WALLER and Another v JAMES* [2015] NSWCA 232 Court of Appeal: Beazley P, McColl and Ward JJA. 10 and 11 June 2014, 13 August 2015

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1 634 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) WALLER and Another v JAMES* [2015] NSWCA 232 Court of Appeal: Beazley P, McColl and Ward JJA 10 and 11 June 2014, 13 August 2015 Negligence Duty of care Doctor and patient Scope of duty Provision of information Duty to refer. Negligence Economic loss Non-disclosure Failure to warn Interest protected Right to plan a family. Negligence Damages Causation Scope of liability Remoteness. A couple gave birth to a child with a condition, which he genetically inherited from the father. Four days after the child s birth, the child suffered a form of stroke which left him profoundly disabled and in need of care for the remainder of his life. In order to conceive, the couple had consulted with an in vitro fertilisation specialist. They raised their concerns about their child inheriting the condition and the specialist provided them with the details of a genetic counsellor on a Post-it note. The specialist did not fully explain why he was referring the couple to a genetic counsellor. The couple did not contact the genetic counsellor and conceived with the assistance of IVF treatment. The couple commenced proceedings against the specialist for breach of contract and negligence, contending that the specialist failed to warn them, or to cause them to be warned, about the risk that their child would inherit the condition. At trial, the couple argued that the stroke experienced by the child was caused, or materially contributed to, by the hereditary condition. The couple argued in the alternative that, had the specialist warned them, they would not have undergone IVF treatment and would not have suffered economic losses associated with caring for the child. The primary judge found that the hereditary condition did not cause, or materially contribute to, the stroke. Although the specialist owed the couple a duty of care and breached that duty by failing to explain to the couple the reasons for referring them to a genetic counsellor, that breach was not causative of the harm. In any event, the primary judge held that the damage suffered was too remote for the specialist to be liable. The couple appealed, contending that his Honour erred in finding that the provision of the genetic counsellor s details on a Post-it note did not constitute a breach of duty and otherwise erred in his findings on causation and remoteness. The couple did not challenge the primary judge s finding that the hereditary condition did not cause, or materially contribute to, the child s stroke. The specialist contended on appeal, inter alia, that the trial judge erred in defining the scope of the duty of care owed by him to the couple. * [EDITORIAL NOTE: An application for special leave to appeal to the High Court was refused.]

2 90 NSWLR 634] WALLER v JAMES 635 Held (dismissing the appeal): (1) (Beazley P, McColl and Ward JJA agreeing) The right to plan a family is an interest capable of being protected by law in an action for negligence causing economic loss, subject to questions of causation and remoteness of damage. ([130]; [215]; [234]) Cattanach v Melchior [2003] HCA 38; 215 CLR 1, applied. Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 247 CLR 613, considered. (2) The specialist s duty of care to the couple extended to the provision of information relating to the importance of seeking genetic counselling and arguably to follow up with them as to whether they had done so. ([132], [137]; [215]; [234] [239]) (3) The specialist did not breach his duty of care by providing the details of the genetic counsellor to the couple on a Post-it note, but rather by failing to explain adequately to the couple the reasons for referring them to a genetic counsellor. ([144]; [215]; [234]) (4) (Beazley P, Ward JA agreeing) Although but for causation had been established, holding the specialist responsible for an injury caused by the manifestation of a separate and distinct risk to that which the specialist was under a duty to warn of would have the effect of imposing strict liability on the specialist. ([185] [190], [195]; [239]) Wallace v Kam [2013] HCA 19; 250 CLR 375, applied. Cattanach v Melchior [2003] HCA 38; 215 CLR 1; Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; 199 CLR 413, distinguished. Moyes v Lothian Health Board 1990 SLT 444; [1990] 1 Med LR 463, distinguished. (5) (McColl JA) Although factual causation was established, the specialist should not be held liable for a risk which the couple were aware of and expressly accepted before undergoing the treatment. ([226] [232]) Wallace v Kam [2013] HCA 19; 250 CLR 375, applied. (6) (Beazley P, McColl and Ward JJA agreeing) The harm in fact suffered by the couple was not a foreseeable consequence of the specialist s negligence and, accordingly, was too remote to be recoverable. ([204], [208] [210]; [215]; [239]) Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501; Roe v Minister of Health [1954] 2 QB 66; Hughes v Lord Advocate [1963] AC 837, applied. CASES CITED The following cases are cited in the judgments: Barnes v Hay (1988) 12 NSWLR 337 Breen v Williams (1996) 186 CLR 71 Caltex Oil (Australia) Pty Ltd v Dredge Willemstad (1976) 136 CLR 529 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart [1998] HCA 55; 195 CLR 232 Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 FvR(1983) 33 SASR 189 Fox v Percy [2003] HCA 22; 214 CLR 118 Gover v State of South Australia (1985) 39 SASR 543

3 636 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) Harriton v Stephens [2006] HCA 15; 226 CLR 52 Hawkins v Clayton (1988) 164 CLR 539 Henville v Walker [2001] HCA 52; 206 CLR 459 Hill v Van Erp (1997) 188 CLR 159 Hughes v Lord Advocate [1963] AC 837 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 247 CLR 613 Jaensch v Coffey (1984) 155 CLR 549 Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; 199 CLR 413 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McFarlane v Tayside Health Board [2000] 2 AC 59 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Montgomery v Lanarkshire Health Board [2015] UKSC 11 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Moyes v Lothian Health Board 1990 SLT 444; [1990] 1 Med LR 463 Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617 Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Roe v Minister of Health [1954] 2 QB 66 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Rowe v McCartney [1976] 2 NSWLR 72 South Australia Asset Management Corporation v York Montague Ltd; sub nom Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Tabet v Gett [2010] HCA 12; 240 CLR 537 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wallace v Kam [2012] NSWCA 82; [2012] Aust Torts Reports Wallace v Kam [2013] HCA 19; 250 CLR 375 Waller v James [2013] NSWSC 497; Aust Torts Reports Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 APPEAL This was an appeal from a judgment of a judge of the Supreme Court of New South Wales on a claim for negligence and breach of contract arising out of the provision of medical treatment and advice by an IVF specialist. DJ Higgs SC and E Peden, for the appellants. JKirkSC and V Thomas, for the respondent. Judgment reserved

4 90 NSWLR 634] WALLER v JAMES August 2015 INDEX BEAZLEY P 1 Introduction 2 Issues on the appeal 13 Factual background 14 ATD 14 The appellants 20 The consultations with the respondent 24 Referral for genetic counselling 31 Decision to proceed with IVF 44 Keeden s birth and CSVT 48 Challenges to factual findings 55 Consideration of the first finding 62 Consideration of the second finding 68 Content and scope of the duty of care 72 Trial judge s finding on content of the duty of care 75 Submissions 82 Legal principles 90 Duty of a medical practitioner 90 Formulation of the content of a particular duty 94 The harm identified in Cattanach v Melchior 103 Principles relating to economic loss 113 The English cases 120 Consideration 129 A novel case? 133 Breach of duty of care 138 Trial judge s reasons 138 Submissions 142 Consideration 144 Causation 145 Trial judge s reasons 145 Submissions 157 Legal principles 167 Consideration 185 Was the damage too remote? 196 Other issues 211 Contributory negligence 211 Damages 212 Proposed orders 214 McCOLL JA 215 WARD JA 234

5 638 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) BEAZLEY P. Introduction 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 coordinated by the respondent, Dr James, who practised as a general gynaecologist with a subspecialty 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: right to plan their family or reproductive future in terms of choosing if, whether and when they would undertake the moral and legal responsibility to rear and maintain a child. 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

6 90 NSWLR 634] WALLER v JAMES (Beazley P) 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; Aust Torts Reports For the reasons that follow, the appeal against his Honour s judgment should be dismissed. Issues on the appeal The appellants filed a notice of appeal on 2 August The respondent filed a notice of contention dated 29 August The notice of appeal and notice of contention raised the following six issues for consideration: (1) Scope of duty: Whether the primary judge erred in defining the scope of the respondent s duty of care (notice of contention ground 1); (2) Breach of duty: Whether the primary judge erred in finding that the respondent did not breach his duty of care to refer the appellants to an appropriate person to inform them of the inheritability of ATD, as he provided the details of Ms Duggan, genetic counsellor, to the appellants on a Post-it note (appeal ground 1); (3) Causation: (a) Whether the primary judge ought to have found that causation was established even if the ATD was not found to have caused or materially contributed to the CSVT (appeal grounds 2, 4 and (b) 5); Whether the primary judge erred in his factual findings that, had the respondent not breached his duty of care, the appellants would have sought and obtained advice as to the hereditary aspects of ATD, and would then have refrained from having a child using the second appellant s sperm (notice of contention grounds 2 and 3); (4) Remoteness of damage: Whether the primary judge erred in finding that the damage claimed by the appellants was too remote to be recoverable (appeal ground 6); (5) Contributory negligence: If the respondent is found liable, whether the primary judge erred in failing to find that the damages recoverable by the appellants should be reduced for contributory negligence (notice of contention ground 4(a)); and (6) Damages: Whether the primary judge erred in the assessment of damages in the event of liability being established (appeal grounds 7 to 12; notice of contention ground 4).

7 640 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) Factual background ATD 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 on to his or her child. Of those who carry the gene, approximately per cent will develop symptoms over their lifetime. There is, accordingly, a 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 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: in 1999 PGD for single gene disorders was yet to be performed in Australia, and was still regarded as an experimental technology with unproven accuracy. 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 The appellants were married in November 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: 5 Dec 1997 Factor III syndrome rpt Warfarin 5mgm

8 90 NSWLR 634] WALLER v JAMES (Beazley P) left message with Kerry Duggan re info 8/12 Inherited disorder, need to be homozygous to have it will chase up details re tests avail 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 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 consultations with the respondent 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: Subject Ms Deborah Waller DOB 11/6/74 Problem Fertility assistance. 24 yr on [oral contraceptive] for 3 yrs continuously No [history of] pregnancy Married for 1 yr trying to conceive Husband (Laurie) has Factor III deficiency and takes Warfarin daily. Please assess. The respondent was an accredited doctor with Sydney IVF. In Sydney IVF s brochure, given to the appellants, the following information was provided: As well as fertility treatments, Sydney IVF also specializes in all aspects of genetic analysis to do with fertility and pregnancy, including prenatal testing, preimplantation genetic diagnosis, and specialized diagnostic tests for genetic diseases, such as cystic fibrosis and fragile X. For couples with a family history of a genetic disease or who are known or suspected carriers for a genetic disease, prenatal or preimplantation (embryo) testing is recommended.

9 642 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) Men with extreme infertility due to the congenital absence of the vas deferens are possible carriers for genes associated with cystic fibrosis, and should consider genetic testing before starting an IVF program. Genetic analysis can also be conducted for repeated miscarriage. This can determine whether the cause of the miscarriages is genetic, and what can be done to improve chances of pregnancy if that is or is not the case. (The basis of the statement in respect of prenatal or preimplantation embryo testing in this pamphlet and its asserted availability, given Associate Professor Amor s opinion that such testing was in an experimental stage and was not available in Australia in 1999, was unexplained in the evidence.) The appellants first consultation with the respondent was on 3 March 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 : Lawrence 33 Car detailing Factor III def (warfarin) DVT + pulmonary embolus 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: Q. You didn t raise the issue of possible transmission to kids with Dr James at any time, did you? A. No. Because I d been given the information from the haematologist He also stated in his evidence that he had not told the respondent that the issue was important to him, nor that he found his ATD to be a burden. The appellants did not tell the respondent of the second appellant s consultation with Dr Ramakrishna. 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: A. I do remember that neither [the first or second appellant] at that time or at other visits were unduly were worried about [the second appellant s] AT III deficiency. Q. That s the impression that you have? A. That s the strong impression I had. The respondent said that the appellants certainly didn t tell me they were worried about the second appellant s ATD deficiency being passed on. Referral for genetic counselling 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,

10 90 NSWLR 634] WALLER v JAMES (Beazley P) [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: (i) so that she could discuss with them the AT3 condition and if necessary then make arrangements for them to see [a] geneticist at Wollongong Hospital (ii) for them to learn more about the AT3 condition, to ascertain the implications for a forthcoming pregnancy and so that they could obtain more information about the disease and its inheritance. In cross-examination, the respondent gave the following evidence: Q. The words to the effect of: Well, given your condition, you really need to see a genetic counsellor, Ms Duggan, so that you can be properly informed about the things that you should consider in order to make an informed choice; is that what you meant to convey. A. Yes. Q. It was your view that she should be seen by them, so that they can be armed with information as to the effect that the condition could have on their children? A. I don t know if that was verbatim, but that was the gist of it. Q. That is something that you would expect to be said by you in order to make it plain to them why it was they were going off to see her, correct? A. Correct. Q. It wouldn t be sufficient to simply say something along the lines of, Ring Kerry Duggan to discuss Lawrence s factor III condition, would it? A. I wouldn t expect so. 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: GENETIC COUNSELLOR Kerry Duggan 4xxx xxxx The telephone number was that of Wollongong Hospital. 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

11 644 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) 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. Decision to proceed with IVF 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 acknowledgments: that there are risks to the procedure(s) as detailed in the pink sheets and in the specific written information that these risks include complications that the intended outcome might not be achieved. The pink sheets referred to were a 14-page document entitled Detailed Information about IVF and GIFT including Risks, Hazards and Responsi-

12 90 NSWLR 634] WALLER v JAMES (Beazley P) bilities. It outlined some of the risks of abnormalities in children born of IVF, as follows: If pregnancy occurs then there is a chance that the baby or babies may be born abnormal, as there is with pregnancies after natural conception. With straightforward IVF and GIFT the risk of significant abnormalities at birth is around 2 3 per cent of births. The risk could be higher (possibly 4 or 5 per cent of births) in pregnancies that occur with very extreme male-factor infertility, typically involving the procedure of intracytoplasmic sperm injection (ICSI). In cross-examination, the first appellant acknowledged that she would have read this document in By reference to the document, she was crossexamined on her understanding of the risks of pregnancy and the ICSI treatment: Q. You understood at the time that there were always going to be potential risks with any pregnancy? A. I guess so. Q. Including risks to the child? A. I guess so. Q. So you understood at the time that there were potential additional risks if ICSI was used? A. I guess so. Q. And you were prepared to accept those risks? A. Correct. The IVF treatment began on 11 November 1999 with ova 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. Keeden s birth and CSVT The first appellant presented to the labour ward at 8:30pm on 9 August Keeden was delivered the next day at 1pm. In a letter to the respondent dated 16 August 2000, Dr Hoolahan reported: [The first appellant s] recent pregnancy was uncomplicated apart from a low grade rise in blood pressure towards the end which did not require treatment. She went into spontaneous labour at 6 days overdue and had a normal vaginal delivery with a small second degree tear, of a 4045 male and they had no post natal problems whilst in hospital. Keeden was discharged at 10:30am on 14 August A discharge summary, dated 21 August 2000, stated: He was seen by Mark de Souza in the newborn period and checked by him at discharge on the third postnatal day. The baby was making good progress and there was no neurologic abnormality. However, the appellants returned to the emergency department of the hospital with Keeden in the early hours of the following day, at 1:08am. 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.

13 646 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) The primary judge s summary of the medical evidence of possible risk factors for Keedon s CSVT, at [244], was as follows: [244] Dehydration This was one of the most common precipitants of thrombosis. Keeden had borderline hydration. Keeden s degree of weight loss was very common. It was within acceptable limits. Preeclampsia It is unclear from the hospital notes how firmly this diagnosis was made. The [first appellant] was really on the edge of the criteria of the diagnosis of preeclampsia. If it was preeclampsia it was extremely mild. It is debatable in any event if preeclampsia is a possible risk factor. Prolonged second stage of labour the second stage of labour was two hours 45 minutes. This is within the normal range of 2 3 hours. It is not known if a longer second stage is a risk factor for CSVT. It is plausible though there is not a lot of evidence to support it. Complication at birth CSVT has a common association with complicated deliveries. This delivery was not completely normal but it was at the lower end of the complication spectrum. Foetal distress the suction etc may be evidence of foetal distress but the five minute Apgar score of 8 probably would be interpreted as evidence that there had not been foetal distress. Head position Associate Professor Evans was unsure of any reason head position should be more or less a risk factor. 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: [T]here are probably multiple events that, combined, lead to a thrombosis, and some of them we will know about and some we won t know about, and so if you just look at any one of those events in isolation it s often [hard] to prove a linkage, but the combination, so I think a little bit of preeclampsia, a longer labour, a malposition, some dryness, you know, all of those things combined give you a better set up for getting a thrombosis. Mr Kirk, counsel for the respondent, posed the following question to the two experts: [W]ould it be fair to perhaps summarise it this way: There is no certainty about any of these factors being risk factors for Keeden, but it is possible that these complications of the delivery were contributories [sic] to the CSVT event in Keeden? Associate Professor Evans responded: Yes. I mean, I think I would agree with all that. Almost certainly in all these cases you re dealing with multiple factors coming together. Professor Monagle also said that he agreed. 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: We all agree that the risk of symptomatic thrombosis in neonates is extremely low and remains very low during childhood. In 1999, there were less than 10 case reports of thrombosis in neonates that were possibly associated with AT deficiency.

14 90 NSWLR 634] WALLER v JAMES (Beazley P) 647 Challenges to factual findings 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 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 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.

15 648 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) Consideration of the first finding 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. Consideration of the second finding 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

16 90 NSWLR 634] WALLER v JAMES (Beazley P) 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. Content and scope of the duty of care Although the appellants chose to advance their argument on the appeal by first considering the issue of causation, questions of causation require, asa 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 Financial Services Australia Ltd [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 1of the 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 New South Wales 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 [98] his Honour found that the trial judge in that case had erred in merging the question of the scope or content of the conceded duty of care and the question of breach. Trial judge s findings on content of the duty of care 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

17 650 NEW SOUTH WALES LAW REPORTS79 NSWLR 999] [(2015) 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: [91] to ascertain if [the appellants] were aware that ATD was potentially inheritable; to explain to [the appellants] the purpose of the proposed referral [to a genetic counsellor]; to properly refer [the appellants] to an appropriate person for the obtaining of [the genetic] information subject to [the appellants ] agreement to ascertain if such consultation had taken place and if it had not to make further inquiry as to the reason why the consultation had not occurred and to reinforce the reasons why it would be desirable to consult with the genetic consultant or a geneticist. 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: If you are asking me whether in 1999, there was any way to predict that the paternal AT deficiency may have led to the clinical outcome for Keeden Waller, I am very clear that the answer is no, based on all the information provided in this and my primary report. His Honour concluded that the harm suffered by the appellants was not within the scope of the overall duty owed by the respondent. Submissions 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.