46.1 To date there has been limited use of genetic information in civil proceedings in Australia, with the exception of the use of DNA parentage testing in family law proceedings and in proceedings related to succession to estates (see Chapter 35). However, commentators have suggested that as the predictive nature of genetic tests gains greater acceptance in the scientific and medical communities, this information increasingly could be used.[1]

46.2 This chapter discusses the potential use of genetic information that discloses a person’s inherited predisposition to, or presymptomatic status for, a disease or condition in the context of civil proceedings.

46.3 Genetic information could be used as evidence in various tort actions, including actions for personal injury, medical negligence or product liability. For example, in the United States, wrongful life and wrongful birth cases have been brought for failure to inform patients of the risks of having children with serious genetic disorders, and for the negligent administration of tests for genetic diseases.[2] As discussed in Chapter 33, genetic information could also be used in the context of workers’ compensation claims or common law actions for damages for work-related injury or death.

46.4 In practice, the relevance of genetic information in civil proceedings may be limited by current scientific knowledge about the predictive nature of the information; the probabilistic, rather than deterministic, nature of the information; and the existence of other environmental causes of disease in the facts in issue.

[1] See G Marchant, ‘Genetics and Toxic Torts’ (2001) 31 Seton Hall Law Review 949; R Weiss and others, ‘The Use of Genetic Testing in the Courtroom’ (1999) 34 Wake Forest Law Review 889; N Kording and J DuMontelle, ‘An Overview of Admissibility of Genetic Test Results in Federal Civil Actions: An Uncertain Destiny’ (1998) 19 Whittier Law Review 681; J Wriggins, ‘Genetics, IQ, Determinism and Torts: The Example of Discovery in Lead Exposure Litigation’ (1997) 77 Boston University Law Review 1025; M Rothstein, ‘Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation’ (1996) 71 Indiana Law Journal 877; R Dreyfuss and D Nelkin, ‘The Jurisprudence of Genetics’ (1992) 45 Vanderbilt Law Review 313.

[2] R Weiss and others, ‘The Use of Genetic Testing in the Courtroom’ (1999) 34 Wake Forest Law Review 889, 912.