Waller v James

Case [2006] HCA 16

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

Matter No S231/2005

KEEDEN WALLER (BY HIS TUTOR
DEBORAH WALLER)  APPELLANT

AND

CHRISTOPHER JAMES & ANOR  RESPONDENTS

Matter No S232/2005

KEEDEN WALLER (BY HIS TUTOR
DEBORAH WALLER)  APPELLANT

AND

BRIAN HOOLAHAN  RESPONDENT

Waller v James
Waller v Hoolahan
[2006] HCA 16
9 May 2006
S231/2005 and S232/2005

ORDER

In each matter, the appeal is dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P W Bates for the appellant (instructed by Autore and Associates)

S J Gageler SC with J K Kirk for the respondents (instructed by Blake Dawson Waldron)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Waller v James

Waller v Hoolahan

Torts – Medical negligence – Wrongful life – Agreed for the purposes of separate questions at first instance that respondents negligently failed during in vitro fertilisation (IVF) program and antenatal care to investigate and advise or warn parents in relation to genetic condition of the father where the condition posed a risk to the appellant child – Child conceived with inherited genetic condition – Child suffered serious disabilities as a result of the inherited genetic condition – Whether child can recover damages from the respondents.

Duty of care – Medical practitioners and medical service providers – Whether respondents owed the child a duty of care to investigate and advise or warn parents in relation to the risks of the inherited genetic condition, enabling parents to make informed decisions about IVF or termination of pregnancy – Foreseeability of risk to the appellant – Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury – Vulnerability of the appellant – Need to distinguish duty of care from other elements of negligence – Relevance of duty of care owed to the appellant's mother – Whether duty of care owed to the appellant included duty to terminate life – Whether such a duty admissible in law.

Damage – Whether a life with disabilities is actionable damage – Whether it is possible to prove damage by comparing a life with disabilities with non-existence.

Damages – Assessment – Measure of damages – Compensatory principle –Non-existence as a comparator – Comparison to child born without genetic condition and consequent disabilities – Whether claim for special damages quantifiable – Whether only special damages may be awarded.

Public policy – Principle of the sanctity of human life – Whether life is capable of constituting a legally cognisable injury – Effect on disabled people of awarding damages for wrongful life – Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects – Whether disabled child could sue his or her mother…

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Details
AGLC
Waller v James [2006] HCA 16
Case
[2006] HCA 16
Decision Date

CaseChat Overview and Summary

The case of *Waller v James* involved a child, Keeden Waller (the appellant), suing medical practitioners and a fertility clinic (the respondents) for negligence. The dispute arose from the appellant's birth with a serious genetic condition, Anti-thrombin 3 (AT3) deficiency, which led to significant disabilities. The parents had undergone an in vitro fertilisation (IVF) procedure, and it was agreed for the purposes of the proceedings that the respondents had negligently failed to investigate and advise or warn the parents about the genetic risk of this condition, which posed a danger to their child.

The central legal issues before the High Court of Australia were whether the appellant, as the child born with the genetic condition, could recover damages from the respondents. Specifically, the court had to determine if the respondents owed a duty of care to the unborn child to investigate and warn the parents about the genetic risks, thereby enabling them to make informed decisions regarding IVF or pregnancy termination. The court also had to consider whether a life with disabilities constituted actionable damage and if damages could be assessed by comparing such a life to non-existence.

The High Court, in dismissing the appeals, applied established principles of negligence. The court distinguished between a claim for physical injury arising from negligent medical care during pregnancy or birth, which is legally uncontroversial, and the claim for "wrongful life" in this case. While acknowledging the respondents' duty of care to the parents, the court ultimately found that a duty of care was not owed to the child in the manner required to establish a cause of action for wrongful life. The reasoning involved complex considerations of public policy, including the sanctity of human life and the potential impact of such claims on disabled individuals and familial relationships, as well as the difficulty in quantifying damages by comparing a life with disabilities to non-existence.

The appeals were dismissed, meaning the appellant was not permitted to recover damages on the basis of a wrongful life claim. The court's decision upheld the principle that while medical practitioners owe a duty of care to their patients, this duty does not extend to a right for a child to claim damages for being born with a disability, even if that disability was a result of negligent advice to the parents.

Orders

Orders of the court

1. In each matter, the appeal is dismissed with costs.

Background

Background to the litigation

On the contrary, in several respects, the agreed statement of facts is seriously deficient[8]. This Court must therefore do the best it can with the agreed facts. It is not permissible to fill in evidentiary gaps in the agreed statement. One of the risks occasioned by the procedural course adopted is that the agreed statement may not provide sufficient detail to conclude that a cause of action exists. Alternatively, the statement may be so sparse in content that the detail that helps to produce a proper outcome to the application of the law may be lacking or unconvincing. In that event, the party who is endeavouring to establish a cause of action will fail in that endeavour[9].[8]Cf Waller (2004) 59 NSWLR 694 at 704-705 [46]-[55].[9]E (A Minor) v Dorset County Council [1995] 2 AC 633 at 694 per Sir Thomas Bingham MR.The facts Keeden Waller (the appellant) is the only child of Mr Lawrence Waller and Mrs Deborah Waller. He was born on 10 August 2000. Because the parents had experienced difficulty in achieving conception, they consulted Dr Noonan, who is a medical practitioner in general practice. Dr Noonan arranged for an analysis of Mr Waller's semen. This analysis disclosed a low sperm count and poor sperm motility. Accordingly, Dr Noonan referred the appellant's parents to Dr Christopher James (the first respondent). Dr James is an obstetrician and gynaecologist. He has a special interest in problems of human infertility. In his letter of referral to Dr James, Dr Noonan noted that Mr Waller suffered from "Factor III deficiency". This is a blood disorder which is also known as anti-thrombin 3 deficiency ("AT3"). This deficiency results in a propensity of the blood of the affected individual to clot in the arteries and veins. The letter also noted that, for this deficiency, Mr Waller had been prescribed the anticoagulant Warfarin daily. By inference, Mr Waller was duly undertaking this therapy. Mr Waller consulted Dr James on 3 March 1999. At that time, Mr Waller also disclosed his AT3 deficiency and the fact that he was taking Warfarin. Dr James arranged for Mr Waller to undergo fertility tests to be performed by Sydney IVF Pty Ltd (the second respondent) ("Sydney IVF"). These tests were aimed at determining whether there was a genetic reason for the condition of his sperm. The tests were not, as such, concerned with Mr Waller's AT3 deficiency, its genetic basis, or the potential it had to be passed on to his offspring. Subsequently, Dr James recommended to Mr and Mrs Waller an in vitro fertilisation procedure known as intra-cytoplasmic sperm injection. This involved harvesting eggs from Mrs Waller and injecting them with sperm taken from Mr Waller. The Wallers accepted this recommendation. On 11 November 1999, Dr James harvested nineteen eggs from Mrs Waller. Technicians in the employ of Sydney IVF successfully injected seventeen eggs with Mr Waller's sperm. On 14 November 1999, the first respondent transferred two embryos, produced in this way, to Mrs Waller's uterus. On 27 November 1999, testing, arranged at Dr James's request, confirmed that Mrs Waller was pregnant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ GUMMOW J KIRBY J (dissent) HAYNE J CALLINAN J (dissent) HEYDON J (dissent) CRENNAN J (dissent)
On 10 August 2000 Mrs Waller gave birth to Keeden at the Shoalhaven District Memorial Hospital. The delivery occurred in the presence of Dr Phillip Paris-Browne, who was the obstetrician on call. Mrs Waller and the appellant were discharged on 14 August 2000. However, on 15 August 2000, Keeden was returned to the Hospital. He was diagnosed as suffering from a cerebral thrombosis. Questions for decision By a tutor, Keeden sued the respondents in negligence in the Supreme Court of New South Wales[10]. He claimed general damages for pain and suffering, special damages for the needs created by his serious disabilities and damages for a loss of earning capacity. With the consent of the parties, Studdert J, in that Court, posed two questions for separate determination in advance of a trial. These questions, in substance the same questions as were before this Court in Harriton, were[11]: "1.If the first, second and third [respondents] failed to exercise reasonable care in their management of the [appellant's parents], and but for that failure the [appellant] would not have been born, does the [appellant] have a cause of action against each of the said [respondents]; and2. If so, what categories of damages are available?"[10]The appellant also brought actions against Illawarra Area Health Service which was responsible for the operation of Shoalhaven District Memorial Hospital and Dr Paris-Browne. These actions were settled on 10 April 2003.[11]Waller [2002] NSWSC 462 at [3]. For the purposes of the proceedings it was agreed by the parties that the respondents should have advised Mr and Mrs Waller that Mr Waller's AT3 deficiency was genetic and that it was therefore susceptible to being transferred to his children. It was also agreed that had such advice been given, Mr and Mrs Waller would have (1) deferred undergoing artificial insemination until methods were available to ensure that only embryos without the AT3 deficiency were transferred; or (2) used donor sperm avoiding that risk; or (3) terminated the pregnancy upon discovery of the risks of a child being born with serious genetic disabilities. An action for physical injuries Significantly, in his statement of claim, Keeden alleged that Dr Hoolahan was negligent not only in failing to warn the parents of the risk of his acquiring AT3 deficiency but also in respect of the management of Mrs Waller's pregnancy, his delivery and the administration of neo-natal care. The latter allegations mean that the case against Dr Hoolahan is materially different from that brought against Dr James and Sydney IVF. It is a claim arising out of alleged physical injuries. Such a claim is legally uncontroversial. It presents no novel issue of legal principle. As is apparent from the questions posed, these appeals concern the liability of Dr Hoolahan only in so far as the particulars of negligence alleged an entitlement to recover on the basis of "wrongful life". The decision of this Court will have no direct effect on Dr Hoolahan's liability with respect to Keeden's claim for physical injuries[12]. That claim will fall to be decided by the Supreme Court on the basis of familiar negligence doctrine. [12]See Waller [2002] NSWSC 462 at [8].The appellant's disabilities

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW J, HAYNE J,

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