Waller v James

Case [2013] NSWSC 497


Supreme Court


New South Wales

Medium Neutral Citation: WALLER v JAMES [2013] NSWSC 497
Hearing dates:31 January, 1 February, 3-15 February, 17 February, 21-24 February 2012
Decision date: 06 May 2013
Before: Hislop J
Decision:

1. Judgment for the defendant

2.The plaintiffs to pay the defendant's costs.

Catchwords: 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.
Legislation Cited: Health Care Liability Act 2001 (NSW)
Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Social Security Act 1991 (Cth)
Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Cases Cited: Waller v James [2006] HCA 16; (2006) 226 CLR 136
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479
Breen v Williams [1996] HCA 57; (1996) 186 CLR 71
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
F v R (1983) 33 SASR 189
Tai v Ivy Hatzistavrou [1999] NSWCA 306
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
PD v Dr Nicholas Harvey [2003] NSWSC 487
Fox v Percy [2003] HCA 22; 214 CLR 118
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117
Wyong Shire Council v Shirt (1980) 146 CLR 40
Gover v South Australia & Perram (1985) 39 SASR 543
Varipatis v Almario [2013] NSWCA 76
Chappel v Hart [1998] HCA 55, (1998) 195 CLR 232
Luton v Lessels (2002) 210 CLR 333
March v E & MH Stramare Pty Limited (1991) 171 CLR 506
Duyvelshaff v Cathcart & Ritchie Limited (1973) 47 ALJR 410
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Roads and Traffic Authority v Royal (2008) 245 ALR 653
Cattanach v Melchior [2003] HCA 38, (2003) 215 CLR 1
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
McDonald v Sydney South West Area Health Service [2005] NSWSC 924
G & M v Armellin [2008] ACTSC 68
Rand v East Dorset Health Authority [2000] Lloyds Rep Med 181
Hardman v Amin [2001] PNLR 11
Gaynor N v Warrington Health Authority [2003] Lloyds Rep Med 365
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Manser v Spry (1994) 181 CLR 428
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Ervan Warnink BV v J Townsend &…

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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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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