Waller v James

Torts – Medical negligence - Wrongful life - Agreed for the purposes of separate questions at first instance that respondents negligently failed during in vitro fertilisation (IVF) program and antenatal care to investigate and advise or warn parents in relation to genetic condition of the father where the condition posed a risk to the appellant child - Child conceived with inherited genetic condition - Child suffered serious disabilities as a result of the inherited genetic condition - Whether child can recover damages from the respondents.

Duty of care – Medical practitioners and medical service providers - Whether respondents owed the child a duty of care to investigate and advise or warn parents in relation to the risks of the inherited genetic condition, enabling parents to make informed decisions about IVF or termination of pregnancy - Foreseeability of risk to the appellant - Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury - Vulnerability of the appellant - Need to distinguish duty of care from other elements of negligence - Relevance of duty of care owed to the appellant's mother - Whether duty of care owed to the appellant included duty to terminate life - Whether such a duty admissible in law.

Damage – Whether a life with disabilities is actionable damage - Whether it is possible to prove damage by comparing a life with disabilities with non-existence.

Damages – Assessment - Measure of damages - Compensatory principle -Non- existence as a comparator - Comparison to child born without genetic condition and consequent disabilities - Whether claim for special damages quantifiable - Whether only special damages may be awarded.

Public policy – Principle of the sanctity of human life - Whether life is capable of constituting a legally cognisable injury - Effect on disabled people of awarding damages for wrongful life - Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects - Whether disabled child could sue his or her mother for failing to terminate her pregnancy - Whether awarding damages for wrongful life would undermine familial relationships.

Statutes – Whether common law can be developed by analogy with legislation - Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction - Relevance of legislature's inaction.

Words and phrases – "wrongful life", "wrongful birth".