G AND M v SYDNEY ROBERT ARMELLIN [2008] ACTSC 68 (24 July 2008)
NEGLIGENCE – wrongful birth – IVF procedure – claim that defendant breached duty of care in transferring two embryos when one embryo requested – parents wanted one child – birth of twins from two embryos – circumstances surrounding request – system in place at Fertility Centre – defendant did not breach duty of care – defendant not negligent
NEGLIGENCE – contributory negligence – plaintiffs’ conduct negligent – negligence materially contributed to mistaken transfer – damages would be reduced accordingly
NEGLIGENCE – nature of damage suffered – defendant submits duty of care does not extend to duty to avoid pregnancy where pregnancy desired – defendant submits birth of unwanted child not actionable as analogous to wrongful life action – consideration and application of Cattanach v Melchior (2003) 215 CLR 1 – wrongful birth action – whether same class of risk – inherent risk of multiple birth in IVF procedure – exposure to increased risk – plaintiffs suffered injury due to exposure to inherent risk – duty of defendant extended to duty to comply with plaintiffs’ wishes – causal connection between breach and damage – whether plaintiff failed to mitigate loss by not aborting one foetus or undergoing embryo reduction or adopting out one child – defendant bears onus of proving decision of plaintiffs not reasonable – decision not to abort or undergo embryo reduction or adopt out one of the two twins not unreasonable – no failure to mitigate – whether plaintiffs’ decisions broke chain of causation – failure to undergo abortion inevitable consequence resulting from damage and did not break chain of causation – failure to adopt out one of two twins did not break chain of causation – plaintiffs did not act unreasonably where twins involved
NEGLIGENCE – damages for wrongful birth – costs claimed foreseeable consequence of a multiple pregnancy and birth following transfer of two embryos – general damages would be awarded for exacerbation of physical symptoms of pregnancy and effects on relationship – damages would be awarded for economic loss and out-of-pocket expenses – cost of raising additional child compensable – methodology – categories of costs incurred – compensable damages do not extend to supporting child through university
PRACTICE & PROCEDURE – concession made by defendant’s counsel during course of hearing after evidence adduced – concession withdrawn in written submissions – admission of fact and law – conclusion of law remains for Court to decide – concession made and withdrawn before submissions complete – interests of justice to permit withdrawal
PRACTICE & PROCEDURE – suppression order – request to suppress plaintiffs’ and children’s names from publication – administration of justice does not require suppression of plaintiffs’ names – not shown publication will deter similar proceedings – names of children suppressed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
G & M v Armellin [2008] ACTSC 68
Case
[2008] ACTSC 68
Decision Date
CaseChat Overview and Summary
In the case of G & M v Armellin, the plaintiffs sought compensation for the birth of twins resulting from an in vitro fertilisation (IVF) procedure, claiming that the defendant breached their duty of care by transferring two embryos instead of one as requested. The plaintiffs argued that the defendant's actions caused them to suffer damages, including the costs of raising two children rather than one. The legal issues before the court involved whether the defendant was negligent in transferring two embryos, whether the plaintiffs' decisions not to abort or reduce the embryos contributed to the damages, and the scope of damages for the wrongful birth.
The court determined that the defendant did not breach their duty of care in transferring two embryos, as the plaintiffs had not established that the defendant acted negligently. The court found that the plaintiffs' decisions not to abort or reduce the embryos were reasonable and did not constitute a failure to mitigate their losses. Consequently, the plaintiffs' claim for damages was assessed considering their contributory negligence. The court held that the plaintiffs were entitled to damages for the exacerbation of pregnancy symptoms, economic loss, and out-of-pocket expenses related to raising two children. However, the court ruled that the cost of supporting the children through university was not compensable.
Additionally, the court addressed procedural issues, including a concession made and later withdrawn by the defendant's counsel, and the suppression of the plaintiffs' and children's names from publication. The court decided that the concession could be withdrawn as it was made before the defendant's submissions were complete, and the interests of justice permitted the withdrawal. Regarding the suppression order, the court determined that the administration of justice did not require the suppression of the plaintiffs' names but ordered the suppression of the children's names indefinitely.
The final orders of the court dismissed the application for damages, ordered the plaintiffs to pay the defendant's costs, vacated the previous suppression order regarding the plaintiffs' names, and suppressed the names of the plaintiffs' children from publication indefinitely, with a stay on vacating the suppression order regarding the plaintiffs' names for 28 days.
Orders
Orders of the court
1. The application be dismissed.
2. The plaintiffs pay the defendant?s costs of the proceedings.
3. The order made on 17 September 2007 suppressing from publication the names of the plaintiffs be vacated.
4. The names of the plaintiffs? children be suppressed from publication indefinitely.
5. Order 3, vacating the suppression order in relation to the plaintiffs? names, is stayed for 28 days.