Waller v James

BEAZLEY P:

The first and second appellants are, respectively, the mother and father of Keeden Waller. Keeden was conceived by intra-cytoplasmic sperm injection (ICSI), a type of in vitro fertilisation (IVF) treatment. The treatment had been co-ordinated by the respondent, Dr James, who practised as a general gynaecologist with a sub-specialty in infertility and IVF.

Keeden, who was born on 10 August 2000, has anti-thrombin deficiency (ATD), also known as Factor III Deficiency or AT3, which he genetically inherited from the second appellant. Four days after his birth, Keeden suffered an extensive cerebral sinovenous thrombosis (CSVT), being a form of stroke. As a result, Keeden is, and will remain, profoundly disabled, and will require care for the remainder of his life. The appellants are both full time carers for Keeden.

The appellants brought proceedings against the respondent alleging breach of contract and breach of the respondent’s duty of care to them as his patients.

A key aspect of the appellants’ case at trial, that Keeden’s ATD caused or materially contributed to the stroke he suffered when he was four days old, was rejected by the trial judge. That finding is not challenged on the appeal. However, the appellants contend that the respondent breached his contract and his common law duty of care in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They contended that had they been so informed, they would have deferred undergoing the IVF procedures in October/November 1999 until the respondent had identified methods to ensure that only embryos not affected by the AT3 mutation would be transferred to the first appellant.

As articulated on the appeal, the appellants identified the harm they suffered as a deprivation of their:

The appellants contended that this right to plan a family is a right recognised at law: Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [66]. The essence of the allegation was that the appellants had not been able properly to exercise their “right to plan their family” because they had not been given adequate information as to the inheritability of ATD and that the respondent caused this to occur by failing to inform them himself, give them an adequate referral, or follow up on whether they had been to see the genetic counsellor to whom he had referred them.

They argued that due to the respondent’s negligence, they unknowingly ran the risk of passing on the ATD gene, which was the very risk they would not have taken but for the respondent’s negligence. That risk came home: Keeden was born with the inherited ATD gene.

The appellants claimed for the cost of Keeden’s future care. They also claimed that the first appellant suffered from a chronic dysthymic disorder caused by or resulting from Keeden’s injuries and disabilities. Both the appellants claimed they had suffered an ongoing psychological injury caused by or resulting from Keeden’s disabilities.

The harm they suffered was not the birth of their child: see Cattanach v Melchior at [68]. The appellants submitted, by reference to the failed sterilisation cases, that the monetary value of the ‘joy’ of a child was irrelevant to their claim for damages, and that it was also irrelevant to a claim for damages such as theirs whether a child was healthy or disabled: Cattanach v Melchior at [179] and [78], respectively. They contended that at the very least, they were entitled to the cost of rearing and maintaining Keeden without regard to the extra costs attributable to the severe disabilities caused by his CSVT, although they did not abandon that claim. They also claimed to be entitled to damages for the cost of and for undergoing the IVF procedures and the birth, as, but for the respondent’s negligence, they would not have undergone the procedures when they did and Keeden would not have been born.

The respondent accepted that he owed a duty of care to the appellants, but defended the claim on the bases of scope of duty, breach, causation and remoteness of damage.

The primary judge, Hislop J, gave judgment for the respondent: Waller v James [2013] NSWSC 497. For the reasons that follow, the appeal against his Honour’s judgment should be dismissed.

The appellants filed a notice of appeal on 2 August 2013. The respondent filed a notice of contention dated 29 August 2013. The notice of appeal and notice of contention raised the following six issues for consideration:

ATD is a genetic condition that can affect a person’s normal clotting pattern and can give rise to an increased risk of thrombosis.

The pattern of inheritance of ATD is autosomal dominant, which means that it is capable of being passed on to a child of either gender with only one parent suffering from the condition. There is a 50 per cent chance that a person who carries the ATD gene will pass that gene onto his or her child. Of those who carry the gene, approximately 50-60 per cent will develop symptoms over their lifetime. There is, accordingly, a 25-30 per cent chance that the child of a person carrying the gene will develop symptoms over his or her lifetime.

The condition is not rare and thousands of children are born with the condition in Australia each year. Professor Paul Monagle, a paediatric haematologist, reported a prevalence rate in the general population of approximately one in every 250 people.

ATD is generally understood as a disease of adulthood in that it does not usually become symptomatic in the form of a thrombosis until a person is in their twenties or thirties, although it may become symptomatic earlier. The condition can be managed, as it was in the case of the second appellant, through Warfarin, an anti-coagulant medication, and blood tests to monitor international normalised ratio (INR) levels. ATD rarely has any effect on children, and it is very uncommon for a neonate (a baby under four weeks of age) with ATD to suffer thrombosis. CSVT itself is a very rare condition, affecting, on the evidence of Associate Professor Evans, only 0.67 children per 100,000. This means that there is a 0.00067 per cent chance of a person suffering a CSVT during childhood.

In 1999, Pre-Implantation Genetic Diagnosis (PGD), being the genetic testing of embryos, was not available. Associate Professor David Amor, a clinical geneticist called by the appellants, gave evidence that:

Associate Professor Amor said that if asked in 1999, he would have said there was a reasonable chance these tests would become available within the following three to five years, but this was not certain and they might not be available until quite a lot longer.

The appellants were married in November 1997. At this time, the second appellant was aware that he suffered from ATD. He had been admitted to Wollongong Hospital in 1988 suffering from a deep vein thrombosis (DVT) and pulmonary embolism (PE), and remained there for about one month. He had been informed by the treating haematologist that his DVT and PE were attributable to his ATD.

The first appellant was aware of the second appellant’s condition. At around the time of their marriage, the first appellant suggested to the second appellant that he see a doctor to find out about the potential impact of his ATD on having children. The second appellant agreed to see a doctor. The records of the second appellant’s General Practitioner, Dr Noonan, contained an entry from December 1997 that read:

The entry appears to have been made by Dr Noonan’s locum, Dr Miller. Neither Dr Miller nor Dr Noonan gave evidence and, as the primary judge recorded, neither the second appellant nor Ms Duggan recollected a consultation or any discussion of the matter. The primary judge commented that the note from 8 December may have been a record of the doctor’s own research. Nonetheless, the note does indicate that some enquiry was made by the second appellant about his condition and its inheritability shortly after the appellants married.

In March 1998, Dr Noonan referred the second appellant to Dr Ramakrishna, a haematologist whom he saw on 27 March 1998. It appears that either as a result of what he was told by Dr Ramakrishna, or because he misunderstood what he was told, the second appellant misunderstood the inheritability of ATD. After seeing Dr Ramakrishna, he understood that if his wife did not have the condition, it was impossible for him to pass it on to his children. The first appellant gave evidence that the second appellant told her, immediately after he saw Dr Ramakrishna, that they were “right to have kids”. The first appellant understood that there would be no impact on her children if ATD did not run in her family. The primary judge noted that the source of the second appellant’s erroneous understanding of Dr Ramakrishna’s advice was uncertain, but he accepted that the appellants were genuinely under this misapprehension.

The appellants gave evidence that they had attempted to conceive from the time of the second appellant’s consultation with Dr Ramakrishna, but without success. In January 1999, they consulted Dr Noonan who, on 18 January, referred them to the respondent.

The letter of referral from Dr Noonan to the respondent dated 18 January 1999 read:

The respondent was an accredited doctor with Sydney IVF. In Sydney IVF’s brochure, given to the appellants, the following information was provided:

The appellants’ first consultation with the respondent was on 3 March 1999. The first appellant gave evidence that, at this time, she went to see the respondent because having children was important to her, and the second appellant agreed that he was “keen to have kids of [his] own”.

It was common ground that the second appellant’s ATD was referred to during the first consultation. The respondent’s notes from the first consultation included the following entry under the heading “Partner”:

However, the second appellant gave evidence that he did not raise the issue of the inheritability of ATD with the respondent because he was relying on the advice of Dr Ramakrishna. He stated in cross-examination:

The respondent was cross-examined as to whether he knew, at the first consultation, of the second appellant’s concern about ATD being passed on to any child they had and gave the following evidence:

Notwithstanding this evidence, the respondent agreed that it was consistent with his obligation as a medical practitioner treating the appellants for infertility, including by way of IVF, to refer the appellants to a genetic counsellor, given the second appellant’s condition. The respondent agreed that the reason for such a referral was the need for the appellants to have access to a 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 this condition being passed on.

In his original statement of evidence, the respondent said that based on his usual practice, he would have told the appellants to ring Ms Duggan to discuss the second appellant’s ATD “and its genetic aspects and if necessary, [Ms Duggan] will make arrangements for [the appellants] to see a geneticist at Wollongong Hospital”.

In his answers to interrogatories, the respondent explained that the purposes of suggesting that the appellants contact Ms Duggan were:

In cross-examination, the respondent gave the following evidence:

The respondent agreed that it was his obligation to give the appellants the opportunity to understand the genetic consequences of ATD and to alter their course towards pregnancy, if they so wished, on the basis of that understanding and for that purpose to refer them to a genetic counsellor. He also accepted that it was desirable for the appellants to have up to date information, as knowledge in this area was in a state of rapid development, particularly where, as was the position in the case of the appellants, there was a question as to fertility and there was a significant possibility that they would undergo IVF treatment. The respondent said that by referring the appellants to Ms Duggan at Wollongong Hospital, he gave them that opportunity.

A formal letter of referral for genetic counselling was not necessary for a consultation with Ms Duggan. The respondent’s usual practice was to provide patients with a business card for Ms Duggan. This practice was not the subject of criticism. However, on this occasion, the respondent gave the appellants a post-it note with Ms Duggan’s details, as follows:

The respondent said that the only reason he could think of for providing Ms Duggan’s details on a post-it note was that he had run out of her business cards. The respondent did not make a note of having referred the appellants to Ms Duggan in the appellants’ patient file.

The appellants’ evidence was that there had been no discussion of the hereditary aspects of ATD at the first or any subsequent consultation with the respondent. There was a dispute at trial about what the respondent said when he handed the post-it note to the appellants and whether its purpose was adequately explained. According to the appellants, the matter being discussed at the time the respondent gave them the post-it note was whether the second appellant’s ATD may have caused his infertility. The respondent had told them that that was unlikely, but had said, “[r]ing that lady about that”.

The respondent said he was certain that he did not say at the first consultation that there may be a genetic aspect to the second appellant’s infertility. He said he would not have done so without seeing the repeat sperm tests.

The trial judge accepted, at [134], that it was probable that the appellants had asked the respondent at the first consultation whether ATD could have caused the second appellant’s infertility. His Honour was also satisfied that had the respondent specified the reason for the referral to a genetic counsellor he would have asked or would have been told that the second appellant had consulted Dr Ramakrishna.

The absence of any reference by the appellants to Dr Ramakrishna in their consultations with the respondent confirmed his Honour’s conclusion, at [136], that inheritability issues were not raised at any of the consultations. His Honour added that, even on his own evidence, the explanation the respondent gave the appellants as to the purpose of the genetic counselling fell short of what the respondent himself considered to be adequate.

The second appellant said that he rang the telephone number provided for Ms Duggan once, but the phone rang out and he made no further attempt to contact her. The first appellant did not attempt to call the number. The appellants did not inform the respondent that they had not spoken to Ms Duggan and the respondent did not ask them whether contact had been made.

The respondent did not receive any correspondence or reports from Ms Duggan, which was usual when he referred patients to her. Nor did the respondent make a note that he had made the referral. He accepted that it was unreasonable not to keep contemporaneous notes to prompt a recollection of a referral.

After the first consultation, there were four further consultations with the respondent. It was unclear on the evidence whether the second appellant attended the further consultations. On 28 July 1999, the appellants informed the respondent that they wished to proceed with IVF. On 4 October 1999, they signed a form entitled “Sydney IVF: Request for Treatment Form”, with the procedures “In vitro fertilization + embryo transfer (IVF+ET)” and “Intracytoplasmic sperm insertion (ICSI)” selected from a list of treatment options. The ICSI procedure involved a single sperm being injected directly into an ovum in the laboratory, followed by the fertilised ovum being implanted into the uterus. The signed Request for Treatment form contained the following acknowledgements:

“The pink sheets” referred to were a fourteen page document entitled “Detailed Information about IVF and GIFT including Risks, Hazards and Responsibilities”. It outlined some of the risks of abnormalities in children born of IVF, as follows:

In cross-examination, the first appellant acknowledged that she would have read this document in 1999. By reference to the document, she was cross-examined on her understanding of the risks of pregnancy and the ICSI treatment:

The IVF treatment began on 11 November 1999 with ovum being removed from the first appellant. One fertilised embryo implanted into the first appellant’s uterus developed into a successful pregnancy. On 22 December 1999, the first appellant was referred to Dr Hoolahan by the respondent for management of the pregnancy.

The first appellant presented to the labour ward at 8:30 pm on 9 August 2000. Keeden was delivered the next day at 1 pm. In a letter to the respondent dated 16 August 2000, Dr Hoolahan reported:

Keeden was discharged at 10:30 am on 14 August 2009. A discharge summary, dated 21 August 2000, stated:

However, the appellants returned to the emergency department of the hospital with Keeden in the early hours of the following day, at 1:08 am. Medical reports indicate that he was jerking while screaming, had twitching movements in the right side of his face and arm and was suffering from seizures. He was taken to Westmead Children’s Hospital. Neuroimaging evidence established that Keeden had suffered an “extensive thrombosis in the cerebral venous sinus system”, which is a type of “Neonatal (or Perinatal) Stroke”.

The primary judge’s summary of the medical evidence of possible risk factors for Keedon’s CSVT, at [244], was as follows:

Associate Professor Evans, Professor Amor (clinical geneticist) and Professor Monagle (paediatric haematologist) were cross-examined as to whether these complications could be associated with CSVT. Professor Monagle gave evidence, with which Associate Professor Evans agreed, that:

Mr Kirk, counsel for the respondent, posed the following question to the two experts:

In their joint expert report on causation, Associate Professor Evans, Professor Amor and Professor Monagle agreed as to the general risk of thrombosis in neonates or children, as well as the association of that risk with ATD, stating:

It is convenient in the first instance to consider the two factual findings made by the trial judge at [174] and [215] that are subject to challenge: see grounds 2 and 3 of the notice of contention.

The first finding, at [174], was that the appellants’ misunderstanding of the inheritability of ATD would have been remedied but for the respondent’s breach in not properly explaining the reason for the referral for genetic counselling and in not following up with the appellants whether they had consulted Ms Duggan. The respondent contended that the appellants’ misunderstanding would not have been corrected, because even had the breach not occurred, he would have discovered and accepted the appellants’ erroneous understanding of Dr Ramakrishna’s advice, and that would have been the end of the matter.

The second challenged finding, at [215], was “that properly informed [the appellants] would have elected not to have Keeden”. The respondent contended that if the appellants had obtained further appropriate genetic advice, they would still have decided to proceed with the IVF treatment at the time they did.

The respondent submitted that the objective circumstances relating to the factual findings under challenge were as follows. The second appellant was diagnosed with ATD in 1988 after suffering a pulmonary embolism. He was aware his mother had had clots and that therefore the condition could run in families. Notwithstanding that he had been concerned and shocked by his diagnosis, the second appellant continued to do jobs involving hard manual labour, having taken the view that such jobs only required him to take precautions. He did not follow the directions of his doctor to have monthly blood tests, as he said he got to know his body and how the medication worked. He continued surfing, notwithstanding that it was a surfing incident that had led to the pulmonary embolism in 1988.

The appellants had been actively trying to conceive since February 1998 and were anxious to have children. Prior to February 1998, they had used contraceptives, which the second appellant conceded was not “100% safe”. Once they realised they were having difficulty with conception, they promptly sought advice and assistance from a fertility doctor and were prepared to undergo IVF treatment.

The second appellant did not seek advice as to the inheritability of ATD until December 1997 when he consulted a locum GP, Dr Miller, who referred him to Dr Ramakrishna. The second appellant misunderstood the information provided. Neither appellant sought updated information in respect of the inheritability of ATD between the second appellant’s consultation with Dr Ramakrishna and their first consultation with the respondent in March 1999.

The respondent was not a geneticist, but was aware of the condition of ATD and that it may have a genetic element. The expert evidence of Dr O’Loughlin and Professor Saunders was that the respondent could not reasonably be expected to have expertise in relation to the precise mode of inheritance of ATD. The respondent knew of Dr Ramakrishna and believed him to be an experienced haematologist.

The respondent accepted that, on the objective evidence, had he taken the steps the trial judge held, at [124], he should have taken, he would have come to know that the second appellant had consulted Dr Ramakrishna. Those steps included inquiring of the appellants as to their knowledge of the inheritability of ATD and the source of that knowledge: see below at [139]. He contended that this would have occurred either at the initial consultation in the course of explaining the purpose of the referral to a genetic counsellor, or in following up whether the appellants had seen Ms Duggan. In the latter case, he submitted that he would have asked why they had not done so. In either case, it was likely that the second appellant would have explained that he already had advice from Dr Ramakrishna.

There was a basis in the evidence for this submission, as the second appellant agreed that if the respondent had asked whether the appellants had been to see Ms Duggan, and if not, why they had not, the second appellant would have told the respondent that he had seen a haematologist, Dr Ramakrishna, about his condition. He further said that if asked as to what Dr Ramakrishna had said, he would have responded that he had been told that both he and his wife needed to have the same condition for ATD to be inherited by their children.

The respondent submitted that the critical issue was the probable course of events after the respondent had ascertained that the appellants had already sought and received advice from Dr Ramakrishna. He contended that on the evidence, had that point been reached, no further action would have been taken.

However, the respondent’s challenge to the first finding overlooks his own evidence in which he conceded that the appellants “needed” to have up-to-date information. He qualified this statement by saying that it depended what had happened in the period between seeing Dr Ramakrishna and the date of the consultation with him. However, that qualification is of little import in circumstances where the respondent did not have any relevant knowledge of the condition to know whether there had been any updated information and he knew that this was an area where medical knowledge was changing rapidly.

Further, the respondent agreed that had the appellants told him that the second appellant had, a year previously, been to see Dr Ramakrishna, whom the respondent knew, he would probably have telephoned Dr Ramakrishna. It is likely therefore that on speaking to Dr Ramakrishna he would have discovered the appellants’ misunderstanding.

In my opinion, the respondent has not established that this finding was wrong, or that the finding of fact for which he contended ought to be made.

The respondent acknowledged that the appellants’ evidence that they would not have had Keeden had they been in possession of the correct information as to the inheritability of ATD was admissible and that his Honour had appropriately exercised caution in determining the weight to be given to that evidence. The respondent further accepted that his Honour had correctly approached the fact finding exercise as to the appellants’ subjective intentions by reference to the objective circumstances: Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [89]. That being so, the respondent submitted that this Court did not suffer the disadvantage of not having seen and heard the witnesses and could thus engage in the fact finding process without the usual restraint that an appellate court exercises in relation to the factual findings of a trial judge: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [22]-[25].

His Honour made the finding at [215] after considering matters that could be objectively determined as well as matters that were subjective to the appellants. Where his Honour considered that evidence as to subjective matters was undermined in cross-examination, he said so. Nonetheless, his Honour accepted the appellants’ evidence that they would not have proceeded with IVF when they did, notwithstanding the objective circumstances to which the respondent directed attention.

In those circumstances and giving full weight to the obligation of this Court in an appeal governed by the Supreme Court Act 1970 (NSW), s 75A and the principles stated in Fox v Percy, the respondent has not established a basis to interfere with his Honour’s finding at [215].

Accordingly, I would reject grounds 2 and 3 of the respondent’s notice of contention.

Although the appellants chose to advance their argument on the appeal by first considering the issue of causation, questions of causation require, as a preceding step, the determination of the nature, scope and content of the duty of care the respondent owed to the appellants. Accordingly, I consider it not only appropriate but necessary first to consider the content and scope of the duty of care owed by the respondent to the appellant: see Kuhl v Zurich [2011] HCA 11; 243 CLR 361 at [19] and [20].

The trial judge made findings that the respondent owed a duty of care of a specific content: at [91]-[92]; see also at [257]. His Honour separately made a finding that the harm suffered did not fall within the scope of the duty of care that the respondent owed to the appellants: judgment at [263]. Given the separate consideration his Honour gave to the content and the scope of the duty of care, I propose to use the language of “content” when considering the challenge to his Honour’s findings at [91]-[92] and [257].

I have done so notwithstanding the use of the language “scope of duty” in the respondent’s challenge to the finding at [91]-[92] and [257] in ground 1 of the his notice of contention, and more particularly, notwithstanding that the High Court authorities use the language of “content” and “scope” interchangeably: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 discussed below. In Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Gummow J observed, at [58], that the essential issue on the appeal in that case was the “content of the duty of care”. At [97] his Honour found that the trial judge in that case had “erred in merging the question of the scope or content of the duty of care and the question of breach”.

On the approach taken by his Honour, an important consideration in determining the content of the duty of care was the fact that the respondent did not have the primary duty to advise the appellants on hereditary issues. However, the respondent knew that the second appellant had ATD and that it was possible that a child of the appellants might inherit the condition. His Honour, at [88], considered that the evidence of Dr O’Loughlin and Professor Saunders supported the existence of a duty of care to ensure that the appellants were adequately informed and understood the hereditary aspects of ATD or had decided for themselves that they did not require that information, and that this involved a duty to follow up the referral to Ms Duggan.

In that context, his Honour, at [91], found that the duty of care owed to the appellants was:

His Honour’s findings at [92] and [257] were to the same effect.

His Honour did not accept that the respondent’s duty of care included a duty to raise with the appellants the possibility of using donor sperm as a means of potentially avoiding transmission of ATD to a child they might conceive, as the appellants had alleged at trial. The appellants did not challenge that aspect of his Honour’s judgment.

His Honour dealt with “scope of duty” at [262]-[263] by reference to the harm claimed to have been suffered. He considered harm in the terms framed by the appellants, namely, economic loss associated with having, raising and caring for Keeden, and physical injury, including psychological damage. His Honour accepted the respondent’s submission that harm of that type was consequent upon Keeden suffering permanent physical disability as a result of the CSVT.

His Honour held, at [263], that such matters were not within the scope of the respondent’s duty of care, as damage of the nature claimed was not a reasonably foreseeable consequence of the acts and omissions alleged against the respondent. His Honour reiterated that the respondent’s breach concerned a failure to cause information to be obtained in relation to ATD. However, the harm suffered by the appellants was caused by an event which was not reasonably foreseeable. In this regard, his Honour accepted the unchallenged evidence of Professor Monagle who said:

His Honour concluded that the harm suffered by the appellants was not within the scope of the overall duty owed by the respondent.

The respondent challenged his Honour’s findings as to the content of the duty of care. He made no challenge to his Honour’s finding of scope of the duty of care which was in his favour, accepting as correct the proposition that the scope of the duty was dependent on the foreseeability of the harm suffered. That harm, as the trial judge accepted, arose from Keeden suffering CSVT, or, put more generically, from the general risks of pregnancy, including CSVT, which were independent of any genetic condition.

The respondent contended that a duty of the content found by his Honour did not exist. He relied upon the terms of the letter of referral, set out above at [25], namely, that the “problem” for which the first appellant was referred was “fertility assistance”. Central to his submission was that the nature of the harm suffered was not within the scope of the duty of care he owed to the appellants. He contended that, as a fertility expert, his duty was to warn of the risks of pregnancy and it was not alleged that he had failed to do so.

The respondent submitted that a duty of care with the content found by his Honour would be novel and the appellants had failed to establish that the case fell within the parameters for determining whether a duty of care arose in novel circumstances, discussed in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [102] ff.

The respondent submitted that a duty of care of this content would make him an insurer against all the consequences of a successful pregnancy and birth. The respondent accepted that it was consistent with his obligations to refer the appellants to a genetic counsellor, not so as to ascertain whether ATD was a cause of the second appellant’s infertility but so as to enable the appellants to understand the effect of the condition on any child they might have. This in turn would place them in the position to make an informed choice in respect of having children: see [30]-[34].

However, the respondent submitted that the primary judge gave undue weight to the opinions of the experts, which he contended were of limited significance because the case did not concern technical, operative or clinical matters, and that a duty to take steps to ensure that the appellants received genetic advice would be indeterminate in scope and unreasonable. He pointed out that there were differing views amongst the experts as to whether a patient should be referred for genetic counselling and that Professor Saunders and Dr O’Loughlin, whose evidence the trial judge accepted, recognised that there could not be an obligation to refer every patient for genetic counselling. The respondent submitted that these factors strongly militated against the imposition of such a duty on doctors who advise on fertility or pregnancy.

The appellants submitted that the respondent’s submissions sought inappropriately to narrow his role in his dealing with them. They submitted that the respondent had assumed general control over the process as to whether they would proceed with IVF. They contended that in the circumstances, the respondent’s duty of care included advising of the risks associated with IVF/ICSI and providing treatment in such a way that the risks of an abnormal child were avoided or minimised so that the parents could avoid undertaking risks of abnormalities that were unacceptable to them. It was part of that duty to coordinate any tests and referrals required.

The appellants pointed to aspects of the respondent’s evidence that supported the finding that it was within the scope of his duty to refer them to a genetic counsellor and to follow up whether they had obtained the advice. This included the respondent’s own opinion that the appellants should be referred to a genetic counsellor, and his statement that, had he learned that they had not seen Ms Duggan, he would have made it clear that they needed to discuss ATD with her.

The terms in which the appellants, in the case at trial, framed the harm they had suffered were set out above at [79]. On the appeal, however, the appellants’ senior counsel put the case in different terms. He submitted that the “right that [the appellants] had to which the breach of duty related [was] the right to plan their family”. As I understood the submission, it was damage to this “right” by the breach identified by his Honour that was the harm they sustained giving rise to their claim for damages. This is apparent from the balance of the submission, where senior counsel contended that the harm being thus identified, the appellants were entitled to damages. The submission was in the following terms:

The respondent did not dispute that he owed a duty of care to the appellants to exercise reasonable care and skill in the provision of professional advice and treatment, both pursuant to an implied contractual term and in tort: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 483, 489; Breen v Williams [1996] HCA 57; 186 CLR 71 at 78; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [8]. That duty is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment. In Rogers v Whitaker it was held that a component of that duty is a duty to warn a patient of material risks: at 490. The duty extends to the provision of information in an appropriate case: Rogers v Whitaker at 483.

In Rosenberg v Percival, Gummow J, despite noting at [61] that the relevant risk of harm against which a medical practitioner was required to warn was not “that the patient will make an uninformed decision or choose the wrong option”, recognised that “that may well underpin the rationale behind the duty”. See also F v R (1983) 33 SASR 189 at 192 where King CJ observed that “the purpose of disclosure is to provide the patient with the information necessary to enable [the patient] to make informed decisions concerning [the patient’s] future”.

The underlying policy in the recognition of a duty to warn in a doctor-patient relationship was again referred to in Wallace v Kam at [8], where the Court explained that:

The Court further observed, at [36]:

As Gummow J pointed out in Roads and Traffic Authority of NSW v Dederer (in relation to what I have characterised for the purpose of these reasons as the content of the duty) at [43]:

The following observation of French CJ and Gummow J in Kuhl v Zurich at [21] is also pertinent (albeit that their Honours were in dissent in the outcome, this observation was not inconsistent with the reasons of the majority):

Their Honours noted, however, at [22]:

Gummow J in Roads and Traffic Authority of NSW v Dederer and French CJ and Gummow J in Kuhl v Zurich referred to the observation of the Court in Sullivan v Moody [2001] HCA 59; 207 CLR 562, at [50], that:

As this passage demonstrates, leaving aside cases of a well-settled duty, such as that owed by a motorist to another road user or a doctor to a patient, there is no single approach to the identification of the scope of the duty save that it is likely to be fact sensitive. Thus, in Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254 Hayne J observed, at [103]:

In Modbury Triangle Shopping Centre v Anzil Gleeson CJ, at [14]-[15], and Hayne J, at [105], found it useful, in a case where the existence of the duty of care did not fall into a well-established category of negligence, to begin the consideration of that question by reference to the harm suffered for which the defendant was said to be liable and the particular want of care alleged. See similarly Harriton v Stephens [2006] HCA 15; 226 CLR 52 at [225]; Caltex Refineries (Qld) v Stavar at [103] per Allsop P; Sullivan v Moody at [50]; Roads and Traffic Authority of NSW v Dederer at [59] per Gummow J. Although the question in this case is not the existence of a duty of care but its content, I consider the same approach should be taken.

Harm or damage, in this sense, is different from the damages which flow from it: Cattanach v Melchior at [23] per Gleeson CJ. McHugh and Gummow JJ observed, at [67]:

In Harriton v Stephens, Crennan J observed, at [225]:

It is necessary, having regard to these authorities, to consider in some detail the nature of the harm alleged to have been suffered by the appellants, as outlined above at [79]. This requires, first, an analysis of the High Court’s decision in Cattanach v Melchior.

The only issue in Cattanach v Melchior was whether damages for the costs of raising the child were recoverable, that being the only question on which special leave to appeal was granted. Duty of care, breach and damage were all conceded and, because of the limited basis of leave, causation and remoteness were not in issue: see at [51]. The plaintiffs in Cattanach v Melchoir had an unplanned child following a sterilisation procedure due to negligent advice and a failure to warn. By majority, the court (McHugh and Gummow JJ, Kirby J and Callinan J) held that the damages claimed for the upkeep of the child were recoverable. The minority (Gleeson CJ, Hayne and Heydon JJ) each rejected the claim.

Although the question with which the Court was concerned was whether the damages claimed were recoverable, McHugh and Gummow JJ, at [66], nonetheless characterised the interest that the law protected as “that of each of the respondents in the planning of their family”. Their Honours observed that “the injury to that interest had varied elements”, including the costs of rearing the child they had conceived as the result of the failed sterilisation procedure. Their Honours stated, at [67]-[68], that the harm or damage was not the coming into existence of the parent-child relationship, nor was the harm the unborn child. Rather, it was “the burden of the legal and moral responsibilities which arise by reason of the birth of the child”. Their Honours did not consider it of assistance to characterise the expenditure required to discharge that obligation as economic loss: see at [66].

Gleeson CJ, at [19], considered the claim was for pure economic loss. His Honour considered that the legal and moral responsibility resulting from the parent-child relationship, and not Mr and Mrs Melchior’s “right to choose” the size of their family, formed the basis of the claim: see at [5] and at [23]-[26]. His Honour, at [23], saw that “right” as being more precisely understood as Mr and Mrs Melchior having a “freedom to make such a choice”. Importantly, however, as his Honour also observed at [23], the harm or loss claimed must be one that is capable of protection by the law, or, as he stated at [30], Mr and Mrs Melchior had to show that Dr Cattanach’s duty of care “extended to a duty of care to protect them from that kind of loss or harm”. His Honour quoted the statement of Brennan J in Sutherland Shire Council v Heyman at [27]: see above at [98], that a duty of care must be stated in reference to the kind of damage suffered, as well as Brennan J’s further statement, at [28], that:

Gleeson CJ, at [32]-[38], rejected the claim on the basis that it did not satisfy the criteria for a claim for economic loss considered in Perre v Apand [1999] HCA 36; 198 CLR 180.

Callinan J considered, at [302], that the claim was for pure economic loss. His Honour considered that although that categorisation was imprecise, it was “reasonable in the circumstances” for the purposes of determining the claim.

In the course of his judgment, at [213], Hayne J referred to the observation of Lord Slynn in McFarlane v Tayside Health Board [2000] 2 AC 59, another failed sterilisation case, that the doctor in that case, albeit negligent, had not assumed responsibility for the expense of rearing the child. Hayne J’s rejection of the claim was essentially based on policy grounds: see especially at [255]-[260].

Kirby J, at [149], considered that the loss was not pure economic loss, particularly as the mother had been awarded damages for the pain and suffering relating to the pregnancy and birth and the effects of the pregnancy on her health. His Honour considered that the father’s claim “was made concrete by the physical injury suffered by the mother” and that it was artificial to sever the parents’ claim for the costs of rearing the child.

Heydon J, in dissent, noted, at [347], the difficulties of an award of damages:

His Honour also considered that the majority approach would have the problematic effect of encouraging parents to exaggerate the costs and minimise the benefits of their children, and would generate litigation about children capable of causing them distress and injury.

It was not submitted that the harm, in this case, was the parent-child relationship or the coming into existence of that relationship. However, the claimed harm, articulated in the terms set out above at [79], gains support from the joint judgment of McHugh and Gummow JJ. As the balance of the appellants’ submission demonstrates, the significant aspect of their claim was for economic loss resulting from an interference with the appellants’ right to plan their family. It is therefore necessary to consider the principles relating to such loss.

In Perre v Apand the factors upon which a claim for economic loss depend were considered by the High Court. Gummow J, at [192], observed that the inquiry commenced with the identification of “the interests for which [the plaintiffs] sought protection”. However, as his Honour pointed out, at [198], there is “no simple formula” and whether a claim will be recognised is dependent on the “particular connections between the parties”. His Honour adopted the approach taken by Stephen J in Caltex Oil (Australia) Pty Ltd v Dredge ‘Willemstad’ [1976] HCA 65; 136 CLR 529, stating, at [201], it was necessary to consider “the ‘salient features’ which combined to constitute a sufficiently close relationship to give rise to a duty of care”.

McHugh J observed, at [131]:

It follows from the observations of Brennan J in Sutherland Shire Council v Heyman, considered above at [98], that foreseeability is directed to the harm or damage of the kind that the plaintiff has suffered.

In Perre v Apand the factors relevant to the determination of that question were identified by the court as foresight of the likelihood of harm, knowledge or means of knowledge of an ascertainable class of vulnerable persons who were unable to protect themselves from harm, the fact that imposing a duty of care did not impair the legitimate commercial interests of the wrongdoer and the fact that the damage flowed from the occurrence of activities within the wrongdoer’s control. Apart from the question of foreseeability these factors do not have to co-exist. As Gummow J observed, regard is to be had to the salient features of the case.

In Hawkins v Clayton [1988] HCA 15; 164 CLR 539 Gaudron J, at 601, likewise stated that it will almost always be necessary in an action for economic loss to identify the interest said to have been infringed. This passage was endorsed in Hunt & Hunt Lawyers v Mitchell Morgan Nominees [2013] HCA 10; 247 CLR 613 by the plurality (French CJ, Hayne and Kiefel JJ) who stated, at [25], that an understanding of the interest said to be infringed was necessary, relevantly:

In Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514, the plurality (Mason CJ, Dawson, Gaudron and McHugh JJ) observed that economic loss may take a variety of forms. Relevantly to this case, their Honours stated that:

In Hunt & Hunt Lawyers v Mitchell Morgan Nominees, at [28], the plurality noted that an interest that is the subject of economic loss need not be derived from proprietary rights or obligations governed by the general law. In Hill v Van Erp [1997] HCA 9; 188 CLR 159 the loss of a mere expectation interest was held to be recoverable. An interest infringed could be the value of property, as was the case in Kenny and Good v MGICA [1999] HCA 25; 199 CLR 413. In Hunt & Hunt Lawyers v Mitchell Morgan Nominees the harm the respondent suffered was its inability to recover monies it had lent pursuant to a void loan agreement.

Whilst the parties did not seek to develop the legal principles upon which they relied by reference to authority in other jurisdictions, the relevant issues here have been extensively considered by the English courts and a brief consideration of the English authorities is warranted.

At the time that the High Court decided Cattanach v Melchior, the House of Lords had rejected a similar claim in a failed sterilisation case in McFarlane v Tayside Health Board. Lord Slynn at 76, Lord Steyne at 83-84 and Lord Hope at 89 characterised the costs of bringing up the child as pure economic loss. A claim for the upkeep of a child after a failed sterilisation procedure was similarly refused in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. In that case, the plaintiff, who was severely visually handicapped, underwent a sterilisation procedure as she considered that her disability would prevent her from properly looking after any child she otherwise might have.

The outcome in Rees was slightly different from that in McFarlane in that a sum, £15,000, was awarded by way of general damages for the infringement of the claimant’s right to limit her family. The basis of this award was explained by Lord Millett at [123], as follows:

Lord Bingham, at [8], observed that such a “conventional award”:

More recently, in Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court was concerned with the duty of a doctor towards a patient in relation to advice about treatment. In that case, the patient sought damages on behalf of her son who was born with severe disabilities following a difficult birth. The alleged negligence was the failure to give advice about a particular risk, namely shoulder dystocia that would be involved in a vaginal birth and of the alternative possibility of elective caesarean section. The claim was upheld.

The plurality, at [73], accepted as correct the approach of the High Court in Rogers v Whitaker in relation to the duty to warn of risks. Their Lordships noted that:

Relevantly in relation to the question presently under discussion, their Lordships, at [82], recognised that a doctor’s duty of care to warn of material risks inherent in a treatment option was best understood:

The UK Supreme Court also dealt with the question of causation, again by reference to Australian case law, noting at [98] that the issue of causation, where an undisclosed risk has materialised, is closely tied to the identification of the particular risk that ought to have been disclosed. The unequivocal evidence in that case was that had the risk of shoulder dystocia been disclosed, the patient would have chosen a caesarean section.

These cases demonstrate the acceptance accorded to a person’s right to choose whether or not to incur a particular risk of treatment. As the UK Supreme Court pointed out in Montgomery v Lanarkshire Health Board that right or entitlement is what underlies or underpins the duty of care.

In my opinion, the appellants, in identifying the “right to plan their family”, were in fact identifying the interest said to have been infringed: see Hunt & Hunt Lawyers v Mitchell Morgan Nominees at [119] above. Although they claimed “damages” flowing from the infringement of that right, their claim was for economic loss, namely, the cost of raising Keeden. That is to be distinguished from the amount they claim they should be awarded to compensate them for that loss. They additionally claimed damages for the “pain and suffering” of bearing the child and damages for a range of psychological and physical consequences each has suffered. These include, in the case of the first appellant, back, shoulder, neck and elbow pain and osteoarthritis in both knees, due to the strain of lifting and moving Keeden. I will return to these aspects of the claim later in these reasons.

Having regard to the views of McHugh and Gummow JJ in Cattanach v Melchior and subject to the question of foreseeability as well as to the questions of causation and remoteness of damage, I am prepared to accept that the interest said to be infringed is capable of protection by the law such as to permit a claim for economic loss and that the scope of the respondent’s duty extended to it.

That the law would recognise an interest of that kind is consistent with the underlying rationale for the recognition of actionable negligence in the case of a doctor’s failure to warn, diagnose or treat: see above at [90]-[93]. As was noted in Wallace v Kam at [36], the underlying policy of the law is to protect the patient from the occurrence of injury, the risk of which is unacceptable to the patient. Wallace v Kam was a failure to warn case and involved physical injury to the patient. The appellants did not advance their argument in this case in terms of a failure to warn as such. Nor is this a case of direct physical injury to the appellants. The personal injury suffered by the appellants has been the result of the extremely onerous task of caring for Keeden. However, as was recognised in Rosenberg v Percival, the duty of a medical practitioner includes a duty to provide relevant information. Inherent in that aspect of the duty is the provision of information so as to put the patient in a position to make informed choices as to whether to undertake the treatment proposed.

In my opinion, the respondent’s duty of care in this case extended to the provision of information to the appellants relating to the importance of seeking genetic counselling and arguably to follow up with them as to whether they had done so. Subject to that reservation, upon which I comment further below at [137], I therefore agree with his Honour’s findings relating to the content of the duty and would dismiss ground 1 of the appellants’ notice of appeal. That does not mean, however, that they have made out their claim to damages.

Having come to the conclusion that a claim for economic loss may be made for infringement of a right to plan a family, it is not necessary independently to approach the matter as if it was a novel case. Even if that was thought to be necessary, 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. Thus, his Honour’s reference to the nature of the harm suffered as being one of the considerations to which regard is to be had requires, in accordance with ordinary principles of negligence, the identification of reasonably foreseeable harm. In Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [12], Gleeson CJ said:

Other factors to which Allsop P, at [103], referred included:

These factors are well known and mostly self-explanatory. However, a deeper understanding of vulnerability is warranted. In this regard, reference is usually made to the observations of McHugh J in Perre v Apand, a case involving economic loss:

The appellants in this case were vulnerable in the sense that they were under the professional care of an IVF specialist and were dependent upon him for all aspects of treatment, including providing them with relevant information. This included information as to the importance of understanding genetic factors before undertaking IVF treatment. They were reliant upon the respondent to provide them with that information. This was so, notwithstanding that they already had information from Dr Ramakrishna, misunderstood by them, as to the inheritability of ATD. The respondent knew or ought to have known that his conduct, being a failure adequately to explain the purpose of the referral and a failure to follow up with the appellants as to whether they had had genetic counselling could, at the least, impact on their decision as to whether to proceed with IVF.

The factors to which I have referred, at [133]-[134], would tend to support the existence of a duty of care in the terms claimed. In short, the respondent had a duty to impart relevant information, including in relation to genetic counselling and had, in fact, assumed responsibility to do so, notwithstanding that the respondent was not a genetic specialist. By referring them to a genetic counsellor, he assumed the responsibility of providing sufficient information to the appellants so that they understood the reasons for and the importance of obtaining genetic counselling. It may be that as a matter of good practice, he ought to have followed up with the appellants as to whether they had done so. However, with or without that aspect of the content of the duty, I consider that the appellants otherwise established a duty of care in the terms found by the trial judge.

The trial judge, having found that the respondent owed the appellants a duty of care, considered the question of breach of duty of care before dealing with scope of duty. His Honour commenced his consideration of breach by reference to the time honoured statement in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47, which he set out in full at [117] of his reasons. His Honour also referred to the judgment of King CJ in Gover v South Australia & Perram (1985) 39 SASR 543 at 558, in which his Honour observed that the duty of a medical practitioner was to act reasonably in the circumstances. Those circumstances included a fair appraisal of the patient’s intelligence, temperament and apparent understanding, made having regard to the nature of the recommendation being made. The duty did not extend to a requirement that all advice be put in writing.

His Honour, at [124], considered that the duty of care owed by the respondent to the appellants required the following:

His Honour held, at [144], that the respondent did not raise with the appellants the potential inheritability of ATD and did not adequately explain to them the purpose of the referral to Ms Duggan, with the consequence that the appellants did not seek to contact Ms Duggan after the failure of their first attempt to do so.

His Honour considered that in the absence of an adequate explanation for the referral, the use of the post-it note suggested to the appellants that the referral was less important than, for example, the formal referrals for blood and semen tests. However, as his Honour remarked, at [150], the post-it note achieved its purpose, as the second appellant telephoned Ms Duggan, albeit without making contact. His Honour considered, at [151], that “the problem” was in the respondent’s failure to explain the reasons for the referral, not in giving the appellants the contact details for the genetic counselling on a post-it note.

The only specific challenge to his Honour’s findings as to breach was to his conclusion that there had been no breach of duty in the respondent only providing a post-it note to the appellants containing Ms Duggan’s details. The appellants pointed out that this finding was contrary to the expert evidence, which was to the effect that the preferred form of referral was in writing or by phone. Further, they submitted that, in the context of the respondent’s failure to adequately explain the purpose of the referral, the post-it note suggested that the referral was unimportant.

The respondent submitted that there was no breach of his duty of care in only giving to the appellants the post-it note containing Ms Duggan’s details. He contended that the expert evidence was not without ambiguity. He submitted that in any event, the post-it note constituted an adequate form of referral.

In my opinion, there was no error in his Honour’s conclusion that the referral by way of a post-it note 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, at [144], the breach was in failing to explain adequately the reason for the referral.

Having found that the respondent owed a relevant duty of care to the appellants which was breached, the question becomes whether the harm suffered was caused by the respondent’s breach.

In dealing with causation, his Honour stated, at [156], that two hypothetical questions arose, namely, whether, in fact:

His Honour found, at [157], that had the appellants consulted Ms Duggan she would have referred them to a genetic specialist, such as Dr Mowat, with whom Ms Duggan worked. His Honour noted that there was no issue that had the appellants consulted a genetic specialist, they would have received appropriate advice. His Honour identified the question for determination in those circumstances as being whether the appellants would have sought advice.

This question arose in the context that, first, the second appellant had obtained advice from Dr Ramakrishna in 1999 and, secondly, that the second appellant’s evidence was that had the respondent asked whether he had seen Ms Duggan, he would have told the respondent that he had seen Dr Ramakrishna about his ATD and would have told the respondent his understanding of the advice he had received: judgment at [158]-[159].

The trial judge did not accept the respondent’s evidence, which he recorded at [160], that he would have accepted what the second appellant told him and would not have checked with Dr Ramakrishna as to whether the advice, as relayed to him by the second appellant, was correct. Rather, his Honour found, at [168], that the respondent would have ascertained when Dr Ramakrishna had given the advice and then telephoned him. His Honour considered that it was probable that this would have revealed the second appellant’s misunderstanding and that the respondent would have informed the appellants of this.

His Honour, at [172], was also of the view that the respondent would have given a more detailed explanation to the appellants on follow up. His Honour found that, in particular, the respondent would have:

His Honour held, at [174], that with the benefit of further explanation by the respondent, the appellants would have attended a consultation with Ms Duggan and with a geneticist, had Ms Duggan advised that such a consultation was required. His Honour, concluded, at [215], that, properly informed, the appellants would have elected not to proceed with IVF at that time, and so would not have had Keeden. These findings were subject to challenge by the respondent in grounds 2 and 3 of the notice of contention which I have already rejected.

His Honour, at [216] ff, under a heading “Factual Causation”, dealt with the question whether the harm of which the appellants complained was caused or materially contributed to by the acts or omissions of the respondent. This was to be determined in accordance with the common law principles. As his Honour stated, at [217]:

At trial, the appellants’ case on causation was advanced on two alternative bases. The first basis was that Keeden’s ATD played a causative role in bringing about his disabilities. After reviewing the opinions of the expert witnesses called by both the appellants and the respondent, his Honour, at [238], dismissed this as a cause of Keeden’s CSVT. As I have already indicated, this finding was not challenged on the appeal.

The second and alternative basis upon which the appellants submitted that causation was established was that, had they been properly advised, they would have deferred undergoing IVF treatment when they did in October -November 1999 until procedures were available to ensure that only an embryo not affected by the AT3 mutation was transferred to the first appellant. In other words, they would not have proceeded with the IVF treatment using the second appellant’s sperm at that time and Keeden would not have been born. The appellants claimed that as a result of Keeden’s birth, they have suffered “injury, loss and harm to date and continuing”.

The trial judge rejected the contention that the loss suffered was caused by the respondent’s breach of duty. His Honour held at [258] that although Keeden had inherited ATD this had not caused the appellants any loss. His Honour concluded, at [260], that the appellants had not established that the loss they claimed was connected with the respondent’s wrong such that, for the purpose of the test enunciated in March v Stramare (E & MH) Pty Ltd, it should be regarded as a cause of it.

His Honour’s reasoning that led him to this conclusion is to be found at [249]-[260] and, in particular, in his summary, at [259], of the respondent’s contentions, which he accepted, at [260], as to why causation was not made out. Those contentions were:

The appellants submitted that, the policy derived from personal injury cases described in Wallace v Kam (see above at [92]-[ 93]), did not apply here. Rather, in this case, the relevant policy of the law was to protect the appellants’ right to plan their family in terms of choosing if, whether and when they would undertake the moral and legal responsibility to rear and maintain a child. More specifically, the appellants claimed that they were denied the right to choose not to have a child when there was a risk that the child would be inflicted with the same stress and suffering that the second appellant had suffered as a result of his ATD, and it was that right to choose that the policy of the law sought to protect. The appellants sought to sustain this analysis by reference to Cattanach v Melchior and in particular by reference to McHugh and Gummow JJ’s characterisation of the harm in that case at [68], as being “the burden of the legal and moral responsibilities which arise by reason of the birth of the child”.

In her evidence, the first appellant acknowledged that the appellants were willing to accept the general risks of pregnancy (see at [44] above). This was also evidenced by their execution of a Request for Treatment form that placed the risk of a baby being born with abnormalities at 4-5 per cent in the case of a pregnancy brought about by IVF treatment. However, they submitted that they were not prepared to accept any risk at all if there was a risk of ATD and so they would not have had a child had they known that there was such a risk.

The appellants submitted that Wallace v Kam was also distinguishable as that case involved a failure to warn about risks of temporary and permanent paralysis that were entirely distinct. They submitted that it would be incorrect to characterise the circumstances here as involving distinct risks of ATD and CSVT, the first which they were not willing to assume but the latter which they were. Here:

The appellants 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 Keeden’s birth. As a secondary position, they submitted that, “at the very least”, they were entitled to the cost of rearing and maintaining Keeden 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 Keeden’s CSVT, it being a general risk of any birth.

In oral submissions, counsel for the appellants likened the situation with what was referred to as a “no transaction” case: see Kenny & Good Pty Ltd v MGICA. In that case, a real estate valuer negligently valued a property at $5.35 million to $5.5 million, and on the basis of that valuation, a mortgage insurer agreed to indemnify the lender. The true value of the property at the time of valuation was $3.9 million to $4 million. The borrower defaulted, and as a result of a fall in the market, the property only sold for $2.65 million. The insurer indemnified the lender in full for the money outstanding on the loan.

The valuer contended that they were not liable for the losses caused by the supervening event of a fall in the market value of the property. The High Court upheld the decision of Lindgren J in the Federal Court to allow the insurer to recover from the valuer the full amount paid out under the insurance policy, rather than limiting the liability of the valuer to the difference between the valuation amount and the actual value of the property.

The appellants sought to draw from this case the principle that, if no transaction would have been entered into had the duty of the valuer not been breached, the valuer was causally liable for all consequences of entry into that transaction. The appellants submitted:

The respondent contended that on the trial judge’s findings, this was a case of an omission, namely, the respondent’s failure to raise with the appellants the issue of the potential inheritability of ATD, to explain to the appellants the purpose of the referral to the genetic counsellor, and to follow up to ascertain whether the appellants had consulted Ms Duggan. The respondent submitted that to establish proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [32] per French CJ, Gummow, Crennan and Bell JJ.

The respondent submitted that the appellants had failed to establish that the respondent’s breach of duty was so connected with the harm sustained that causation had been established: see March v Stramare (E & MH) Pty Ltd. He contended that the harm suffered by the appellants was caused by the consequences of Keeden having suffered a CSVT which was not related to the duty of care he owed to the appellants. He also submitted that Cattanach v Melchior did not assist the appellant as causation was not in issue in that case.

The respondent also submitted that at its highest, this was a case where he ought to have warned or provided information in clearer terms about one particular risk, that is, of ATD. Whilst that harm came home, it caused no harm to Keeden or the appellants. Any child was at risk of suffering a CVST and the appellants were willing to accept the usual risks of having a child. The respondent further submitted that this Court’s decision in Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 was a material analogy where an unavoidable risk came home.

The judgment of Mason CJ in March v Stramare (E & MH) Pty Ltd is often characterised as establishing, for the purposes of the Australian common law, the test of common sense causation. This characterisation, however, reflects a misunderstanding of the deeply analytical approach his Honour took to the question of causation. His Honour’s legal analysis of causation principles was undertaken as part of his rejection of the “but for” test of causation as the exclusive test for causation in negligence cases.

Mason CJ observed, at 514, that “legal questions of causation are asked and answered with a view to allocating legal responsibility”. Within that framework, the “but for” test was, in his Honour’s view, important as a negative criterion of causation. Nonetheless, as his Honour noted, at 514, it remains for the plaintiff to prove that his or her injuries were “caused or materially contributed to” by the defendant’s wrongful conduct.

Mason CJ’s approach was in contrast to the approach of McHugh J in that case, whereby McHugh J considered that once the “but for” test was satisfied, existence of a duty of care and breach of duty having been established, the question whether a defendant was liable to a plaintiff depended on questions of remoteness of damage: see at 534. McHugh J noted, at 530, that the conclusion that the defendant’s negligence was not a cause of the damage, even if the “but for” test was satisfied:

McHugh J continued:

In Chappel v Hart [1998] HCA 55; 195 CLR 232, McHugh J explained the role of the ‘but for’ test in the following terms:

In Tabet v Gett [2010] HCA 12; 240 CLR 537, at [111], Kiefel J outlined the essential requirement for legal causation:

Her Honour at [112], in a discussion of the role of the ‘but for’ test in the determination of causation at common law, adverted to the value and policy considerations that are involved, as follows:

In Wallace v Kam, at [23], the Court similarly noted the role of legal policy in the determination of causation:

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 [24]:

I have referred above to the observations of Mason CJ that causation was directed to allocating legal responsibility. In Chappel v Hart, Gummow J at [63] ff, turned his attention to the rule of attribution of responsibility. This had been the subject of consideration by Lord Hoffmann in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] AC 22. As explained by Gummow J:

Environment Agency v Empress Car Co (Abertillery) Ltd was not the first occasion in which Lord Hoffman had dealt with the relevant rule of responsibility as identifying the circumstances in which harm suffered will be found to be caused by the defendant’s breach of duty. In Banque Bruxelles Lambert SA v Eagle Star, his Lordship observed at 213:

His Lordship then provided the well-known example of the mountaineer with the bad knee:

His Lordship, in rejecting the approach of the Court of Appeal, considered that on the usual principles of causation, the doctor would not have been liable: “the injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct”. His Lordship explained why this was so at 214:

Relevantly to the circumstances of this case, his Lordship, at 214, drew a distinction between a duty to provide information so as to enable a person to decide upon a course of action, and a duty to advise as to what course of action to take:

The relevant “rule of responsibility” of the alleged tortfeasor in the determination of causation has been widely endorsed in Australian law: see for example Rosenberg v Percival at [85] per Gummow J; Modbury Triangle Shopping Centre v Anzil at [40] per Gleeson CJ, Gaudron and Hayne JJ agreeing; Wallace v Kam at [37] (where the plurality cited the above passage from Banque Bruxelles Lambert SA v Eagle Star Insurance) and Paul v Cooke at [90] ff per Leeming JA. Directing attention to the “rule of responsibility” highlights the connection between the duty of care of the negligent party and the scope of liability in negligence.

In Chappel v Hart Gummow J discussed the policy rationale for the determination of causation in medical negligence cases, as follows:

Hayne J made a similar point as follows:

The relevant “rule of responsibility” in a medical negligence case was again considered in Wallace v Kam. The Court, having referred to the duty of a medical practitioner at [36] and the policy underlying that duty, said, at [37]:

Having regard to the findings made by the trial judge, which have not been disturbed on this appeal, ‘but for’ causation has been established. However, as the authorities discussed above establish, that is not sufficient proof of legal causation in a case such as the present. The wrongful act in this case, assuming that the harm was within the scope of duty that the respondent owed to the appellants, was a failure to give an adequate explanation for the referral to the genetic counsellor and, arguably, a failure to follow up as to whether the counselling had been undertaken. In determining whether such failure caused loss, it is necessary to identify the policy underlying the respondent’s duty to cause the appellants to be informed of the inheritability of ATD.

The appellants consulted the respondent in order to facilitate pregnancy. Their desire for a pregnancy was qualified, in that they did not seek to have a child in all circumstances, and particularly sought to avoid the risk of having a child with ATD. However, they were not seeking to avoid the general risks of childbirth, or the “legal and moral responsibilities” that arise as a result of the birth of a child. On that basis, the relationship between the appellants and the respondent is distinguishable from the doctor and patients in Cattanach v Melchior, where the specific purpose of the medical consultations and sterilisation procedure undertaken by Mrs Melchior was to avoid pregnancy. It also needs to be reiterated that causation was not in issue in Cattanach v Melchior. The High Court was there only concerned with the question of whether the costs of rearing a child were a recoverable form of damages.

As this case cannot be decided by direct analogy with Cattanach v Melchoir, it falls within the general principles of causation discussed above. In particular, 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. That risk came home, but no loss was shown to have been caused by the ATD. However, as Kiefel J observed in Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870, to make the respondent liable for expenses that flowed from something that would have occurred in any event, would be to impose a liability on the respondent that was, in effect, one of strict liability.

The matter can be tested by positing the circumstance that the appellants were involved in a blameless accident on the way home from hospital with the same catastrophic consequences as occurred here, or that Keeden contracted some other disease such as rheumatic fever or polio, or had an aneurism unrelated to ATD. Some such event could occur almost immediately after birth or it may not occur until some later point in time. It would not be appropriate for the respondent’s liability to extend to all the harm suffered by the parents as a consequence of Keeden’s birth, in circumstances where the appellants were willing to hazard the general risks of a pregnancy induced by IVF treatment. Such general risks included the miniscule risk of CSVT, which in fact materialised. This is the result notwithstanding that the appellants would not have undergone IVF treatment had they been informed of the risk of ATD. The CSVT was coincidental, for legal purposes, to the inheritance of ATD.

Expressing the risk that came home as being the occurrence of ATD also exposes that the risk of ATD was a distinct risk to that of CSVT. The appellants’ contention that the general risks of pregnancy, including CSVT, and the risk of a child having ATD, should be accumulated in the manner described in Moyes v Lothian Health Board 1990 SCT 444; [1990] 1 Med LR 463 at 447, does not assist them to prove that the harm they suffered was causally connected to the negligence. In that case, it was held that, if a doctor warned a patient of one risk but failed to warn of four others, and the one risk warned of subsequently came home, the doctor could be held liable on the basis that the patient was prevented from making an informed decision whether to proceed with an operation on the basis of the aggregate risk of injury created by all five of the risk factors.

This finding involved an aggregation of a number of comparable outcomes with different causes into a unified overall risk of injury. It was made on the basis that the ordinary person “is not interested in the exact pathological genesis of the various complications which can occur but rather in the nature and extent of the risk”: at 447. It is a different matter to aggregate the risks here, namely, of a child being born with ATD and of a catastrophic neonatal event, which are different in kind from each other and occurred at different times. It cannot be said that there was, in this case, a single risk of harm with different pathological geneses. Rather, there were two entirely distinct risks.

In my opinion, the appellants do not gain any assistance from Kenny & Good Pty Ltd v MGICA: see above at [161]-[163]. The decision in Kenny & Good hinged closely on the words of the negligent valuation. McHugh J, at [60], noted that the valuation report not only provided a valuation, but was also “warranting” that a particular sum could be safely lent for up to five years. Gummow J, at [80]-[81], held that in the ordinary case the insurer would not have been able to recover the full amount of the loss, but that the case was “not such an ordinary situation”. See similarly Kirby and Callinan JJ at [95]. The circumstances in this case are different from those with which the court was concerned in Kenny & Good.

However, there is another consideration to which regard must be had. Whilst the appellants’ principal claim was for the costs of raising Keeden having regard to his disabilities caused by the CSVT, as well as the physical and psychological conditions from which they suffer as a result of caring for him, they argued alternatively that they were entitled to the costs of raising him without reference to his disabilities. This argument turns attention to the principle stated in Strong v Woolworths referred to above at [164], namely, that in determining causation in the case of an omission it is necessary to consider the probable course of events had the omission not occurred.

That case was not made at trial and the evidence on it pointed in different directions. On the one hand, the appellants said that they would not have had the child when they did but would have waited until testing techniques were sufficiently advanced to ensure that, in accessing IVF treatment, a foetus with ATD would not have been implanted. As at 1999, it was considered that there was a reasonable chance that such testing would be available in three to five years: see [19] above. On the other hand, the first appellant was at all times prepared to accept the usual risks of child birth. It is possible, therefore, that the appellants may have had a child with some form of abnormality.

Even if the appellants were entitled to damages on this alternative contention, such damages would only be for the acceleration of child rearing expenses for a period of a few years. Such damages would be very small and likely to be less than $10,000. However, as I do not understand that claim was made in the Court below, I would not be inclined to remit the matter for the determination of damages flowing from that loss, should they be so entitled. The costs in doing so would exceed any possible outcome.

It follows, in my opinion, 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.

If my findings as to causation are incorrect, it remains to consider whether the damage was too remote to be recoverable. The trial judge, although having rejected the appellants’ claim on the basis of causation, also made findings that the harm suffered by the appellants was not a reasonably foreseeable consequence of the acts and omissions alleged against the respondent and so was too remote for the purposes of recovering compensation for breach of the respondent’s duty of care.

Barker, Cane, Lunney and Trindade, in The Law of Torts in Australia 5th ed, Oxford, observe at 558 that remoteness, like causation, is ultimately concerned with allocating responsibility for harm. However, whereas causation focuses on the negligent conduct, remoteness of damage focuses on its consequences.

For damage to be reasonably foreseeable, it is enough if a consequence of the same general character as that which followed the negligence was reasonably foreseeable as one likely to follow: Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 at 390, 393, 402-3, 413-14. Barwick CJ, at 390, noted that a defendant may be liable no matter how rare a particular clinical phenomenon may be if some injury of the same class as the injury suffered is foreseeable: see also Rowe v McCartney [1976] 2 NSWLR 72 at 79.

Similarly, in Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 it was held that it was unnecessary for the plaintiff to prove that the precise manner of sustaining the injury was foreseeable. See also Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 at 504. This is so unless the particular risk is so small that a defendant would be justified in neglecting it: Jaensch v Coffey [1984] HCA 52; 155 CLR 549 at 562-3.

When an accident is of a different kind to that which could have been foreseen, the defendant is not liable: Overseas Tankships (UK) v Morts Dock and Engineering Co Ltd [1961] AC 388 (The Wagon Mound (No 1)). To be foreseeable the risk must have been a real risk, that is, one that would occur to a reasonable person in the defendant’s position and which is not far-fetched. Overseas Tankships (UK) Ltd v The Miller Steamship Co [1967] 1 AC 617 (The Wagon Mound (No 2)).

Harold Luntz, in Assessment of Damages for Personal Injury and Death 4th ed (2002) Butterworths, observed at 154, that once causation is established, reasonable foreseeability of harm marks the limits of the defendant’s liability: see The Wagon Mound (No 1) at 426; Rowe v McCartney at 84. However, this statement cannot be accepted without qualification. As McHugh J observed in March v Stramare, at 536, foreseeability is not the sole test of remoteness of damage. Rather, there is also a question whether the defendant should be:

This statement was made as part of his Honour’s minority view in that case in respect of causation. However, as is apparent from the authorities discussed in this section, it reflects orthodox principles as to remoteness of damage. It also serves to emphasise the importance of ascertaining the scope of the risk in determining whether a defendant will be found liable for breach of a duty of care. Thus, whilst liability is imposed for all the foreseeable consequences of negligence, a defendant will only be liable where the harm suffered “is within the risk created by the negligence”: Roe v Minister of Health [1954] 2 QB 66 at 85; Hughes v the Lord Advocate [1963] AC 837 at 858.

The application of those principles was explained by McHugh JA in Nader v Urban Transit Authority of NSW at 533-4 as follows:

The respondent did not argue that the possibility of having a child who carried the genetic ATD condition was not foreseeable. However, the appellants have suffered no harm that has resulted from Keeden’s ATD. Rather, Keeden has suffered catastrophic injuries due to an event after birth, the incidence of which was extremely rare in neonatal babies and in children generally. That event was unrelated to Keeden’s inherited ATD and was unrelated to any information with which the appellants would have been provided had they received genetic counselling. Even if the appellants’ losses flowing from this event are the relevant harm in this case, I agree with the primary judge that that harm was not foreseeable so as to come within the scope of the risk created by the respondent’s negligence.

In cases where a plaintiff has suffered injury subsequent to the initial harm sustained as a result of a defendant’s negligence, a question arises as to whether the defendant is liable for that injury. In Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522, the Court stated, at 528-529:

This principle was applied most recently in the High Court in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd.

The present case is not one where there was a subsequent tortious act. Nonetheless, this case raises a similar question, namely whether the law should respond to the claim made here, in which the appellants contend that they are entitled to all the life consequences, that is all the consequences of Keeden’s existence, including those caused directly by Keeden’s CSVT that followed the respondent’s negligence.

In my opinion, the damage sustained by the appellants was too remote such that the respondent ought not to be liable for it. Except for the risk of having a child with ATD, the appellants were willing to undertake the risks of pregnancy, including the risks that a child they might have may be born with abnormalities. Those risk factors were in the order of at least 2-3 per cent and potentially as high as 4-5 per cent (see [45] above). The cause of Keeden’s CSVT was multifactorial, but was not associated with ATD. The appellants also consented to undertaking the IVF treatment notwithstanding that there were risks that included complications. The risk of a child with ATD also suffering a CSVT was miniscule, as was the risk of a child without ATD suffering a CSVT.

Given these factual circumstances, I am of the opinion that the harm suffered by the appellants was not within the scope of the risk created by the respondent’s negligence. The risk of harm that they sought to avoid was the risk that they would have a child with ATD. Although that risk of harm ‘came home’ in that Keeden was born with ATD, that condition was not associated with the occurrence of the CSVT.

Nor do I consider that the risk of Keeden suffering a catastrophic event such as occurred here was relevantly foreseeable. It was not damage of the same kind as having a child with ATD, albeit that it was more catastrophic. As I have said, it was a risk that was miniscule and must be considered to be encompassed within the risks that the appellants were prepared to accept.

His Honour noted, at [272], that the issue of contributory negligence had been raised, but declined to consider it as the liability of the respondent had not been established. As I consider the appeal must fail, I have not found it necessary to consider contributory negligence in any detail. However, had the appeal succeeded, I would not have found the appellants to be contributorily negligent. They were in a situation which was significantly alien to them. They had placed themselves in the hands of experts. Had the respondent adequately advised them of the reason for the genetic counselling, on his Honour’s findings, it was probable that they would have sought it out.

Finally, although it was not necessary in light of his earlier findings to determine the quantum of damages, his Honour, at [273] ff, made a number of comments on the approach to the assessment of damages. His Honour noted that it was common ground that Keeden’s disability was such that, as a result of suffering the CSVT, he would require full time care for his lifetime and that he had an agreed life expectancy of 52 years.

A number of aspects of his Honour’s findings on damages were challenged. However, as I have found that the appellants have not established that they are entitled to recover damages for the harm suffered, it is not necessary to give further consideration to this issue.

I propose the following orders:

McCOLL JA: The facts and submissions are fully set out in Beazley P’s judgment which I have had the advantage of reading in draft. I agree generally with her Honour’s reasons and with the orders she proposes. I would add the following observations. I repeat the facts only to the extent necessary to inform the context.

The appellants, Deborah and Lawrence Waller, wished to have a child. After receiving invitro fertilisation (“IVF”) treatment co-ordinated by the respondent, Dr Christopher James, Mrs Waller bore a child, Keeden. The IVF treatment used the second appellant’s sperm and the first appellant’s ovum. The second appellant had been diagnosed as a teenager as having a condition known as anti thrombin deficiency (“ATD”) (also known as Factor III Deficiency or AT3). ATD is a condition which leads to blood clotting.

Keeden inherited ATD from his father. Four or five days after his birth, Keeden suffered an extensive cerebral sinovenous thrombosis (“CSVT”), or stroke, as a result of which he is, and will remain, profoundly disabled. The CSVT was unrelated to the ATD.

ATD is a non-gender related condition capable of inheritance with only one copy of the defective gene, hence from one parent. Prior to Keeden’s birth, the appellants erroneously understood that it was only if they both carried the ATD gene that there was a possibility that condition could be transmitted to their child.

The appellants were unsuccessful in proceedings they brought against the respondent in which they alleged he had breached the duty of care he owed them as a medical practitioner in failing to inform, or cause them to be informed, of the hereditary aspects of ATD. They alleged at trial that, had they been properly informed, they would not have proceeded to conceive a child using the second appellant’s sperm and thus would have avoided the harm which has befallen them. [1]

The proceedings pre-dated the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW) (“CLA”) and, accordingly, fell to be determined in accordance with the common law. [2]

The primary judge found:

The appellants do not challenge the finding set out in [221](5) and (6).

In addition, it should be noted, as Beazley P has explained, that prior to undergoing the IVF treatment, the appellants signed documents warning of the risks both of that treatment and of an abnormal baby being born. The first appellant accepted she was aware of those risks. [12] The appellants do not challenge the proposition that CSVT fell within the ambit of such risks.

As Beazley P has also explained, the appellants have shifted the focus of their argument in this Court concerning the harm they allege they suffered as a result of the respondent’s breach of duty from “economic loss associated with having, raising and caring for Keeden, and physical injury, including psychological damage”, to damage to their “right … to plan their family”. [13]

The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. [14] In determining the normative question, considerations of policy have a prominent part to play, as do accepted value judgments. [15]

The appellants established factual causation. That is to say that, properly informed, they would have elected not to have Keeden. [16] However, the “harm” they suffered is not that against which they should have been warned (and which would have led to them not proceeding with IVF): that being the inheritability of ATD. Rather, the harm they suffered, in the literal sense, was bearing a child who was disabled catastrophically by an extremely rare medical event: CVST, being a risk of birth they had agreed to accept.

The appellants were, accordingly, in a similar position to the plaintiff in Wallace in that they sought to render the respondent liable for an injury they were prepared to accept, but would have avoided had they been properly warned about a different, and unrelated or distinct, risk. [17] The harm for which they seek to recover is not the harm consequent upon not being warned about the risk of ATD, save in the most general sense of bearing Keeden. Rather, the harm for which they seek to recover is damages arising from the pain and suffering they have suffered through bearing a child who suffered catastrophic injuries after his birth by reason of a risk of abnormality inherent in bearing children of which they were warned and were prepared to accept.

The question which must be determined is whether, in those circumstances, legal responsibility for Keeden’s CSVT should be attributed to the respondent. That evaluation is made by a functional evaluation of the relationship and the purposes and policy of the relevant part of the law. [18]

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. [19] Such a rule that, in the circumstances, legal responsibility did not attach to the defendant even though his or her act or omission was a necessary precondition of the occurrence of the damage, is the product of a policy choice that legal liability is not to attach to an act or omission which is outside the scope of that rule even though the act or omission was a necessary precondition of the occurrence of damage to the plaintiff. [20]

Thus, as explained in Wallace (footnotes omitted): [21]

The respondent’s duty to warn the appellants of the risk of the inheritability of ATD was “imposed by reference to the underlying common law right of the patient to choose whether or not to undergo a proposed treatment”. [22] However, the policy which underpinned that duty was to “to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient [and it] is appropriate that the scope of liability for breach of the duty reflect that underlying policy”. [23]

Accordingly, the respondent’s liability “‘should not extend to harm from risks that the patient was willing to hazard, whether through an express choice or as found had their disclosure been made’.” [24] The CSVT was a distinct risk the appellants were willing to accept. The respondent should not bear legal responsibility for it.

The appellants cannot escape this conclusion by pitching their case at the high level of generality that the relevant harm is damage to their right to plan their family. In the final analysis, even accepting that characterisation, the normative question of causation had to be determined. It was properly determined adversely to the appellants by the primary judge.

WARD JA: I have had the advantage of reading in draft the reasons of Beazley P. I agree with her Honour that the appeal should be dismissed with costs, broadly for the reasons her Honour has given.

I have had some difficulty with the conclusion reached by the primary judge that the respondent’s duty of care in this case extended beyond the provision of sufficient information relating to genetic counselling to enable the appellants to make an informed decision as to whether to seek such counselling (i.e., the conclusion by the primary judge that the respondent’s duty extended to ascertaining whether, and if not why not, such a consultation had taken place – see [91]).

As Beazley P has noted, the respondent did not have the primary duty to advise the appellants on issues of heredity. Provided he had adequately explained to the appellants the purpose of genetic counselling, so that they could determine the importance to them of seeking that counselling in order to make an informed decision as to the planning of their family, it was a matter for them whether or not they chose to pursue that course and I am not persuaded that the respondent had an obligation to follow that up or to ensure that they had received any such counselling.

I accept that the evidence of Dr O’Loughlin and Professor Saunders supported a finding that the content of the duty of care extended to a duty to ensure that the appellants were adequately informed as to the hereditary aspect of ATD and that for that purpose the appellants ought be referred to a genetic counsellor. However, those experts themselves recognised that not every patient ought to be referred for genetic counselling.

Nevertheless, nothing turns in my opinion on whether the duty did extend as far as the primary judge accepted. The appellants’ lack of appreciation of the importance to them, bearing in mind their concern not to have a child with the inherited ATD gene, of pursuing the referral to Ms Duggan indicates that, even if the content of the duty of care in the present case did not extend to a duty to follow up the referral, the respondent had failed to provide the appellants with sufficient information for them to be aware of the importance of such counselling.

In any event, for the reasons given by Beazley P, I am of the view that the primary judge correctly concluded that the harm suffered by the appellants was not within the scope of the overall duty owed by the respondent and therefore that legal causation is not made out. I also agree that, even if a contrary conclusion were reached on the question of causation, the harm that was suffered was one that was not reasonably foreseeable. True it is, that it was reasonably foreseeable that if the appellants proceeded with the IVF procedure using Mr Waller’s sperm, a child resulting from that procedure might inherit the ATD gene. What was not reasonably foreseeable was that the making of an uninformed decision to proceed with the IVF procedure at that time (using Mr Waller’s sperm) could result in a pregnancy with the catastrophic outcome that this one did.

I add the following observations.

The appellants’ case on the appeal, as Beazley P has noted, identified the harm suffered as a deprivation of their right to plan their family in terms of choosing whether and when they would undertake the moral and legal responsibility of rearing and maintaining a child.

Unsurprisingly, the appellants placed much store on the recognition by the High Court in Cattanach v Melchior [2003] HCA 38; 215 CLR 1 at [61] of the right to plan a family. Significantly, however, this was not a failed sterilisation case (as it was in Cattanach). Here, the infringement of the right to plan their family was that they were provided with insufficient information as to the hereditary aspects of ATD and therefore made a decision to undergo the IVF procedure using Mr Waller’s sperm without a full understanding of the potential for their child to inherit the ATD gene.

The appellants very much wanted a child. They were prepared to accept the ordinary risks of childbirth; indeed the IVF consent form acknowledged as much. What they were not prepared to accept was the 50% risk of a child of theirs inheriting the ATD gene. This was not a case where they had determined not to have children and the foreseeable consequence of a failed sterilisation procedure was that they would have a child and thus be forced to assume moral and legal responsibilities that they had chosen not to assume. Rather, the question was one as to the timing of the IVF procedure they were considering undertaking (a procedure which in any event was not guaranteed to produce a child) and, perhaps, a related question as to whether they chose to undergo the procedure using Mr Waller’s sperm or donated sperm.

This was, in a similar way to the situation in Paul v Cooke [2013] NSWCA 311, a case where the respondent’s negligence affected the timing of the relevant operative procedure but did not affect the relevant risk of that procedure; namely, the risk of a child suffering the catastrophic consequences of the CVST that Keeden Waller suffered following his birth.

It was accepted by the primary judge that, but for the respondent’s negligence, the appellants would not have undergone the IVF procedure when they did (using Mr Waller’s sperm, as they did). Therefore, factual causation was established. But for the respondent’s negligence, they would not have had a child at the time that they did, let alone one with ATD or one which suffered the injuries and disabilities that Keeden suffered.

However, the risk of those injuries and disabilities is a risk that is present in every pregnancy. Therefore, whenever they undertook the IVF procedure (and whether or not they undertook that procedure using Mr Waller’s sperm or donated sperm), the risk remained.

The appellants’ primary case was based on the contention that Keeden’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.

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.

Acceptance of the appellants’ argument in this case would make a person in the respondent’s position effectively the insurer of any pregnancy resulting from the IVF procedure undertaken at a time when the parents were not fully informed of a particular genetic risk that they were not prepared to run, whether or not the baby resulting from that procedure had inherited the relevant gene, because on that hypothesis the couple’s right to plan their family was infringed or harmed by the provision of insufficient information. The suggestion that the respondent might be liable for the whole of the costs of child-raising because the parents had undertaken a procedure that they would not otherwise have done at that particular time, is not one that readily commends itself.

The appellants reject the suggestion that Paul v Cooke is analogous based on the serendipity of the timing of the respective operative procedures in that case but they nevertheless press their claim on the basis that part of the right being protected was the right to time when to undertake the IVF procedure. They maintain that on a normative causation approach, they should not have been shut out of their damages, at the very least to the extent of the cost of rearing and maintaining a child without the disabilities and injuries Keeden had suffered.

When talking about the right to plan a family, in an IVF context and not in a failed sterilisation case, one is really talking about a choice of undergoing a procedure. Not all IVF procedures are successful. The analogy with Paul v Cooke is apposite because one is talking of the time at which the appellants chose to have a procedure that may or may not have resulted in a baby (healthy or otherwise and with or without an inherited ATD gene), but where the general risks inherent in pregnancy and childbirth remained the same.

The policy underlying imposition of a duty to warn or advise in the medical context, as recognised in Wallace v Kam [2013] HCA 19; 215 CLR 375 at [8], is to equip the patient with the information relevant to the choice the patient is to make and (see at [36]) to protect the patient from the occurrence of the physical injury the risk of which is unacceptable to the patient. Here, although what was unacceptable to the appellants was the risk of the ATD gene being inherited by any child resulting from the IVF procedure, no injury or disability was shown to have been suffered as a result.

The catastrophic injuries and disabilities suffered by Keeden shortly after his birth must have been nothing short of a tragedy for him and his parents. Such an outcome must be every expectant parent’s nightmare. However, for the reasons explained by Beazley P, the loss the appellants suffered by having the legal and moral responsibility of rearing and maintaining Keeden thrust upon them as a result of the successful IVF procedure is not a loss for which the respondent is liable.