Waller & Anor v James

[2016] HCATrans 31

[2016] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S182 of 2015

B e t w e e n -

DEBORAH WALLER

First Applicant

LAWRENCE WALLER

Second Applicant

and

CHRISTOPHER JAMES

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2016, AT 11.17 AM

Copyright in the High Court of Australia

MR D.J. HIGGS, SC:   If it please the Court, I appear with MS E.M. PEDEN for the applicants, your Honours.   (instructed by Stacks & Goudkamp Solicitors)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MS V.A. THOMAS, for the respondent.  (instructed by Ashurst Australia)

BELL J:   Yes, Mr Higgs.

MR HIGGS:   Your Honours, as your Honours are no doubt aware, in these proceedings there were two risks that the applicants faced when undertaking the decision as to whether or not they would proceed to conceive a child by IVF under the supervision and at the recommendation of the respondent who breached the duty of care he owed to them in explaining the reason why he had referred them to a genetic counsellor.

Now, the starting point, if I might just summarise it before going to some parts of the application book, is that at the time they undertook the decision that they needed to make about proceeding to go ahead with IVF they were prepared to take no risk at all of their child inheriting the second applicant’s ATD gene and that could never be guaranteed in the circumstances that applied at that time, that is, if they were to have a child of their own as opposed to say, going about using a sperm donor and the like. 

Even then, the risk of ATD could not be excluded altogether, for the reason that there was a 0.4 per cent chance or a one in 250 chance in the general population of inheriting ATD.  In their case it was increased 50‑fold because of the 50 per cent chance of inheriting ATD.  True it is that it was a disease of adulthood, as the applicants knew.

Their reason for setting their face against conceiving a child with ATD was not on financial grounds and the like.  It was upon the basis, upon the ethical basis that they did not want to inflict upon their child the angst that the second applicant had suffered and which his wife, the first applicant, had observed of going forward with the spectre of a chronic disease that was troublesome to the second applicant, including whether or not to have a child.

So that is the starting point.  The second point is that, yes, there was also - unlike the avalanche in Lord Hoffmann’s mountaineer example - a duty which is acknowledged to warn, in a general way, of the risks of the stroke that came home - that was coming home four days after birth.  It is not correct to say, however, that the respondent warned of the risk of CSVT.  Rather, as was appropriate - and there is no criticism of this - they warned of that risk in terms of a general risk of pregnancy, that there was a 3 to 4 per cent chance of significant disabilities being suffered by a child of theirs flowing from an array of problems of varying degrees, of varying severity and in respect of which, from condition to condition, there was a different chance.  That is all wrapped up in the 3 to 4 per cent risk of a significant disability which included CSVT, the stroke that came home.

Now, we accept that we were not able to prove the link between the ATD risk, if I can describe it that way, and the risk of a stroke but even so, given the way that the risk of the stroke befalling their child being no doubt a significant disability, we say that there is an overlap between the way in which the general risks were described, which involved significant disabilities, because that is the way the warning was provided by the respondent as was his duty to do so and there were still significant risks arising from the child inheriting the ATD gene. 

There was an overlap and if the ATD risk was known, as it ought to have been, then any sensible discussion, in terms of significant disabilities, that needed to be undertaken with the parents had to include the general risks by which the risk of stroke was advised or warned about because there was an overlap and there is no sensible way of otherwise describing the overall risk of significant disabilities.

BELL J:   The breach was the failure to explain why the referral was being made to the geneticist in relation to the ATD and to follow up and inquire about what had occurred in light of that referral.  Is that broadly speaking right?

MR HIGGS:   That is true.  So the duties were slightly different.  One was a duty to inform, the consequence of which was - that is to inform the parents of the importance of getting advice about the ATD gene that could be passed on and the importance of obtaining that advice and the reason for the duty existing and the breach having been found was because it was potentially significant at the very least.

If the mother had the ATD gene, the child, the foetus conceived by IVF or otherwise, would have not been viable.  Now, that did not apply here but that is just an example how it has to be that the ATD statistic that might lead to a significant risk has to have been lumped in with the other array of conditions that was bound up in the general risks of pregnancy by which the risk of stroke was warned of. 

BELL J:   Accepting that, Mr Higgs, I having difficulty seeing how you distinguish this case from Wallace v Kam.

MR HIGGS:   Well, because in Wallace v Kam what was made plain was that it was not only that - in that case normative causation was not found because first the risk of permanent paralysis was distinct and separate to the other risk in the way that it should have been advised upon because there was no pathological connection with respect to the way in which temporary and permanent paralysis could arise.

BELL J:   But does not your case come down to, had the breach not occurred, we would not have conceived the child?

MR HIGGS:   Well, it is more than that.  We would not have accepted - well, had the breach not occurred, we would not have accepted the risk of ATD.

BELL J:   Yes.

MR HIGGS:   That and that alone was damage that we claimed, separate to the consequences flowing from the stroke and that is recorded in the Court of Appeal judgment, I think it is paragraph 10 of the judgment.  We put them in the alternative.  At the very least, we are entitled to Cattanach v Melchior type damages in relation to the ATD disability because we would not have had the child, we would not have taken the risk of ATD.  We also say that we are entitled to the additional damages arising from the harm suffered by each of the parents because of the stroke and clearly that was more serious than the consequences of simply having a child with ATD.  We concede that but the point remains there is a ‑ ‑ ‑

KEANE J:   So, insofar as that injury represented the materialisation of a risk which was beyond the duty of the respondent to warn your clients, Wallace v Kam is decisive against you?

MR HIGGS:   No, with respect, your Honour, simply because it was not the duty of the respondent here to warn of the hereditary risks of ATD does not mean that we would not be entitled to damages in that regard for the reason that it is because of the failure to tell the applicants about the importance of finding out about their ATD gene and that they would not have accepted any risk of ATD, but they did not see the genetic counsellor and hence they were not informed and it was a long hard fight but ‑ ‑ ‑

BELL J:   You may be at cross‑purposes.

MR HIGGS:   I am sorry.

BELL J:   I think Justice Keane’s question was directed to the materialisation of the risk of CSVT.

MR HIGGS:   I am sorry, I do apologise.  In relation to the risk of the stroke, we say that because of the overlap - the starting point is that the first thing about Wallace v Kam is that that was a treatment case.  That was a case to do with an existing problem that was not going to go away.  There was no chance of a better outcome and consistent with cases like Paul v Cooke where there was no real difference in the chance of a better outcome, whether the operation is undertaken earlier or later, then in treatment cases there is the answer that it is not relevantly connected to the harm for which damages are claimed.  But this was a different case.

BELL J:   But does it not still raise the point that is made in Wallace v Kam that what one is compensated for is not the loss of the right to choose?

MR HIGGS:   No, no, I agree with that but what is compensated for - and in relation to timing this is important - in a claim with respect to whether or not you will take on certain risks that you ought to have known about, in Wallace v Kam unlike - sorry, here it is a right to decide whether to proceed and take not only the ATD risk but all risks of the pregnancy.

Now, if in fact they had known of the ATD risk, they would not have gone on and taken on the CSVT risk.  They would not have been willing to undertake any risk at all and they certainly would not have been able to undertake or accept any risk, including the general risks of pregnancy at that time and unlike treatment cases, that is a right that has utility and value because in this case there was, with the benefit of time, the means by which, to reduce the risk of inheriting any ATD in the event of appropriate testing becoming available such as pre‑gestational diagnosis sampling of the embryo impregnated, which was a real chance of coming in, which did not arrive, but also there was the risk of negotiating as between the couple as to whether or not they would, down the track, change their positions in relation to whether or not to insist on only having children using the second applicant’s sperm or a donor sperm, as occurred 12 years later, but quite properly and appropriately, over time.  So, my point is ‑ ‑ ‑

BELL J:   But Mr Higgs ‑ ‑ ‑

MR HIGGS:   Sorry, I do apologise.

BELL J:   Not at all, but these applicants wanted to have a child, they were aware of the general risks which must be taken to include the stroke.  Accepting for present purposes that they would not have proceeded with the IVF course of treatment had they seen the geneticist and been given to understand the risk of ATD, putting to one side, and we will come back to this, the case for damages on ATD, just directing you to the case for damages on the stroke, how does this differ from a complaint that what we are being compensated for is the loss of our right to choose?

MR HIGGS:   It comes about because they are not given time.  They would have taken time and they are not relevantly distinct risks in terms of deciding whether to have a child then or wait.  There is an overlap ‑ ‑ ‑

KEANE J:   But they are distinct risks in terms of the obligation to advise and warn.  That is the way the case has been run and decided.  It sounds very much as if you are running a different case of breach now.

MR HIGGS:   No, no, with respect, your Honour, we always ran the case that the two risks were relevantly connected so as to overcome the problem that might otherwise apply because of Wallace v Kam.  Clearly there was the potential at the very least of the risk of significant disability with ATD such as dying of an untreated pulmonary embolism or DVT.  That was a significant risk and a fortiori it was a significant risk that the child would not be viable in the event of the mother having the ATD gene.  Now, that did not apply here on the facts of this case but the fact is that it would be in the same group of general risks of pregnancy. 

So, once you have, particularly in the context of them not being prepared at that time to accept any risk, there is the prospect of significant disabilities which is the respondent’s means of describing the other risks.  Once you have ATD giving rise to a significant risk, and in the general risks of pregnancy by reason of the very way in which the respondent explains the risks to the patient, that is all about significant disabilities, the risks of significant disabilities, how can you discuss meaningfully with these parents or prospective parents, about the significant disabilities that are part of ATD without relating it to the other. 

It goes from looking at it without, as occurred, there is no connection but if they are properly informed about the 50 per cent risk of inheriting ATD that involves some significant disabilities, it means that that statistic that is trotted out under the general risks of pregnancy of 3 to 4, 4 to 5 per cent, is altered.  You cannot look at one without the other or alternatively, you have to say to them the significant risk of disability is increased 50‑fold than you are aware of and, in addition to that, you have, in effect, the 4 to 5 per cent but they are still related so as ‑ ‑ ‑

BELL J:   So your case becomes, had we known of the risk of ATD, we would not have proceeded with IVF?  But that was not the risk on the CSVT case that came home.

MR HIGGS:   Our case is that with Mr Wallace, he would accept the risk of temporary paralysis for the chance of a cure or better outcome.  Had he said, “I’m not prepared to even take that risk”, then the natural inference is he would not take into account, he would not accept the permanent risk.  He would not have to say that, it would be inferred.  That is the way patients speak with doctors and that is the way doctors who are acting reasonably would interpret that type of information being disclosed by the patient.

So there is nothing in principle, putting it another way, for someone to say, “Look, I am prepared to take on the permanent risk.  I am prepared to take on, at some point in time in the future, the risk of significant disabilities in having a child but I am not prepared to do that now”, which would have been the case, if properly advised.

BELL J:   Do you challenge Wallace v Kam?

MR HIGGS:   No, no, we say it fits within Wallace v Kam because there the test is the risks have to be distinct - they are not distinct in the way that I have been over and in addition to that - and that alone is not enough.  There has to be a willingness to accept, if properly advised, both risks, and here, because of the overlap it cannot be said, in our submission, that there was a willingness, being the appropriate test which reflects that the acceptance of risks has to be adjudged by reference to the subjective rather than objective test. 

You cannot say, as with Wallace v Kam, that these people were willing to accept the general risks as was Mr Wallace.  Mr Wallace clearly was willing to accept the risk, because for the small price of temporary paralysis he was able to overcome a significant, unremitting back pain that was life threatening that was not going to go away.  This is very, very different.  Here, these people are inquiring as to whether or not they will even go to the step of down the track entering ‑ ‑ ‑

BELL J:   Mr Higgs, I think we have the point.  Can I just raise this with you?  In relation to the claim insofar as it concerned the ATD risk that came home, was there some question about the damages for that?  Am I right in understanding that though the child has ATD, he has not ‑ ‑ ‑

KEANE J:   He is currently asymptomatic.

MR HIGGS:   He is currently asymptomatic which was always foreseeable because it was always likely that the symptoms, if they were to arise, were to arise in adulthood and he would ‑ ‑ ‑

BELL J:   So your claim for damages by the applicants was focused on the CSVT.

MR HIGGS:   Well, that was the major part of the claim but it was not an insignificant part of the claim that they wanted damages for the cost of the IVF, bearing the child, pain and suffering of having the child and the

like, those general damages that are available because of Cattanach v Melchior.

BELL J:   All right.

MR HIGGS:   But I concede that a lot of time and the main issue was the link between the breach and the stroke.  Thank you, your Honour.

BELL J:   Thank you, Mr Higgs.  Mr Kirk.

MR KIRK:   Thank you, your Honours.  Just dealing with your Honour’s question, going straight to it, if I may?  If your Honours go to the application book at page 94 in the trial judge’s judgment, paragraph 289.

BELL J:   Yes.

MR KIRK:   It was quite clearly established there was no damage at all from the ATD, for the reason it was asymptomatic.  The whole substance of my learned friend’s submissions in writing and orally is directed to seeking to blur the two risks and run them together.  Can I start briefly by comparing that to Wallace v Kam.  Your Honours, I know, are very familiar with that case but there, there were two risks arising out of the one operation:  temporary nerve damage and permanent paralysis.  If any two risks were going to be connected, it is much more likely they were than the risks here and yet, your Honours distinguished those risks.

In relation to the risks here, if I can briefly remind your Honours of the acceptance of the general risk, if your Honours go to page 139 of the application book, at the bottom of the page, there is the extract from the signed request for treatment form which refers to “pink sheets” and your Honours will note the last line:

that the intended outcome might not be achieved.

But then, over the page, paragraph 45, there is reference to the “pink sheets” which referred to the risk any person seeking to become a parent must accept, namely there is a general risk of abnormalities but even a further risk, that for the particular form of IVF involved which is called ICSI, there is a higher risk because it is a very particular type of IVF.

Then it was dealt with in cross‑examination, which comes out in paragraph 46, that is of the first applicant, who accepted that, yes, of course, she accepted those risks and no attempt was made below to suggest that there should have been some particular warning about CSVT and in her Honour President Beazley’s judgment at page 132 of the application book, her Honour gives a summary of ATD and distinguishes it from CSVT, so ATD is not all that uncommon in the scheme of things.  As my friend said, it is one in every 250 people.  It is a disease of adulthood; it is manageable, it is relatively mild.  Your Honours will see in the last four lines:

CSVT itself is a very rare condition . . . 0.67 children per 100,000 -

and it is potentially catastrophic and as her Honour brought out then at page 181 of the application book at paragraph 190 in the fifth line:

It is a different matter to aggregate the risks here, namely, of a child being born with ATD and of a catastrophic neonatal event, which are different in kind from each other and occurred at different times.

So it is removed by decades in time in terms of ATD becoming symptomatic, as opposed to a stroke four or five days after birth in connection with a somewhat difficult birth process; different in kind, different times, quite different risks.

My learned friend is right to accept that below much of the plaintiffs’ case was directed to seeking to show the two risks were linked and one could see on the surface of it, ATD being a blood disorder, that you might well stand back and say, well, hang on, if there is a blood disorder, why would not that be connected to a stroke and there was cross‑examination of three experts over, I think, two days where the issue was pursued uphill and down dale and as my learned friend correctly and fairly accepts, in the end the link just was not established for a whole range of interesting reasons, including that the blood system for a neonate works quite fundamentally differently from that for an adult and so though at first blush it might appear to be linked, in fact it just is not.

ATD being a relatively common condition you would have expected to see epidemiological evidence.  There was neither epidemiological evidence of any link - and we had a world expert, Professor Monagle, who also explained there was good reason to think biologically there was no link related to the haematological affects.  So, what my learned friend seeks to do is blur the two risks together in a way that was run and lost at trial.

In terms of saying the applicants were not prepared to accept a child with ATD that comes down reasserting there was a breach which is not disputed here and the breach was that my client, the IVF doctor, did not sufficiently warn about a genetic risk and did not pursue them and say, well, have you seen the genetic counsellor.  That was his breach.  He was not expected to know anything about this particular condition.  It was quite acceptable for him to refer them off.

Factual causation is made out on a simple time and place basis.  If they had been warned, we actually fought about it at trial:  we lost.  The trial judge found they would not have gone ahead at least at that time and that means Keeden would never have been born, that unique individual would never have been born.  So, factual causation is established, but it has never been enough to simply establish breach and factual causation and my learned friend’s argument comes down in the end to saying, but the child would not have been born.

The issue here is legal responsibility and then one comes to Wallace v Kam and, in our respectful submission, for the reason I gave at the beginning, this is a stronger case than Wallace v Kam because the risks are so clearly and significantly different as opposed to the relationship there.  It is nothing like Chappel v Hart, as my friend suggested in written submissions, because there, you will recall, Mrs Hart did not want to end up like Neville Wran and yet that very risk came home, so again it was a failure to warn about a particular risk came home. 

It was no part of my client’s duty to warn about this risk, CSVT is extraordinarily rare, thank goodness.  It was just a tragedy and it is no different a tragedy than if Keeden had been injured in the car on the way home or in the playschool five years later.  The same argument would have been available, but for your negligence he never would have been born, and that has never been enough.  If it please the Court.

BELL J:   Mr Higgs.

MR HIGGS:   One, we are not seeking to - it is not blurring the distinction between the two duties and it is not correct, with respect, to say that it was not within the ambit of the respondent’s duty to warn of significant risk including the CSVT.  The answer to that at trial, which is accepted, that there was a warning about CSVT, but not a proper warning, not a warning - it was a warning in terms of significant risks and if you were going to give the warning in that regard, as was appropriate, including CSVT which was within his domain and there was a significant risk that was flowing from ATD, then it should be lumped together.  It is not relevantly separate and distinct in relation to ‑ ‑ ‑

BELL J:   The breach that was found related to the failure to adequately follow up on advice concerning the risk of ATD.

MR HIGGS:   That is so, but then in relation to normative causation you have to ask, well, in relation to the risk that did come home, is it relevantly linked and it is relevantly linked because of the overlap with significant disabilities which was acknowledged in the very way in which the risk was

warned of and, secondly, it is not like a car accident as my learned friend has submitted.

All of the evidence about the stroke was that it was for a multitude of reasons, over a period of time, that are known and to a degree unknown, but all relating to the baby in utero being set up for the stroke or being vulnerable to thromboses that occur as a result of childbirth.  So it is not like the car accident which is a separate event.  It is to do with ‑ ‑ ‑

BELL J:   The fact that the child was born.

MR HIGGS:   No, it was to do with both the fact that the child was conceived which was part of this doctor’s duty to advise these parents about in relation to whether ‑ ‑ ‑

BELL J:   I should have said that, Mr Higgs ‑ ‑ ‑

MR HIGGS:   No, I am sorry ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ the fact that the child was conceived and your complaint is that but for the breach the child would not have been conceived.

MR HIGGS:   No, but for the breach, they would not have taken on the risk of ATD or the general risks because just like Mr Wallace, if he had have said, “I’m not going to take the relatively less serious outcomes”, by inference we are not going to take extra - the risks of the extra ways in which their child could potentially have a significant disability. 

Really it is in terms of timing and the importance of this duty of care as opposed to the duty of care that attaches to treatment, one asks what then is the worth of the rights that were decided upon quite generously by this Court in Wallace v Kam, if it can be defeated by simply saying, well, down the track, you are going to have a child anyway so therefore, it does not matter because you just, you know, face the same sorts of circumstances, when in fact, as here, down the track, what would happen if these people had been properly warned, they would be very different risks that they would be prepared to undertake, that could lead to significant disabilities over an array of things.

BELL J:   Thank you, Mr Higgs.

MR HIGGS:   They are our submissions.

BELL J:   We are of the opinion that there is no reason to doubt the correctness of the decision of the Court of Appeal.  Special leave is refused with costs. 

The Court will now adjourn to reconstitute.

AT 11.51 AM THE MATTER WAS CONCLUDED