Wrongful Life In Australia

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 birth, which is defined as ‘an action brought about by the parents of an initially unwanted or unintended child born as a consequence of negligence
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 suffering 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 there 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 assigned 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