LAW10010 Lecture Notes - Lecture 5: Wrongful Birth, Wrongful Life
IRAC format notes
How to ANSWER: Cause of action
A tort is a civil wrong. There are a number of different types of torts. Our hypothetical concerns the tort
of negligence and is made up of the following elements:
1. Duty of care: Does the defendant owe a duty of care to the plaintiff?
2. Breach of the duty of care: Did the defendant breach a duty by failing to exercise reasonable
care in fulfilling the duty?
3. Causation: Did the defendant’s action/inaction cause harm.
4. Proximity: A defendant is only responsible for those that the defendant could have foreseen
through his or her actions.
5. Damage: Plaintiff must prove that they were harmed in the form of physical injury to a person
or to property.
Issue
Begin by identifying and stating the issue presented. The issue should be stated in the form of
a question, in a specific rather than general form.
Is Noelle (Melissa’s mother) liable in tort for failing to take reasonable care during her pregnancy
occasioning in her daughter’s (Melissa) medical condition and quality of life.
or
Can Melissa sue Noelle (her mother) in tort for failure to take reasonable care during her pregnancy
resulting in Melissa’s medical condition and quality of life?
Rule – state the rule of law relevant to the issue/s
The rule describes which law or test applies to the issue. The rule should be stated as a general
principal and not a conclusion to the particular material at hand.
“Wrongful birth” cases concern the ability of parents of an unplanned child, born following the negligence
of a medical practitioner, to claim damages for the cost of raising that child. The leading authority in this
area is the 2003 HCA decision in Cattanach v Melchoir. In Cattanach, the HC held that the parents of
a child born as a result of a doctor’s negligence are entitled to recover damages for the costs of raising
the child until adulthood.
By contrast, “wrongful life” cases concern claims brought by disabled plaintiffs who assert that, but for
the negligent behaviour of the defendant, they would not be in existence and would not be suffering the
pain and impairment associated with their disability. They can also arise in respect of negligent conduct
that occurred before conception. The leading authority in this area is the HC decision in Harriton v
Stephens. The majority in the HC held that in establishing an action in tort, a plaintiff needs to show
that they were left worse off as a result of the negligence complained off as compared to the their
circumstances absent the said negligent conduct. The HC held that it the case at hand and in similar
cases, this requires the court to compare life and its attendant suffering with non-existence. The HC
held it is not the role of the court to make such determinations or assessments. They reasoned that
such damage is logically impossible to prove. Assessment of damage is governed by the compensatory
principle in which compensation must (as far as possible) restore the plaintiff to the position in which he
or she would have been absent the negligent conduct. As such, plaintiffs in such circumstances will not
be able to sue for damages.
Application – apply the rule to the facts of the problem
This is the most important and longest part of the answer. You must apply the rule to the material
at hand to lead to a conclusion. Discuss both sides of the case where possible. Do not state a
conclusion without also stating reasons for it.
(This section of the answer requires us to determine whether either, both or neither of the two
precedents apply and to what extent.)
1. Does Cattanach apply?
a. Action is brought by the child so better determined as a case of “wrongful life”.
Therefore Cattanach can be distinguished on facts as the case concerned “wrongful
birth”.
2. Does Harriton apply?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
There are a number of different types of torts. Begin by identifying and stating the issue presented. The issue should be stated in the form of a question, in a specific rather than general form. Is noelle (melissa"s mother) liable in tort for failing to take reasonable care during her pregnancy occasioning in her daughter"s (melissa) medical condition and quality of life. or. Rule state the rule of law relevant to the issue/s. The rule describes which law or test applies to the issue. The rule should be stated as a general principal and not a conclusion to the particular material at hand. Wrongful birth cases concern the ability of parents of an unplanned child, born following the negligence of a medical practitioner, to claim damages for the cost of raising that child. The leading authority in this area is the 2003 hca decision in cattanach v melchoir.
