Harriton v Stephens; Waller v James & Ors [2005] HCATrans 918 (10 November 2005)

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Harriton v Stephens; Waller v James & Ors [2005] HCATrans 918 (10 November 2005)

Last Updated: 10 November 2005

[2005] HCATrans 918

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S229 of 2005

B e t w e e n -

ALEXIA HARRITON (BY HER TUTOR GEORGE HARRITON)

Appellant

and

PAUL RICHARD STEPHENS

Respondent

Office of the Registry
Sydney No S231 of 2005

B e t w e e n -

KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER)

Appellant

and

CHRISTOPHER JAMES

First Respondent

SYDNEY IVF PTY LIMITED

Second Respondent

Office of the Registry
Sydney No S232 of 2005

B e t w e e n -

KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER)

Appellant

and

BRIAN HOOLAHAN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 NOVEMBER 2005, AT 10.18 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, in Harriton, I appear with my learned friends, MR G.P. SEGAL and MR D.H. HIRSCH, for the appellant. (instructed by Maurice Blackburn Cashman)

MR P.W. BATES: May it please the Court, I appear for the appellant, Keeden Waller, in each of his appeals. (instructed by Autore & Associates)

MR S.J. GAGELER, SC: If the Court pleases, in each matter I appear with MR J.K. KIRK for the respondent or respondents. (instructed by Blake Dawson Waldron)

GLEESON CJ: Thank you. Justice Callinan has had to return unexpectedly to Queensland. I understand that the parties are agreeable to his joining in the decision in these matters on the basis of reading the papers and the transcript of argument.

MR WALKER: Yes, your Honour.

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the crux of the insuperable difficulty perceived by the majority in the Court of Appeal in the way of my client’s claim was the absence of or, if it be different, the inability to show in law damage. That is the crux. It carried with it, of course, the observations that one finds in the majority concerning the calculation of damages.

GLEESON CJ: Can I raise a question of procedure about that, Mr Walker.

MR WALKER: Yes, your Honour.

GLEESON CJ: I notice that the questions appear on page 52 and 99 and that the answers to those questions for which both appellants contend are the answers given by Justice Mason in the Court of Appeal.

MR WALKER: Yes.

GLEESON CJ: On page 252 in paragraph 169 Justice Mason made some remarks about the answer he gave to question 2. I simply wanted to alert you to the fact that you should not assume that I, for my part, would accept that the answer there given to question 2 is an answer to question 2 or that I, for my part, would accept that you can answer question 1 “yes” without facing up to what Justice Mason described as the profound issues in relation to question 2.

MR WALKER: Thank you, your Honour, and I accept that the matters that your Honour the Chief Justice has raised are matters that are at the heart of the matter. In particular, as to what I will call the procedural matter or the formal matter of the outcome on the record, the minority or dissenting outcome does require paragraphs 168 and 169 on page 252 to be read together and I am bound to concede that the first sentence of paragraph 169, which is expressed idiomatically, certainly deprives the categorical straightforwardness of answer 2 in paragraph 168 of what would have been its force if there had not been paragraph 169. I accept that entirely.

On the substantive matter of principle, we agree, with respect, with the observations by the learned President below in paragraph 169 as to the emphasis at the hearing below and as to the profound nature of remaining issues. We will attempt to persuade your Honours that those issues are not in themselves critical, that is, not each of them essential or together all of them essential, to the question whether there can be any liability and any recovery. Certainly they will cast light, we accept, upon the basal issues of principle underlying the claim for liability.

KIRBY J: May I raise a preliminary question before we get into the common law as to the statutory setting in which this proceeding is brought. It is not entirely clear to me from the submissions, though Mr Bates refers to it more than I think you do in the written submissions.

MR WALKER: I have none of the statutory setting that Mr Bates will be dealing with. I have a separate statutory setting, quite different statutory setting, to which we have drawn attention in our written submissions, and the provisions are set out in paragraph 39 of our written submissions.

KIRBY J: But if we are to embark upon the common law of Australia I think we would really need assistance as to the statutory setting in the various States and Territories of the Commonwealth and I know that there has been some reference to statutes in other States but I am not entirely clear as to where the position lies and also whether or not, in respect of either of the appellants or both of them, some proceedings, (a) have been brought or, (b) are available for whatever residuum of the common law is left over after the legislation that followed the decision in Cattanach because - - -

MR WALKER: That legislation does not affect my client’s position, that is as a matter of enactment.

GUMMOW J: As a matter of timing.

MR WALKER: Yes.

KIRBY J: Have proceedings been brought by the parents in your client’s case?

MR WALKER: No, and they are out of time.

KIRBY J: At some stage I would like to be helped to see the setting of statute because the setting of statute, if Parliament has spoken within power, that is the beginning of wisdom and we have to, as it were, consider any common law residuum that is left over in the context of whatever Parliament has said relevant to the subject that is before the Court.

MR WALKER: If I may take that matter on notice and in consultation with my learned friend, Mr Gageler, I may be able to draw to attention something after the luncheon adjournment, your Honour.

KIRBY J: Yes, certainly.

MR WALKER: But may I say that we do not apprehend that as the issues were framed at first instance by the questions asked as they were argued and decided in the Court of Appeal and as they are found in the rival submissions in this Court that anything in the Civil Liability Act, which I apprehend your Honour may be referring to, directly affects any cause of action, if there be any, at common law of my client.

KIRBY J: Well, it is not only that Act, but it is natural for a Court of Appeal of a State to concentrate its attention on any State legislation, if any, but once you get into this Court, if it is in any way relevant, we have to look nationally at the position. Mr Bates does refer, for example, to some of the IVF legislation in other States.

MR WALKER: None of that has anything to do with my case though, your Honour.

KIRBY J: I realise that. I know you are not an IVF case, but we will have to get the setting of statutory provisions relevant to your case as well if there are any. In particular, I would like to know what the statute says about the Cattanach decision and where claims by parents in respect of children are left following the statutes around the country.

MR WALKER: Yes.

KIRBY J: Because they are not all the same as I understand it.

MR WALKER: No, it may be that some of the differences are form rather than substance, but your Honour, with respect, is correct. Now, on the other hand, as to where the common law should be, our position is as follows as a matter of principle, namely, that what State legislatures do, particularly when they do it disparately - though it does not matter whether they actually do it disparately, what matters is that they may do it disparately - does not and should not have any more or less immediate effect on this Court’s finding and making of the common law.

In our submission, the enactment which can have that more or less immediate effect on the common law is the Constitution which after all commits to this Court the finding and making of the common law in this country, but other than that, in our submission, the dialogue between legislatures and the Australian common law has a special feature in a federation, namely that there is only one Australian common law but States and Territories may speak differently as to statutory entrenchment on, or so-called abolition of, it from time to time. For those reasons, the existence, potential or actual, of State legislation and the terms, potentially disparate or actually disparate, in State legislation, for example, concerning the criminalisation of abortion, which is the statutory setting of my case, should not affect the shaping of the common law in what I am calling a more or less immediate sense.

Now, clearly both legislatures and courts can, and in certain areas will, feel the same impulse of what I will call value which may produce both statutes and common law, but that is not an immediate effect of statutes on the common law; that is recognising that lawmakers in chambers and lawmakers in courts are all members of the same society and subject to the same impulses of value but, as this Court explained in Cattanach v Melchior, the mechanism by which values produce policy of the law in court or public policy promoted by government in Parliaments is radically different.

KIRBY J: I do not want to take up more time on this but one of the points that was raised in the submissions and referred to by Justice Mason was some form of limited recovery for, as it were, special damages and/or special damages in the future or damages of that character. It may be that in that respect, if that is an appropriate or possible approach – and I say nothing on that – it is relevant to have a look at what statutes have said on that in Australia.

MR WALKER: May it please your Honour. Your Honours, we accept as a general proposition a specific manifestation, of which is found in paragraph 38 of our written submission concerning Justice Ipp’s reasoning, that in general for there to be damage at common law it must be possible for a court to say that the plaintiff is worse off by reason of the negligence. We accept that that involves a comparison, and we submit that it is elementary that the comparison that the common law carries out is between the actual state of affairs and what is sometimes called the hypothetical state of affairs, and in negligence as a tort we accept and do not seek to argue so as to detract from the proposition that the hypothetical state of affairs may be described as what would have been the case but for the negligence of the defendant, leaving aside for the moment the necessary refinements of causation that will not affect this part of my argument.

Coming from those generalities to some of the specific characteristics of the claim we advance, we observe that medical care, which, as a skill practised by professionals, is of course one of the relationships that can produce a duty of care and thus liability in negligence, but medical care is very often sought in order to ameliorate, whether by simple attenuation of a problem or complete cure it does not matter, a pre-existing condition being a condition which no one could describe as having been caused by the doctor. In other words, people go to the doctor because they already have a problem, or sometimes in order to find out whether they have a problem pre-existing.

We make that proposition at the outset because, in our submission, it is a wrong turn in the argument to place any emphasis, or certainly the emphasis that the majority places on the fact, that of course the defendant in this case had no responsibility for the unfortunate infection with rubella of my client’s mother while she was pregnant with my client. That, in our submission, is simply not to the point. Doctors’ negligence is probably very often brought about in a situation where care is sought for a pre-existing condition and the damage may often, commonly, perhaps even typically in here, not in something which is freshly caused that would never have happened at all but for the doctor’s negligence, but rather, that there has not been an outcome of a kind which reasonable care may have brought, on the balance of probabilities it must be shown would have brought, to the plaintiff.

KIRBY J: That is really a paradox that is at the heart of this case that the worse the negligence, that is to say, the more gross the failure to act leading to such an extreme that some form of lawful abortion must be contemplated, the less becomes the prospect of recovery from those who are careless.

MR WALKER: Yes, and in our submission, a paradox of that kind should not enter the common law. Your Honours have seen references to corrective justice in the observations about the arguments below. It is not a useful label, or perhaps, as a label it does not advance argument but, in our submission, it is not possible to say of the law of negligence that it has no concern with the consequences of wrongdoing being borne by the wrongdoer rather than the person who suffers as a result of it. That does not seem to be in issue between the parties here. In issue between the parties here, at least we submit, the crux is this question of comparison in order to produce the existence of damage. Now, I do not say that is the only problem, of course, but that is the crux, we submit.

So that in the case to which I have just referred, what might be called a typical kind of case of medical negligence, being worse off is a state of affairs demonstrated at common law on the balance of probabilities and then treated as the fact in order to ascertain whether there is damage, being worse off than one would have been if the doctor had not been negligent. In cases of testing, diagnosis and advice, which is a now very common sequence of medical care procedures, there will of course be introduced the actions of others which will not affect the possibility of the doctor being liable and will not defeat causation.

In testing there will probably be a laboratory and another professional at least. Diagnosis will obviously include the possibility of the patient’s own history as to its accuracy or completeness being critical to a correct diagnosis. As to advice, of course, in relation to outcomes much will turn on the patient and the patient’s family and their contribution to the decision-making upon receiving the advice. But, if on the probabilities at common law, it is shown that had the test been commissioned it would have produced such and such a set of data, that had those data been given back to the doctor the diagnosis would probably have been in such a direction and had that happened the advice should have been or probably would have been such and such and the plaintiff probably would have taken the advice, then the chain of causation, without any attenuation by anything in the nature of remoteness is good and the liability is made out.

In that ordinary orthodox approach to the way in which bad consequences can be sheeted home to a negligent doctor, notwithstanding the intervention and contribution of others along the way and the patient making decisions upon advice, it is all important, in our submission, that the common law proceeds on the balance of probabilities to find, as it were, what become for the purposes of liability of the facts and that in the area of medical negligence and not unique to it, but certainly in the area of medical negligence, this will always comprehend large unknowns.

The law has its clichés to cope with those. Vicissitudes of life is the most well known. The very notion of the comparison between the actual and hypothetical state of affairs involves the consideration of what might be called alternative futures, things that now can never be known because they will never happen and never be subject to observation which could be the subject of evidence but about which lay opinion, otherwise known as the judge’s assessment on the balance of probabilities, requires a decision about the unknowable but without any difficulty observed by the common law as to, for example, the obvious question: pain and suffering has ensued from this negligence, what would have been the position but for the negligence?

Nobody knows whether there would have been as much or more pain and suffering from some alternative source for which the defendant is not liable but for the defendant’s negligence. Nobody will ever know, but there is no reason to suppose that it would have been so and in our submission that suffices and correctly with whatever elision of logic for the common law method. It is our submission that our case does not require much of a step to bring it within that form of common law reasoning.

Of course I cannot point to any authority that shows a plaintiff in a negligence case succeeding in showing that he or she is worse off in the sense required by the law because he or she is alive rather than dead or alive rather than never born.

KIRBY J: There is authority, apparently, in Israel, in the Netherlands and in France.

MR WALKER: I used the word “authority”, your Honour. There is no authority in our common law, our common law. There is with – the parties have collected for your Honours the state of the jurisprudence internationally but I accept that for present purposes, I being unable to point to any authority in our common law in favour of our claim, it is appropriate that I go immediately to the case which is cited against us and that is the decision of the Court of Appeal in England in McKay v Essex Area Health Authority to which I would now take your Honours.

HAYNE J: Before you do that, is it necessary, desirable or appropriate that you identify the comparison you say is to be drawn?

MR WALKER: Yes, of course.

GUMMOW J: What is it?

MR WALKER: The comparison - we have tried to make this as clear as we can in the combination of paragraphs 7, 9 with the comment in 13 of our written submission. Nothing can disguise the reality of either the pleading or the way in which the case has been argued. But for the negligence, we say, there would have been a state of affairs which would not include the pain and suffering arising from the physical condition of my client nor would there have been the needs created by that physical condition. I am there talking about a physical condition which, if your Honours will forgive me, for brevity I will call hereafter “disability”. “Disability” is too bland an expression for the state of my client but it needs to serve to be concise.

HEYDON J: Do you claim lost earnings?

MR WALKER: Your Honour, yes. Your Honour has seen the way in which we put that in paragraph 36 and in 36(f) and in the last sentence of that paragraph we do indeed claim that. That is perhaps par excellence an example of the kind of claim that may fail without the reasons for it failing, meaning there should be failure across the board. It is the particular physical condition not of being alive but what I have summed-up in the word “disability” as a - - -

GLEESON CJ: As compared with what?

MR WALKER: As compared with not having been born. There is no disguising that that is the comparator in this case and we do not wish any part of our argument to be mistaken for an alternative formulation. In particular, we do not associate ourselves with arguments of the kind that your Honours have seen in some of the authorities and academic writings to the effect that there is a comparator of what might be called the perfect child. I use the word “perfect” because it is one of the ones that have been used in the statements of that proposition; sometimes the less offensive but more difficult word “normal” is used.

The difficulties are, of course, that normal conception, pregnancy and birth does have a rate of terrible disability; that is it is one of the normal risks of being conceived, carried and born. We do not say that there is, as it were, any right to be born perfect or normal of a kind which was seen in the Court of Appeal in McKay as being at the bottom of such a claim. We do not argue that. As we have pleaded and as we have argued below, we say that the pain and suffering and the needs caused by the disability – not by being alive, but by the disability – are matters which would not have happened but for the negligence. They have happened. They do exist. They are pain and suffering. The lack of a logical comparator does not make the pain and suffering more bearable or eliminate it. It is still pain and suffering.

HAYNE J: If the comparison is as you describe it, between on the one hand being alive rubella affected and on the other not having been born, why are the damages in 36 limited to the cost of, for example, “special care consequent upon her rubella affected life”, “Special housing requirement[s]” and the like?

MR WALKER: There are a number of answers. The one which, in our submission, should in principle be seen as the primary reason for confining the damages – and of course my confinement of damages is a necessary part of rendering tolerable the notion of such a claim at all – the primary reason for confining the damages in the sense we have suggested is that it is the disability, to use your Honour’s words, that which is special, which alone permits the chain of causation for which the defendant may be held professionally responsible ever to have come to fruition.

It is only the disability and only the extent of it. We do not shrink from questions of degree. They are questions of degree, all of this. It is only that extent of disability which permits us to say, “But for your negligence, we would not have been born”. Nothing else permits us to do that. It is therefore, in our submission, appropriate, in a case where ordinary logic will not suffice that the law says the only thing which may be the subject of true compensation or where compensation can never be made, solatium, the only thing is that state of affairs which by its specialness and extremity brought about the situation that but for the negligence there would have been no birth precisely because of the extremity and specialness of that prospect.

GLEESON CJ: I do not quite understand why the disability has to be extreme in order to justify the hypothesis that there might have been no birth. There might have been no birth because of an apprehension which was not realised.

MR WALKER: Yes. Now, this brings up the possibility that has been noted in the cases, and I will be coming to it in discussing McKay, of the person – under a quite different statutory regime in relation to abortion, I should say – who is happily born only with a squint, to use an example in the case, rather than what was reasonably to be apprehended being a much worse disability.

Now, in our submission, as we tried to put in our written submissions in reply, if by miracle my client had not been born with anything like her actual state of disabilities, then, in our submission, different questions would arise as to whether any damage had been suffered – that is the first thing – and, second, as to how, if at all, one would compensate or give solatium for it. I will have to return to that later, if I may, with respect to, in particular, the questions the Chief Justice raised in relation to how heads of available damage cast light on the whole of the case.

The first part of my answer, therefore, to Justice Hayne’s question is that in this case where ordinary logic cannot suffice it is appropriate to recognise that the only thing which the law could call damage is the materialisation of the very prospect which, according to the law – as it happens the judge made law to provide the content in the New South Wales statute about abortion – says would not have happened but for the negligence.

KIRBY J: I can understand why you would not want to have a comparator such as the perfect child or the normal child, but is not logically the comparator the child of these parents who is not affected by the disability? Genetically speaking, the birth from one embryo as against another embryo is a one in many million chance and therefore we are talking about another embryo of the same genetic parents without the disability which causes one to contemplate such an extreme action as termination.

MR WALKER: Your Honour, my answer to your question has to be no, that is that is not the comparator for which we contend nor should it be the one considered by this Court if you were otherwise in favour of our arguments. However, what your Honour has referred to may produce as a matter of the evidence in calculating damages – and I stress damages, not identifying damage – it may provide the means by which, for example, one understands what is special and what it not. That is not because you are talking about the child of this parent; it is simply because the very notion of disability is one which is comparative. It is for those reasons that there has to be, just as there is in an ordinary personal injuries case, something which I will call, for want of a better word, a norm, that is, an acceptable range compared to that from which the plaintiff suffers.

Now, that is true with respect, for example, to mobility as one ages. For most people mobility declines in any case. You can hardly be compensated for no longer being the 20 year old when you are injured at 50. However, there is something in the nature of a norm which produces the increment or decrement in mobility caused by the injury. That is compensable. So it is only in that sense of a comparator for the purpose of measuring damages to understand what is disabled, or what is disability or what has been caused, that one would ever come up with this idea which we would otherwise, with great respect, deprecate as unsuitable to be introduced into this argument of the perfect or non-disabled child of my client’s parents.

KIRBY J: Well, that obviously worried Chief Justice Spigelman with the spectre of eugenics and all the suffering of the last century. It is a proper concern from a policy point of view.

MR WALKER: Yes. I, of course, for my client, have no part in saying that disabled people are less valuable than able people. What a monstrous proposition. Our argument never embraces that, any more than an injured plaintiff says that people missing a leg are less valuable than people with two legs. Your Honours, I have twice, or three times I think, in seeking to answer Justice Hayne’s question, referred to the question of logic and may I come immediately to why, in our submission, this Court would not be at all deterred, not for a moment, by the problem of logic which I confess – indeed I need to flourish it, I need to say of course this is not logical.

The same is true in the turn the law took, originally Watt v Rama, a very influential Victorian decision, in New South Wales, X and Y v PAL and – I apologise for not having done it earlier – I should also draw to your Honours’ attention the decision of the English Court of Appeal in Burton v Islington Health Authority [1993] 4 Med LR 8, which we have made available this morning and copied to your Honours. I do apologise for its late supply. I will not go to it at the moment but your Honours will see at pages 10, 11 and 12 in particular of the reasons of Lord Justice Dillon a reference to the way in which the cause of action or damage suffered by breach of a duty, both of which occurred before the person existed, is nonetheless the common law.

It was very telling in that case because that was a decision against the background of – that is in the presence of statute which governed the area, and the Court of Appeal was examining, apart from the statute, what would the common law be. In fact there are opinions expressed in the reasons as to what the common law would be other than in that jurisdiction. So it is an overtly comprehensive attempt which calls in aid Watt v Rama, the Full Court of the Supreme Court of Victorian decision which is at the root of this aspect of the common law in this country.

KIRBY J: Why are you going to a foreign decision on this point because PAL in the Court of Appeal of New South Wales says the same thing?

MR WALKER: No, not for authority. I am only drawing it to attention for this reason. Those three decisions – Watt v Rama, X and Y v PAL and Burton v Islington – are illustrations, all of them, for slightly differently expressed reasons, but the last with conscious reference to Watt v Rama and the second with conscious reference to Watt v Rama, to what must be seen as the triumph of common law over strict logic.

How can one have before a person exists a duty owed to the person, let alone a breach of that duty? How can one have before a person exists damage suffered by that person following, that is as a result of, that pre-existing duty, that pre-existing breach. The law, for obvious reasons to do with ultimately our biology and appropriate social standards, would not have a bar of such logic standing in the way of the claim. How, after all, could it be truly said that the law saying you cannot be a person, thus you cannot have a cause of action until you are born, how could the law tolerate doctors who make their living by looking after pregnant women and their embryos saying, “I have no duty to take into account that I may by my negligence damage the embryo” and not only people who know of or have been engaged in the interest of the embryo, but also doctors who are dealing with women who may or may not be pregnant.

GUMMOW J: There is a whole body of equity law about children in ventre sa mere, surely.

MR WALKER: And one finds - - -

GUMMOW J: Common lawyers seem to have spectacles with a range of about three feet.

MR WALKER: Yes. Burton adds – the reason I cite Burton in particular is that Burton calls in aid precisely that other jurisprudence in a way that - - -

GUMMOW J: That is because it was Lord Justice Dillon. He came from the Chancery Division.

MR WALKER: In a way that one does not find anywhere near so clearly in Watt v Rama or X and Y v PAL. That is why I have drawn it to attention because, in our submission, that is – I hesitate to use the word – what might be called the common sense of the common law, in the sense of resisting the notion that there can be what everybody regards as a wrongdoing, but a defeat of a claim to be compensated because of the logic that says you cannot have a duty owed to you before you are a person.

KIRBY J: We saw where logic led in Baker v Bolton, as Justice Mason pointed out.

MR WALKER: Your Honours, the only reason I refer to this is to show that there is nothing wrong with an argument that says in relation to effects upon people – I use the word advisedly – before they are born, that is before in the eyes of the law they are people, persons, there is nothing wrong with the common law refusing to accept the logic produced by non-stressed cases – that is, no stress of that idea that you are not a person before you are born – is presented in the case of a living person engaging with a living defendant, suffering in life an injury and suing while still alive.

Those are not difficult cases. They have produced a body of logical rules which, in our submission, cannot be used as rigid carcasses, as it were, to prevent the claims that the common law has allowed in Watt v Rama. Now, having done that, in our submission, it is but a small step then to examine whether or not the impossible comparison argument truly defeats the notion that my client cannot point to damage.

KIRBY J: You have to add a fifth criterion to those that you listed, namely in respect of an injury suffered before the person was born.

MR WALKER: Yes.

KIRBY J: At least one theoretical argument for not taking that fifth step is then do we have actions on behalf of embryos which were not permitted to come to full term or which were aborted for the loss of the chance of life?

MR WALKER: No. There would be no person to sue.

KIRBY J: Well, there might be somebody who wished to sue on their behalf – a parent who did not agree with the termination.

MR WALKER: Your Honour, that is another case. It is not - - -

KIRBY J: I am just testing the logic of it.

MR WALKER: Your Honour, I must not resist the consequentialist testing, and I do not resist that as a notion. I simply say that particular consequence, that there are several steps to be gone through before one would ever get to a suit in the name of, or say Lord Campbell’s Act style, on account of a person who was never born, which is in itself an acceptable but paradoxical legal proposition, the person who is never born.

GUMMOW J: Are you saying you can find a comparator, or we do not have one?

MR WALKER: We do not have - - -

GUMMOW J: What is this short step?

MR WALKER: The short step is as follows.

GUMMOW J: It sounds like a long one actually.

MR WALKER: I am not suggesting it is straightforward. However, in our submission – perhaps it would be best if I come straight to that now. The comparator is not having been born. The simplicity of stating it does not make it any more attractive, we accept. The first thing to be said is that pain and suffering, which is the most obvious matter about my client’s position in life, that pain and suffering is a state of affairs which appertains only to those who are alive and at this point legally I am closing the mind to the manifestly obvious pain and suffering which can be monitored in foetuses. But accepting that you are not a person until you are born, pain and suffering is something that people who are born suffer. Pain and suffering before that is not pain and suffering by a person.

The comparator is not having reached that necessary condition for suffering the pain. So the comparator is no pain and suffering. The immediate answer by the impossible comparison proponents is, but how do you know that in the absence of life there is not something worse than pain and suffering in life and the short answer is nobody knows that.

GUMMOW J: Yes, well, this is the notion of life’s fitful fever.

MR WALKER: Quite. Nobody knows that and the proponents of the impossible comparison argument say, “And that is the end of the case, you can’t prove that your pain and suffering is damage”. Now, it is at a higher scale in terms of pain and suffering and we all, as a matter of ordinary English and human interaction, appreciate of others that some hurt more than others. Courts do that every day when they award different sums for pain and suffering. But it is said of my client that she cannot say and be heard in a court to say, “My pain and suffering is great because of the impossibility of anybody saying there is nothing worse than pain and suffering without life”.

Now, the short answer in relation to the comparator argument is, but there is a comparator. It is the one which is almost mocked in some of the American cases, certainly treated with derision as a self-evident impossibility, namely not having life and the first thing that can be said about not having life is that you do not have the pain and suffering that only life brought. This is why this impossible comparison argument which, we submit, is at the heart of the crux of the problem for us, that is, showing damage, is inextricably mixed up in the authorities against us, which are legion, with the notion of the sanctity or incalculable value of life itself which, in our submission, is not an appropriate ingredient in answering the ordinary common law question, is this pain and suffering of a kind which may be compensated because it would not have occurred but for the negligence of the defendant.

KIRBY J: Now that sort of argument was raised in Cattanach but a majority of the Court did not seem to embrace it in that case, that the circumstances are different. I am saying the sanctity argument.

MR WALKER: Quite so.

KIRBY J: At some stage I would be interested in what, if anything, you draw from the decision in Cattanach. President Mason listed a number of points - - -

MR WALKER: May I come to that later? Thank you, your Honour.

KIRBY J: Yes, if you would do that at some stage because we have to set this in the setting of statute and in the setting of any development of the common law principle recently that is relevant.

MR WALKER: Yes. Continuing my answer to Justice Gummow concerning the way in which the comparator is identified and how it should be used we then call in aid orthodox common law personal injuries negligence reasoning of a kind that one has in two heads of damage, lost years and pain and suffering. I have already said what I wanted to say about pain and suffering. We do not know that the person would not have as much pain and suffering, or worse, but for the defendant’s negligence, but by the balance of probabilities approach we say that is extra, that has been caused by the defendant.

Of course, we will never know what the alternative life might have been, ever. That has never troubled the common law. It simply says on the balance of probabilities it would not have been so. That does not make it a fact except for the purposes of settling the dispute and the dispute is about here is the wrongdoing, should there be a remedy. It does not pretend to be able to say, and we hereby make it so that but for this negligence you would have been able to dance forever.

The second common law orthodox approach that we call in aid is the lost years which are interesting in one sense because of the, as it were, rule of law about the modesty of the award for them but, in our submission, what is clear is that something is being said by the common law about the years that would have been enjoyed but for the defendant’s wrongdoing and the idiom is would have been enjoyed but how does one know that it would have been enjoyed. It may have been utterly miserable. War may have broken out and disease, pestilence, non-fatal, of a kind that made it an utter misery.

No one knows and, again, no one pretends to know and in particular no one knows what the state of affairs will be in relation to what might be called the amenity of life, the years having been lost in the period of eternity or after life or non-life or death, depending upon the words to be chosen, which are the reason for the award of damages in the first place. The law says of those lost years that though the comparison be impossible, the wrongdoing having occurred, there being no reason to suppose that you would have been worse off anyhow, or not better off anyhow, the damages flow.

In those areas the common law has never been defeated by not being able to know about the alternative and it includes in the common law not being able to know about an alternative of not having life. When I opened the appeal we referred to death and not having been born. It can be seen, perhaps most graphically in Lord Justice Stephenson’s quotation from Hamlet, that much of the reasoning in this area about the unknowable draws no distinction between death and not having been born. My argument does not depend upon any such distinction but we draw to attention that there may be such a distinction.

It may not be a distinction which ought to be drawn biologically, bearing in mind the termination of pregnancy which is at the heart of the claim we make. What that shows, of course, is the failure in the authorities to distinguish between death and never having been born is that it is legitimate to point to the way in which the common law has never been defeated in relation to an accelerated death - that is lost years – never been defeated by the fact that one does not know what is going to happen either during the lost years had they been enjoyed or after the death which has been accelerated.

It is for those reasons that the comparator of not having been born with the first and most obvious head of damage for which damages can only ever be a solatium given the impossibility of monetary equivalence, pain and suffering, is available by only a small step in this case. It requires only to say that the pain and suffering is worse for the plaintiff here than would have been the case in the same way as the Court can say the lost years would have been better than whatever it is is the case for the person dying earlier.

In this case it all turns on the fact that that which by concession should have happened by the exercise of reasonable care and what would have happened by the assumed basis of argument upon that care having been supplied, would have led to a termination of the pregnancy only by reason of the very thing about which we now complain. That is where the question of degree comes in and is, of course, our answer to the arguments - I earlier referred to the squint example - the floodgates argument that says, “But people will be complaining even when they are born with not much to complain about because there had been an opportunity for their mother to terminate their pregnancy lawfully and it had not been taken by reason of some negligence”.

In this case the only reason that the termination should have been brought to the attention of the woman, and I am using the neutral expression, “brought to the attention of”, and the only reason she should have been counselled about its possibility was because of the gravity or awfulness of the prospect for my client which, of course, has fallen in, has materialised.

GLEESON CJ: Would people have a cause of action against their mother for failing to terminate the pregnancy?

MR WALKER: No, because that would be to conflict with the legal right of the mother to make that choice.

GLEESON CJ: You mean as between the mother and the foetus the mother has the right?

MR WALKER: Yes. The foetus is not a person to whom a duty is owed by the mother not to exercise a right given by the law, that is the same system of law in which one asked the questions about right, given by the mother. In other words, you can only erect such a new right in a child later born. You only erect a new right if it does not thereby destroy a right which the law has made.

GLEESON CJ: A possible point of view is that simply begs the question. A possible point of view is to say that the mother has the right to make that decision is only to say the child when later born cannot sue the mother. It is not to say why.

MR WALKER: I accept that stricture, your Honour. Doing the best I can at the moment, the reason why is because to provide that right to the child is to detract from a right which the law continues to give and, whether one calls it incoherence or conflict, the common law, in our submission, simply cannot destroy a right, in this case, of a statutory and criminal or non-criminal kind, that is a right in light of the criminal law. It cannot simply destroy a right by invention of a new right. In our submission, there are no examples of that.

Could I take your Honours to McKay for this purpose. In our submission, even the high-water mark represented by this case of the jurisprudence which says that there is an impossible comparison which ought not to be permitted, has within it recognition of the occasions when comparisons of the kind said to be impossible can and perhaps even should be made. Can I take your Honours first to Lord Justice Stephenson at [1982] QB 1166 at 1179F.

His Lordship is there talking about the particular statute which governed the termination possibility in that case. It is significantly different, materially different from ours. Then at H his Lordship says:

That [statute] may have been passed in the interests of the mother, the family and the general public, but I would prefer to believe that its main purpose, if not its sole purpose, was to benefit the unborn child –

Now, that whole notion of benefiting the unborn child by termination by reason of the serious handicap, that notion of benefit can only make any sense as a matter of language and legal reasoning if one posits a disparity between the state of affairs if born and the state of affairs if not born, and it is better not to be born. That is the only way in which his Lordship could use that word.

The next suggestion of questions of degree being critical, and we state that they are otherwise the termination could not be lawful, 1180 E to G in the paragraph commencing “Like this court” there is a significant reference to a wardship decision In re B. His Lordship in this case was able to put that to one side because of the state of the evidence:

I would not answer until it is necessary to do so the question whether the life of a child could be so certainly “awful” and “intolerable” that it would be in its best interest to end it and it might be considered that it had a right to be put to death.

Now, that is language which, as your Honours know, was later deprecated as to its usage by a later court of appeal, to which I will come in a moment, in the wardship.

HAYNE J: The use of rights in this whole context is perhaps slippery.

MR WALKER: Yes.

HAYNE J: The notion of a right to an abortion is itself a difficult concept.

MR WALKER: Indeed.

HAYNE J: There is a choice to be made between courses which are not unlawful.

MR WALKER: That is right. A “liberty” is another word which ought to be considered in the context. The word “right” perhaps loses its slipperiness when it is understood to mean a course of action which the law cannot restrain and a person is permitted is at liberty to take.

HAYNE J: But cannot compel.

MR WALKER: Quite, your Honour. Cannot be compelled. It is not a duty, but many rights are not duties. Perhaps, properly understood, most rights are not duties – or at least in the same person I mean. Now that paragraph, as I say, is one which at least parks for consideration were the facts different, the notion that by reason of matters of degree a question might arise where the law would pose and need to answer a comparison question involving non-life. It is significant that his Lordship refers to, though does not go on to elaborate, the use of wardship approaches in that context.

The next one I want to take your Honours to are the references which, in our submission, are somewhat difficult to - - -

GUMMOW J: Can we just look at counsel’s argument for the unsuccessful party in McKay at page 1170F, the paragraph beginning, “As the child’s damage”.

MR WALKER: Yes, your Honour.

GUMMOW J: Is there any more to be said really than what is said there?

MR WALKER: Your Honour, as a bottom line, no, and it does capture - - -

GUMMOW J:

“Damage” means a consequence which flows from a breach of duty which society and the law should concur in treating as something which the plaintiff ought not to suffer and for which he should be compensated.

MR WALKER: As a bottom line, no. However, to make it good, in our submission, one does need to add the content of the notion of wrongdoing and where the allocation of the damage should lie one needs to add the warning against excessive regard for logic, particularly in an area of pre-birth effects, logic already having been dealt with by overcoming its challenges in the Watt v Rama position, and one of course then needs to be able to evaluate what it means to be compensated because that requires a standard to be gathered from the hypothetical state of affairs but for the negligence.

GUMMOW J: Yes, but at bottom it is a question of “ought” or “should”.

MR WALKER: Yes, but the common law of negligence has always been, at bottom, just that.

GUMMOW J: That is what I am coming to, yes. Donoghue v Stephenson is not all that much different really.

MR WALKER: Quite so. There is nothing unorthodox about the way in which we put it. That is why we say it is a step. Now, tendentiously we say a small step but, in our submission, for the reasons I have put, the impossible comparator of the born from which no one returns - - -

GUMMOW J: If you take the “ought” out of negligence, there is nothing much left.

MR WALKER: No, quite.

GUMMOW J: If you put it in, you do not really know why you are putting it in.

MR WALKER: Quite.

GLEESON CJ: And if you talked of conditions from which somebody ought not to suffer, there is not much way of limiting the range of conditions to which you are referring, if you are referring to conditions which people would prefer not to suffer.

MR WALKER: Quite. If it is mere preference in that sense, that is a weak or diffuse “ought”, then it is of no use whatever.

GLEESON CJ: It could certainly not be limited to profound physical disabilities.

MR WALKER: All I am asking is for a claim to be permitted which by definition of the course of events which hypothetically would have to have occurred to prevent the pain and suffering has to be extreme. So the small step is only for that extreme case and this case could, therefore, not be authority. Indeed, the very reasoning that we urge would be authority against people who suffer, like myself, with myopia having any post-birth claim on that account.

GLEESON CJ: But if you were to say a cause of action like this only lies in extreme cases, how are you going to indicate what a case is within those bounds?

MR WALKER: Your Honour, first, we do not say, as it were, that in the abstract as a mere proposition of negligence law. We say in this case the undoubted negligence and the fact that one can owe a duty, simultaneous duties to a woman and a child, including a child of whose existence potentially you did not know. Burton, for example, to which I have drawn attention, is a case of a dilatation and curettage procedure undertaken for therapeutic purposes in the woman’s interest without anyone knowing of the pregnancy – in fact, in that, of course, lay much of the negligence. There was no difficulty in the notion that there was a duty owed to the unfortunate child born as a result of that negligence. After all, would not society require that medical practitioners who perform procedures upon reproductive organs take into account reproduction? Reproduction produces, in due course, a legal person.

Now, the common law having taken that step, in our submission, it is not too far a step to observe, nor does it open the gates too wide to say, that where the necessary mediating event to the suffering of damage is a lawful termination then by definition it is only in cases where that termination could be lawful that there may be such a claim.

GLEESON CJ: You mean termination will only be lawful if there is an apprehension of an extreme disability?

MR WALKER: Your Honour, the way in which the law is expressed comes very close to that. We have extracted the essence of the judicial supply of the content of the statutory term unlawfully in the New South Wales abortion provisions - - -

GUMMOW J: That is another question you see. It varies from State to State, does it not?

MR WALKER: That is true. Now, it is relatively similar – it may be the same, or it was maybe the same in Queensland, hence the reference to Veivers v Connolly, the decision of Justice de Jersey to which we have brought attention in paragraph 19. It is different all around the country which is why I was answering Justice Kirby’s question about the statutory background as I was earlier.

GLEESON CJ: But the law of abortion fastens, does it not, upon the apprehended consequences to the mother, not upon the apprehended condition of the child?

MR WALKER: Both.

GLEESON CJ: The principle under which that law operates, as I recollect it in the case of Ward, is of necessity.

MR WALKER: It is ultimately, yes, your Honour. May I put it this way so as to justify my answer? The relevant matter in this case was honest belief, reasonable grounds, the procedure necessary to preserve the woman from serious danger – so there is all the hedging around of safeguards – to, and the one that matters in our case is mental health of the mother.

GLEESON CJ: The mental health of the woman. It is the preservation of the mental or physical health of the mother.

MR WALKER: Yes, and then one has to add an essential rider: apart from the normal dangers of pregnancy and childbirth.

GLEESON CJ: Now, what if the mother’s state of mental health is such that she will suffer damaging consequences because of the apprehension of even a slight disability?

MR WALKER: It is unlikely. That case must await decision in the context of criminal law. It is, after all, on reasonable grounds.

GLEESON CJ: But that is the point of the fact that the way criminal law operates is that it is concerned with apprehensions about the condition of the mother, not apprehensions about the condition of the child.

MR WALKER: But, your Honour, in that case, in our submission, there would not be anything like the prospect which is held out by the rubella case. There must be some women for whom termination is arguably lawful under New South Wales law because such is their pathological state beforehand – and the physical health ones are the best ones to test this on, not just mental health, but any pregnancy with, to use that awful phrase, “a perfect child” would suffice to render what would otherwise be a crime lawful and therefore a permissible choice.

Now, there are difficulties with choice obviously, and wardship comes up in other context, a very difficult context. There are difficult questions of choice and lawfulness of termination when the mental health is already so – not threatened, but already so parlous as might give rise to a case where any pregnancy would have a prospect that satisfied the condition of escape from crime. But we are not dealing with that case at all. What we allege as damage is, not coincidentally but of the essence of the claim by us – it is not the claim by the mother for breach of a duty of proper advice – the essence is that the prospect in this case was so awful as to threaten, with all the safeguards that I have read, the mental health of my client’s mother.

That is why I say both in this case and cases like this case, which are not atypical of lawful terminations, both the prospect for the mother and the prospect for the child are taken into account, because it is the awful prospect for the future child which directly produces the present prospect, the apprehension on account of the mother’s health. Now, it is in that sense, in our submission, that this is not a case which is properly testable by proposing cases of much less awful prospect for my client as seen, with appropriate and appropriately careful medical care, at the point of consultation with the doctor.

KIRBY J: Can I just revert to the argument in McKay. I notice there that there is a reference to the Law Commission Report No 60 which apparently was followed by the Congenital Disabilities (Civil Liability) Act in England of 1976. Now, that was some time back, that is 30 years ago now, the Law Commission Report, but do we have that in our papers? Presumably they looked through the policy arguments for and against recovery.

MR WALKER: No. Would your Honours like us to - - -

GUMMOW J: I think we should have it, yes.

GLEESON CJ: What they said was, at page 483 of the bound volume of the reports in relation to this rubella-type of a case, that:

If there is a negligent failure to warn a woman of this risk and if it is established that, had she been warned, she would have undergone a therapeutic abortion, it could be argued that the disability with which her child was born should found an action against her doctor or other adviser. Here the negligence did not cause the disability; it caused the birth, but no act or omission of the adviser could have brought about the birth of a normal child.

And their conclusions were:

We do not think that, in the strict sense of the term, an action for “wrongful life” should lie.

KIRBY J: But what I do not understand is that that apparently led to the Congenital Disabilities (Civil Liability) Act and yet in McKay, which was later, the proceedings were brought. One solution to this was to enact legislation but that has not been done and, therefore, we have to determine it according to the common law by analogy with general principles.

MR WALKER: Exactly.

GLEESON CJ: I think the cause of action must have vested in McKay before that legislation came into effect.

MR WALKER: I think that is right, your Honour. I was just trying to turn that up.

KIRBY J: Well, the writ was dated 70 of 1978 so it could well have been before the legislation which was in 1976.

GLEESON CJ: The legislation prohibited a claim for wrongful life in respect of births occurring after the passing of that Act.

MR WALKER: Yes, it is at the foot of 1169 in argument in the report there is a reference to that fact.

GLEESON CJ: But this claim in McKay was not prohibited by that legislation, as I would understand it, because of a question of time.

MR WALKER: Yes, that is right.

KIRBY J: Mr Bates gets quite excited by this use of “wrongful life”. He says it should rightly be described as “wrongful suffering”.

MR WALKER: I am not going to use the expression “wrongful life”, except by accident.

GLEESON CJ: Incidentally, when did your client’s cause of action arise?

MR WALKER: Upon her birth.

GLEESON CJ: Upon birth.

MR WALKER: Eo instanti with her birth she became a person with a cause of action for an accomplished breach of duty and present damage and that is, of course, the thing which the common law views with equanimity despite its illogic upon which I have relied in the way I have already argued.

Your Honours, because of the time and the need to divide between counsel may I try to shorten some things as follows. I do not have time, now, to take your Honours to the particular references but if your Honours would allow me simply to give you the particular page references for the following propositions in McKay v Essex whereas I submit one sees that it is an outright policy reason framed and phrased expressly in terms of sanctity of life which is - - -

KIRBY J: Justice Ipp treats it as an outright policy question, does he not?

MR WALKER: Yes, which, in our submission, now presents an opposite coherence or consistency point from the one which was available before the decision of this Court in Cattanach v Melchior. McFarlane, the English decision, or the decision of the House of Lords which was considered by this Court in Cattanach v Melchior, as we have pointed out in our written submissions, called in aid the sanctity argument – and I stress the sanctity argument - in McKay v Essex and those aspects of McFarlane are no part of the common law in this country in relation to a claim by the parents.

GUMMOW J: There is a question of coherence, then?

MR WALKER: Yes. Coherence and consistency of an opposite kind, of opposite nature, now arises.

GUMMOW J: No. If there is a claim by the parents why should the law say that is enough because if you go further you get into all these difficulties by a premise that will always be too wide, just like Donoghue v Stevenson was too wide, and we are still struggling with that. Why should we create another problem?

MR WALKER: Your Honour, I certainly accept, first, that is one of the most formidable obstacles in our way. The reason first is a matter not special to a parent and child claim or parent and child claims but more general in the law of negligence, namely, that unless there be positive conflict, that is, the moral dictates produced by the legal duty pulling in opposite directions, a question as it were, of the impossibility of simultaneous obedience, for example, there is no difficulty, and the law has never perceived a difficulty in more than one person having their own several claims against the one wrongdoer.

The law of negligence has never prevented that. However, the law of negligence, see, for example, Sullivan v Moody, has always prevented a duty being imposed as a result of finding actionable negligence, that is the means by which actionable negligence is discerned, which pulls against a concurrent duty, the content of which is inconsistent with the duty of care upon which that punitive negligence would depend. There is no such conflict or inconsistency in the simultaneous existence not at all strange of a claim by a parent and a claim by a child against the same wrongdoer for the several damage that they have suffered.

That is precisely what happens when the law of tort recognises that one person may simultaneously cause compensable damage to a number of different people with quite different interests. That means that if the reasoning that Justice Gummow has asked me to consider were to be adopted it would not be a straightforward application of the common law’s abhorrence of or perceived impossibility of conflicting common law duties. It is not a question of conflict. In our submission, this Court should not say of the difficulties said to arise in identifying damage so as to compensate by damages in this case, should not say that it is by any order of magnitude more difficult than what has now become routine, particularly in personal injuries and death claims, notwithstanding the well-known protestations of the impossibility that one finds in the earlier years of assessing damages for things which could never be calculated financially.

There is no conceptual difference in the difficulty posed. It is only the impossible comparator point which distinguishes this, we submit, from the other kind of cases and I do not have time to say anything more about - - -

GLEESON CJ: Is the problem that the comparison is impossible or is it that the comparison is invidious?

MR WALKER: In our submission, your Honour anticipates. In our submission, properly read, the decision of the Court of Appeal in McKay is the latter. As I say, I do not have time to go to all the passages but in particular in Lord Justice Stephenson at pages 1180H and 1184F to H, that can be seen. In our submission, properly read, that is the clear purport of Chief Justice Spigelman’s reasons, in particular in the court below.

GUMMOW J: That is a difficulty that does not exist with Cattanach. We went to great pains in Cattanach to say we were not making invidious comparisons between perfect and imperfect children.

MR WALKER: And neither is our argument. In our submission, the notion that the comparison is invidious depends, and this can be seen explicitly in McKay, on notions which are not available for common law reasoning for claims of this kind in this country by reason of Cattanach v Melchior. That has to be, I am afraid, given the time, my shorthand answer to Justice Kirby’s question, “How does Cattanach v Melchior bear on this case?” It bears on this case by producing a quite opposite question of coherence and inconsistency from that which was perceived in the argument which failed in Cattanach v Melchior before that decision. It produces in short the notion that the wardship jurisdiction, and this is my elaboration from Cattanach for the purpose of this case, is not to be seen as some freak, as some exception proving an opposite rule of the approach of the common law, the judicial arm of government, to - - -

GUMMOW J: That was the approach of equity actually.

MR WALKER: I am so sorry, I meant judge-made law.

GUMMOW J: I realise that.

MR WALKER: The approach of the judges as law makers - - -

GUMMOW J: There is just rather more nuance, that is all.

MR WALKER: Yes, and it is all judge-made law.

KIRBY J: I remember that that In re B (A Minor) was quite a controversial decision when it was made. Has it been followed in Australia, have there been cases which have quite so candidly acknowledged that they are facing up to the fact that if they do not intervene there will be the end of the life of a baby? There must have been such cases in Australia.

MR WALKER: Your Honour, I have looked at a lot. I do not think I have a straightforward baby case in Australia.

KIRBY J: Perhaps you might just feed it into a computer and see if there have been cases because I mean the problem must arise quite often in hospitals.

GUMMOW J: It is all caught up with the Family Law Act now, caught up with Marion’s Case, surely.

MR WALKER: Yes. In answer to Justice Kirby’s comment, yes, but that does not produce wardship proceedings necessarily.

KIRBY J: No.

MR WALKER: This country may be, in a peculiar way, blessed in different ways.

KIRBY J: There have been later cases in England, the Attard Twins Case and the proceedings in the Court of Appeal there concerning that.

MR WALKER: There are many, many wardship cases. I can tell your Honours we have looked at a lot for the purposes of presenting this argument. We have tried to present, in our written submission, that which, in our submission, is true in this country as in England and Wales, namely, that there is a balancing involved solely in the interests of the child, which may take into account positions in life including what might be called interests of parents and others, but solely in the interests of the child a balance which involves overtly, using words like “advantage”, “disadvantage”, “benefit detriment”, a comparison between what will happen if something is not sanctioned and what would happen if it is sanctioned.

Now, sometimes what is sought to be sanctioned is heroic surgery, sometimes not so heroic surgery, which would extend life. Sometimes what is sought to be sanctioned is a cessation of treatment or a non-carrying out of a particular procedure otherwise available - - -

KIRBY J: That was the case In re B I think.

MR WALKER: So that in all these cases the issue comes forward as “Will the court by decision, in the interests of the child” – that is the real reason why I called up the wardship cases – “say that it is better that the life ends sooner or later?” In particular, the decision we seek to emphasise in that is the one which we have emphasised in our paragraphs 23 and 24 of our written submissions, In re J. Because of the time I cannot go to the passages, but that is the decision where at the parts there named it is clear that McKay, which is simply described by Lord Donaldson as providing no guidance or assistance, in our submission, suffers some diminution of authority in that jurisdiction.

Of course wardship is different from a claim for damages, but the difference tells in favour of a plaintiff claiming damages, not against, because, in our submission, what was happening in all the wardship cases was literally a life or death position, or an early death/late death position, and it cannot be supposed that the law is, as it were, more inclined to be cavalier in drawing so-called impossible comparisons when a life may actually be shortened on account of the decision than it will be when it is asked to compensate by solatium and by compensation for created needs somebody whose pain and suffering will continue because the decision of the court is neither sought to be nor could be something that affects the duration of the suffering.

As I say, the wardship cases are critical because the language, the concept and the very jurisdiction involves the cardinal point being that it is in the interests of the child, involves a comparison. A subsidiary point of great importance directly applicable to the way in which my client presents to this Court by a tutor is the notion of substituted judgment, without which there could not be any real adjudication in a court in the interests of a child or another person disabled unable to express views of their own.

KIRBY J: It is interesting In re J that Lord Justice Balcombe approaches the matter by saying that the court, as it were, makes the decision which a good and kind and responsible parent would take.

MR WALKER: Parens patriae, yes.

KIRBY J: Well, parens patriae is the Crown, as, I suppose, a good, responsible and kind – and in doing so face up to the fact that in some circumstances the pain and suffering throughout life of the child is such that radical interventions will not be acceptable and, for that reason, contemplate the death even of a child. That is essentially, I think, what you are urging on us. You are saying that this is not irresponsible and this is painful, but there will be such cases where the disabilities are so terrible and gross and life-long that a decision will responsibly be taken by a parent, and hence by a court, that interventions to keep the child alive would not be taken on a hypothesis that even in such a case the child’s death has to be contemplated as an outcome.

MR WALKER: Yes. The critical thing about the wardship cases is they carry out the supposedly impossible comparison. It is not true, with great respect to the judges in McKay v Essex, that the law disdains to or refuses to compare life with either death or non-life.

The wardship jurisdiction does just that, including by what has been correctly, though with difficulty, described as “the quality of life” – a phrase that obviously induces a cringe if used in even the most slightly inappropriate context. We would prefer to come away from a notion of quality of life and talk about pain and suffering. That is something which does not require a comparison when it is detected. The only comparison is from that which is the state of affairs that language would not describe as pain and suffering. Poetry and scriptural pessimism aside, that is not the ordinary state of the ordinary human being ordinarily. That is why we have the words “pain and suffering”. It involves a comparison, but of a kind that does not need exact comparators.

In this case, by concession, and were there a trial – clearly by evidence there would be shown egregious pain and suffering – we have called it disability. Now, a case of that kind raises the question is it to be defeated because of this impossible comparison, sanctity not being available as an argument.

Now, in paragraph 25 we have drawn attention to another case which brings a slight variation in the wardship area. That is the case where there was a decision not to authorise a liver transplant for a little boy, I think it was. Your Honours will see in the passages that we have cited from Lord Justice Butler-Sloss at [1997] 1 WLR 251 to 252 in particular, as well as the other members of the court which we have cited, will see that there is explicit comparison between the prospects, including the risks and the pain and the distress and the trouble, on the one hand, of life with the surgery and of the other hand life without the surgery. Critically, the case was one where life without the surgery would be much shorter. One picks that up in particular from the opening passages in that report as to the facts.

Your Honours, the exigencies of time mean that otherwise I must rely upon my written submissions.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Bates.

MR WALKER: Your Honours, I apologise to my friend. May I simply inquire of your Honours whether your Honours have the passage which has been reproduced from Mason and McCall Smith’s Law and Medical Ethics Seventh Edition. It has been made available to the Court. I did not have time to address on it. It is a passage in the latest edition - indeed, I think it is going to be published next year rather than this year – of one of the leading treatises. The passage in particular makes reference to the decision below, including the reasons of Justice Mason.

GLEESON CJ: Thank you. Mr Bates, it would help us if you could just briefly explain the difference between your case and Mr Walker’s case, factually I mean.

MR BATES: Yes, your Honour. Your Honour, so far as the appellant Waller’s case against Dr Hoolahan is concerned, factually it appears to give rise to similar principles to the ones that are covered by Mr Walker’s client. In a general sense, I adopt his submissions, subject to some clarifications that I will be making in the course of my submissions, but in terms of the legal outcome it would appear the same legal outcome would govern both what I will call the Stephens matter as well as the Hoolahan matter.

KIRBY J: That was the obstetrician?

MR BATES: Yes, Dr Hoolahan was the obstetrician who took over the management of the antenatal care after the pregnancy was confirmed at week seven.

KIRBY J: And he concedes that he ought to inform the parents of the genetic defect?

MR BATES: Yes, he concedes that he should have advised the parents about the genetic defect and done the relevant testing for the AT3. In fact, as the agreed facts point out, he in fact did actually test for Down syndrome.

KIRBY J: Yes.

MR BATES: And that showed there was no Down syndrome and he concedes that he should also have tested for, but did not do so, in relation to the blood-clotting genetic disorder anti-thrombin III, or AT3.

KIRBY J: Can I ask the factual question, in your client’s case, at the time of the pregnancy and delivery, was there a means whereby the embryo could be tested for the presence of the genetic defects?

MR BATES: The testing could have been done – well, it is not in the agreed facts perhaps, but if I could perhaps say that certainly on my instructions, the testing could have been done really at any time, both before the period – sorry, while an abortion was still lawful - - -

KIRBY J: A number of embryos were developed, were they not, and some were kept?

MR BATES: Yes.

KIRBY J: Now, the question is – and about 50 per cent of them, as we understand, it is agreed would have had the defect and 50 per cent not?

MR BATES: Yes.

KIRBY J: Was there at the relevant time a genetic test that was available to discern those which did so that they could be discarded or not used and the others selected and implanted?

MR BATES: On our instructions, it could have been tested both before implantation which goes more to the issue of Dr James and Sydney IVF in what I call the other appeal. In the present appeal it could have been tested at the same time as the Down syndrome was tested for.

KIRBY J: That is not in the agreed facts you say?

MR BATES: Well, the agreed facts have a general statement, your Honours, that he should have tested without giving more precision about when it would have been done.

KIRBY J: It was the lack of precision that worried me when I read the facts, but do not take up your time because it is precious.

MR BATES: The agreed facts - - -

KIRBY J: I will have a look at that and we will just have to do what we can with the agreed facts.

MR BATES: The agreed facts are that testing was available at relevant times both before implantation and also after implantation and before the time for an abortion, so to speak, ran out.

KIRBY J: Well, the inference I would draw from that would be that at the relevant time it was possible to differentiate between embryos which presented with this particular genetic defect and those which did not.

MR BATES: Yes, your Honour, and, indeed, factually it could have been tested at the same time as Dr Hoolahan arranged – once he came into the matter. He did the testing for Down syndrome. He could have tested at that time for the AT3. In relation to Dr James and Sydney IVF, they have accepted for the agreed facts that they could have tested for the presence of that condition prior to implantation.

GUMMOW J: What is the position in your action as to Cattanach v Melchior claims?

MR BATES: I am sorry, your Honour?

GUMMOW J: Is there a Cattanach v Melchior action on foot as well?

MR BATES: Yes, your Honour.

GUMMOW J: In your case there is?

MR BATES: Yes, and, your Honour, that claim is pending. It is on hold, so to speak, while the parties are sorting out the issues which are the subject of the present separate determinations.

GUMMOW J: Thank you.

KIRBY J: Why do you need this action? Is it because of a cap imposed by the New South Wales legislation?

MR BATES: Your Honour, the claim brought by this present appellant, Waller, is governed solely by the common law. It was commenced just before the Civil Liability Act cut in, so to speak. The reason that the materials that I have provided the Court make reference to the Civil Liability Act is really by way of analogy towards the development of common law principles but not by way of any direct application to this case. The statement of claim was filed in 2001 before the critical date for the Civil Liability Act so the case of Keeden Waller, both in relation to the present claim on his own behalf and also in relation to the pending claim by his parents, is governed solely by the common law except by way of such analogies as may be drawn to assist in the development of the common law from a civil liability legislation.

KIRBY J: One would have to be careful about double recovery in cases of this kind. Have you made it clear to the other side that in the event that you succeed in this matter you would not be proceeding with the Cattanach action or - - -

MR BATES: Your Honour, there are some differences which are mentioned.

KIRBY J: Of course, there is the question of post majority that Chief Justice Gleeson referred to.

MR BATES: There are two differences, your Honour, which are important. The first difference is that in the child’s own claim, which is the subject of present determinations, the child is claiming for his lifelong condition, which may or may not - we do not know how long that will be but in the agreed facts it is accepted he will live past the age of 18 so that whereas in the, what I call the Cattanach v Melchior action there seems to be some ambiguity about when the dependency claim would run out.

GLEESON CJ: I said, “Yes, there does”.

MR BATES: Yes. There was a suggestion, your Honour, that the Chief Justice’s judgment that perhaps, for example, a dependent child say who was studying at university or something of that sort might still be dependent for a period after the age of 18.

KIRBY J: There is, by the way, a decision of the Supreme Court of India that I have noticed since Cattanach which says recovery up till the age of puberty which fits in with that view.

MR BATES: Yes, but be as it may anyway certainly there would appear to be - - -

GLEESON CJ: Puberty is a long way short of 18.

MR BATES: It is a long way short of 18.

GLEESON CJ: I have actually had experience of dependent children over the age of 18.

KIRBY J: It depends on the child.

MR BATES: It depends on the child. The other difference is that in the Cattanach v Melchior action, the wrongful birth action, the damages belong to the parents and although there is a moral obligation on the parents to use the funds for the child they are under no legal obligation to do so. It is not put into some sort of trust. If the parents decided to use the money for other purposes the child would not be able to have access to it.

GLEESON CJ: Now, you said that what I will call the second of your appeals, the appeal against Dr Hoolahan, is not materially different from Mr Walker’s case. Is there some material difference from Mr Walker’s case in relation to the first of your appeals, the appeal against Dr James?

MR BATES: Yes, your Honour, there are, we would submit, three significant differences which set the context for the difference between the two appeals. The first difference is that Dr James and Sydney IVF were actively involved in what I will call “the transmission” of the genetic disease to the appellant in that the only way the pregnancy could actually come about was through the successful implantation of the embryo into Mrs Waller when the pregnancy occurred. The parents were unable to have children the ordinary way because of male infertility on Mr Waller’s side and therefore absent the active step of actually implanting the embryo into Mrs Waller and the pregnancy taking place there would have been no pregnancy, there would have been no Keeden Waller and there would have been no genetic defect.

That differs, perhaps, from the situation with Dr Hoolahan in that the pregnancy was already at week seven when he came into it and we do adopt Mr Walker’s submissions that we agree that most medical practice, doctors do deal with pre-existing conditions. A woman comes along say, with lumps in her breast. The question might be does the woman have some form of breast cancer. If the doctor says do not worry about it, she goes away and the cancer progresses and then the prognosis is worse, it is quite clear in that case the doctor did not give the woman the breast cancer but the doctor, nevertheless, has by breach of a duty allowed the progression of the underlying condition. So in that sense we say that same principle applies to Dr Hoolahan and a recent example of a case which deals with that is in my authorities is in fact, Harvey v PD [2004] NSWCA 97; (2003-2004) 59 NSWLR 639.

KIRBY J: It is the HIV case, is it not?

MR BATES: Yes, that was a case where, your Honour, an HIV case and in that situation there, if I can just take your Honours briefly to it just on this point, at pages 655 to 656 at paragraph 106 and page 672 at paragraph 197 and I note the Chief Justice agreed at page 642, paragraph 1 but that – Mr Walker has addressed that at some length. It illustrates the ordinary principle that a doctor can be said to have caused or materially contributed to a condition which in no sense the doctor brought about originally.

HEYDON J: Well, that really points to the view that this is not a significant difference between the first and second appeals. In either case, the medical adviser is liable.

MR BATES: If your Honour is with me on the issue of causation, is it a difference, but certainly our opponents rely on it as being a significant difference and indeed Justice Studdert said it was a significant difference and Justice Ipp said it was a significant difference. They said, in effect, that the underlying condition is genetic and it was not caused by anything the doctor did and we say it was in the relevant sense. But certainly factually we say that on any view, the in-vitro fertilisation procedures meant that the doctors were actively involved in bringing about the condition. That is the first material difference.

The second material difference is that the whole practice of in-vitro fertilisation is an important field of medical practice and I will be taking your Honours shortly to some extra information about that, but we say that the fact that in-vitro fertilisation is being carried out – it is a significant element of medical practice in the community – and we say that that itself gives rise to public policy considerations that would favour the recognition of the appellant’s cause of action and that unless the cause of action is regulated then in-vitro fertilisation practice would be virtually unique, we would submit, in being the only area of medical practice which is not subject to any form of effective accountability for breaches of duty of care in circumstances where the doctors are very actively involved in the selection of the sperm, the selection of the female’s eggs, the carrying out of the conception in the laboratory setting, and clinically, the fact of the implantation into the mother - - -

GLEESON CJ: We are not here concerned with abortion, are we?

MR BATES: That is the third difference, your Honour. In fact, that was my third point. The third point was that if the doctors had discharged their duty then there would not have been implantation.

GLEESON CJ: What I was going to ask you, understanding that difference, was this: there would be no basis, would there, for limiting complaints about people who were the result of in-vitro fertilisation to complaints about having profound disabilities? What about people who complain that better selection might have resulted in improved capacity in varying respects? What kind of accountability are you talking about when you are talking about the accountability of people engaged in in-vitro fertilisation?

MR BATES: Your Honour, the accountability that we are concerned with is summarised at paragraph 41 of my written submissions as a limited class as follows. The appellant submits that the public policy and widespread community values do support parents who decide in particular cases that transmission of a genetic disease would not be in the best interests of a potential child and that in-vitro fertilisation, as indicated, prevents selection and implantation of embryos that have such a disease. This particular class of cases is much narrower, more constrained and not subject to the diverse public policy considerations that the more disparate examples given by Chief Justice Spigelman and Justice Suddert would suggest.

What is distinctive about this class of case is that the genetic condition was a known genetic condition creates a specific disease and it is not concerned with what I might call trying to create so-called desirable characteristics. It is concerned with disease being passed on, which is noble, foreseeable, identifiable, testable and diagnosable.

GLEESON CJ: But why would you limit it? Why would you limit the right to complain to people who suffer from serious disabilities?

MR BATES: Your Honour, I think the word “disability” in fact was Mr Walker’s term. I think we would express a principle, as I said there, in terms of a disease. This is a genetic condition which is known to transmit a particular disease, a blood-clotting deficiency, which is diagnosable in the same way, for example, as Down syndrome is diagnosable. The principle that I am contending for would limit the conditions to known diseases such as, for example, rubella, perhaps, or Down syndrome or AT3 conditions that are known to produce that particular disease. The legislation that I will take your Honours to shortly – some jurisdictions do indeed recognise that sort of a distinction which is the one I am contending for.

KIRBY J: Insofar as your claim concerns the action against Dr Hoolahan the question of abortion is raised because you say when it had reached that stage then Dr Hoolahan should have informed the parents and given them the advice and the option to seek a therapeutic termination of the pregnancy.

MR BATES: Yes, your Honour.

KIRBY J: So that is closer to the case we have just heard argued, but in respect of Dr James and the IVF clinic it is quite a different beast.

MR BATES: Yes, it is, your Honour. I accept that, your Honour, and indeed on the question of causation we would say in terms of the action against Dr James and Sydney IVF, if one assumes just for the moment, contrary to the agreed facts, but take a different example. Suppose that hypothetically Dr Hoolahan had tested for AT3 at the same time he did the actual test for Down syndrome and hypothetically assume that the result came back that the embryo which later became known as Keeden Waller had AT3 but did not have Down syndrome. Now, on that scenario, the present agreed facts are that Mr and Mrs Waller would indeed have had and qualified for a lawful termination of pregnancy.

But take a different scenario. Suppose that they said, “Look, the child doesn’t have Down syndrome; he has AT3. We have to make a decision at this stage what’s going to be in Keeden Waller’s prospective best interests. Given that I am now pregnant, although I would not have agreed to an implantation, I would not have allowed this embryo to be implanted if I had known about it, but now that I am pregnant I decide not to have the abortion”, we submit that would not break the chain of causation because it is not unreasonable for a woman to refuse to have an abortion at that stage by way of mitigation of her loss. So we say that whether she has an abortion or not does not break the chain of causation in relation to the breaches of duty or the - - -

KIRBY J: That sort of argument was raised in CES with Justice Priestley’s view that the child should be adopted out to minimise the damage – something which I was not inclined to agree with.

MR BATES: In the case, your Honour was against that proposition that adoption would be reasonably required. But, your Honour, I make this point because we say the issue of abortion causally has no bearing on the consequence that flowed from the negligence of Dr James from Sydney IVF. It is completely independent of that. That is the third differentiating feature. Your Honours, whilst we do generally adopt what - - -

KIRBY J: Could I just ask, has that point of distinction been raised of IVF now being 20 years old in any American cases or other cases that have led to a consideration of IVF responsibility in a different category to the so-called wrongful life cases?

MR BATES: Your Honours, as far as I am aware, none of the wrongful life cases that are referred to in the authorities that have been handed up by my friend have dealt with in-vitro fertilisation situations.

KIRBY J: That is not quite my question. My question is whether or not a separate stream of authority has developed in respect of IVF cases for liability for undetected or uninformed genetic disabilities of a serious kind.

MR BATES: I have not seen those in my researches, your Honour. So far as I am aware, no, your Honour, I am not aware of those.

HAYNE J: While you are interrupted, is a necessary part of the chain of reasoning for which you contend any evaluation of the reasonableness or not of the mother’s choice to terminate or not terminate a necessary step?

MR BATES: In relation to what I will call the claim against – sorry, if I could distinguish between the two appeals - - -

HAYNE J: I understand in the IVF case you say no intervening choice by the mother because no implantation, but in the case concerning the obstetrician does the chain of reasoning which you advocate have within it a step which requires any evaluation of the choice which the mother says she would have made, or is it enough that the mother says, “I would have chosen; the choice is lawful”? Do you have to go further than that? Do you classify that choice which she deposes to as not only lawful but reasonable, or is that not a necessary step?

MR BATES: As against Dr Hoolahan, it would appear to be a necessary step. As against Dr James and Sydney IVF, no, it is not a necessary step.

HAYNE J: And what is the content of the step, reasonableness of choice, or what is the evaluation that is thus brought to bear?

MR BATES: The evaluation is that the mother has made a decision, having taken account of all relevant information that the best interests of the prospective child would not be served by being born with the needs that are expected or predicted by the doctors to result from the condition.

GLEESON CJ: What if the mother makes an unreasonable decision in that respect and has the child? Can the child sue the mother?

MR BATES: No, your Honour.

GLEESON CJ: Why not?

MR BATES: Well, for the policy reasons that were adverted to but not decided in Lynch v Lynch, in the judgment particularly of his Honour Justice Clarke in whose judgment your Honour joined.

GLEESON CJ: What are the policy reasons?

MR BATES: Well, the policy reasons are that – if I can just take your Honours to that particular case perhaps.

GLEESON CJ: We are just interested in your submission. You do not have to justify it by reference to authority.

MR BATES: Yes, your Honour. Your Honour, the policy reasons are that the relationship between the mother and the child is a different relationship from the relationship between a professional medical adviser such as Dr James and the prospective parents. It is a different relationship. A duty of care and the content of the duty are relationally based and it is a different relation giving rise to different policy considerations. The policy considerations that arise in relation to a mother and a child are quite different from the policy considerations that arise in relation to a professional in-vitro fertilisation clinic and in-vitro fertilisation doctors. So that is essentially the way we analyse it. It is a different relationship, your Honour.

GLEESON CJ: You could express it as an argument of coherence?

MR BATES: Yes, your Honour, that would be another way of expressing it. Indeed, that would be a powerful way of expressing it in terms of coherence as developed both in Sullivan v Moody and also in Cattanach itself.

KIRBY J: You mentioned the mother’s right. Chief Justice Spigelman leaves unresolved the question of whether it is the parents’ right or the mother’s right. What is your submission?

MR BATES: Well, as a matter of law it is the mother’s right, but from an evidentiary point of view one would - - -

KIRBY J: It seems a little old fashioned in the day of shared responsibilities.

MR BATES: Well, it is a mother’s right because she is the one who is carrying the child. I am assuming that the implantation has occurred, your Honours. To answer your Honour more precisely I probably need to distinguish between post and before implantation. Prior to implantation, we would submit it is both the prospective mother’s and the prospective father’s because they are both involved in providing the genetic material, they are both involved in providing the sperm and the ova, they are both going into a situation where they will be bearing the financial burdens of parenthood and the like.

KIRBY J: In some cases. There are cases of anonymous donors and so on. But the law you refer to, is it the law that is denied to the father’s right to interfere in decisions which the mother makes in respect of the pregnancy? Is that what you are referring to?

MR BATES: I am referring really to the fact that if one goes to the IVF legislation, in general it requires the consent of the prospective parents, if I can put it that way, to the procedure.

GLEESON CJ: What, in this context, do you mean by the word “father”?

MR BATES: Well, in this particular case, your Honour, in fact Mr Waller was both the genetic father and the social father.

GLEESON CJ: Yes. No, in answer to the question you were asked by Justice Kirby of anonymous donors.

MR BATES: Well, in that case the anonymous donor is not involved. Indeed, the legislation expressly says that the anonymous donor has no liability.

GLEESON CJ: So when you were talking about rights – you were talking about rights that led to the question – you were referring to the - - -

MR BATES: Social father, your Honour, the social father who is part of the parental team.

GLEESON CJ: I follow.

MR BATES: Yes, your Honour, in that sense.

KIRBY J: One of your complaints in respect of the IVF clinic was that, if you had been informed and been given advice, one of the options that you lost was the entitlement to choose to have an anonymous donor as distinct from Mr Waller.

MR BATES: Yes, your Honour, indeed. If the clinic had said for whatever reason, or Dr James had said for whatever reason, “Look, we are aware that you are carrying this genetic disease that will affect half of these embryos and, for whatever the reason, it is very difficult for us to test that before implantation, and we can’t test it”, in that circumstance, the parents would have gone for the option of using donor sperm.

KIRBY J: It does seem that this case presents in a way similar to Cattanach the dual capacity and role of the law of tort which is (a) to compensate people who lose and (b) to set the standards of society so that those who have responsibilities fulfil those responsibilities properly. We have been concentrating so far on (a) but (b) is a very real factor in the law of tort as far as I am concerned, and I think others said that in Cattanach.

MR BATES: Yes, your Honour, I agree with that. Your Honour, if I could just perhaps turn now to just some aspects where we perhaps put a slightly different gloss on some of the submissions, whilst we generally adopt those that have been made by Mr Walker in relation to what I call the Hoolahan matter. I think Mr Walker at one stage when he was answering some questions about the nature of the comparison or the comparator said words to the effect that he accepted that the plaintiff had to be worse off.

We submit the language of “worse off” is perhaps more appropriate to referring to the loss of a pre-existing capacity. We distinguish in our submissions between the loss of a capacity and the creation of a need. They may overlap because the loss of a capacity, of course, can generate a need. Indeed, many needs are generated by loss of capacities, but one can have new needs arise without the loss of any capacity, and that is the heart of the damage that has been relied upon by the appellant Waller.

The appellant Waller has not lost a pre-existing capacity because if the duty had been performed, of course, he would not have been implanted. That may also flow through to one of the questions that was raised by the Chief Justice this morning as a matter of procedure where the Chief Justice mentioned, in drawing our attention to what President Mason had said at page 252 of the appeal book at paragraph 169, that the profound issues referred to may indeed flow through to the answer to both of the separate questions and - - -

GLEESON CJ: I just have a problem with that answer in question 1 without facing up to the profound issues that arose by question 2.

MR BATES: Yes, your Honour. Your Honour, I have sought to address that in my written submissions at page 16, paragraph 50 in distinguishing between the destruction or diminution of an existing capacity and, secondly, the creation of a need that would not otherwise exist and, thirdly, production of physical pain and suffering. I have also developed that more fully at page 17 of the submissions.

GUMMOW J: Now, were these questions which the Chief Justice is raising with you, were they considered in the Israeli decision of Zeitzoff v Katz?

MR BATES: Your Honour, I have not seen that.

GUMMOW J: Have you looked at that decision?

MR BATES: Your Honour, I have only seen so far some reference to it in an article. I do not think anybody at the Bar table has actually had a copy - - -

GUMMOW J: One of the parties to it – we have a note from the Medical Law series, but one of the judges was Judge Barak who is quite a significant figure I think.

MR BATES: Yes, your Honour. Your Honour, I am unable to assist your Honour with regard to the Israeli decision specifically.

GUMMOW J: Well, someone had better supply us with it. It is footnote 126 in the text of the seventh edition of Law and Medical Ethics that we were supplied with. Efforts had better be made. They do not have to be made right now but there had better be - - -

MR BATES: Your Honour, I have not seen a copy of anything beyond that footnote.

GUMMOW J: Well, that is not adequate.

MR BATES: Your Honour, Mr Walker has asked me to say that his clients are prepared to provide a copy of the translation of the decision, if it would assist the Court.

GLEESON CJ: Thank you.

GUMMOW J: It would have to be translated.

KIRBY J: Whether you can translate it or not, I would like a copy of the decision of the Hoge Raad of the Netherlands in Baby Kelly, even if it is only in the Netherlands language.

MR BATES: Yes, your Honour.

GLEESON CJ: This seems to be, if I can use this – quite an old decision. The note that we have been provided with is dated 1987. Anyway, we would be grateful to have a copy of that decision.

MR BATES: Yes, your Honour. Your Honour, coming just back to page 17, I refer to the decision of - - -

GUMMOW J: The Israeli decision is important because it is a common law case. They have negligence in Israel.

MR BATES: Yes, your Honour.

GUMMOW J: It comes from the mandate.

MR BATES: I am grateful for Mr Walker’s offer to make available a copy of the decision. Your Honour, coming back to page 17 of my submissions, I have referred to the recent decision of this Court in CSR Limited v Eddy [2005] HCA 64 where Justice McHugh reviewed the line of authorities dealing with Griffiths v Kerkemeyer damages at paragraphs 109 to 116 and concluded at paragraph 110 that the line of decisions in this Court had established that:

The special head of damages that Griffiths v Kerkemeyer sanctioned was based on need, not loss of capacity.

The appellant’s submission is that the fundamental part of his damage or injury is indeed the new needs that have been created by the foreseeable breaches of duty of Dr James and Sydney IVF together with those further needs that materially result from that.

That may have a consequence that some heads of damages that are solely due to loss of capacity cannot be recovered but there would still be various damages that could be recovered, specifically the damages which result from the disability or relate to the disability, and perhaps even those aspects of general damages that relate to pain and suffering as distinct from loss of past amenities. Can I come back to that aspect, your Honours, in my submissions in reply.

KIRBY J: Mr Bates, could I revert to the issue of the answers to the disposition of the appeal. Because of time it will probably not be possible for you to deal with that fully during the argument but it would be desirable if you and Mr Walker at some stage, giving notice to the respondents, give your best and proper answer to that because we do not want to be struggling with that question without the fullest possible assistance.

MR BATES: Yes.

KIRBY J: I see that you did put in some new orders that you sought in your submissions in reply but they do not appear to address the issue which has been raised by the Chief Justice.

MR BATES: Yes, your Honour. I have tried to grapple with that perhaps more realistically in my submissions in reply at paragraph 64. Appellant Waller acknowledges the main component of compensation would be to meet his reasonably foreseeable needs. Additionally, if general damages is permitted, it should include pain and suffering, even if loss of amenities is not permitted.

GLEESON CJ: I am sorry, just before you pass on that last sentence, you do not mean special needs, or do you? Do you mean needs over and above the needs of a “non-disabled” person or do you mean special needs?

MR BATES: They may be synonymous but I mean the needs flowing from the - - -

GLEESON CJ: What about the costs of his schooling?

MR BATES: Your Honour, we are not seeking to claim what I will call the costs that would be referrable to the ordinary costs of raising a healthy child.

GLEESON CJ: That is what I was trying to understand. Why not?

MR BATES: Because the child is not paying for being born. Being born is giving him standing to sue.

GLEESON CJ: Presumably his parents are claiming the costs of raising an ordinary child in their Cattanach - - -

MR BATES: They are claiming those costs and that will be governed by the – well, their claim, at the present time, will fall under Cattanach v Melchior prior to the legislative amendments.

GLEESON CJ: So they claim the ordinary costs of raising an unaffected child, if I can use that expression.

MR BATES: Yes.

GLEESON CJ: Who gets the costs of the special disabilities, the parents or the child or both?

MR BATES: In the Cattanach v Melchior situation they are the parents’ damages to do with what they want. Morally, they have an obligation, of course, to support Keeden and help him. Indeed, they have been very devoted parents and they have done so, but if one is looking at the question of abstract principle, as a matter of principle, the damages belong to the parents and they are not put into a trust account, they are the parents’ damages, whereas the - - -

GLEESON CJ: So when you come to awarding damages against Sydney IVF, on awarding damages to Keeden Waller against Sydney IVF, how, if at all, do you allow for the fact that Keeden Waller’s parents have recovered or will recover against Sydney IVF the costs of the special needs?

MR BATES: Well, your Honour, in this case the main proceedings are proceeding together so there is no risk of inconsistence outcomes. All of the plaintiffs - mother, father and son - are all plaintiffs in the same proceedings which come off a trial at the same time.

GLEESON CJ: So what should happen when the judge comes to make a decision?

MR BATES: We would submit that what should happen is that any damages which are actually given to Keeden Waller in his own claim, if I can put it that way, relating to his own needs, we would submit that that should be given priority first.

GLEESON CJ: Why?

MR BATES: Because they are his damages.

GLEESON CJ: In practice it is the parents who would have to pay for the carers, is it not?

MR BATES: Well, they would go into a trust. They would be managed by a trustee in his best interest.

KIRBY J: Is that because of law or because of a decision they have made, because you will remember that in some of the American cases they talk of the danger of parents misusing moneys meant for their child.

MR BATES: Your Honour, in New South Wales under the damages for infants and people of unsound mind any awarded damages to a disabled person in fact gets managed basically by the public trustee authorities.

KIRBY J: So it is under that statute?

MR BATES: Yes, your Honour.

GLEESON CJ: At all events, all the parties will have an opportunity to put in further written submissions if they wish on this issue. I was only concerned about the possibility that we might be being invited to rise above these issues in deciding the question of principle.

MR BATES: Yes, your Honour. As a question of principle we would not be seeking some sort of double compensation, if I can put it that way. I mean the way it would have to be fashioned may have to be articulated at the hearing depending on what damages are recovered. As a matter of principle we would accept the principle that there should not be double recovery, that there should be one lot of compensation depending on what the matters are.

In the parents’ claim they are claiming of course things such as the expenses they have paid for the IVF that has been carried out, they are claiming things such as their loss of earning capacity while they are looking after the child, but if the court was to grant the cause of action to Keeden Waller and to award some form of damages for his needs we would regard the court as having sufficient authority by way of principle to articulate the principle that those damages should not be recovered yet again by the parents in their own claim.

GLEESON CJ: I take it that neither appellant is suggesting that we should follow the course taken by the House of Lords in the case of Rees and award a conventional sum?

MR BATES: Well, your Honour, I did raise that as a possibility in my submissions.

GLEESON CJ: Is that your submission, that we should do that and, if so, to whom should we award the conventional sum, the child or the parents?

KIRBY J: I do not know what the conventional sum is.

MR BATES: Well, your Honour, first of all, can I - - -

GLEESON CJ: Fifteen thousand pounds.

MR BATES: It is ₤15,000, and that was solely - - -

KIRBY J: Well, do not count on me taking a view of conventional sum. That is ridiculous.

MR BATES: Your Honour, we would not see a conventional sum as appropriate for his, what I will call special needs. They should be met in full. The only area for a conventional sum would be if the Court perhaps decided in relation to general damages that it was too difficult to award some form of general damages at large.

GLEESON CJ: All these are the sort of questions that were left unresolved in that paragraph in Justice Mason’s judgment, but we would not want to leave them unresolved if they have any bearing on the question of principle raised by question 1.

MR BATES: Yes, your Honour. Your Honour, can I clarify something in case I misunderstood? In my submissions in reply at page 3, paragraph 64, subparagraph (2) where I said additionally, if general damages is permitted, it should include pain and suffering. If I could just interpolate because that flows from the need that has been created as a result of the disability that has been passed on. I then go on to say, even if loss of amenities are not permitted on the basis that loss of amenities flows from some form of loss of capacity because there was none in this particular case, there is no pre-existing capacity that has been lost, I then go on to say, another approach would be to allow a conventional amount. I wish to clarify that I am only referring there specifically to pain and suffering. It is not any part of the appellant’s case that his needs should be limited to any conventional sum.

KIRBY J: That sounds like what one might call English judicial pragmatism but it does not sound like a principled decision, with all respect to their Lordships.

GUMMOW J: I think it was avowedly said to be so. They had read Benham v Gambling.

MR BATES: Yes.

KIRBY J: They just found it all too hard. Well, we wrestle a bit more.

MR BATES: Your Honours, can I say this. In answering question 2, if we get that far, which we hope, on our submissions, we will, we would in principle be asking the Court to accept that the compensable damage relates to the needs created or the needs that result from a disability as distinct from those traditional components of damage that might be thought to flow from a loss of a pre-existing capacity. I put that as a principle that, we would submit, should guide the Court in answering question 2.

If I could just take your Honours now to some of the legislation that I have mentioned. Your Honours should have the additional bundle that we had handed up. First of all can I say this, that, in my submissions, if your Honours have the additional bundle, your Honours will see that there are some extracts from articles set out from page 1 of our bundle through to and including page 52, that deal with some data with regard to in-vitro fertilisation pregnancies and the like. I have spoken to my friend, Mr Gageler, and he has informed me that he has no objection to that material going in provided that it is only being used for the purposes I referred to in my written submissions with regard to data and that is the only purpose that has been relied upon to establish the data for the number of in-vitro fertilisation procedures and so forth carried out in Australia. If your Honours go to my written submissions at page - - -

KIRBY J: I am not exactly clear. You make a point in your written submissions that there are I think 9,000 such cases a year, at least in 2003, but what is the point that flows from that, assuming it is 9,000 or more according to these papers. It is a very large number of people have infertility problems and they go onto IVF. What is the point?

MR BATES: The point is to say that, really to say that in-vitro fertilisation is now an accepted part of medical practice in Australia and as a matter of public policy it should be subject to the ordinary principles of accountability.

KIRBY J: Does anybody say otherwise? Is there anything in Justice Ipp’s declaration of policy that suggests otherwise? I mean I do remember the early debates that IVF should be banned and it was unnatural and so on but no one really says that any more.

MR BATES: Your Honour, it is also partly to meet the other aspect that does come through what Justice Studdert said and Justice Ipp said which was there was a comparison with a variety of other things such as predicting criminal dangerousness and a whole variety of what I call eugenic sort of concerns that were raised.

KIRBY J: If you are right this is a cost factor of IVF that sometimes mistakes are made in pursuing it in the large number of cases and then by inference have to be shared over the large number of cases through insurance.

MR BATES: Yes, your Honour, but in addition given that the number of babies being born in Australia from IVF – Keeden Waller, his procedure was carried out in 1999. Back in 1998, 1.5 per cent of all new pregnancies were IVF. That has been steadily rising and by 2002 that has risen - 2.3 per cent of all new pregnancies are through IVF in Australia and indeed, typically now as one can see from the figures set out at page 12 of my submissions - - -

GUMMOW J: How could that statistic ever have been arrived at? Are you talking about pregnancies or births?

MR BATES: Births, your Honour. Sorry, your Honour. As your Honours will see from the figures summarised at page 12 of the submissions, by 2002 the number of in-vitro fertilisation procedures being carried out annually in Australia is approaching 33,000 and the number of treatment cycles being carried out in Sydney alone is in the order of 9,000 now per year. So these are large numbers of procedures that should be subject to the ordinary law of negligence. One of the points that is taken against – sorry, before I do that, your Honour, the pages – your Honours will find those figures set out in my supplementary material at the following pages. I will just give you a list of them. At pages - - -

KIRBY J: Can I just get it clear. Is it your submission that unless this Court reverses the Court of Appeal majority that because the comparator is said to be a non-IVF produced baby that that gives a zone of immunity, a sort of legal Alsatia to IVF practitioners that others do not have? Would they not, as in the first case, have a similar immunity because of the legal principle?

MR BATES: Yes, your Honour.

GLEESON CJ: But no immunity from claims by parents?

MR BATES: Yes, your Honour, that is true.

KIRBY J: Subject now to the statutory alterations in some States.

MR BATES: Yes, your Honour. Your Honour, one of the points that was made in Mr Gageler’s submissions at page 5, paragraph 16, was that the term “assisted reproductive technology” had not been defined. If your Honours would make a note that at page 48 of the bundle it is defined and that in fact it does apply to mainly in-vitro fertilisation procedures and that it is only 9.4 per cent of those procedures that result from more traditional forms of artificial insemination by donor. Your Honours will find that figure of 9.4 per cent of the total figure of 2.3 per cent at pages 19 and 22 of the bundle.

Your Honours, if I could just move on next to another aspect that is addressed in my written submission which is the IVF legislation that is enforced in some States.

GUMMOW J: Now, what do you get out of that?

MR BATES: Your Honour, we put it on the following basis that the Court in this case is determining the common law of Australia, that as part of determining the common law of Australia the Court would have regard to values that may be reflected in legislation as a democratic expression of community values and that the legislation in three States clearly contemplates that a proper indication for in-vitro fertilisation in the best interests of the child, and I will come back to that, but in the best interests of the child is to prevent the transmission of a genetic disease and so we ask the Court to accept - - -

KIRBY J: It merely repeats our problem because some people will say how can it be in the best interests of the child to be a non-child.

GLEESON CJ: And what do you mean by genetic disease?

KIRBY J: I am not criticising your submission, I am simply pointing out that it merely restates the problem before the Court. It does not solve it.

GUMMOW J: But there is no dispute, is there, that there was a duty of care and there was negligence? That is not the end of the problem.

MR BATES: Yes, your Honours. Chief Justice Spigelman in his approach to the problem indicated that one of the reasons he would refuse to recognise a duty of the kind contended for - - -

GUMMOW J: .....duty breach in damage.

MR BATES: Yes, your Honour, but specifically he said that one of the reasons why he did not believe that the duty should be recognised was that it did not have the support of community values. That was one of his reasons. He referred to Donoghue v Stevenson and what was said there and he said that a new duty should have the support of community values.

GUMMOW J: Yes. I do not regard myself as a divinator of community values.

GLEESON CJ: Mr Bates, how long do you expect to require to complete your argument?

MR BATES: Your Honour, I would probably seek another 15 minutes if I could have that time.

GLEESON CJ: All right. We will adjourn now and we will resume at 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ: Yes, Mr Bates.

MR BATES: Your Honour, prior to the adjournment I had been talking about needs as the cognisable damage. If I could just give a list of the paragraphs of my submissions which collect my analysis of that, that is at paragraphs 49, 50, 53, 61 and 64. Also, in response to your Honour the Chief Justice there was a discussion before lunch about the notion of special needs or needs going beyond ordinary needs of a child. If I could just take your Honours now to some provisions of the civil liability legislation. These provisions are not relevant directly because the common law applies here but they do give an analogous analysis of the concept of special needs.

First of all, if I could take your Honours into the bundle of materials that we have provided, the additional materials, for New South Wales if one goes to page 64, the current Civil Liability Act is set out there. If one turns to page 84 in the bundle, at section 27 there is a definition of “personal injury” which includes:

(a) pre-natal injury –

and at page 95 of the bundle, sections 70 and 71, what is interesting in subsection (2) it appears to exclude the wrongful life situation because it says:

This Part does not apply to any claim for damages by a child –

so it would appear that the amendments apply to the Cattanach parent situation rather than to the child’s situation in relation to pre-natal injury. Going down to section 71(2), it says, at least in relation to the parents’ claim that:

the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability –

are even still permitted in the post Cattanach situation. Going next to Queensland, the present legislation starts at page 113 of the bundle - - -

GLEESON CJ: That produces the same result in New South Wales as applies in England, does it not? It operates by virtue of the common law in England?

MR BATES: Yes.

GLEESON CJ: I may be wrong, but that appears to me at first sight to assimilate the position under this statute to the position that flows in England from the decision of the House of Lords, subject to what we talked about this morning in relation to this conventional sum.

MR BATES: Well, I am not sure that is right, your Honour. Section 70 says “This Part applies to any claim for damages”, but then subsection (2) says “This Part does not apply to any claim for damages”. So it appears that subsection (2) seems to be taking that situation completely outside the operation of section 70.

GLEESON CJ: I was talking about section 71(2).

MR BATES: Yes, your Honour, I am sorry.

HEYDON J: What do these statutes have to do with the common law? What light do they cast upon the common law?

MR BATES: The only light that I seek to put on it, your Honour, is that if one is trying to formulate some kind of common law principle to distinguish between trivial needs or between ordinary needs of just being an ordinary child and the kinds of cases which are presently before this Court, these are just examples of formulations which Parliaments have been adopting to try and draw that distinction. It is not a bright line distinction, but a way to try to encapsulate the idea of distinguishing between ordinary needs and what I call special needs, if I could perhaps put it that way. But that is the only basis upon which I am seeking to use these statutes here by way of an analogy of that sort.

KIRBY J: The difficulty is that Parliament can be as arbitrary as it likes, but courts cannot do that. We have to act in a settled way consistent with analogous principles. I mean, how on earth can a court agree to a provision like subsection (2) just giving costs and not allowing the other heads of damages that have been allowed for a long time in negligence actions?

MR BATES: I understand your Honour’s point and my fundamental submission - - -

KIRBY J: We are not legislators, you know, we are not just sitting here to lay down a principle and say that will be a good thing.

MR BATES: Yes, your Honour. Well, your Honour, in terms of common law I am submitting that the needs that flow from the disability or the foreseeable disease is the needs that we are claiming for. I am just referring to this merely by way of seeing how these decisions have been drawn in more recent legislation, your Honour. Your Honours, turning next to Queensland, it starts at page 113 of the bundle and the relevant provision is at page 148 of the bundle in section 49A, in section 49B. These amendments are limited to failed sterilisation operations and failed contraceptive procedures - - -

KIRBY J: Which section are you going to?

MR BATES: Section 49A; 49B at page 148 of the bundle in Part 5 of the Civil Liability Act 2003 (Qld).

KIRBY J: Look at all these are pages of arbitrary limitations and distinctions. That is something I can do.

MR BATES: Your Honour, the part that I just drew your attention to are in section 49A(2) and section 49B(2) where once again Parliament has not sought to prevent damages including the costs over and above ordinary so-called childrearing costs. That is the only point I seek to make. Your Honour, South Australia starts at page 174 of this bundle.

HEYDON J: All these references are in paragraph 65 of your written submissions, are they not?

MR BATES: Yes, your Honour.

HEYDON J: Cannot we read them later?

MR BATES: Yes, your Honour. I will just give the page numbers, your Honour. The Queensland one is at page 148. The South Australian provisions are at pages 191, 192 and 198 of the bundle and the ACT Bill is at page 202 of the bundle. Moving on then, your Honour, to the - - -

KIRBY J: There is a controversy about the extent to which courts can use statutes to inform the content of the common law. It has been referred to in a few cases in this Court. Do you collect those cases?

MR BATES: Yes, your Honour.

KIRBY J: One of them was the State Government Insurance Office of South Australia, I think.

MR BATES: Your Honour, I think the most recent consideration by this Court was in CSR v Eddy [2005] HCA 64. In that case the majority view had regard to the sort of legislative provisions dealing with what I will call Griffiths v Kerkemeyer damages by way of informing the common law situation. That is the most recent discussion, your Honour. Your Honour, turning next then to the IVF legislation. Again in response to what your Honour Justice Heydon has just said, the legislation is summarised in my written submissions at page - - -

GUMMOW J: What was the footnote in your submission with those references that you just told us? You said there was a footnote that collected the statutes.

MR BATES: It is paragraph 65, your Honour, and also paragraph 50(iii). Your Honour, with regard to the in-vitro fertilisation provisions, they are summarised in my written submissions at paragraph 43 which goes from pages 12 through to 14. Again in the interests of time I will just give you the page references to the bundle. The South Australian legislation relevantly starts at page 239 of the bundle, the Victorian legislation relevantly starts at page 284 of the bundle and the Western Australian legislation relevantly starts at page 349 of the bundle.

Turning next to the concept – I will not go into that further because they are summarised in my submissions and I have given those references. Turning next to some aspects of the concept of the best interests of a prospective child, which is the test that we are advocating here on behalf Keeden Waller in relation to the mother’s decision, if I could take your Honours to the case of MAW v Wester Sydney Area Health Service [2000] NSWSC 358; (1999) 49 NSWLR 231, a decision of Mr Justice O’Keefe in the Supreme Court Common Law Division. He discusses some of the problems of the parens patriae jurisdiction in regard to whether or not a wife could obtain semen from her unconscious husband for use in a proposed artificial insemination procedure to make her pregnant.

The part I wish to take your Honours to in the present context is at page 241 of the decision at paragraph 43 and 44 where we submit this is a similar analysis that would apply in the case of a decision by someone such as Mrs Waller. Paragraph 43:

Whilst I find it difficult to formulate the best interests of the welfare of a child such as is postulated as a possibility in the present case –

that being a child who would be produced by semen taken from the unconscious husband and used in an artificial insemination procedure –

such best interests should, under our law, be had regard to.

He then goes on to discuss aspects of that and he says at paragraph 44:

In the circumstances of the present case I cannot conclude that such a child’s best interests would be served by being brought into existence in the manner, at the time and in the circumstances contemplated as possible by the plaintiff.

We submit this is an example in a common law context of how one can talk in a meaningful way about the notion of the best interests of the prospective child, the sort of decision that would be facing someone such as Mr and Mrs Waller.

HAYNE J: Now, do you say that this test of “best interests of the child” is the sole relevant criterion?

MR BATES: Subject to any issues of unlawfulness or illegality - - -

HAYNE J: Assuming the mother’s choice would be lawful, I understand that, but what of the case where the mother has beliefs which she would wish to take to account in determining whether to terminate the pregnancy or not? What account do you take of those?

MR BATES: Well, that consideration may be more relevant in the case of Dr Hoolahan.

HAYNE J: I understand, but you look, as I understand it, on your submission, to the best interests of the child in determining what decisions would be made, including the decision whether, after conception, the pregnancy should be terminated. Is that right, or do I misstate your submission?

MR BATES: Initially, whether the child would even be implanted. That would be the first decision: whether it would be in the best interests of this child to even be implanted through the in-vitro fertilisation procedure.

HAYNE J: Now, once pregnancy has ensued, how complex is this decision about whether or not to terminate? What is the criterion that is to be applied in determining whether it was reasonable, appropriate, right to conclude that the pregnancy would have been terminated?

MR BATES: A lawful termination, if it is lawful, looks to the mother’s situation, but the mother, as part of her own decision-making matrix, as set out in CES v Superclinics, may have regard to the best interests of her child. She may, for example, be very distressed about the prospect of having a child who she cannot support all of his needs, which may be a factor in her mental condition which may in due course make the abortion lawful. So the mother’s assessment of her child’s best interests may well indeed be a major factor in why she develops the kind of mental state that would render the abortion to be a lawful one.

HAYNE J: The agreed facts in both of the appeals in which you are concerned stop, I think, at saying that had the information that was appropriate been available to the mother she would have terminated. There is no agreed fact about what objective quality that decision could or should be given, whether it was reasonable, appropriate or some other objective test.

MR BATES: No, I think the only thing one could read into the agreed fact is that the criteria laid down in CES v Superclinics are satisfied, which I think Mr Walker has already addressed on.

Just two short last points. Mr Walker took your Honours already to In re J [1991] Fam 33 in the English Court of Appeal. I adopt his comments but I just also draw attention to the fact that there was some criticism made in that case by the judges to what they saw as the emotional language that had been used in In re B. Before the luncheon adjournment his Honour Justice Kirby was raising aspects about In re B and In re J there was some suggestion that the language used in In re B had been rather emotional. For example, at page 51, paragraph D there is a reference to:

the somewhat emotive language used by Templeman L J –

and there is reference also in another judgment to the same effect at page 54, paragraph C to the – they say the “emotive” language of Lord Justice Templeman.

KIRBY J: Where is this?

MR BATES: It is at page 54C.

GUMMOW J: So what?

KIRBY J: I did not ask that question.

MR BATES: The other aspect that I draw attention to anyway, your Honours, is this. In re J is a case where the child was not terminally ill and yet in terms of breaking comparisons these wardship cases are not limited just to the case of a terminally ill child. Again, In re T - - -

KIRBY J: But these are matters that touch the deepest feelings of human beings. They touch the lives of babies and human life generally and they concern us because of the fears of eugenics and the fears of selection of the perfect child and technology is moving in directions that make these some of the most important decisions courts make, so a little bit of emotion is not to be surprising in judicial opinions, is it?

MR BATES: Yes, your Honour.

GLEESON CJ: Where did Lord Justice Templeman get into this?

MR BATES: That was back in about 1982, I think.

HAYNE J: In In re B.

KIRBY J: In In re B (A Minor).

MR BATES: Your Honour, similarly in In re T [1996] EWCA Civ 805; [1997] 1 WLR 242 which Mr Walker has taken your Honours to, the significant thing again there is the child was not terminally ill. I only raise these in support of Mr Walker’s submission that courts do, in fact, allow some sort of comparison to be made about quality of life even in a situation where the child is not terminally ill. It is simply put on that limited basis in support of a Sullivan v Moody submission here which is dealing with the circumstances under which a prospective child is to be brought into life. It is only put on that basis, your Honour.

Last, your Honour, just for housekeeping purposes, I think my friend handed up Burton v Islington Health Authority in a medical law report. It is also actually reported at [1993] 1 QB at 204.

GLEESON CJ: Yes, thank you, Mr Bates. Yes, Mr Gageler.

MR GAGELER: Your Honours, the imposition of a duty of care in cases of the present kind, and we draw no material distinction between them, encounters two quite fundamental problems - - -

HEYDON J: Can I just get one thing straight?

MR GAGELER: Yes, your Honour.

HEYDON J: No one has admitted anything, so far, have they, except for the purpose of the Part 31, rule 2 determination that Justice Studdert embarked upon?

MR GAGELER: Yes, correct and, your Honours, the two problems reflected in the form of the separate questions that have been reserved pursuant to that part, they are, in our submission, problems of legal principle or of institutional capacity and in common law jurisdictions that have considered these issues, those problems have been almost universally recognised and almost universally recognised to require the rejection of the duty of care. The first of the problems - - -

KIRBY J: What, no duty at all?

MR GAGELER: Correct. The first of the problems is that of treating the birth of the plaintiff, that is the life of the plaintiff, however impaired, as a loss or injury in fact and on that basis, if for none other, for treating it as damage or as legally cognisable harm that, in essence, is the problem raised in the judgment of the Chief Justice in the decision under appeal and the second, overlapping problem is the problem of assessing damages through the application of the ordinary common law principles of compensation and that, in essence, is the problem identified in the judgment of Justice Ipp.

The problems at root both stem from, if not the impossibility, then at least the invidiousness of a court treating non-existence as a comparator. That difficulty is one that arises qualitatively in determining whether or not there is loss or injury equals damage and it is one that arises quantitatively in attempting to determine whether there are damages that can be assessed and awarded by a court.

Now, the appellants at all stages of these proceedings, including in their arguments to this Court, skate lightly over the quantitative question to which I will return in due course but they seek, as we understand it, to deal with the qualitative question by advancing what, on our analysis, really comes down to three propositions. Can I state them; can I state our summary response to them and then develop those responses.

The first proposition which they make in various ways is to say, well look, the injury of which they complain is not life itself. It is a life of suffering and needs that it brings or it is a life severely impaired. That is the concept, they say.

The second proposition is that they say it is possible for the Court to conclude that the severity of that suffering or impairment is of such a degree that it would have been in their best interests had they not been born. Then the third proposition is that they say it should be concluded as a matter of law, on one view, or perhaps as a matter of legitimate inference that they would have been better off if they had not been born simply by reference to the choice that their parents would have made lawfully to terminate the pregnancy or, alternatively, in the case of Waller to avoid conception or impregnation.

Now, dealing with those three propositions, our submissions in summary are as follows. The first proposition can be accepted, but on a proper analysis leads nowhere without the second, which we understand to be at least implicit in the oral submissions of Mr Walker. As to the second proposition, in our submission, it should be rejected in principle as going, if not beyond the capacity, then at least beyond the proper scope of curial determination. We say the third does not follow even if the second is accepted.

May I develop our submissions in response to the propositions. To say that the injury of which the appellants complained in fact is a life of suffering or a life severely impaired is, in a sense, correct, but for the purposes - - -

KIRBY J: What do you mean by “in a sense”? My understanding is that that is not disputed.

MR GAGELER: No, no. What one has to take into account for the purposes of legal analysis, for the purposes of determining the existence of a putative duty of care, is that for each of these children, for reasons quite independent of any action or inaction on the part of the doctor or clinic in question, no other life was possible. In the case of Harriton, your Honours here need only look at the agreed facts, paragraphs 19 and 22. The child’s congenital disabilities were caused by a pre-existing rubella infection. If the child was to be born, the child would be born with the consequences of that pre-existing infection. In the case of Waller, the disabilities are genetic. The child would not be the same child without that child’s own genetic make-up and it is quite wrong, in our submission, to say, as did President Mason at paragraph 135 of the decision under appeal, that one was concerned here with a preventable genetic disease.

GLEESON CJ: What you are saying I take to be in effect what Chief Justice Spigelman said in the first sentence of paragraph 24?

MR GAGELER: Yes. What I am saying is getting to what Chief Justice Spigelman said, that is, he said it at paragraph 24 and he returned to it and said the same thing in slightly different language at paragraph 43.

GLEESON CJ: But Justice Mason said something different in paragraph 116 which perhaps needs a little unpacking. In the second sentence in paragraph 116 he deals with the same question to different effect. When he says they:

omitted to give advice and treatment to the mothers that would have prevented the suffering –

is there any other possible means by which the suffering might have been prevented other than non-existence?

MR GAGELER: No. For each child, for the performance by the doctor of this putative duty of care to have prevented the suffering or the impairment, that could only have occurred by preventing their birth. That is the fundamental point. If they were to be born at all they were to be tragically born into a life of suffering and the only consequence of the performance of this putative duty of care would be to prevent them being born into that life.

That is why one gets to the point that Mr Walker in his oral submissions quite rightly came at the beginning and to which the Chief Justice below got in paragraphs 24 and 43 of saying the damage or the injury in fact can only exist if one can say that a life of that nature into which they were born was worse than no life at all. There is in the material that we have given reference in our written submissions a list of articles. There is only one of those articles that really, in our respectful submission, helpfully and conceptually comes to grips with this very issue. It is the one that is numbered 65. I will not take your Honours to it but it is the article in the International Law Quarterly comparing German and US law on this topic. It is a very short article and conceptually very powerful.

KIRBY J: Do the Germans take a different view, do they?

MR GAGELER: Essentially not, no, but really in two or three pages the author really grapples with the conceptual difficulty.

KIRBY J: But the logic in this may be required by conceptual thinking and by legal principle and that is what we have to work out, but it does lead to an odd result that medical practitioners who can be very seriously negligent and by reason of that negligence a person is born who will live in great suffering and pain are then not obliged to make any contribution for that, that the life is in being and therefore cannot be wished away, according to the law, but it is a life of great suffering and pain and therefore the point that is made for the appellants is, “I don’t say I shouldn’t have been born. I am born. That is what gives me rights in law. But I do say that having been born now I greatly suffer and that is a suffering which I lay at the door of the doctors because had they not been careless I would not have had this life of suffering and that is what they must pay for.” This is not a case about spirituality or anything else; it is about money.

MR GAGELER: Yes. What your Honour has just said is almost exactly what the Californian Court of Appeal said in a case called Curlender v Bioscience Laboratories. I do not want to take your Honours to that. I want to take your Honours to what the Supreme Court said in a subsequent case called Turpin v Sortini 643 P 2d 954. It is the Supreme Court of California, of course, being a common law case. If your Honours look in the report in Turpin v Sortini at page 958, there is a reference to the view to which the Curlender court came – and it is very much as your Honour put to me – in the right-hand column about point 3:

the Curlender court stated: “The reality of the ‘wrongful life’ concept is that such a plaintiff exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all. The certainty of genetic impairment is no longer a mystery.

And so it goes on. The response – and, in our submission, it is a principled response which is the only response the law can give – is at page 961 at the beginning of that page:

The basic fallacy of the Curlender analysis is that it ignores the essential nature of the defendants’ alleged wrong and obscures a critical difference between wrongful life actions and the ordinary prenatal injury cases noted above. In an ordinary prenatal injury case, if the defendant had not been negligent, the child would have been born healthy; thus, as in a typical personal injury case, the defendant in such a case has interfered with the child’s basic right to be free from physical injury caused by the negligence of others. In this case, by contrast, the obvious tragic fact is that plaintiff never had a chance “to be born as a whole, functional human being without total deafness”; if defendants had performed their jobs properly, she would not have been born with hearing intact, but – according to the complaint – would not have been born at all.

Then the court goes on to refer to the basic underlying rationale of the tort of negligence – I will not read that – but at the top of the next column it is said:

If the relevant injury in this case is the change in the plaintiff’s position attributable to the tortfeasor’s actions, then the injury which plaintiff has suffered is that, as a result of defendants’ negligence, she has been born with a hereditary ailment rather than not being born at all. Although plaintiff has not phrased her claim for general damages in these terms, most courts and commentators have recognized that the basic claim of “injury” in wrongful life cases is “[i]n essence . . . that [defendants], through their negligence, [have] forced upon [the child] the worse of . . . two alternatives[,] . . . that non-existence – never being born – would have been preferable to existence in [the] diseased state.”

That is the way in which the appellants put their case before this Court.

KIRBY J: Do you say that that proposition cannot be advanced in a court of law ever, no matter how gross and terrible the disability?

MR GAGELER: We do say that but this court did not. This court, your Honours will see, noted further down this column that most courts in the United States had taken the view that the court can simply not inquire into that topic, but this court, your Honours will see at page 962, at the bottom of the page, in a paragraph beginning “In this case”, appears to contemplate that it is possible, at least under the law of California, to leave that question to a jury. That is you can leave to a jury the question, “Would this child have been better off if the child had not been born?”

Now, somewhat anomalously, however, the court goes on to say, “Although we are prepared to leave that qualitative question to a jury, we are not prepared to contemplate the assessment of damages because that would involve too many imponderables”. They say that at page 964 in the left-hand column. So what they are saying is, “Although we will allow a jury to make a qualitative choice, we cannot contemplate making a quantitative determination in a case such as this”, but then with a further twist in the reasoning, at page 965 your Honours will see the Californian court, whose view has been taken up in two other jurisdictions only in the United States, says:

Although we have determined that the trial court properly rejected plaintiff’s claim for general damages, we conclude that her claim for the “extraordinary expenses for specialized teaching, training and hearing equipment” that she will incur during her lifetime because of her deafness stands on a different footing.

Now, quite what that different footing was is not particularly well articulated, but it appears to be that if the parents in a Cattanach v Melchior sort of claim can get some of those expenses then why should this child be shut out as a matter of policy in getting some others.

GLEESON CJ: There may be a problem in describing a claim as a Cattanach v Melchior claim. Cattanach v Melchior was a case of a healthy child and the United Kingdom cases distinguish that from the case of a child with a disability or with special needs and so, as I understand it, does the legislation in most Australian States now.

MR GAGELER: Yes, your Honour is right. That is why I used qualified language when describing it. It is useful to take your Honours to that case because to some extent it sets the correct conceptual framework, although - - -

KIRBY J: You say that, but I must say I feel rather anxious about the last of the steps that they took of, as it were, saying, ‘Well, we’ll give special damages”. How can a court do that?

MR GAGELER: Yes, the court cannot. We say the first step they took in identifying the issue is correct. We say the second step they took in saying that that can be determined even by a jury is incorrect and the third step is even more anomalous. The more mainstream approach in the United States is illustrated by two cases which I do want to take your Honours to very briefly.

The first is the decision of the New York Court of Appeals in Becker v and Schwartz 386 NE 2d 807. This was a case like the next one where a claim by the parents for the costs associated with raising an impaired child was allowed to proceed but a claim by the child itself was rejected. At page 812 your Honours will see the identification by this court in terms picked up almost unanimously elsewhere in the United States of the basic problems. Left-hand column, 812:

However, there are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. There is no precedent for recognition at the Appellate Division of the “fundamental right of a child to be born as a whole, functional human being”.

If I might pause there just for a moment, it appears from the secondary sources that we have been able to find as to the reasoning of Judge Barak in the Supreme Court of Israel his analysis did turn on the view that a person was entitled to be born without defects.

GUMMOW J: There is a useful note on that case in (1986) 21 Is LR 574, particularly at page 584 and following.

MR GAGELER: Yes, thank you, your Honour.

GUMMOW J: President Barak, as he now is, seems to have taken the comparator – the article is critical of what he did, but the comparator seems to have been, if you like, a fictional alternative.

MR GAGELER: A normal life, a life without defects. That appears to be the language

GUMMOW J: Yes.

GLEESON CJ: But what is a defect?

MR GAGELER: I do not know, your Honour, it is not a position that I would seek to defend nor, as I understand the appellants’ submissions, that they seek to defend, but that appears to be the starting point for the analysis adopted in the Supreme Court of Israel.

KIRBY J: But there will be some states of suffering that are so gross, so enormous, so unremitting, so unrelenting, so prolonged that in wardship cases our courts have taken a different approach to these American cases.

MR GAGELER: In our submission, no, but I will come to the wardship cases in a moment, but really, in answer to what your Honour just put to me, further down in the judgment of the Court of Appeals of New York that precise point is addressed:

Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very - - -

GUMMOW J: The notion that the law does not have any philosophy in it is childish, really.

MR GAGELER: No. Your Honours will see what - - -

KIRBY J: But in that case one of the two purposes of the law of tort is unfulfilled: to set the standards of due care of a, in this case, profession. Unfulfilled.

MR GAGELER: Your Honour, the law of tort has never professed the ambition to police all professions.

KIRBY J: Not police. That is introducing an irrelevant consideration, but it provides compensation and it sets standards.

MR GAGELER: Yes, it does not perform that function in this case, I accept that, nor does it perform that function universally, your Honour.

KIRBY J: That is anomalous. It is then a question of which anomaly we prefer.

MR GAGELER: Your Honour, the function of setting standards is a by-product of the law of tort applying its principled analysis to varied aspects of life. It is really not part of the principle that is applied. Your Honours see what is said about the first problem. Your Honours will see what is then said on the same page about the second problem. I will not read it but it states succinctly the problem of assessing damages.

I am reminded, your Honours, really in answer to your Honour Justice Kirby’s question, insofar as there is a duty to the parents, the standards will be set by the application of the law of negligence.

The second case that I wanted to take your Honours to is the decision of the Supreme Court of Colorado in a case called Lininger v Eisenbaum 764 P 2d 1202 and there is a similar and similarly succinct statement of the difficulties in entertaining the claim by the child as distinct from the claim by the parents. The discussion begins at page 1209. I will not read to your Honours what is on that page, but it is a useful introduction to what then appears at page 1210 where this is said, the top left-hand corner:

We agree with the overwhelming majority of courts which have addressed the issue that a person’s existence, however handicapped it may be, does not constitute a legally cognizable injury relative to non-existence. Our finding of such an injury would require first, that we value Pierce’s present station in life; second, that we ascertain the value to Pierce of his not having been born; and finally, that we determine that the latter value is greater than the former. Because we find it impossible to complete those steps in any rational, principled manner, we cannot find that Pierce has suffered an injury sufficient to support a claim for relief.

The court then goes on to develop that.

GLEESON CJ: Mr Gageler, you have pointed out that there has been a lot of litigation in the United States in which claims like this have been considered.

MR GAGELER: Yes.

GLEESON CJ: Have you listed the nature of the disabilities suffered by the plaintiffs in those cases? The case you have just shown us before this one was of a child who was born deaf.

MR GAGELER: Yes.

GLEESON CJ: This case was of a child who was born blind.

MR GAGELER: Yes.

GLEESON CJ: Do we have a list of the disabilities that have been suffered?

MR GAGELER: No, we could do that. One of the articles, and I just cannot remember which, tabulates some of them, but we could provide your Honours with a list. They are extraordinarily diverse and there are extraordinary degrees of impairment.

GLEESON CJ: It would useful for my purposes if you could prepare such a list and let us have it. The second thing I wanted to ask you is this. In a decision in France and a couple of decisions in the United States and I think somewhere else, claims of this kind have been admitted. In every case in which they have been admitted, have they been limited to some special or limited form of damage?

MR GAGELER: In the Curlender Case, the one that was addressed in Turpin, that is the first Court of Appeal decision in California, general damages were allowed. Turpin cut that back to special damages by a process of reasoning that I indicated is problematic. This case that I am taking your Honours now to notes, at the very next page, page 1211, the top left-hand column:

Three states have recognised a child’s cause of action for special damages arising from the deprivation of his parents’ right to choose –

Then the Californian case of Turpin is mentioned. You will see that the New Jersey Supreme Court has taken the same view. Across the page the Washington Supreme Court has taken the same view. So in three states special damages have been awarded following the problematic reasoning in Turpin v Sortini, but this court rejected it, rejected any damages, as have all the other US jurisdictions, and the reason for doing that, you will see in the top right-hand column, page 1212:

In the end, the question must be whether we will continue to adhere to well-established tort principles, or instead will discard those principles so as to permit a plaintiff to recover damages from a defendant who cannot fairly be said to have caused any injury to the plaintiff.

The fundamental concern of tort law is to determine when the responsibility for, and the burden of, an injury should be shifted from the injured party to some third person. To discard the requirement that a plaintiff prove that he has been injured would carry tort law well beyond its proper, principled boundaries.

HAYNE J: One slight indication of the way in which the Israeli law is administered is recorded in the July/August 2001 edition of a journal called The Genetics Law Monitor where it is recorded that in a case of Tankelvitch v Kupat Holim Maccabi, the State of Israel and F Gotkin, in the Jerusalem District Court, such an action was brought, fought and determined. The child concerned had died at aged four years and some months, the child was allowed damages for pain and suffering for three and a half years of the child’s life assessed at 300,000 shekels, £50,000 sterling. The parents were allowed damages based on their emotional pain and suffering including the break-up of their marriage and various other heads. That seems to be a slight indication of the way in which it is happening in Israel though such cases are apparently rare.

MR GAGELER: In respect of France, the decision to which your Honour refers, the Perruche decision appears to have been overturned by legislative intervention.

GLEESON CJ: The decision was reversed by legislation in France after, as I understand it, considerable uproar.

MR GAGELER: Your Honours, if I could move from those statements, by way of analogy, to the parens patriae jurisdiction and the wardship jurisdiction to say it is possible, in some cases, for courts to choose death over life and indeed that happens. In our submission, that is to really misunderstand the principle that is applied in those cases. The principle that is applied in those cases, including In re J to which your Honours were specifically directed, as we understand it, is one that accepts the life of the patient whether it be a child or someone else with all its attributes, that is with the suffering, with the possibility or even the imminence of death and then makes a comparison, not between life and death but between that life with a particular treatment and that life without the particular treatment. That is the comparison that is made and it is a fundamentally different comparison directed to a fundamentally different purpose from the one that is sought to be drawn by the appellants. In none of those cases does the court - - -

KIRBY J: Yes, but that was the source of the controversy at the time. It is many years ago since In re B. was decided but I remember it at the time and was it not Lord Justice Dunn, was he a judge in the case, and he says something like “The life would be so awful,” he uses that adjective, “that the court can say that it would be better that it not be endured”, some words to that effect.

MR GAGELER: Your Honour, words to that effect may occasionally be said but the principle, as we understand it, is as we have stated it and the courts have emphatically eschewed the choice as being one between life and death. In the court below - - -

KIRBY J: I mean, I see a very big difference between being born deaf or blind – there is a whole community of deaf people and the controversies there are different controversies but a child born with the disabilities that are described in the record here, these children are in an absolutely different class, it seems to me. It is not quantitatively or qualitatively the same as being born with a disability such as deafness or blindness. These are, in one case, a child who has spasms and has gross disabilities that can only be described as profound and lifelong and one would think, if one can get into the mind of such a child, a most terrible endurance for the child - leave aside the effect it has on the parents and the family, think of the child. One of these American cases says that the child affected calls out for the remedy and it does seem to me that we have to be careful that we do not allow an inflexibility of analysis to prevent our responding to that call.

MR GAGELER: Your Honour really raises the question, or a question, of where does one draw the line. At what point and by what criterion does a court decide this child is better off not existing? Now, the Californians leave that to a jury, but if you are not going to just leave it to the jury, to the wilderness of the single instance, then one has to come up with some principled criteria and, in our respectful submission, the institutional capacity of the court really just does not permit it, and there is no analogy in any of the cases, including the parens patriae jurisdiction, for that to occur.

KIRBY J: But that is only because in earlier times such children would have died at birth. It is just that now we have technology which can keep children in these conditions alive. That is why people said, Chief Justice Roberts in the United States last week, that the biggest cases he is going to have are cases just like this. These are the cases that are presented by new technology.

MR GAGELER: Your Honour is postulating an extreme case.

KIRBY J: Yes.

MR GAGELER: And your Honour is postulating that in such an extreme case one can come to the view the child is better off not to have been born. Really, what we question and what the United States courts have questioned is the ability to draw the line between that extreme case and another less extreme case. On the one hand - - -

KIRBY J: We draw lines all the time, Mr Gageler. That is our job.

MR GAGELER: The other is by what criterion, by what legally recognised criterion can one meaningfully perform that task.

KIRBY J: Well, it would be using formulae such as profound, terrible, unendurable. The courts use these formulae in order to fit particular cases and exclude other ones.

MR GAGELER: Yes. Your Honour, what we have said about that we have set out in paragraphs 26 through to 32 of our submissions. To the references we give in paragraph 30 can we add a reference to Justice Brennan’s decision in Marion’s Case 175 CLR 265 to 266, a parens patriae case.

Your Honours, turning to the third proposition upon which the appellants must rely, that is that one can infer the relevant conclusion of fact simply by reference to the choice that the parents would have made, what the parens patriae cases show and what In re J – the case that your Honours were taken to – very usefully illustrates is that when the courts have been called upon to determine the best interests of the child they have never done so by reference solely to the view of the parents. Where it must be done it is done objectively. That is what the cases to which your Honours have been taken show, and to that can be added the reference to the authority of this Court in Marion’s Case 175 CLR particularly at page 260.

The fundamental problem with the factual conclusion for which the appellants are really forced to contend on the agreed facts is that even if the Court were institutionally capable of determining that it is in the best interests of the children that they had not been born, one cannot establish that position simply by pointing to the choice that would have been made by the parents not to permit them to be born. This is the point that Chief Justice Spigelman made at paragraph 50 of the decision under appeal. He did not elaborate the reasons but there are two reasons for that.

KIRBY J: What is the point again?

MR GAGELER: The point is – I will use his Honour’s words – that:

a parent’s statement that he or she would not have permitted a child to be born is –

not –

determinative of the issue that the child has suffered the damage necessary to found an action in his or her own name, i.e. in the sense that non-existence is preferable to her or his life with disability.

KIRBY J: I do not quite understand that reasoning. The mother is sitting there day by day with the child, looking at this child and realising, probably closer than any other human being can realise, the pain and the suffering that the child is going through, not just her own pain and suffering, and saying, “Well, I wish that this child of mine had not been born, terrible though that conclusion is, because it could have been prevented and I see day by day the suffering and I call to the courts to provide remedies against those who have had a causal relationship with this suffering”. Now, you say there is no causal relationship but it is so proximate in time.

MR GAGELER: I do say that but I have not yet put it quite in those terms. Your Honour, the agreed facts in the case do not have the mother putting those propositions. The agreed facts do not go beyond the choice that the parents would have made if they were informed at the time not to allow the child to be born. It is not irrelevant in the case of the Waller child because the Waller child had only a 50 per cent risk of being born with the genetic difficulty. Many of these cases will raise issues for the parents to address by reference to probabilities, not certainties, of suffering in the future and not necessarily certainty of suffering as and from death but the possibility of having congenital or genetic difficulties that may or may not manifest themselves in different ways.

Again, take the Waller child, for example. The Waller child had the same genetic problem as his father. His father evidently lived a normal enough life to be able to conceive a child, albeit by the assistance of artificial means, and yet the Waller child suffered by reason of that genetic difficulty, profound difficulties as and from birth. Really, the point that I was coming to is that the Chief Justice’s views below were referable to an assertion that was simply based upon a choice – a prenatal choice that would have been made by the parents – and his views, in our respectful submission, must be correct for at least two reasons.

One is that the parent’s perception of the best interests of the child could never be determinative of what the best interests of the child will ultimately turn out to be. That must be an objective question if the Court is called upon to determine it. But, secondly, and perhaps more profoundly, the parent’s perception of the best interests of the child is not necessarily the motivating factor in choosing not to permit the child to be born either before conception, or impregnation, as the case may be, or at the time of termination.

The parents are entitled at that stage to act in their own interests and if one goes to the test for the lawful termination of a pregnancy in New South Wales, that is in the Superclinics Case (1995) 38 NSWLR 47 at pages 59 to 60, the law has not progressed beyond what your Honour Justice Kirby said. What one looks for, for there to be a lawful termination and the agreed facts do not go beyond that there would have been a lawful termination, is a belief on reasonable grounds as to the physical or mental health of the mother, not the child, the mother.

The beliefs of the mother may well be based upon her view of the best interests of the child but it does not follow, in our submission, as a matter of law, nor does it follow as a matter of necessary inference, from the mere fact that the mother chose or would have chosen lawfully to terminate the pregnancy, that the best interests of the child would have been served by the termination of the pregnancy.

KIRBY J: Well, that may well be the result of proper analysis but I notice in the notes here that it says that this was disabled to a “catastrophic degree”. Now, if you have such disabilities, it rather involves an inflexibility of the mind to say under no circumstances whatever do we contemplate the possibility that the child would be better off not having been born, even though catastrophic, profound, prolonged life enduring – I just find that difficult to accept as a matter of fact and obviously the California court found it impossible to accept and left the matter to be determined by a jury.

MR GAGELER: Yes, well I have really made my submissions on that, your Honour. It is not an inflexibility of mind. It is an application of a principled approach conscious of institutional competence.

GUMMOW J: Now, one principled approach may be this. All counsel will be familiar with Professor Fuller’s work on legal fictions, I hope. The answer may be a legal fiction, namely the comparator is this individual but without this disability. That is a step which the law could take. The question is, should it, should it not? It is no good really talking about principles devised in an age and to meet needs that did not then exist. I am not saying that is the right answer but it is a possible answer which a fairly impoverished level of debate in a lot of the academic writing does not seem to face up to. It comes back to that problem of the common lawyers that I was mentioning.

MR GAGELER: A number of things can be said about that, your Honour. The first one is that this is a problem that is perhaps compounded by modern technology. It is not a problem that has been created by modern technology. The Harriton Case is not a technological case, nor is there something peculiar about the IVF process in respect of the problem with which we are currently concerned. It is a problem that has always been around. Secondly, the approach that your Honour is just hypothesising at the moment is really not one that has been advanced by the appellants in the course of argument.

GUMMOW J: I think it was implicit in Mr Walker’s short step. I may be wrong. Maybe it was a giant leap.

MR GAGELER: Well, a leap into the void perhaps but he emphatically said - - -

GUMMOW J: Anyhow, I want to know what you say about it.

MR GAGELER: He emphatically said that there was a comparison to be made and he emphatically said the comparison was between existence with the disability and non-existence. That is as we understood the submissions we came to meet. But we have mentioned in our written submissions in the Harriton Case - - -

GUMMOW J: The occasion for the fiction being what otherwise might be thought to be a miscarriage in the functions of the law of tort.

MR GAGELER: Yes.

GUMMOW J: Which Justice Kirby has been debating with you.

MR GAGELER: Your Honour, we dispute that it is a miscarriage in the function of the law of tort.

GUMMOW J: I thought you conceded it was.

MR GAGELER: We said that in this case - in answer to his Honour’s question?

GUMMOW J: Yes.

MR GAGELER: No. It was put to me, as I understand it, as I recall it, that the law of tort would not be in a case such as the present performing the role of maintaining professional standards and I gave a partial answer to that which I then later sought to add to by pointing out that in respect of the duty of care, undoubtedly owed to the parents, professional standards are being maintained in any event. I believe that is the exchange that your Honour had in mind.

GLEESON CJ: There is another question. If this were the law of torts maintaining professional standards, on what principle could you limit the right to recover to people who suffer “profound” or “awful” or “dreadful” disabilities? Why would not someone who was deaf be entitled to recover?

MR GAGELER: That aspect - - -

KIRBY J: You certainly would not exclude the first category. You could leave the second and other categories to later cases. That is how the common law deals with problems.

MR GAGELER: And then one still runs into the problems of by what principled approach and where does one draw the line, really the problems I have already addressed.

GUMMOW J: They did not talk about this in Donoghue v Stevenson, Mr Gageler.

MR GAGELER: No.

GUMMOW J: We are still paying the consequences, I suppose.

MR GAGELER: No, they did not talk about it in Donoghue v Stevenson and here - - -

GUMMOW J: You cannot say the common law proceeds in this clear fashion. It just does not.

MR GAGELER: No, the common law proceeds by accretion, by reference to principle and the application of principle to new categories of cases and that is what we are now concerned with, your Honour, and to proceed in this category of case by reference to a legal fiction would be to proceed uniquely in the law of tort and in a way that is not only unique to this category of case, it would be unique within the common law world.

HAYNE J: Is not the uniqueness the consequence of the conjunction of the particular events that give rise to it, namely, that part of the history that gives rise to the problem is the decision not to terminate a pregnancy?

MR GAGELER: Yes.

HAYNE J: Well, we have a unique set of circumstances demonstrating that the solution, or asserting the solution to be unique, does not seem to be carrying us terribly far.

MR GAGELER: No, but my point is that it is inconsistent with principle to address that unique circumstance by reference to a uniquely purpose-made principle and one that involves a legal fiction to which the law has traditionally been hostile, particularly the common law and this is ultimately a common law case, but really, picking up on what your Honour Justice - - -

HAYNE J: Is not a concept of legal fiction what underpins the first proposition with which you are grappling, namely that the injury is a life of suffering?

MR GAGELER: No, there is no fiction – I am sorry, your Honour.

HAYNE J: But the comparison that is implicit in that is that there might have been a life or that it is relevant to consider a life that is not a life of suffering.

MR GAGELER: No, that is my whole point. For these children to have a life – and we really need to focus on the plaintiff - - -

HAYNE J: You say life or no, yes.

MR GAGELER: It is life or no, and if it is life then it is a life with these profound disabilities.

HAYNE J: I understand that, but the answer you make does not necessarily, it seems to me, deal entirely with the argument against you. The argument against you says, yes, I accept that it was life or no, but the life that this child has is a life of suffering.

MR GAGELER: Yes.

HAYNE J: That characterisation warrants consideration. Although Mr Walker so strenuously sought to avoid any comparison with anything except non-existence, it seemed to me to be implicit in it that at some point in the analysis a comparison was being drawn between a life of suffering and a life of this individual without the suffering and without the needs that this individual has, given the fact that he or she, yes, has only this life and none other.

MR GAGELER: Your Honour, it is really a point I think I have addressed. If one is looking at the case that way, one is necessarily erecting a fiction, to use your Honour Justice Gummow’s language, because you are not looking at - - -

GUMMOW J: You are not right that the common law has disliked fictions. It has flourished on them actually.

MR GAGELER: The common law has traditionally focused - - -

GUMMOW J: In modern times it is less encouraged. I have said so myself.

MR GAGELER: Your Honour, the common law of negligence, as we understand it, has always started - - -

GUMMOW J: Well, it has this reasonable man. It has this reasonable man, for goodness sake.

MR GAGELER: It has, but it is always grounded in the facts.

GUMMOW J: He is said to represent these community values which we all know about.

MR GAGELER: It is always grounded in – the very first thing that it looks to is the identification of the injury in fact, the loss or damage in fact.

GUMMOW J: It is an action on the case.

MR GAGELER: Exactly, and it is only when one finds the loss or damage in fact that one moves on to ask whether it is legally recognised and goes through the other steps. The point that I have been seeking to make, and really the point that nearly every court that has looked at this has made, is that what one cannot find here through the ordinary curial processes is that essential first step that is the gist of an action in negligence, the injury in fact, because it involves the invidious comparison that can only be avoided by the application of a fiction.

GUMMOW J: Well, what does the word “injury” mean? There is a discussion by Sir Victor Windeyer somewhere of the notion of injuria in tort and I do not think it is quite as narrow as you say.

MR GAGELER: Well, “injury” means, according to Halsbury, which is about as clear as the definition can get as quoted in Luntz – I am sorry, this is the word “damage” rather than “injury”, your Honours – “damage” may be defined as the disadvantage which is suffered by a person as a result of the act or the fault of another. Your Honour the Chief Justice in Cattanach [2003] HCA 38; 215 CLR 1 at paragraph 23 defined “damage” as “loss or harm occurring in fact”.

GLEESON CJ: Why are these cases concerned with, or apparently limited to, putative abortions? There is nothing new about the idea that rubella causes defects in children and is a dangerous condition for a mother to have during pregnancy.

MR GAGELER: Yes.

GLEESON CJ: There is nothing modern about that medical perception. It is also the case that there are people who, if diagnosed with rubella during pregnancy, might not have an abortion for any one of a number of reasons – perhaps perfectly good reasons – and then there is a child born with disabilities that may be profound or may be not profound but are nevertheless significant disabilities. I am not presently aware of any area of the law of tort that only compensates people for being severely injured.

MR GAGELER: Yes.

GLEESON CJ: Is it that these cases are all about decisions not to have abortions because by hypothesis the child is suing the doctor and not the mother?

MR GAGELER: That is the whole case in the Harriton Case and it is an element of the case in the Waller Case, but another aspect of the Waller Case is the choice of the parents not to – or the possible choice that the parents would have made not to conceive or have the embryo impregnated in the first place.

GLEESON CJ: Is it because the act, or the omission more accurately, which constitutes the negligence is an omission on the part of the doctor that only results in the consequence for the plaintiff because of the intervening step of the decision by somebody not to have an abortion?

MR GAGELER: Exactly, and that is the point that we have sought to make in paragraph 19 of our written submissions, but your Honour is absolutely right, which would make the imposition of a duty of care of that nature in itself, we think, unique. We cannot find in the cases a case where there is a duty to A to inform B of circumstances that then allow B to make a decision in her own interests which may or may not coincide with the interests of the plaintiff. We simply cannot find that.

KIRBY J: Yes, but surely we do not cut off the source of knowledge and advice by which such decisions are made. If we uphold the legal principle that confirms these decisions, essentially we say it does not really matter that the doctors did not tell the mother. Do not worry about the fact that the mother did not have the chance to consider, and the dignity of her own consideration of what she would do with the pregnancy, and thereby to prevent the suffering that she sees day by day in the child. That does not sound right.

MR GAGELER: We are not saying that. We are dealing with the claim by - - -

KIRBY J: Intuitively it does not sound right.

MR GAGELER: We are dealing with the claim by the child, not the claim by the mother. That is another case, or that is another aspect of the Waller Case.

KIRBY J: There is the mother’s entitlements and they are separate and there is the child’s entitlements.

MR GAGELER: Yes. Your Honour, the ability of the mother to make a choice in her own interests, which is really the point that we have been discussing with the Chief Justice, gives rise to the highly unusual nature of the duty that we have mentioned in paragraph 19 of our written submissions but it also gives rise to the real potential for conflict between the interests of the mother and the interests of the child. We have mentioned this in paragraph 20 of our submissions.

It is another very real problem with the imposition of a duty of care in circumstances such as the present, but it also gives rise to the point we make in paragraph 21 of our submissions that a difficulty of avoiding the conclusion in principle that if the doctor owes a duty of care then so too must the mother. That was the view that the Californian Court of Appeal in the early Curlender Case expressly came to. They said, “Yes, we cannot in principle draw a distinction between the position of the doctor and the position of the mother”.

Now, in response to that Mr Walker says, “Well, that would conflict with the right of the mother to terminate the pregnancy”, but that, with respect, is really a statement of conclusion and it is wrong to say that action that is taken that is not in breach of the criminal law involves the exercise of a right which is immune from tortious liability. That is simply not the case. All tort law is about imposing liability in respect of action that would otherwise occur in the exercise of personal liberty. That is what tort law is about. So, in our respectful submission, there is, in principle a difficulty in drawing the line between the doctor and the mother in a case like this.

Now, all of those problems, at least the last three that I have mentioned, we would not say are determinative but they are powerful factors to be weighed when one is seeking to determine whether in principle there should be tortious liability in the new category of case such as the present.

KIRBY J: Have you found any cases on liability for IVF treatment? Mr Bates said he did not know of any cases, but it seems very unlikely that there have not been cases concerning erroneous or careless implantations.

MR GAGELER: I promised the Chief Justice a table setting out the disabilities. Perhaps in the same table we can have a column to say whether they are IVF cases or not. We have certainly not found a separate strand of authority in any of the material we have looked at that deals with IVF separately from anything else.

KIRBY J: That is Keeden’s case, is it not? He is the IVF child.

MR GAGELER: Yes.

KIRBY J: Just so that I can get the facts clearer, something you said has now cast a doubt on the facts. Can I draw an inference from the agreed facts that as at the time the implantation occurred that it was possible scientifically to distinguish between embryos, those which carried the AT3 problem and those that did not? I would have inferred that from the facts if I could but I do not - - -

MR GAGELER: The answer is no and on that precise point the agreed facts really do not go higher than paragraph 43 at page 47.

KIRBY J: It is not a complete answer to the case because there remains the question of whether the patient should have been alerted to the fact that this was a problem to be considered and what would then have happened and what consequences arise for the child, but I would have drawn an inference from the facts that it was feasible at that time, but I do not want to do that if I cannot.

MR GAGELER: No, your Honour ought not draw that inference. My instructions do not allow me to accept that and - - -

KIRBY J: But your instructions are now against Mr Bates’ instructions.

MR GAGELER: Your Honour, we do have agreed facts and the agreed fact relevantly does not go beyond paragraph 43 at page 47.

GLEESON CJ: Might the answer to the question whether or not a child can sue a mother be that that would be impermissible because to recognise that kind of action would be to recognise a duty to have an abortion?

MR GAGELER: Well, it would be to recognise a duty of care in some circumstances to have an abortion but it would be consistent with the lawful exercise – I think the short answer is yes, that might be an answer, your Honour, but there are many cases in which a duty of care is imposed in respect of what would otherwise be a matter of personal liberty.

Your Honours, can I turn to the question of damages. As I said, most of the submissions and most of the reasoning in the court below are concerned with the qualitative question of whether one can recognise harm in a case like this, but there is the overlaying question of whether one can in any principled way quantify harm in a case such as the present. We have in our written submissions set out the familiar passage from Haines v Bendall at paragraph 33 of our written submissions which states what Justice Ipp was content to call in the court below the compensatory principle.

We have set that out, your Honours, because the language in which it is expressed really states its fundamental nature. It is said to be a settled principle, it is said to be a cardinal concept and it is said by reference to the quotation from Justice Windeyer in Skelton v Collins to be the one principle that is absolutely firm and which must control all else. Now, unless one goes to the fictional comparison one cannot apply that cardinal concept to the assessment of damages in a case such as the present. It is simply impossible. That is really illustrated when one looks at the line of cases which the appellants - - -

GUMMOW J: That is talking about measure of damages, is it not?

MR GAGELER: Measuring damages, yes. Coming up with - - -

GUMMOW J: It is not talking about the injuria for the tort.

MR GAGELER: Well, they are intimately related, your Honour, because if one cannot meaningfully quantify damages then one should not take the step of recognising a tort in a new category of case, in our respectful submission.

HAYNE J: How does one “meaningfully” quantify the amount of money that equals a broken leg?

MR GAGELER: One can have - - -

HAYNE J: The courts have done it forever, but a notion of “meaningfully” quantify is just a tad hard in this area, is it not, Mr Gageler?

MR GAGELER: One can do so by reference to the experiences of life. It is not easy, but it can be done.

KIRBY J: We are getting these new experiences of life now. Courts are getting new experiences of life, they just have to move with the flow. Go with the flow and move with the experiences.

MR GAGELER: Your Honour, the difficulty of assessing damage is not something of course that prevents it from occurring, where in an established category of case it must occur, but the impossibility of assessing damages is something that has been taken into account in other contexts in this Court as a reason for not awarding damages or for severely limiting damages to what your Honour the Chief Justice might call a conventional measure.

GLEESON CJ: No, it is not my term.

MR GAGELER: I am sorry.

GLEESON CJ: It is what was used in the English – it is the English - - -

KIRBY J: You are being provocative now, Mr Gageler.

MR GAGELER: I was glad your Honour Justice Kirby asked what a conventional measure was because I was not familiar with the terminology. But what I wanted to do was take your Honours really briefly - - -

GLEESON CJ: One for which you cannot give any reasons.

MR GAGELER: And sometimes you cannot give any reasons because you cannot - - -

KIRBY J: It is a very English solution then.

MR GAGELER: - - - make a meaningful assessment. Now, I am using that language repeatedly but, your Honours, there is an analogy in the cases. Our learned friends sought to draw support by way of analogy from the loss of expectation of life cases. Now, that is a category of case where a head of damage has been confined to a conventional measure for the very reason that the courts could not make a meaningful assessment of the value of the life that is no longer lived. That is really the point made in Skelton v Collins [1966] HCA 14; 115 CLR 94. It is from Skelton v Collins that the absolutely firm principled statement in Justice Windeyer’s judgment is taken. Now, Skelton v Collins - - -

KIRBY J: What page in Skelton?

MR GAGELER: He said that at page 128. He went on, at page 130, to talk about the impossibility of valuing life itself and at pages 99 and 103, Justice Kitto referred to the difficulty of a court assessing damages where the question is what is the worth of a life itself. Justice Kitto at page 99 said this in support of simply a conventional measure:

a tribunal which awards under this head a sum running into more than a very few hundred pounds must be failing to perform its function in accordance with law, because it purports to have what it cannot possibly have, namely a satisfaction that the selected sum of money is fair, or reasonable, or appropriate, as compensation for the loss of a balance of enjoyability as to which no man can have any idea whether it would have been great or small.

To similar effect, his Honour said at page 103, and this is at about point 8, again dealing with this head of damage:

The trouble is not just that the assessment of compensation is difficult; it is that there is simply no way of forming any reliable idea, any “confident estimate” as to what the thing would have been like for which the compensation is to be assessed; and therefore an award so substantial as necessarily to imply that the judge (or jury) has in fact formed such an idea must be unsupportable.

GLEESON CJ: I think what the English have done is to say, “We’re not going to go down the path of trying to make a realistic assessment of the cost to parents of raising a child and producing the result that people are going to claim for the cost of sending their children to Harvard but we are going to vindicate the right or interest that we think has been invaded by awarding an amount of money that does not even purport to be related to any actual loss that has been incurred”.

MR GAGELER: They have not done it in this category of case because they have refused to recognise liability in the category of case with which we are concerned. The difficulty with that approach is if one is going to take the approach of purely conventional damages, which is not much more than purely nominal damages, then in a new category of case the question is why do you move into that new category of case.

GLEESON CJ: It is not merely nominal. I think I read it in an article about all this that somebody pointed out that the amount that they selected in Rees is about one third of the average weekly earnings.

MR GAGELER: I have not looked at that case, your Honour.

KIRBY J: I think their Lordships might have mistaken their judicial and their legislative functions.

MR GAGELER: Your Honours, I have not looked at that case, I really cannot say anything meaningful about it.

KIRBY J: It comes of sitting in the Houses of Parliament. They just get a little bit confused. We do not have that confusion. But are you not inviting us to make the same sort of wrong turning of the laws as was made in Baker v Bolton which set the law back for years that damages would not be given for death and that had to be re-cured by a thousand statutes in all parts of the common law to fix it up.

MR GAGELER: Well, I hope not. I hope I am reflecting the view in Skelton v Collins that remains the law in this country.

KIRBY J: Well, it is hard. As Justice Hayne said, it is difficult, but, I mean, there are lots of difficult things that judges have to do. I think we have got – there is the debate there but we have to be warned, as Justice Mason pointed out, by the wrong turning the law took with Lord Ellenborough’s speech in Baker v Bolton.

MR GAGELER: Yes. Your Honour, there are a lot of circumstances in which courts have to make hard judgments. The problem identified in the case to which I have just gone is that there is another category of case where the courts simply cannot make real judgments because they simply cannot know about the thing that they are asked to judge. That is really the point being made in that case.

KIRBY J: You have going for your argument that a lot of very clever judges in a lot of lands have looked at the issue and they have concluded that it is too hard and it is not right in principle and therefore they have said no, though a lot of those reasons are full of statements about the sanctity of life and - - -

MR GAGELER: Well, your Honour has not heard me say that. Your Honour has heard me make an argument from legal principle, basal legal principle, and I do not disavow those statements about the sanctity of life. They are an aspect of the fundamental problem of court choosing between different sorts of lives - - -

KIRBY J: It sounds a bit like what Justice Meagher said in CES though, that why are they daring to come to the courts? They should be overjoyed to have a child.

MR GAGELER: Your Honour, I am attempting to recognise a new category of tortious liability of this nature would be contrary to fundamental principle in a number of respects and I sought to really pitch my argument at that level. If I can conclude in relation to damages, the problem becomes even more acute if your Honours seek to break the conventional categories of damage down as did the joint judgment for example in CSR v Eddy and say what about loss of earning capacity and if one is comparing non-existence to existence that can simply lead to no loss in that category.

Non-existence by definition means no earning capacity so there cannot be such loss. If one goes to non-pecuniary loss or general damages then again what is the comparison that is to be made, the comparison between existence and non-existence? It really ends up being meaningless. Even if one goes to financial loss, the category that is addressed in CSR v Eddy in the joint judgment at paragraph 31 then still, conceptually, for financial loss to be sound in damages, what one needs to be looking for is an amount by which a person is in truth worse off. I am using there the language of Chief Justice Dixon in Blundell v Musgrave which is quoted in that paragraph. So even at the point of financial loss, medical, hospital expenditure and the like, what one is forced by conventional principle to adopt is a comparison, and that simply cannot be run in a case such as the present.

If one moves from those bedrock principles to something else then you have to ask what that is and in reality no alternative approach, no principled alternative approach is identified in the submissions of the appellants nor in the dissenting judgment of Justice Mason in the Court of Appeal.

GLEESON CJ: Mr Gageler, I have not checked for this in the judgments of the Court of Appeal in this case or the judgment of Justice Studdert but those four judgments all proceed on the assumption that in the case of the Wallers the parents have a cause of action, assuming they can make out the facts?

MR GAGELER: Yes. Well, they leave on foot the parents’ cause of action, that is that part of the case is the subject of leave to replead. That is at paragraph 5 of Justice Studdert’s judgment at page 137.

GLEESON CJ: What is the status of that aspect of the litigation at the moment?

MR GAGELER: It is just inactive. Your Honours, there is nothing further I wish to say orally.

GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Walker.

MR WALKER: May it please your Honours. There are conventions and conventions. There are awards in suspiciously round figures which may simply be, as it were, arbitrary and “conventional” is a kinder word than “arbitrary” but there are also awards in round figures which are for good reason in round figures so as to avoid any misleading appearance of a capacity to be precise, to achieve financial equivalence for that which cannot ever be equilibrated by money.

GLEESON CJ: Like prospects of remarriage?

MR WALKER: That is just one of them. In our submission, first of all, it is not an objection to something being damage that the damages for it must and could only ever be awarded by one of those round figures that disavow any capacity to be precise or indeed to go through a process of reasoning by which you can say this weighs that. My learned friend’s citation from Mr Justice Kitto in Skelton v Collins, in our submission, is from a larger passage in those reasons and my learned friend’s selection is entirely typical of what his Honour was discussing, all of which, in sum, we submit strongly supports our position.

A passage – it is a very long and, in our respectful submission, illuminating discussion by Mr Justice Kitto, I have in mind in particular picking it up at about page 98 of 115 CLR. I am not going to read passages to your Honours except to note some of the critical language. At 98, point 3, or so, there is discussion of the case law concerning “the extreme difficulty of fixing a solatium”. Solatium is critical in this area, in our submission.

HAYNE J: On that subject, to interrupt you a moment, I think there may be advantage in looking at the article to which Justice Windeyer refers in Skelton v Collins by Otto Kahn-Freund in 1941, 5 Modern Law Review 81 and following.

MR WALKER: I think that is the article that was referred to in Cattanach, your Honour, I think.

HAYNE J: It may be. It is in Skelton v Collins.

GUMMOW J: Page 131.

MR WALKER: Yes.

HAYNE J: And it concerned Benham v Gambling and the - - -

GUMMOW J: Life’s fitful fever.

MR WALKER: Your Honour, I am doing this from memory, but it was cited to your Honours in Cattanach because of page 131 in Skelton v Collins.

HAYNE J: Yes.

MR WALKER: And, yes, with great respect, we entirely support what your Honour has said. Yes, it is worth going to. Now, we have cited in this case a passage from Justice Windeyer’s reasons in Skelton v Collins and that is in our written submission. Simply in reply, picking up what my learned friend has tried to obtain in support of his position from Justice Kitto, the support is in our favour. On that page I was at, page 98, at about point 6 one has the expression:

since none can form any opinion as to what would have been the experience –

the passage my learned friend read. This is the language of the unknowable. The unknowable is said to be that which makes the comparison at the crux of this case impossible. Well, our submission is this is an orthodox case, hence the small step point of our argument. Skelton v Collins is an orthodox case of an award in money, solatium no doubt, for the unknowable and the unknowable does not defeat the expectation which one can see a part of the common law reasoning in relation to it in the phrase “contra spoliatorum”, which is used in this very passage.

KIRBY J: Where does that lead to a conclusion that (a) one should have that all principles of damages apply, (b) that one should, as it were, devise some new principles that give you special damages and, if so, for how long, or (c) that it is all just too hard and we will therefore give a “conventional sum”, or (d) that it is just too hard altogether and judges cannot fix it up and we will give you nothing?

MR WALKER: I very much fear that your Honour in that list has not included the one for which we would go, which is there is no call in principle in advance of the adjudication of the facts of any particular case. That is in answer to question 2 in this case there is no call to eliminate any head of damage which the facts of the particular case may support for breach of the duty causing damage of the kind that my client claims and that the difficulty so called is really no more than arising in no doubt unpleasant and fraught circumstances, but it is not unique in that regard, than the difficulties that are observed and expatiated with considerable elaboration by, for example, Sir Frank Kitto and Sir Victor Windeyer in Skelton v Collins, and that does not defeat common law. It may lead to, to borrow an epithet from my learned friend’s argument, an institutional caution against excess liberality that presumably – that has been the byword in common law courts for personal injury claims for a long time, at least at the judicial level. In our submission, the judgment of Justice Kitto is read as to the whole of the passage through to page 104, one which strongly supports the notion that the unknowable will not defeat the kind of claim we are advancing.

GLEESON CJ: Putting aside the special issue of in-vitro fertilisation, is this a problem that only exists or only confronts courts in cases where by hypothesis there was an opportunity for a lawful abortion?

MR WALKER: All the problems, all the difficulties of my case are confined to cases of that kind.

GUMMOW J: Why is that?

MR WALKER: Because I cannot point to what would have been but for the negligence without identifying it as the consequence of a termination which is not having been born and the only way I can point to not having been born, which is, for all the reasons my friend presses, the only way my client could have avoided, and we are now into paradox already, the pain and suffering is by that termination.

HAYNE J: Let me understand that, so that there may be no doubt. If we go back to the argument in McKay [1982] QB 1166 at 1170 – and perhaps if you had it in front of you it may assist you, Mr Walker – in the sentence that Justice Gummow referred you to earlier at F. Do you contend that an available path for the appellants in this case is classifying the consequence identified as rubella affected life as a consequence that flowed from the breach of duty and that the consequence, rubella affected life, is a consequence which society and the law should concur in treating as something which the plaintiff ought not to suffer for which the plaintiff should be compensated?

MR WALKER: I do contend that but I do not submit that that is a sufficient legal contention for my success and I then repeat what I said to Justice Gummow when it was raised with me before the adjournment in my address-in-chief. I have to do more in order to supply reasons for those normative statements but of course I say, unembarrassed by the normative aspect of it, that the law of negligence should so conclude.

GLEESON CJ: This I think is related to what was said by Justice Mason in paragraph 116 on page 238 in the second sentence of that paragraph. What do you say his Honour meant there?

MR WALKER: I am sorry, your Honour, in paragraph 115?

GLEESON CJ: Paragraph 116, second sentence.

MR WALKER: Yes.

GLEESON CJ: That is the same point, is it not?

MR WALKER: Yes. The one sense that the President is referring to is that sense of causation which says an outcome which would have ensued because it originated before the defendant had anything to do with the matter, in the absence of the defendant intervening as the duty of care required, is nonetheless caused by the defendant relevantly in the law if that duty has been breached.

GLEESON CJ: In one sense it is an issue of causation. In turn the problem gets back to what the English Law Reform Commission had said before McKay, which was:

the negligence did not cause the disability; it caused the birth, but no act or omission of the adviser could have brought about the birth of a normal child.

MR WALKER: Your Honour will recall how I opened the appeal by early in my proposition saying that it should not matter – seeking to persuade your Honours that it does not matter that of course the defendant did not bring about the rubella infection. That does not make this case remarkable and, with great respect to the authors of the commission report, it is not in a medical negligence field a persuasive or substantial distinction to draw between one case and another.

Many of us wait until something appears to be wrong before we go to a doctor. We cannot blame the doctor if in fact something is wrong; it has been caused beforehand. That does not mean that there cannot be negligence involving legal causation of a bad outcome in the ordinary course of the natural history of that disease if the doctor negligently fails to diagnose or advise us as to a therapeutic course.

GLEESON CJ: What is the advice and treatment referred to by Justice Mason on line 40 on page - - -

MR WALKER: I regret to say that, in the case of my claim, the word “treatment” is a rather odd word for termination. It is not talking about intravenous medication in defence against the rubella, no. That is how we understand that sentence, your Honour.

GUMMOW J: Is the comparator your client without these disabilities, or something else and, if so, what?

MR WALKER: I do not wish to move one syllable away from what I put in-chief but could I summarise a couple of aspects of it as follows? The law requires us to identify what would have been the case but for the negligence. That is what we mean by the comparator, and I cannot escape that what would have been but for the negligence for the reasons that have fallen out in answering the Chief Justice’s last question is that we would not have been born. So that is why I say, and still say, that is the comparator and I must grapple with whatever difficulties that gives rise to.

Your Honours may recall an answer to a question from Justice Kirby about the comparator question and about another possibility and also in, I think, answer to Justice Hayne that I made these two points, that as a matter of evidence when it comes to quantifying the damages - - -

GUMMOW J: The answer to my question is no, is it?

MR WALKER: No, that – I do not wish to change - - -

GUMMOW J: I need to know Mr Walker, very specifically.

MR WALKER: Yes, your Honour. No, I do not wish to change the comparator from what we put in-chief but what I said in-chief also was that the state of affairs for someone without those disabilities which rendered the prospect of my client’s birth sufficiently bad to legalise the abortion – and that is a decrement in her wellbeing which can be identified by reference to some hypothetical, purely fictitious person without those disabilities – and I said to Justice Kirby that is how it will come in. Not as the comparator that describes the state of affairs that would have been but for the negligence. I cannot say that there would have been someone born without disability. But it comes in as a yardstick by which one measures the nature of the disability, thus identifying the pain and suffering. Your Honours will also recall that I said of pain and suffering that they are words the semantic nature of which involves an implicit comparison with something which is not pain and suffering.

GLEESON CJ: I think you said this morning that the very description of somebody as disabled necessarily implies a comparison.

MR WALKER: Yes, and that is where this quite impossible yardstick of my client without disabilities – it is factually impossible – which is not what would have happened but for the negligence, is nonetheless a standard which would overtly be used in the measuring of the damages.

GUMMOW J: That is not what I asked you. We are not talking about measuring damages. We are talking about finding liability and I still have not got an answer that I understand. If you do not want to give it, do not.

MR WALKER: Your Honour is asking about what is the state of affairs with which one compares the present position, that is the comparator - - -

GUMMOW J: I am not worried about measure of damages.

MR WALKER: - - - in order to identify whether there is damage.

GUMMOW J: I am trying to find if there is a cause of action.

MR WALKER: I understand your Honour is asking about damage as opposed to damages and, in our submission - - -

GUMMOW J: You seem to be saying it comes in at the question of damages.

MR WALKER: It comes in at the question of damages and that the facts of this case prevent me from ever saying that but for the negligence there would have been my client born without disability. That is the case of when the doctor’s failure to intervene or actual positive interference has brought about something which would not otherwise have lasted or been created.

GUMMOW J: I want to be quite clear that you do not submit that the comparator when you are formulating the criteria for the existence of the cause of action includes the matters I was debating with Mr Gageler.

MR WALKER: It comes in not in damage; it comes in in damages. I hope that is clear enough. It is, no, it does not come in for damage; yes, it does come in for damages. Now, in relation to damage, could I add the reference with which your Honours will be familiar in Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 at 505, Mr Justice Windeyer, the foot of that page, the second-last paragraph, the third of the three ways in which broadly speaking personal injury can give rise to damage is, and I quote, “it may produce physical pain and suffering.”

Now, the first and second ways are expressed by Sir Victor in ways which explicitly involve comparison. The third, perhaps significantly, it suffices simply to say pain and suffering and that is worse than no pain and suffering. It produces pain and suffering and, in our submission, that is something that we can call in aid.

GLEESON CJ: Has there been any discussion at any stage in this case of an issue that I think was noted in the Court of Appeal in Queensland but never taken any further about whether or not in assessing damages – this is in the answer to question 2 – allowance is made for any social services benefits or support that are given in respect of these children?

MR WALKER: Not on my reading, your Honour, no.

GLEESON CJ: It sounds like a fairly obvious question.

KIRBY J: But there are provisions under the social security legislation, are there not, that if you recover damages you pay back what you receive or - - -

MR WALKER: I cannot state that categorically or universally, no, your Honour.

KIRBY J: I think there is a formula. There used to be anyway.

MR WALKER: Your Honours, that would be a matter, in our submission, which could never defeat a cause of action but would have to be dealt with at the point of measuring damages.

GLEESON CJ: Then it is not a matter that was intended to be raised by question 2?

MR WALKER: I cannot answer, your Honour. Apparently not, your Honour, no.

KIRBY J: Are you going to send in a note on this suggested problem with the answer to question 2, Mr Walker?

MR WALKER: Yes, your Honour.

GLEESON CJ: Can we agree on a time for that? What about 14 days for your side and a further seven days for Mr Gageler to answer?

MR WALKER: May it please the Court.

GLEESON CJ: Does that suit you, Mr Bates?

MR WALKER: Could I return to the question of fiction raised by Justice Gummow. In the article by David Heyd in the Israel Law Review concerning the decision of the Supreme Court of Israel, first of all we ought to note that it would appear from the discussion there that it is in the reasons of Deputy President Ben-Porat that there is the closest approach to the argument for which we contend. One sees that halfway down page 584 of the article.

Second, we would respectfully submit that the passage at pages 588 and 589 in the article reveals, no doubt by reason of the profession of the author, a use, resort to and a testing of the result by logical dictates which, in our submission, are not wholly or completely appropriate as common law reasoning for the reasons I put in-chief.

In relation to the author’s discussion of fiction, which can be found, for example, at page 589, it is of course raised in order to be struck down by the author. We, in our submission, have identified a set of fictions which the common law has in the common law’s history relatively recently adopted in an allied area by our discussion of Watt v Rama, X and Y v PAL and Burton v Islington. There are fictions involved in a number of matters, and there may be fictions and counter fictions involved, for example, in treating somebody as a person only after they have been born live.

KIRBY J: Justice Gummow is correct to say, is he not, that the common law has become a bit more suspicious of fictions in recent times?

MR WALKER: Yes, and that it requires something compelling, or at least outweighing that distrust or perhaps scepticism about inventing new ones, and even continuing or extending old ones. In order to do so, Watt v Rama is an example of the felt dictates of the appropriate standards to be called for from medical practitioners attending to women who may or may not be pregnant, and particularly attending to women who are pregnant and, as in this case, raise the question, correctly, with respect, identified by the Chief Justice as not arcane or modern, of German measles, of rubella.

Now, in our submission, that is precisely the case where excessive logic, which we respectfully submit is the result of the Israel Law Review approach, will lead to a wrong common law result. It is only in that sense in which I was trying to answer Justice Gummow’s question earlier, it is only in that sense that we are talking about fictions. There are the fictions involved in us being born with a completed cause of action and there is obviously fictions involved in the use of my client without the disability which was the awful prospect that legalised the termination or would have legalised the termination. It is obviously a fictitious, imaginative and quite impossible use being made of that comparable position when one comes to the measuring of damages.

Now, that then leads to a matter that my learned friend addressed in relation to some questions raised by the Chief Justice and, in particular, the inquiry, “Why does this cause of action cover only for serious injury?” As a matter of principle, it would be no more acceptable in a case such as the present as in any common law case to say that people harmed but not enough to justify a certain large amount of damages being awarded need not apply to a common law court, and we do not so put it.

We simply say that in this case the damages should be available only for that which represents the serious disability rather than for everything that my client being alive costs or should be given solatium for simply for her being alive for the following reason.

KIRBY J: Is this at the level of damage or damages?

MR WALKER: Damage and scope of duty. The kind of damage in question is the living with this suffering. The scope of the duty required the doctor to be astute to point out that kind of suffering as prospect for a child so as for there to be an assessment of the safeguarded criminal law standards in relation to the threat to the woman’s mental health.

The scope of the duty did not require the doctor to point out that the child might be born with a harelip or a squint and that is all, because that could never have justified, in our submission, given the safeguards in the criminal law, the legalising of the termination. So that in this case it is only the kind of damage contemplated by the scope of the duty in question which has to do with presenting a choice about termination which, in our submission, is recoverable.

It is in that way that one also answers the question why, if there was such a prospect but it was not certain and it was therefore negligent not to provide the opportunity to terminate and then the child is born, does not suffer the awful prospect but does suffer something lesser, why should not that child also recover? The answer is the child should recover if the something lesser is still bad enough to have been within the scope of the duty to warn about as capable of justifying a termination but damage will not be actionable - sorry, the disability would not be actionable damage if it is not such as to be within the scope of the duty to warn about so as to provide an opportunity for legal termination.

It is in that way that abortion is critical to our case. It is in that way that the pre-existing, the current law about abortion provides not an arbitrary line but a line expressed in terms familiar also to the common law in relation to honesty, reasonableness, seriousness and the balance against the normal risks of pregnancy and childbirth.

KIRBY J: Is there any tort that you can think of, where as part of the element of the definition of the tort there is a limitation of that kind?

MR WALKER: It is not a limitation that is directly expressed in terms of it has to be serious, but in our submission it is a general proposition that it is only the kind of damage within the scope of the duty to avoid which is compensable or actionable damage.

KIRBY J: That is because of the need for the remedy of a termination.

MR WALKER: Well, in this case that it is how it turns out but the proposition I have just put is a general proposition about the law of negligence. Thus, for example, if one should be warned about playing a game of football because the team opposed is far too heavy for a team of more lightly framed boys, and it is negligent not to have done so, and the game proceeds against the very big team but there is no mishap caused by the disparity of size and a little boy simply sprains his ankle running free, then no one suggests that because but for the negligence the game would not have happened, the sprain is compensable, at least so we submit. It is a humble example but, in our submission, an orthodox example that that is not the kind of damage within the scope of the duty to have avoided. It did not call for a warning, “Do not play football. Whenever you run anywhere, you may sprain your ankle”.

CRENNAN J: But, Mr Walker, would not a warning about rubella include mentioning that there would be a range of possibilities?

MR WALKER: Yes, it does. Now, the agreed facts in this case elide all of that, your Honour, they do and they make the steps inexorably, without any of the necessary clinical detail, without any of the counselling detail and in particular, without any of the description that your Honour has referred to by the extremely terse proposition that the termination would have been lawful and, with great respect, your Honour, were a case such as this to go to trial, that area of fact would be at the heart of what I fear would turn into, as it were, a criminal moot in a civil case. I cannot avoid that, it is part of my causation, it is part of my claim and what your Honour raises, with respect, is not something that I can go any further on in this case because there is nothing in the record about it. I do not think there is any reference in any of the reasons to it but there is certainly nothing in the record for the assumed facts.

In that regard, it has to be said that we entirely accept what our learned friend said in relation to the objective, as he put it, judgment of the lawfulness, that is the availability of the termination without which there can be no cause of action and we do not put, do not think we put below, certainly do not put here, that the matter is, as it were, determined by the mere preference or choice of the mother or the parents. It is certainly not. It has to be a lawful termination. That is assumed with all the matters that your Honour has just conjured up by that reference.

In our submission, my learned friend goes too far in submitting that there must be a duty owed to the mother if there is a duty owed to the doctor in cases such as this. For one thing, as has already been said, a permission or liberty to seek a termination of pregnancy will not be turned by tort into what I will call a civil obligation to do so or to pay damages unless it would pass elementary tests of reasonableness and, in our submission, there is a world of difference between the professional duty owed by a doctor consulted about the very rubella risk in question in this case and the personal liberty of a most intimate kind presently understood to be possessed by a woman in that position, particularly when, by concession in this case, by concession of the defendant, proper medical advice would have drawn to attention the possibility of an abortion.

So, for all of those reasons, without suggesting that it had to be carried through particularly when there are going to be always less than black and white choices for reasons including those that Justice Crennan has noted would arise in a case with a real record of real evidence. Your Honours, I note the time.

GLEESON CJ: How long will you require to finish your submissions?

MR WALKER: About another five minutes, your Honour.

GLEESON CJ: What about you, Mr Bates?

MR BATES: .....

GLEESON CJ: We will sit on until we complete the arguments.

MR WALKER: I am reminded that I described the agreed facts as very terse. Your Honour will have seen at page 10 in the appeal book, about line 24, there is simply that phrase of a kind that one might see in Bullen and Leake, “suffer grievous injury”, we have drawn to attention in our written submission. It cannot go and does not go any further.

In relation to the wardship cases my learned friend offered the distinction that there was a different kind of comparison being conducted in those cases. In one sense, of course, no doubt there is. The way he put it however was to say that there was life on both sides, life without the intervention or without the step for which sanction is being sought and life on the alternative approach, but all the cases to which we have drawn to attention and many wardship cases, not all, when they posit the alternative life are in fact referring, and in express terms as you have seen from the reasons in the cases we have cited, to death, that is to an earlier death, also to an easier death, for example. So the comparison is not so different after all. May it please your Honours, subject to the matters to be covered in the supplementary written submission those are our submissions.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Bates.

MR BATES: Your Honours, if I could first address some issues about the agreed facts that were raised in the discussion between Justice Kirby and Mr Gageler. If I could ask your Honours to turn to the appeal book at page 47. In relation to the agreed fact No 43, we would submit that the Court should understand that agreed fact to mean that at all relevant times or at all material times the first, second and third defendants ought to have, but did not investigate and advise the first and second plaintiffs in relation to the second plaintiff’s AT3 deficiency. There are some other agreed facts that bear tangentially on this. If I could take your Honours back two pages to page 45, in agreed fact No 11 there is a reference in brackets to the words “appropriate”:

The first defendant arranged for fertility tests and other investigations to be carried out in March 1999 including, tests at the second defendant Sydney IVF Pty Limited at its Illawarra rooms in the Wollongong Day Surgery, 358 Crown Street, Wollongong. None of these tests or investigations was directed to –

and then the words in brackets are perhaps important –

(or appropriate) to obtain information about the second plaintiff’s AT3 deficiency or its precise genetic basis or its transmissibility to any offspring of the second –

and that word “defendant” has been corrected. It was a typographical error. It refers to plaintiff. The same words appear in brackets in the 13^th agreed fact on the same page:

On 5 May 1999 the first defendant organised genetic testing of the second plaintiff by the second defendant to determine if a chromosomal abnormality was responsible for his poor sperm count (a test for AZF mutations). None of these tests or investigations was directed to (or appropriate) to obtain information about the second [plaintiff’s] AT3 deficiency or its precise genetic basis or its transmissibility to any offspring of the second defendant.

We would submit that the words “or appropriate”, at least in the context of the agreed facts, would carry an implication that there was some form of testing that was appropriate for that purpose.

If I could also take your Honours back earlier in the pleadings themselves at page 22 of the appeal book, although it is perhaps not an agreed fact directly, the particulars of negligence set out in paragraph 15 at page 22 of the appeal book, in particular No (e) include an allegation that there was a failure by Dr James and Sydney IVF to warn Mr and Mrs Waller:

that the risk of transferring an AT3 affected embryo to the first plaintiff could be avoided either by appropriate genetic testing and screening or by use of sperm from another sperm donor without a family history of AT3.

The particulars of negligence also allege more fully at – going back for a moment to page 27 of appeal book, paragraph 27 of the pleadings, there is a reference in particular (f) to allegations about the nature of this defect which affected 50 per cent of Mr Waller’s sperm. So we would submit in the circumstances that your Honours would draw an inference that, at least for the purpose of the agreed facts, there was appropriate testing that was available at relevant times.

KIRBY J: There is no suggestion, is there, that his taking of Warfarin made any difference, that is to say the father?

MR BATES: Going beyond the agreed facts perhaps, your Honour, but I can say - - -

KIRBY J: Well, if it goes beyond the facts, I do not want to go there.

MR BATES: The next issue I wish to turn to, your Honours, is in regard to the comparator and the damage. We submit that the main comparator is set out at paragraph 49 of the appellant Waller’s submissions, namely the needs that he was born alive with - - -

GUMMOW J: Paragraph 49?

MR BATES: Of my written submissions, page 16 of those submissions. The injury is constituted by the needs that he was born alive with, and which were reasonably foreseeable and which are permanent and which have materially contributed to other consequential needs. On that point also, if I could take your Honours to the recent decision - - -

GUMMOW J: What is the comparator?

MR BATES: The comparator is the new needs brought about by the breaches of duty of the defendants which were foreseeably creating these needs. In other words, more specifically, the AT3 disease and also the - - -

GUMMOW J: Compared to what?

MR BATES: Compared to not having those, your Honour, compared to not having AT3.

GUMMOW J: Compared to who not having them?

MR BATES: Well, perhaps implicit to a person – not this plaintiff not having it, it may be implicit, but this plaintiff specifically does have it. So it is the comparison with a person not having AT3, I suppose, your Honour.

GUMMOW J: Which person?

MR BATES: An ordinary person, or any person who was not born as a result of having a diseased sperm carrying that disorder. If the sperm that had been selected – if the embryo that had been implanted was not an embryo which had AT3, the person born would not have had AT3. Keeden Waller would not have obviously been the person there but he has got this disorder. Implicit is a comparison of a person not having AT3 disorder.

GUMMOW J: And not having anything else wrong with them. This is the fictional healthy person.

MR BATES: Your Honour, the content of the duty of care must be related to the foreseeable risk. The foreseeable risk in these circumstances was the risk of transmitting the genetic blood-clotting disease, AT3, and so, therefore, the compensable injury is the injury which is within the zone of a foreseeable risk. That is how we put it, your Honour.

KIRBY J: Do the agreed facts explain why it was that Keeden developed the profound disabilities, whereas his father who carried the same genetic disability did not?

MR BATES: No, your Honour, the agreed facts – I think Mr Gageler accepts in his written submissions that the agreed facts should be read as being that the blood-clotting disorder materially contributed to a number of secondary consequences, namely, the cerebral thrombosis, the brain damage, the cerebral palsy and the uncontrolled seizures.

KIRBY J: Anyway, you say there are a lot of facts and evidence that has to be sorted out and you want to get to a trial but at the moment you do not get there.

MR BATES: Yes, your Honour. Your Honour, also in relation just to this aspect of the damage and quantifying it, in CSR v Eddy [2005] HCA 64, if I could just take your Honours to two passages. First of all, at paragraph 32 in the majority judgment of Chief Justice Gleeson, Justice Gummow and Justice Heydon the observation was made that:

In applying Griffiths v Kerkemeyer it is relatively easy to estimate the extent of the plaintiff’s needs for personal care or services –

We would submit that the special needs or additional needs claimed here are indeed ones that are relatively easy to estimate and do not involve the law in difficult fictions or in difficult comparisons of a conventional nature. Likewise, to the same effect, in the judgment of Justice McHugh at paragraph 111 where his Honour said:

the costs of care associated with servicing an injury-caused need are relatively easy to quantify –

and the very fact that damages is relatively easy to quantify makes it an appropriate basis for the damage.

Your Honour, thirdly and finally with regard to the issue of fictions that were raised, whilst it is true that the general trend of the common law has been less, perhaps, encouraging towards fictions, we do submit that – if I could take your Honours to my written submissions at page 19 in paragraph 53, I refer at that paragraph where I say a number of well-established principles and rules of law recognise that in some respects the common law should be interpreted beneficially and remedially in favour of recognising harm suffered by a person prior to birth by vesting new rights at the time of live birth in respect of conduct that occurred earlier, even prior to conception. We submit that those decisions do in fact involve, to some extent, a well-recognised use of fictions to assist - - -

GUMMOW J: The Rama Case does, I would have thought.

MR BATES: Yes, your Honour, and perhaps even to some extent, for example, the other case mentioned in that footnote there, Kosky’s Case where the negligence, in fact, that had occurred in that case had occurred
eight years before conception and the court treated it as being an ongoing breach of duty for the next eight years.

GUMMOW J: What would be the notional exercise here, in your case, that you would want to make?

MR BATES: Your Honour, my primary submission is that there is no notional comparator but my secondary submission would be that, if necessary, the Court would introduce perhaps some element of fiction into a comparator to make some way of appropriately compensating the plaintiff for the needs that he is going to endure for the rest of his life and that suffering. They are my submissions, your Honours, in reply.

GLEESON CJ: Thank you, Mr Bates. We will reserve our decision in these matters and we will adjourn until 12.00 noon tomorrow.

AT 4.33 PM THE MATTERS WERE ADJOURNED