G & M v Armellin
[2008] ACTSC 68
•24 July 2008
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& PROCEDURE – concession made by defendant’s counsel during course of hearing after evidence adduced – concession withdrawn in written submissions – admission of fact and law – conclusion of law remains for Court to decide – concession made and withdrawn before submissions complete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
Civil Law (Wrongs) Act2002 (ACT) ss 42, 43, 44, 45, 46
Court Procedures Rules 2006 (ACT) r 493
Court Procedures Act 2004 (ACT)
Rules of the Supreme Court 1971 (WA) O 30 r 3(1)
Federal Court of Australia Act 1976 (Cth) s 50
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Human Rights Act 2004 (ACT) ss 11, 21(2)(b)
Supreme Court Act 1986 (VIC) ss 18, 19
Harriton v Stephens (2006) 226 CLR 52
Cattanach v Melchior (2003) 215 CLR 1
Rogers v Whitaker (1992) 175 CLR 479
Wyong Shire Council v Shirt (1980) 146 CLR 40
Elliott v Bickerstaff (1999) 48 NSWLR 214
Thompson v Sheffield Fertility Clinic (High Court (QBD), Sheffield District Registry, unreported, 24 November 2000)
NSW v Fahey (2007) 236 ALR 406
Smith v Jenkins (1970) 119 CLR 397
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Shine v Williams [2007] WASCA 194
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
O’Brien v Komesaroff (1982) 150 CLR 310
Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476
Chappel v Hart (1998) 195 CLR 232
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
March v E & M.H Stramare Pty Ltd (1991) 171 CLR 506
Donoghue v Stevenson [1932] AC 562
Ardlethan Options Ltd v Easdown (1915) 20 CLR 285
Ackland v Commonwealth of Australia (2007) Aust Torts Reports 81-916
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
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Driver v War Services Homes Commissioner (1923) 44 ALT 130
Glavonjiv v Foster [1979] VR 536
Fontaine v Quality Platers (1994) 12 WAR 71
Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347
Caterson v Commissioner for Railways (1973) 128 CLR 99
McFarlane v Tayside Health Board [2000] 2 AC 59
Emeh v Kensington & Chelsea & Westminster Area Health Authority [1984] 3 All ER 1044
Keats v Pearce 48 Nfld. & P.E.I.R 102 (1984 Newfoundland SCTD)
Kealey v Berezowski 30 O.R (3d) 37 (1996 Ontario Court, General Division)
Bevilacqua v Altenkirk 2004 BCSC 945 (British Columbia Supreme Court)
Chaffee v Seslar 751 N.E.2d 733 (Ind. App. 2001)
Emerson v Magendantz 689 A.2d 409 (R.I. 1997)
Marciniak v Lundborg 450 N.W.2d 243 (Wis. 1990)
Melchior v Cattanach (2001) Aust Tort Reports 31–597
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Allen v Bloomsbury Health Authority [1993] 1 All ER 651
DJ v RHS (2004) 182 FLR 76
X v Australian Prudential Regulation Authority (2007) 226 CLR 630
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344
John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
J v L & A Services Pty Ltd [1993] QCA 012
ABC v D1 [2007] VSC 480
John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131
Melchior v Cattanach (2001) 217 ALR 640
Trindade F, Cane P & Lunney M: The Law of Torts in Australia, Oxford University Press,
4th ed, 2007
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4th ed, 2002
No SC 796 of 2005
Judge: Bennett J
Supreme Court of the ACT
Date: 24 July 2008
IN THE SUPREME COURT OF THE )
) No SC 796 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:G
First Plaintiff
M
Second Plaintiff
AND:SYDNEY ROBERT ARMELLIN
Defendant
ORDER
Judge: Bennett J
Date: 24 July 2008
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
The plaintiffs pay the defendant’s costs of the proceedings.
The order made on 17 September 2007 suppressing from publication the names of the plaintiffs be vacated.
The names of the plaintiffs’ children be suppressed from publication indefinitely.
Order 3, vacating the suppression order in relation to the plaintiffs’ names, is stayed for 28 days.
INTRODUCTION
On 20 July 2004 Ms G gave birth to non-identical twin girls following successful in vitro fertilisation (‘IVF’) on 12 November 2003. Ms G and her partner Ms M wish to continue to raise both children. They claim, however, that they only wished to have one child and allege that, in implanting two embryos instead of one into Ms G’s uterus during the IVF procedure, the treating doctor, Dr Armellin, was negligent. The twins were born from two separate embryos. The plaintiffs seek damages from Dr Armellin for the cost of raising the second child, general damages to compensate Ms G for the extra pain and difficulty associated with the pregnancy and childbirth and general damages for the effect on their relationship, together with economic loss for both Ms G and Ms M as a result of the birth of the second child.
It is important to say at the outset that I am not free to form my own view as to the ability of a parent to sue for what has been called “wrongful birth” of a child. While the High Court in Harriton v Stephens (2006) 226 CLR 52 decided that a child itself cannot sue for wrongful life, a parent can sue for wrongful birth following proved medical negligence. The High Court determined this right in Cattanach v Melchior (2003) 215 CLR 1 by a majority of four to three. Personally, I am persuaded by the reasoning of the minority. I am, however, bound by the decision of the majority. Counsel for Dr Armellin submits that I should find that Cattanach was wrongly decided. Obviously I am not free to do so. Nevertheless, as was pointed out by Gleeson CJ in Cattanach at [6], the fact that the problem involves human reproduction and the parent-child relationship is significant but the problem to be addressed is legal.
BACKGROUND/HISTORY
The events leading up to the embryo transfer
There is minimal dispute as to what actually occurred.
The plaintiffs consulted Dr Armellin, a specialist obstetrician gynaecologist, to facilitate their wish to have a child either by artificial insemination (‘AI’) or by IVF. There is, in each of these procedures, a risk of multiple pregnancy. The first consultation with Dr Armellin occurred on 17 December 2002 (‘the first consultation’). Other consultations followed.
After the first consultation, the first course of treatment was to be through AI using donor sperm. As the plaintiffs submit, ‘this was to be, and was, arranged through the Canberra Fertility Centre, to which institute they were referred or introduced by Dr Armellin’. In order to be accepted in the Canberra Fertility Centre’s (‘the Fertility Centre’) programme they were subjected to an assessment with a counsellor at the Fertility Centre. It was after that assessment was successfully completed that they were then offered choices of donor sperm and made a selection.
The parties agree that, at the first consultation, Dr Armellin advised the plaintiffs as to the risk of multiple pregnancy and hyperstimulation in relation to AI and the number of stimulated follicles that would be suitable. The risk of multiple pregnancy relates to the number of follicles following hyperstimulation. The plaintiffs agree that Dr Armellin advised them that the risk of multiple pregnancy for AI with two follicles was 5%.
In choosing to continue with the procedures of AI and subsequently IVF, Ms G accepted that there was a balance between maximising the likelihood of a successful procedure and the risk of multiple pregnancy.
The AI procedures were carried out by the staff at the Fertility Centre. Ms G was injected for the purposes of AI with a course of hormone stimulating drugs and her response was monitored by the Fertility Centre. The hormone stimulating drugs were to stimulate follicle production. On the first occasion, ultrasounds revealed four suitable follicles which could be released and exposed to the donor sperm, in utero. If all four are released there is a significant risk of multiple pregnancy. Ms G says that she understood those four follicles to present a risk of multiple pregnancy which was too high for her. Ms G and Ms M considered that the high risk of multiple pregnancy with four follicles was unacceptable. They notified the Fertility Centre to cancel the procedure on that occasion and also gave the reason to staff at the Fertility Centre. The Fertility Centre notified Dr Armellin.
Adjustments were then made to Ms G’s hormone therapy. Two follicles were produced and Ms G agreed to continue the procedure. Ms G decided that two follicles, while presenting a risk of twin pregnancy and twin birth, was acceptable to her and this was communicated by her to the Fertility Centre. Insemination followed but the procedure, using two follicles, was unsuccessful in fertilising an egg.
Second and third attempts at AI were unsuccessful. The plaintiffs consulted with Dr Armellin on 11 August 2003 (‘the 11 August consultation’). As three attempts was the allotted number for AI, Ms G and Ms M were enrolled in the IVF programme. Following surgery for the removal of endometriosis, treatment under that programme commenced.
Ms G says that she told Dr Armellin at the first consultation and at the 11 August consultation that she only wished to have one child and that she did not want a multiple pregnancy. Dr Armellin disputes the plaintiffs’ evidence that they told him at these consultations that ‘we only want one child’. While Dr Armellin does not accept the conversation about multiple pregnancy, he does not assert to the contrary. Accordingly, I accept that Ms G did tell Dr Armellin that she did not want a multiple pregnancy. Dr Armellin recalls that the plaintiffs did tell him that they wished to have a child but says that he understood the inherent risk of multiple pregnancy to be acceptable to them.
It is agreed that, at the 11 August consultation, Dr Armellin advised the plaintiffs that there was a risk of multiple pregnancy and risk of hyperstimulation with IVF treatment and advised the percentage rate of risk of multiple pregnancy regarding the transfer of two embryos. Dr Armellin advised of the percentage rate of risk of multiple pregnancy regarding the transfer of one embryo, with the risk of multiple pregnancy being smaller than the risk of multiple pregnancy associated with the transfer of two embryos. Dr Armellin advised that IVF has a high failure rate, of about 70%. He advised that the chances of a successful outcome were increased when more than one embryo was transferred and that the chances of successfully becoming pregnant diminished unless more than one embryo was transferred. There was a general discussion as to whether to transfer one or two embryos, but Ms G was unsure at the time as to the number of embryos to be transferred and told Dr Armellin that she would let him and the Fertility Centre know before the embryo transfer.
It follows that, while there is some dispute as to whether the conversation about the number of desired children took place, Ms G did not make a decision about the number of embryos to be transferred at the time of the 11 August consultation. It follows that she did not inform Dr Armellin of such a number. Ms G accepted the risk of multiple pregnancy, to the extent that she and Dr Armellin discussed the possibility that one embryo could produce more than one child. She accepted that risk, understanding it to be low. Evidence in a report by Dr Clarke, an expert in fertility, which was not challenged, is that the risk of a multiple pregnancy from one embryo being successfully transferred is of the order of 0.1%.
On 11 September 2003 Ms G and Ms M attended John James Memorial Hospital where the Fertility Centre was located (‘the Hospital’). Ms G was required by the Fertility Centre to complete a form with respect to the IVF programme. Ms G completed and signed a request form for IVF or gamete intrafallopian transfer (‘the form’).
A statement of facts agreed by the parties provides that on this date the plaintiffs were advised by Leanne, a nurse from the Fertility Centre, to insert on the form ‘up to two’ embryos to be transferred and ‘let them [the Fertility Centre] know any time up to the procedure’. It was also agreed in the statement of facts that Leanne told the plaintiffs that they could ‘always make a decision later up to and including the morning of the procedure’. In evidence, Ms G says that Leanne told them that they could let the Fertility Centre know of the number to be transferred ‘any time up to the procedure’. She also agrees, alternatively, that she understood from Leanne that she could tell Dr Armellin and the Fertility Centre ‘before the embryo transfer’ and that she could tell Dr Armellin ‘or whoever was the key person at the time of transfer’. Ms M’s evidence is that Leanne said that they could ‘make a decision later, up to and including the morning of the operation’. She agrees later in her evidence, that she understood from Leanne that they could change the number ‘up to and including the day of the procedure’.
The form also contained an acknowledgement, which signified that, inter alia, there was a risk of multiple pregnancy. Despite the plaintiffs’ concern about multiple pregnancy, they signed the form and, following Leanne’s advice, endorsed the following description of the procedure to be undertaken:
Ultrasound egg pickup. Fertilisation of oocytes using selected donor sperm. Embryo transfer of one to two embryos. Embryo transfer to be performed in theatre under anaesthetic. Freeze and store any remaining suitable embryos.
[emphasis added]
The form constituted the plaintiffs’ instructions with respect to the IVF procedure to be applied to them. It is not suggested that, if the form constituted the totality of those instructions, there was a breach of duty in transferring two embryos.
The events of the day before the embryo transfer
Ms G was given a higher dosage of hormones to stimulate the production of eggs for harvesting to obtain, if possible, more than one egg. The eggs so produced would be harvested and fertilised with donor sperm and the required number of fertilised eggs then implanted. On 10 November 2003, Ms G underwent a procedure to harvest the eggs produced after the administration of hormone medication.
Six eggs were harvested of which five were successfully fertilised with donor sperm. By the time implantation was to occur, one of these fertilised eggs “resolved” leaving four healthy embryos available for implantation. It is usually the day before the procedure is to be performed that the quality of the embryos is ascertained; the number of viable embryos and the quality of the embryos may affect the decision of the number to be transferred.
The staff requested that Ms G contact the Fertility Centre on the following day, 11 November. Ms G failed to contact the Fertility Centre. A message was left by the Fertility Centre staff on her mobile phone. Ms G said, at first, that there was no conversation between her and staff of the Fertility Centre that day regarding the number of embryos that had been successfully fertilised. Ms G also says that she was first told how many embryos had been successfully fertilised by Dr Armellin on the day of the procedure. However, in cross-examination she agrees that she did speak to staff at the Fertility Centre on 11 November and that whoever she spoke to on 11 November informed her that five of the six eggs had been fertilised. Ms G also recalls a discussion on that occasion about the time she was required to attend the Fertility Centre the following day for embryo transfer and the need to fast. Ms M remembers Ms G telling her on 11 November, the day before going to the Hospital for the procedure, that there were five good embryos. I am satisfied that a conversation between Ms G and a staff member of the Fertility Centre about the number of available embryos took place on that day. Ms G says that she did not tell the person from the Fertility Centre with whom she spoke the number of embryos to be transferred.
The number of embryos to be transferred was a decision that rested with the plaintiffs. It was accepted by the Fertility Centre, and would have been to Dr Armellin’s knowledge, that a patient would reasonably be expected to make a final decision on the number of embryos to be transferred when she was informed of the number of “good embryos” and the quality of those embryos, on the day before the procedure. Of course, a patient would not necessarily change a decision that had previously been made.
In the absence of any such communication, the instruction given by Ms G in the form would stand uncorrected, namely, that one to two embryos should be transferred. In that case, the transfer of two embryos, to maximise the chance of pregnancy, would have been in accordance with Ms G’s instructions and in accordance with good IVF practice.
The day of the embryo transfer
Ms G was admitted to the Hospital on 12 November 2003. She saw a number of nurses on admission and for the purposes of signing documents and preparation for theatre. She did not tell any of the nurses that she only wanted one embryo transferred or that she wished to change the number of embryos for transfer as indicated on the form. It is agreed that, prior to Ms G being transferred to theatre, the plaintiffs did not tell and were not asked by the Fertility Centre staff or the defendant about the number of embryos to be transferred. Ms G’s evidence is that the decision to have one embryo transferred was not made until after she arrived in the theatre. Ms M was not with Ms G in theatre.
Prior to the procedure Ms G signed a consent form, as did Dr Armellin. In the consent form Dr Armellin stated that he had discussed with the patient a range of matters including the benefits and risks of the proposed operation/procedure/ treatment, the procedure being IVF, embryo transfer. Ms G acknowledged in the consent form, inter alia, that she had the opportunity to ask questions about the operation/procedure/treatment and that she was satisfied with the information she had received.
Dr Armellin says that Ms G said to him in theatre that she had spoken to the Fertility Centre and had been told by them that there were four good embryos. Ms G says that she had a discussion with Dr Armellin in theatre when he told her that one fertilised egg had “resolved” and that there were then four good embryos available for insertion. It is agreed that Dr Armellin said that there were four good embryos and asked ‘are we going to implant two?’. Ms G stated ‘no, only one’ and held up one finger. Dr Armellin advised that one embryo could still make two children. Ms G responded with ‘Don’t even joke’.
Accordingly, Dr Armellin accepts that Ms G told him, immediately before the procedure and before sedation was administered, that she only wanted one embryo transferred. He accepts that, at that stage, he knew that she wanted to become pregnant and wanted one child. Dr Armellin reinforced for Ms G the possibility that, even with one embryo, she could have more than one child.
Ms G was placed under sedation. Dr Armellin completed an operation record prior to the procedure, writing ‘embryo transfer one embryo under sedation’. I accept that at that time he believed that one embryo was to be delivered by the embryologist for transfer. He has, however, for the purposes of these proceedings and at all relevant times acknowledged that two embryos were transferred.
The embryologist’s participation as set out in the clinical notes is that she arrived in the theatre after the patient was already asleep. The notes state, and it has not been challenged, that Ms G said nothing to the embryologist or to “the co-ordinator” (at the Fertility Centre). The embryologist records that she put back ‘the standard number of embryos which is two’. No discussion occurred between Ms G, Dr Armellin and the embryologist, as Ms G was under sedation.
That is, the embryologist did not know of Ms G’s decision to have not two but one embryo inserted. The Fertility Centre did not know. There is no issue that the Hospital staff were not told and that no member of the Fertility Centre staff asked Ms G about the number of embryos. Dr Armellin’s evidence is that he understood that the number to be transferred had already been organised with the Fertility Centre.
The nature of the transfer procedure
It is not suggested that the act of transferring two embryos was outside the relevant standard of care for an IVF procedure. The evidence is that the standard practice at that time was to transfer one to two embryos. The failure rate was high and the possibility of becoming pregnant increased if more than one embryo was transferred.
The procedure normally involves Dr Armellin inserting a placement catheter and ensuring that it is in the correct position. He then contacts the embryologist to bring the embryos. This must be done quickly. If there is a delay, the embryos warm up and pregnancy rates decrease sharply. The embryologist brings the embryos in a straw and the embryologist then inserts the embryos. While it is the embryologist who inserts the embryos, Dr Armellin accepts responsibility for the actual transfer procedure.
On this occasion, because the procedure was occurring in theatre due to Ms G’s sedation, the embryologist was in a room adjacent to the theatre. Dr Armellin inserted the catheter ready to take the straw. Dr Armellin then contacted the embryologist to advise that he was ready to proceed. On being informed by Dr Armellin that he was ready for the embryos to be inserted, only approximately 60 seconds elapsed before the placing of the straw. Dr Armellin did not ascertain from the embryologist the number of embryos included in the straw or the number prepared for transfer. The embryologist transferred the embryos. Dr Armellin then told the embryologist, ‘just put the embryos back. I understand that she only wanted one embryo’. The embryologist said, ‘no there were two. She signed for two’. The doctor then responded ‘Oh fuck’ because, as he says, this was only minutes after his conversation with Ms G.
Possible action after Dr Armellin realised that two embryos had been transferred
Ms G had asked that the transfer take place under sedation. It is not suggested that Ms G was not entitled to have the procedure performed under sedation, although it was unusual to do so.
It is not suggested that, on realising that two embryos had been transferred, Dr Armellin should have taken any immediate remedial action. It is not suggested that he should have attempted to withdraw the transferred embryos even if it were possible to do so, or waken Ms G to seek further instructions on such a course.
After the procedure the plaintiffs were advised by a staff member that two embryos had been frozen and two transferred. Ms G had a blood test ten to twelve days after the procedure which confirmed that she was pregnant. A scan completed at seven weeks confirmed that Ms G was pregnant with twins. The plaintiffs saw Dr Armellin for the final time in consultation in early December 2003.
WAS DR ARMELLIN NEGLIGENT?
To establish a cause of action in negligence, it is necessary to demonstrate that the defendant owed the plaintiff a duty of care, to prove a breach of that duty and to prove damage of which the breach of duty was a cause. Damage is the gist of the action (Harriton at [161] per Hayne J, at [218] per Crennan J). Measuring the damage requires the making of a comparison between the position in which the plaintiff would have been in had the tort not been committed and the position in which the plaintiff is shown now to be (Harriton at [167] per Hayne J).
The duty of care at common law
There is no dispute that Dr Armellin owed a duty of care to Ms G and Ms M. Dr Armellin owed the plaintiffs a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all ways in which the doctor is called upon to exercise skill and judgment (Rogers v Whitaker (1992) 175 CLR 479 at 483 and 489 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ, at 492 per Gummow J). Dr Armellin accepts in submissions that his duty encompassed providing advice to the plaintiffs as to the type of infertility treatment available, advising them as to the risks associated with infertility treatment, advising them of the availability of infertility treatment and “providing that treatment” once the plaintiffs decided to undergo it. I understand that the part of this submission that refers to the providing of that treatment to be provision of treatment in the context of his role in the system, the subject of evidence in the proceedings.
The standard of the reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill (Rogers v Whitaker at 487 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ). Dr Armellin accepts that he had a duty to provide treatment in accordance with ‘the standards of a reasonable doctor in [his] position’. Therefore, the standard of care to be observed by Dr Armellin was that of an ordinary skilled doctor having a special skill, as did Dr Armellin, in the practice of infertility treatment.
The test to be applied in determining whether a duty of care has been breached is whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the first plaintiff and/or the plaintiffs. The duty is reasonably to foresee that action or inaction on his part may be likely to cause damage to the plaintiffs. If the question of foreseeability is answered affirmatively, the court is required to ascertain what a reasonable man would do in response to the risk (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J; ss 43(2) and 44 of the Civil Law (Wrongs) Act 2002 (ACT) (‘the Act’)).
The Civil Law (Wrongs) Act 2002 (ACT)
The duty owed by Dr Armellin is governed by the common law and by the Act.
Sections 42 to 46 of the Act provide:
Part 4.2 Duty of Care
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Part 4.3 Causation
45 General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2)However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—
(a)the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b)the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46 Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Ms Burke, counsel for Dr Armellin, says that the relevant standard of care applicable in the Australian Capital Territory is the standard of care of an ordinary skilled doctor exercising and professing to have the special skill of the defendant (Rogers v Whittaker at 487; s 42 of the Act). She submits that the Act consolidates the common law but does not codify it.
Mr Marshall SC, counsel for the plaintiffs, does not accept that the Act represents the same position as the common law. He submits, however, that the common law principles relating to liability and damages are unchanged by the Act and that accepted common law principles apply.
In any event, the parties have made their submissions on the basis that, and accept that, the common law principles of negligence apply.
The duty of care alleged to have been breached
The plaintiffs make no complaint about the advice or treatment given by Dr Armellin prior to the transfer of the embryos. The allegations of negligence centre around the conversation in theatre between Ms G and Dr Armellin about the number of embryos to be transferred. In the amended statement of claim the plaintiffs allege that Dr Armellin owed a duty to ‘ensure that only one embryo was transferred’. Accordingly, the plaintiffs allege, the act of transferring two embryos constituted a breach of the duty owed by Dr Armellin to the plaintiffs. The question is whether, in the circumstances, Dr Armellin was negligent in transferring two embryos or, put another way, in failing to ensure that only one embryo was present in the straw prepared by the embryologist for the purposes of transfer.
The plaintiffs allege that Dr Armellin breached his duty by:
(i) having been told that only one embryo was to be implanted, failure to comply with and fulfil Ms G’s direction;
(ii) failing to communicate with the embryologist that only one embryo was required for transfer; and
(iii) knowing that Ms G was under sedation, failure to make sure that he only transferred one embryo.
The plaintiffs’ case is that the scope of Dr Armellin’s duty was to comply with Ms G’s wishes. They say that in circumstances where she requested only one embryo to be inserted, he was negligent in inserting two. They do not suggest that the scope of his duty was to avoid a multiple pregnancy. The plaintiffs accept that they knew that there was a risk of multiple pregnancy and accepted that risk. They say that the risk was 0.1% with one embryo and that they did not accept the higher risk of 20% with the insertion of two embryos.
This is not the case of an unwanted procedure being performed or of harm or injury by reason of the procedure itself. Ms G wished to have IVF and wished to have embryo transfer. She wanted to become pregnant. The procedure carried a risk of multiple pregnancy even with the transfer of one embryo. That risk increased if two embryos were transferred. There was no general obligation on the part of the doctor in Dr Armellin’s position to avoid or prevent multiple pregnancy, where that is a known risk associated with IVF. The likelihood of pregnancy ensuing for someone of Ms G’s age if two embryos are transferred is 35–45% whereas the likelihood of pregnancy ensuing if only one embryo is transferred is 20–25%.
The plaintiffs do not complain about the multiple pregnancy and the birth of the twins or the transfer of two embryos out of any context. They acknowledge that the risk of a multiple pregnancy was explained to them and that, in certain situations such as the attempts at AI, they accepted that risk. The plaintiffs also accept that they signed the form, which permitted the transfer of one to two embryos for the purposes of IVF and, at that stage, that they accepted the risk. They rely on the conversation in theatre with Dr Armellin.
The risk of twin births with the transfer of two embryos and the degree of its occurrence would have been well known to Dr Armellin. Had a reasonable person in his position foreseen that his failure to inform the embryologist of his conversation with Ms G prior to the removal of the embryos from the freezer or their insertion would result in the transfer of two embryos, he would have had a responsibility to inform the embryologist. It involved a risk of injury to which Ms G did not consent and there was no additional risk or difficulty, expense or sufficient inconvenience in complying with her request. None was suggested.
Dr Armellin submits that he had a paramount duty to assist Ms G to conceive that overrides any alleged breach of duty in the transfer of two embryos. I do not accept that submission. Dr Armellin had a duty to assist Ms G to conceive, consistently with her instructions and consent, where those instructions were adequately conveyed to him. That duty of care does not operate in a vacuum. It operates as between the doctor and the particular patient for whom the procedure is being performed. The patient may make a decision as to the risks of multiple births and, if that decision is appropriately communicated, it affects the doctor’s obligation to the patient to conform with the patient’s wishes, to the extent that it is possible to do so.
In the present case, a central consideration is the timing and method of communication of Ms G’s decision to have only one embryo transferred. It is also relevant to consider the person to whom the communication of her decision was or should have been addressed. Dr Armellin was not the only party involved in the IVF process at the Fertility Centre, nor was he the sole person with whom Ms G and Ms M communicated. It is important to determine whether Dr Armellin ought to have understood that her conversation with him constituted instructions and that she had not previously conveyed those instructions to the Fertility Centre staff and, through the staff, to the embryologist who prepared the embryos for transfer.
Dr Armellin relies upon the system that was in place at the Fertility Centre for the provision of IVF, which included the implantation of embryos (‘the system’). He says that he was not responsible for the system or for the practices and/or procedures conducted by the staff of the Fertility Centre. He says that he was, as a participant in the system and as part of the IVF team, entitled to rely upon the staff to discharge their own responsibilities within the system. He did not accept the responsibilities of other professionals within the system. He says that he did not delegate his responsibilities to the staff of the Fertility Centre and does not therefore owe the plaintiffs a non-delegable duty with respect to the Fertility Centre’s duties and obligations.
Neither the Fertility Centre nor any staff member was joined as defendant in the proceedings or as a third party. The pleadings were directed to Dr Armellin. I have also considered Dr Armellin’s liability individually, in the context of the system in which others participated (s 45(2)(b) of the Act). The plaintiffs did not allege any negligent act or omission on the part of the Fertility Centre or its staff for which Dr Armellin was said to be liable. However, the defendant’s case raises squarely the participation of the Fertility Centre and its staff and the system that operated and in which Dr Armellin participated.
There was no allegation based in contract. During the course of the hearing and after several of the witnesses had given evidence, the plaintiffs sought to amend the statement of claim to include a contract claim. I gave the parties an adjournment to consider their position on this proposed amendment. After the adjournment the plaintiffs informed the Court that they did not wish to proceed with that amendment.
The system under which IVF procedures were carried out
In the system, three sets of participants communicated: patients, staff members (including the embryologist) and a specialist.
As at 12 November 2003, the system was:
· The patient consulted with Fertility Centre staff and the specialist, with respect to the harvesting, fertilisation and implantation of the embryos.
· The patient nominated the number of embryos to be implanted on the form and signed the necessary consent.
· Within the system, it was the responsibility of the Fertility Centre staff to obtain from the patient the number of embryos she wished to have transferred. That was the number nominated in the form, subject to confirmation or change prior to the procedure. The embryologist informed the relevant staff members of the number of fertilised and viable embryos and they informed the patient.
· The Fertility Centre staff usually talked to the patient on the day prior to the procedure and advised her of the number of viable embryos. The patient then nominated or confirmed the number to be transferred. It was for the Fertility Centre to confirm the number to be transferred. The Fertility Centre staff advised the embryologist of the number to prepare for transfer.
· It was for the Fertility Centre to ensure that the embryologist provided the requested number of embryos, as nominated and confirmed by the patient.
· A further discussion usually occurred between the embryologist, the patient and the specialist at the time of the procedure.
· The embryologist delivered the selected number of embryos to the specialist and placed the embryos after the placement catheter had been inserted.
Dr Armellin’s role within the system
The process of artificial conception, including IVF, involves the participation of a number of people, separately qualified. Those persons communicate during the process within the system. The system that operated at the Fertility Centre divided responsibilities between the participants, reflecting their different qualifications. The embryologist was on the staff of the Fertility Centre. That person was highly qualified and responsible for the development of the fertilised eggs and their preparation for transfer. It is not suggested that Dr Armellin was qualified as an embryologist or that he was responsible for the embryologist’s work. One might ask if Dr Armellin would have been responsible if, unknown to him, the embryologist had permitted the embryos to thaw, perhaps by withdrawing them a few minutes early from the freezer. Clearly, he relied upon the embryologist, as a professional, to carry out her duties to the appropriate standard. He was similarly entitled to rely upon other members of the team to fulfil their duties. That included counselling and providing information to and receiving information from the patient.
There is no evidence that Dr Armellin was responsible for the creation of or operation of the system. He was not a director of the Fertility Centre; he was a consultant to it. The standard of care required of Dr Armellin, as accepted by the plaintiffs, was to provide treatment with a level of care and skill reasonably commensurate with his specialty and experience. That specialty and experience did not extend to, for example, counselling or embryology. There is no evidence to demonstrate that Dr Armellin delegated his responsibilities to the Fertility Centre staff, or that he had adopted and assumed the responsibilities and obligations owed by the staff employed at the Fertility Centre in the performance of their duties in the system which provided artificial conception services.
After the plaintiffs consulted Dr Armellin and were referred to the Fertility Centre, they consulted with Fertility Centre staff without Dr Armellin being present. For example, they received counselling before being accepted into the programme. There is no evidence to suggest that, apart from the fact that the counsellors were satisfied that they were suitable for acceptance into the programme, Dr Armellin was made aware of the content of the counselling. Similarly, the staff relayed to Ms G the information from the embryologist who worked at the Fertility Centre as to the number of viable embryos available for transfer. This was usually the day before the procedure. Dr Armellin says that he understood the usual practice to be that the Fertility Centre contacted the patient, or the patient rang in, and was told how many embryos had been fertilised, the state of those embryos and when the patient should come in the next day. The Fertility Centre would also confirm with the patient the number to be transferred. Dr Armellin says that he did not normally do this himself because he could never be sure when the patient would ring in and he was usually consulting. The plaintiffs accept that there were matters that were the subject of direct communication between them and the Fertility Centre staff which did not include Dr Armellin.
Dr Armellin referred his patients to the Fertility Centre for the preparation for AI and IVF, the stimulation of ova, harvesting of eggs, fertilisation and preparation for embryo transfer. That does not, of itself, make him responsible for the operation of the system or the actions of its other participants. His duty of care to his referred patient did not extend to the actions of the staff of the Fertility Centre operating within the system. The plaintiffs characterise the system as Dr Armellin’s system which encompasses the system of the Fertility Centre. They accept that Dr Armellin’s duty does not encompass matters beyond his control but say that the duty extends to those matters within the scope of his duty and the scope of his capacity to control them. The plaintiffs submit that even if, under the system, all contact with the patient in the 24 hours prior to the procedure were delegated to the Fertility Centre, it was within the scope of Dr Armellin’s duty to ensure that all contact, questions and checking occurred. The plaintiffs say that there was no system of divided responsibility but an absolute obligation at law on Dr Armellin.
However, a system of divided responsibility did exist. Dr Armellin says that he relied upon the staff of the Fertility Centre, including the embryologist, to provide him with the number of embryos that had been nominated by the plaintiff. He was entitled to rely upon the staff at the Fertility Centre to do that for which they were responsible (Elliott v Bickerstaff (1999) 48 NSWLR 214 at [69] per Giles JA). Applying what Giles JA said in Elliott at [103]:
In the manner in which [IVF] is performed, the patient receives the attention of a team: the [doctor, the embryologist and Fertility Centre staff]. There is divided responsibility. The [doctor] can be regarded …as the master of ceremonies, but he is nonetheless a member of a team and reliant on the due discharge of their responsibilities by the other members of the team. He should be able to concentrate on his own skilled tasks without shouldering the responsibilities of the other members of the team.
This is not to say that the doctor’s own duty was delegable. The plaintiffs submit that the touchstone of the relationship of doctor and patient is control. Within the system, the doctor did not control the transmission of Ms G’s instructions to the embryologist via Fertility Centre staff.
Dr Clarke, in his report, described “reasonable practice” and the communication system under which he operated. The plaintiffs rely in particular on two aspects of Dr Clarke’s procedure, as set out in his report, in support of their submission that that which occurred was not in accordance with proper or reasonable competent practice:
· A competent gynaecologist should confirm with the patient the number of embryos she wishes to have replaced and then notify the embryologist involved with the transfer of this decision.
· A double check of the number of embryos to be transferred should occur, as a conversation at the time of the procedure with the three participants, being the patient, the specialist and the scientist/embryologist.
Neither of these aspects of Dr Clarke’s procedure took place. The first because the system under which Dr Armellin acted was not in accordance with that described by Dr Clarke. The second, according to Dr Armellin, was because Ms G was under sedation. In the ordinary course, the patient is not under sedation and the embryologist, on arrival, has a conversation with the patient in theatre.
Dr Clarke did not give oral evidence, so he did not expand upon his report, nor was he cross-examined. He described the system that he has in place in his professional practice and gave his opinion in that context. In Dr Clarke’s unit, there is a division of responsibilities but instructions from the patient are given to the clinician and, in theatre, to the clinician and to the scientist/embryologist.
It is apparent that, in the case of Dr Clarke, it is the clinician that informs the embryologist of the number of embryos. Dr Clarke does not say that he developed or was responsible for the communication system, nor that it is the only system that should operate. Dr Clarke was not asked about, nor did he give an opinion concerning the system at the Fertility Centre or the proper or reasonable course for a clinician within the system. He did not express an opinion on Dr Armellin’s actions within the system or whether, within the system, Dr Armellin’s actions and responses were in accordance with proper or reasonable competent practice.
Dr Clarke gave the unremarkable opinion that it was not permissible for a reasonably competent obstetrician/gynaecologist to fail to comply with a patient’s request that only one embryo be transferred. He also observed, again unremarkably, that if there is a change in the decision as to the number of embryos because of a change in circumstances, the clinician must notify the embryologist prior to the transfer and sign a confirmation of change of embryo transfer number. That opinion assumes that the obstetrician/gynaecologist understood the purpose of the request and that it constituted the patient’s instructions or a change of decision.
The right to choose the number of embryos
Where a patient chooses to undergo IVF, it is for the patient to decide the number of embryos to be inserted (Thompson v Sheffield Fertility Clinic (High Court (QBD), Sheffield District Registry, unreported, 24 November 2000)). That was recognised by Dr Armellin in the 11 August consultation with the plaintiffs and by the Fertility Centre when Ms G attended in September 2003 and again in November 2003. However, Dr Armellin submits that this is not necessarily so. He says that the right to choose the number of foetuses is non existent in natural human reproduction and there can be no greater right or interest when IVF is utilised, through the advent of technology. Dr Armellin accepts that the courts have recognised a right to limit the number of children by undergoing sterilisation procedures but distinguishes those cases as concerning an intention not to conceive.
It is the case that there is no opportunity to choose the number of children born as a result of natural reproduction. However, where such a choice is available and offered, I fail to see why Ms G should not have the right to choose. In this case, it is not the exercise of her right to choose the number of embryos that is in issue, it is the transmission of that choice.
The plaintiffs dispute that they bore a responsibility to advise the defendant and/or the staff at the Fertility Centre of their intent as to the number of embryos to be transferred prior to the first plaintiff being transferred to theatre. However, Ms G knew that she could change her mind and alter what had been endorsed by her on the form up to the morning of, or at least prior to, the procedure. Making up her own mind was not enough. Ms G had the right to nominate the number of embryos to be transferred. She also had the responsibility to do so if she wished to nominate a particular number. Ms G, after discussion with Leanne, requested in the form that up to two embryos be transferred. The staff at the Fertility Centre informed her, and she accepted, that she had the right to change that instruction ‘anytime up to the procedure’. The staff member told Ms G that she should ‘let us know’ if she changed her instructions. That, reasonably, meant at least the staff of the Fertility Centre, with whom Ms G dealt in respect of preparation, harvesting and fertilisation of the ova.
The evidence does not establish Ms G’s appreciation of precisely how and when her decision needed to be made and communicated to ensure that her wishes were complied with, nor that Ms G understood that it was sufficient only to tell the doctor in the theatre of any change of mind.
Ms G knew that she had to convey that decision to the Fertility Centre, in accordance with her understanding of the process in place. She did not do so during her telephone conversation with a staff member the day before. She had not done so by the morning of the procedure. She said nothing to the Fertility Centre staff on admission or prior to the procedure, despite the opportunity to do so. She knew that she would be placed under sedation, which was her specific choice. She knew or ought to have realised that the conversation with Dr Armellin in theatre was simply not the kind of conversation that conveyed a decision to Dr Armellin, the decision as to the number of embryos to be transferred, a decision different from that previously conveyed. There was no discussion about the likelihood of success or the percentage possibility of multiple births with one or two embryos, no discussion about the fate of the remaining embryos or a consideration of the prospect of success and the number of available treatments.
How the system applied in this case
As the system operated, Dr Armellin would reasonably have expected that the Fertility Centre had contacted Ms G in accordance with the usual procedure, ascertained her wishes and given instructions to the embryologist to take the requested number of embryos for placement into the straw for implantation.
Ms G’s “point of contact” for instructions as to the artificial conception procedures was the Fertility Centre. A number of factors give rise to that conclusion. While they are not all of equal importance, they give an indication of the system as it applied to Ms G, a system in which she participated, apparently without objection. To reiterate and to describe what happened:
· The first consultation was with Dr Armellin, to whom Ms G was referred by her general practitioner.
· She discussed the risks of hyperstimulation and the possibilities of multiple pregnancy with the doctor.
· Dr Armellin was a consultant to the Fertility Centre and referred Ms G there.
· Counselling was given and admission into the programme was determined by the Fertility Centre.
· Ms G only wished to have one child but informed the Fertility Centre that, for the purposes of AI, three or four follicles were unacceptable but two follicles, which resulted in a 5% risk of multiple pregnancy, were suitable. That instruction was followed and two follicles were presented.
· Ms G accepted the risk of multiple pregnancy in IVF.
· Before IVF commenced, the plaintiffs discussed with Dr Armellin that they did not want a multiple pregnancy. They did not, on that occasion, discuss the number of embryos to be transferred.
· Ms G told Dr Armellin that she was unsure of the number of embryos she wanted transferred but that she would let him and the Fertility Centre know before the embryo transfer.
· Ms G completed the form which represented initial instructions to the Fertility Centre saying that she wished one to two embryos to be implanted. It was not suggested that she did not believe that the form presented by the Fertility Centre represented her instructions to the Fertility Centre and to Dr Armellin, subject to any change, which would be communicated.
· I am satisfied that, on 11 September 2003, Leanne told the plaintiffs that they could let the Fertility Centre know of the number to be transferred up to and including the morning of the procedure. That accords with the statement of agreed facts and Ms M’s evidence. It also accords with the system. It would give the plaintiffs time to decide after being told of the number of embryos the day before the procedure and also give the embryologist advance notice of the number to prepare for transfer. It also accords with Dr Armellin’s understanding that these decisions are notified in the conversation with the Fertility Centre staff the day before the procedure.
· Ms G was asked to ring the Fertility Centre prior to the procedure and after the eggs were fertilised. She does not recall making that call.
· The Fertility Centre left a message on Ms G’s mobile phone and then spoke to her in the afternoon prior to the procedure being performed, telling her that five of the six eggs were fertilised.
· Whether or not there was a conversation about the number to be transferred, there was an opportunity for the staff and for Ms G to confirm her instructions when they talked to her about her admission, when she was admitted and while she was waiting to be transferred to the theatre. In any event, the staff did not do so, nor did they inform Dr Armellin that there was no such confirmation from Ms G.
· With the possible exception of Ms M, Ms G was the only person aware of the fact that she had decided to have only one embryo transferred and that she had not informed the Fertility Centre of that fact.
· Ms M confirmed that as far as she knew no one had been informed of a change in the number of embryos to be transplanted prior to the transfer to theatre.
· Ms G did not start a conversation with Dr Armellin in theatre, nor volunteer the number of embryos she wished to have transferred.
· Dr Armellin’s version of the conversation, as answered in interrogatories and in his evidence, is that he said to Ms G: ‘…I have spoken to the Fertility Centre and I was told they had four good embryos. Are we going to implant two?’ and Ms G replied ‘No, only one’.
· Ms G accepts that Dr Armellin asked her ‘Are we going to implant two?’ and that she said ‘No, only one’.
· According to Ms G’s version of the conversation, that is not disputed, she said to Dr Armellin: ‘That means one to be transferred’. Viewed from the perspective of Dr Armellin, that did not reasonably constitute an instruction or the response of a person who had not already been told of the four embryos and had given her instruction to the Fertility Centre in accordance with the system. It is framed as a confirmation.
· Dr Armellin replied, according to Ms G: ‘one can still make two’. That indicates recognition by Dr Armellin that Ms G was concerned not to have multiple births.
· Ms G’s reply was to hold one finger in the air and respond: ‘don’t even joke, just one’. That could have referred to one embryo to be transferred or to her wish to have only one child.
· This conversation did not represent the kind of discussion that would normally be expected to occur if a patient undergoing IVF was first made aware of the number of available embryos, or was deciding on the number to be transferred, or was changing her previous instructions. There was no discussion of what would occur if the procedure was not successful with the transfer of a single embryo and no discussion of the fate of the remaining viable embryos.
· Before the procedure commenced Dr Armellin wrote up the Hospital operation record with the words ‘embryo transfer one embryo under sedation ’.
· These matters are consistent with Dr Armellin’s understanding that the embryologist, through the Fertility Centre, had already been informed by Ms G of her decision. That is not unreasonable as it must be, at the least, unusual for that decision only to be made and conveyed by instruction to the doctor immediately prior to the performance of the procedure.
· Dr Armellin’s understanding is confirmed by the conversation between him and the embryologist immediately after the insertion of the embryos. Dr Armellin asked the embryologist about the remaining viable embryos. When the embryologist informed the doctor that only two remained as two had been inserted, Dr Armellin said ‘Oh fuck’.
· Dr Armellin agrees that the implantation of two embryos rather than one was a mistake.
The system failed in that Ms G failed to confirm with the Fertility Centre staff the number of embryos to be transferred and the staff did not follow up that failure or advise Dr Armellin that Ms G had failed to confirm or renominate the number to be transferred after being informed of the number of available embryos. In the absence of any such conversation between the staff and Ms G, the previous instruction took effect. If the Fertility Centre staff had asked Ms G to reconfirm the number of embryos to be transferred, she would have nominated one or two and the embryologist would have been so informed and would have prepared that number for implantation.
At the time of the conversation in theatre between Dr Armellin and Ms G, Dr Armellin assumed, reasonably, that the system had operated as expected or, if it had not, that he would have been notified.
The request for one embryo, minutes before the transfer in theatre, was not conveyed by Ms G in a manner or form to indicate to Dr Armellin that the nomination of one embryo was inconsistent with the instructions then in place by reason of communication between the plaintiffs and Fertility Centre staff. If Ms G had not been placed under sedation, at her request, a double check in theatre in the presence of Ms G, Dr Armellin and the embryologist would have clarified Ms G’s new instructions but there was nothing to alert Dr Armellin to a need for that, or a double check with the embryologist, to occur.
I accept Dr Armellin’s submission that there was nothing in the context of the conversation between him and Ms G in theatre that would have alerted him to the fact that she had failed to nominate to the Fertility Centre staff the number of embryos to be transferred. There was nothing to alert him or to put him on notice that his reliance on the system, which included the Fertility Centre staff checking with the patient the day prior to the procedure the number of embryos to be transferred, had failed. There was nothing to alert him to the need to inform the embryologist that there had been a change in the chosen number. The embryologist did not say anything to suggest that there was a need to confirm the number. The reliance by Dr Armellin on the system and the fact that he did not inform the embryologist of his conversation with Ms G was reasonable in the circumstances. There is no suggestion that Dr Armellin was of the view that it was incumbent on him to receive from Ms G information of any change in the number of embryos to be transferred. Despite the fact that the parties agree that Ms G did not make her decision until she actually spoke to Dr Armellin in theatre, there is nothing to suggest that Dr Armellin was aware of that fact.
There is no suggestion of lack of bona fides on the part of Dr Armellin. When Ms G stated to him in the theatre that only one embryo was to be transferred, he says and I accept that, if he believed that that decision had not already been communicated to the Fertility Centre, he would have ensured or double-checked with the embryologist that only one embryo was being transferred. At no time did Dr Armellin indicate or suggest that he intended or wished to act against Ms G’s wishes. It is quite clear to me that, when that conversation took place in the theatre, Dr Armellin believed that the Fertility Centre was aware of the decision and that the embryologist would only present one embryo for implantation. That this is so is confirmed by his reaction when the embryologist informed him after the procedure was concluded that two embryos had been transferred.
Dr Armellin assumed and was entitled to assume that Ms G had confirmed with the Fertility Centre staff the number to be transferred on the day prior to the procedure and that that had been communicated to the embryologist. Dr Armellin exercised reasonable care and skill in carrying out his responsibilities as the consulting doctor.
Even if the system had operated as intended and Ms G had informed the Fertility Centre of the number of embryos to be transferred, she might have changed her mind at the last minute and informed Dr Armellin of that fact. In those circumstances, had Dr Armellin understood that he was the recipient of the final decision by Ms G that was to be complied with and transmitted to the embryologist, proper and reasonable practice would have required him to transmit that instruction.
However, the conversation between Ms G and Dr Armellin just prior to the procedure would not have alerted Dr Armellin to the possibility that he was the first to receive that instruction, or that Ms G had only then made the decision on the number to be inserted. Nothing that was said and nothing that occurred should have alerted him to the possibility that the system had not been complied with, that Ms G had not communicated her instructions to the Fertility Centre either in the ordinary course, or on admission or during preparation for theatre. He would not have known that Ms G’s instructions had not been previously communicated or that his failure to inform the embryologist would result in two embryos rather than one being transferred. In the circumstances, the standard of care required of Dr Armellin did not include the obligation to apprise the embryologist or other members of the Fertility Centre staff of the number of embryos to be transferred, or of the fact of or content of the conversation with Ms G in theatre or, following that conversation, to ensure that only one embryo was transferred.
The plaintiffs submit that it would have been ‘profoundly simple, easy and indeed recommended process’ for the mistake to have been avoided for Dr Armellin to say to the embryologist that Ms G had just told him that she only wanted one embryo transferred and to ensure that only one was in the straw/catheter. That is so, but it is not the test. The fact that it would have been easy to do and thus avoid the injury does not mean that it was reasonably foreseeable. It imports hindsight and present knowledge, knowledge that Dr Armellin did not have. He did not know that the system had not been complied with and that Ms G’s decision to reduce the number of embryos to be transferred had changed from “one to two” to one.
The correct approach is to look forward to identify what a reasonable man in the defendant’s position would have done, not to look back to identify what would have avoided the injury (NSW v Fahey (2007) 236 ALR 406 at [57]–[58] per Gummow and Hayne JJ).
The duty of care is not to be considered in the abstract (Cattanach at [65] per McHugh and Gummow JJ citing Smith v Jenkins (1970) 119 CLR 397 at 418 per Windeyer J) but in respect of the nature of the harm suffered (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [13] and [17] per Gleeson CJ, [102]–[104] per Hayne J; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J). The risk of multiple pregnancy was foreseeable. The increased risk with the implantation of two embryos was foreseeable. The risk was realised. If Dr Armellin had appreciated that the conversation with Ms G constituted her instructions to change her previous direction to insert one to two embryos to a direction to insert one embryo and that she had not previously given that instruction to Fertility Centre staff, his duty would have extended to ensuring that the embryologist was told of the change.
Conclusion on breach of duty of care
I accept that Dr Armellin would reasonably have foreseen that the transfer of two embryos involved the risk of multiple pregnancy and birth. However, Dr Armellin did not know that two embryos were transferred until after the event. He was aware prior to the transfer that Ms G only wished one embryo to be transferred but was not aware that her decision had not been transmitted to the staff of the Fertility Centre or by the Fertility Centre to the embryologist. That lack of knowledge on his part was reasonable in the context of the system in place at the Fertility Centre and the fact that Ms G had not complied with her expected participation in that system, a fact not transmitted to Dr Armellin.
Ms G had completed the form authorising one to two embryos. The transfer of two embryos was normal procedure for IVF as a means of maximising implantation and pregnancy, balancing the risk of multiple births. On being told of the number of available embryos and their condition, Ms G did not tell the Fertility Centre in the conversation the day before the procedure that she changed her mind about the number to be transferred or that she only wished one embryo to be transferred. She did not tell anyone at the Fertility Centre of either of those matters on admission or prior to her transfer to theatre.
Ms G says that she only made up her mind about the number while in the theatre and then informed Dr Armellin. Whoever initiated the conversation in theatre, there was nothing to alert Dr Armellin to the fact that Ms G was conveying new instructions, or instructions inconsistent with those in the form, or that there was any alteration to the consent previously given.
It is apparent from Dr Armellin’s completion of the pre-operation report, referring to the transfer of one embryo, that he believed that Ms G’s decision to have one embryo transferred had been communicated through the Fertility Centre to the embryologist. That is reinforced by his conversation with the embryologist after transfer.
Dr Armellin’s reliance on the system was reasonable. He did not reasonably foresee and a doctor in his position would not reasonably have foreseen that the system had not operated in accordance with normal procedure. There was no conversation or double check of the number of embryos to be transferred with the patient and the embryologist prior to the procedure because Ms G was under sedation when the embryologist arrived. However, it was reasonable for Dr Armellin to continue to assume that the system had operated normally. As part of that system, the embryologist brought the straw containing the embryos into the theatre and inserted them as indicated by the placement catheter placed by Dr Armellin. Dr Armellin, acting reasonably, did not foresee that his conduct involved a risk of injury to the plaintiffs. That was reasonable in the circumstances.
Dr Armellin did not have the information that Ms G was changing her instructions as to the number of embryos. He neither had it nor, in the circumstances, ought he reasonably to have had it at the time of the procedure (s 42 of the Act). The risk of multiple pregnancy and multiple birth was foreseeable but it was not foreseeable that it was an unwanted risk or one that Ms G had not accepted with the transfer of one or two embryos. Accordingly, Dr Armellin was not negligent under the Act in failing to take the precaution of reducing the number of embryos to one (s 43 of the Act). The fact that a risk of multiple pregnancy and multiple birth could have been avoided by the transfer of a single embryo does not of itself give rise to or affect liability for the way in which the transfer was done (s 44(b) of the Act).
Dr Armellin did not breach his duty of care to the plaintiffs.
THE CONCESSION
In the amended statement of claim, the plaintiffs allege that Dr Armellin was in breach of his duty of care to the plaintiffs. Dr Armellin gave evidence and was extensively cross-examined. I found him to be a forthright witness. He freely acknowledged that the implantation of two embryos rather than one was a mistake and an incorrect procedure and that it came about as a result of lack of communication between him, the embryologist and Ms G. However that did not amount to an acknowledgement or admission that there had been a breach of the duty that he owed to Ms G, or that he was otherwise negligent. His counsel, Ms Burke, made that clear in her summarised submissions which were made orally at the conclusion of the evidence. She emphasised the system and Dr Armellin’s role within it. However, the plaintiffs rely on a concession made by Ms Burke during those oral submissions. Detailed written submissions followed.
In the context of her oral submissions concerning the interaction between the clinician and the embryologist, Ms Burke said:
…it is conceded that a reasonable practitioner in the defendant’s position would have done a double check and had a conversation with the embryologist to confirm that it was one embryo being transferred. In other words, when he rings up the embryologist to say, “I’m ready to go. This lady’s under sedation. It’s one is it?”, the embryologist said, “No, it’s two”, that didn’t happen. And I for one moment don’t say that ought not to have happened in this instance.
Ms Burke continued:
So therefore that concession in relation to the second breach, the second leg of the second breach, and the third breach, knowing that she was under general anaesthetic and failing to make sure that he only in fact transferred one embryo, is a concession by the defendant that he ought to have taken reasonable steps to have at least a conversation with the embryologist to say, “It is only one embryo, is it?” That didn’t happen. However, the fact that he did not do that himself and the fact that that resulted in the transferring of two embryo instead of one, the actual transfer of two embryo instead of the one is not outside what was apparently the standard practice at the time in relation to insertion of two embryos
(‘the concession’).
The plaintiffs rely on the concession to establish Dr Armellin’s breach of duty as alleged in the statement of claim.
Upon the concession being made, I put to Ms Burke the difficulty I had with the apparently contradictory aspect of her submissions: first, that there was a system in place for which Dr Armellin did not have responsibility and secondly, that she conceded that a reasonable practitioner in his position should have clarified Ms G’s last minute request to him that only one embryo be transferred with the embryologist. Ms Burke’s response was ‘that in this particular instance there was something that was outside the system, and that was that she was under general anaesthetic or sedation’.
I granted a short adjournment for Ms Burke to consider whether, because of the concession, the issues that she had raised in relation to the system that operated at the Fertility Centre were irrelevant. Her response after that short adjournment was to repeat that the concession was that the defendant ought to have said to the embryologist ‘“That’s one, is that right?”, but the embryologist should have said to him as well’ that she had two embryos.
After the adjournment, when given the opportunity to explain how the concession affected the defence of no breach of the duty of care, Ms Burke again repeated the concession that, for a prudent doctor in Dr Armellin’s position in this last step of the system, a conversation should have taken place between the plaintiff, the consultant and the embryologist. She reiterated that, with Ms G under sedation, that left two other people to have the conversation and that neither did the double check. When I put it to her that her allegation of equal responsibility between the embryologist and the doctor did not absolve the doctor of the responsibility, Ms Burke agreed. When I put to her that there was a breach of Dr Armellin’s duty, she said ‘there was’. Again, when I sought to clarify that she accepted that, whether or not the embryologist or the doctor initiated a conversation, the doctor had an obligation to ensure that a double check took place Ms Burke repeated ‘I’m not resiling from that concession’. When asked whether she accepted that the doctor breached his duty of care she said ‘I accept that there was the breach there, he ought to have asked, but the corollary to that is the embryologist was also a participant’.
Ms Burke disagreed that that meant that her submissions about the system were irrelevant, saying ‘my submissions in relation to the system went to the scope of the duty in addition to the issues in relation to breach’. It could be said that that derogated from what seemed to be the clarity of the concession. When I asked her again if she accepted that Dr Armellin had breached his duty of care, Ms Burke resiled from the expression of the concession and framed it in terms of Dr Armellin’s evidence. She said ‘and that concession was made as a direct consequence of Dr Armellin’s evidence, his evidence was, he’d said from day one it was a mistake’.
What exactly did Ms Burke concede at the hearing? Ms Burke made it clear that the concession arose from Dr Armellin’s statement that he accepted that there had been a mistake. She did not concede that Dr Armellin was under an obligation to initiate the conversation with the embryologist but confirmed that he should have had a conversation with the embryologist. When asked whether Dr Armellin’s evidence was simply that there was a mistake in the overall circumstances and whether she conceded that Dr Armellin had a duty to avoid a mistake being made, Ms Burke said that the concession ‘was prefaced following that that act in itself was not negligent’. When asked to confirm that what she described as ‘the second leg of the second breach…and the third breach…are conceded’, she said ‘Yes. I do not move from that’.
Despite having given Ms Burke every opportunity to clarify the concession, I told her that I would give her the opportunity to frame the concession precisely and would not hold her to what had been said during the course of oral argument. Counsel for the plaintiffs did not object to that course of action. Ms Burke then said that she did wish to have the opportunity to clarify the concession precisely, saying:
I didn’t realise I’d used the words in relation to the concession I made linking it immediately into the breaches per se, and I certainly do want to alter it. Before I do though I want to think about how I want to put the words because it is an important point and I do not want to sell my client Dr Armellin down the river as a result of throwing away a few words without taking the necessary care.
In her written submissions, Ms Burke refers to the concession. She acknowledges that she had, in oral submissions, conceded that a reasonable man in the defendant’s position would have double-checked with the embryologist. She withdraws it. She says that she had only intended to concede the mistakes or errors as conceded by the defendant in evidence. Dr Armellin conceded that the transfer of two embryos rather than one was a mistake. He had said in evidence that there was usually a conversation between himself, the embryologist and a patient as the patient was normally not sedated and therefore awake when the embryologist arrived. This had not occurred as Ms G was under sedation when the embryologist arrived.
Admissions of fact and of law
The Court Procedures Rules 2006 (ACT) (‘the ACT Rules’) made under the Court Procedures Act 2004 (ACT) provide for admissions in rule 493, relevantly:
(1)If an admission is made by a party, whether in a pleading or otherwise, after the start of the proceeding, the court may, on another party’s application, make an order to which the party applying is entitled on the admission.
(2)The court may give judgment or make another order even though other issues in the proceeding have not been decided.
No application has been made under rule 493. The rule is not instructive as to when a party will be bound by an admission or concession.
In that affidavit Ms G sought a suppression order relating to the publication of material which may disclose the identity of her twin daughters. That material was limited to their names and those of herself and Ms M. The basis of her concern was that the children would become aware of the details surrounding their birth, including her feelings of ambivalence towards them before and after their birth and the fact that one of them was unwanted. Ms G and Ms M plan to tell the children about their conception and birth, that the discovery of having twins was confronting for them, in that they were taken by surprise, and that the twins were both wanted and loved. They do not wish to tell them about the grief and hurt that the knowledge of their existence caused. Ms G says that she does not want them to know of the prospect that one of them might have been terminated or adopted out. She is of the view that the information may be hurtful or cause psychological damage. Ms G stated her concern that family members or friends who find out about the case through the press may tell the children material that differs from the information that she plans to tell the children, or that the children may, in years to come, find information about the case on the Internet.
Mr Marshall relied on several cases where suppression orders have been made. In DJ v RHS (2004) 182 FLR 76 a suppression order was made in relation to the names of the parties in a personal injury claim following a termination of a pregnancy. Justice Connolly made the order, but there is no discussion as to why the order was made. The only discussion occurred at [1] where his Honour stated that ‘due to the nature of the claim an order was made…to prohibit publication of the names of the parties to this action’. The order appears to have been made by consent.
In X v Australian Prudential Regulation Authority (2007) 226 CLR 630, the primary judge had made an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’), suppressing the identity of the relevant parties and, by consent, the order had continued thereafter. The grounds for a suppression order under s 50 of the Federal Court Act are limited to circumstances where such an order is necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. The majority did not address this issue but Kirby J did so at [85]–[92]. At [86] his Honour stated:
The suppression of names ought to be confined to cases in which disclosure “would prejudice the court’s proper exercise of the function it was appointed to discharge, to do justice between the parties”, or where disclosure “would destroy the subject-matter of the proceedings and render them nugatory” [citing Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233]. A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula.
Counsel relies on the second limb of that sentence, namely where the use of the names would impede or discourage access to the courts.
Justice Kirby also noted at [87] that the identification of the parties’ names might be embarrassing to them and, with the ready availability of the Internet, the disclosure of their identities might do some harm to individual and corporate reputations. His Honour observed that Australian courts sometimes anonymise proceedings to protect from needless harm the identity of persons who become involved in court process (at [88]). However, his Honour went on to qualify that (at [89]) and said that, every day in the courts, parties and witnesses must disclose their names and identities, although often this is ‘uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country’. His Honour noted at [90] that ‘the proliferation of instances where courts suppress the identity of parties and witnesses (without specific legislative warrant) is undesirable…[the naming] may cause some prejudice to the parties, perhaps, but ordinarily the administration of justice is strengthened by openness and full disclosure’.
In my view, this does not assist the plaintiffs in their application.
In John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 the Court of Appeal discussed non-publication orders at [38]–[49]. The issue involved a defendant in a criminal trial and the Court of Appeal found that the party’s name had been suppressed by the trial judge inappropriately. At [40] the Court cited with approval McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 where his Honour said:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it…The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’ its jurisdiction.
[emphasis as added by the Court of Appeal]
The Court commented at [43] that John Fairfax (1986) is authority for the existence of a narrow jurisdiction empowering a statutory court to make non-publication orders. At [45] the Court noted that there were some “well established” categories where a non-publication order will be made, including one preventing the publication of the identity of an informer, an application of a test of necessity for the administration of justice (at [48]).
As was observed by the President and Lee J of the Queensland Court of Appeal in J v L & A Services Pty Ltd [1993] QCA 012 at 33, the permitted exceptions for the requirement of open justice are not based on the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility but upon the actual loss of utility which would occur.
It has not been shown in this case that the utility of the proceedings would be affected. This case falls within a category considered inappropriate for suppressing by the President and Lee J at 35: concern for the social disadvantages that might flow to the plaintiffs and their family.
There may be statutory authority to derogate from the openness principle.
Statute
Counsel for the plaintiffs directed me to s 91(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (‘the Evidence Act’) which relevantly provides that the Court may make an order forbidding the publication of the name of a party or witness or of evidence if publication is likely to prejudice the administration of justice or it is in the administration of justice that the name of a party not be published. Section 91 allows for a general or conditional suppression order, the latter permitting an alphabetic pseudonym to be used.
No reason was advanced why the failure to suppress the names would be contrary to the interests of the administration of justice.
Counsel also referred to the Human Rights Act 2004 (ACT) (‘the Human Rights Act’) which provides in s 11(2) that ‘every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind’. However, the protection sought here is not being sought because the child is a child, although I accept that when children are involved in litigation there may need to be extra consideration given to issues such as publication. The protection sought by the suppression of the names of the children and their parents is because of the circumstances of their conception. The plaintiffs do not wish the children to learn of those circumstances and this litigation at all, whether as children or not, other than from them.
Counsel also referred to s 21(2)(b) of the Human Rights Act which provides that:
(2) …the press and public may be excluded from all or part of a trial –
…
(b) if the interest of the private lives of the parties require the exclusion;
In relation to that section, counsel did not request that the press be excluded from the court but rather that the entitlement of the press to publish certain information, the names of the parents, be excluded. No other statutory basis for the suppression order was suggested.
Further submissions
Without time to consider the authorities fully during the hearing, I continued the suppression order until further order.
I gave the parties the opportunity to provide further written submissions on this issue. The plaintiffs rely on ABC v D1 [2007] VSC 480, a decision under the Supreme Court Act 1986 (VIC) which provides in ss 18–19, inter alia, for an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding if, in the Court’s opinion, it is necessary to do so in order not to prejudice the administration of justice. In ABC, Forrest J considered the damage which may be suffered by individuals and the pain and loss of those touched by what is done in the courts and publicised (at [54] citing John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 163–164 per Mahoney JA). His Honour recognised the competing public interests (at [55]). He also noted the necessity for evidence of a cogent nature that must establish more than a remote possibility and establish a real risk, but allowed for the courts not to receive evidence of matters in respect of which they are thoroughly familiar (at [62]).
Justice Forrest, at [68], considered that, in determining whether to make a pseudonym order, the Court is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principle of open justice and whether the administration of justice warrants the making of the order. His Honour identified two examples: a real risk of psychological harm as a result of publication and a real risk of a party not proceeding with an action if he or she or another person is identified. His Honour also considered the fact that there was reporting of the case to be relevant.
Consideration
I have now had the opportunity to consider the matter further. I have decided that notwithstanding the sympathy that I feel for the plaintiffs and the children, especially in the context of the public interest in the case, there is no sufficient reason to suppress the plaintiffs’ names.
Although s 91(1) of the Evidence Act allows me to make an order forbidding the publication of the plaintiffs’ names, the section requires that the order be made if it is in the interests of the administration of justice. As discussed by Kirby J in X v Australian Prudential Regulation Authority, while the disclosure of the plaintiffs’ names may be uncongenial, the administration of justice does not require suppression of those names. The utility of the proceedings will not be affected. Rather it is concern for the social disadvantage that may flow to the plaintiffs or their family that is in issue.
In relation to any social disadvantages to the children, I have considered the comments made by the various courts in Cattanach.
In Melchior v Cattanach, there is no indication in the reasons of Holmes J, the primary judge, that the issue of suppression of names was raised. Clearly, no suppression order was made of the parents’ names. However, his Honour did address, at [53], as part of the reasoning in relation to damages, the issue of a child finding out about the parents claim:
Nor do I find sufficient the argument that a child should not be exposed to the knowledge that its parents have made a claim for damages arising out of its existence. My inclination is, as was that of Kirby…in CES v Superclinics…to regard it as likely that a child whose parents’ financial burden was ameliorated by an award would be in a considerably happier position than one whose parents were precluded by public policy from any relief. To suppose that parents, because they cannot recover damages, will never mention to their child the misfortune which brought about his or her conception is unrealistic…
These observations apply whether or not the parents were successful in the litigation.
On appeal to the Queensland Court of Appeal (Melchior v Cattanach (2001) 217 ALR 640), McMurdo P considered the public policy against awarding damages where children could be put at risk of finding out they were unwanted. Her Honour noted (at [59]):
First, an unwanted or unplanned pregnancy does not mean that the child when born is not cherished by the family. Such births are a common enough occurrence, although most are not caused by established medical negligence. It is only the financial and social burden arising from the negligence that was unwanted, not the child that is consequently born…
The evidence is that Ms G and Ms M overcame their initial reaction against a twin birth and want, love and cherish their children.
Justice Davies also considered this issue at [97] and found that the claim would not have any effect on the psychological well-being of the child, as the claim did not involve any assessment of the non-financial benefits and burdens of the child. His Honour also pointed to the fact that unwanted conception was not uncommon and said ‘I think it unlikely that the disclosure of that fact would be likely to harm the relationship or the well-being of the child. Moreover the addition of a financial claim for the support of the child…if successful, [is] more likely to be something for which the child will be grateful than a matter which he or she will regret’.
Importantly, in the High Court, McHugh and Gummow JJ (at [79]) rejected as speculative any perceived disruption to familial relationships if the child in question became aware of the litigation and said that the common law should not justify preclusion of recovery on speculation as to possible psychological harm to children. Justice Kirby at [145] described as “unconvincing” the notion that a child might be hurt emotionally if he or she learned of the litigation. Justice Hayne also considered that it was not self-evident that any damage would follow from such discovery (at [202]–[203]). Justice Callinan pointed out at [301] that there are many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted. Justice Heydon cited the judgments of the Judges of the Queensland Court of Appeal which discussed the fact that an unwanted conception does not necessarily have a detrimental effect on the child born under such circumstances (at [385]–[386]) and considered the potential damage to the child to be a factor against permitting recovery of damages.
While the discussion of the effect on the child was not in the context of an application for a suppression of identity, their Honours rejected an automatic acceptance of such potential harm. It is apparent that the majority rejected the potential harm to a child on learning of wrongful birth litigation and the facts alleged as part of it.
If there is no such harm or potential harm to the children there is no need to protect them from that harm under the common law or the Human Rights Act by suppressing the names of the plaintiffs, their parents.
The plaintiffs only sought a suppression order at the commencement of the proceedings. The potential for publication did not deter them from commencing and proceeding with the action. The children are presently four years old. It is unlikely that they will read or, indeed, understand the import of any publications of the proceedings. By the time they are able fully to comprehend the evidence and the judgment, their parents will have had the opportunity to explain to them in their own way the circumstances of their birth and these proceedings. They intend to do so.
Justice Forrest in ABC said at [71] that the judge is able to act on his or her own experience and draw appropriate inferences. However, that was balanced by the observation that, usually, the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. The evidence before me is of mere belief. I accept that publication of their names will cause the plaintiffs personal difficulties but my experience does not extend to an understanding of whether or not there will be harm to the children, at this age, if their parents’ names are published and their own names are suppressed. Further, one of the plaintiffs is in the process of changing her name and the children bear, as part of their name, the proposed name.
The plaintiffs submit that other plaintiffs will be discouraged from availing themselves of the justice provided by the court system if these names are published. I am not satisfied that that is the case. The names were not suppressed in Cattanach or Harriton and there is no evidence that this discouraged others from commencing proceedings. It did not discourage the plaintiffs.
The plaintiffs, understandably, are concerned at the nature of the reporting of the case. In particular, they point out that the reporting refers to their sexual preference and family history and is emotive and negative. Inappropriate and insensitive reporting in any case has the likely consequence of causing hurt and harm. That is unfortunate for any party affected by it. I can only urge the media to recognise that there are children involved. The media urges an open system of justice and an absence of suppression orders. If it abuses the system, the courts may become more ready to make such orders to protect parties and witnesses from that abuse. I urge the media to adopt a reasonable, non-sensational reporting of this case. The open administration of justice should be mirrored by ethical reporting of proceedings.
Once the suppression order is lifted, the names of the plaintiffs can be published. That cannot be reversed. Accordingly, I will stay the order lifting the suppression order for 28 days, being the time for any appeal to be filed. Whether there is an appeal from the whole of the judgment or not, it will enable the plaintiffs to consider an appeal as to the suppression of their names.
Regardless, I will suppress the names of the plaintiffs’ children. Although I have not referred to them in my reasons, the children are identified by name in papers on the Court file. The children do not, for the reasons advanced in Cattanach need protection because they are children from the fact of or facts in this litigation. However, it is not the children who have brought this proceeding. There is no benefit to be gained from the publication of their names and an order that they be not published will not affect the principle of open justice. The plaintiffs have said that they intend to tell the children of the circumstances of their birth. Such an order will reduce the effect of any Internet search by the children in the future.
CONCLUSION
Although I have proceeded to consider the remaining matters to be proved in a negligence claim, as outlined above I have determined that Dr Armellin was not negligent by reason of the specific circumstances surrounding the transfer procedure including the operation of the system at the Fertility Centre. Accordingly, the application must be dismissed. The plaintiffs should pay the defendant’s costs of the proceeding.
ORDERS
The appropriate orders to make in this matter are:
1. That the application be dismissed.
2. That the plaintiffs pay the defendant’s costs of the proceedings.
3. That the order made on 17 September 2007 suppressing from publication the names of the plaintiffs be vacated.
4. That 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.
I certify that the preceding two hundred and seventy-six (276) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Bennett.
Associate:
Date: 24 July 2008
Counsel for the plaintiffs: H Marshall SC
Solicitor for the plaintiffs: Pamela Coward & Associates
Counsel for the defendant: K E Burke
Solicitor for the defendant: Ken Cush & Associates
Date of hearing: 17, 18, 19 and 20 September 2007
Date of judgment: 24 July 2008
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