Everyday Life and the Edges of Existence: Wrongs with No Name or the Wrong Name?

Journal of Professional Negligence, 26(1), 39-48, 2010

Posted: 10 Jul 2016

See all articles by Derek Morgan

Derek Morgan

Cardiff Law School (Deceased)

Ben White

Queensland University of Technology - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2010

Abstract

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

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

Keywords: Health law, Medical law, Medical negligence, Wrongful life

Suggested Citation

Morgan, Derek and White, Ben, Everyday Life and the Edges of Existence: Wrongs with No Name or the Wrong Name? (2010). Journal of Professional Negligence, 26(1), 39-48, 2010, Available at SSRN: https://ssrn.com/abstract=2806834

Derek Morgan

Cardiff Law School (Deceased)

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

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