On Wrongful Life: Harriton v Stephens

‘A comparison between a life with disabilities and non-existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. Judges in a number of cases have recognised the impossibility of the comparison and in doing so references have been made to philosophers and theologians as persons better schooled than courts in apprehending the ideas of non-being, nothingness and the afterlife.

There is no present field of human learning or discourse, including philosophy and theology, which would allow a person experiential access to non-existence, whether it is called pre-existence or afterlife.’ – Harriton v Stephens [2006] HCA 15 at [252], [253] per Crennan J.

Harriton, which was decided by the High Court last week, deals with legal issues evoked by – the poorly labelled – ‘wrongful life’ cases. These are cases where an action is brought for damages for ‘wrongful life’ (not to be confused, in tort, with ‘wrongful birth’ cases).

See [247] for an all too brief discussion of ‘Aristotelian notions of “corrective justice”’ by Justice Crennan.