreviated course they did, it is often important, in cases concerning the tort of negligence, that appellate courts have the benefit of comprehensive findings based on full evidence[58].  Because of the location of the burden of proof, a paucity of evidence usually works to the detriment of the party bringing the action. 

    [58]Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 561-562 [123]; Hester 733 NE 2d 1161 at 1168 (2000).

35. Especially in novel claims asserting new legal obligations, the applicable common law tends to grow out of a full understanding of the facts.  To decide the present appeal on abbreviated agreed facts risks inflicting an injustice on the appellant because the colour and content of the obligations relied on may not be proved with sufficient force because of the brevity of the factual premises upon which the claim must be built[59].  Where the law is grappling with a new problem, or is in a state of transition, the facts will often "help to throw light on the existence of a legal cause of action – specifically a duty of care owed by the defendant to the plaintiff"[60].  Facts may present wrongs.  Wrongs often cry out for a remedy.  To their cry the common law may not be indifferent.

    [59]Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 518 [91].

    [60]Woolcock (2004) 216 CLR 515 at 565-566 [138] applying E (A Minor) v Dorset County Council [1995] 2 AC 633 at 694 per Sir Thomas Bingham MR.

36. Notwithstanding these difficulties, this Court, like the courts below, must decide the contest applying established law to the abbreviated facts.  This process yields an answer favourable to the appellant despite the unfavourable forensic procedure she adopted.

    Confining the issues

37. The breach issue:Two issues can be exposed which do not present any real problem for this Court.  The first is the breach element of the tort of negligence.  As already mentioned, the parties agreed that, if the respondent owed the appellant a relevant duty of care, the respondent had breached that duty[61]. 

    [61]See above these reasons at [19].

38. The causation issue:Secondly, although contested by the respondent, it is clear, in my view, that no real difficulty arises over causation.  The respondent pointed to several factual considerations which, he submitted, sustained a finding adverse to the appellant on causation.  These considerations included the fact that the respondent had played no part in the appellant (or her mother) actually contracting rubella; the absence of any measures which could have been taken to reduce either the risk that the appellant would be infected with rubella or the severity of the appellant's disabilities once she had been exposed to that virus; and that no other life was possible for the appellant than the one she was living. 

39. These submissions are unconvincing[62].  Had it not been for the respondent's negligence, the appellant would not have been born.  The suffering, expenses and losses of which she now complains would therefore have been avoided.  True, the respondent did not give rise to, or increase, the risk that the appellant would contract rubella.  However, he did, through his carelessness, cause the appellant to suffer, as she still does, the consequences of that infection[63].  As Mason P observed in the Court of Appeal, "[d]octors seldom cause their patients' illnesses.  But they may be liable in negligence for the pain and cost of treating an illness that would have been prevented or cured by reasonable medical intervention."[64] 

    [62]Cf Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 476.

    [63]Todd, "Wrongful Conception, Wrongful Birth and Wrongful Life", (2005) 27 Sydney Law Review 525 at 539-540; Jackson, "Wrongful Life and Wrongful Birth:  The English Conception", (1996) 17 Journal of Legal Medicine 349 at 353-354. 

    [64]Harriton (2004) 59 NSWLR 694 at 714 [110].

40. In the present case, the only way in which the appellant's suffering could have been prevented was by terminating the pregnancy.  The respondent's negligence deprived the appellant's parents of the opportunity to act on that preventative measure.  As such, the respondent was a cause of the appellant's damage.

    The issues for determination

41. Once the breach and causation issues are put aside, three main issues remain for determination of the legal liability of the respondent to the appellant.  They are:

    (1) The duty of care issue:Did the respondent owe the appellant a relevant duty of care?  Does this case fall within the duty a health care provider owes to take reasonable care to avoid causing pre-natal injury to a foetus? 

    (2) The damage issue:Is the appellant's damage capable of being quantified?  Do the suggested difficulties of quantification arise in relation to all of the heads of damages pleaded by the appellant?

    (3) The policy issues:Assuming that a relevant duty of care was owed to the appellant and that her damage is capable of quantification, are there any policy considerations that should preclude this Court from upholding the claim?  Are there countervailing considerations that support recognition of the appellant's cause of action?

42. Before examining these questions it is helpful to consider Australian and overseas decisions on wrongful life actions.

    Australian authorities on wrongful life actions

43. Other than the present case, and the appeals in Waller v James[65], heard at the same time, there have only been three reported wrongful life actions brought in Australia.  In each case, the plaintiff failed. 

    [65](2004) 59 NSWLR 694.

44. The first was Bannerman v Mills[66].  The plaintiff there was born with severe defects as a result of contracting rubella from her mother while a foetus.  The facts of the case are not entirely clear from the report.  However, it appears that the mother, while pregnant with the plaintiff, had consulted the defendants about her infection.  The plaintiff alleged that the defendants were negligent in failing to advise her, among other things, to terminate her pregnancy.  The defendants brought a motion for summary dismissal of the proceedings on the basis that no reasonable cause of action was disclosed.  A Master of the Supreme Court of New South Wales, after surveying decisions in the United Kingdom and the United States, dismissed the plaintiff's action on the basis that it was unarguable as a matter of law.

    [66](1991) Aust Torts Reports ¶81-079.

45. The next case was Hayne v Nyst[67].  That was a proceeding commenced by a mother in her own right and on behalf of the child.  The mother had given birth to a child who had contracted rubella in utero.  An application for leave to bring the proceedings outside the applicable limitation period was ultimately discontinued with the apparent acquiescence of counsel for both sides.  However, Williams J commented that, in any event, he did not consider that the child had a viable cause of action. 

    [67]Unreported, Supreme Court of Queensland, 17 October 1995.

46. The third case was Edwards v Blomeley[68].  The plaintiff there was the seventh child born to her parents.  Before she was conceived, her father, Mr Edwards, had approached the defendant, a medical practitioner, for a vasectomy.  That operation failed.  The parties agreed that the defendant had not only negligently performed the vasectomy but, contrary to indications from sperm count tests, subsequently advised Mr Edwards that the procedure had been successful.  Acting in reliance on this advice, Mr Edwards engaged in unprotected sexual intercourse with his wife.  This resulted in the plaintiff's conception.  At birth it was found that the child suffered from cri du chat syndrome.  This is a rare chromosomal disorder that causes severe intellectual and physical disabilities. 

    [68][2002] NSWSC 460.

47. In the Supreme Court of New South Wales, Studdert J rejected the child's action for want of a relevant duty of care.  His Honour stated[69] "I cannot accept that the defendant owed to the ... plaintiff a duty to prevent her conception, or to give to her parents advice such as would have prevented her conception". Studdert J also rejected the action on the basis of causation[70] and the impossibility of assessing the damage that the plaintiff suffered[71].  Finally, his Honour considered that public policy militated against recognition of the plaintiff's action.  He found that wrongful life actions, among other things, erode the sanctity of human life and devalue members of society living with disabilities[72].  The parallels with Studdert J's reasoning in the present case are obvious[73].

    [69][2002] NSWSC 460 at [62].

    [70][2002] NSWSC 460 at [69].

    [71][2002] NSWSC 460 at [72]-[75].

    [72][2002] NSWSC 460 at [119].

    [73]See above these reasons at [23]-[27].

48. The preponderance of decisions on wrongful life actions in countries other than Australia is also against the appellant.  It is useful to identify the leading international authorities and their reasoning.

    Overseas authorities on wrongful life actions

49. United Kingdom:  The most important decision in the United Kingdom is that of McKay[74].  In that case a mother and her daughter sued the defendants for negligently misinterpreting tests of the mother's blood for the rubella virus, with the result that the mother was not properly advised of the risk that her infection with rubella presented to her daughter in utero[75]. 

    [74][1982] QB 1166. See also P's Curator Bonis v Criminal Injuries Compensation Board 1997 SLT 1180.

    [75][1982] QB 1166 at 1174.

50. The defendants brought a motion to strike out the daughter's claim on the ground that it failed to disclose a reasonably arguable cause of action.  That motion was granted by a Master of the High Court.  However, it was overturned by Lawton J on appeal.  In the Court of Appeal, Stephenson and Ackner LJJ, in separate reasons, restored the orders of the Master.  In dissent, Griffiths LJ would have upheld the orders made by Lawton J on the basis that the issue to be determined was not so straight-forward that it should be summarily decided[76].  However, because this was a minority view, his Lordship proceeded to hold that wrongful life actions should not be recognised by English law[77].  In retrospect, and in the light of the later development of authority in England on the proper approach to strike-out applications in cases of such a kind, it can probably be said that Griffiths LJ's initial conclusion (that there should first be a trial) was one that would probably now be followed[78].

    [76][1982] QB 1166 at 1191.

    [77][1982] QB 1166 at 1193.

    [78]See, eg, E (A Minor) [1995] 2 AC 633 at 694; cf D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at 796 [228]; 214 ALR 92 at 149.

51. Stephenson LJ, who wrote the principal reasons for the majority in McKay, held that the daughter's action was unarguable.  In his Lordship's opinion this was because (1) the defendants' negligence had merely caused her birth, as opposed to her disabilities[79]; (2) wrongful life actions postulate a duty to terminate life and this would make an unacceptable inroad on the principle of the sanctity of human life[80]; (3) such actions would expose medical practitioners to liability in respect of "mercifully trivial abnormalit[ies]"[81]; (4) they would open the door for wrongful life actions to be brought against mothers for failing to abort[82]; and (5) it would be impossible to assess damages because one cannot compare the daughter's disabled position with non-existence[83].  In addition to these arguments, the Court of Appeal obviously placed considerable weight on the fact that, not long before proceedings were commenced (but after the daughter's birth), Parliament had enacted the Congenital Disabilities (Civil Liability) Act 1976 (UK)[84].  That Act, which did not apply to the daughter's claim[85], expressly prohibited wrongful life actions[86].  It had been drafted pursuant to recommendations of the Law Commission[87]. 

    [79][1982] QB 1166 at 1178.

    [80][1982] QB 1166 at 1180-1181.

    [81][1982] QB 1166 at 1181.

    [82][1982] QB 1166 at 1181.

    [83][1982] QB 1166 at 1181-1182.

    [84][1982] QB 1166 at 1177-1178, 1182, 1187, 1192.

    [85]The Act only applied to children born on or after 22 July 1976.  The daughter was born on 15 August 1975. 

    [86]Section 1(2)(b). 

    [87]Law Commission, Report on Injuries to Unborn Children, Law Com No 60, (1974) Cmnd 5709 at 45-54.

52. Canada:  Few actions for wrongful life have been reported in Canada.  Those that have been have failed[88].  All but two were struck out before trial[89].

    [88]Reference is sometimes mistakenly made to the decision of the Manitoba Court of Appeal in Lacroix (Litigation Guardian of) v Dominique (2001) 202 DLR (4th) 121 as though it were a wrongful life action (see, eg, Cattanach (2003) 215 CLR 1 at 146 [407] n 654). In that case, the infant suffered disabilities caused by a drug prescribed for her mother while she was pregnant. The damage could have been averted by human agency other than by performing an abortion. Twaddle JA at 133 [38] appeared to acknowledge that Lacroix was not a wrongful life action. 

    [89]Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743 and Patmore v Weatherston [1999] BCJ No 650 were wrongful life actions struck out before trial.  But see Bartok v Shokeir (1998) 168 Sask R 280.

53. In Arndt v Smith[90], a wrongful life action was commenced in respect of severe mental and physical disabilities suffered by a child as a result of her mother becoming infected while pregnant with the virus which causes chickenpox.  While actions for wrongful birth and wrongful life were commenced, at trial, the wrongful life action was abandoned.  Citing McKay, Hutchison J stated that the[91]:

    "decision to abandon the claim for wrongful life on behalf of their child was most appropriate.  By doing so, they quite properly accepted the inevitable finding of this court that no such action lies."

    [90](1994) 93 BCLR (2d) 220.

    [91](1994) 93 BCLR (2d) 220 at 227 [28].

54. In Jones (Guardian ad litem of) v Rostvig[92], an infant born with Down's syndrome brought an action against his mother's medical practitioner for failing to recommend that the mother undergo testing which would have shown that, if born, he would be affected by the syndrome.  Macaulay J found for the defendant, adopting the reasoning in McKay[93]. 

    [92](1999) 44 CCLT (2d) 313.

    [93](1999) 44 CCLT (2d) 313 at 318-320 [18]-[22].

55. Singapore:In a recent decision in JU v See Tho Kai Yin[94], the High Court of Singapore rejected an action for wrongful life.  The plaintiff in that case was an infant born with Down's syndrome.  He sued his mother's obstetrician and gynaecologist, alleging a negligent failure to advise his mother of tests available to detect chromosomal abnormalities and to warn her that, at her age, there was an increased risk of such abnormalities.  Relying on McKay, the Court held that the plaintiff lacked a valid cause of action[95]. 

    [94][2005] 4 SLR 96.

    [95][2005] 4 SLR 96 at 120 [95]-[99].

56. United States:  In the United States, one of the earliest and most frequently cited decisions on wrongful life is Gleitman v Cosgrove[96].  The evidence adduced in that case indicated that the plaintiff's mother had consulted the defendant medical practitioners when she was pregnant with the plaintiff.  She advised the defendants that approximately one month after falling pregnant she had fallen ill with rubella.  The defendants reassured her that this would have no effect on the foetus[97].  Subsequently, the child was born in a seriously impaired condition.  The plaintiff's mother gave evidence that, if she had been informed of the risk of grave disability that her infection with rubella presented to the child, she would have sought an abortion[98].  Summary judgment was entered for the defendants.  That judgment was affirmed by the Supreme Court of New Jersey. 

    [96]227 A 2d 689 (1967).

    [97]227 A 2d 689 at 690 (1967). 

    [98]227 A 2d 689 at 691 (1967). 

57. Proctor J (with whom Weintraub CJ and Francis J agreed) considered that the impossibility of assessing the plaintiff's damage was the main obstacle in the path of his action[99].  His Honour stated[100]:

    "The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination.  This Court cannot weigh the value of life with impairments against the nonexistence of life itself.  By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies."

    [99]His Honour also considered that the action was precluded by public policy considerations concerning the sanctity of human life:  see 227 A 2d 689 at 693 (1967).

    [100]227 A 2d 689 at 692 (1967).

58. Since Gleitman[101], wrongful life actions have been rejected in several jurisdictions of the United States[102].  Relief has been denied for disabilities resulting from rubella[103], Down's syndrome[104], muscular dystrophy[105], albinism[106], haemophilia[107], hereditary blindness[108], neurofibromatosis[109] and spina bifida[110]. 

    [101]Which was followed by the Supreme Court of New Jersey in Berman 404 A 2d 8 (1979).

    [102]Alabama (Elliott v Brown 361 So 2d 546 (1978)); Arizona (Walker v Mart 790 P 2d 735 (1990)); Colorado (Lininger 764 P 2d 1202 (1988)); Connecticut (Kyle and Donnelly v Candlewood Obstetric-Gynecological Associates 6 Conn L Rptr 532 (1992)); Delaware (Garrison v Medical Center of Delaware Inc 581 A 2d 288 (1989)); Florida (Kush v Lloyd 616 So 2d 415 (1992)); Georgia (Atlanta Obstetrics & Gynecology Group v Abelson 398 SE 2d 557 (1990)); Indiana (Cowe v Forum Group Inc 575 NE 2d 630 (1991)); Kansas (Bruggeman v Schimke 718 P 2d 635 (1986)); Idaho (Blake v Cruz 698 P 2d 315 (1984)); Illinois (Williams v University of Chicago Hospitals 688 NE 2d 130 (1997)); Louisiana (Pitre v Opelousas General Hospital 530 So 2d 1151 (1988)); Maryland (Kassama v Magat 792 A 2d 1102 (2002)); Massachusetts (Viccaro 551 NE 2d 8 (1990)); Michigan (Proffitt v Bartolo 412 NW 2d 232 (1987)); Nevada (Greco v United States 893 P 2d 345 (1995)); New Hampshire (Smith v Cote 513 A 2d 341 (1986)); New York (Becker v Schwartz 386 NE 2d 807 (1978)); North Carolina (Azzolino v Dingfelder 337 SE 2d 528 (1985)); Ohio (Hester 733 NE 2d 1161 (2000)); Pennsylvania (Speck v Finegold 439 A 2d 110 (1981)); Texas (Nelson v Krusen 678 SW 2d 918 (1984)); West Virginia (James G v Caserta 332 SE 2d 872 (1985)); Wisconsin (Dumer v St Michael's Hospital 233 NW 2d 372 (1975)). 

    [103]Dumer 233 NW 2d 372 (1975); Strohmaier v Associates in Obstetrics & Gynecology PC 332 NW 2d 432 (1982); Blake 698 P 2d 315 (1984); Smith 513 A 2d 341 (1986); Walker 790 P 2d 735 (1990).

    [104]Becker 386 NE 2d 807 (1978); Berman 404 A 2d 8 (1979); Phillips v United States 508 F Supp 537 (1980); James G 332 SE 2d 872 (1985); Azzolino 337 SE 2d 528 (1985); Garrison 581 A 2d 288 (1989); Atlanta Obstetrics 398 SE 2d 557 (1990).

    [105]Nelson 678 SW 2d 918 (1984).

    [106]Pitre 530 So 2d 1151 (1988).

    [107]Siemieniec v Lutheran General Hospital 512 NE 2d 691 (1987).

    [108]Lininger 764 P 2d 1202 (1988).

    [109]Speck 439 A 2d 110 (1981); Ellis v Sherman 515 A 2d 1327 (1986).

    [110]Hester 733 NE 2d 1161 (2000).

59. Despite this weight of decisional authority, wrongful life actions have been upheld in the United States on a number of occasions[111].  The first such decision was Curlender v Bio-Science Laboratories[112]. The plaintiff sued a genetic testing laboratory.  Before she was born, her parents had retained the services of the laboratory to determine whether they were carriers of Tay-Sachs disease.  That disease is an ultimately fatal degenerative neurological disorder.  The plaintiff alleged that the test was negligently performed with the result that her parents erroneously believed that they were not carriers of the causative gene.  The plaintiff was born with Tay-Sachs disease.  It was estimated that the plaintiff would only live to the age of four.  She required substantial and expensive care. 

    [111]There are also instances where courts have refused motions to strike out wrongful life actions:  see, eg, Ahsan v Olsen 4 Conn L Rptr 282 (1991); Quinn v Blau 21 Conn L Rptr 126 (1997).

    [112]165 Cal Rptr 477 (1980) (CA).

60. Jefferson PJ (with whom Lillie and Rimerman JJ agreed) considered that the essential question was whether the birth of the plaintiff, in her disabled condition, was an "injury" cognisable at law as a civil wrong.  Holding that it was, his Honour emphasised the need to focus on the plaintiff in her present condition rather than on metaphysical and theological concerns.  He stated[113]:

    "The reality of the 'wrongful-life' concept is that such a plaintiff both exists and suffers, due to the negligence of others.  It is neither necessary nor just to retreat into meditation on the mysteries of life.  We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all."

    Jefferson PJ concluded that damages were recoverable for pain and suffering which the plaintiff would endure whilst she lived as well as any pecuniary loss resulting from her disabilities[114]. 

    [113]165 Cal Rptr 477 at 488 (1980) (emphasis in original).

    [114]165 Cal Rptr 477 at 489-490 (1980).

61. Curlender was overruled, in part, by the Supreme Court of California in Turpin v Sortini[115].  That was a wrongful life action arising out of hereditary deafness.  The Court held that general damages could not be awarded, principally on the basis that they were impossible to assess because of the need to compare existence with non-existence[116].  However, a majority of that Court affirmed Curlender in so far as it held that special damages were available in a wrongful life action on the basis that such damages are "both certain and readily measurable"[117].  The decision in Turpin has been followed by the Supreme Courts of New Jersey[118] and Washington[119]. 

    [115]182 Cal Rptr 337 (1982).

    [116]182 Cal Rptr 337 at 346-347 (1982).  Contra at 349.

    [117]182 Cal Rptr 337 at 348 (1982).

    [118]Procanik v Cillo 478 A 2d 755 (1984).

    [119]Harbeson v Parke-Davis Inc 656 P 2d 483 (1983).

    The duty of care issue

62. Deciding the existence of a duty:  In this appeal, the first issue of law is whether the respondent owed the appellant a relevant duty of care.  In Australia, there is no settled methodology or universal test for determining the existence of a duty of care[120] such as is provided in most common law countries by the Caparo test[121].  The inability of this Court to agree on a principle of general application is unfortunate[122].  "[C]onfusion approaching chaos has reigned."[123]  This is evident in decisions such as Northern Sandblasting Pty Ltd v Harris[124], Perre v Apand Pty Ltd[125], Crimmins v Stevedoring Industry Finance Committee[126] and Graham Barclay Oysters Pty Ltd v Ryan[127].

    [120]Sullivan v Moody (2001) 207 CLR 562 at 578-579 [48]; McHugh, "Introduction: Sydney Law Review Torts Special Issue", (2005) 27 Sydney Law Review 385 at 389-390.

    [121]Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-618, disapproved in Sullivan (2001) 207 CLR 562 at 579 [49] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

    [122]See, eg, Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215-216 [88]-[92]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 616-617 [211]; Woolcock (2004) 216 CLR 515 at 538 [48].

    [123]Woolcock (2004) 216 CLR 515 at 536 [45] per McHugh J. See also Perre (1999) 198 CLR 180 at 262-263 [230], 286 [288].

    [124](1997) 188 CLR 313.

    [125](1999) 198 CLR 180.

    [126](1999) 200 CLR 1.

    [127](2002) 211 CLR 540.

63. However, in practice, the absence of an agreed legal formula has not caused difficulty for the overwhelming majority of tort actions.  Most tort actions fall within a recognised duty of care category.  Of the actions that fall outside, or lie on the boundary of, an established duty category, the test of reasonable foreseeability will ordinarily provide guidance in determining whether a duty is in fact owed.  This is not because satisfying this test is sufficient to establish a duty of care.  This Court has repeatedly affirmed that this is not the case[128].  Rather, it is because, in so far as physical injuries arising from a positive act are concerned, it is accepted that if the reasonable foreseeability test is satisfied, the elusive additional component of a duty of care will generally exist[129]. 

    [128]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 268 [35]; Sullivan (2001) 207 CLR 562 at 573 [25], 576 [42], 583 [64]; Graham Barclay (2002) 211 CLR 540 at 555 [9], 624 [234] and [236], 664-665 [323]; Tame v New South Wales (2002) 211 CLR 317 at 331 [12], 339 [46], 355 [103], 401 [249], 428 [330].

    [129]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44; Jaensch v Coffey (1984) 155 CLR 549 at 581-582; Hawkins v Clayton (1988) 164 CLR 539 at 576; Neindorf v Junkovic (2005) 80 ALJR 341 at 354 [56]; 222 ALR 631 at 645-646.

64. Furthermore, instruction on the duty issue can be secured from several "salient features"[130] that have been identified as potentially relevant to the existence of a duty.  In Sullivan v Moody[131] three particular considerations were identified which will often point against the existence of a duty.  These were (1) that finding a duty of care would cut across or undermine other legal rules[132]; (2) that the duty asserted would be incompatible with another duty[133]; and (3) that to recognise a duty would expose the defendant to indeterminate liability[134]. 

    [130]Perre (1999) 198 CLR 180 at 253 [198].

    [131](2001) 207 CLR 562.

    [132](2001) 207 CLR 562 at 580-581 [53]-[54].

    [133](2001) 207 CLR 562 at 581-582 [55]-[60].

    [134](2001) 207 CLR 562 at 582-583 [61]-[63].

65. Elsewhere, factors capable of supporting a duty of care have been identified.  These include (1) vulnerability on the part of the plaintiff[135]; (2) special control[136]; or (3) knowledge[137] possessed by the defendant about the circumstances that gave rise to the damage suffered by the plaintiff. 

    [135]See, eg, Perre (1999) 198 CLR 180 at 194-195 [11]-[13], 202 [41]-[42], 204 [50], 225-226 [118]-[119], 236 [149]-[151], 259-260 [215]-[217], 290 [298], 328 [416]; Graham Barclay (2002) 211 CLR 540 at 577 [84], 597 [149], 664 [321]; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 at 493 [85], 495 [92]. See Stapleton, "The golden thread at the heart of tort law: protection of the vulnerable", (2003) 24 Australian Bar Review 135 at 141-149.

    [136]See, eg, Perre (1999) 198 CLR 180 at 201 [37]-[38], 326 [408]-[409]; Graham Barclay (2002) 211 CLR 540 at 558 [20], 577 [83]-[84], 579-580 [90]-[91], 597-599 [149]-[152], 630-631 [248]-[250], 664 [321].

    [137]See, eg, Graham Barclay (2002) 211 CLR 540 at 577 [84], 630 [248]; Woolcock (2004) 216 CLR 515 at 547 [74], 577 [174].

66. An established duty category exists:  Originally, the common law accepted a principle that, because legal personality arises at birth, duties cannot be owed to a person before that person is born[138].  However, it is now established that health care providers owe a duty to an unborn child to take reasonable care to avoid conduct which might foreseeably cause pre-natal injury.  Such a duty has been held to exist even before conception[139].  Once the child is born, the damage accrues in law and the child is able to maintain an action for damages.  Unless some disqualifying consideration operates, the present case falls within the duty owed by persons such as the respondent to take reasonable care to prevent pre-natal injuries to a person such as the appellant. 

    [138]See, eg, Watt v Rama [1972] VR 353.

    [139]X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26.

67. In the Court of Appeal, Ipp JA, whose reasons were supported in this Court by the respondent, considered that the interest asserted by the appellant was distinguishable from that of an unborn child in respect of pre-natal injuries.  His Honour gave the following reasons for adopting this distinction[140]:

    "The [appellant is] required to assert, as part of [her] cause of action, that, as a matter of causation, had the [respondent] not been negligent, [she] would not be alive in [her] disabled condition.  But no such allegation forms part of the cause of action of a plaintiff suing for damages for injuries caused to the foetus in utero."

    Ipp JA also said[141]:

    "There is a further significant distinction.  In order to prove that, but for the [respondent's] negligence, [she] would not have been born, the [appellant] would have to prove that [her mother] would have terminated [her] pregnancy lawfully.  ...  This ... forms no part of the claim for damages by a child for injuries caused to the foetus in utero."

    [140] Harriton (2004) 59 NSWLR 694 at 742 [302].

    [141]Harriton (2004) 59 NSWLR 694 at 742 [304].

68. The appellant does indeed need to prove the matters to which Ipp JA refers in order to succeed in her action.  However, these are not matters directly relevant to the issue of the existence of a duty of care, but to the issue of causation[142].  Needless to say, the question of causation cannot be entirely quarantined from the duty of care element.  None of the definitional elements of the tort of negligence stand alone[143].  This is particularly so in relation to the duty of care, which is intimately bound to the other elements constituting the integrated tort of negligence.  Thus, it is relevant, in deciding whether a duty of care exists, to ask (among other things) how the postulated duty might be discharged[144] and the type of damage to which it relates[145].  But this does not alter the fact that it is a mistake to fragment duty categories in an artificial fashion. 

    [142]See Harriton (2004) 59 NSWLR 694 at 716 [125]-[126] per Mason P.

    [143]Neindorf (2005) 80 ALJR 341 at 352 [50]; 222 ALR 631 at 644.

    [144]See, eg, Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 [122]. See also Fleming, The Law of Torts, 9th ed (1998) at 117-118.

    [145]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487; Sullivan (2001) 207 CLR 562 at 579 [50].

69. Primarily, the duty of care issue is concerned with the directness of the association between the injurer and the injured.  In Donoghue v Stevenson[146], Lord Atkin stated that "there must be, and is, some general conception of relations giving rise to a duty of care".  In Neindorf v Junkovic[147], I proffered three reasons why enquiries relating to the duty of care should, as Lord Atkin indicated, be made at a relatively general level of abstraction.  These were that (1) the duty concept is already overworked and unduly complex; (2) particularising the duty of care to too great a level of specificity carries with it the risk of eliding questions of law and fact; and (3) making specific enquiries at the duty stage subverts the traditional structure of the cause of action in negligence, which is designed to pose increasingly specific questions as each successive element falls for decision. 

    [146][1932] AC 562 at 580 (emphasis added).

    [147](2005) 80 ALJR 341 at 352-354 [49]-[56]; 222 ALR 631 at 643-646. See also Jones v Bartlett (2000) 205 CLR 166 at 184-185 [57]; Vairy v Wyong Shire Council (2005) 80 ALJR 1 at 8-9 [25]-[27]; 221 ALR 711 at 718-719; Fleming, The Law of Torts, 9th ed (1998) at 117-118.

70. There are additional reasons supporting this approach.  Lifting considerations relating to the breach and damage elements into the duty element of the tort threatens the continued relevance of the duty of care in the negligence context.  For this reason, it is important to avoid unnecessarily conflating the different components of the cause of action.  Furthermore, defining the content of the duty of care to an excessive degree would diminish the precedential value of decisions on duty.  Decisions that cast duties of care in narrow terms are of limited assistance to litigants and to judges in future cases.  As a matter of practicality, it is desirable that determinations on points of law be framed with a sufficient degree of generality to make them useful in later cases where the facts are necessarily different but where the concepts will necessarily be the same[148]. 

    [148]Fuller, The Morality of Law, rev ed (1969) at 46-49.

71. The duty owed by health care providers to take reasonable care to avoid causing pre-natal injury to a foetus is sufficiently broad to impose a duty of care on the respondent in this case.  In order to discharge that duty, the respondent did not need to engage in conduct that was significantly different from conduct that would ordinarily be involved in a medical practitioner's fulfilling the pre-natal injury category of duty.  Furthermore, the damage involved immediate, discernible physical damage, which the duty relating to pre-natal injuries ordinarily encompasses.  This is not a case involving pure economic loss or another type of loss which is distinguishable from physical damage that could take this case outside the ambit of the pre-natal injury duty of care. 

72. Subject to what follows, therefore, the appellant's case on the duty issue is an unremarkable one in which she sues a medical practitioner for failure to observe proper standards of care when she was clearly within his contemplation as a foetus, in utero of a patient seeking his advice and care.  She was thus in the standard duty relationship for such a case.  She evidenced the important "salient feature" of vulnerability to harm (in the event great harm), should the respondent not observe proper standards of case with respect to her.  Denying the existence of a duty amounts, in effect, to the provision of an exceptional immunity to health care providers.  The common law resists such an immunity[149].

    [149]Lanphier v Phipos (1838) 8 Car & P 475 at 479 [173 ER 581 at 583].

73. Conflicting duties:It is suggested that a significant impediment to recognising a duty of care in this case is that it would potentially conflict with the duty the respondent owed to the appellant's mother[150].  The fact that a putative duty may conflict with an existing duty has been identified as a reason for not recognising the first-mentioned duty[151].  However, while this concern may initially appear persuasive, closer analysis reveals that it is impossible to justify.  There are at least three reasons why this is so.

    [150]See reasons of Crennan J at [248]-[250].

    [151]See above these reasons at [64]. See also Winnipeg Child and Family Services (Northwest Area) v G (DF) [1997] 3 SCR 925 at 947 [34], 959-960 [56].

74. First, it is strongly arguable that the fact that a defendant is under conflicting duties of care is a consideration more satisfactorily accommodated under the rubric of breach than duty[152].  For the reasons which I explained above, the structure of the tort of negligence is threatened by injecting the duty element with too much content[153].  This Court has recognised that the existence of conflicting obligations is a relevant consideration in determining whether a defendant lived up to the required standard of care[154].  In the event that a defendant's legal duties are divided between a mother and the foetus, this will bear upon whether there has been a breach of either duty.  A mere potential for conflict will not prevent a duty of care arising.

    [152]See Buckley, The Law of Negligence, 4th ed (2005) at 18. 

    [153]See above these reasons at [69]-[70]. 

    [154]See, eg, Giannarelli v Wraith (1988) 165 CLR 543 at 572; Manley v Alexander (2005) 80 ALJR 413 at 415 [11], 419-420 [43]-[44]; 223 ALR 228 at 230-231, 236-237.

75. Secondly, this argument would logically apply to exclude the duty owed by medical practitioners to unborn children in respect of pre-natal injuries.  Such a duty has the same potential in every case to conflict with the duty owed to the mother.  For example, a medical practitioner may decide to withhold treatment from a foetus on the basis that such treatment, while necessary to address a risk of injury to the foetus, would be harmful or conceivably harmful to the pregnant woman.  However, it is not suggested that the duty of care concerning pre-natal injuries should be abolished.

76. Thirdly, invoking suggested incompatibility between duties as a reason for refusing to recognise a new duty fails to explain why the suggested duty should yield to an existing duty.  Reasons may exist in a particular case for favouring the propounded duty to the child over that already in existence to the mother.

77. Conclusion:In the result, the respondent owed the appellant a relevant duty of care.

    The damage issue

78. Unquantifiability of damage?  The principal argument of the respondent for rejecting this appeal was that it was impossible to quantify the appellant's loss according to the compensatory principle.  This, so it was said, was because one cannot compare existence with non-existence because no one has any experience with non-existence.  In the words of the philosopher Ludwig Wittgenstein, "[d]eath is not an event of life.  Death is not lived through."[155]  Accordingly, the respondent submitted that because damage is the gist of the tort of negligence[156], the appellant's action must fail.

    [155]Tractatus Logico-Philosophicus, (1958) at 185 [6.43II]. 

    [156]Cox Bros (Australia) Ltd v Commissioner of Waterworks (1933) 50 CLR 108 at 119; John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241-242; Tame (2002) 211 CLR 317 at 388 [208].

79. The cogency of this argument has divided legal scholars.  It appealed to Professor Harold Luntz, who stated in his influential text on damages that[157]:

    "Conceptually [wrongful life] actions are not reconcilable with tort principles, since in accordance with such principles they involve a comparison between being born with a handicap and non-existence, a comparison which it is impossible to make in money terms."

    [157]Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) at 641 [11.8.8].  See also Luntz and Hambly, Torts:  Cases and Commentary, 5th ed (2002) at 433 [7.2.19].

80. On the other hand, Professor John Fleming found this argument unconvincing[158]: 

    "Objection [to wrongful life actions] is made on the supposedly value-free ground that it is legally and logically impossible to assess damages on a comparison between non-existence and life even in a flawed condition.  Yet such comparison is not required with respect to added (medical) expenses, which are moreover recognised in parental claims.  Also symbolic awards are regularly made for pain and suffering, even for loss of expectation of life."

    [158]Fleming, The Law of Torts, 9th ed (1998) at 184-185 (footnote omitted).

81. The compensatory principle:  The principle governing the assessment of compensatory damages in tort, invoked by the respondent, was stated by Lord Blackburn in Livingstone v Rawyards Coal Co in the following terms[159]:

    "[W]here any injury is to be compensated by damages, in settling the sum of money to be given for ... damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation".

    [159](1880) 5 App Cas 25 at 39.

82. This principle has been endorsed by this Court on many occasions[160].  However, it is subject to numerous qualifications, three of which are relevant to this appeal.  First, assessing damages is always a practical exercise in approximation[161].  There can never be an exact equivalence between a personal injury and money.  Obviously, a court cannot restore the appellant to her pre-tort position by way of an award of damages any more than it can restore plaintiffs in everyday personal injury cases to their pre-tort position.

    [160]See, eg, Registrar of Titles v Spencer (1909) 9 CLR 641 at 645; Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191; Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 at 646; Todorovic v Waller (1981) 150 CLR 402 at 412; Johnson v Perez (1988) 166 CLR 351 at 367, 371; Haines v Bendall (1991) 172 CLR 60 at 63; Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 54.

    [161]Cattanach (2003) 215 CLR 1 at 56 [144].

83. Secondly, notwithstanding the compensatory principle, the courts have been willing to assign monetary values to many intangible injuries and nebulous losses.  Thus, Fleming pointed to examples in the personal injury context, namely, pain and suffering and loss of expectation of life[162].  Outside the personal injury context lie many other examples including injury to intangibles such as reputation and deprivation of liberty[163].  Merely because the damage is imperfectly translated into monetary terms will not necessarily preclude a court from awarding compensation in respect of that damage.  It is a mistake to think otherwise.

    [162]Regarding damages for a loss of expectation of life see especially Skelton v Collins (1966) 115 CLR 94 at 98.

    [163]Cf Ruddock v Taylor (2005) 79 ALJR 1534; 221 ALR 32.

84. Thirdly, it has long been established that difficulties of quantification do not preclude relief where it is accepted that the plaintiff has suffered actionable damage[164].  A judge faced with a paucity of evidence must simply do the best that he or she can to assess the extent of the plaintiff's loss.  So much is clear law[165].  There is no reason to conclude that it is otherwise in a wrongful life case. 

    [164]Fink v Fink (1946) 74 CLR 127 at 143; Story Parchment Co v Paterson Parchment Paper Co 282 US 555 at 563 (1931).

    [165]Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) at 101-102 [1.96].

85. Application of the compensatory principle:  It was not disputed by the appellant that the compensatory principle applies to this case.  The appellant did not submit that this Court should fashion a new principle in order to do justice to her case, such as by comparing the appellant with a hypothetical "normal" person[166].  The question thus becomes whether the compensatory principle, and the necessity for the appellant to postulate that careful conduct on the part of the respondent would have averted her life of suffering, denies her a legal remedy for the accepted lack of care and the profound (and unquestioned) damage the appellant suffers and the costs she incurs every day of her life.  The respondent urged the logic of his argument.  However, as Justice Oliver Wendell Holmes famously observed, the life of legal systems derived from the common law of England has not been fashioned by logic alone[167].  It is the product of experience, judgment and opinion offered by the judges[168].

    [166]Cf Waller [2006] HCA 16 at [39].

    [167]Holmes, The Common Law, (1881) at 1.

    [168]CSR Ltd v Eddy (2005) 80 ALJR 59 at 83 [91]; 222 ALR 1 at 29. Cf Scott v Davis (2000) 204 CLR 333 at 373 [121].

86. The problem in the present case is, in large part, an outcome of new technology that permits genetic and other tests to identify grave foetal defects in utero and medical and social changes that permit abortions to occur in some such cases that once would have been impossible, unprofessional or even criminal.  To apply logic alone would be to defy the wisdom of the law in responding to a novel problem.  It is necessary to draw on past examples expressed in very different circumstances.  But it is also necessary to adapt those principles to the circumstances of the present case in the present time[169].

    [169]CSR (2005) 80 ALJR 59 at 83-84 [95]; 222 ALR 1 at 30.

87. Special damages for needs created:  It is important to observe that the "impossible comparison" argument, as Fleming pointed out[170], falls away entirely in so far as special damages are concerned[171].  This includes damages under the principle in Griffiths v Kerkemeyer[172].  Because a plaintiff in a wrongful life action would not have any economic needs had the defendant exercised reasonable care, a loss in this regard is directly caused by the defendant's negligent acts and omissions.  In this respect, at least, the assessment of the appellant's damages presents no unusual or peculiar problem whatsoever.  Courts in some jurisdictions in the United States have acknowledged this fact and awarded special damages in wrongful life actions whilst denying general damages[173]. 

    [170]See above these reasons at [80].

    [171]Cf Pace, "The Treatment of Injury in Wrongful Life Claims", (1986) 20 Columbia Journal of Law and Social Problems 145 at 156-158.

    [172](1977) 139 CLR 161. See CSR (2005) 80 ALJR 59 at 71 [39], 82-83 [90], 84-85 [100], 87 [111]; 222 ALR 1 at 13, 28, 31, 34.

    [173]See above these reasons at [61].

88. This approach has been criticised on the basis that it would be incongruous to award only special damages.  For instance, in Turpin[174], in the Supreme Court of California, Mosk J, who would have awarded both general and special damages, reasoned that an "order is internally inconsistent which permits a child to recover special damages for a so-called wrongful life action, but denies all general damages for the very same tort"[175].  In Procanik v Cillo, Schreiber J, who would have rejected wrongful life actions in toto, stated that the "position that the child may recover special damages despite the failure of his underlying theory of wrongful life violates the moral code underlying our system of justice from which the fundamental principles of tort law are derived"[176].

    [174]See above these reasons at [61].

    [175]182 Cal Rptr 337 at 349 (1982).

    [176]478 A 2d 755 at 772 (1984).

89. A variant of this criticism is stated by the Court of Appeals of Michigan in Strohmaier v Associates in Obstetrics & Gynecology PC[177]:  

    "The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist.  Plaintiff's damages, general and special, consist of the difference between his present life with defects and no life at all.  Plaintiff's economic liabilities, like the daily pain and suffering he must endure, are a part and parcel of his life with birth defects.  Therefore, this Court cannot view those economic losses apart from the incalculable benefit of life conferred upon plaintiff by the events antecedent to his birth.  Consequently, we conclude that plaintiff's special damages are as incognizable as any general damages for pain and suffering."

    [177]332 NW 2d 432 at 435 (1982).

90. Such criticisms are not convincing.  The reasoning in Strohmaier offends the principle that a collateral benefit under one head of damage, enjoyed as a result of the defendant's tort, cannot be applied to offset, still less to destroy, a separate head[178].  Furthermore, it would be a curious result if special damages were denied for the needs created because of difficulties arising in the assessment of general damages when special damages will normally constitute the greater part of the damages claimed in a wrongful life action. 

    [178]Cattanach (2003) 215 CLR 1 at 37-39 [84]-[91]; Restatement (Second) of Torts, §920, comment b.

91. A claim for damages under one head of damage can be denied while allowing the residue of a claim.  Consider, for instance, an action that includes a claim for damages in respect of a diminution of earning capacity following negligently inflicted personal injury.  If that lost capacity would have been applied to derive earnings in contravention of the criminal law, a claim for damages in respect of that loss may be denied[179].  Yet damages may be awarded under other heads. 

    [179]Meadows v Ferguson [1961] VR 594; Burns v Edman [1970] 2 QB 541; Lee v McClellan (1995) 127 FLR 383.

92. In short, criticisms of awarding special damages while denying general damages buy into a specious "all or nothing" mentality.  I know of no other situation where a claim for damages is denied in totality, regardless of the fact that quantifiable damage has been sustained under certain heads, merely because objections exist to awarding damages under another head.  Appealing to "the moral code underlying our system of justice"[180] in explanation for so doing hardly furnishes a compelling reason for such an approach.

    [180]Procanik 478 A 2d 755 at 772 (1984).

93. It follows that by ordinary principles, at least special damages are recoverable in a case such as the present.  There is no difficulty in the computation of such damage.  In my view this application of basic principles of law discloses starkly that the impediment to recovery is founded in policy considerations, not law.

94. But are general damages recoverable in accordance with the compensatory principle?

95. Comparing existence and non-existence:  The proposition that it is impossible to value non-existence is undermined by the fact that, for some time, the courts have been comparing existence with non-existence in other legal settings.  Thus, courts have declared lawful the withdrawal of life-sustaining
    

    [181]See, eg, In re J (A Minor) (Wardship:  Medical Treatment) [1991] Fam 33.

    [182]See, eg, Re BWV; Ex parte Gardner (2003) 7 VR 487; Re B (adult:  refusal of medical treatment) [2002] 2 All ER 449.

    [183]See, eg, Airedale NHS Trust v Bland [1993] AC 789.

    [184]In re A (Children) [2001] Fam 147.

    [185]See, eg, Blake 698 P 2d 315 at 322 (1984).

    [186]Teff, "The Action for 'Wrongful Life' in England and the United States", (1985) 34 International and Comparative Law Quarterly 423 at 433 (emphasis in original).  See also Goldberg v Ruskin 499 NE 2d 406 at 411 (1986). 

    medical treatment from severely disabled newborns[181] and adults[182] and from the terminally ill[183].  The English Court of Appeal authorised separation surgery on conjoined twins in order to preserve the life of one twin, although doing so would result in the death of the other[184].  Such cases are distinguishable from the present.  Unlike the case at hand, they are not concerned with assigning a monetary figure to the difference between existence and non-existence.  However, one cannot escape the fact that they entail a judicial comparison between existence and non-existence.  Furthermore, some courts which have denied wrongful life actions have done so not because the damage cannot be quantified but because they consider that existence will always be preferable to non-existence[185].  As Professor Harvey Teff points out, "[p]aradoxically, this very premise logically entails the measurability in principle of non-existence"[186].

96. Guidance from another context:  The appellant has unarguably suffered, and continues to suffer, significant pain and discomfort which she would not have had to endure had the respondent acted with reasonable care.  It would be wrong to deny compensation where resulting damage has occurred merely because logical problems purportedly render that damage insusceptible to precise or easy quantification.  As Pollock J stated in Procanik[187], reflecting the observations of Holmes J[188] already mentioned: 

    "Law is more than an exercise in logic, and logical analysis, although essential to a system of ordered justice, should not become an instrument of injustice.  Whatever logic inheres in permitting parents to recover for the cost of extraordinary medical care incurred by a birth-defective child, but in denying the child's own right to recover those expenses, must yield to the injustice of that result."[189]

    [187]478 A 2d 755 at 762 (1984).  See also at 765, 771.

    [188]See above these reasons at [85].

    [189]See also Harriton (2004) 59 NSWLR 694 at 719-720 [149]; Berman 404 A 2d 8 at 12 (1979); Curlender 165 Cal Rptr 477 at 488 (1980); Goldberg 499 NE 2d 406 at 410-411 (1986).

97. The pitfalls of adopting an inflexible approach on this issue can be seen from another legal context where a supposedly impossible comparison was initially invoked to justify acceptance of a wrong without a remedy.  Several cases in the United Kingdom raised the question whether a pregnant woman, who was dismissed from her employment by reason of her becoming pregnant, was entitled to relief under the Sex Discrimination Act 1975 (UK) ("the SDA").  The statutory test for unlawful discrimination required a comparison of the claimant's treatment with the treatment which an employee of the other sex would have received in similar circumstances[190]. 

    [190]SDA, s 1(1).

98. In Turley v Allders Department Stores Ltd[191] Bristow J, applying the statutory formula, held that claims for relief under the SDA by women who had been dismissed from their employment, allegedly on the grounds of their becoming pregnant, must fail because the comparison contemplated by the SDA was impossible because there is no masculine equivalent of a pregnant woman.  Bristow J stated[192]:

    "In order to see if [the applicant] has been treated less favourably than a man the [SDA requires one to] compare like with like, and you cannot.  When she is pregnant a woman is no longer just a woman.  She is a woman, as the Authorised Version of the Bible accurately puts it, with child, and there is no masculine equivalent."

    [191][1980] ICR 66.

    [192][1980] ICR 66 at 70.

99. The issue subsequently arose in Hayes v Malleable Working Men's Club and Institute[193].  In that case, Waite J made the following remarks about the decision in Turley[194]:

    "The logic appears flawless.  Sex discrimination consists (according to its statutory definition) of treatment of a member of one sex less favourable than the treatment given to a member of the other sex.  If you dismiss a woman on the ground of her pregnancy, no one can say that you have treated her less favourably than you would treat a man, because nature has ensured that no man could ever be dismissed upon the same ground."

    [193][1985] ICR 703.

    [194][1985] ICR 703 at 705.

100. Notwithstanding these concessions, Waite J declined to follow Turley on the ground that, on his reading of the SDA, a strict comparison was not required.  His Lordship's approach was later confirmed by the English Court of Appeal in Webb v EMO Air Cargo (UK) Ltd[195].  In that case, Glidewell LJ stated that holding that the dismissal of a pregnant woman was not contrary to the SDA because of the impossibility of making a comparison "would be so lacking in fairness and in what I regard as the proper balance to be struck in the relations between employer and employee that we should only [accede to that argument] if we are compelled by the wording of the [SDA] to do so"[196].

     [195][1992] 2 All ER 43.

     [196][1992] 2 All ER 43 at 52.

247. A court is not able to infer from a mother's decision to terminate a pregnancy that her decision is in the best interests of the foetus which she is carrying.  The law does not require that considerations of the mother's physical and mental health, which may render an abortion lawful, should be co-incident with the interests of her foetus.

248. Equally, a mother with an ethical, moral or religious objection to abortion is entitled to continue her pregnancy despite risks identified by her doctor to her physical and mental health or despite being advised by her doctor that rubella may have affected the foetus she carries.In the context of wrongful birth claims, the decision of parents not to have even a lawful abortion has been respected by the law[400].  In commenting on wrongful birth claims, and parental decisions not to have an abortion, in Fleming, The Law of Torts[401], it is stated that "it is not unreasonable for a woman to decline an abortion".  Such decisions are bound up with individual freedom and autonomy.  The duty of care proposed to the foetus (when born) will be mediated through the mother.  The damage alleged will be contingent on the free will, free choice and autonomy of the mother.  These circumstances can be expected to make it difficult for a court to assume that a possible conflict between the interests of mother and child would be "exceptional"[402] and to complicate the task of a court in formulating normative standards of conduct against which breach of such a duty of care could be assessed.

     [400]Cattanach v Melchior (2003) 215 CLR 1 at 79-80 [220]-[222] per Hayne J; see also McFarlane v Tayside Health Board [2000] 2 AC 59 at 81 per Lord Steyn; and Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012.

     [401]9th ed (1998) at 185. 

     [402](2004) 59 NSWLR 694 at 714 [113] per Mason P.

249. It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the mother[403].  However, it must be mentioned that those duties are not determinative of the specific question here, namely whether the particular damage claimed in this case by the child engages a duty of care.  To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother so that she can terminate a pregnancy in the interest of the foetus in not being born, which may or may not be compatible with the same doctor's duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal principle[404].

     [403]Watt v Rama [1972] VR 353 at 360-361; X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26; Lynch v Lynch (1991) 25 NSWLR 411 at 416-417; R v King (2003) 59 NSWLR 472 at 486 [73]. See also Burton v Islington Health Authority [1993] QB 204.

     [404]Sullivan v Moody (2001) 207 CLR 562 at 581-582 [55]-[62].

250. A further consideration is that there would be no logical distinction to be made between a duty of care upon a doctor as proposed, and a correlative duty of care upon a mother or parents who decline to have an abortion and choose to continue a pregnancy despite being informed of the risk of disability to the child.  Such conduct would then be the intervening immediate cause of the damage claimed.  The appellant's answer to this difficulty was that the mother's current right to make a choice and to terminate the pregnancy lawfully or not could not be cut down by recognising the right of a child to sue in respect of a life with disability.  But this answer exposes rather than resolves the possible lack of coherence in principle occasioned by the appellant's claim.  The risk of a parent being sued by the child in these circumstances was recognised in the United Kingdom in McKay[405] and in California in Curlender v Bio‑Science Laboratories[406].  Further, the need to protect parents from such suits has been addressed both by the United Kingdom legislature[407] and by the Californian legislature[408]. 

     [405][1982] QB 1166 at 1188 per Ackner LJ.

     [406]165 Cal Rptr 477 (1980).

     [407]Congenital Disabilities (Civil Liability) Act 1976 (UK), s 1(1) excepts "the child's own mother" from such a liability.

     [408]Cal. Civ. Code §43.6(a):  "No cause of action arises against a parent of a child based upon the claim that the child should not have been conceived or, if conceived, should not have been allowed to have been born alive."

     Damage

251. Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty.  Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff's damage or loss caused by the negligent conduct, with the plaintiff's circumstances absent the negligent conduct.  In the Court of Appeal, Spigelman CJ recognised that in cases of this kind, to find damage which gives rise to a right to compensation it must be established that non‑existence is preferable to life with disabilities[409].  A right capable of being protected by the law of tort, to not exist (or to be aborted), must necessarily require the comparison which Spigelman CJ identified.  The appellant's counsel conceded correctly that it is the usual principles of tort liability which compel the appellant to contest her own existence. 

     [409](2004) 59 NSWLR 694 at 701 [24].

252. A comparison between a life with disabilities and non‑existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible.  Judges in a number of cases have recognised the impossibility of the comparison and in doing so references have been made to philosophers and theologians as persons better schooled than courts in apprehending the ideas of non‑being, nothingness and the afterlife[410]. 

     [410]Edwards v Blomeley [2002] NSWSC 460 at [75]; see also McKay v Essex Area Health Authority [1982] QB 1166 at 1189; Gleitman v Cosgrove 227 A 2d 689 at 692 (1967).

253. There is no present field of human learning or discourse, including philosophy and theology, which would allow a person experiential access to non‑existence, whether it is called pre‑existence or afterlife.  There is no practical possibility of a court (or jury) ever apprehending or evaluating, or receiving proof of, the actual loss or damage as claimed by the appellant.  It cannot be determined in what sense Alexia Harriton's life with disabilities represents a loss, deprivation or detriment compared with non‑existence.  Physical damage such as a broken leg is within the common experience of a trier of fact who then has no difficulty apprehending the loss, deprivation or detriment claimed.  With more complex physical damage, outside the common experience of a trier of fact, evidence can be led from medical experts to assist the trier of fact to apprehend the loss, deprivation or detriment by comparison with prior circumstances, which can also be the subject of evidence.  The same applies with loss or deprivation which is economic.  Imaginative access to non‑existence, not based on experience, or on a proved sub‑stratum of fact, cannot assist a court or jury in the forensic tasks necessary to determine a claim such as that of the appellant. 

254. The practical forensic difficulty is independent of arguments about the value (or sanctity) of human life and any repugnance evoked by the appellant's argument that her life with disabilities is actionable.  This objection to the cause of action is in no way affected or diminished by shifts in any absolute value given to human life (if such shifts have occurred), occasioned by liberalised abortion laws or other developments in the law in respect of lawful discontinuation of medical treatment where the welfare of a suffering person is the main consideration.  A duty of care cannot be stated in respect of damage which cannot be proved by persons alleging such a duty has been breached, and which cannot be apprehended by persons said to be subject to the duty, and which cannot be apprehended or evaluated by a court (or jury).

255. It was submitted for the appellant that if the majority's rejection of a cause of action in the Court of Appeal on this basis is a legal principle, it is a flawed legal principle or a legal principle wrongly applied because the law has shown itself regularly as capable of balancing a present life of suffering against a therapeutically accelerated death as evidenced in a number of cases in the parens patriae jurisdiction[411].  It was next contended that the "impossible comparison" argument was either an aspect, or a corollary, of the "sanctity of life" argument, which did not preclude recovery in Cattanach v Melchior[412]. 

     [411]In re J (A Minor) (Wardship:  Medical Treatment) [1991] Fam 33; In re T (A Minor) (Wardship:  Medical Treatment) [1997] 1 WLR 242; [1997] 1 All ER 906.

     [412](2003) 215 CLR 1.

256. The cases involving discontinuation of medical treatment have been conveniently collected by Spigelman CJ in the Court of Appeal[413].  Analogy to decisions in the parens patriae jurisdiction is not apt, chiefly because the wardship cases do not require a forensic establishment of damage by reference to non‑existence.  The comparisons generally called for (in a non‑tortious context) are between continuing medical treatment prolonging life and discontinuing medical treatment which may hasten death, always determined by reference to the best interests of the child or person unable to decide for themselves.  It is possible for a court to receive evidence allowing it to undertake a balancing exercise in respect of those two possible courses of action[414] before making a decision.  As accepted in In re J (A Minor) (Wardship:  Medical Treatment)[415], such comparisons involve matters of degree and lack the absolute quality of a comparison between a life with disability (or suffering) and death.  The analogy between this case and the wardship cases is also inapt because of the clear distinction between death accelerated by non‑intervention or the withholding of medical treatment and death by the intervention of lawful abortion, a difference recognised in In re J[416]. 

     [413](2004) 59 NSWLR 694 at 704 [45] citing Airedale NHS Trust v Bland [1993] AC 789; In re A (Children) (Conjoined Twins:  Surgical Separation) [2001] Fam 147; Re B (adult:  refusal of medical treatment) [2002] 2 All ER 449; Re BWV; Ex parte Gardner (2003) 7 VR 487.

     [414]In re J (A Minor) (Wardship:  Medical Treatment) [1991] Fam 33; In re T (A Minor) (Wardship:  Medical Treatment) [1997] 1 WLR 242; [1997] 1 All ER 906.

     [415][1991] Fam 33 at 44 per Lord Donaldson of Lymington MR.

     [416][1991] Fam 33 at 46 per Lord Donaldson of Lymington MR.

257. These considerations highlight the differences between claims for wrongful birth and wrongful life.  These differences show the latter cannot be considered incremental claims in relation to the former.  Damage was not in issue in Cattanach v Melchior[417].  The Court there was not considering whether the damage claimed was capable of being evaluated by a court.  Likewise in Watt v Rama[418] there was evidence of damage capable of being evaluated by the Court and the question was whether established principle could encompass that damage.  In the present case, the damage claimed cannot be the subject of evidence or forensic analysis.  This highlights the need to distinguish between considerations going to the existence of a duty of care and considerations going to breach, a distinction referred to by Gummow J in Vairy v Wyong Shire Council[419].  The Court in Cattanach v Melchior[420] was considering whether the law would require a doctor defendant to bear certain costs.  That question was resolved by reference to "general principles, based upon legal values"[421], and legal policy considerations, encompassing the corporate welfare of the community, coherence and fairness[422], a common law technique for dealing with novel claims[423].  Considering the question here by reference to that technique exposes many formidable obstacles to recognition of the appellant's claim.  Another problem is the difficulty of assessing damages, in respect of the damage, a topic to be discussed later in these reasons.  Not every claim for damage is actionable.  The principles of negligence are designed to set boundaries in respect of liability.  The analytical tools therefor, such as duty of care, causation, breach of duty, foreseeability and remoteness, all depend for their employment on damage capable of being apprehended and evaluated.  

     [417](2003) 215 CLR 1.

     [418][1972] VR 353.

     [419](2005) 80 ALJR 1 at 17-18 [70]-[73]; 221 ALR 711 at 730-731.

     [420](2003) 215 CLR 1.

     [421](2003) 215 CLR 1 at 8 [2] per Gleeson CJ.

     [422](2003) 215 CLR 1 at 32-35 [70]-[76] per McHugh and Gummow JJ, 52-53 [136]-[137] per Kirby J, 108-109 [301] per Callinan J.

     [423]Sullivan v Moody (2001) 207 CLR 562 at 579 [49], 580 [53].

     The value of life

258. There is nothing in the majority's rejection of the "blessing" argument in Cattanach v Melchior[424] or in their disinclination to bar a wrongful birth claim because of the law's recognition of broad underlying values of the importance of life[425], which prevents the additional observation in this case that it is odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities.

     [424](2003) 215 CLR 1 at 36 [79] per McHugh and Gummow JJ, 54-60 [141]-[153] per Kirby J; see also at 72-74 [195]-[198] per Hayne J.

     [425](2003) 215 CLR 1 at 35-36 [77]-[78] per McHugh and Gummow JJ, 55-56 [142]-[145] per Kirby J, 108-109 [301] per Callinan J.

259. In the eyes of the common law of Australia all human beings are valuable in, and to, our community, irrespective of any disability or perceived imperfection.  The premises upon which cases are conducted in the parens patriae jurisdiction, which have already been mentioned, do not contradict that proposition.   While Alexia Harriton's disabilities are described in the agreed statement of facts, her disabilities are only one dimension of her humanity.  It involves no denial of the particular pain and suffering of those with disabilities to note that while alive, between birth and death, human beings share biological needs, social needs and intellectual needs and every human life, within its circumstances and limitations, is characterised by an enigmatic and ever-changing mixture of pain and pleasure related to such needs. 

260. The Court knows very little about Alexia Harriton but it is possible for the Court to infer that Alexia Harriton is no different in this respect from fellow human beings, despite the fact that her grave disabilities include mental retardation.  A seriously disabled person can find life rewarding[426] and it was not contended to the contrary on behalf of the appellant.  It was not contended as a fact that Alexia Harriton cannot experience pleasure[427].  The Court was informed Alexia Harriton commanded the devotion of her parents. 

     [426]Inre J(A Minor) (Wardship:  Medical Treatment) [1991] Fam 33 at 46-47 per Lord Donaldson of Lymington MR.

     [427]Portsmouth Hospitals NHS Trust v Wyatt [2005] 1 WLR 3995 at 4001 [26] and 4011 [46]; see also Airedale NHS Trust v Bland [1993] AC 789 and In re a Ward of Court (withholding medical treatment) (No 1) [1996] 2 IR 73.

261. Arguments giving primacy to the value of Alexia Harriton's life, which are additional to and independent of the arguments based on the forensic impossibility of proving and apprehending the nature of the damage claimed, highlight the lack of certainty about the class of persons to whom the proposed duty is owed.  Is it only owed to persons whose disability is so severe they could be said to constitute a group for whom life is not worth living?  Other categories of established negligence, in which a duty of care exists, do not discriminate between those damaged by a breach of the duty on the basis of the severity or otherwise of the damage. 

262. A further consideration is that to recognise a cause of action at the suit of a person living a life with disabilities would occasion incompatibility with other areas of the law.  Such incompatibility is pervasive but can be illustrated by two examples.  Statutes advancing equality of treatment in our legal system prohibit differential treatment of the disabled, which may have as its wellspring, or be otherwise connected with, eugenic anxieties[428].  As was noted in the judgment of McHugh and Gummow JJ in Cattanach v Melchior[429], differential treatment of the worth of the lives of those with ill health or disabilities has been a mark of the societies and political regimes we least admire.  

     [428]See, for example, the Disability Discrimination Act 1992 (Cth); the Anti‑Discrimination Act 1977 (NSW); the Anti‑Discrimination Act 1998 (Tas); the Equal Opportunity Act 1995 (Vic); and the Discrimination Act 1991 (ACT).

     [429](2003) 215 CLR 1 at 35-36 [78].

263. To allow a disabled person to claim his or her own existence as actionable damage, is not only inconsistent with statutes prohibiting differential treatment of the disabled, but it is also incompatible with the law's sanction of those who wrongfully take a life.  No person guilty of manslaughter or murder is entitled to defend the accusation on the basis that the victim would have been better off, in any event, if he or she had never been born.  All human lives are valued equally by the law when imposing sentences on those convicted of wrongfully depriving another of life. 

     The compensatory principle

264. The fundamental principle governing the assessment of compensatory damages is well settled.  As stated in Husher v Husher[430]:

     "A person who is physically injured by the negligence of another may suffer damage in a number of ways.  As has long been established, the damages to be awarded to the victim are 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation'."

     Providing compensation if liability is established is the main function of tort law; compensation is "[t]he one principle that is absolutely firm, and which must control all else"[431]; if the principle cannot be applied the damage claimed cannot be actionable.

     [430](1999) 197 CLR 138 at 142-143 [6] per Gleeson CJ, Gummow, Kirby and Hayne JJ (footnote omitted).

     [431]Skelton v Collins (1966) 115 CLR 94 at 128 per Windeyer J.

265. Many examples demonstrating the principle were referred to in the Court of Appeal[432].  Whilst Mason P did not consider that the impossibility of a comparison between life with disability and non‑existence should bar the claim, he recognised the damages issues were "quite profound"[433].  It can be accepted that mere difficulty in the calculation of damages is not a bar to recognising a cause of action, especially when damages conventionally awarded in personal injuries can assist[434].  However, it is not possible on the facts of this case to apply the compensatory principle.  Alexia Harriton's condition before the alleged breach of duty of care by Dr P R Stephens was that she was a foetus affected by rubella.  The comparison which is called for on the agreed facts is a comparison between her life with disabilities and the state of non‑existence in which she would have been, absent the doctor's alleged carelessness in failing to advise her mother, which advice would have led her mother to obtain a lawful abortion.  It is not that the comparison is difficult or problematic.  It is impossible, for the reasons already explained. 

     [432](2004) 59 NSWLR 694 at 698-699 [3]-[8] per Spigelman CJ, 728-730 [215]-[230] per Ipp JA.

     [433](2004) 59 NSWLR 694 at 723 [169]; see also Edwards v Blomeley [2002] NSWSC 460 at [33]-[43] per Studdert J.

     [434]Rees v Darlington Memorial Hospital NHS Trust [2003] QB 20; see also Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

266. To posit that the necessary comparison can be achieved by comparing Alexia Harriton's "notional life without disabilities" with her actual "life with disabilities" (the comparator used in Zeitsov v Katz[435] and suggested by the appellant in the Waller cases) depends on a legal fiction.  So too does a comparison of her "life with disabilities" with the life of "someone otherwise comparable with her in all respects except for her suffering and her needs", the "fictional healthy person"[436].  In the United States, courts of the three states which have recognised recovery of special damages for a child/plaintiff's disabilities (California, New Jersey and Washington) have, on occasion, frankly acknowledged that the inherent problems arising out of the impossibility of comparing a life with disabilities with non‑existence and the related problem of assessing damages, have been put to one side for reasons of social or economic policy.  For example, in Curlender[437], the only case in the United States in which general damages were awarded, the Court said[438]:

     "The reality of the 'wrongful‑life' concept is that such plaintiff both exists and suffers, due to the negligence of others.  It is neither necessary nor just to retreat into meditation on the mysteries of life.  We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all."

     [435](1986) 40(2) PD 85.

     [436]Adopted also by the appellant in the Waller cases, in the alternative.

     [437]165 Cal Rptr 477 (1980).

     [438]165 Cal Rptr 477 at 488 (1980) per Jefferson PJ, with whom Lillie and Rimerman JJ agreed.

267. In Turpin v Sortini[439], overruling the result in Curlender[440] in disallowing the claim for general damages, but allowing the claim for special damages, the Court stated that it would be illogical and anomalous to permit only parents, not the child, to recover such costs.  It can be conceded this would be a forceful argument if the child's damage were the same.  It is not; it is profoundly different, as already explained.

     [439]182 Cal Rptr 337 (1982).

     [440]165 Cal Rptr 477 (1980).

268. After Turpin[441], in Procanik v Cillo (allowing special damages) the Court said[442]:

     "Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non‑life is preferable to an impaired life, but is predicated on the needs of the living.  We seek only to respond to the call of the living for help in bearing the burden of their affliction."

     [441]182 Cal Rptr 337 (1982).

     [442]478 A 2d 755 at 763 (1984) per Pollock J.

269. The common law is hostile to the creation of new legal fictions[443] and the use of legal fictions concealing unexpressed considerations of social policy has been deprecated[444].  Employment of either of the legal fictions proposed would have the effect of excepting the appellant from the need to come within well-settled and well-understood principles of general application to the tort of negligence.  Also, the heads of damages sought to be recovered reveal the conceptual difficulty of assessing damages in respect of the appellant's claim.  The appellant relies on conventional awards of damages in personal injury.  However, there cannot have been any damage to the appellant's earning capacity and none was claimed.  In respect of the appellant's special pain and disabilities caused by rubella, it was suggested that a comparison could be made in the light of the ordinary range of usual experience of pain and disabilities.  As to medical and care needs, on the actual comparator, nothing is recoverable. 

     [443]Scott v Davis (2000) 204 CLR 333 at 375-376 [128] per Gummow J.

     [444]Scott v Davis (2000) 204 CLR 333 at 421-422 [265] per Gummow J.

270. A life without special pain and disabilities was never possible for the appellant, even before any failures by Dr P R Stephens.  Approaching the task of assessing general and special damages, as suggested, has the effect of making Dr P R Stephens liable for the disabilities, which he did not cause.  The manifold difficulties in assessing damages in respect of the claim have been discussed conveniently and comprehensively by Ipp JA[445].  The analytical tool for measuring damages, the compensatory principle, depends for its utility and execution on proof of the actual damage suffered.

     [445](2004) 59 NSWLR 694 at 735-748 [254]-[350].

     Corrective justice

271. Finally, the appellant's submissions included a submission that "corrective justice" or "practical justice" would permit the appellant to recover despite the inherent difficulties her claim posed in the light of established principles.  The argument ran that the appellant is suffering, the suffering is causally linked to Dr P R Stephens's conduct and the suffering will go uncompensated if the cause of action is not recognised.  No‑one would deny that Alexia Harriton's circumstances are tragic.  She is entitled to look for support to both the state and her devoted parents. 

272. In confirming the rejection in Australia of the three-stage approach in Caparo Industries Plc v Dickman[446], which had the effect of adding questions of what was "fair, just and reasonable" to questions of duty of care and foreseeability of damage, the Court said in Sullivan v Moody[447]:

     "The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle.  The concept of policy, in this context, is often ill‑defined.  There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision‑making in individual cases."

     [446][1990] 2 AC 605 at 617-618.

     [447](2001) 207 CLR 562 at 579 [49] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

273. In Prosser and Keeton, On Torts[448], it is stated:

     "It is sometimes said that compensation for losses is the primary function of tort law and the primary factor influencing its development.  It is perhaps more accurate to describe the primary function as one of determining when compensation is to be required.  Courts leave a loss where it is unless they find good reason to shift it.  A recognized need for compensation is, however, a powerful factor influencing tort law.  Even though, like other factors, it is not alone decisive, it nevertheless lends weight and cogency to an argument for liability that is supported also by an array of other factors."

     [448]5th ed (1984) at 20 (footnote omitted).

274. Aristotelian notions of "corrective justice"[449], requiring somebody who has harmed another without justification to indemnify that other, and "distributive justice"[450], requiring calculation of benefits and losses and burdens in society, were referred to by Lord Steyn in McFarlane v Tayside Health Board[451], for the purpose of explicating the dynamic interrelationship between differing values, which values need to be considered when faced with a novel claim in negligence.  The Aristotelian backdrop to the notions of "corrective justice" and "distributive justice" was a community whose common good included laws, both reflecting the community's common values and enabling individual members to achieve reasonable objectives[452].  However, there remains a problem in Aristotle's analysis, relevant to this submission.  In emphasising "corrective justice", even as added to by his consideration of "distributive justice", Aristotle left unexplored the dependence of "correction" on the prior establishment of principles.  As Finnis[453] puts it, "'[c]orrection' and 'restitution' are notions parasitic on some prior determination of what is to count as a crime, a tort, a binding agreement, etc".  The values of fairness, coherence, and the corporate welfare of the community or community expectations as referred to in Cattanach v Melchior[454], are not considered singly, in isolation from each other or from relevant matters, particularly the doctrines and well‑established principles determining what constitutes negligence.   

     [449]Nicomachean Ethics V,2:1131a1; 3:1131b25; 4:1132b25.

     [450]Nicomachean Ethics V,3:1131b28; 3:1132b24, 32.

     [451][2000] 2 AC 59 at 82.

     [452]Nicomachean Ethics V,1:1129a27ff; 1129b15.

     [453]Finnis, Natural Law and Natural Rights, (1980) at 178-179.

     [454](2003) 215 CLR 1 at 29 [60], 30-31 [65], 32-33 [70], 33-35 [73]-[77] per McHugh and Gummow JJ, 55-56 [142]-[145] per Kirby J, 81-89 [224]-[242] per Hayne J, 108-109 [301] per Callinan J.

275. Putting aside doubt as to whether a need for "corrective justice" arises when a person is affected by rubella, for which no‑one is responsible, a need for "corrective justice" alone could never be determinative of a novel claim in negligence.  Moreover, to the extent that it may be a factor to be taken into account when considering a novel claim, a need for "corrective justice" is not a persuasive factor here.  The claim here is to extend a boundary in respect of liability for compensation when the liability is precluded by "an array of other factors"[455]. 

     [455] Prosser and Keeton, On Torts, 5th ed (1984) at 20.

     Conclusion

276. In the present case the damage claimed is not amenable to being determined by a court by the application of legal method.  A duty of care cannot be clearly stated in circumstances where the appellant can never prove (and the trier of fact can never apprehend) the actual damage claimed, the essential ingredient in the tort of negligence.  The appellant cannot come within the compensatory principle for measuring damages without some awkward, unconvincing and unworkable legal fiction.  To except the appellant from complying with well‑established and well‑known principles, integral to the body of doctrine concerning negligence applicable to all plaintiffs and defendants in actions in all other categories of negligence, would occasion serious incoherence in that body of doctrine and would ignore the limitations of legal method in respect of the appellant's claim. 

277. The other considerations, the autonomy of a mother in respect of any decision to terminate or continue a pregnancy, the problematic nature of the right or interest being asserted, the uncertainty about the class of persons to whom the proposed duty would be owed and the incompatibility of the cause of action with values expressed generally in the common law and statute all support the conclusion that the appellant does not have a cause of action against the respondent on the agreed facts.  For these reasons Cattanach v Melchior[456] represents the present boundary drawn in Australia by the common law (subject to retreat of the legislatures in New South Wales[457], South Australia[458] and Queensland[459]) in respect of claims of wrongful birth and wrongful life.  Life with disabilities, like life, is not actionable.

     [456](2003) 215 CLR 1.

     [457]Civil Liability Act 2002 (NSW), ss 70 and 71.

     [458]Civil Liability Act 1936 (SA), s 67.

     [459]Civil Liability Act 2003 (Q), ss 49A(2) and 49B(2).

278. The decision of the majority of the Court of Appeal should be upheld.  The appeal should be dismissed with costs.