10 May 2013

NSW Supreme Court gives important guidance about damages in wrongful birth claims

by Nick Cooper

The decision in Waller v James should provide useful future guidance in wrongful birth claims.

The NSW Supreme Court's keenly anticipated decision in Waller v James [2013] NSWSC 497 has given some useful guidance about several damages issues in wrongful birth claims, particularly:

  • whether damages can be recovered for the costs of maintaining the child beyond the child turning 18;
  • whether the parents could recover costs unrelated to the child's disability;
  • whether the gratuitous care provided by the parents could be recovered; and
  • whether, in the alternative to recovering for future gratuitous care, the parents could recover for future paid care which they would not have been able to afford without a substantial damages verdict.

In the event, Justice Hislop held that the defendant, Dr James, was not liable for the loss suffered by the plaintiffs, Mr and Mrs Waller, following the birth of their son Keeden. Nevertheless, he went on to make some observations about the damages issues, which should provide useful future guidance in wrongful birth claims.

The Wallers consult Dr James

Keeden Waller was conceived via in vitro fertilisation (IVF) carried out by Dr James, a gynaecologist with a sub-speciality in infertility and IVF. Dr James knew, from the Wallers' referral letter, that Mr Waller had a hereditary disorder called "antithrombin deficiency" (ATD). Dr James told the Wallers to see a genetic counsellor about the ATD, and gave them the contact details. The Wallers attempted to phone the genetic counsellor but did not speak with her nor see her. DrJames did not follow up on this issue.

Keeden was born with ATD. He had a stroke shortly after he was born, leaving him profoundly disabled.

The Wallers alleged that Dr James failed to inform, or cause them to be informed, that ATD was a hereditary disorder. They alleged that had they been properly informed, they would not have conceived using Mr Waller's sperm and so would have avoided the harm suffered. They claimed the cost of having, raising and caring for Keeden (as well as damages for psychiatric and physical injury caused by or resulting from Keeden's injuries and disabilities, which are not relevant to this article).

Justice Hislop concluded that Dr James had breached his duty of care. In particular, DrJames should have clearly informed the Wallers of the purpose of the referral to the genetic counsellor, because ATD was inheritable.

Notwithstanding this finding, the Wallers' claim failed. Justice Hislop held that the loss claimed was beyond the scope of Dr James' duty of care. There was no evidence of a link between ATD and neonatal stroke. Hence, the loss to the Wallers resulting from Keeden's neonatal stroke was not a reasonably foreseeable consequence of DrJames' alleged breaches.

The Wallers also failed on causation. The Wallers sought to apply Cattanach v Melchior (2003) 215 CLR 1. They argued that but for Dr James' breaches, Keeden would not have been born and would not have suffered a stroke and, further, that their injuries and economic loss resulted from Keeden's disabilities.

While Justice Hislop accepted that, but for Dr James' breach of duty, Keeden would not have been born, he rejected the Wallers' argument. Although DrJames' breaches secured Keeden's presence, which made it possible for Keeden to then suffer a stroke, as a matter of ordinary common sense DrJames' conduct was not a cause of the stroke.

Recoverability of loss associated with child's disability beyond 18

It was common ground that Keeden would require full time care for his lifetime, and that his life expectancy was estimated to be 52 years.

The Wallers claimed damages for the provision of past care, future care and related out of pocket expenses resulting from Keeden's disability. Justice Hislop noted there was no binding authority on this point, and based his decision on the current state of development of the law. He therefore limited damages to the period up to Keeden's 18th birthday, which marked the end of the Wallers' legal responsibility to care for him.

Recoverability of costs of raising a child not associated with disabilities

In Cattanach, damages were awarded for the cost of raising a non-disabled child. The Wallers argued that, since the costs of raising an unwanted healthy child were recoverable, it would be artificial and contrary to the principles in Cattanach to distinguish between the costs of raising that part of Keeden that was disabled, and that part of him that was healthy.

Justice Hislop would not have awarded damages for the ordinary costs of raising a non-disabled child, distinguishing Cattanach because the plaintiffs in Cattanach did not want a child, whereas here they did. Further, Keeden's suffering ATD caused the plaintiffs no loss. Accordingly, the Wallers' damages were limited to the losses caused by the stroke, and hence the losses associated with Keeden's disabilities.

Recoverability for the parents' provision of gratuitous care

The Wallers also claimed damages for gratuitous care they had provided, and would provide, to Keeden, by analogy with Griffiths v Kerkemeyer (1977) 139 CLR 161. Hence, their claim was to recover an amount equivalent to the commercial cost of nursing and domestic services. However, their claim was different from a Griffths claim because the Wallers were the providers, not the recipients, of gratuitous care.

Justice Hislop also considered the appropriateness of a competing basis for calculating damages, being the earnings foregone by the Wallers in caring for Keeden (as contended for by Dr James).

His preference was to calculate damages using the Griffiths method. However, given the policy considerations involved, he concluded that the preferable course would be to award loss of wages.

Recoverability of future paid care

The Wallers claimed, in the alternative to their claims for gratuitous care, the cost of future paid care at commercial rates.

Dr James argued that this was an item of special damages, and thus the Wallers had to prove they would be able to fund this care without being awarded a substantial verdict. That is, because damages awards are based on compensatory principles, the Wallers could not recover damages as compensation for expenditure that they would not otherwise incur.

Justice Hislop considered Dr James' submission unattractive, but accepted that a court at first instance might be bound to accept it. He noted, however, that the submission depended on the distinction between special and general damages, which has been substantially eroded since Griffiths was decided – and that a more pragmatic approach may ultimately prevail.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.