Fifteen months after the initial hearing, the New South Wales Supreme Court has handed down its decision in a controversial ‘wrongful birth’ case, Waller v James.1

Background

The parents of a severely disabled child brought a claim against their IVF specialist for the alleged failure to warn them of an hereditary blood-clotting condition affecting their son. Soon after his birth in August 2000, Keeden suffered a stroke which resulted in severe brain damage, depriving him of the ability to walk or talk.

The parents alleged that a factor contributing to Keeden’s stroke was antithrombin deficiency (ATD), a condition inherited from his father. They claimed that the IVF specialist breached his contract and common law duty of care by failing to inform them of the hereditary issues relating to ATD, resulting in Keeden’s ‘wrongful birth’.

The parents sought $10 million compensation for the cost of having, raising and caring for Keeden, and damages for the physical and psychological harm to themselves. The proceedings pre-dated the Civil Liability Act 2002 (NSW) (CLA) and so the common law applied to their determination.

A claim for damages on behalf of Keeden himself for ‘wrongful life’ proceeded to the High Court in 2006,2 however it was held that Keeden’s life with his disability was not actionable or legally recognisable damage within the tort of negligence.

Decision

The Supreme Court dismissed the parents’ claim, largely on the basis of the existence and scope of the duty of care and causation, and ordered the parents to pay costs.

Scope of duty of care

The Supreme Court confirmed that there is a general duty of care owed by medical practitioners to exercise reasonable care and skill in the provision of professional advice and treatment. The specialist accepted that he owed a duty of this nature to the parents, however not of the scope alleged by the parents in their claim.

The parents argued that the specialist’s duty extended to protection from physical and psychological harm and economic loss. The specialist argued that such damage was not within the scope of his overall duty, because it was not a reasonably foreseeable consequence of the acts and omissions alleged by the parents.

The Court also found that the specialist had a duty to refer the parents to a genetic consultant, and that the manner in which this was done by the specialist (by post-it note) was inadequate. The Court found that the specialist should have understood the possibility of ATD having genetic elements, however he lacked the knowledge (not as a result of any negligence) of the specific mode of inheritance. 

The Court therefore found the primary duty to inform the parents of the hereditary aspects of ATD did not rest with the specialist, but that the duty extended to ascertaining if they were aware ATD was potentially inheritable, and to adequately explain the purpose of a referral.

Causation

The common law test for causation is very similar to that found in the CLA, and involves two considerations:

  1. would the plaintiffs’ harm have occurred “but for” the acts or omissions of the defendant; and
  2. should the defendant have to answer for the consequences of those acts or omissions. This aspect may require consideration of value judgments and policy choices.

The Court considered the two hypothetical issues relevant to the first limb of causation. These were:

  1. whether the parents would have sought and obtained proper advice regarding the hereditary aspects of ATD if properly advised by the specialist; and
  2. having received such advice, refrained from having Keeden. The Court held that in view of the parents’ demonstrated concern as to the inheritance aspects of ATD, they would have attended the genetic consultant and elected not to have Keeden. Thus, the first limb of causation was made out.

The Court found, however, that the second limb - which, under common law is often referred to as “common sense” causation, and, under the CLA, as “scope of liability” - was not satisfied because the parents did not prove, on the balance of probabilities, that Keeden’s ATD played a causative role in bringing about his disabilities. The Court accepted expert evidence that ATD was not a common cause of neonate stroke, and that Keeden’s ATD was ‘at most a minor contributing factor’.

The Court also accepted a submission from the specialist that the harm suffered by Keeden’s parents was the economic loss and physical and psychological damage caused by what happened to Keeden i.e. the stroke. Therefore, it could not, in the Court’s opinion, be said that the parents’ harm was a consequence of Keeden inheriting ATD.

Comment

This case again demonstrates the importance of causation in medical negligence claims. It is one of a growing number of cases in which medical practitioners have escaped liability on the second limb of causation, which involves a policy decision on whether a defendant should be found liable.

It also highlights the importance of doctors providing information on potential risks as far as practicable within the scope of their expertise, making referrals where appropriate and explaining the reason for the referral.