(Wallace v Kam [2013] HCA 19)

Background

12 year old Keeden Waller has an anti thrombin deficiency (ATD), an inherited condition which affects his clotting pattern and can give rise to a risk of thrombosis.

ATD can be inherited from one parent only and a parent with the ATD gene has a 50 per cent chance of passing it on to his or her child. ATD is not a rare condition but it is very rare for ATD to have any effect on children and extremely rare for neonates with ATD to develop thromboses.

In 1998, Keeden’s parents consulted a haematologist, Dr Ramakrishna, to investigate whether his ATD would impact upon, or be passed on to, any children he and his wife might have. Mr Waller’s understanding after seeing Dr Ramakrishna was that it was impossible for him to pass on the condition to any children if Mrs Waller did not also have the condition. They then tried to conceive a child naturally, without success.

In 1999, Mr and Mrs Waller consulted Dr James, a gynaecologist with a sub-speciality in infertility and IVF, for fertility assistance. Not being a geneticist, Dr James was aware of the existence of ATD and had some knowledge about the condition, but he had no knowledge of how the condition could manifest in children and babies. Genetic testing of embroyos was not available in 1999, nor was antenatal testing.

In the course of the referral by Mrs Waller’s general practitioner, Dr James was informed that Mr Waller had ATD and took Warfarin daily. At some point during the first consultation, Dr James gave Mr and Mrs Waller a post-it note containing the name and contact number of a genetic counsellor, Ms Duggan. Although Mr and Mrs Waller were advised that Ms Duggan was a genetic counsellor, their evidence was that they did not have a clear understanding of why the post-it note was given to them. A day or so after the first consultation with Dr James, Mr Waller tried to contact Ms Duggan but the phone rang out and he did not try again. Mrs Waller did not try to contact Ms Duggan.

Mr and Mrs Waller did not tell Dr James that they had not contacted Ms Duggan, nor did they tell him that they had previously consulted Dr Ramakrishna. Dr James did not ask them whether they had contacted Ms Duggan.

On 10 August 2000, Mrs Waller gave birth to Keeden,, who had been conceived via IVF. On around 14 August 2000, Keeden suffered an extensive cerebral sinovenous thrombosis (CSVT), or stroke, as a result of which he was rendered profoundly disabled. Mr and Mrs Waller alleged that one of the contributing factors leading to the CSVT was that Keeden had inherited ATD from Mr Waller.

Keeden made a claim to recover damages for his disabilities and their consequences (Waller v James [2006] HCA 16). However, this claim was not successful, as the High Court held that Keeden’s life with disabilities was not actionable damage. The appeal to the High Court did not involve any aspect of Mr and Mrs Waller’s claim.

Claim by Mr and Mrs Waller against Dr James

Mr and Mrs Waller commenced proceedings in the Supreme Court of New South Wales against Dr James alleging breach of contract and duty in failing to inform them of the hereditary aspects of ATD. They claimed that, had they been properly informed, they would not have proceeded to conceive a child using Mr Waller’s sperm and that they would therefore have avoided they harm the now claim to have suffered.

Dr James’ duty of care

In a detailed and comprehensive judgment, Hislop J held that the primary duty to give information to Mr Waller as to the hereditary aspects of ATD rested with the haematologist who treated him for an earlier DVT, while that relationship subsisted, and with Dr Ramakrishna when specifically consulted in this regard.

His Honour found that Dr James owed a duty of care to Mr and Mrs Waller to ascertain if they were aware that ATD was potentially inheritable, to explain to them the purpose of the proposed referral and to properly refer them to an appropriate person to obtain that information. Dr James also had a duty to ascertain if such consultation had taken place and, if it had not, find out why and reinforce the importance of consulting with the genetic consultant or geneticist. However, Dr James was not under any obligation to inform them of the availability of donor sperm.

Breach of duty

In relation to breach, his Honour observed that:

  1. Dr James did not raise with Mr and Mrs Waller the potential inheritance of ATD, nor did he adequately explain to them the purpose of the referral to Ms Duggan. The consequence of this was that they did not try to contact Ms Duggan after the first, unsuccessful attempt.
  2. The purpose of the post-it note was to provide Mr and Mrs Waller with Ms Duggan’s name so that they could contact her and make an appointment to see her. It was not necessary for Dr James to write a referral to Ms Duggan as she was not a specialist medical practitioner. The note therefore achieved its purpose and Dr James did not breach his duty of care to the Wallers by the form which the referral took.
  3. Dr James’ evidence was that had he known that Mr and Mrs Waller had not seen the genetic counsellor, he would have been surprised and would want to know why.

This lead to two hypothetical questions:

  1. Had Mr and Mrs Waller been followed up, would they have sought and obtained proper advice as to the hereditary aspects of ATD?
  2. As a result of advice they received, would they have refrained from having a child using Mr Waller’s sperm?

In answer to the first question, Hislop J found that it was likely that Mr and Mrs Waller, with the benefit of further explanation, would have sought proper advice. The situation was therefore in contrast to that in Varipatis v Almario [2013] NSWCA 76, in that a further referral would not have been “an exercise in futility”.

In considering the second question, his Honour noted that Mr and Mrs Waller’s evidence may have been influenced by their anger and their view that Keeden’s CSVT was due to ATD. It was therefore appropriate to consider what a reasonable person, uninfluenced by these considerations, would have done.

His Honour concluded that most reasonable people, when faced with the prospect of at least some years’ delay before appropriate tests became available, the understandable desire to father one’s own children, the higher risk of hereditary problems associated with donor sperm in 1999 and the relatively small risks of any significant symptoms arising from ATD, would have elected to proceed with the pregnancy as planned. However, a decision not to proceed with conceiving Keenan could not be categorised as unreasonable. The Wallers’ actions indicated that they had greater concerns than the ordinary reasonable person in relation to ATD. His Honour was therefore satisfied that, properly informed, Mr and Mrs Waller would have elected not to have Keenan.

Causation

Ultimately, however, Mr and Mrs Waller failed on causation. The test for causation involved two questions:

  1. Would Mr and Mrs Waller’s harm have occurred but for the acts and omissions of Dr James?
  2. Should Dr James have to answer for the consequences of those acts or omissions?

In determining causation, the Court placed considerable significance on the evidence given by Professor Monangle, a paediatric haematologist qualified by Dr James, to the effect that he did not consider that the ATD was a significant contributor to Keenan’s CSVT. The neonatologist qualified by Mr and Mrs Waller agreed that there was no epidemiological evidence which established the association between ATD and venous thrombosis. The Court therefore concluded that Mr and Mrs Waller had failed to establish that the CSVT was caused or materially contributed to by the ATD. Mr and Mrs Waller had therefore suffered no harm by reason of Keeden inheriting ATD, which had been and remains asymptomatic.

The Court then considered Mr and Mrs Waller’s causation argument based upon the High Court’s decision in Cattanach v Melchior [2003] HCA 38, which related to a failure to warn a woman who had undergone a sterilisation procedure that she may fall pregnant notwithstanding the procedure. Mr and Mrs Waller argued that Cattanach was directly applicable, in that the intention in a sterilisation case is to prevent the birth of a child for whatever reason, while the intention in this case was to prevent the birth of a child who may later develop the symptoms of ATD.

The Court held that Cattanach does not establish any general principle that when a child is born due to the negligence of a third party the parents are entitled to recover the costs of having, raising and caring for the child from the third party.

A plaintiff is still required to prove causation, which the Wallers had not done. The existence of Keeden was not causative of Mr and Mrs Waller’s loss in a legal sense, it being merely the factor which secured the presence of Keeden when he sustained CSVT. The Wallers wanted a child and they got one, albeit a child with ATD. The measure of the loss to Mr and Mrs Waller by reason of Keeden having ATD is nil.

The Court held that Mr and Mrs Waller had therefore failed to establish that their loss was so connected with Dr James’ fault that “as a matter of ordinary common sense and experience it should be regarded as a cause of it”.

Comment

The decision is a further illustration of the Court’s current rigorous approach to causation, as well as a reminder of the importance of expert witnesses in matters involving complex medical and epidemiological issues.

The judgment is also of assistance in that, although there was no strict need to do so, the decision having been made in Dr James’ favour, Hislop J addressed each of the aspects of the claim for damages, providing a useful guide to the assessment of wrongful birth claims in New South Wales.