Wrongful births and judicial debuts

One of the strange traditions on the High Court is the debut judgment, in which every new Justice gets a case on which they will write. Then instead of joining the judgment, their bretheren write a one liner: “I concur with Smith J”. That way, you know that the new Justice wrote it (by contrast, if they’d joined, the Justices would be listed in order of seniority).

Anyhow, it seems the tradition of debut judgments is disappearing as rapidly as, well, debuts. Kirby J didn’t get one. Callinan J didn’t get one. And now Crennan J’s has been agreed to by only half the court: Gleeson CJ, Gummow J and Heydon J.

The case is Harriton v. Stephens, dealing with wrongful birth (though the appellants didn’t like that term), and the judgment came down today. Kirby J was the only one who would have allowed the action, while Hayne J and Callinan J came to similar conclusions as Crennan J, but just appeared to phrase things a bit differently.

The moral of the story: If your doctor tells you you’re not pregnant, you might want to ask for a second opinion, coz there’s no penalty for him if he gets it wrong. And if you’re appointed to the High Court, don’t hold your breath for your first opinion.

(Thanks to Ame Simpson for drawing my attention to the judgment.)

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7 Responses to Wrongful births and judicial debuts

  1. Ben says:


    Sorry for this one- I’m in a nitpicking mood.

    “If your doctor tells you you’re not pregnant, you might want to ask for a second opinion, coz there’s no penalty for him if he gets it wrong.”

    Actually he/she may be subject to a Health Care Complaints Commission investigation which may involve being hauled before the relevant Medical Board/ Tribunal. Don’t forget Andrew, suing ain’t the only way of punishing someone.

  2. Patrick says:

    Although she did get a twins, and in the second judgement she gets Hayne’s concurrence as well 🙂

    If you were going to wait for a unanimous seven-judge opinion today, it would have to be a trifle, which wouldn’t be the point, would it?

  3. Andrew Leigh says:

    Ben, fair point.

    Patrick, she still doesn’t quite get Hayne J in that case – he meanders for a paragraph before agreeing with her. And yes, debut judgments used to always be on trifling matters.

  4. Patrick says:

    But the Full Court almost never gets them now, so I think that you can bid the tradition goodbye. THis court does do a lot of five-judge unanimous opinions in commercial law, taking Lord Mansfield’s command to heart, though.

  5. Patrick says:

    I eat my words anyway. On the same day the court issued joint reasons in the name of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ, Kirby J alone dissenting.

    Crennan probably isn’t up to even straightforward constitutional and federal jurisdiction questions yet, but you would think Gleeson CJ, Gummow and Hayne could have given her a few hints! I guess they were concerned to cut Kirby off at the pass.

  6. Bruce Bradbury says:

    I was recently an expert witness on a case where a woman was awarded substantial compensation for botched contraception. The doctor didn’t insert the under-skin contraceptive properly (indeed he didn’t actually insert it all!).

    Of course in this case it was the mother being compensated (for the additional costs of raising the child) not the child being compensated. (My expertise was called on to comment on the additional costs involved).

    I’m not sure, but I think the law in NSW has now been changed to stop this sort of claim.

    For me, the most interesting thing was to observe the (dubious) legal principles of compensation in action. First, the fact that the mother might actually value having the additional child was not considered relevant (even though she in fact subsequently adopted an additional child). Second, her compensation was reduced because her previous income was reasonably low. The principle of compensation is to restore people to their previous situation. Since poor people don’t (can’t) spend that much on their children, their compensation is consequently reduced.

  7. Robert says:

    A couple of points — first, this was a “wrongful life” claim, not a “wrongful birth” claim as your post has it.

    Second, the fact that the separate class of “wrongful birth” claims still exists (this case did not challenge Cattanach v Melchior) means the doctor might still face a (tort) penalty. It’s just that the woman who received the bad advice must sue, rather than the child.

    I think I’m going to have to have a look at this decision in some detail, especially since I think Kirby J’s reasons were the strongest in Cattanach.

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