ONGFUL LIFE

ONGFUL LIFE

Order Description
Below is a summary of WRONGFUL LIFE. With this in mind, should Australian Law recognise wrongful life as a compensable tort ? ie they can claim damages. Include in the discussion Do Normal Tort Law Principles Support Recovery of Damages in this type of case?
Include in the discussion what the rationale behind Torts Law ie REDRESSING WRONGS

Note: assessment of damages is governed by the compensatory principle. According to this principle, compensation must (as far as is possible) restore the plaintiff to the position in which he or she would have been absent the negligent conduct. In a wrongful life case, the plaintiff, would not have existed were it not for the negligence of a doctor for example, and thus courts have found that damages cannot be assessed without the creation of ‘some awkward, unconvincing and unworkable legal fiction.

Discuss including cases that are applicable and any overseas legislation that may assist. Ie the US with the case Turpin v Sortini where it was endorsed that child has a right to sue for wrongful life, but in the same decision, limited the child’s recovery to special damages. This rule implies that the child can recover objectively provable economic damages, but cannot recover general damages like subjective “pain and suffering”—that is, monetary compensation for the entire experience of having a disabled life versus having a healthy mind and/or body
Another US case Curlender v. Bio-Science Laboratories allowed damages for wrongful life. The California Court of Appeal allowed the wrongful life claims for the costs of Shauna’s care,” and punitive damages.

Australian Cases include:
Waller v Hoolahan (2006) 226 ALR 457
Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; (2006) 226 ALR 391; (2006) 80 ALJR 791 (9 May 2006)
Berman v Allan 404 A 2d (1979)

Referencing to be in line with Australian Guide to Legal Citation

Wrongful life occurs where an unplanned disabled child owes his very existence to medical negligence: had the negligence not occurred, the child would never have been born. The negligence may occur as for wrongful birth: negligent diagnosis or advice concerning sterilisation, pregnancy, disability or contraception; or negligent performance of sterilisation or abortion. Commonly, a doctor negligently fails to diagnose rubella, where diagnosis would have led to lawful termination: because the diagnosis is not made, a child is born with severe disabilities caused by the rubella. In other cases the disability is genetic. The common feature is that, had proper diagnosis, advice, sterilisation or abortion been given, the parents—who did not want a child, or at least not a disabled child—would have prevented or terminated the pregnancy, so the disabled child would never have been born. (Wrongful life thus contrasts with more straightforward cases where, but for the negligence, the child would have been born without disability.)
In a wrongful life action, the disabled child sues the negligent doctor in respect of the damage caused by the disability; this would generally include pain, suffering, and ‘disability costs’—the extra financial costs attributable to the disability, such as the cost of nursing care (these costs are ‘extra’ compared to the costs a non-disabled person would incur). The label ‘wrongful life’ is an entrenched and convenient shorthand, though it also misleads: the notion that a person’s life could be wrongful is counterintuitive and renders the plaintiff’s claim suspect from the outset. What is wrongful is the negligence, not the child’s life and it is precisely by focusing on the plaintiff’s life (as a whole), rather than on negligent causation of physical damage, that courts have been led to misapply ordinary principles and thus deny recovery.