Waller v James [2002] NSWSC 462

Waller v James [2002] NSWSC 462

The first, second and third defendants owed the third plaintiff a duty of care, but its content was only a duty not to injure him. They did not breach that duty because the third plaintiff's AT3 deficiency was genetic, not iatrogenic, and none of those defendants caused the disability. The broader asserted duty to inform the parents so that they could avoid implantation, use donor sperm or terminate the pregnancy was not owed to the third plaintiff and would be contrary to public policy. In any event, a wrongful life claim of this kind is not maintainable because it is impossible to determine legally cognisable damage by comparing non-existence with existence with disability, and...

Jurisdiction
Australia
Judgment Date
12 June 2002
Procedural Posture
Professional Negligence; Negligence and Breach of Contract Claims Arising From Ivf, Pregnancy and Birth, Including a Wrongful Life Claim by the Third Plaintiff / Separate Determination Pursuant to Pt 31 R 2 of Questions Concerning Whether the Third Plaintiff Had a Cause of Action Against the First, Second and Third Defendants And, If So, Categories of Damages
Outcome
The first separate question was answered No; the second question did not arise.
Legal Topics
['wrongful Life' 'wrongful Birth' 'duty of Care to Unborn Child' 'ivf and Genetic Risk' 'at3 Deficiency' 'causation' 'damage and Compensatory Damages' 'public Policy']
['negligence' 'professional Negligence' 'medical Negligence' 'tort Law'] ['wrongful Life' 'wrongful Birth' 'duty of Care to Unborn Child' 'ivf and Genetic Risk' 'at3 Deficiency' 'causation' 'damage and Compensatory Damages' 'public Policy']

Case Brief

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Procedural Posture

Professional Negligence; Negligence and Breach of Contract Claims Arising From Ivf, Pregnancy and Birth, Including a Wrongful Life Claim by the Third Plaintiff / Separate Determination Pursuant to Pt 31 R 2 of Questions Concerning Whether the Third Plaintiff Had a Cause of Action Against the First, Second and Third Defendants And, If So, Categories of Damages

Legal Issues

  1. 1 ["Whether the first, second and third defendants owed the third plaintiff a duty of care in circumstances where, but for alleged failures to investigate and advise about the second plaintiff's AT3 deficiency, the third plaintiff would not have been born." 'If a duty of care was owed to the third plaintiff, what was the content of that duty.' 'Whether any of the first, second and third defendants breached a duty of care owed to the third plaintiff.' "Whether the third plaintiff's disabilities were caused by any breach of duty by the first, second or third defendants, given that the AT3 deficiency was genetic and not iatrogenic." 'Whether a wrongful life claim is maintainable where determining damage requires comparison between existence with disability and non-existence.' 'Whether compensatory damages could be assessed for such a claim.' "Whether public policy considerations preclude recognition of the third plaintiff's wrongful life claim."]

Ratio Decidendi

The first, second and third defendants owed the third plaintiff a duty of care, but its content was only a duty not to injure him. They did not breach that duty because the third plaintiff's AT3 deficiency was genetic, not iatrogenic, and none of those defendants caused the disability. The broader asserted duty to inform the parents so that they could avoid implantation, use donor sperm or terminate the pregnancy was not owed to the third plaintiff and would be contrary to public policy. In any event, a wrongful life claim of this kind is not maintainable because it is impossible to determine legally cognisable damage by comparing non-existence with existence with disability, and...

Court Disposition

The first separate question was answered No; the second question did not arise.

Orders

  • ['Question (i): No.' 'Question (ii): This does not arise.' 'The matter was directed to be relisted at 9.30 am on Tuesday 18 June 2002 for submissions as to costs of the separate trial and as to what orders should now be made.']