bill madden, slater & gordon - wrongful birth damages - the first detailed damages judgment
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WRONGFUL BIRTH DAMAGES WALLER V JAMES [2013] NSWSC 497
1
BACKGROUND
Familiar case name? Waller v James [2006] HCA 16
Factual background: Paternal Anti-thrombin condition
IVF required for the pregnancy; provided by Dr James
Keeden born August 2000
Cerebral thrombosis (CSVT) on day following discharge
2
THE CLAIM
Failure to properly inform the plaintiffs, or cause them to be informed, of the
hereditary nature of ATD (Dominant, 50% but variable manifestations)
Failure to explain / follow up recommendation for genetic counselling
Alleged that, had they been properly informed, they would not have proceeded to
conceive a child using the male plaintiff ’s sperm
Note: Proceedings issued before CLA (NSW)
3
DUTY OF CARE
The usual Rogers v Whitaker duty: to exercise reasonable care and skill in the
provision of professional advice and treatment
Note: Ordinary reasonable patient v these two patients
“…the question of the potential inheritability of ATD was of significance to the plaintiffs. It
was a matter of which the plaintiffs should have been informed…”
4
BREACH OF DUTY
“...In my opinion the defendant did not raise with the plaintiffs the potential inheritance of
ATD nor did he adequately explain to the plaintiffs the purpose of the referral with the
consequence the plaintiffs did not seek to contact Ms Duggan after the failure of the first
attempt…”
5
FACTUAL CAUSATION
Plaintiffs would have gone to genetic counsellor
Whilst most people would have gone ahead with the pregnancy anyway, once
counselled, the plaintiffs would not have
6
CAUSATION
But, the plaintiffs failed to establish that
the CSVT was caused or materially
contributed to by the ATD
Discussion: Is this relevant as a factual
or normative causation finding?
7
WALLACE V KAM
20 Yet another scenario is where the patient, if warned of material risks, would have
chosen not to undergo the treatment at the time the treatment in fact took place
but may have chosen to undergo the treatment at a later time. Analysis of that
further scenario has been more controversial.
The better analysis is that it is also a scenario in which a determination of factual
causation should be made. Absent the negligent failure to warn, the treatment that in
fact occurred would not have occurred when it did and the physical injury in fact
sustained when the treatment occurred would not then have been sustained.
8
WALLACE V KAM 2
21 To determine factual causation in a case within the second or third scenarios,
however, is to determine only that s 5D(1)(a) is satisfied. Satisfaction of legal
causation requires an affirmative answer to the further, normative question posed by
s 5D(1)(b): is it appropriate for the scope of the negligent medical practitioner's
liability to extend to the physical injury in fact sustained by the patient?
22 In a case falling within an established class, the normative question posed by s
5D(1)(b) is properly answered by a court through the application of precedent.
Section 5D guides but does not displace common law methodology….
9
CONTRIBUTORY NEGLIGENCE
No quantified finding
“…An appropriate course for the plaintiffs, taking reasonable care in their own interests
and before discarding the referral would have been to inquire of the defendant as to the
purpose of the referral. This aspect may be relevant to contributory negligence but would not
defeat the plaintiff ’s primary claim…”
10
DAMAGES ISSUES POST CATTANACH
Duration:18+ ?
Gratuitous care, is it recoverable and if so on what valuation?
Expenses, can the plaintiffs’ only recover what they can afford to pay?
Offsets for social security
Discount rates for future losses
11
ORDINARY COSTS, ON THESE FACTS
Despite Cattanach v Melchior, as these plaintiffs wanted a child, the ordinary costs of
raising Keeden were not recoverable
Discussion: How does this fit with the termination of pregnancy cases?
12
MAJORITY ISSUE
At first instance the claim should be limited to the period up to age18 years
Any entitlement beyond the age of legal majority subject to policy considerations,
and further development of the law
Note: Contrary UK authority and obiter remarks in Cattanach
13
GRATUITOUS CARE
Gratuitous care provided by the parents should be compensation by way of award for
lost wages
This also is subject to policy considerations
Note: Section 71 Civil Liability Act 2002 (NSW): “…the court cannot award damages for
economic loss for ….any loss of earnings by the claimant while the claimant rears or
maintains the child.”
14
FUTURE CARE – PAID BASIS
Future paid care may be recoverable, subject to credible evidence substantiating the
claim
If a “pragmatic approach” is adopted, may not be limited by parental income.
15
OFFSETS
Receipts or entitlements will generally be taken into account by way of offset in the
assessment of the damages
Subject to the application of provisions requiring refund
Ensure that the plaintiff does not receive and retain double compensation for the
same loss or expense
16
DISCOUNT RATES
The economic loss claim in respect of raising and caring for the child is not a
standalone claim, but rather is properly categorised as part of the total damages
claim for damages for personal injury
The 3% discount rate in Todorovic v Waller applies
Claims governed by civil liability legislation will presumably have different rates
17
IMPLICATIONS - DAMAGES
Duration:18+ ?
Gratuitous care, is it recoverable and if
so on what valuation?
Expenses, can the plaintiffs’ only
recover what they can afford to pay?
18
IMPLICATIONS - DUTY
Genetics advice
IVF
Non IVF obstetrics?
Non reproductive contexts?
19
20
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