G and M v Armellin

[2009] ACTCA 6

G and M v ARMELLIN
[2009] ACTCA 6 (1 May 2009)

APPEAL – Appeal from order of a single Judge – Appeal on inferences drawn from the facts found by the primary Judge – action for damages – error in the determination of the respondent’s duty of care – Appeal allowed

NEGLIGENCE – negligently caused pregnancy – wrongful birth – in vitro fertilisation – appellant instructed that she did not want a multiple pregnancy – Risk of multiple pregnancy associated with single embryo transfer accepted by the appellant – appellant communicated to respondent that she only wanted one embryo transferred during IVF procedure – instruction not communicated to embryologist – appellant sedated for transfer procedure – embryologist transferred the embryos – two embryos transferred – transfer resulted in multiple pregnancy and birth of twins

NEGLIGENCE – duty of care – appellant was the respondent’s patient – respondent was ultimately responsible for the transfer procedure – respondent owed ‘a duty to exercise reasonable care and skill in the provision of professional advice and treatment’ to the appellant – appellant not advised of default procedure of fertility clinic to transfer two embryos – appellant told she could advise the number of embryos for transfer ‘up to the point of the transfer’ – failure of the respondent to confirm the number of embryos for transfer with fertility centre staff was a breach of his duty of care to the appellant  

Harriton v Stephens (2006) 226 CLR 52
Cattanach v Melchior (2003) 215 CLR 1
Elliott v Bickerstaff (1999) 48 NSWLR 214

REASONS FOR JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 16 - 2008
No. SC 796 of 2005

Judges:         Higgins CJ, Refshauge and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:            1 May 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2008
  )          No. SC 796 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:G

First Appellant

M

Second Appellant

AND:SYDNEY ROBERT ARMELLIN

Respondent

Judges:  Higgins CJ, Refshauge and Marshall JJ
Date:  1 May 2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. At the conclusion of submissions of counsel at the hearing of this appeal, the Court announced that it was unanimously of the view that the appeal should be allowed and so ordered. What follows are the Court’s reasons for allowing the appeal.

1. The appellants appeal from an order of a single judge of the Court. The primary judge dismissed the appellants’ action for damages based on the judgment of the High Court in Harriton v Stephens (2006) 226 CLR 52 (Harriton), and Cattanach v Melchior (2003) 215 CLR 1 (Cattanach). In Harriton the High Court held that the common law recognises an action by a parent for “wrongful birth” arising out of the negligence of a medical practitioner. Cattanach,…