The question of whether Australian law should recognise wrongful life as a compensable tort is not an easy question to answer. Both sides need to be taken into account for a decision to be made; there are many arguments both for and against the recognition of wrongful life becoming a compensable tort. Wrongful life is a form of medical negligence and has been defined as ‘an action brought by or on behalf of a child complaining of negligent conduct before birth which results in its birth when had there been no negligence it would not have been born’.
Wrongful life must not be confused with wrongful irth, which is defined as ‘an action brought about by the parents of an initially unwanted or unintended child born as a consequence of negligence before birth’. Wrongful birth has been recognised as a compensable tort, whereas wrongful life has not. Although there has been much deliberation over recent years, there has been no recognition by the High Courtof wrongful life as a compensable tort.
There are many reasons for this lack of recognition, including policy issues, the issue of duty of care and who that duty was owed to, whether it was owed to the parents or to the child itself before it was born, and whether n fact there had been a breach of that duty if it did in fact exist. There will be arguments for both sides put forward throughout this essay, and a conclusion will be reached that supports the High Court’s decision.
Paragraph 1 Wrongful life should be recognised as a compensable tort in Australia. There are not many arguments put forward in support of wrongful life becoming a compensatable tort. In the cases of Harriton v Stephens  and Waller v James, Waller v Hoolahan  Kirby J was the dissenting Judgment that ruled that wrongful life was a valid cause of action and that damages should be awarded. This was on the basis that ‘the ordinary principles of negligence law sustain a decision in the appellants favour’.
Wrongful life should therefore be considered under the same construct as a normal negligence action, with the same points of causation, duty of care, damage and policy being considered as key elements to creating that action. Kirby J also suggested that ‘Denying the existence of wrongful life actions gives immunity to healthcare providers whose negligence results in a child who would not have otherwise existed, being born into a life of suffering’.
If recognising wrongful life as a ompensatable tort will allow healthcare providers to be treated at the same level as a normal person, then Kirby J raises an important issue that healthcare providers should not be given immunity when it comes to situations such as these. If the disability is caused by a negligent action on their behalf, as was the case in Harriton v Stephens where a failure to warn caused the disability, there cannot be immunity for the doctor involved.
This shows that there should be a recognition of wrongful life as a compensatable tort, as it should hold doctors accountable for their negligence in situations where it has caused a severe isability. It was suggested that the question that should be asked is what is the responsibility owed to people with disabilities and those that care for them, rather than what is the value of human life, this shows that wrongful life claims should be recognised on the basis of the suffering of the people with the disability, and those that care for them, not on the basis of the value of life.
There should be no discrimination between the value of one life and another, and the court should recognise the need of the people bringing the claims to be about how they are living their lives in the day to day situations. Therefore, ecognition should be given for the tort of wrongful life, as there is no need for the healthcare providers to be protected by the negligence laws and granted immunity for any damages they may have caused, and that it should not be based on the value of life but what responsibility is owed to the people with the disability and those who care for them.
Kirby J Notes that ‘courts are continually concerned with drawing the line between personal religious, moral and philosophical views’, and the position that the value of one life is more than another is part of that concern and should play a role in deciding whether cases of rongful life should be actionable. Wrongful life should therefore be recognised as a compensable tort in Australia.
Paragraph 2 – For Wrongful life should be recognised as a compensable tort in Australia as it does provide a platform for those who have been affected by the negligence of a healthcare practitioner to receive some kind of compensation for the suffering that they have endured as a result. It was suggested by David Hirsch in an ABC radio talk show program that ‘wrongful life cases recognise that disabled people should have the same rights as everyone else, and if they find themselves in a situation where they are uffering with a disability, which they would not be suffering but for the negligence, then why shouldn’t they get compensation’.
In other words a disabled person should be able to claim damages for their wrongful life, if it was in fact the negligence of the doctor that caused their disability. Therefore, suggesting that wrongful life should be a compensable tort in Australia to ensure that everyone is treated equally in the eyes of the law.
Although it is suggested by Hirsch that ‘a disabled child born into a life of suffering and need as a consequence of medical negligence is entitled to nothing in a wrongful life claim because here is no injury in the eyes of the law’, the claims for wrongful life are more about the pain and suffering of the plaintiff and the people who care for them, as opposed to the actual physical disabilities that they have suffered as a result of the negligence. Wrongful life claims should therefore be a compensable tort as they should be about the pain and suffering and not about the disability.
Awarding damages to plaintiffs is always an approximation and not an exact science as was the case in Skelton v Collins ; Ruddock v Taylor and Cattanach v Melchior. It was suggested in these cases that the courts have always ssigned values to intangible injuries and nebulous losses, why should the case be different in this situation, just because the doctor cannot be held liable for damage caused to a baby before its born, it does not mean that they should not be held liable for the disability caused by their negligence.
Therefore, damages should be awarded in actions for wrongful life, and it should become a compensable tort in Australia. KirbyJ argued that ‘a life of severe and unremitting suffering is worse than non existence’, if that statement is in fact true, then wrongful life actions should be successful. Wrongful life actions do consist of (as mentioned above) a claim for damages for the pain and suffering that has occurred as a result of the negligence of the doctor, and if the disability is so severe that there can be no enjoyment of life then it is arguable that it is worse than not existing at all.
Therefore, wrongful life actions should be a compensable tort to allow people with disabilities, caused by the direct negligence of the doctors, to gain some compensation for the pain and suffering that they endure on a daily basis. Wrongful life actions should therefore be recognised under Australian law as a compensable tort.