WRONGFUL BIRTH DAMAGES WALLER V JAMES [2013] NSWSC 497

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BACKGROUND

Familiar case name? Waller v James [2006] HCA 16

Factual background: Paternal Anti-thrombin condition

IVF required for the pregnancy; provided by Dr James

Keeden born August 2000

Cerebral thrombosis (CSVT) on day following discharge

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THE CLAIM

Failure to properly inform the plaintiffs, or cause them to be informed, of the

hereditary nature of ATD (Dominant, 50% but variable manifestations)

Failure to explain / follow up recommendation for genetic counselling

Alleged that, had they been properly informed, they would not have proceeded to

conceive a child using the male plaintiff ’s sperm

Note: Proceedings issued before CLA (NSW)

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DUTY OF CARE

The usual Rogers v Whitaker duty: to exercise reasonable care and skill in the

provision of professional advice and treatment

Note: Ordinary reasonable patient v these two patients

“…the question of the potential inheritability of ATD was of significance to the plaintiffs. It

was a matter of which the plaintiffs should have been informed…”

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BREACH OF DUTY

“...In my opinion the defendant did not raise with the plaintiffs the potential inheritance of

ATD nor did he adequately explain to the plaintiffs the purpose of the referral with the

consequence the plaintiffs did not seek to contact Ms Duggan after the failure of the first

attempt…”

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FACTUAL CAUSATION

Plaintiffs would have gone to genetic counsellor

Whilst most people would have gone ahead with the pregnancy anyway, once

counselled, the plaintiffs would not have

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CAUSATION

But, the plaintiffs failed to establish that

the CSVT was caused or materially

contributed to by the ATD

Discussion: Is this relevant as a factual

or normative causation finding?

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WALLACE V KAM

20 Yet another scenario is where the patient, if warned of material risks, would have

chosen not to undergo the treatment at the time the treatment in fact took place

but may have chosen to undergo the treatment at a later time. Analysis of that

further scenario has been more controversial.

The better analysis is that it is also a scenario in which a determination of factual

causation should be made. Absent the negligent failure to warn, the treatment that in

fact occurred would not have occurred when it did and the physical injury in fact

sustained when the treatment occurred would not then have been sustained.

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WALLACE V KAM 2

21 To determine factual causation in a case within the second or third scenarios,

however, is to determine only that s 5D(1)(a) is satisfied. Satisfaction of legal

causation requires an affirmative answer to the further, normative question posed by

s 5D(1)(b): is it appropriate for the scope of the negligent medical practitioner's

liability to extend to the physical injury in fact sustained by the patient?

22 In a case falling within an established class, the normative question posed by s

5D(1)(b) is properly answered by a court through the application of precedent.

Section 5D guides but does not displace common law methodology….

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CONTRIBUTORY NEGLIGENCE

No quantified finding

“…An appropriate course for the plaintiffs, taking reasonable care in their own interests

and before discarding the referral would have been to inquire of the defendant as to the

purpose of the referral. This aspect may be relevant to contributory negligence but would not

defeat the plaintiff ’s primary claim…”

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DAMAGES ISSUES POST CATTANACH

Duration:18+ ?

Gratuitous care, is it recoverable and if so on what valuation?

Expenses, can the plaintiffs’ only recover what they can afford to pay?

Offsets for social security

Discount rates for future losses

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ORDINARY COSTS, ON THESE FACTS

Despite Cattanach v Melchior, as these plaintiffs wanted a child, the ordinary costs of

raising Keeden were not recoverable

Discussion: How does this fit with the termination of pregnancy cases?

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MAJORITY ISSUE

At first instance the claim should be limited to the period up to age18 years

Any entitlement beyond the age of legal majority subject to policy considerations,

and further development of the law

Note: Contrary UK authority and obiter remarks in Cattanach

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GRATUITOUS CARE

Gratuitous care provided by the parents should be compensation by way of award for

lost wages

This also is subject to policy considerations

Note: Section 71 Civil Liability Act 2002 (NSW): “…the court cannot award damages for

economic loss for ….any loss of earnings by the claimant while the claimant rears or

maintains the child.”

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FUTURE CARE – PAID BASIS

Future paid care may be recoverable, subject to credible evidence substantiating the

claim

If a “pragmatic approach” is adopted, may not be limited by parental income.

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OFFSETS

Receipts or entitlements will generally be taken into account by way of offset in the

assessment of the damages

Subject to the application of provisions requiring refund

Ensure that the plaintiff does not receive and retain double compensation for the

same loss or expense

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DISCOUNT RATES

The economic loss claim in respect of raising and caring for the child is not a

standalone claim, but rather is properly categorised as part of the total damages

claim for damages for personal injury

The 3% discount rate in Todorovic v Waller applies

Claims governed by civil liability legislation will presumably have different rates

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IMPLICATIONS - DAMAGES

Duration:18+ ?

Gratuitous care, is it recoverable and if

so on what valuation?

Expenses, can the plaintiffs’ only

recover what they can afford to pay?

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IMPLICATIONS - DUTY

Genetics advice

IVF

Non IVF obstetrics?

Non reproductive contexts?

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