Duty Of Care V. Harriton's Case
THE HIGH COURT’S DECISIONS
a. Duty of care
In Harriton’s case, she was Mrs Harriton’s decision alone as to whether or not to undergo an abortion, and elsewhere the law recognizes that where this is a lawful possibility this is a decision she may make in her own best interests and not necessarily those of the foetus. Then a recognized legal right of the mother may conflict with any posited ‘right’ of the unborn child, with the further complication that, should the mother decide to continue the pregnancy to term in the light of her full knowledge as to its condition, she then, it must follow, has caused the posited ‘damage’. If a doctor lies under a duty of care in this way it is difficult in principle to appreciate why a mother would not.
The …show more content…
Value of life
Whilst her Honour notes that it is not the case that the common law invariably regards the preservation of human life as paramount31, she opines 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. 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. A seriously disabled person can find life rewarding.’
The outcome of Harriton v Stephens is a clear one and it is undeniably in accord with the preponderance of authority elsewhere as well as statutory movements. However, it is relevant and worthwhile to consider the decision and the principles accepted by the court rather more broadly in relation to their social implications.
FOR WHAT LOSSES WILL THE LAW PROVIDE A …show more content…
Damage caused a prenatal physical injury which was the foreseeable result of a negligent act, should be able to obtain damages to compensate for that physical injury. That this is, indeed, the case is demonstrated by cases such as Watt v Rama [1972]. What, however, is the situation where the damage alleged is the actual birth? This will usually be a foreseeable consequence of the defendant’s negligence but is it the kind of damage for which the law will provide compensation? Can the creation of a life amount to a legal harm? In particular, in the context of wrongful life actions, can the creation of a disabled life constitute a legal harm? As illustrated above, wrongful birth and wrongful conception cases raise additional challenges for claimants in establishing both causation (that is the child’s birth would have been avoided) and the basis for quantification; however, if these hurdles are overcome, a substantial claim may be advanced for parents to meet the costs of their disabled child’s additional needs
a. Duty of care
In Harriton’s case, she was Mrs Harriton’s decision alone as to whether or not to undergo an abortion, and elsewhere the law recognizes that where this is a lawful possibility this is a decision she may make in her own best interests and not necessarily those of the foetus. Then a recognized legal right of the mother may conflict with any posited ‘right’ of the unborn child, with the further complication that, should the mother decide to continue the pregnancy to term in the light of her full knowledge as to its condition, she then, it must follow, has caused the posited ‘damage’. If a doctor lies under a duty of care in this way it is difficult in principle to appreciate why a mother would not.
The …show more content…
Value of life
Whilst her Honour notes that it is not the case that the common law invariably regards the preservation of human life as paramount31, she opines 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. 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. A seriously disabled person can find life rewarding.’
The outcome of Harriton v Stephens is a clear one and it is undeniably in accord with the preponderance of authority elsewhere as well as statutory movements. However, it is relevant and worthwhile to consider the decision and the principles accepted by the court rather more broadly in relation to their social implications.
FOR WHAT LOSSES WILL THE LAW PROVIDE A …show more content…
Damage caused a prenatal physical injury which was the foreseeable result of a negligent act, should be able to obtain damages to compensate for that physical injury. That this is, indeed, the case is demonstrated by cases such as Watt v Rama [1972]. What, however, is the situation where the damage alleged is the actual birth? This will usually be a foreseeable consequence of the defendant’s negligence but is it the kind of damage for which the law will provide compensation? Can the creation of a life amount to a legal harm? In particular, in the context of wrongful life actions, can the creation of a disabled life constitute a legal harm? As illustrated above, wrongful birth and wrongful conception cases raise additional challenges for claimants in establishing both causation (that is the child’s birth would have been avoided) and the basis for quantification; however, if these hurdles are overcome, a substantial claim may be advanced for parents to meet the costs of their disabled child’s additional needs