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Title: Wrongful Life and Social Justice
Contributor(s): Warner, K (author)
Publication Date: 2007
Open Access: Yes
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Abstract: The High Court of Australia has recently ruled against the claimants in an action in negligence seeking compensation for their personal difficulties resulting from their birth with physical and intellectual impairments; a case of what has become generally known as the 'wrongful life' action. This article provides an analysis of the judicial reasoning in the context of approaches to the wrongful life action internationally. Critical to the outcome in these cases is the way in which the court characterises the legal issues of 'causation' and 'damage'. On close scrutiny this is not the self-evident matter that initially appears to be so, which is an important reason why the action has met with some success in other jurisdictions. There follows an evaluation of the policy background for wrongful life claims and an argument for just compensation consistent with a theory of legal obligation in the common law. It is argued that, contrary to the predominant judicial and academic opinions to date, there are no strong policy grounds for the out-and-out rejection of these claims. The author concludes that the opportunity was available for an outcome which could satisfy policy concerns whilst reasonably attending to practical considerations and social fairness to the claimants.
Publication Type: Journal Article
Source of Publication: University of New England Law Journal, 4(1), p. 35-55
Publisher: University of New England
Place of Publication: Armidale, Australia
ISSN: 1449-2199
HERDC Category Description: C2 Non-Refereed Article in a Scholarly Journal
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Appears in Collections:Journal Article

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