G and M v Armellin

This matter concerned an appeal to the Supreme Court of the Australian Capital Territory from an order made by a single Judge. The appeal arose from an action for damages for negligence, specifically concerning an alleged error in the determination of the respondent's duty of care. The central dispute involved a pregnancy resulting from an in vitro fertilisation (IVF) procedure. The appellant had instructed the respondent that she did not wish to have a multiple pregnancy, and while she accepted the risk associated with a single embryo transfer, she communicated her desire for only one embryo to be transferred. However, this instruction was not conveyed to the embryologist. During the procedure, the appellant was sedated, and the embryologist transferred two embryos, leading to a multiple pregnancy and the birth of twins.

The legal issues before the Court were whether the respondent owed a duty of care to the appellant in relation to the IVF procedure, and if so, whether that duty had been breached. Specifically, the Court had to consider whether the respondent, as the appellant's treating physician and the person ultimately responsible for the transfer procedure, had failed to exercise reasonable care and skill in providing professional advice and treatment. This included examining whether the appellant was adequately advised about the clinic's default procedure regarding the number of embryos transferred and whether the respondent had taken sufficient steps to ensure the appellant's specific instructions were followed.

The Court reasoned that the respondent, as the appellant's patient, owed a duty to exercise reasonable care and skill. It was found that the appellant was not advised of the fertility clinic's default procedure of transferring two embryos. Furthermore, the appellant had been informed that she could specify the number of embryos for transfer up to the point of the procedure. The Court concluded that the respondent's failure to confirm the number of embryos for transfer with the fertility centre staff constituted a breach of his duty of care to the appellant.

The appeal was allowed.