Abandoning the Common Law; Medical Negligence, Genetic Tests and Wrongful Life in the Australian High Court

Journal of Law and Medicine, Vol. 14, No. 4, pp. 469-477, 2007

10 Pages Posted: 24 May 2009

Date Written: May 23, 2007

Abstract

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called “wrongful life” (better termed “wrongful suffering”) claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?

Keywords: Medical negligence, wrongful life, wrongful suffering, tort, genetic test, malpractice

Suggested Citation

Faunce, Thomas Alured, Abandoning the Common Law; Medical Negligence, Genetic Tests and Wrongful Life in the Australian High Court (May 23, 2007). Journal of Law and Medicine, Vol. 14, No. 4, pp. 469-477, 2007. Available at SSRN: https://ssrn.com/abstract=1409056

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

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