Harmless wrongdoing? The tort of wrongful life

Event date
16 February 2011
Event time
19:45
Oxford week
Venue
University College
Speaker(s)
Sandy Steel and Will Crouch
In this paper, we consider whether a claimant should succeed in tort law for what is known as a "wrongful life" claim. In such a claim, a severely disabled claimant, C, who could not have existed other than in a severely disabled state, asserts that the defendant caused C to exist and that this existence constitutes a legally recognisable damage to C. Courts have largely rejected claims of this type, claiming that C has not been harmed, and therefore cannot be the victim of a tort. They have given two independent reasons to justify this claim. First, they have claimed that the assertion that an individual is worse off existing than not existing is unintelligible: bringing someone into existence therefore neither harms nor benefits them. Second, they have claimed that, though the comparison is intelligible, existing is always better than not existing: bringing someone into existence is, therefore, always a benefit. We argue that neither of these reasons is a good one, and argue that at least some wrongful life claims should be successful in tort law.

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