Waller v James

[2015] NSWCA 232

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Waller v James [2015] NSWCA 232

Hearing dates:

10 & 11 June 2014

Decision date:

13 August 2015

Before:

Beazley P at [1];
McColl JA at [215];
Ward JA at [234]

Decision:

1. Appeal dismissed;
2. The appellants to pay the respondent’s costs of the appeal.

Catchwords:

TORT – where parents of child born through in vitro fertilisation not given correct genetic information prior to IVF procedure – where child born with genetic disorder – where child suffers permanent disability as a result of stroke four days after birth

 

TORT – claim for infringement of right to plan family – whether claim for pure economic loss

 

NEGLIGENCE – duty of a medical practitioner – content and scope of duty – provision of information – duty to refer

 

NEGLIGENCE – causation – normative aspects – where risks of different adverse medical events are distinct

 

NEGLIGENCE – remoteness – whether harm within the scope of duty – whether harm reasonably foreseeable

  APPEAL – challenge to findings of fact – appellate restraint – where findings made by reference to both objective circumstances and matters subjective to witnesses

Legislation Cited:

Civil Liability Act 2002 (NSW)
Health Care Liability Act 2001 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Banque Bruxelles Lambert SA v Eagle Star Insurance Company Limited [1997] AC 191
Barnes v Hay (1988) 12 NSWLR 337
Breen v Williams [1996] HCA 57; 186 CLR 71
Caltex Oil (Australia) Pty Ltd v Dredge ‘Willemstad’ [1976] HCA 65; 136 CLR 529
Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 75 NSWLR 649
Cattanach v Melchior [2003] HCA 38; 215 CLR 1
Chapman v Hearse [1961] HCA 46; 106 CLR 112
Chappel v Hart [1998] HCA 55; 195 CLR 232
Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1
Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] AC 22
F v R (1983) 33 SASR 189
Fox v Percy [2003] HCA 22; 214 CLR 118
Gover v South Australia & Perram (1985) 39 SASR 543
Harriton v Stephens [2006] HCA 15; 226 CLR 52
Hawkins v Clayton [1988] HCA 15; 164 CLR 539
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Hill v Van Erp [1997] HCA 9; 188 CLR 159
Hughes v the Lord Advocate [1963] AC 837
Hunt & Hunt Lawyers v Mitchell Morgan Nominees [2013] HCA 10; 247 CLR 613
Jaensch v Coffey [1984] HCA 52; 155 CLR 549
Kenny and Good v MGICA [1999] HCA 25; 199 CLR 413
Kuhl v Zurich [2011] HCA 11; 243 CLR 361
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McFarlane v Tayside Health Board [2000] 2 AC 59
Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383
Moyes v Lothian Health Board 1990 SCT 444; [1990] 1 Med LR 463
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501
Overseas Tankships (UK) Ltd v The Miller Steamship Co [1967] 1 AC 617 (The Wagon Mound (No 2))
Overseas Tankships (UK) v Morts Dock and Engineering Co Ltd [1961] AC 388 (The Wagon Mound (No 1))
Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167
Perre v Apand [1999] HCA 36; 198 CLR 180
Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
Roe v Minister of Health [1954] 2 QB 66
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Rowe v McCartney [1976] 2 NSWLR 72
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tabet v Gett [2010] HCA 12; 240 CLR 537
Tame v New South Wales [2002] HCA 35; 211 CLR 317
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wallace v Kam [2012] NSWCA 82; [2012] Aust Torts Reports ¶82-101
Wallace v Kam [2013] HCA 19; 250 CLR 375
Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

Texts Cited:

Barker, Cane, Lunney and Trindade, The Law of Torts in Australia 5th ed, Oxford
H Luntz, in Assessment of Damages for Personal Injury and Death 4th ed (2002) Butterworths

Category:

Principal judgment

Parties:

Deborah Waller (First Appellant)
Lawrence Waller (Second Appellant)
Dr Christopher James (Respondent)

Representation:

Counsel:
D Higgs SC; E Peden (Appellants)
J Kirk SC; V Thomas (Respondent)

    Solicitors:
Stacks/Goudkamp (Appellants)
Ashurst Australia (Respondent)

File Number(s):

2013/169951

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

Waller v James [2013] NSWSC 497

Date of Decision:

06 May 2013

Before:

Hislop J

File Number(s):

SC 2001/67486

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants, Deborah and Lawrence Waller, are the parents of Keeden Waller, who was conceived through in vitro fertilisation treatment co-ordinated by the respondent, Dr Christopher James. Keeden was born with anti-thrombin deficiency (ATD), which he genetically inherited from the second appellant. Four days after his birth, Keeden suffered an extensive cerebral sinovenous thrombosis (CSVT), being a form of stroke. As a result, Keeden is, and will remain, profoundly disabled, and will require care for the remainder of his life.

The appellants brought proceedings alleging that the respondent was in breach of contract and had breached his duty of care to them by having failed to cause them to be informed of the hereditary aspects of ATD. They contended that, were it not for that failure, they would have deferred undergoing the IVF procedures until they could do so without risk of having a child with ATD, and that a result of this deferral would have been that they would not have had a child who suffered a CSVT. The appellants claimed damages for the costs of raising Keeden and for physical and psychological injuries they claimed to have suffered as a result of his disabilities.

The trial judge, Hislop J, gave judgment for the respondent, finding that although his duty of care extended to ensuring the provision of information relating to the inheritability of ATD, and he had breached that duty, causation was not made out, the scope of his duty did not extend to the harm suffered, and the loss suffered was too remote. A finding that Keeden’s ATD was not causally related to the occurrence of the CSVT was not challenged on appeal.

On the appeal, the appellants contended that, as a result of the respondent’s negligence, they suffered harm identified as a deprivation of their right to plan their family and reproductive future. The respondent, by notice of contention, disputed certain of the trial judge’s factual findings relating to whether the appellants would have obtained genetic counselling if the respondent had acted in the way the appellant contended he ought or, having obtained such counselling, whether they would have had Keeden. The scope and content of the respondent’s duty of care, breach, causation, remoteness of damage, contributory negligence and damages were all in issue.

Per Beazley P, McColl and Ward JJA agreeing

(1) There was no error in the factual findings challenged by the respondent. Appellate restraint was warranted in relation to those findings which were made by reference both to matters subjective to the witnesses and the objective circumstances. [62]-[71].

Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Fox v Percy [2003] HCA 22; 214 CLR 118.

(2) The appellants’ right to plan their family by choosing whether and when to have a child was an interest the infringement of which could give rise to a claim for economic loss. [129]-[130].

Hunt & Hunt Lawyers v Mitchell Morgan Nominees [2013] HCA 10; 247 CLR 613; Cattanach v Melchior [2003] HCA 38; 215 CLR 1.

(3) The respondent’s duty of care extended to the provision of information to the appellants relating to the importance of seeking genetic counselling and arguably to following up with the appellants as to whether they had done so. [131]-[137], [235]-[238].

Wallace v Kam [2013] HCA 19; 250 CLR 375; Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 75 NSWLR 649; Tame v New South Wales [2002] HCA 35; 211 CLR 317.

(4) The provision of a referral to a genetic counsellor by way of a post-it note did not constitute a breach of duty in the circumstances of this case. Rather, as the trial judge found, the respondent’s breach was in failing to adequately explain the reason for the referral. [138]-[144].

Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40; Gover v South Australia & Perram (1985) 39 SASR 543.

(5) The harm suffered by the appellants, being that consequent on Keeden’s CSVT, was not causally connected to the breach by the respondent of his duty of care, as the CSVT was coincidental, for legal purposes, to the inheritance of ATD, and the risks of each should not be accumulated. [185]-[195], [226]-[233], [239]-[252].

Cattanach v Melchior [2003] HCA 38; 215 CLR 1; Wallace v Kam [2013] HCA 19; 250 CLR 375; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870; Moyes v Lothian Health Board 1990 SCT 444; [1990] 1 Med LR 463; Kenny and Good v MGICA [1999] HCA 25; 199 CLR 413; Wallace v Kam [2012] NSWCA 82; [2012] Aust Torts Reports ¶82-101; Barnes v Hay (1988) 12 NSWLR 337; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459; Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167.

(6) The risk of Keeden suffering a stroke was not a risk of the same kind as being born with ATD but was encompassed within the normal risks of pregnancy and IVF that the appellants were willing to accept. In those circumstances, the harm suffered as a result of Keeden’s stroke was not within the scope of the risk created by the respondent’s negligence and was not relevantly foreseeable, and it was therefore too remote to be recoverable. [208]-[210], [239].

Judgment

INDEX

BEAZLEY P	1
Introduction	2
Issues on the appeal	13
Factual background
ATD	14
The appellants	20
The consultations with the respondent	24
Referral for genetic counselling	31
Decision to proceed with IVF	44
Keeden’s birth and CSVT	48
Challenges to factual findings	55
Consideration of the first finding	62
Consideration of the second finding	68
Content and scope of the duty of care	72
Trial judge’s finding on content of the duty of care	75
Submissions	82
Legal principles
Duty of a medical practitioner	90
Formulation of the content of a particular duty	94
The harm identified in Cattanach v Melchior	103
Principles relating to economic loss	113
The English cases	120
Consideration	129
A novel case?	133
Breach of duty of care
Trial judge’s reasons	138
Submissions	142
Consideration	144
Causation
Trial judge’s reasons	145
Submissions	157
Legal principles	167
Consideration	185
Was the damage too remote?	196
Other issues
Contributory negligence	211
Damages	212
Proposed orders	214
McCOLL JA	215
WARD JA	234

1. BEAZLEY P:

Introduction

2. The first and second appellants are, respectively, the mother and father of Keeden Waller. Keeden was conceived by intra-cytoplasmic sperm injection (ICSI), a type of in vitro fertilisation (IVF) treatment. The treatment had been co-ordinated by the respondent, Dr James, who practised as a general gynaecologist with a sub-specialty in infertility and IVF.

3. Keeden, who was born on 10 August 2000, has anti-thrombin deficiency (ATD), also known as Factor III Deficiency or AT3, which he genetically inherited from the second appellant. Four days after his birth, Keeden suffered an extensive cerebral sinovenous thrombosis (CSVT), being a form of stroke. As a result, Keeden is, and will remain, profoundly disabled, and will require care for the remainder of his life. The appellants are both full time carers for Keeden.

4. The appellants brought proceedings against the respondent alleging breach of contract and breach of the respondent’s duty of care to them as his patients.

5. A key aspect of the appellants’ case at trial, that Keeden’s ATD caused or materially contributed to the stroke he suffered when he was four days old, was rejected by the trial judge. That finding is not challenged on the appeal. However, the appellants contend that the respondent breached his contract and his common law duty of care in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They contended that had they been so informed, they would have deferred undergoing the IVF procedures in October/November 1999 until the respondent had identified methods to ensure that only embryos not affected by the AT3 mutation would be transferred to the first appellant.

6. As articulated on the appeal, the appellants identified the harm they suffered as a deprivation of their:

“… right to plan their family or reproductive future in terms of choosing if, whether and when they would undertake the moral and legal responsibility to rear and maintain a child.”

7. The appellants contended that this right to plan a family is a right recognised at law: Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [66]. The essence of the allegation was that the appellants had not been able properly to exercise their “right to plan their family” because they had not been given adequate information as to the inheritability of ATD and that the respondent caused this to occur by failing to inform them himself, give them an adequate referral, or follow up on whether they had been to see the genetic counsellor to whom he had referred them.

8. They argued that due to the respondent’s negligence, they unknowingly ran the risk of passing on the ATD gene, which was the very risk they would not have taken but for the respondent’s negligence. That risk came home: Keeden was born with the inherited ATD gene.

9. The appellants claimed for the cost of Keeden’s future care. They also claimed that the first appellant suffered from a chronic dysthymic disorder caused by or resulting from Keeden’s injuries and disabilities. Both the appellants claimed they had suffered an ongoing psychological injury caused by or resulting from Keeden’s disabilities.

10. The harm they suffered was not the birth of their child: see Cattanach v Melchior at [68]. The appellants submitted, by reference to the failed sterilisation cases, that the monetary value of the ‘joy’ of a child was irrelevant to their claim for damages, and that it was also irrelevant to a claim for damages such as theirs whether a child was healthy or disabled: Cattanach v Melchior at [179] and [78], respectively. They contended that at the very least, they were entitled to the cost of rearing and maintaining Keeden without regard to the extra costs attributable to the severe disabilities caused by his CSVT, although they did not abandon that claim. They also claimed to be entitled to damages for the cost of and for undergoing the IVF procedures and the birth, as, but for the respondent’s negligence, they would not have undergone the procedures when they did and Keeden would not have been born.

11. The respondent accepted that he owed a duty of care to the appellants, but defended the claim on the bases of scope of duty, breach, causation and remoteness of damage.

12. The primary judge, Hislop J, gave judgment for the respondent: Waller v James [2013] NSWSC 497. For the reasons that follow, the appeal against his Honour’s judgment should be dismissed.

Issues on the appeal

13. The appellants filed a notice of appeal on 2 August 2013. The respondent filed a notice of contention dated 29 August 2013. The notice of appeal and notice of contention raised the following six issues for consideration:

1. Scope of duty: Whether the primary judge erred in defining the scope of the respondent’s duty of care (notice of contention ground 1);

2. Breach of duty: Whether the primary judged erred in finding that the respondent did not breach his duty of care to refer the appellants to an appropriate person to inform them of the inheritability of ATD, as he provided the details of Ms Duggan, genetic counsellor, to the appellants on a post-it note (appeal ground 1);

3. Causation:

1. Whether the primary judge ought to have found that causation was established even if the ATD was not found to have caused or materially contributed to the CSVT (appeal grounds 2, 4, and 5);

2. Whether the primary judge erred in his factual findings that, had the respondent not breached his duty of care, the appellants would have sought and obtained advice as to the hereditary aspects of ATD, and would then have refrained from having a child using the second appellant’s sperm (notice of contention grounds 2 and 3);

4. Remoteness of damage: Whether the primary judge erred in finding that the damage claimed by the appellants was too remote to be recoverable (appeal ground 6);

5. Contributory negligence: If the respondent is found liable, whether the primary judge erred in failing to find that the damages recoverable by the appellants should be reduced for contributory negligence (notice of contention ground 4(a));

6. Damages: Whether the primary judge erred in the assessment of damages in the event of liability being established (appeal grounds 7 to 12; notice of contention ground 4).

Factual background

ATD

14. ATD is a genetic condition that can affect a person’s normal clotting pattern and can give rise to an increased risk of thrombosis.

15. The pattern of inheritance of ATD is autosomal dominant, which means that it is capable of being passed on to a child of either gender with only one parent suffering from the condition. There is a 50 per cent chance that a person who carries the ATD gene will pass that gene onto his or her child. Of those who carry the gene, approximately 50-60 per cent will develop symptoms over their lifetime. There is, accordingly, a 25-30 per cent chance that the child of a person carrying the gene will develop symptoms over his or her lifetime.

16. The condition is not rare and thousands of children are born with the condition in Australia each year. Professor Paul Monagle, a paediatric haematologist, reported a prevalence rate in the general population of approximately one in every 250 people.

17. ATD is generally understood as a disease of adulthood in that it does not usually become symptomatic in the form of a thrombosis until a person is in their twenties or thirties, although it may become symptomatic earlier. The condition can be managed, as it was in the case of the second appellant, through Warfarin, an anti-coagulant medication, and blood tests to monitor international normalised ratio (INR) levels. ATD rarely has any effect on children, and it is very uncommon for a neonate (a baby under four weeks of age) with ATD to suffer thrombosis. CSVT itself is a very rare condition, affecting, on the evidence of Associate Professor Evans, only 0.67 children per 100,000. This means that there is a 0.00067 per cent chance of a person suffering a CSVT during childhood.

18. In 1999, Pre-Implantation Genetic Diagnosis (PGD), being the genetic testing of embryos, was not available. Associate Professor David Amor, a clinical geneticist called by the appellants, gave evidence that:

“… in 1999 PGD for single gene disorders was yet to be performed in Australia, and was still regarded as an experimental technology with unproven accuracy.”

19. Associate Professor Amor said that if asked in 1999, he would have said there was a reasonable chance these tests would become available within the following three to five years, but this was not certain and they might not be available until quite a lot longer.

The appellants

20. The appellants were married in November 1997. At this time, the second appellant was aware that he suffered from ATD. He had been admitted to Wollongong Hospital in 1988 suffering from a deep vein thrombosis (DVT) and pulmonary embolism (PE), and remained there for about one month. He had been informed by the treating haematologist that his DVT and PE were attributable to his ATD.

21. The first appellant was aware of the second appellant’s condition. At around the time of their marriage, the first appellant suggested to the second appellant that he see a doctor to find out about the potential impact of his ATD on having children. The second appellant agreed to see a doctor. The records of the second appellant’s General Practitioner, Dr Noonan, contained an entry from December 1997 that read:

“5 Dec 1997   Factor III syndrome rpt Warfarin 5mgm …

left message with Kerry Duggan re info

8/12   Inherited disorder, need to be homozygous to have it will chase up details re tests avail”

22. The entry appears to have been made by Dr Noonan’s locum, Dr Miller. Neither Dr Miller nor Dr Noonan gave evidence and, as the primary judge recorded, neither the second appellant nor Ms Duggan recollected a consultation or any discussion of the matter. The primary judge commented that the note from 8 December may have been a record of the doctor’s own research. Nonetheless, the note does indicate that some enquiry was made by the second appellant about his condition and its inheritability shortly after the appellants married.

23. In March 1998, Dr Noonan referred the second appellant to Dr Ramakrishna, a haematologist whom he saw on 27 March 1998. It appears that either as a result of what he was told by Dr Ramakrishna, or because he misunderstood what he was told, the second appellant misunderstood the inheritability of ATD. After seeing Dr Ramakrishna, he understood that if his wife did not have the condition, it was impossible for him to pass it on to his children. The first appellant gave evidence that the second appellant told her, immediately after he saw Dr Ramakrishna, that they were “right to have kids”. The first appellant understood that there would be no impact on her children if ATD did not run in her family. The primary judge noted that the source of the second appellant’s erroneous understanding of Dr Ramakrishna’s advice was uncertain, but he accepted that the appellants were genuinely under this misapprehension.

The consultations with the respondent

24. The appellants gave evidence that they had attempted to conceive from the time of the second appellant’s consultation with Dr Ramakrishna, but without success. In January 1999, they consulted Dr Noonan who, on 18 January, referred them to the respondent.

25. The letter of referral from Dr Noonan to the respondent dated 18 January 1999 read:

“Subject - Ms Deborah Waller

DOB 11/6/74

Problem - Fertility assistance.

24 yr ♀

on [oral contraceptive] for 3 yrs continuously

No [history of] pregnancy

Married for 1 yr - trying to conceive

Husband (Laurie) has Factor III deficiency and takes Warfarin daily.

Please assess.”

26. The respondent was an accredited doctor with Sydney IVF. In Sydney IVF’s brochure, given to the appellants, the following information was provided:

“As well as fertility treatments, Sydney IVF also specializes in all aspects of genetic analysis to do with fertility and pregnancy, including prenatal testing, preimplantation genetic diagnosis, and specialized diagnostic tests for genetic diseases, such as cystic fibrosis and fragile X.

For couples with a family history of a genetic disease or who are known or suspected carriers for a genetic disease, prenatal or preimplantation (embryo) testing is recommended.

Men with extreme infertility due to the congenital absence of the vas deferens are possible carriers for genes associated with cystic fibrosis, and should consider genetic testing before starting an IVF program.

Genetic analysis can also be conducted for repeated miscarriage. This can determine whether the cause of the miscarriages is genetic, and what can be done to improve chances of pregnancy if that is or is not the case.”

(The basis of the statement in respect of prenatal or preimplantation embryo testing in this pamphlet and its asserted availability, given Associate Professor Amor’s opinion that such testing was in an experimental stage and was not available in Australia in 1999, was unexplained in the evidence.)

27. The appellants’ first consultation with the respondent was on 3 March 1999. The first appellant gave evidence that, at this time, she went to see the respondent because having children was important to her, and the second appellant agreed that he was “keen to have kids of [his] own”.

28. It was common ground that the second appellant’s ATD was referred to during the first consultation. The respondent’s notes from the first consultation included the following entry under the heading “Partner”:

“Lawrence 33 Car detailing Factor III def (warfarin) DVT + pulmonary embolus”

29. However, the second appellant gave evidence that he did not raise the issue of the inheritability of ATD with the respondent because he was relying on the advice of Dr Ramakrishna. He stated in cross-examination:

“Q. You didn’t raise the issue of possible transmission to kids with Dr James at any time, did you?

A. No. Because I’d been given the information from the haematologist …”

He also stated in his evidence that he had not told the respondent that the issue was important to him, nor that he found his ATD to be a burden. The appellants did not tell the respondent of the second appellant’s consultation with Dr Ramakrishna.

30. The respondent was cross-examined as to whether he knew, at the first consultation, of the second appellant’s concern about ATD being passed on to any child they had and gave the following evidence:

“A. … I do remember that neither [the first or second appellant] at that time or at other visits were unduly – were worried about [the second appellant’s] AT III deficiency.

Q. That’s the impression that you have?

A. That’s the strong impression I had.”

The respondent said that the appellants “certainly didn’t tell me they were worried” about the second appellant’s ATD deficiency being passed on.

Referral for genetic counselling

31. Notwithstanding this evidence, the respondent agreed that it was consistent with his obligation as a medical practitioner treating the appellants for infertility, including by way of IVF, to refer the appellants to a genetic counsellor, given the second appellant’s condition. The respondent agreed that the reason for such a referral was the need for the appellants to have access to a genetic counsellor to obtain information so that they could form a view as to whether or not they were concerned with the possible consequences of this condition being passed on.

32. In his original statement of evidence, the respondent said that based on his usual practice, he would have told the appellants to ring Ms Duggan to discuss the second appellant’s ATD “and its genetic aspects and if necessary, [Ms Duggan] will make arrangements for [the appellants] to see a geneticist at Wollongong Hospital”.

33. In his answers to interrogatories, the respondent explained that the purposes of suggesting that the appellants contact Ms Duggan were:

“(i)   so that she could discuss with them the AT3 condition and if necessary then make arrangements for them to see [a] geneticist at Wollongong Hospital

(ii)   for them to learn more about the AT3 condition, to ascertain the implications for a forthcoming pregnancy and so that they could obtain more information about the disease and its inheritance.”

34. In cross-examination, the respondent gave the following evidence:

“Q. The words to the effect of: Well, given your condition, you really need to see a genetic counsellor, Ms Duggan, so that you can be properly informed about the things that you should consider in order to make an informed choice; is that what you meant to convey.

A. Yes.

Q. It was your view that she should be seen by them, so that they can be armed with information as to the effect that the condition could have on their children?

A. I don’t know if that was verbatim, but that was the gist of it.

Q. That is something that you would expect to be said by you in order to make it plain to them why it was they were going off to see her, correct?

A. Correct.

Q. It wouldn’t be sufficient to simply say something along the lines of, ‘Ring Kerry Duggan to discuss Lawrence’s factor III condition’, would it?

A. I wouldn’t expect so.”

35. The respondent agreed that it was his obligation to give the appellants the opportunity to understand the genetic consequences of ATD and to alter their course towards pregnancy, if they so wished, on the basis of that understanding and for that purpose to refer them to a genetic counsellor. He also accepted that it was desirable for the appellants to have up to date information, as knowledge in this area was in a state of rapid development, particularly where, as was the position in the case of the appellants, there was a question as to fertility and there was a significant possibility that they would undergo IVF treatment. The respondent said that by referring the appellants to Ms Duggan at Wollongong Hospital, he gave them that opportunity.

36. A formal letter of referral for genetic counselling was not necessary for a consultation with Ms Duggan. The respondent’s usual practice was to provide patients with a business card for Ms Duggan. This practice was not the subject of criticism. However, on this occasion, the respondent gave the appellants a post-it note with Ms Duggan’s details, as follows:

“GENETIC COUNSELLOR

Kerry Duggan

4xxx xxxx”

The telephone number was that of Wollongong Hospital.

37. The respondent said that the only reason he could think of for providing Ms Duggan’s details on a post-it note was that he had run out of her business cards. The respondent did not make a note of having referred the appellants to Ms Duggan in the appellants’ patient file.

38. The appellants’ evidence was that there had been no discussion of the hereditary aspects of ATD at the first or any subsequent consultation with the respondent. There was a dispute at trial about what the respondent said when he handed the post-it note to the appellants and whether its purpose was adequately explained. According to the appellants, the matter being discussed at the time the respondent gave them the post-it note was whether the second appellant’s ATD may have caused his infertility. The respondent had told them that that was unlikely, but had said, “[r]ing that lady about that”.

39. The respondent said he was certain that he did not say at the first consultation that there may be a genetic aspect to the second appellant’s infertility. He said he would not have done so without seeing the repeat sperm tests.

40. The trial judge accepted, at [134], that it was probable that the appellants had asked the respondent at the first consultation whether ATD could have caused the second appellant’s infertility. His Honour was also satisfied that had the respondent specified the reason for the referral to a genetic counsellor he would have asked or would have been told that the second appellant had consulted Dr Ramakrishna.

41. The absence of any reference by the appellants to Dr Ramakrishna in their consultations with the respondent confirmed his Honour’s conclusion, at [136], that inheritability issues were not raised at any of the consultations. His Honour added that, even on his own evidence, the explanation the respondent gave the appellants as to the purpose of the genetic counselling fell short of what the respondent himself considered to be adequate.

42. The second appellant said that he rang the telephone number provided for Ms Duggan once, but the phone rang out and he made no further attempt to contact her. The first appellant did not attempt to call the number. The appellants did not inform the respondent that they had not spoken to Ms Duggan and the respondent did not ask them whether contact had been made.

43. The respondent did not receive any correspondence or reports from Ms Duggan, which was usual when he referred patients to her. Nor did the respondent make a note that he had made the referral. He accepted that it was unreasonable not to keep contemporaneous notes to prompt a recollection of a referral.

Decision to proceed with IVF

44. After the first consultation, there were four further consultations with the respondent. It was unclear on the evidence whether the second appellant attended the further consultations. On 28 July 1999, the appellants informed the respondent that they wished to proceed with IVF. On 4 October 1999, they signed a form entitled “Sydney IVF: Request for Treatment Form”, with the procedures “In vitro fertilization + embryo transfer (IVF+ET)” and “Intracytoplasmic sperm insertion (ICSI)” selected from a list of treatment options. The ICSI procedure involved a single sperm being injected directly into an ovum in the laboratory, followed by the fertilised ovum being implanted into the uterus. The signed Request for Treatment form contained the following acknowledgements:

“… that there are risks to the procedure(s) as detailed in ‘the pink sheets’ and in the specific written information

that these risks include complications

that the intended outcome might not be achieved.”

45. “The pink sheets” referred to were a fourteen page document entitled “Detailed Information about IVF and GIFT including Risks, Hazards and Responsibilities”. It outlined some of the risks of abnormalities in children born of IVF, as follows:

“If pregnancy occurs then there is a chance that the baby or babies may be born abnormal, as there is with pregnancies after natural conception. With straightforward IVF and GIFT … the risk of significant abnormalities at birth is around 2-3 percent of births.

The risk could be higher (possibly 4 or 5 percent of births) in pregnancies that occur with very extreme male-factor infertility, typically involving the procedure of intracytoplasmic sperm injection (ICSI).”

46. In cross-examination, the first appellant acknowledged that she would have read this document in 1999. By reference to the document, she was cross-examined on her understanding of the risks of pregnancy and the ICSI treatment:

“Q. You understood at the time that there were always going to be potential risks with any pregnancy?

A. I guess so.

Q. Including risks to the child?

A. I guess so.

…

Q. So you understood at the time that there were potential additional risks if ICSI was used?

A. I guess so.

Q. And you were prepared to accept those risks?

A. Correct.”

47. The IVF treatment began on 11 November 1999 with ovum being removed from the first appellant. One fertilised embryo implanted into the first appellant’s uterus developed into a successful pregnancy. On 22 December 1999, the first appellant was referred to Dr Hoolahan by the respondent for management of the pregnancy.

Keeden’s birth and CSVT

48. The first appellant presented to the labour ward at 8:30 pm on 9 August 2000. Keeden was delivered the next day at 1 pm. In a letter to the respondent dated 16 August 2000, Dr Hoolahan reported:

“[The first appellant’s] recent pregnancy was uncomplicated apart from a low grade rise in blood pressure towards the end which did not require treatment. She went into spontaneous labour at 6 days overdue and had a normal vaginal delivery with a small second degree tear, of a 4045 male and they had no post natal problems whilst in hospital.”

49. Keeden was discharged at 10:30 am on 14 August 2009. A discharge summary, dated 21 August 2000, stated:

“… He was seen by Mark de Souza in the newborn period and checked by him at discharge on the third postnatal day. The baby was making good progress and there was no neurologic abnormality.”

50. However, the appellants returned to the emergency department of the hospital with Keeden in the early hours of the following day, at 1:08 am. Medical reports indicate that he was jerking while screaming, had twitching movements in the right side of his face and arm and was suffering from seizures. He was taken to Westmead Children’s Hospital. Neuroimaging evidence established that Keeden had suffered an “extensive thrombosis in the cerebral venous sinus system”, which is a type of “Neonatal (or Perinatal) Stroke”.

51. The primary judge’s summary of the medical evidence of possible risk factors for Keedon’s CSVT, at [244], was as follows:

“Dehydration - This was one of the most common precipitants of thrombosis. Keeden had borderline hydration. Keeden's degree of weight loss was very common. It was within acceptable limits.

Preeclampsia - It is unclear from the hospital notes how firmly this diagnosis was made. The [first appellant] was really on the edge of the criteria of the diagnosis of preeclampsia. If it was preeclampsia it was extremely mild. It is debatable in any event if preeclampsia is a possible risk factor.

Prolonged second stage of labour - the second stage of labour was two hours 45 minutes. This is within the normal range of 2-3 hours. It is not known if a longer second stage is a risk factor for CSVT. It is plausible though there is not a lot of evidence to support it.

Complication at birth - CSVT has a common association with complicated deliveries. This delivery was not completely normal but it was at the lower end of the complication spectrum.

Foetal distress - the suction etc may be evidence of foetal distress but the five minute Apgar score of 8 probably would be interpreted as evidence that there had not been foetal distress.

Head position - Associate Professor Evans was unsure of any reason head position should be more or less a risk factor.”

52. Associate Professor Evans, Professor Amor (clinical geneticist) and Professor Monagle (paediatric haematologist) were cross-examined as to whether these complications could be associated with CSVT. Professor Monagle gave evidence, with which Associate Professor Evans agreed, that:

“… [T]here are probably multiple events that, combined, lead to a thrombosis, and some of them we will know about and some we won’t know about, and so if you just look at any one of those events in isolation it’s often [hard] to prove a linkage, but the combination, so I think a little bit of preeclampsia, a longer labour, a malposition, some dryness, you know, all of those things combined give you a better set up for getting a thrombosis.”

53. Mr Kirk, counsel for the respondent, posed the following question to the two experts:

“[W]ould it be fair to perhaps summarise it this way: There is no certainty about any of these factors being risk factors for Keeden, but it is possible that these complications of the delivery were contributories [sic] to the CSVT event in Keeden?”

Associate Professor Evans responded:

“Yes. I mean, I think I would agree with all that. Almost certainly in all these cases you’re dealing with multiple factors coming together.”

Professor Monagle also said that he agreed.

54. In their joint expert report on causation, Associate Professor Evans, Professor Amor and Professor Monagle agreed as to the general risk of thrombosis in neonates or children, as well as the association of that risk with ATD, stating:

“We all agree that the risk of symptomatic thrombosis in neonates is extremely low and remains very low during childhood. In 1999, there were less than 10 case reports of thrombosis in neonates that were possibly associated with AT deficiency.”

Challenges to factual findings

55. It is convenient in the first instance to consider the two factual findings made by the trial judge at [174] and [215] that are subject to challenge: see grounds 2 and 3 of the notice of contention.

56. The first finding, at [174], was that the appellants’ misunderstanding of the inheritability of ATD would have been remedied but for the respondent’s breach in not properly explaining the reason for the referral for genetic counselling and in not following up with the appellants whether they had consulted Ms Duggan. The respondent contended that the appellants’ misunderstanding would not have been corrected, because even had the breach not occurred, he would have discovered and accepted the appellants’ erroneous understanding of Dr Ramakrishna’s advice, and that would have been the end of the matter.

55. The second challenged finding, at [215], was “that properly informed [the appellants] would have elected not to have Keeden”. The respondent contended that if the appellants had obtained further appropriate genetic advice, they would still have decided to proceed with the IVF treatment at the time they did.

56. The respondent submitted that the objective circumstances relating to the factual findings under challenge were as follows. The second appellant was diagnosed with ATD in 1988 after suffering a pulmonary embolism. He was aware his mother had had clots and that therefore the condition could run in families. Notwithstanding that he had been concerned and shocked by his diagnosis, the second appellant continued to do jobs involving hard manual labour, having taken the view that such jobs only required him to take precautions. He did not follow the directions of his doctor to have monthly blood tests, as he said he got to know his body and how the medication worked. He continued surfing, notwithstanding that it was a surfing incident that had led to the pulmonary embolism in 1988.

57. The appellants had been actively trying to conceive since February 1998 and were anxious to have children. Prior to February 1998, they had used contraceptives, which the second appellant conceded was not “100% safe”. Once they realised they were having difficulty with conception, they promptly sought advice and assistance from a fertility doctor and were prepared to undergo IVF treatment.

58. The second appellant did not seek advice as to the inheritability of ATD until December 1997 when he consulted a locum GP, Dr Miller, who referred him to Dr Ramakrishna. The second appellant misunderstood the information provided. Neither appellant sought updated information in respect of the inheritability of ATD between the second appellant’s consultation with Dr Ramakrishna and their first consultation with the respondent in March 1999.

59. The respondent was not a geneticist, but was aware of the condition of ATD and that it may have a genetic element. The expert evidence of Dr O’Loughlin and Professor Saunders was that the respondent could not reasonably be expected to have expertise in relation to the precise mode of inheritance of ATD. The respondent knew of Dr Ramakrishna and believed him to be an experienced haematologist.

Consideration of the first finding

62. The respondent accepted that, on the objective evidence, had he taken the steps the trial judge held, at [124], he should have taken, he would have come to know that the second appellant had consulted Dr Ramakrishna. Those steps included inquiring of the appellants as to their knowledge of the inheritability of ATD and the source of that knowledge: see below at [139]. He contended that this would have occurred either at the initial consultation in the course of explaining the purpose of the referral to a genetic counsellor, or in following up whether the appellants had seen Ms Duggan. In the latter case, he submitted that he would have asked why they had not done so. In either case, it was likely that the second appellant would have explained that he already had advice from Dr Ramakrishna.

63. There was a basis in the evidence for this submission, as the second appellant agreed that if the respondent had asked whether the appellants had been to see Ms Duggan, and if not, why they had not, the second appellant would have told the respondent that he had seen a haematologist, Dr Ramakrishna, about his condition. He further said that if asked as to what Dr Ramakrishna had said, he would have responded that he had been told that both he and his wife needed to have the same condition for ATD to be inherited by their children.

64. The respondent submitted that the critical issue was the probable course of events after the respondent had ascertained that the appellants had already sought and received advice from Dr Ramakrishna. He contended that on the evidence, had that point been reached, no further action would have been taken.

65. However, the respondent’s challenge to the first finding overlooks his own evidence in which he conceded that the appellants “needed” to have up-to-date information. He qualified this statement by saying that it depended what had happened in the period between seeing Dr Ramakrishna and the date of the consultation with him. However, that qualification is of little import in circumstances where the respondent did not have any relevant knowledge of the condition to know whether there had been any updated information and he knew that this was an area where medical knowledge was changing rapidly.

66. Further, the respondent agreed that had the appellants told him that the second appellant had, a year previously, been to see Dr Ramakrishna, whom the respondent knew, he would probably have telephoned Dr Ramakrishna. It is likely therefore that on speaking to Dr Ramakrishna he would have discovered the appellants’ misunderstanding.

67. In my opinion, the respondent has not established that this finding was wrong, or that the finding of fact for which he contended ought to be made.

Consideration of the second finding

68. The respondent acknowledged that the appellants’ evidence that they would not have had Keeden had they been in possession of the correct information as to the inheritability of ATD was admissible and that his Honour had appropriately exercised caution in determining the weight to be given to that evidence. The respondent further accepted that his Honour had correctly approached the fact finding exercise as to the appellants’ subjective intentions by reference to the objective circumstances: Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [89]. That being so, the respondent submitted that this Court did not suffer the disadvantage of not having seen and heard the witnesses and could thus engage in the fact finding process without the usual restraint that an appellate court exercises in relation to the factual findings of a trial judge: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [22]-[25].

69. His Honour made the finding at [215] after considering matters that could be objectively determined as well as matters that were subjective to the appellants. Where his Honour considered that evidence as to subjective matters was undermined in cross-examination, he said so. Nonetheless, his Honour accepted the appellants’ evidence that they would not have proceeded with IVF when they did, notwithstanding the objective circumstances to which the respondent directed attention.

70. In those circumstances and giving full weight to the obligation of this Court in an appeal governed by the Supreme Court Act 1970 (NSW), s 75A and the principles stated in Fox v Percy, the respondent has not established a basis to interfere with his Honour’s finding at [215].

71. Accordingly, I would reject grounds 2 and 3 of the respondent’s notice of contention.

Content and scope of the duty of care

72. Although the appellants chose to advance their argument on the appeal by first considering the issue of causation, questions of causation require, as a preceding step, the determination of the nature, scope and content of the duty of care the respondent owed to the appellants. Accordingly, I consider it not only appropriate but necessary first to consider the content and scope of the duty of care owed by the respondent to the appellant: see Kuhl v Zurich [2011] HCA 11; 243 CLR 361 at [19] and [20].

73. The trial judge made findings that the respondent owed a duty of care of a specific content: at [91]-[92]; see also at [257]. His Honour separately made a finding that the harm suffered did not fall within the scope of the duty of care that the respondent owed to the appellants: judgment at [263]. Given the separate consideration his Honour gave to the content and the scope of the duty of care, I propose to use the language of “content” when considering the challenge to his Honour’s findings at [91]-[92] and [257].

74. I have done so notwithstanding the use of the language “scope of duty” in the respondent’s challenge to the finding at [91]-[92] and [257] in ground 1 of the his notice of contention, and more particularly, notwithstanding that the High Court authorities use the language of “content” and “scope” interchangeably: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 discussed below. In Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Gummow J observed, at [58], that the essential issue on the appeal in that case was the “content of the duty of care”. At [97] his Honour found that the trial judge in that case had “erred in merging the question of the scope or content of the duty of care and the question of breach”.

Trial judge’s findings on content of the duty of care

75. On the approach taken by his Honour, an important consideration in determining the content of the duty of care was the fact that the respondent did not have the primary duty to advise the appellants on hereditary issues. However, the respondent knew that the second appellant had ATD and that it was possible that a child of the appellants might inherit the condition. His Honour, at [88], considered that the evidence of Dr O’Loughlin and Professor Saunders supported the existence of a duty of care to ensure that the appellants were adequately informed and understood the hereditary aspects of ATD or had decided for themselves that they did not require that information, and that this involved a duty to follow up the referral to Ms Duggan.

76. In that context, his Honour, at [91], found that the duty of care owed to the appellants was:

“… to ascertain if [the appellants] were aware that ATD was potentially inheritable; to explain to [the appellants] the purpose of the proposed referral [to a genetic counsellor]; to properly refer [the appellants] to an appropriate person for the obtaining of the [genetic] information subject to [the appellants’] agreement … to ascertain if such consultation had taken place and if not to make further inquiry as to the reason why the consultation had not occurred and to reinforce the reasons why it would be desirable to consult with the genetic consultant or a geneticist.”

77. His Honour’s findings at [92] and [257] were to the same effect.

78. His Honour did not accept that the respondent’s duty of care included a duty to raise with the appellants the possibility of using donor sperm as a means of potentially avoiding transmission of ATD to a child they might conceive, as the appellants had alleged at trial. The appellants did not challenge that aspect of his Honour’s judgment.

79. His Honour dealt with “scope of duty” at [262]-[263] by reference to the harm claimed to have been suffered. He considered harm in the terms framed by the appellants, namely, economic loss associated with having, raising and caring for Keeden, and physical injury, including psychological damage. His Honour accepted the respondent’s submission that harm of that type was consequent upon Keeden suffering permanent physical disability as a result of the CSVT.

80. His Honour held, at [263], that such matters were not within the scope of the respondent’s duty of care, as damage of the nature claimed was not a reasonably foreseeable consequence of the acts and omissions alleged against the respondent. His Honour reiterated that the respondent’s breach concerned a failure to cause information to be obtained in relation to ATD. However, the harm suffered by the appellants was caused by an event which was not reasonably foreseeable. In this regard, his Honour accepted the unchallenged evidence of Professor Monagle who said:

“If you are asking me whether in 1999, there was any way to predict that the paternal AT … deficiency may have led to the clinical outcome for Keeden Waller, I am very clear that the answer is no, based on all the information provided in this and my primary report.”

81. His Honour concluded that the harm suffered by the appellants was not within the scope of the overall duty owed by the respondent.

Submissions

82. The respondent challenged his Honour’s findings as to the content of the duty of care. He made no challenge to his Honour’s finding of scope of the duty of care which was in his favour, accepting as correct the proposition that the scope of the duty was dependent on the foreseeability of the harm suffered. That harm, as the trial judge accepted, arose from Keeden suffering CSVT, or, put more generically, from the general risks of pregnancy, including CSVT, which were independent of any genetic condition.

83. The respondent contended that a duty of the content found by his Honour did not exist. He relied upon the terms of the letter of referral, set out above at [25], namely, that the “problem” for which the first appellant was referred was “fertility assistance”. Central to his submission was that the nature of the harm suffered was not within the scope of the duty of care he owed to the appellants. He contended that, as a fertility expert, his duty was to warn of the risks of pregnancy and it was not alleged that he had failed to do so.

84. The respondent submitted that a duty of care with the content found by his Honour would be novel and the appellants had failed to establish that the case fell within the parameters for determining whether a duty of care arose in novel circumstances, discussed in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [102] ff.

85. The respondent submitted that a duty of care of this content would make him an insurer against all the consequences of a successful pregnancy and birth. The respondent accepted that it was consistent with his obligations to refer the appellants to a genetic counsellor, not so as to ascertain whether ATD was a cause of the second appellant’s infertility but so as to enable the appellants to understand the effect of the condition on any child they might have. This in turn would place them in the position to make an informed choice in respect of having children: see [30]-[34].

86. However, the respondent submitted that the primary judge gave undue weight to the opinions of the experts, which he contended were of limited significance because the case did not concern technical, operative or clinical matters, and that a duty to take steps to ensure that the appellants received genetic advice would be indeterminate in scope and unreasonable. He pointed out that there were differing views amongst the experts as to whether a patient should be referred for genetic counselling and that Professor Saunders and Dr O’Loughlin, whose evidence the trial judge accepted, recognised that there could not be an obligation to refer every patient for genetic counselling. The respondent submitted that these factors strongly militated against the imposition of such a duty on doctors who advise on fertility or pregnancy.

87. The appellants submitted that the respondent’s submissions sought inappropriately to narrow his role in his dealing with them. They submitted that the respondent had assumed general control over the process as to whether they would proceed with IVF. They contended that in the circumstances, the respondent’s duty of care included advising of the risks associated with IVF/ICSI and providing treatment in such a way that the risks of an abnormal child were avoided or minimised so that the parents could avoid undertaking risks of abnormalities that were unacceptable to them. It was part of that duty to coordinate any tests and referrals required.

88. The appellants pointed to aspects of the respondent’s evidence that supported the finding that it was within the scope of his duty to refer them to a genetic counsellor and to follow up whether they had obtained the advice. This included the respondent’s own opinion that the appellants should be referred to a genetic counsellor, and his statement that, had he learned that they had not seen Ms Duggan, he would have made it clear that they needed to discuss ATD with her.

89. The terms in which the appellants, in the case at trial, framed the harm they had suffered were set out above at [79]. On the appeal, however, the appellants’ senior counsel put the case in different terms. He submitted that the “right that [the appellants] had to which the breach of duty related [was] the right to plan their family”. As I understood the submission, it was damage to this “right” by the breach identified by his Honour that was the harm they sustained giving rise to their claim for damages. This is apparent from the balance of the submission, where senior counsel contended that the harm being thus identified, the appellants were entitled to damages. The submission was in the following terms:

“The damages that we seek in that regard of course are, as outlined in the judgment, is that the pain and suffering of [the first appellant] bearing the child Keeden; secondly, economic loss; and thirdly, the cost of rearing the child. The cost of the rearing of the child, we say, arises from the right to choose whether someone as parents want to take on the legal and moral responsibility of caring for a child. That is at the heart of the right, particularly with respect to the third head of damage.”

This submission was founded on the decision of the High Court in Cattanach v Melchior which will be considered below at [103]-[112].

Legal principles

Duty of a medical practitioner

90. The respondent did not dispute that he owed a duty of care to the appellants to exercise reasonable care and skill in the provision of professional advice and treatment, both pursuant to an implied contractual term and in tort: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 483, 489; Breen v Williams [1996] HCA 57; 186 CLR 71 at 78; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [8]. That duty is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment. In Rogers v Whitaker it was held that a component of that duty is a duty to warn a patient of material risks: at 490. The duty extends to the provision of information in an appropriate case: Rogers v Whitaker at 483.

91. In Rosenberg v Percival, Gummow J, despite noting at [61] that the relevant risk of harm against which a medical practitioner was required to warn was not “that the patient will make an uninformed decision or choose the wrong option”, recognised that “that may well underpin the rationale behind the duty”. See also F v R (1983) 33 SASR 189 at 192 where King CJ observed that “the purpose of disclosure is to provide the patient with the information necessary to enable [the patient] to make informed decisions concerning [the patient’s] future”.

92. The underlying policy in the recognition of a duty to warn in a doctor-patient relationship was again referred to in Wallace v Kam at [8], where the Court explained that:

“The policy underlying the imposition of [the duty to warn] is to equip the patient with information relevant to the choice that is the patient’s to make. The duty to inform the patient of inherent material risks is imposed to enable the patient to choose whether or not to run those inherent risks and thereby ‘to avoid the occurrence of the particular physical injury the risk of which [the] patient is not prepared to accept’.”

93. The Court further observed, at [36]:

“The duty of a medical practitioner to warn the patient of material risks inherent in a proposed treatment is imposed by reference to the underlying common law right of the patient to choose whether or not to undergo a proposed treatment. However, the policy that underlies requiring the exercise of reasonable care and skill in the giving of that warning is neither to protect that right to choose nor to protect the patient from exposure to all unacceptable risks. The underlying policy is rather to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient.” (emphasis added)

Formulation of the content of a particular duty

94. As Gummow J pointed out in Roads and Traffic Authority of NSW v Dederer (in relation to what I have characterised for the purpose of these reasons as the content of the duty) at [43]:

“… duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question.”

95. The following observation of French CJ and Gummow J in Kuhl v Zurich at [21] is also pertinent (albeit that their Honours were in dissent in the outcome, this observation was not inconsistent with the reasons of the majority):

“… the formulated duty must neither be so broad as to be devoid of meaningful content, nor so narrow as to obscure the issues required for consideration.”

96. Their Honours noted, however, at [22]:

“… a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term ‘reasonable’ and hence the content of the duty of care.”

97. Gummow J in Roads and Traffic Authority of NSW v Dederer and French CJ and Gummow J in Kuhl v Zurich referred to the observation of the Court in Sullivan v Moody [2001] HCA 59; 207 CLR 562, at [50], that:

“Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.” (citations omitted)

The Court in Sullivan v Moody also used the language of “scope of duty” in the context of what I have described in these reasons as the “content of the duty”.

98. As this passage demonstrates, leaving aside cases of a well-settled duty, such as that owed by a motorist to another road user or a doctor to a patient, there is no single approach to the identification of the scope of the duty save that it is likely to be fact sensitive. Thus, in Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254 Hayne J observed, at [103]:

“In Sutherland Shire Council v Heyman [(1985) 157 CLR 424], Brennan J pointed out that ‘a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member’. Ordinarily it may be expected that it will be sufficient to state the duty of care by reference to these two matters: the kind of damage suffered and the class of which the plaintiff is a member. Even that, however, may not suffice in some cases.” (citation omitted)

99. In Modbury Triangle Shopping Centre v Anzil Gleeson CJ, at [14]-[15], and Hayne J, at [105], found it useful, in a case where the existence of the duty of care did not fall into a well-established category of negligence, to begin the consideration of that question by reference to the harm suffered for which the defendant was said to be liable and the particular want of care alleged. See similarly Harriton v Stephens [2006] HCA 15; 226 CLR 52 at [225]; Caltex Refineries (Qld) v Stavar at [103] per Allsop P; Sullivan v Moody at [50]; Roads and Traffic Authority of NSW v Dederer at [59] per Gummow J. Although the question in this case is not the existence of a duty of care but its content, I consider the same approach should be taken.

100. Harm or damage, in this sense, is different from the damages which flow from it: Cattanach v Melchior at [23] per Gleeson CJ. McHugh and Gummow JJ observed, at [67]:

“In the law of negligence, damage is either physical injury to person or property or the suffering of a loss measurable in money terms or the incurring of expenditure as the result of the invasion of an interest recognised by the law.”

101. In Harriton v Stephens, Crennan J observed, at [225]:

“A right of action and a duty of care are inseparable. In a case like this, the existence and extent of a duty of care can usefully be considered by reference to the nature of the damage suffered because a cardinal principle of imposing liability for negligence in novel circumstances is that the party complained of should owe to the party complaining a duty to take care, which the law can recognise as a matter of principle, and that the party complaining should be able to prove that actual loss or damage has been suffered as a consequence of a breach of that duty. Proving that actual loss or damage has been suffered requires proof of interference with a right or interest recognised as capable of protection by law.” (citations omitted)

102. It is necessary, having regard to these authorities, to consider in some detail the nature of the harm alleged to have been suffered by the appellants, as outlined above at [79]. This requires, first, an analysis of the High Court’s decision in Cattanach v Melchior.

The harm identified in Cattanach v Melchior

103. The only issue in Cattanach v Melchior was whether damages for the costs of raising the child were recoverable, that being the only question on which special leave to appeal was granted. Duty of care, breach and damage were all conceded and, because of the limited basis of leave, causation and remoteness were not in issue: see at [51]. The plaintiffs in Cattanach v Melchoir had an unplanned child following a sterilisation procedure due to negligent advice and a failure to warn. By majority, the court (McHugh and Gummow JJ, Kirby J and Callinan J) held that the damages claimed for the upkeep of the child were recoverable. The minority (Gleeson CJ, Hayne and Heydon JJ) each rejected the claim.

104. Although the question with which the Court was concerned was whether the damages claimed were recoverable, McHugh and Gummow JJ, at [66], nonetheless characterised the interest that the law protected as “that of each of the respondents in the planning of their family”. Their Honours observed that “the injury to that interest had varied elements”, including the costs of rearing the child they had conceived as the result of the failed sterilisation procedure. Their Honours stated, at [67]-[68], that the harm or damage was not the coming into existence of the parent-child relationship, nor was the harm the unborn child. Rather, it was “the burden of the legal and moral responsibilities which arise by reason of the birth of the child”. Their Honours did not consider it of assistance to characterise the expenditure required to discharge that obligation as economic loss: see at [66].

105. Gleeson CJ, at [19], considered the claim was for pure economic loss. His Honour considered that the legal and moral responsibility resulting from the parent-child relationship, and not Mr and Mrs Melchior’s “right to choose” the size of their family, formed the basis of the claim: see at [5] and at [23]-[26]. His Honour, at [23], saw that “right” as being more precisely understood as Mr and Mrs Melchior having a “freedom to make such a choice”. Importantly, however, as his Honour also observed at [23], the harm or loss claimed must be one that is capable of protection by the law, or, as he stated at [30], Mr and Mrs Melchior had to show that Dr Cattanach’s duty of care “extended to a duty of care to protect them from that kind of loss or harm”. His Honour quoted the statement of Brennan J in Sutherland Shire Council v Heyman at [27]: see above at [98], that a duty of care must be stated in reference to the kind of damage suffered, as well as Brennan J’s further statement, at [28], that:

“The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it.”

106. Gleeson CJ, at [32]-[38], rejected the claim on the basis that it did not satisfy the criteria for a claim for economic loss considered in Perre v Apand [1999] HCA 36; 198 CLR 180.

107. Callinan J considered, at [302], that the claim was for pure economic loss. His Honour considered that although that categorisation was imprecise, it was “reasonable in the circumstances” for the purposes of determining the claim.

108. In the course of his judgment, at [213], Hayne J referred to the observation of Lord Slynn in McFarlane v Tayside Health Board [2000] 2 AC 59, another failed sterilisation case, that the doctor in that case, albeit negligent, had not assumed responsibility for the expense of rearing the child. Hayne J’s rejection of the claim was essentially based on policy grounds: see especially at [255]-[260].

109. Kirby J, at [149], considered that the loss was not pure economic loss, particularly as the mother had been awarded damages for the pain and suffering relating to the pregnancy and birth and the effects of the pregnancy on her health. His Honour considered that the father’s claim “was made concrete by the physical injury suffered by the mother” and that it was artificial to sever the parents’ claim for the costs of rearing the child.

110. Heydon J, in dissent, noted, at [347], the difficulties of an award of damages:

“… in circumstances where what has happened is incapable of characterisation as a loss [because] the impact of a new life in a family is incapable of estimation in money terms.”

111. His Honour also considered that the majority approach would have the problematic effect of encouraging parents to exaggerate the costs and minimise the benefits of their children, and would generate litigation about children capable of causing them distress and injury.

112. It was not submitted that the harm, in this case, was the parent-child relationship or the coming into existence of that relationship. However, the claimed harm, articulated in the terms set out above at [79], gains support from the joint judgment of McHugh and Gummow JJ. As the balance of the appellants’ submission demonstrates, the significant aspect of their claim was for economic loss resulting from an interference with the appellants’ right to plan their family. It is therefore necessary to consider the principles relating to such loss.

Principles relating to economic loss

113. In Perre v Apand the factors upon which a claim for economic loss depend were considered by the High Court. Gummow J, at [192], observed that the inquiry commenced with the identification of “the interests for which [the plaintiffs] sought protection”. However, as his Honour pointed out, at [198], there is “no simple formula” and whether a claim will be recognised is dependent on the “particular connections between the parties”. His Honour adopted the approach taken by Stephen J in Caltex Oil (Australia) Pty Ltd v Dredge ‘Willemstad’ [1976] HCA 65; 136 CLR 529, stating, at [201], it was necessary to consider “the ‘salient features’ which combined to constitute a sufficiently close relationship to give rise to a duty of care”.

114. McHugh J observed, at [131]:

“The cases have recognised that knowledge, actual or constructive, of the defendant that its act will harm the plaintiff is virtually a prerequisite of a duty of care in cases of pure economic loss. Negligence at common law is still a fault based system. It would offend current community standards to impose liability on a defendant for acts or omissions which he or she could not apprehend would damage the interests of another.” (citations omitted)

See similarly Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1, at [101] per McHugh J.

115. It follows from the observations of Brennan J in Sutherland Shire Council v Heyman, considered above at [98], that foreseeability is directed to the harm or damage of the kind that the plaintiff has suffered.

116. In Perre v Apand the factors relevant to the determination of that question were identified by the court as foresight of the likelihood of harm, knowledge or means of knowledge of an ascertainable class of vulnerable persons who were unable to protect themselves from harm, the fact that imposing a duty of care did not impair the legitimate commercial interests of the wrongdoer and the fact that the damage flowed from the occurrence of activities within the wrongdoer’s control. Apart from the question of foreseeability these factors do not have to co-exist. As Gummow J observed, regard is to be had to the salient features of the case.

117. In Hawkins v Clayton [1988] HCA 15; 164 CLR 539 Gaudron J, at 601, likewise stated that it will almost always be necessary in an action for economic loss to identify the interest said to have been infringed. This passage was endorsed in Hunt & Hunt Lawyers v Mitchell Morgan Nominees [2013] HCA 10; 247 CLR 613 by the plurality (French CJ, Hayne and Kiefel JJ) who stated, at [25], that an understanding of the interest said to be infringed was necessary, relevantly:

“… for a proper understanding of the harm suffered and for the determination of what acts or omissions may be said to have caused that damage.”

118. In Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514, the plurality (Mason CJ, Dawson, Gaudron and McHugh JJ) observed that economic loss may take a variety of forms. Relevantly to this case, their Honours stated that:

“The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. With economic loss, as with other forms of damage, there has to be some actual damage.” (citations omitted)

119. In Hunt & Hunt Lawyers v Mitchell Morgan Nominees, at [28], the plurality noted that an interest that is the subject of economic loss need not be derived from proprietary rights or obligations governed by the general law. In Hill v Van Erp [1997] HCA 9; 188 CLR 159 the loss of a mere expectation interest was held to be recoverable. An interest infringed could be the value of property, as was the case in Kenny and Good v MGICA [1999] HCA 25; 199 CLR 413. In Hunt & Hunt Lawyers v Mitchell Morgan Nominees the harm the respondent suffered was its inability to recover monies it had lent pursuant to a void loan agreement.

The English cases

120. Whilst the parties did not seek to develop the legal principles upon which they relied by reference to authority in other jurisdictions, the relevant issues here have been extensively considered by the English courts and a brief consideration of the English authorities is warranted.

121. At the time that the High Court decided Cattanach v Melchior, the House of Lords had rejected a similar claim in a failed sterilisation case in McFarlane v Tayside Health Board. Lord Slynn at 76, Lord Steyne at 83-84 and Lord Hope at 89 characterised the costs of bringing up the child as pure economic loss. A claim for the upkeep of a child after a failed sterilisation procedure was similarly refused in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. In that case, the plaintiff, who was severely visually handicapped, underwent a sterilisation procedure as she considered that her disability would prevent her from properly looking after any child she otherwise might have.

122. The outcome in Rees was slightly different from that in McFarlane in that a sum, £15,000, was awarded by way of general damages for the infringement of the claimant’s right to limit her family. The basis of this award was explained by Lord Millett at [123], as follows:

“I still regard the proper outcome in all these cases is to award the parents a modest conventional sum by way of general damages, not for the birth of the child, but for the denial of an important aspect of [the parents’] personal autonomy, viz the right to limit the size of their family. This is an important aspect of human dignity, which is increasingly being regarded as an important human right which should be protected by law. The loss of this right is not an abstract or theoretical one … whether characterized as a right or a freedom, [it] is a proper subject for compensation by way of damages.”

123. Lord Bingham, at [8], observed that such a “conventional award”:

“… would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.”

124. More recently, in Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court was concerned with the duty of a doctor towards a patient in relation to advice about treatment. In that case, the patient sought damages on behalf of her son who was born with severe disabilities following a difficult birth. The alleged negligence was the failure to give advice about a particular risk, namely shoulder dystocia that would be involved in a vaginal birth and of the alternative possibility of elective caesarean section. The claim was upheld.

125. The plurality, at [73], accepted as correct the approach of the High Court in Rogers v Whitaker in relation to the duty to warn of risks. Their Lordships noted that:

“The doctor’s duty of care takes its precise content from the needs, concerns and circumstances of the individual patient to the extent that they are or ought to be known to the doctor.”

126. Relevantly in relation to the question presently under discussion, their Lordships, at [82], recognised that a doctor’s duty of care to warn of material risks inherent in a treatment option was best understood:

“… as a duty of care to avoid exposing a person to a risk of injury which [the patient] would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk.”

127. The UK Supreme Court also dealt with the question of causation, again by reference to Australian case law, noting at [98] that the issue of causation, where an undisclosed risk has materialised, is closely tied to the identification of the particular risk that ought to have been disclosed. The unequivocal evidence in that case was that had the risk of shoulder dystocia been disclosed, the patient would have chosen a caesarean section.

128. These cases demonstrate the acceptance accorded to a person’s right to choose whether or not to incur a particular risk of treatment. As the UK Supreme Court pointed out in Montgomery v Lanarkshire Health Board that right or entitlement is what underlies or underpins the duty of care.

Consideration

129. In my opinion, the appellants, in identifying the “right to plan their family”, were in fact identifying the interest said to have been infringed: see Hunt & Hunt Lawyers v Mitchell Morgan Nominees at [119] above. Although they claimed “damages” flowing from the infringement of that right, their claim was for economic loss, namely, the cost of raising Keeden. That is to be distinguished from the amount they claim they should be awarded to compensate them for that loss. They additionally claimed damages for the “pain and suffering” of bearing the child and damages for a range of psychological and physical consequences each has suffered. These include, in the case of the first appellant, back, shoulder, neck and elbow pain and osteoarthritis in both knees, due to the strain of lifting and moving Keeden. I will return to these aspects of the claim later in these reasons.

130. Having regard to the views of McHugh and Gummow JJ in Cattanach v Melchior and subject to the question of foreseeability as well as to the questions of causation and remoteness of damage, I am prepared to accept that the interest said to be infringed is capable of protection by the law such as to permit a claim for economic loss and that the scope of the respondent’s duty extended to it.

215. ATD is a non-gender related condition capable of inheritance with only one copy of the defective gene, hence from one parent. Prior to Keeden’s birth, the appellants erroneously understood that it was only if they both carried the ATD gene that there was a possibility that condition could be transmitted to their child.

216. The appellants were unsuccessful in proceedings they brought against the respondent in which they alleged he had breached the duty of care he owed them as a medical practitioner in failing to inform, or cause them to be informed, of the hereditary aspects of ATD. They alleged at trial that, had they been properly informed, they would not have proceeded to conceive a child using the second appellant’s sperm and thus would have avoided the harm which has befallen them. [1]

     1. Waller v James [2013] NSWSC 497 (at [5]) per Hislop J.

217. The proceedings pre-dated the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW) (“CLA”) and, accordingly, fell to be determined in accordance with the common law. [2]

     2. Primary judgment (at [9]).

218. The primary judge found:

1. Subject to considerations of reasonable foreseeability, remoteness and causation, the respondent owed a duty of care to the appellants to ascertain if they were aware that ATD was potentially inheritable, to explain to them the purpose of the proposed referral (to a genetic counsellor, Ms Duggan), to properly refer them to an appropriate person for the obtaining of that information subject to their approval, to ascertain if such consultation had taken place, and if not why not, and to reinforce the reasons why it would be desirable to consult with the genetic consultant or geneticist. [3]

   3. Primary judgment (at [63], [91] – [92]).

2. The respondent breached his duty of care to the appellants because he did not raise with them the potential inheritability of ATD and because nor did he adequately explain to them the purpose of the referral to a genetic counsellor, with the consequence that the appellants did not seek to contact Ms Duggan after the failure of the first attempt. [4]

   4. Primary judgment (at [144], [151]).

3. If they had been properly advised, the appellants would have attended the proposed consultation with Ms Duggan and with a geneticist if required. [5]

   5. Primary judgment (at [174]).

4. If properly informed, the appellants would have elected not to have Keeden. [6]

   6. Primary judgment (at [215]).

5. The appellants failed to establish that the ATD caused or materially contributed to the CSVT. [7]

6. The CSVT was unrelated to ATD. [8]

7. The appellants did not establish that their loss was so connected with the respondent’s fault that “as a matter of ordinary common sense and experience it should be regarded as a cause of it”. [9]

8. The physical damage and economic loss associated with having, raising and caring for Keeden, for which the appellants claimed, were not within the scope of the duty as such damage was not a reasonably foreseeable consequence of the acts and omissions alleged against the respondent. Rather, his liability concerned a failure to cause information to be obtained in relation to ATD. [10]

9. The damage was too remote. Although it was foreseeable that Keeden might inherit ATD and it may become symptomatic at some stage during his lifetime, the harm for which recovery was sought, namely the consequences of CSVT, was not reasonably foreseeable, there being, in effect, a miniscule number of such cases recorded generally and particularly of the sort Keeden suffered. [11]

   7. Primary judgment (at [238]).

   8. Primary judgment (at [248]).

   9. Primary judgment (at [260]).

   10. Primary judgment (at [262] – [263]).

   11. Primary judgment (at [267] – [268]).

222. The appellants do not challenge the finding set out in [221](5) and (6).

223. In addition, it should be noted, as Beazley P has explained, that prior to undergoing the IVF treatment, the appellants signed documents warning of the risks both of that treatment and of an abnormal baby being born. The first appellant accepted she was aware of those risks. [12] The appellants do not challenge the proposition that CSVT fell within the ambit of such risks.

     12. Beazley P (at [44] – [46]).

224. As Beazley P has also explained, the appellants have shifted the focus of their argument in this Court concerning the harm they allege they suffered as a result of the respondent’s breach of duty from “economic loss associated with having, raising and caring for Keeden, and physical injury, including psychological damage”, to damage to their “right … to plan their family”. [13]

     13. See Beazley P (at [79], [89]).

225. The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. [14] In determining the normative question, considerations of policy have a prominent part to play, as do accepted value judgments. [15]

     14. Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 (“Wallace”) (at [11]) per French CJ, Crennan, Kiefel, Gageler and Keane JJ.

     15. March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (“March”) (at 509, 516) per Mason CJ (Toohey and Gaudron JJ agreeing); (at 524) per Deane J (Gaudron J agreeing); (at 530) per McHugh J.

226. The appellants established factual causation. That is to say that, properly informed, they would have elected not to have Keeden. [16] However, the “harm” they suffered is not that against which they should have been warned (and which would have led to them not proceeding with IVF): that being the inheritability of ATD. Rather, the harm they suffered, in the literal sense, was bearing a child who was disabled catastrophically by an extremely rare medical event: CVST, being a risk of birth they had agreed to accept.

     16. Primary judgment (at [215]); see also Wallace (at [16] – [17], [19]).

227. The appellants were, accordingly, in a similar position to the plaintiff in Wallace in that they sought to render the respondent liable for an injury they were prepared to accept, but would have avoided had they been properly warned about a different, and unrelated or distinct, risk. [17] The harm for which they seek to recover is not the harm consequent upon not being warned about the risk of ATD, save in the most general sense of bearing Keeden. Rather, the harm for which they seek to recover is damages arising from the pain and suffering they have suffered through bearing a child who suffered catastrophic injuries after his birth by reason of a risk of abnormality inherent in bearing children of which they were warned and were prepared to accept.

     17. See Wallace (at [4] and [6]). The fact Wallace was decided under s 5D of the CLA does not detract from the comparison. Pursuant to that provision, “policy or value judgments … fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not”: Wallace (at [15]), quoting Allsop P (as his Honour then was) in Wallace v Kam [2012] NSWCA 82; [2012] Aust Torts Reports ¶82-101 (at [4]; see also at [10], [12] – [13]); see also (at [176] – [177], [181]) per Basten JA.

228. The question which must be determined is whether, in those circumstances, legal responsibility for Keeden’s CSVT should be attributed to the respondent. That evaluation is made by a functional evaluation of the relationship and the purposes and policy of the relevant part of the law. [18]

     18. Barnes v Hay (1988) 12 NSWLR 337 (at 353) per Mahoney JA; cited with approval in Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 (at [98]) per Gaudron J and in Wallace (at [23]).

229. A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid. [19] Such a rule that, in the circumstances, legal responsibility did not attach to the defendant even though his or her act or omission was a necessary precondition of the occurrence of the damage, is the product of a policy choice that legal liability is not to attach to an act or omission which is outside the scope of that rule even though the act or omission was a necessary precondition of the occurrence of damage to the plaintiff. [20]

     19. Wallace (at [24]).

     20. March (at 530 – 531) per McHugh J.

230. Thus, as explained in Wallace (footnotes omitted): [21]

“…liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach. In a similar way, ‘a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action’ but ‘only for the consequences of the information being wrong’.”

21. Wallace (at [24]).

231. The respondent’s duty to warn the appellants of the risk of the inheritability of ATD was “imposed by reference to the underlying common law right of the patient to choose whether or not to undergo a proposed treatment”. [22] However, the policy which underpinned that duty was to “to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient [and it] is appropriate that the scope of liability for breach of the duty reflect that underlying policy”. [23]

     22. Wallace (at [36]).

     23. Wallace (at [36]).

232. Accordingly, the respondent’s liability “‘should not extend to harm from risks that the patient was willing to hazard, whether through an express choice or as found had their disclosure been made’.” [24] The CSVT was a distinct risk the appellants were willing to accept. The respondent should not bear legal responsibility for it.

     24. Wallace (at [37]).

233. The appellants cannot escape this conclusion by pitching their case at the high level of generality that the relevant harm is damage to their right to plan their family. In the final analysis, even accepting that characterisation, the normative question of causation had to be determined. It was properly determined adversely to the appellants by the primary judge.

234. WARD JA: I have had the advantage of reading in draft the reasons of Beazley P. I agree with her Honour that the appeal should be dismissed with costs, broadly for the reasons her Honour has given.

235. I have had some difficulty with the conclusion reached by the primary judge that the respondent’s duty of care in this case extended beyond the provision of sufficient information relating to genetic counselling to enable the appellants to make an informed decision as to whether to seek such counselling (i.e., the conclusion by the primary judge that the respondent’s duty extended to ascertaining whether, and if not why not, such a consultation had taken place – see [91]).

236. As Beazley P has noted, the respondent did not have the primary duty to advise the appellants on issues of heredity. Provided he had adequately explained to the appellants the purpose of genetic counselling, so that they could determine the importance to them of seeking that counselling in order to make an informed decision as to the planning of their family, it was a matter for them whether or not they chose to pursue that course and I am not persuaded that the respondent had an obligation to follow that up or to ensure that they had received any such counselling.

237. I accept that the evidence of Dr O’Loughlin and Professor Saunders supported a finding that the content of the duty of care extended to a duty to ensure that the appellants were adequately informed as to the hereditary aspect of ATD and that for that purpose the appellants ought be referred to a genetic counsellor. However, those experts themselves recognised that not every patient ought to be referred for genetic counselling.

238. Nevertheless, nothing turns in my opinion on whether the duty did extend as far as the primary judge accepted. The appellants’ lack of appreciation of the importance to them, bearing in mind their concern not to have a child with the inherited ATD gene, of pursuing the referral to Ms Duggan indicates that, even if the content of the duty of care in the present case did not extend to a duty to follow up the referral, the respondent had failed to provide the appellants with sufficient information for them to be aware of the importance of such counselling.

239. In any event, for the reasons given by Beazley P, I am of the view that the primary judge correctly concluded that the harm suffered by the appellants was not within the scope of the overall duty owed by the respondent and therefore that legal causation is not made out. I also agree that, even if a contrary conclusion were reached on the question of causation, the harm that was suffered was one that was not reasonably foreseeable. True it is, that it was reasonably foreseeable that if the appellants proceeded with the IVF procedure using Mr Waller’s sperm, a child resulting from that procedure might inherit the ATD gene. What was not reasonably foreseeable was that the making of an uninformed decision to proceed with the IVF procedure at that time (using Mr Waller’s sperm) could result in a pregnancy with the catastrophic outcome that this one did.

240. I add the following observations.

241. The appellants’ case on the appeal, as Beazley P has noted, identified the harm suffered as a deprivation of their right to plan their family in terms of choosing whether and when they would undertake the moral and legal responsibility of rearing and maintaining a child.

242. Unsurprisingly, the appellants placed much store on the recognition by the High Court in Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [61] of the right to plan a family. Significantly, however, this was not a failed sterilisation case (as it was in Cattanach). Here, the infringement of the right to plan their family was that they were provided with insufficient information as to the hereditary aspects of ATD and therefore made a decision to undergo the IVF procedure using Mr Waller’s sperm without a full understanding of the potential for their child to inherit the ATD gene.

243. The appellants very much wanted a child. They were prepared to accept the ordinary risks of childbirth; indeed the IVF consent form acknowledged as much. What they were not prepared to accept was the 50% risk of a child of theirs inheriting the ATD gene. This was not a case where they had determined not to have children and the foreseeable consequence of a failed sterilisation procedure was that they would have a child and thus be forced to assume moral and legal responsibilities that they had chosen not to assume. Rather, the question was one as to the timing of the IVF procedure they were considering undertaking (a procedure which in any event was not guaranteed to produce a child) and, perhaps, a related question as to whether they chose to undergo the procedure using Mr Waller’s sperm or donated sperm.

244. This was, in a similar way to the situation in Paul v Cooke [2013] NSWCA 311, a case where the respondent’s negligence affected the timing of the relevant operative procedure but did not affect the relevant risk of that procedure; namely, the risk of a child suffering the catastrophic consequences of the CVST that Keeden Waller suffered following his birth.

245. It was accepted by the primary judge that, but for the respondent’s negligence, the appellants would not have undergone the IVF procedure when they did (using Mr Waller’s sperm, as they did). Therefore, factual causation was established. But for the respondent’s negligence, they would not have had a child at the time that they did, let alone one with ATD or one which suffered the injuries and disabilities that Keeden suffered.

246. However, the risk of those injuries and disabilities is a risk that is present in every pregnancy. Therefore, whenever they undertook the IVF procedure (and whether or not they undertook that procedure using Mr Waller’s sperm or donated sperm), the risk remained.

247. The appellants’ primary case was based on the contention that Keeden’s disabilities were causally connected with his inheritance of the ATD gene. The appellants failed to prove that was the case and do not challenge the primary judge’s finding on that aspect of the matter.

248. No loss was suffered as a result of the fact that the risk of having a baby with the inherited ATD gene, about which they were not properly warned, came home.

249. Acceptance of the appellants’ argument in this case would make a person in the respondent’s position effectively the insurer of any pregnancy resulting from the IVF procedure undertaken at a time when the parents were not fully informed of a particular genetic risk that they were not prepared to run, whether or not the baby resulting from that procedure had inherited the relevant gene, because on that hypothesis the couple’s right to plan their family was infringed or harmed by the provision of insufficient information. The suggestion that the respondent might be liable for the whole of the costs of child-raising because the parents had undertaken a procedure that they would not otherwise have done at that particular time, is not one that readily commends itself.

250. The appellants reject the suggestion that Paul v Cooke is analogous based on the serendipity of the timing of the respective operative procedures in that case but they nevertheless press their claim on the basis that part of the right being protected was the right to time when to undertake the IVF procedure. They maintain that on a normative causation approach, they should not have been shut out of their damages, at the very least to the extent of the cost of rearing and maintaining a child without the disabilities and injuries Keeden had suffered.

251. When talking about the right to plan a family, in an IVF context and not in a failed sterilisation case, one is really talking about a choice of undergoing a procedure. Not all IVF procedures are successful. The analogy with Paul v Cooke is apposite because one is talking of the time at which the appellants chose to have a procedure that may or may not have resulted in a baby (healthy or otherwise and with or without an inherited ATD gene), but where the general risks inherent in pregnancy and childbirth remained the same.

252. The policy underlying imposition of a duty to warn or advise in the medical context, as recognised in Wallace v Kam [2013] HCA 19; 215 CLR 375 at [8], is to equip the patient with the information relevant to the choice the patient is to make and (see at [36]) to protect the patient from the occurrence of the physical injury the risk of which is unacceptable to the patient. Here, although what was unacceptable to the appellants was the risk of the ATD gene being inherited by any child resulting from the IVF procedure, no injury or disability was shown to have been suffered as a result.

253. The catastrophic injuries and disabilities suffered by Keeden shortly after his birth must have been nothing short of a tragedy for him and his parents. Such an outcome must be every expectant parent’s nightmare. However, for the reasons explained by Beazley P, the loss the appellants suffered by having the legal and moral responsibility of rearing and maintaining Keeden thrust upon them as a result of the successful IVF procedure is not a loss for which the respondent is liable.

**********

Endnotes

Amendments

13 August 2015 - Typographical errors corrected at [97], [130], [165], [189]. [203]

Decision last updated: 13 August 2015