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Waller v James

Waller v James

Case [2002] NSWSC 462 12 June 2002

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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…

Grounds of appeal

[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.

Continue reading Waller v James

Details

AGLC: Waller v James [2002] NSWSC 462
Case: [2002] NSWSC 462
Decision Date: 12 June 2002

CaseChat Overview and Summary

The case of Waller v James involved the parents of a child born with antithrombin III (AT3) deficiency, a condition that led to severe disabilities. The parents had undergone in vitro fertilisation (IVF) treatment, and the dispute centred around whether the IVF clinic and the doctor who treated the mother during the pregnancy owed a duty of care to the child. The plaintiffs argued that the clinic failed to investigate and advise about the AT3 deficiency, and the doctor failed to take appropriate action during the pregnancy. The court had to determine if such a duty of care existed and, if so, whether it was breached, leading to the child's disabilities. Additionally, the case addressed the issue of whether a "wrongful life" claim could be maintained, given the impossibility of determining the "damage" suffered by the child and assessing compensatory damages, alongside public policy considerations.

The primary legal issues before the court were the existence and content of any duty of care owed by the IVF clinic and the treating doctor to the child conceived through IVF. The court had to examine whether these parties had a responsibility to ensure the child's welfare and, if such a duty existed, how it should be defined. Furthermore, the court needed to assess if there was any breach of this duty and whether such a breach caused the child's disabilities. Finally, the court considered the viability of a "wrongful life" claim, focusing on the impossibility of determining whether the child suffered damage and the public policy implications of allowing such claims.

In determining the issues, the court held that while the IVF clinic and the treating doctor owed a duty of care to the parents in the context of the IVF procedure, this did not extend to the unborn child. The court found that the AT3 deficiency was of genetic origin, not iatrogenic, and therefore no breach of duty could be attributed to the clinic or the doctor. The court also concluded that a "wrongful life" claim was not maintainable. It was impossible to determine whether the child suffered damage, and there was no basis for assessing compensatory damages. The court found that allowing such claims would lead to significant public policy issues, including the value of life and the potential for numerous similar claims.

The court's decision was that the IVF clinic and the treating doctor did not owe a duty of care to the child, and no breach of any such duty occurred. Consequently, the claim against the IVF clinic and the treating doctor was dismissed. The court also ruled that a "wrongful life" claim could not be maintained due to the impossibility of determining damage and assessing compensatory damages, alongside the significant public policy considerations involved. The case was therefore finalised with the dismissal of all claims against the defendants.

Orders