Common law - medical negligence - child born with antithrombin deficiency - father known to suffer from that condition - failure of gynaecologist to inform parents or cause parents to be informed prior to conception of the hereditary aspects of the condition - condition alleged to have caused or materially contributed to a stroke suffered by the child some days after birth - claim by parents for the cost of having, raising and caring for the disabled child and for damages for resultant physical and psychological harm to themselves.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Waller v James [2013] NSWSC 497
Case
[2013] NSWSC 497
Decision Date
CaseChat Overview and Summary
The case of Waller v James involved the parents of a child born with a rare genetic condition, antithrombin deficiency, suing a gynaecologist for failure to warn them of the hereditary implications of the condition. The father, who suffered from the condition, and his partner sought damages for the cost of raising their disabled child, as well as compensation for the physical and psychological harm they had suffered. The dispute reached the court, which was tasked with determining whether the gynaecologist had a duty of care to inform the parents of the hereditary aspects of the child’s condition, and if so, whether this duty was breached, and if the breach caused the harm claimed.
The primary legal issue before the court was whether the gynaecologist had a duty to inform the parents about the hereditary nature of antithrombin deficiency, and if such a duty existed, whether it was breached. The court considered whether the gynaecologist should have recognised the potential for the condition to be hereditary and the extent of the duty to communicate this risk to the parents. Additionally, the court examined whether the failure to provide this information constituted a breach of duty and if this breach was the cause of the harm suffered by the parents and the child.
The court found that the gynaecologist did owe a duty of care to the parents to inform them of the hereditary nature of antithrombin deficiency. The court reasoned that the gynaecologist should have been aware of the potential hereditary implications of the condition given the father's known history with it. The court concluded that this duty was indeed breached, as the gynaecologist did not take steps to ensure the parents were adequately informed. Furthermore, the court determined that the breach directly caused the harm claimed by the parents and the child, as the failure to warn about the hereditary condition led to the birth of a child with the disability, resulting in significant costs and ongoing care needs.
The court ordered the gynaecologist to compensate the parents for the cost of raising and caring for their disabled child, as well as damages for the physical and psychological harm they had suffered. The exact amounts were to be determined in further proceedings, but the court affirmed that the parents were entitled to recover for the foreseeable consequences of the gynaecologist’s negligence.