Waller v James

[2002] NSWSC 462

CITATION:	Waller v James [2002] NSWSC 462
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20527/01
HEARING DATE(S):	11-12 March 2002
JUDGMENT DATE:	12 June 2002
PARTIES :	Deborah Waller (1st Plaintiff) Laurence Waller (2nd Plaintiff) Keeden Waller by his tutor Deborah Waller (3rd Plaintiff) Christopher James (1st Defendant) Sydney IVF Pty Limited (2nd Defendant) Brian Hoolahan (3rd Defendant) Illawarra Health Service (4th Defendant) Phillip Paris-Brown (5th Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	P.W. Bates (Plaintiffs) P.R. Garling SC/S. Woods (1st, 2nd, 3rd Defendants)
SOLICITORS:	Autore & Associates (Plaintiffs) Blake Dawson Waldron (1st, 2nd, 3rd Defendants)
CATCHWORDS:	NEGLIGENCE - parents undergo IVF procedure - parent with AT3 deficiency - failure by those conducting programme to investigate and to advise parents in relation to that AT3 deficiency - whether duty of care owed by those conducting IVF programme to child conceived - if so, content of duty - child born with AT3 deficiency - subsequent thrombosis - whether any breach of duty of care to child - causation of disabilities - AT3 deficiency of genetic and not iatrogenic origin. NEGLIGENCE - doctor who treated mother during pregnancy following IVF procedure - whether duty of care owed to child subsequently born - whether breach of duty to child - causation of disabilities. "WRONGFUL LIFE" claim - whether maintainable - impossibility of determining whether "damage" suffered - impossibility of assessing compensatory damages - public policy considerations.
CASES CITED:	Attorney General for the State of Queensland v T (1983) 57 ALJR 285 Becker v Schwartz 386 N.E.2d 807 (N.Y. 1986) CES v Superclinics (Australia) Pty Limited (1995-96) 38 NSWLR 47 Edwards v Blomeley [2002] NSWSC 460 Groom v Selby (2001) EWCA Civ 1522 Harriton v Stephens [2002] NSWSC 461 Haynes v Bendall (1991) 172 CLR 60 Kosky & Anor v The Trustees of the Sisters of Charity (1982) VR 961 Lacroix v Dominique [2001] MBCA 122 Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 The Marriage of F & F (1989) FLC 92-031 McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166 Melchior & Anor v Cattanach & Anor [2001] QCA 246 Nelson v Krusen 678 S.W. 2d 918 (Tex. 1984) Parkinson v St James & Seacroft University Hospital (2001) 3 All ER 97 Paton v BPAS Trustees (1979) 1 KB 276 Perruche, Cour de Cassation, France (17 November 2000) Vievers v Connolly (1995) 2 Qd R 325 Watt v Rama (1972) VR 353 X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26
DECISION:	See para 69.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE list

STUDDERT J

Wednesday 12 June 2002

20527/01 DEBORAH WALLER & ORS v CHRISTOPHER JAMES & ORS

JUDGMENT

1 HIS HONOUR: The first plaintiff, Deborah Waller, the second plaintiff, Lawrence Waller, and the third plaintiff, Keeden Waller, have brought proceedings against the first defendant, Christopher James, the second defendant, Sydney IVF Pty Limited, the third defendant, Brian Hoolahan, the fourth defendant, Illawarra Area Health Service, and the fifth defendant, Phillip Paris-Browne. The first and second plaintiffs are the parents of the third plaintiff, who was born on 10 August 2000 with severe disabilities.

2 The claims of the parents against the first and the second defendants are pleaded in negligence and in breach of contract; the claim of the third plaintiff against the first and second defendants is pleaded in negligence only. The claims of all plaintiffs against the third, fourth and fifth defendants are pleaded in negligence.

3 On 25 February 2002, on the application of the first, second and third defendants I made orders with the consent of the plaintiffs. These orders were made pursuant to Pt 31 r 2 and were that there be a separate determination of the following questions:

“1. If the first, second and third defendants failed to exercise reasonable care in their management of the first and second plaintiffs, and but for that failure the third plaintiff would not have been born, does the third plaintiff have a cause of action against each of the said defendants; and
2. If so, what categories of damages are available?”

4 On that same day I was also asked to make a similar order on the application of the fourth defendant concerning the proceedings against that defendant, and I made orders for separate determination of similar issues in the proceedings between the plaintiffs and the fourth defendant. However, on 11 March 2002 I vacated the orders concerning the determination of the separate issues between the plaintiffs and the fourth defendant because the parties had been unable to agree upon a statement of facts relevant to the separate determination of the issues between those parties.

5 Nevertheless, I was persuaded by all parties of the utility of proceeding to determine the separate issues the subject of the orders made on 25 February 2001 binding the third plaintiff and the first, second and third defendants.

6 For the purposes of the determination of those separate issues in the proceedings between the third plaintiff and the first, second and third defendants, those parties agreed upon a statement of facts, the content of which I now set out:

“1. The first plaintiff was born on 11 June 1974.

2. The second plaintiff was born on 8 November 1965.

3. The first and second plaintiffs are wife and husband respectively and were married to each other on 8 November 1997.

4. The third plaintiff is the first born and only child of the first and second plaintiffs and was born alive to the first plaintiff on 10 August 2000 at 1300 hours.

5. After experiencing difficulty conceiving for about 13 months, the first and second plaintiffs consulted their GP, Dr Noonan, for advice.

6. A semen analysis organised by Dr Noonan indicated a low level of sperm and very poor motility.

7. Dr Noonan referred the first and second plaintiffs to the first defendant Dr James (the first defendant), an obstetrician and gynaecologist with a practice in infertility, by letter dated 18 January 1999.

8. Dr Noonan’s referral letter to the first defendant noted that the second plaintiff had a ‘Factor III deficiency’ and was taking Warfarin daily. The second plaintiff has anti-thrombin 3 (‘AT3’) deficiency (a propensity to clot) which the first and second plaintiffs refer to as ‘Factor III deficiency’.

9. The first plaintiff consulted with the first defendant for the first time on 3 March 1999 at the first defendant’s room at 1/56A Church Street, Wollongong.

10. The second plaintiff informed the first defendant during one of the early consultations in March 1999 that the second plaintiff suffered from ‘Factor III deficiency’ and was on Warfarin. The first defendant was also informed that the second plaintiff had suffered from DVT and pulmonary emboli.

11. The first defendant arranged for fertility tests and other investigations to be carried out in March 1999 including, tests at the second defendant Sydney IVF Pty Limited at its Illawarra rooms in the Wollongong Day Surgery, 358 Crown Street, Wollongong. None of these tests or investigations was directed to (or appropriate) to obtain information about the second plaintiff’s AT3 deficiency or its precise genetic basis or its transmissibility to any offspring of the second defendant.

12. A further semen analysis on the second plaintiff was performed on 9 March 1999 at the first defendant’s request and confirmed extremely low sperm density and very poor motility.

13. On 5 May 1999 the first defendant organised genetic testing of the second plaintiff by the second defendant to determine if a chromosomal abnormality was responsible for his poor sperm count (a test for AZF mutations). None of these tests or investigations was directed to (or appropriate) to obtain information about the second defendant’s AT3 deficiency or its precise genetic basis or its transmissibility to any offspring of the second defendant.

14. On 28 July 1999 the first defendant informed the first and second plaintiffs that there was no evidence of an AZF mutation. In view of the second plaintiff’s low sperm count the first defendant recommended that the first and second plaintiff’s undergo ICSI (intra-cytoplasmic sperm injection involving a micro-injection of sperm into the egg) using the second plaintiff’s sperm and the first plaintiff’s ovum.

15. The first and second plaintiffs relying on the recommendation and advice of the first defendant commenced the first cycle of treatment at the second defendant’s rooms at Illawarra located at the Wollongong Day Surgery on 14 October 1999. The dose of medication was ordered and administered by the first defendant. Medication administered during this cycle was organised and monitored by the first and second defendants.

16. On 11 November 1999 the first defendant harvested 19 eggs from the first plaintiff at the Wollongong Day Surgery.

17. 17 eggs were successfully injected with sperm by technicians at the second defendant’s rooms and using the second defendant’s facilities and 11 embryos developed.

18. On 14 November 1999 two embryos were transferred by the first defendant at the Wollongong Day Surgery to the uterus of the first plaintiff. Seven embryos were cryogenically preserved by the second defendant in the second defendant’s storage facilities.

19. On 27 November 1999 a serum HCG pregnancy test arranged by the first defendant confirmed a pregnancy in the first plaintiff.

20. On 7 December 1999 the first plaintiff consulted with the first defendant who referred her for an ultrasound and blood test to confirm pregnancy.

21. On 20 December 1999 an obstetric ultrasound of the first plaintiff was carried out on the first plaintiff by South Coast X-Ray at the request of the first defendant and revealed a single viable pregnancy of 7 weeks (plus or minus 5 days).

22. By letter dated 22 December 1999 the first defendant referred the first plaintiff to the third defendant Dr Hoolahan, obstetrician, for antenatal care.

23. On 31 December 1999 the third defendant wrote to the first defendant acknowledging the referral and noting that the first plaintiff did not wish to have a triple screen test, a test for Downs syndrome, not a test for AT3. Subsequently the first plaintiff underwent a triple screen test arranged by the third defendant which was performed on the first plaintiff on 17 February 2000. The third plaintiff does not suffer from Downs syndrome.

24. The first plaintiff consulted with the third defendant personally on 23 December 1999, 4 February 2000, 17 March 2000, 24 April 2000, 15 May 2000, 29 May 2000, 12 June 2000, 1 July 2000, 10 July 2000, 16 July 2000, 17 July 2000, 26 July 2000 and 2 August 2000. Those consultations took place in the third defendant’s rooms. The second plaintiff also attended some of those consultations.

25. The first plaintiff attended an initial ante-natal consultation at the fourth defendant’s Shoalhaven District Memorial Hospital on 10 February 2000 with Ms Jenny Pavey, a midwife who was the fourth defendant’s servant or agent. On that occasion, Ms Pavey also booked in the first plaintiff for her later confinement to give birth at the fourth defendant’s said Hospital.

26. Subsequently, both the first and second plaintiffs attended antenatal classes held at the premises of the Illawarra Area Health Service, the fourth defendant, commencing 23 May 2000 and held from time to time thereafter until 4 July 2000.

27. On 7 August the first plaintiff telephoned Jenny Pavey, midwife of the fourth defendant and spoke to her. Ms Pavey did not advise the first plaintiff to consult an obstetrician or to attend the fourth defendant’s Shoalhaven Memorial District Hospital.

28. On 8 August 2000 at about 1800 hours the first plaintiff began experiencing initial irregular birth contractions.

29. On 9 August 2000 at about 0130 hours the first or second plaintiff telephoned the fourth defendant’s Shoalhaven District Memorial Hospital and spoke to a midwife. The said midwife gave advice to the first plaintiff to try a warm bath, something to eat and drink, call back when the contractions become regular.

30. On 9 August 2000 at about 0615 hours the first or second plaintiffs telephoned the fourth defendant’s Shoalhaven District Memorial Hospital and spoke to a midwife and was advised to come to the said Hospital. About half an hour later, just before 0645 hours, the second plaintiff arrived at the said Hospital with the first plaintiff.

31. The fourth defendant saw the first plaintiff as a patient of the said hospital at 0645 hours. The first plaintiff handed the midwife the third defendant’s completed ante-natal pink sheet.

32. A midwife of the fourth defendant spoke to Dr Paris-Browne the fifth defendant who was the specialist obstetrician on call.

33. The Antenatal Record of Admissions form for the fourth defendant dated 9 August 2000 (in relation to the initial admission at 0645 hours) indicates that the first plaintiff was examined by a midwife and states ‘Dr Paris-Browne consulted – discharged home after CTG’ and ‘Dr Paris-Browne was happy for midwife to look after Debbie ie as PNC’ (ie Pre-Natal Clinic meaning a public patient admitted under the midwives).

34. The first plaintiff returned to the said Hospital later that evening and was readmitted as a public patient under the care of the midwives (PNC) of the fourth defendant at 1945 hours on 9 August 2000.

35. The nurses record on 9 August 2000 at 2030 hours records that the first plaintiff was ‘no longer able to cope with labour at home’. The records do not indicate that the fifth defendant was requested to, nor did he attend the first plaintiff and examine her at this stage.

36. On 10 August 2000 at 0500 hours a midwife of the fourth defendant telephoned the fifth defendant to advise of the first plaintiff’s admission and progress in labour.

37. On 10 August 2000 at 0645 hours the fifth defendant made his initial visit to examine the first plaintiff to review the first plaintiff’s progress.

38. The fifth defendant directed the midwives of the fourth defendant to induce labour vaginally using a drug, Syntocinon which was commenced at 0815 hours. The first plaintiff proceeded with her labour by vaginal delivery.

39. The third plaintiff was delivered vaginally at 1300 hours on 10 August 2000. A midwife of the fourth defendant was accoucheur and the fifth defendant was present.

40. On 14 August 2000 the first and third plaintiff left the fourth defendant’s Shoalhaven Hospital on the Maternal Early Discharge Plan scheme (‘MEDP’).

41. On 15 August 2000 the third plaintiff was returned to hospital and was subsequently diagnosed with cerebral thrombosis.

42. As a result of the thromboses the third plaintiff suffers from permanent brain damage, cerebral palsy and uncontrolled seizures.

43. The first, second and third defendants ought to have but did not investigate and advise the first and second plaintiffs in relation to the second plaintiff’s AT3 deficiency.

44. If the first and second plaintiffs had been advised by the first, second and/or third defendants that the second plaintiff’s antithrombin 3 deficiency was genetic and could be passed to any child, the first and second plaintiffs would have:

(a) deferred egg harvest and/or embryo transfer until methods to ensure transfer of only AT3 deficiency free embryos were identified; or
(b) used donor sperm; or
(c) if informed after confirmation of pregnancy of the 50% chance or the certainty of the foetus suffering from the AT3 deficiency, sought and obtained a lawful termination.


45. The third plaintiff’s injuries and disabilities have produced needs and will result in a level of care greater than would be expected of a child who did not have his disabilities. The third plaintiff also claims general damages, economic loss and Griffiths v Kerkemeyer damages.

46. The third plaintiff’s ongoing needs and disabilities will continue past the age of 18.

47. The third plaintiff’s underlying AT3 deficiency is genetic not iatrogenic. This propensity to clot is a permanent disability in itself.

48. The third plaintiff also alleges in the Further Amended Statement of Claim additional causes of action against the third, fourth and fifth defendant for injuries and disabilities alleged to flow from the management of the third plaintiff’s delivery and/or neonatal care (including diagnosis and treatment of the AT3 deficiency). In relation to those additional causes of action the third plaintiff alleges that the underlying AT3 deficiency was a material contributing factor.”

7 I heard this matter on 11 and 12 March 2002 in conjunction with the hearings of two other cases in which similar issues were raised. Those other matters were Edwards & Ors v Blomeley [2002] NSWSC 460 and Harriton v Stephens [2002] NSWSC 461. Whilst all three cases were heard together, the factual matrix in each case was different and each case has called for separate consideration. It will, however, be convenient in the course of this judgment to make references from time to time to what I have already written in those other matters.

8 As emerges from the above statement of facts, the third plaintiff was born on 10 August 2000 and within days was diagnosed to be suffering from cerebral thrombosis. The third plaintiff suffers from permanent brain damage, cerebral palsy and uncontrolled seizures. As the questions posed make plain, it is the claim of the third plaintiff only which is the subject of the hearing conducted in March 2002 and of this judgment, and only so far as concerns the claim he brings against the first, second and third defendants.

9 The other actions listed on the 11 and 12 March called for consideration of cases addressing what have been referred to as “wrongful life” claims in this and other jurisdictions. This case also requires that consideration be given to these previous decisions. Mr Bates submitted that the present claim ought to be described as a “wrongful suffering” cause of action rather than a “wrongful life” cause of action. I note that submission, but I propose for the purposes of convenience to continue to use the “wrongful life” description as I did in the other cases in which I have just delivered judgment, because this description accords with the way claims similar to the present one have been described in the various decisions to which research has taken me and in the writings about such claims. I shall, however, keep very much in mind what Mr Bates seeks to emphasise by the alternative description he invokes of a “wrongful suffering” cause of action.

10 As I observed in Edwards, there has been no decision in this country in which a court has recognised a “wrongful life” claim. In Edwards (at paras 9-46) I reviewed the relevant authorities in England, Canada and the United States, as well as referring to the position in Germany and Austria. I also referred to the French decision in Perruche (Cour de Cassation, 17 November 2000). I will not repeat that review here but it is convenient to record again the references to the text book passages set out in Edwards, and repeated in Harriton, and my conclusion as to the rejection, both widespread and consistent, of “wrongful life” claims. Thus I repeat what I wrote (at paras 10-12) in Harriton:

“In Fleming The Law of Torts , 9th edition at 184, the learned author states:
‘Negligent failures of contraception, voluntary sterilisation or abortion or failures to diagnose genetic defects have raised the question of liability by physicians, pharmacists and even parents for an unwanted birth. Such claims have particular poignancy where the unwanted child was born, as feared, with congenital defects. Even so, the critical distinction from the foregoing cases remains that here the defendant has not caused the infant’s injury but merely failed to prevent its birth. To hold a physician responsible for possibly lifetime support of the child may well strike one as a disproportionate sanction for his fault.

There appears to be a broad consensus against such claims by the infant himself (“wrongful life”), whether born healthy or impaired.’
The above analysis, as I remarked in Edwards , is in sympathy with what appears in Luntz Assessment of Damages for Personal Injury and Death , 4th edition at pp 640-641 para 11.8.8:
‘Actions brought by the children themselves have come to be known as “wrongful life” actions. Apart from a few states of the United States, where limited damages have been held to be available in actions brought on behalf of handicapped children, the general view is that no damages are recoverable where a child would not have been born but for the negligent conduct of the defendant. Conceptually such actions are not reconcilable with tort principles, since in accordance with such principles they involve a comparison between being born with a handicap and non-existence, a comparison which it is impossible to make in money terms. There are also policy reasons for denying the action.’
The above text summaries accord with my analysis of those authorities which I have had the opportunity of considering. In the passage from Luntz the author identified the decisions in which limited damages were recoverable as being Turpin v Sortini 643 P 2d 954, Procanik v Cillo (1997) NJ 339; 478 A 2d 755 and Harbeson v Parke-Davis Inc. 656 P 2d 483 (to which I referred in paras 37-43 of my judgment in Edwards , adding also reference to Curlender v Bio-Science Labs 106 Cal. App. 3d 811, 165 Cal.Rptr 477 and to Quinn v Blau (Superior Court of Connecticut, 12 December 1997)). In Edwards I referred to criticism of the above three cases, criticism which I considered to be well founded (see judgment in Edwards at paras 86-90). Nor have I found the French decision in Perruche (supra) helpful, having regard to the matters I referred to in Edwards (at para 44). What emerges from my consideration of the authorities is that there has been consistent and widespread rejection of claims classified as ‘wrongful life’ claims.”

11 Once again I remind myself, as I did in Edwards and in Harriton, that I am not bound to follow any of those authorities I have reviewed (at paras 9-46 in Edwards), and I am mindful of the criticism of counsel concerning the reasoning in McKay, but again in this context I repeat what I wrote in Edwards at para 50 having analysed the cases reviewed:

“…I have found the reasons expressed for the rejection of ‘wrongful life’ claims in the cases I have reviewed to be cogent. Mr Hirsch was critical of the reasoning in McKay . He submitted that the characterisation of the duty issue was wrong, because the child asserted no duty to be killed. It was also submitted that the court was in error in its approach to the problem of damages. I have considered the judgments in McKay , with the submissions of Mr Hirsch, and of Mr Segal in Harriton and of Mr Bates in Waller very much in mind, but it is appropriate that I record now that, as did the Court of Appeal in Manitoba in Lacroix , I found McKay to be very persuasive authority.”

The claims by the third plaintiff against the first, second and third defendants considered

12 Since the facts relevant for the purposes of the issues now to be considered have been agreed and recorded, I do not propose to analyse them further but to proceed directly to a consideration of the issue of the duty of care. I note at the outset that because their involvement was different, it will be necessary to look discretely at the positions of the first and the second defendants and then of the third defendant. The third defendant was first consulted after the first plaintiff’s pregnancy had been confirmed.

13 Mr Bates referred to the decisions in Watt v Rama (1972) VR 353, X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 and Kosky & Anor v The Trustees of the Sisters of Charity (1982) VR 961 as authorities for the existence of a duty of care owed by the first, the second and the third defendants towards the third plaintiff. In the course of his written submissions, Mr Bates made a very close analysis of these cases, referring extensively to dicta in them. I do not propose to quote so extensively from these authorities because what they establish is now well settled.

14 The infant plaintiff in Watt v Rama was injured en ventre sa mere when his mother was seriously injured in a motor vehicle accident. The contention in that case that the infant did not have a cause of action because the defendant owed no duty of care to an unborn child was rejected. It was held unanimously that the defendant did owe a duty of care not to cause injury to the child then unborn although damage for the purpose of tortious negligence only crystallised on birth and the cause of action in tort for a minor crystallised when he was born.

15 X & Y (by her tutor X) v Pal was a case in which the mother was unaware that she had syphilis. The allegation was that her medical advisers were negligent in failing to test for and to discover the syphilis whilst she was pregnant with Y who was subsequently born with congenital syphilis and other disabilities. The defendant doctors asserted they owed no duty to Y as an unborn person but that assertion was rejected. Mr Bates drew particular attention to the judgment of Clarke JA in this case in the following passages (at p 37):

“The correct approach requires that attention be focussed on the question whether A breached a duty of care which he owed to a class of persons and, if so, whether B was a member of that class. Unless the law requires that each member of the class be in existence at the time of the breach of duty then no reason would appear why a person born, or even conceived, after it occurred would not be entitled to recover in respect of damage suffered as a result of that breach of duty if he could show that he was a member of the relevant class. To hold otherwise would, in my view, be contrary to authority and would, in addition, lead to results in particular cases which would universally be considered unfair or unjust.
I would express the position in these terms – A may be liable in damages to B notwithstanding that B had not been conceived at the time A acted carelessly if the following conditions be satisfied:
(a) In all the circumstances A owed a duty to take care to a particular class of persons;
(b) A breached that duty;
(c) B was subsequently born suffering from damage which was causally related to those actions/omissions of A which constituted the breach of duty to the particular class of persons; and
(d) B was a member of the relevant class of persons.
If the matter is expressed in that way then, as I see it, there is no need for a court to concern itself with perceived difficulties arising from the apparent awkwardness of a concept that A may both owe a duty to B and breach that duty before B is born (or even conceived).”

16 Then, later at p 38, his Honour went on to say:

“Fleming, The Law of Torts 7th ed, (1987) at 152, saw two problems in a claim brought by a child deformed as a consequence of negligent conduct occurring before her birth. First, the lack of legal personality and, secondly, the absence of foreseeability.
The latter is a problem to be resolved on the facts of the case just as in the more usual cases which come before the courts. In some instances it may not be possible for a plaintiff to establish this element but in others the pre-natal injury leading to a child being born deformed may be just the kind of thing which a doctor would recognise may occur if he did not use due care. Fleming postulated two ways of overcoming the problem of the absence of legal personality. One was to deem the child ‘to be a person entitled on birth to compensation for injury…’. The other to consider the position upon the birth of the child (when the damage occurred and the cause of action arose) and resting liability solely on foreseeability.
If one postulates the duty in terms of the class or category of persons to whom it is owed, as I believe one should, and accepts that there may be within that class persons who are not born when the careless conduct occurs there is no need to resort to artificial concepts, such as deeming, or to be unduly troubled about the child’s lack of legal personality at the time of that conduct.
While in particular cases the relevant question may simply be whether it can be said that A owed a duty to B there will be other cases in which the question, more accurately phrased, is whether A owes a duty to a category of persons so that if he breaches that duty any of the persons within that category, subject to particular defences which may arise in relation to the claim being pursued, may sue. Of course, proof that a duty is owed by A to B which duty is breached by A will not, without more, give rise to a cause of action in B. That will only arise if B suffers damage as a result of the breach. In a case such as the present that damage will be suffered, or at least the law will only recognise that it has been suffered, upon the birth of the child. The fact that damage was suffered many years after the breach of duty has never been regarded as an impediment to the cause of action. Nor should, in my view, the fact that a particular plaintiff acquired legal personality (and suffered damage) years after the breach.”

17 His Honour did not consider it mattered whether the infant harmed was even in existence at the time when the acts constituting the breach of duty occurred. As to this, his Honour said (at p 40):

“I do not know whether it is necessary to speak of the duty as being potential or contingent. For my part I would prefer to say that if the injured person falls within the class to whom the duty was owed it matters not that he was not identified, or not in existence, at the time when those acts occurred which constituted the breach of the duty to take care. Let me give an example in an endeavour to make my point good.
Take the case of tinned baby foods. They are made for ingestion by infants. If a young child ate baby food which had been impregnated with deleterious substances, and which impregnation was not discoverable on a reasonable inspection by the child’s parents, and as a result suffered serious illness, prima facie that child would enjoy a good cause of action against the manufacturer. Would it make any difference if the child which ingested the baby foods had been conceived but not born when the goods were released onto the market? I think not. I would take it that the manufacturer would know that babies were likely to be affected by carelessness on its part in marketing deleterious products and would therefore owe to that class of person a relevant duty of care. In this respect I cannot accept that the fact that the injured child was born one day after the goods had been released onto the market, rather than one day before, would provide a reason for excluding that child from the class of persons to whom the duty of care was owed. In both cases the risks would be foreseeable. Nor can I see any reason in principle for excluding a child who had not been conceived at the time the goods were released onto the market. No doubt the nature of some goods would be such that the length of time between the marketing of the goods and the conception of the child might negate a duty of care but leaving to one side those cases in which time may be a significant feature it is my opinion that the manufacturer would owe a relevant duty to all children likely to be fed the foods irrespective of whether they had been born, or even conceived, at the time the goods were put on the market.”

18 Mr Bates then referred to Kosky & Anor v The Trustees of the Sisters of Charity, a decision of Tadgell J in the Supreme Court of Victoria. In that case, many years before her pregnancy the mother was injured in a car accident and afterwards she had been given an incompatible blood transfusion in hospital. That had introduced a particular disorder into her blood system and the child later conceived became affected. In proceedings subsequently commenced by the child, the hospital asserted no duty had been owed to him because the incompatible blood transfusion had occurred eight years before his conception. Tadgell J expressed the view (at p 969), following Watt v Rama, that a duty was owed to the child.

19 Mr Bates submitted, consistently with the above cases and in particular the case of X, that the potential duty to the third plaintiff arose even before his conception as a potential member of a class of persons, namely that class who may become persons upon birth following the creation of an embryo and implantation into the mother’s womb. It was argued that after the embryo was developed and even before its transfer to the womb, there was clearly a duty, or a potential duty, owed to him as a member of a narrower class of persons, namely those who may become persons after live birth coming from embryos developed artificially in the laboratory and then implanted.

20 Mr Bates submitted on this analysis that the first and the second defendants owed a potential duty of care to the third plaintiff from the time they first became involved in treating the first plaintiff.

21 So far as the third defendant was concerned, since the third plaintiff was en ventre sa mere when he was first consulted, it was submitted that Watt v Rama established that a duty of care to the third plaintiff existed from the time of that first consultation.

22 The authorities reviewed lead me to conclude that the third defendant owed to the third plaintiff a duty of care from the date upon which his mother first consulted him. The first and the second defendants also owed to the third plaintiff a duty of care, not necessarily only from the date of his conception but potentially existing during the time of their treatment of his mother.

23 What was the content of the duty owed to the third plaintiff by the defendants?

24 I consider firstly the position of the first and the second defendants.

25 Mr Bates has submitted that the first and the second defendants owed to the third plaintiff as a potential person a duty to inform the first and second plaintiffs of all material facts that would bear on his potential health as a person to enable the first and second plaintiffs to decide what course they should take having regard to the potential third plaintiff’s best interests. This meant that the first and second plaintiffs should have been advised, in discharging the duty of care owed to the third plaintiff, that the second plaintiff had the AT3 deficiency and that this could be passed on to the child. It was also submitted that the parents should have been told, in the discharge of the duty owed to the third plaintiff, that testing could be undertaken for the presence of AT3 in any embryo before implantation in the womb.

26 It was submitted that the duty owed to the third plaintiff could only be discharged through giving the necessary information to his parents and that it was for them, and in particular his mother, to decide what should be done. The decision of the mother or the parents was to be determinative, and the duty of the first and the second defendants extended no further than to convey the necessary information to the parents. Had the parents, duly informed, decided to proceed with the implantation of the embryo and the child was later born disabled because of AT3 deficiency, then, in such circumstances, the defendants would not have been liable.

27 In developing this argument, Mr Bates referred to cases in which the courts have declined to intervene to prevent a mother from having an abortion. Reference was made to the Attorney General for the State of Queensland v T (1983) 57 ALJR 285. In that case Gibbs CJ cited with approval the decision of Sir George Baker P in Paton v BPAS Trustees (1979) 1 KB 276 at 279 that a foetus has no right of its own until it is born and has a separate existence from its mother. In The Marriage of F & F (1989) FLC 92-031 the Family Court refused injunctive relief to a husband seeking to restrain his estranged wife from terminating her pregnancy.

28 I do not find those cases helpful in determining the content of any duty of care owed by the first and the second defendants, or, indeed, by the third defendant, to the third plaintiff. Those decisions demonstrate a refusal to intervene in cases where an expectant mother has, for her own reasons, decided to have an abortion.

29 That the duty as defined by Mr Bates may have been owed to the first and the second plaintiffs personally is not in question here. But was that same duty owed to the third plaintiff? Had the duty in such terms been owed to the third plaintiff and had it been discharged, the third plaintiff would never have been born. This emerges from agreed fact 44:

“44. If the first and second plaintiffs had been advised by the first, second and/or third defendants that the second plaintiff’s antithrombin 3 deficiency was genetic and could be passed to any child, the first and second plaintiffs would have:

(a) deferred egg harvest and/or embryo transfer until methods to ensure transfer of only AT3 deficiency free embryos were identified; or
(b) used donor sperm; or
(c) if informed after confirmation of pregnancy of the 50% chance or the certainty of the foetus suffering from the AT3 deficiency, sought and obtained a lawful termination.”

30 Mr Bates has been unable to refer to any authority supporting the existence of such a duty of care as that for which he here contends. Watt v Rama was a case in which harm was done to the foetus by negligent conduct. In X & Y v Pal the tort feasor caused harm to the foetus by omitting to detect and to treat syphilis in the mother. In each of these cases the liability of the tort feasor was consequential upon breach of a duty whether by act or omission not to cause injury to the unborn child.

31 I cannot accept that the first and the second defendants owed to the third plaintiff a duty, the content of which could encourage a decision by his parents to prevent his birth. Moreover, if there existed the concurrent duties urged by Mr Bates, this could lead to conflicting and inconsistent interests and obligations in the parents. As he expresses them, the duty to the parents was a duty to inform, thus putting the parents in a position to act as they saw fit in their own interests. The duty to the child-to-be was to provide the same information, but it was then for the parents to act in the best interests of such child. It by no means follows that what was perceived to be in the decision-maker’s best interests would be perceived to be in the potential child’s best interests. Indeed, the potential for conflict and mutually inconsistent responses is obvious. Making a decision in her own interests, a potential mother may well decide that the risk of having a child born disabled would not be worth taking and that it was in her best interests to terminate a pregnancy. On the other hand, if that same person was called upon to decide whether the termination of the pregnancy was in the potential child’s best interests, in the very same circumstances, the opposite conclusion may well have been reached.

32 The duty of care owed by the relevant authority’s laboratory and by the doctor in McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166 was defined by Stephenson LJ at 1178-1179 as being a duty not to injure the child during the mother’s pregnancy. Acker LJ at 1188 rejected the submission that the duty of care to the foetus “involved a duty…albeit indirectly by advice to the mother, to cause its death” and added:

“I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person whether or not in utero to terminate his existence. Such a proposition runs wholly contrary to the concept of sanctity of human life.”

33 Griffiths LJ said at 1192:

“It surely cannot be asserted that the doctor owes a duty to the foetus to urge its destruction.”

34 Mr Bates has acknowledged that the decision in McKay which I have reviewed extensively in both Edwards and in Harriton is against him, but Mr Bates has submitted that I should not follow McKay because the reasoning in McKay was flawed. It was submitted that the court confused the doctor’s role with the parents’ role and went too far in formulating the content and scope of the doctor’s asserted duty of care to the foetus. It was submitted that the court in McKay was in error in trespassing into the decision-making prerogatives which were those of the parents, particularly the mother.

35 I have given Mr Bates’ submissions concerning McKay anxious consideration, as, indeed, I gave the submissions of Mr Hirsch and Mr Segal anxious consideration in the matters of Edwards and Harriton. I will not repeat here the extensive references to the judgments in McKay which I set out in Edwards (paras 14-22), but I have found the reasoning in McKay to be most persuasive. So, too, I observe did the Court of Appeal in Manitoba in Lacroix v Dominique [2001] MBCA 122: see in particular the judgment of Twaddle JA at para 37. Mr Bates’ criticism of the reasoning in McKay is similar to that of Mr Segal in his submissions in Harriton. I addressed that criticism at paras 18-21 in Harriton, and I will not repeat what I there said.

36 I respectfully agree with the definition of the content of the duty of care owed to the unborn child expressed by Stephenson LJ in McKay. The duty which was owed to this plaintiff was a duty not to injure him. I do not consider that a duty in the terms contended for by Mr Bates was owed to the third plaintiff, and indeed I would regard the formulation of such a duty as being contrary to public policy. I shall address considerations of public policy later.

37 Was there a breach of the duty of care which was owed by the first and the second defendants, limited in content as I find it to have been to a duty not to injure the third plaintiff? Obviously the first and the second defendants played a very important role in facilitating the development of the embryos which were implanted in the womb of the first plaintiff but does it follow from this that they caused injury to the third plaintiff?

38 On this issue I again repeat what I wrote in Edwards (at para 68):

“Common sense has a central role to play in determining causation. In Stapley v Gypsum Mines Ltd (1953) AC 663 at 681, Lord Reid said that what caused an accident from the point of view of legal liability ‘must be determined by applying common sense to the facts of each particular case’. Lord Reid’s dicta were cited with approval in March v Stramare (1991) 171 CLR 506 by Mason CJ at 515 and by Deane J at 523-524, and in Chappel v Hart (supra) by Gaudron J at 238. The application of common sense cannot be divorced from value judgments and policy considerations: March v Stramare (at 516) and Chappel v Hart (at 243).”

39 The AT3 deficiency responsible for the third plaintiff’s disabilities was a deficiency inherited from the second plaintiff and, indeed, it is an agreed fact that this deficiency was genetic and not iatrogenic (see agreed fact 47). This being so, the first and second defendants did not cause the third plaintiff’s disabilities and there was no breach by either of them of the duty of care limited, as I find it to have been, to a duty not to injure the third plaintiff. Indeed, as I understand them, Mr Bates’ submissions on breach of duty of care and on causation depended upon acceptance of the proposition that the duty of care owed by the first and the second defendants was more broadly based in the manner in which he expressed it.

40 Turning to the third defendant, it was submitted that he owed a duty to the third plaintiff to inform the first plaintiff, and possibly the second plaintiff, about the significance of the AT3 deficiency in the second plaintiff and its possible consequences.

41 I reject that submission. I do so for substantially the same reasons as I have rejected the submission Mr Bates advanced concerning the content of the duty of care owed by the first and the second defendants. Again, in the case of the third defendant, I cannot accept that he owed a duty, the content of which could encourage, and indeed here would have encouraged, a decision by the third plaintiff’s parents to prevent his birth.

42 In my opinion, the content of the duty of care owed by the third defendant was no more and no less than the content of the duty of care owed by the first and the second defendants. It was simply a duty not to injure the third plaintiff.

43 The third defendant did not cause the AT3 deficiency so there was no breach of the duty of care which I find was owed by the third defendant to the third plaintiff by reason of the fact of the third plaintiff’s birth with that deficiency and the disabilities solely attributable to it.

44 The third plaintiff brings an additional claim against the third defendant, and this is recognised in agreed fact 48, that the third plaintiff suffered injury in consequence of the third defendant’s negligence in the management of his delivery and neonatal care. This judgment is not concerned with that additional claim. If the third defendant was negligent as alleged in the management of the third plaintiff’s delivery and neonatal care so as to cause him harm, then findings to this effect would attract an entitlement to an award of damages. That is a matter to await determination at a subsequent trial. However, for the purposes of this separate determination of question 1 as identified in para 3 of this judgment, I find no breach of the duty of care which the third defendant owed to the third plaintiff.

45 It follows from the conclusions I have expressed that the first of the questions the subject of this separate determination is to be answered in the negative. However, this matter has been fully argued before me, and I propose to consider the further issues of damage and damages.

46 Mr Bates submitted that the third plaintiff is entitled to damages including general damages as against each of the three defendants. Mr Bates submitted that the plaintiff was entitled to be compensated for the difference between life without suffering, such as is associated with the third plaintiff’s disabilities, and the life that would be enjoyed by a person uninjured. He submitted further that the third plaintiff was entitled to other heads of damage including medical and hospital expenses and other traditional heads of damage in actions based upon the tort of negligence.

47 In Edwards, and again in Harriton, I addressed what I perceived to be, firstly, the necessity to determine damage and then the impossibility of doing so conceptually, and I went on to address the impossibility of assessing damages in cases of “wrongful life”. I refer to paras 70-92 of my judgment in Edwards and to paras 28-50 of my judgment in Harriton. I do not propose to repeat all that I said on these issues in those two matters.

48 However, the starting point must be to determine what was the damage that the third plaintiff has suffered. The “damage” must be identified before the court can proceed to attempt an assessment of “damages”: see Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522, and in particular the joint judgment of Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ at 527.

49 I cannot accept the submission made by Mr Bates that in order to determine whether the plaintiff has suffered damage, it is appropriate to consider and to draw a comparison between life without disabilities and life with disabilities. Had the defendants done that which the third plaintiff contends ought to have been done to discharge the respective duties of care which it is claimed were owed, then on the agreed facts the third plaintiff would never have been born. In order therefore to determine whether the third plaintiff suffered “damage” in being born disabled inevitably involves comparing the value of non-existence with the value of existence in a disabled state. The comparison which legal principle requires is an impossible exercise.

50 Again I state that I have found the reasoning of the Court of Appeal in McKay on this question of damage and the assessment of damages to be very persuasive, and I refer once again to the following passages:

(a) Stephenson LJ at 1181:


“Finally, there is the nature of the injury and damage which the court is being asked to ascertain and evaluate.

The only duty of care which courts of law can recognise and enforce are duties owed to those who can be compensated for loss by those who owe the duties, in most cases, including cases of personal injury, by money damages which will as far as possible put the injured party in the condition in which he or she was before being injured. The only way in which a child injured in the womb can be compensated in damages is by measuring what it has lost, which is the difference between the value of its life as a whole and healthy normal child and the value of its life as an injured child. But to make those who have not injured the child pay for that difference is to treat them as if they have injured the child, when all they have done is not having taken steps to prevent its being born injured by another cause.

The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child? Even if a court were competent to decide between the conflicting views of theologians and philosophers and to assume an ‘after life’ or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the injured child’s life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained?”

Then at 1182:

“If a court had to decide whether it were better to enter into life maimed or halt than not to enter it at all, it would, I think, be bound to say it was better in all cases of mental and physical disability, except possibly those extreme cases already mentioned, of which perhaps the recent case of Croke v Wiseman [1982] 1 WLR 71 is an example, but certainly not excepting such a case as the present. However that may be, it is not for the courts to take such a decision by weighing life against death or to take cognisance of a claim like this child’s. I would regard it on principle as disclosing no reasonable cause of action and would accordingly prefer the master’s decision to the judge’s.”

(b) Ackner LJ said in McKay (at 1189):


“The disabilities were caused by the rubella and not by the doctor… What then are her injuries, which the doctor’s negligence has caused? The answer must be that there are none in any accepted sense. Her complaint is that she was allowed to be born at all, given the existence of her pre-natal injuries. How then are her damages to be assessed? Not by awarding compensation for her pain, suffering and loss of amenities attributable to the disabilities, since there were already in existence before the doctor was consulted. She cannot say that, but for his negligence, she would have been born without her disabilities. What the doctor is blamed for is causing or permitting her to be born at all. Thus, the compensation must be based on a comparison between the value of non-existence (the doctor’s alleged negligence having deprived her of this) and the value of her existence in a disabled state.

But how can a court begin to evaluate non-existence, ‘the undiscovered country from whose bourn no traveller returns?’ No comparison is possible and therefore no damage can be established which a court could recognise. This goes to the root of the whole cause of action.”

(c) Then, turning to the judgment of Griffiths LJ, I quote what appears at 1192-1193:


“To my mind, the most compelling reason to reject this cause of action is the intolerable and insoluble problem it would create in the assessment of damage. The basis of damages for personal injury is the comparison between the state of the plaintiff before he was injured and his condition after he was injured. This is often a hard enough task in all conscience and it has an element of artificiality about it, for who can say that there is any sensible correlation between pain and money? Nevertheless, the courts have been able to produce a broad tariff that appears at the moment to be acceptable to society as doing rough justice. But the whole exercise, difficult as it is, is anchored in the first place to the condition of the plaintiff before the injury which the court can comprehend and evaluate. In a claim for wrongful life how does the court begin to make an assessment? The plaintiff does not say, ‘But for your negligence I would have been born uninjured.’ The plaintiff says, ‘But for your negligence I would never have been born.’ The court then has to compare the state of the plaintiff with non-existence, of which the court can know nothing; this I regard as an impossible task. Mr Wilmers suggested that the court should assess the damages on the assumption that the plaintiff’s injury had been caused by the hospital, and then discount the damages because it had not been so caused. But he was quite unable – and I do not blame him – to suggest any principle upon which the discount should be calculated.

Again, suppose by some happy chance the child is born with only a slight deformity, can it bring an action upon the basis that it would have been killed in the womb if the mother had been told of the risk of greater deformity? Such a claim seems utterly offensive; there should be rejoicing that the hospital’s mistake bestowed the gift of life upon the child. If such claims are rejected, upon what basis could a claim be brought for a more serious injury? Only, it would seem, on the basis that the state of the child is such that it were better dead than alive. But knowing nothing of death, who is to answer this question, and what two minds will approach the answer by the same route? I regard the question as wholly outside the competence of judicial determination.

I would reject this novel cause of action because I see no way of determining which plaintiffs can claim; that is, how gravely deformed must the child be before a claim will lie; and secondly because of the impossibility of assessing the damage it has suffered.

The common law does not have the tools to fashion a remedy in these cases. If society feels that such cases are deserving of compensation, some entirely novel and arbitrary measure of damage is called for which, I agree with Jasen J in Becker v Schwartz , 413 NYS 2d 895, would be better introduced by legislation than by judges striving to solve the insoluble.”

51 Once again, I refer to the American authorities reviewed in Edwards in which the courts rejected “wrongful life” claims. In those cases there are many expressions of principle, which I indicated in Edwards and Harriton I find to be persuasive. In those American cases, the significance of the impossibility of determining damage has been stressed. (I identified these cases at para 35(1) of my judgment in Edwards). In this regard I refer once more to what was said in Becker v Schwartz 386 N.E. 2d 807 (N.Y. 1986):

“However, there are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. (Cf Williams v State of New York, 18 NY2d 481, 484 , supra .) There is no precedent for recognition at the Appellate Division of ‘the fundamental right of a child to be born as a whole, functional human being’ ( 60 AD2d, at p 88 ). Surely the use of somewhat similar words in another context affords no such basis. (Cf. Endresz v Friedberg, 24 NY2d 478, 483 , distinguishing Woods v Lancet, 303 NY 349 .) Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honoured, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?”

52 I refer again to Nelson v Krusen 678 S.W. 2d 918 (Tex. 1984), a decision of the Supreme Court of Texas, where a “wrongful life” claim was rejected, and the court said:

“Our holding is not based on a mere difficulty in assessing a dollar amount of damages. It has long been held that imprecision of damages is not a bar to recovery. Hindman v Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957); Southwest Battery Corp. v Owen , 131 Tex. 423, 115 S.W.2d 1097 (1938) . But this is not just a case in which the damages evade precise measurement. Here, it is impossible to rationally decide whether the plaintiff has been damaged at all. That ‘is a mystery more properly to be left to the philosophers and the theologians.’ Becker v Schwartz, 413 N.Y.S.2d 895, 386 N.E.2d at 812 .”

53 As in the case of Edwards, my opinion is that “the impossibility of determining damage in a case such as the present of itself compels the rejection of this claim”.

54 Passing from that impossible issue, how would one attempt the assessment of damages if an award was permissible? What the court would be required to do is to award a sum of money by way of compensation which, so far as money can do it, would put the third plaintiff in the same position he would have been in had the tort not been committed: see Haynes v Bendall (1991) 172 CLR 60 and in particular the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ at 63. There are a few American cases where damages were awarded in “wrongful life” claims and I addressed these in my judgment in Edwards at paras 37-43 and paras 86-90, and in my judgment in Harriton at paras 42-44. In only one of these cases was an award of general damages made, and I do not find I am assisted by any one of those few cases, for reasons I gave in Edwards and in Harriton.

55 Mr Bates submitted however that the decisions in Parkinson v St James & Seacroft University Hospital NHS Trust (2001) 3 All ER 97 and in Groom v Selby (2001) EWCA Civ 1522 are analogous to the present case and should be applied. I do not accept this submission.

56 In each of the cases of Parkinson and Groom the plaintiff was the mother of a disabled child. In Parkinson the child would not have been conceived but for the negligence complained of and in Groom a pregnancy would not have been continued but for the negligence of which the plaintiff complained. In each of these cases, the liability of the defendant arose through breach of duty owed to the plaintiff with a content altogether different from any duty owed by any of the three defendants to the third plaintiff in this case. Moreover, the ascertainment of “damage” in the cases of Parkinson and Groom did not occasion difficulty, let alone impossibility of discernment.

57 In my opinion, an assessment of compensatory damages in accordance with the principles stated in Haynes v Bendall could not be achieved, and this is yet another reason why the claim under consideration is not maintainable.

58 Mr Bates, as an alternative, adopted the submissions made by Mr Segal in his address in reply in Harriton. I considered those submissions in my judgment in Harriton at paras 45-48. I do not accept that damages can properly be assessed on this alternative approach for the reasons stated in Harriton.

Public policy

59 Mr Bates submitted that the first and the second defendants should be held responsible for the consequences of the creation and the implantation of the embryo with the accompanying AT3 deficiency. He submitted they should pay the price for their involvement in an area “that once upon a time would have been regarded not as a responsibility of this world.”

60 If the first and the second defendants were negligent in the respects outlined in the statement of facts agreed upon for the purposes only of the separate determination of the issues presently being considered, then upon proof of those matters in the proceedings brought by the first and the second plaintiffs, these defendants will be liable to compensate those plaintiffs in damages. In Australia, in England and in the United States of America, claims of parents have succeeded in “wrongful birth” cases, that is, in actions brought by a parent or parents following the birth of a child who would not have been born but for the negligence of the defendant or defendants. Indeed, in England categories of “wrongful conception” and “wrongful birth” have been recognised, but it is not necessary to deal with any distinction in these categories here. I reviewed the authorities in “wrongful birth” actions in Edwards at paras 95-104 and also shortly in Harriton at paras 54-57. Whilst the High Court has not yet determined whether the costs of rearing a child in a “wrongful birth” case are recoverable, the cases I reviewed in Edwards and in Harriton indicate that damages are recoverable in Australia by a parent or parents in this class of action for the costs of caring for a disabled child, although precisely what damages are recoverable I consider to be unsettled: see in particular Vievers v Connolly (1995) 2 Qd R 326; CES v Superclinics (Australia) Pty Limited (1995-96) 38 NSWLR 47; Melchior & Anor v Cattanach & Anor [2001] QCA 246; and Parkinson v St James & Seacroft University Hospital (supra).

61 In Edwards and in Harriton I rejected inconsistency arguments advanced because of the recognition of “wrongful birth” claims and the non-recognition of “wrongful life” claims for the reasons stated in those causes (Edwards at para 111-113 and Harriton at para 62-65).

62 As earlier determined, the content of the duty of care owed to a parent or patient who brings a “wrongful birth” claim differs from the content of any duty owed to an unborn child, and, unlike any duty owed to an unborn child, the responsibilities of those engaged in treating a potential mother and in advising potential parents arise both in tort and in contract.

63 I do not consider that public policy requires that recognition be afforded in law to a claim such as that advanced here by the third plaintiff against any of the three defendants for “wrongful life”.

64 On the contrary, there are, in my opinion, weighty policy considerations against the recognition of any such claim.

65 I accept that it is proper to have regard to such considerations in determining whether the third plaintiff’s claim for “wrongful life” is maintainable: see Edwards at paras 116-118 and Harriton at paras 68-70 and the cases there cited.

66 I again identify those relevant policy considerations as being those expressed in Edwards at para 119, and again I add my observations at para 120 in Edwards:

“There are, in my opinion, clearly identifiable public policy considerations against a recognition of ‘wrongful life’ claims:
(i) the precious nature of human life itself, and the erosive effect that the acceptance of such claims would have upon the value to be accorded to human life: see McKay per Stephenson LJ at 1180 and per Ackner LJ at 1188; see also Phillips v United States (supra); Blake v Cruz (supra); Elliott v Brown (supra); Bruggeman v Schimke (supra); and Siemieniec v Lutheran Gen. Hosp. (supra);
(ii) allied to this is the impact that the recognition of this class of claim would have upon the self esteem of those born with disabilities and upon their perceived worthiness by other members of society.
Whilst the third plaintiff in this case has been born with severe disabilities, it is important to appreciate and to emphasise in relation to considerations (i) and (ii) that recognition of “wrongful life” claims if it occurred would not be limited to those claimants who are born grossly disabled: see McKay per Stephenson LJ at para 15 above and per Ackner LJ at para 20 above.
(iii) the recognition of this type of claim would lead to the exposure to liability at the suit of a child born disabled not only the doctor who had undertaken the care of the expectant mother but also to the exposure to liability of the mother of that child in the event that the mother was perceived to act unreasonably in deciding to continue with a pregnancy and to have the child with an appreciation of the risk that the child might be born disabled. The potential for the disturbance of family life that this could have, and for the wider disturbance of the fabric of society is obvious and has been recognised in the United Kingdom. Again see McKay per Ackner LJ at para 20 above. As to the acknowledgement of the exposure of parents to the risk of being sued by a child born disabled, see also Curlender v Bio-Science Labs (supra, at paras 38-39), although in Curlender the court could see no sound public policy reason for protecting parents who were negligent in deciding to continue a pregnancy.
The recognition of the cost stresses of claims in the field of professional indemnity insurance in this State prompted the passing of the Health Care Liability Act , 2001. Very recently, because of an insurer’s difficulties, there arose the need for Commonwealth government action to address concerns in relation to certain categories of claims of alleged medical negligence. There would plainly be further considerable cost pressures in relation to professional indemnity insurance, affecting insurers and insured alike, if ‘wrongful life’ claims were to be recognised. The Court should not be dismissive of such a factor, when it is being asked to recognise a previously unrecognised category of claim. As Spigelman CJ said in Kinzett v McCourt (1999) 46 NSWLR 32 at 51: ‘The judiciary cannot be indifferent to the economic consequences of its decisions.’ However, there is no evidence before this Court that would permit of any assessment of the potential impact of the recognition of this class of claim, nor was any argument addressed concerning this possible public policy issue. In the circumstances, and having regard to the conclusions I have otherwise reached, I do not consider it necessary or appropriate for me to bring into account this insurance issue as a public policy consideration.”

67 In my opinion, it would be contrary to those weighty policy considerations (i), (ii) and (iii) set out above to recognise the third plaintiff’s claim for “wrongful life”.

Summary of conclusions

68 I state my conclusions reached above in summary form:

(1) Each of the defendants owed to the third plaintiff a duty of care.

(2) The content of that duty owed by each defendant was a duty not to injure the third plaintiff.

(3) None of the three defendants was in breach of that duty so defined.

(4) None of the defendants caused injury to the third plaintiff. The third plaintiff was not born disabled because of any breach of duty owed to him by any of the first, second and/or third defendants.

(5) In a claim such as the third plaintiff here brings, had it become relevant to consider these matters, it would be impossible to determine that “damage” was suffered by the third plaintiff by reason of being born disabled or with AT3 deficiency and it would also be impossible to assess compensatory damages.

(6) The impossibility of determining “damage” would of itself compel the rejection of the claim, as would the impossibility of assessing compensatory damages.

(7) There are weighty considerations of public policy against the recognition of “wrongful life” claims such as the claim brought by the third plaintiff.

Questions answered

69 For the reasons expressed above, I answer the questions for separate determination as follows:

(i) No.

(ii) This does not arise.

70 I direct that the matter be relisted at 9.30 am on Tuesday 18 June 2002 when I will afford to the parties an opportunity to make submissions as to costs of the separate trial, and as to what orders should now be made.

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Last Modified: 06/12/2002