| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NW -v- INVITRO LABORATORY PTY LTD & ANOR [2005] WADC 20 CORAM : REGISTRAR KINGSLEY HEARD : 16 SEPTEMBER 2004 DELIVERED : 14 FEBRUARY 2005 FILE NO/S : CIV 962 of 2002 BETWEEN : NW Plaintiff
AND
INVITRO LABORATORY PTY LTD (ACN 009 022 459)
First Defendant
TERRENCE THOMAS
Second Defendant
JW
Third Party
Catchwords: Practice - Application to strike third party claim - Application to strike plaintiff's claim - Application by plaintiff to amend statement of claim - Turns on own facts
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Legislation:
Human Reproductive Technology Act 1991
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
Artificial Conception Act 1985
Family Court Act 1997
Result: Application to strike third party claim dismissed
Application to strike plaintiff's claim allowed in part
Application to amend plaintiff's statement of claim dismissed Representation:
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr B Georgiou
Second Defendant : Mr J Thompson
Third Party : Mr Birch SC
Solicitors:
Plaintiff : Gibson & Gibson
First Defendant : Jackson McDonald
Second Defendant : Clayton Utz
Third Party : Cahill Billington
Case(s) referred to in judgment(s):
Amaca Pty Ltd v The State of New South Wales [2003] HCA 44
Cattanach v Melchior [2003] HCA 38
Ilievska-Diev v SGIO Insurance Ltd [2000] WASCA 161
Mahony v J Kruschich (Demolition) Pty Ltd [1985] 156 CLR 522
Tame v New South Wales [2002] 76 ALJR 1348
Case(s) also cited:
Nil
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1 REGISTRAR KINGSLEY: There are three applications before me for determination:
a. An application by the third party by summons dated 15 August 2003 to set aside third party proceedings. b. An application by the first defendant by summons dated 19 May 2004 to strike out the plaintiff's statement of claim dated 19 September 2002 (the 2002 statement of claim). c. An application by the plaintiff by summons dated 25 March 2004 to amend the statement of claim in terms of a Minute filed 10 September 2004 (the 2004 Minute). 2 The plaintiff's claim against the defendants in a statement of claim dated 19 September 2002 is in negligence, breach of statutory duty and breach of fiduciary duty. The plaintiff pleads that the plaintiff and the third party who were married at the time entered into an agreement with the first defendant whereby the first defendant would arrange and provide Assisted Reproductive Technology (ART) services. The second defendant was to attend the first defendant's clinic for the purposes of carrying out the proposed (ART) service. In the 2002 statement of claim the plaintiff pleads that both defendant's would obtain the plaintiff's express and effective consent prior to providing any assisted reproductive technology services to the third party. The plaintiff further pleads that there was an implied term, implied by virtue of s 23 of the Human Reproductive Technology Act 1991 ("the Act"), that the first defendant would only provide the ART service in accordance with the Act by obtaining the effective consent of both plaintiff and third party. 3 The plaintiff pleads in the alternative, that by reason of the matters pleaded the first and second defendant owed the plaintiff a fiduciary duty to give consideration to the welfare and interest of the plaintiff, and the child likely to be born as a result of the procedures, and to obtain the plaintiffs express and written consent to the procedure prior to providing the procedure. 4 The plaintiff further pleads that in 1995 the plaintiff and third party separated and were divorced in February 1999. The plaintiff pleads that in May 1996 there was a frozen embryo transferred as a result of which the third party fell pregnant and gave birth to a child in December 1996. The plaintiff pleads that the provision of the ART to the third party was without the consent of the plaintiff and was in breach of s 23(b) s 23(e) of the Act. The plaintiff pleads the request form from ART was completed by the third party without the knowledge or consent of the plaintiff.
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5 As a result of the defendants breach of contract and negligence, and breach of statutory duty, the plaintiff pleads loss and damage, the particulars of which are that the plaintiff has suffered pain, anxiety, distress and anguish, and will incur significance cost and expenses in raising the child.
6 The third party in August 2003 brought a chambers summons to set aside the third party notice. That application was heard in September 2003 and adjourned to a special appointment. The application was further heard in February 2004 and again adjourned to a special appointment. In the interim the plaintiff sought a suppression order and the plaintiff sought to re-amend its statement of claim. In May 2004 the first defendant then brought its application to strike out the plaintiff's 2002 statement of claim. 7 Having regard to the chain of events I am of the opinion that the delay between the third party bringing its application and the hearing is excusable and does not warrant the exercise of my discretion to decline to hear the application on that basis. 8 The first defendant, in its claim against the third party, pleads the allegation by the plaintiff that the plaintiff's consent to the procedure was required pursuant to the Act, the first defendant failed to obtain that consent, and the procedure was performed without the plaintiff's consent. The first defendant pleads it is entitled to an indemnity or contribution from the third party on the basis that there was an implied term of the agreement between the plaintiff and third party that the third party would inform the first defendant that she and the plaintiff had separated. Alternatively the third party would inform the first defendant that the plaintiff did not want the first defendant to continue to perform the ART services. 9 The first defendant further pleads against the third party that the third party owed a duty of care to avoid a foreseeable risk of economic loss to the first defendant in not informing the first defendant of the changed circumstances of the relationship between the plaintiff and the third party. The first defendant claims against the third party damages for breach of the agreement, and alternatively an indemnity or contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 ("LRA").
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Damage
10 The first defendant's counsel was content to allow third party's counsel to make the primary argument against the plaintiff's claim. In the circumstances this seemed to be the appropriate course to adopt. 11 As against the plaintiff, third party's counsel contends that the plaintiff cannot establish damage. The plaintiff's particularisation of damage is pain, anxiety, distress and anguish suffered by the plaintiff. The counsel for the third party submits this claim is untenable as there is no recognised basis upon which the plaintiff can assert an entitlement to be compensated. 12 Third party's counsel refers me Tame v New South Wales [2002] 76 ALJR 1348 where the High Court determined that there was no general right to recover damages where another's negligence act cause emotional disturbance including anxiety, pain and distress unless they are manifest to the point of psychiatric illness. At par 7 Gleeson J stated: "It was common ground in argument that, save in exceptional circumstance, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance or despondency without any resulting recognised illnesses." 13 Third party's counsel submits that the plaintiff has failed to establish on the face of his pleading, a proper legal foundation to claim damages for pain, anxiety, distress and anguish. 14 Plaintiff's counsel submits that great care must be taken to ensure a plaintiff is not improperly deprived of their opportunity of trial. As a general rule a plaintiff is entitled to have their case heard. Plaintiff's counsel submits that it is only in the cases which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended the pleading should be struck. This is especially so in area of law which is developing. A court in the first instance should be careful not to stifle the development of law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, a cause of action will lie (Ilievska-Diev v SGIO Insurance Ltd [2000] WASCA 161). 15 Throughout the case of Tame v State of New South Wales (supra) is reference to psychiatric injury. Justice Gaudron at para 65 refers to persons of normal fortitude who might suffer a recognizable psychiatric injury, and this comment is reflected in the statement of McHugh J, at
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par 115. Gummow and Kirby JJ both state that in Australia, a plaintiff who is unable affirmatively to establish the existence of a recognizable psychiatric illness is not entitled to recover (par 193). 16 Whilst the High Court has not limited liability for damages for psychiatric injury to cases where the injury is caused by sudden shock, or where the plaintiff has directly perceived a distressing phenomenon, the limiting factor is psychiatric injury and not mere distress . 17 Accordingly, I am of the opinion the plaintiff's claim for pain, anxiety, distress and anguish ought to be struck on the basis it does not raise a reasonable cause of action. 18 The object of an award of damages is to give the plaintiff compensation for the damage, loss or injury that they have suffered and will suffer. 19 The plaintiff's 2002 statement of claim pleads that at some point in time there will be an assumption of responsibility for the welfare and maintenance of the child following the third party's death. In my opinion that is a contingent liability which has not crystallised. In my opinion the plaintiff has failed to establish an arguable basis to support a claim in damages on the 2002 pleading. 20 The plaintiff seeks to plead, in the 2004 Minute that the child has resided with him and his daughter and the plaintiff has assumed responsibility for the day to day care and welfare of the child. Thus the plaintiff has incurred cost and expenses in relation to the maintenance and care of the child and will continue to do so until the child is aged 18 years. In my opinion the question of damage has been properly pleaded in the 2004 Minute.
Causation 21 The third party's counsel submits that the plaintiff has failed to establish an arguable basis for the support of the child. At par 20(b) of the 2002 statement of claim the plaintiff asserts that costs will be incurred in raising the child at some unknown and in determinant future date following the death of the third party. 22 The third party's counsel then submits that the plaintiff makes two assertions of fact which are logically inconsistent. The plaintiff claims, as a direct result of the reasonably foreseeable consequences of the first defendant's actions, loss and damage will be suffered in the future. This is
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because the plaintiff pleads that had the defendant sought to obtain the plaintiff's consent prior to the final invitro fertilisation procedure the plaintiff would have withheld consent. However, as the third party's counsel submits the plaintiff also pleads that in 2002 the plaintiff applied to the Registrar of Births to be noted as the father of the child. 23 The plaintiff's counsel submits that the cause of action is similar to the wrongful birth cases and the measure of damages will be assessed in a similar way to include past and future costs of raising and maintaining the child. As this is an area of law which is perhaps novel, and which is continuing to develop, the plaintiff's statement of claim should be allowed to stand and the case fully presented. 24 The wrongful birth cases rest on the fact that a claim is being made by the parents of the child for the past costs and future costs which they are liable. The parents of the child have already paid the costs and certainly will continue to pay in the future. An element of the damage in the wrongful birth cases is the relationship which exists between parent and child (Cattanach v Melchior [2003] HCA 38 par 24). 25 Further, third party's counsel argues that the chain of causation has broken completely as the plaintiff has failed to seek declarations to rebut the presumption of parentage. Third party's counsel argues that s 6 of the Artificial Conception Act 1985 provides that when a married women undergoes, with the consent of her husband, a fertilisation procedure, then the husband shall be conclusively presumed to have caused the pregnancy and is the father of any child. However, s 6(2) provides that whilst consent shall be presumed, the presumption is rebuttable. 26 Third party's counsel submits that throughout the 2002 statement of claim the plaintiff contends that the procedure was carried out without his consent. However, the plaintiff does not seek to rebut the presumption of parentage in s 6(2) nor in s 188 Family Court Act(WA) 1997. 27 The plaintiff pleads that in 2002 he took the active step to being recognised as the child's father by having his name entered as a parent of the child. Third party's counsel submits that the plaintiff's act of registration invoked s 190 of the Family Court Act(WA) 1997 which gives a further presumption of parentage on the basis of having satisfied the Registrar as to an entitlement to parentage. 28 Thus third party's counsel submits the chain of causation has been broken completely and that the plaintiff's purported damage has no
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sufficient approximate connection to any negligent act or omission of the first defendant. 29 In my opinion the issue of consent under the Artificial Conception Act 1985 is not relevant to the question of the lack of consent as pleaded by the plaintiff. Section 6 of the Artificial Conception Act 1985 relates to the question of paternity and s 6(2) provides that where it is necessary to determine paternity then consent is presumed but that presumption is rebuttable. In this matter there is no issue about paternity. The only issue is whether proper consent was given by the plaintiff. Accordingly, in my opinion the third party's counsel submissions in relation to s 6(2) are not relevant. 30 Section 188 Family Court Act (WA) 1997 relates to presumptions of parentage arising from marriage. Relevantly for these proceedings, if a child is born within 44 weeks after the end of cohabitation, in circumstances where the parties separated and resumed cohabitation, then the child is presumed to be the child of the woman and husband. The 2002 statement of claim pleads that the plaintiff and defendant separated in December 1995 and the child was born in December 1996. In my opinion s 188 Family Court Act (WA) 1997 has no bearing on the issue of presumption of parentage.
Aggravated damages and exemplary damages 31 The plaintiff claims against the first defendant aggravated damages and exemplary damages. Aggravated damages are awarded as compensation when the harm done to the plaintiff by a wrongful act has been aggravated by the manner in which the act was done. 32 Exemplary damages are intended to punish the defendant and to serve one or more of the objects of punishment namely moral retribution or deterrence. Whilst there is doubt whether an award of aggravated damages can be engrafted upon a negligence claim there may well be circumstances where an award of aggravated damages can be made. However, such an award appears to be confined to those cases in which there has been lack of bonafides or contumelious conduct by the defendant. It is incumbent then upon the plaintiff to plead such lack of bonafides or contumelious conduct on the part of the defendant. I am of the opinion in the 2002 statement of claim and the 2004 Minute that the plaintiff has not properly pleaded a cause of action in aggravated damages or exemplary damages.
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33 In conclusion I am of opinion, whilst the claim of the plaintiff may well be regarded as novel, the claims, other than for pain and distress and for aggravated or exemplary damages are proper and the claim ought not be struck. In relation to the claim for aggravated or exemplary damages I am of the opinion that there are no material facts pleaded to support that claim and that aspect of the pleading ought to be struck. In relation to the claim for pain and distress the claim is struck on the basis of no reasonable cause of action.
Third party claim 34 The first defendant brings its claim against the third party under the LRA as the basis for the claim for indemnity or contribution against the third party. 35 Section 7(1)(c) of the LRA provides that where a tortfeasor is liable in respect of damage suffered by a person as a result of a tort, the tortfeasor may recover contribution from any other tortfeasor who is, or would, if sued, have been liable in respect of the same damage, whether as a joint tortfeasor or otherwise. The defendant then has the onus of establishing that the third party, would be liable as a joint tortfeasor in respect to the same damage allegedly suffered by the plaintiff. In Amaca Pty Ltd v The State of New South Wales [2003] HCA 44 the High Court held that an application to set aside third party proceedings could not be dismissed without first deciding whether the third party would, if sued, have been liable to the injured plaintiff. The High Court commented that it was essential to establish as a matter of law whether the third party owed the plaintiff a duty of care and if so whether it had been breached. Without identifying the duty owed and the breach or breaches committed it was not possible to identify the extent of the third party's responsibility for damages. 36 The third party's counsel argues that the first defendant has failed to plead any fact in the amended third party notice and statement of claim which could be capable of establishing that the third party owed the plaintiff any duty whatsoever to notify him or obtain his consent prior to the treatment being performed by the second defendant. 37 The third party's counsel goes on to submit that even if one assumes, for the purpose of the hearing, that the third party owed the plaintiff a duty of care there is no sufficient basis for the first defendant to maintain the proceeding. This is because there is no co-ordinate liability between the parties to the proceedings.
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38 Section 7 of LRA requires that the tortfeasors be liable with respect to "same damage". On the plaintiff's pleading in addition to a claim for pain and anguish the plaintiff claims damages for future economic loss being the future costs of maintaining the child. In Mahony v J Kruschich (Demolition) Pty Ltd [1985] 156 CLR 522 the High Court commented that the concept "the plaintiff's damage" means in negligence, damage suffered through the foreseeable consequences of the tortfeasors act or omission.
39 In this case the first defendant contends that the third party owed a duty to the defendant to inform the first defendant of a change in their relationship or, alternatively, that the plaintiff would no longer consent to the first defendant continuing to perform the services the subject of the agreement. The first defendant's counsel argues that the duty of care the third party owed to them extended to a duty care to protect it from an economic loss claim. Whilst there is no general rule that one person owes another a duty of to take care not to cause reasonably foreseeable financial harm, the first defendant's claim is not wholly unarguable. 40 Accordingly, I am not prepared to strike the first defendant's action as against the third party.
Plaintiff's application to amend 41 The plaintiff has brought an application to amend the statement of claim. The amendments substantially go towards, the duty of care and make the breaches more understandable. 42 Significantly the plaintiff now properly pleads the issue of damages at par 20(b) of the 2004 Minute. 43 However, in my opinion the plaintiff has not provided any material facts to plead a case in aggravated or exemplary damage. 44 Further, in my opinion the plaintiff has no arguable case in relation to mere distress.
Conclusion 45 For these reasons: (a) The application by the third party to set aside the third party proceedings is dismissed.
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46 I will hear counsel on the form of orders and costs.
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