ON THIS DAY in 2006, the High Court of Australia delivered Harriton v Stephens  HCA 15; (2006) 226 CLR 52; (2006) 226 ALR 391; (2006) 80 ALJR 791 (9 May 2006).
Harriton, a child born with profound disabilities, brought an action against her mother’s doctor in negligence for a failure to warn her mother of the risk of her being born with such disabilities due to the mother’s contraction of the rubella virus during the pregnancy. Her mother said she would have terminated the pregnancy if she had been advised of the risks.
Harriton sought damages for past and future medical treatment and care, general damages and loss of income and had been unsuccessful before the Supreme Court of NSW and NSW Court of Appeal.
The High Court refused the appeal, holding that there was no legally recognisable damage as it could not be determined that the child’s life represented a loss, deprivation or detriment compared with the life being terminated; and the law cannot make comparisons with the life of an able bodied child or a notional life without disabilities.
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