Waller v James

Case [2015] NSWCA 232

Court of Appeal


Supreme Court


New South Wales

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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
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AGLC
Waller v James [2015] NSWCA 232
Case
[2015] NSWCA 232
Decision Date

CaseChat Overview and Summary

The case of *Waller v James* concerned a claim brought by the parents of a child born with a genetic disorder, alleging that they were not provided with correct genetic information prior to undergoing an in vitro fertilisation (IVF) procedure. The child subsequently suffered a permanent disability as a result of a stroke occurring shortly after birth. The proceedings were heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the medical practitioners owed a duty of care to the parents regarding the provision of genetic information, the content and scope of that duty, and whether the harm suffered by the child was caused by any breach of that duty. The court also considered whether the claim constituted pure economic loss and the principles of remoteness, specifically whether the harm was within the scope of the duty owed and reasonably foreseeable. The appeal also involved a challenge to the findings of fact made by the trial judge.

The Court of Appeal upheld the trial judge's findings, applying established principles of negligence. The court determined that medical practitioners owe a duty of care to prospective parents undergoing IVF to provide accurate genetic information. This duty extends to informing them of the risks associated with genetic conditions and the availability of genetic testing. The court found that the harm suffered by the child, while severe, was not so remote as to fall outside the scope of the duty owed, as the risk of adverse medical events, including those leading to the child's disability, was a foreseeable consequence of the breach. The court also applied principles of appellate restraint in reviewing the trial judge's findings of fact.

The appeal was dismissed, and the appellants were ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed;

2. The appellants to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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