A couple underwent IVF, through a fertility clinic in late 1999 (prior to the Civil Liability Act 2002 (NSW)) and a baby boy was born with anti-thrombin deficiency (ATD, AT3, Factor III deficiency) in 2000, which was genetically inherited from the father. Four days after birth, the baby suffered a cerebral sinovenous thrombosis (CSVT), a form of a stroke.
In 1999, genetic testing of embryos was not available and was regarded as “experimental technology with unproven accuracy.“
However, genetic counselling was available, which the IVF specialist referred the couple to, but they did not follow through and consult with the genetic counsellor, to obtain information so that they could form a view as to whether or not they were concerned with the possible consequences of ADT being passed on by the father.
The IVF doctor provided a referral to the genetic counsellor on a ‘post it note‘ – was that a breach of his duty of care? If he did breach his duty of care, how did the breach occur? Was the harm suffered by the couple, which resulted from the babies CSVT, not ADT, caused by the IVF Specialists breach? Is this a ‘novel case‘? If so, what are the principles in a ‘novel case‘?
These facts above are from the case of Waller v James  NSWCA 232, which was first heard, according to the common law principles of negligence (pre Civil Liability Act), in 2013 and judgment was found in favour of the Respondent. The Plaintiff’s appealed and the appeal was dismissed. Why? The case provides practitioners with useful authorities and reasoning, particularly in respect to causation and remoteness.
I’ll very briefly summarise some of the ‘highlights‘ prior to further more in depth reading of the case;
Post It Note: Breach?
At first instance, His Honour held that referral by way of a ‘post-it note‘ (a common occurrence in practice) did not constitute a breach of duty in circumstances where a formal referral was not required. The purpose of the post-it note was to give the appellants information as to the name of the person to contact for genetic counselling. No more was required than the provision of that information. As his Honour noted, the breach was in failing to explain adequately the reason for the referral, a duty of “specific content“. The Court of Appeal agreed. Therefore the IVF specialist was found to have breached his duty of care.
The Appellant’s advanced their case on 2 alternative bases:
- The baby boy’s ATD played a causative role in bringing about his disabilities. At first instance, after reviewing expert evidence opinion, His Honour determined that ATD was not the cause of the baby boy’s CSVT (stroke). This finding at first instance was not challenged on appeal.
- Had they been properly advised, they would have deferred undergoing IVF treatment when they did in 1999 until procedures were available to ensure that only an embryo not affected by the AT3 mutation was transferred to the mother. In other words, they would not have proceeded with the IVF treatment using the father’s sperm at that time and the baby would not have been born. The Appellant’s claimed that as a result of their sons birth, they had suffered “injury, loss and harm to date and continuing”.
The Appellant’s submitted that because the risk of having a child with ATD came home, the Respondent should be liable for all the consequences that flow from their son’s birth. As a secondary position, they submitted that, “at the very least”, they were entitled to the cost of rearing and maintaining their son without regard to the extra cost arising from the disabilities caused by his CSVT. However, their primary submission was that the Respondent should be liable for the financial and other consequences of their sons CSVT, it being a general risk of any birth.
In Wallace v Kam, at , the Court noted the role of legal policy in the determination of causation:
“In a novel case [it is] incumbent on a court answering the normative question [as to causation] explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to ‘the purposes and policy of the relevant part of the law’.”
Although in Wallace v Kam causation was governed by the Civil Liability Act 2002 (NSW), s 5D, the evaluative considerations involved at common law do not differ in substance. As the Court remarked, at :
“A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid.”
As found in Wallace v Kam, the underlying policy consideration giving rise to the relevant rule of attribution of legal liability is the duty to protect patients from the occurrence of physical injury, the risk of which is unacceptable to the patient. In this case, the unacceptable risk that the appellants were not willing to bear was having a child with the inherited condition of ATD.
It was found on appeal it was not necessary to approach this case, as a novel case. However, novel cases are decided by reference to existing principle as the various considerations to which Allsop P referred in Caltex Refineries (Qld) v Stavar demonstrate, i.e. according to the ordinary principles of negligence.
The appellants’ primary case was based on the contention that the baby’s disabilities were causally connected with his inheritance of the ATD gene. The appellants failed to prove that was the case and do not challenge the primary judge’s finding on that aspect of the matter.
Judgment On Appeal
It was found that the Appellants have not been successful in showing a causal link between any loss to them and any breach of a duty owed by the respondent. No loss was suffered as a result of the fact that the risk of having a baby with the inherited ATD gene, about which they were not properly warned, came home. The baby suffered catastrophic harm from an extremely rare event after birth that had no link to ATD and it was unrelated to any information with which the appellants would have been provided had they received genetic counselling. The harm was too remote and not foreseeable. The appeal was dismissed.
Genetic Testing Now
Pre-implantation Genetic Diagnosis (PGD) is a sophisticated scientific technique which can now be used to test embryos for either a specific known genetic condition or chromosome abnormality.
This enables only chromosomally normal embryos or those unaffected by a specific disorder to be selected for transfer during an IVF cycle, maximising the chance of a healthy baby.
If you are in need of a barrister and/or mediator who has 15 years experience employed in medicine, and as a result understands medical culture, specialist responsibilities, terminology and usual practices, in combination with legal acumen, contact me at (02) 9336 5399 or alternatively firstname.lastname@example.org
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