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Supreme Court of the ACT |
Last Updated: 28 July 2008
[2008] ACTSC 68 (24 July 2008)
NEGLIGENCE - wrongful birth - IVF procedure - claim that defendant breached duty of care in transferring two embryos when one embryo requested - parents wanted one child - birth of twins from two embryos - circumstances surrounding request - system in place at Fertility Centre - defendant did not breach duty of care - defendant not negligent
NEGLIGENCE - contributory negligence - plaintiffs' conduct negligent - negligence materially contributed to mistaken transfer - damages would be reduced accordingly
NEGLIGENCE - nature of damage suffered - defendant submits duty of care does not extend to duty to avoid pregnancy where pregnancy desired - defendant submits birth of unwanted child not actionable as analogous to wrongful life action - consideration and application of Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 - wrongful birth action - whether same class of risk - inherent risk of multiple birth in IVF procedure - exposure to increased risk - plaintiffs suffered injury due to exposure to inherent risk - duty of defendant extended to duty to comply with plaintiffs' wishes - causal connection between breach and damage - whether plaintiff failed to mitigate loss by not aborting one foetus or undergoing embryo reduction or adopting out one child - defendant bears onus of proving decision of plaintiffs not reasonable - decision not to abort or undergo embryo reduction or adopt out one of the two twins not unreasonable - no failure to mitigate - whether plaintiffs' decisions broke chain of causation - failure to undergo abortion inevitable consequence resulting from damage and did not break chain of causation - failure to adopt out one of two twins did not break chain of causation - plaintiffs did not act unreasonably where twins involved
NEGLIGENCE - damages for wrongful birth - costs claimed foreseeable consequence of a multiple pregnancy and birth following transfer of two embryos - general damages would be awarded for exacerbation of physical symptoms of pregnancy and effects on relationship - damages would be awarded for economic loss and out-of-pocket expenses - cost of raising additional child compensable - methodology - categories of costs incurred - compensable damages do not extend to supporting child through university
PRACTICE & PROCEDURE - concession made by defendant's counsel during course of hearing after evidence adduced - concession withdrawn in written submissions - admission of fact and law - conclusion of law remains for Court to decide - concession made and withdrawn before submissions complete - interests of justice to permit withdrawal
PRACTICE & PROCEDURE - suppression order - request to suppress plaintiffs' and children's names from publication - administration of justice does not require suppression of plaintiffs' names - not shown publication will deter similar proceedings - names of children suppressed
Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 46
Court Procedures Rules 2006 (ACT) r 493
Court Procedures Act 2004 (ACT)
Rules of the Supreme Court 1971 (WA) O 30 r 3(1)
Federal Court of Australia Act 1976 (Cth) s 50
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 91(1)
Human Rights Act 2004 (ACT) ss 11, 21(2)(b)
Supreme Court Act 1986 (VIC) ss 18, 19
Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52
Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214
Thompson v Sheffield Fertility Clinic (High Court (QBD), Sheffield District Registry, unreported, 24 November 2000)
NSW v Fahey [2007] HCA 20; (2007) 236 ALR 406
Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
Shine v Williams [2007] WASCA 194
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Dovuro Pty Ltd v Wilkins [2000] FCA 1902; (2000) 105 FCR 476
Chappel v Hart (1998) 195 CLR 232
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
March v E & M.H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562
Ardlethan Options Ltd v Easdown [1915] HCA 53; (1915) 20 CLR 285
Ackland v Commonwealth of Australia [2007] NSWCA 250; (2007) Aust Torts Reports 81-916
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports 81-581
Driver v War Services Homes Commissioner (1923) 44 ALT 130
Glavonjiv v Foster [1979] VR 536
Fontaine v Quality Platers (1994) 12 WAR 71
Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347
Caterson v Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99
McFarlane v Tayside Health Board [1999] UKHL 50; [2000] 2 AC 59
Emeh v Kensington & Chelsea & Westminster Area Health Authority [1984] 3 All ER 1044
Keats v Pearce 48 Nfld. & P.E.I.R 102 (1984 Newfoundland SCTD)
Kealey v Berezowski 30 O.R (3d) 37 (1996 Ontario Court, General Division)
Bevilacqua v Altenkirk 2004 BCSC 945 (British Columbia Supreme Court)
Chaffee v Seslar 751 N.E.2d 733 (Ind. App. 2001)
Emerson v Magendantz 689 A.2d 409 (R.I. 1997)
Marciniak v Lundborg 450 N.W.2d 243 (Wis. 1990)
Melchior v Cattanach (2001) Aust Tort Reports 31-597
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Allen v Bloomsbury Health Authority [1993] 1 All ER 651
DJ v RHS [2004] ACTSC 12; (2004) 182 FLR 76
X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630
Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
J v L & A Services Pty Ltd [1993] QCA 012
ABC v D1 [2007] VSC 480
John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131
Melchior v Cattanach (2001) 217 ALR 640
Trindade F, Cane P & Lunney M: The Law of Torts in Australia, Oxford University Press,
4th ed, 2007
Fleming, F G: The Law of Torts, LBC Information Services, 9th ed, 1998
Luntz, H: Assessment of Damages for Personal Injury and Death, Butterworths Australia,
4th ed, 2002
No SC 796 of 2005
Judge: Bennett J
Supreme Court of the ACT
Date: 24 July 2008
IN THE SUPREME COURT OF THE )
) No SC 796 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: G
First Plaintiff
M
Second Plaintiff
AND: SYDNEY ROBERT ARMELLIN
Defendant
Judge: Bennett J
Date: 24 July 2008
Place: Canberra
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The plaintiffs pay the defendant's costs of the proceedings.
3. The order made on 17 September 2007 suppressing from publication the names of the plaintiffs be vacated.
4. The names of the plaintiffs' children be suppressed from publication indefinitely.
5. Order 3, vacating the suppression order in relation to the plaintiffs' names, is stayed for 28 days.
INTRODUCTION
1. On 20 July 2004 Ms G gave birth to non-identical twin girls following successful in vitro fertilisation (`IVF') on 12 November 2003. Ms G and her partner Ms M wish to continue to raise both children. They claim, however, that they only wished to have one child and allege that, in implanting two embryos instead of one into Ms G's uterus during the IVF procedure, the treating doctor, Dr Armellin, was negligent. The twins were born from two separate embryos. The plaintiffs seek damages from Dr Armellin for the cost of raising the second child, general damages to compensate Ms G for the extra pain and difficulty associated with the pregnancy and childbirth and general damages for the effect on their relationship, together with economic loss for both Ms G and Ms M as a result of the birth of the second child.
2. It is important to say at the outset that I am not free to form my own view as to the ability of a parent to sue for what has been called "wrongful birth" of a child. While the High Court in Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 decided that a child itself cannot sue for wrongful life, a parent can sue for wrongful birth following proved medical negligence. The High Court determined this right in Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 by a majority of four to three. Personally, I am persuaded by the reasoning of the minority. I am, however, bound by the decision of the majority. Counsel for Dr Armellin submits that I should find that Cattanach was wrongly decided. Obviously I am not free to do so. Nevertheless, as was pointed out by Gleeson CJ in Cattanach at [6], the fact that the problem involves human reproduction and the parent-child relationship is significant but the problem to be addressed is legal.
BACKGROUND/HISTORY
The events leading up to the embryo transfer
3. There is minimal dispute as to what actually occurred.
4. The plaintiffs consulted Dr Armellin, a specialist obstetrician gynaecologist, to facilitate their wish to have a child either by artificial insemination (`AI') or by IVF. There is, in each of these procedures, a risk of multiple pregnancy. The first consultation with Dr Armellin occurred on 17 December 2002 (`the first consultation'). Other consultations followed.
5. After the first consultation, the first course of treatment was to be through AI using donor sperm. As the plaintiffs submit, `this was to be, and was, arranged through the Canberra Fertility Centre, to which institute they were referred or introduced by Dr Armellin'. In order to be accepted in the Canberra Fertility Centre's (`the Fertility Centre') programme they were subjected to an assessment with a counsellor at the Fertility Centre. It was after that assessment was successfully completed that they were then offered choices of donor sperm and made a selection.
6. The parties agree that, at the first consultation, Dr Armellin advised the plaintiffs as to the risk of multiple pregnancy and hyperstimulation in relation to AI and the number of stimulated follicles that would be suitable. The risk of multiple pregnancy relates to the number of follicles following hyperstimulation. The plaintiffs agree that Dr Armellin advised them that the risk of multiple pregnancy for AI with two follicles was 5%.
7. In choosing to continue with the procedures of AI and subsequently IVF, Ms G accepted that there was a balance between maximising the likelihood of a successful procedure and the risk of multiple pregnancy.
8. The AI procedures were carried out by the staff at the Fertility Centre. Ms G was injected for the purposes of AI with a course of hormone stimulating drugs and her response was monitored by the Fertility Centre. The hormone stimulating drugs were to stimulate follicle production. On the first occasion, ultrasounds revealed four suitable follicles which could be released and exposed to the donor sperm, in utero. If all four are released there is a significant risk of multiple pregnancy. Ms G says that she understood those four follicles to present a risk of multiple pregnancy which was too high for her. Ms G and Ms M considered that the high risk of multiple pregnancy with four follicles was unacceptable. They notified the Fertility Centre to cancel the procedure on that occasion and also gave the reason to staff at the Fertility Centre. The Fertility Centre notified Dr Armellin.
9. Adjustments were then made to Ms G's hormone therapy. Two follicles were produced and Ms G agreed to continue the procedure. Ms G decided that two follicles, while presenting a risk of twin pregnancy and twin birth, was acceptable to her and this was communicated by her to the Fertility Centre. Insemination followed but the procedure, using two follicles, was unsuccessful in fertilising an egg.
10. Second and third attempts at AI were unsuccessful. The plaintiffs consulted with Dr Armellin on 11 August 2003 (`the 11 August consultation'). As three attempts was the allotted number for AI, Ms G and Ms M were enrolled in the IVF programme. Following surgery for the removal of endometriosis, treatment under that programme commenced.
11. Ms G says that she told Dr Armellin at the first consultation and at the 11 August consultation that she only wished to have one child and that she did not want a multiple pregnancy. Dr Armellin disputes the plaintiffs' evidence that they told him at these consultations that `we only want one child'. While Dr Armellin does not accept the conversation about multiple pregnancy, he does not assert to the contrary. Accordingly, I accept that Ms G did tell Dr Armellin that she did not want a multiple pregnancy. Dr Armellin recalls that the plaintiffs did tell him that they wished to have a child but says that he understood the inherent risk of multiple pregnancy to be acceptable to them.
12. It is agreed that, at the 11 August consultation, Dr Armellin advised the plaintiffs that there was a risk of multiple pregnancy and risk of hyperstimulation with IVF treatment and advised the percentage rate of risk of multiple pregnancy regarding the transfer of two embryos. Dr Armellin advised of the percentage rate of risk of multiple pregnancy regarding the transfer of one embryo, with the risk of multiple pregnancy being smaller than the risk of multiple pregnancy associated with the transfer of two embryos. Dr Armellin advised that IVF has a high failure rate, of about 70%. He advised that the chances of a successful outcome were increased when more than one embryo was transferred and that the chances of successfully becoming pregnant diminished unless more than one embryo was transferred. There was a general discussion as to whether to transfer one or two embryos, but Ms G was unsure at the time as to the number of embryos to be transferred and told Dr Armellin that she would let him and the Fertility Centre know before the embryo transfer.
13. It follows that, while there is some dispute as to whether the conversation about the number of desired children took place, Ms G did not make a decision about the number of embryos to be transferred at the time of the 11 August consultation. It follows that she did not inform Dr Armellin of such a number. Ms G accepted the risk of multiple pregnancy, to the extent that she and Dr Armellin discussed the possibility that one embryo could produce more than one child. She accepted that risk, understanding it to be low. Evidence in a report by Dr Clarke, an expert in fertility, which was not challenged, is that the risk of a multiple pregnancy from one embryo being successfully transferred is of the order of 0.1%.
14. On 11 September 2003 Ms G and Ms M attended John James Memorial Hospital where the Fertility Centre was located (`the Hospital'). Ms G was required by the Fertility Centre to complete a form with respect to the IVF programme. Ms G completed and signed a request form for IVF or gamete intrafallopian transfer (`the form').
15. A statement of facts agreed by the parties provides that on this date the plaintiffs were advised by Leanne, a nurse from the Fertility Centre, to insert on the form `up to two' embryos to be transferred and `let them [the Fertility Centre] know any time up to the procedure'. It was also agreed in the statement of facts that Leanne told the plaintiffs that they could `always make a decision later up to and including the morning of the procedure'. In evidence, Ms G says that Leanne told them that they could let the Fertility Centre know of the number to be transferred `any time up to the procedure'. She also agrees, alternatively, that she understood from Leanne that she could tell Dr Armellin and the Fertility Centre `before the embryo transfer' and that she could tell Dr Armellin `or whoever was the key person at the time of transfer'. Ms M's evidence is that Leanne said that they could `make a decision later, up to and including the morning of the operation'. She agrees later in her evidence, that she understood from Leanne that they could change the number `up to and including the day of the procedure'.
16. The form also contained an acknowledgement, which signified that, inter alia, there was a risk of multiple pregnancy. Despite the plaintiffs' concern about multiple pregnancy, they signed the form and, following Leanne's advice, endorsed the following description of the procedure to be undertaken:
Ultrasound egg pickup. Fertilisation of oocytes using selected donor sperm. Embryo transfer of one to two embryos. Embryo transfer to be performed in theatre under anaesthetic. Freeze and store any remaining suitable embryos.
[emphasis added]
17. The form constituted the plaintiffs' instructions with respect to the IVF procedure to be applied to them. It is not suggested that, if the form constituted the totality of those instructions, there was a breach of duty in transferring two embryos.
The events of the day before the embryo transfer
18. Ms G was given a higher dosage of hormones to stimulate the production of eggs for harvesting to obtain, if possible, more than one egg. The eggs so produced would be harvested and fertilised with donor sperm and the required number of fertilised eggs then implanted. On 10 November 2003, Ms G underwent a procedure to harvest the eggs produced after the administration of hormone medication.
19. Six eggs were harvested of which five were successfully fertilised with donor sperm. By the time implantation was to occur, one of these fertilised eggs "resolved" leaving four healthy embryos available for implantation. It is usually the day before the procedure is to be performed that the quality of the embryos is ascertained; the number of viable embryos and the quality of the embryos may affect the decision of the number to be transferred.
20. The staff requested that Ms G contact the Fertility Centre on the following day, 11 November. Ms G failed to contact the Fertility Centre. A message was left by the Fertility Centre staff on her mobile phone. Ms G said, at first, that there was no conversation between her and staff of the Fertility Centre that day regarding the number of embryos that had been successfully fertilised. Ms G also says that she was first told how many embryos had been successfully fertilised by Dr Armellin on the day of the procedure. However, in cross-examination she agrees that she did speak to staff at the Fertility Centre on 11 November and that whoever she spoke to on 11 November informed her that five of the six eggs had been fertilised. Ms G also recalls a discussion on that occasion about the time she was required to attend the Fertility Centre the following day for embryo transfer and the need to fast. Ms M remembers Ms G telling her on 11 November, the day before going to the Hospital for the procedure, that there were five good embryos. I am satisfied that a conversation between Ms G and a staff member of the Fertility Centre about the number of available embryos took place on that day. Ms G says that she did not tell the person from the Fertility Centre with whom she spoke the number of embryos to be transferred.
21. The number of embryos to be transferred was a decision that rested with the plaintiffs. It was accepted by the Fertility Centre, and would have been to Dr Armellin's knowledge, that a patient would reasonably be expected to make a final decision on the number of embryos to be transferred when she was informed of the number of "good embryos" and the quality of those embryos, on the day before the procedure. Of course, a patient would not necessarily change a decision that had previously been made.
22. In the absence of any such communication, the instruction given by Ms G in the form would stand uncorrected, namely, that one to two embryos should be transferred. In that case, the transfer of two embryos, to maximise the chance of pregnancy, would have been in accordance with Ms G's instructions and in accordance with good IVF practice.
The day of the embryo transfer
23. Ms G was admitted to the Hospital on 12 November 2003. She saw a number of nurses on admission and for the purposes of signing documents and preparation for theatre. She did not tell any of the nurses that she only wanted one embryo transferred or that she wished to change the number of embryos for transfer as indicated on the form. It is agreed that, prior to Ms G being transferred to theatre, the plaintiffs did not tell and were not asked by the Fertility Centre staff or the defendant about the number of embryos to be transferred. Ms G's evidence is that the decision to have one embryo transferred was not made until after she arrived in the theatre. Ms M was not with Ms G in theatre.
24. Prior to the procedure Ms G signed a consent form, as did Dr Armellin. In the consent form Dr Armellin stated that he had discussed with the patient a range of matters including the benefits and risks of the proposed operation/procedure/ treatment, the procedure being IVF, embryo transfer. Ms G acknowledged in the consent form, inter alia, that she had the opportunity to ask questions about the operation/procedure/treatment and that she was satisfied with the information she had received.
25. Dr Armellin says that Ms G said to him in theatre that she had spoken to the Fertility Centre and had been told by them that there were four good embryos. Ms G says that she had a discussion with Dr Armellin in theatre when he told her that one fertilised egg had "resolved" and that there were then four good embryos available for insertion. It is agreed that Dr Armellin said that there were four good embryos and asked `are we going to implant two?'. Ms G stated `no, only one' and held up one finger. Dr Armellin advised that one embryo could still make two children. Ms G responded with `Don't even joke'.
26. Accordingly, Dr Armellin accepts that Ms G told him, immediately before the procedure and before sedation was administered, that she only wanted one embryo transferred. He accepts that, at that stage, he knew that she wanted to become pregnant and wanted one child. Dr Armellin reinforced for Ms G the possibility that, even with one embryo, she could have more than one child.
27. Ms G was placed under sedation. Dr Armellin completed an operation record prior to the procedure, writing `embryo transfer one embryo under sedation'. I accept that at that time he believed that one embryo was to be delivered by the embryologist for transfer. He has, however, for the purposes of these proceedings and at all relevant times acknowledged that two embryos were transferred.
28. The embryologist's participation as set out in the clinical notes is that she arrived in the theatre after the patient was already asleep. The notes state, and it has not been challenged, that Ms G said nothing to the embryologist or to "the co-ordinator" (at the Fertility Centre). The embryologist records that she put back `the standard number of embryos which is two'. No discussion occurred between Ms G, Dr Armellin and the embryologist, as Ms G was under sedation.
29. That is, the embryologist did not know of Ms G's decision to have not two but one embryo inserted. The Fertility Centre did not know. There is no issue that the Hospital staff were not told and that no member of the Fertility Centre staff asked Ms G about the number of embryos. Dr Armellin's evidence is that he understood that the number to be transferred had already been organised with the Fertility Centre.
The nature of the transfer procedure
30. It is not suggested that the act of transferring two embryos was outside the relevant standard of care for an IVF procedure. The evidence is that the standard practice at that time was to transfer one to two embryos. The failure rate was high and the possibility of becoming pregnant increased if more than one embryo was transferred.
31. The procedure normally involves Dr Armellin inserting a placement catheter and ensuring that it is in the correct position. He then contacts the embryologist to bring the embryos. This must be done quickly. If there is a delay, the embryos warm up and pregnancy rates decrease sharply. The embryologist brings the embryos in a straw and the embryologist then inserts the embryos. While it is the embryologist who inserts the embryos, Dr Armellin accepts responsibility for the actual transfer procedure.
32. On this occasion, because the procedure was occurring in theatre due to Ms G's sedation, the embryologist was in a room adjacent to the theatre. Dr Armellin inserted the catheter ready to take the straw. Dr Armellin then contacted the embryologist to advise that he was ready to proceed. On being informed by Dr Armellin that he was ready for the embryos to be inserted, only approximately 60 seconds elapsed before the placing of the straw. Dr Armellin did not ascertain from the embryologist the number of embryos included in the straw or the number prepared for transfer. The embryologist transferred the embryos. Dr Armellin then told the embryologist, `just put the embryos back. I understand that she only wanted one embryo'. The embryologist said, `no there were two. She signed for two'. The doctor then responded `Oh fuck' because, as he says, this was only minutes after his conversation with Ms G.
Possible action after Dr Armellin realised that two embryos had been transferred
33. Ms G had asked that the transfer take place under sedation. It is not suggested that Ms G was not entitled to have the procedure performed under sedation, although it was unusual to do so.
34. It is not suggested that, on realising that two embryos had been transferred, Dr Armellin should have taken any immediate remedial action. It is not suggested that he should have attempted to withdraw the transferred embryos even if it were possible to do so, or waken Ms G to seek further instructions on such a course.
35. After the procedure the plaintiffs were advised by a staff member that two embryos had been frozen and two transferred. Ms G had a blood test ten to twelve days after the procedure which confirmed that she was pregnant. A scan completed at seven weeks confirmed that Ms G was pregnant with twins. The plaintiffs saw Dr Armellin for the final time in consultation in early December 2003.
WAS DR ARMELLIN NEGLIGENT?
36. To establish a cause of action in negligence, it is necessary to demonstrate that the defendant owed the plaintiff a duty of care, to prove a breach of that duty and to prove damage of which the breach of duty was a cause. Damage is the gist of the action (Harriton at [161] per Hayne J, at [218] per Crennan J). Measuring the damage requires the making of a comparison between the position in which the plaintiff would have been in had the tort not been committed and the position in which the plaintiff is shown now to be (Harriton at [167] per Hayne J).
The duty of care at common law
37. There is no dispute that Dr Armellin owed a duty of care to Ms G and Ms M. Dr Armellin owed the plaintiffs a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all ways in which the doctor is called upon to exercise skill and judgment (Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483 and 489 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ, at 492 per Gummow J). Dr Armellin accepts in submissions that his duty encompassed providing advice to the plaintiffs as to the type of infertility treatment available, advising them as to the risks associated with infertility treatment, advising them of the availability of infertility treatment and "providing that treatment" once the plaintiffs decided to undergo it. I understand that the part of this submission that refers to the providing of that treatment to be provision of treatment in the context of his role in the system, the subject of evidence in the proceedings.
38. The standard of the reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill (Rogers v Whitaker at 487 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ). Dr Armellin accepts that he had a duty to provide treatment in accordance with `the standards of a reasonable doctor in [his] position'. Therefore, the standard of care to be observed by Dr Armellin was that of an ordinary skilled doctor having a special skill, as did Dr Armellin, in the practice of infertility treatment.
39. The test to be applied in determining whether a duty of care has been breached is whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the first plaintiff and/or the plaintiffs. The duty is reasonably to foresee that action or inaction on his part may be likely to cause damage to the plaintiffs. If the question of foreseeability is answered affirmatively, the court is required to ascertain what a reasonable man would do in response to the risk (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 per Mason J; ss 43(2) and 44 of the Civil Law (Wrongs) Act 2002 (ACT) (`the Act')).
The Civil Law (Wrongs) Act 2002 (ACT)
40. The duty owed by Dr Armellin is governed by the common law and by the Act.
41. Sections 42 to 46 of the Act provide:
Part 4.2 Duty of Care
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk--general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless--
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
44 Precautions against risk--other principles
In a proceeding in relation to liability for negligence--
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Part 4.3 Causation
45 General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (`factual causation');
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability).
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them--
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46 Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
42. Ms Burke, counsel for Dr Armellin, says that the relevant standard of care applicable in the Australian Capital Territory is the standard of care of an ordinary skilled doctor exercising and professing to have the special skill of the defendant (Rogers v Whittaker at 487; s 42 of the Act). She submits that the Act consolidates the common law but does not codify it.
43. Mr Marshall SC, counsel for the plaintiffs, does not accept that the Act represents the same position as the common law. He submits, however, that the common law principles relating to liability and damages are unchanged by the Act and that accepted common law principles apply.
44. In any event, the parties have made their submissions on the basis that, and accept that, the common law principles of negligence apply.
The duty of care alleged to have been breached
45. The plaintiffs make no complaint about the advice or treatment given by Dr Armellin prior to the transfer of the embryos. The allegations of negligence centre around the conversation in theatre between Ms G and Dr Armellin about the number of embryos to be transferred. In the amended statement of claim the plaintiffs allege that Dr Armellin owed a duty to `ensure that only one embryo was transferred'. Accordingly, the plaintiffs allege, the act of transferring two embryos constituted a breach of the duty owed by Dr Armellin to the plaintiffs. The question is whether, in the circumstances, Dr Armellin was negligent in transferring two embryos or, put another way, in failing to ensure that only one embryo was present in the straw prepared by the embryologist for the purposes of transfer.
46. The plaintiffs allege that Dr Armellin breached his duty by:
(i) having been told that only one embryo was to be implanted, failure to comply with and fulfil Ms G's direction;
(ii) failing to communicate with the embryologist that only one embryo was required for transfer; and
(iii) knowing that Ms G was under sedation, failure to make sure that he only transferred one embryo.
47. The plaintiffs' case is that the scope of Dr Armellin's duty was to comply with Ms G's wishes. They say that in circumstances where she requested only one embryo to be inserted, he was negligent in inserting two. They do not suggest that the scope of his duty was to avoid a multiple pregnancy. The plaintiffs accept that they knew that there was a risk of multiple pregnancy and accepted that risk. They say that the risk was 0.1% with one embryo and that they did not accept the higher risk of 20% with the insertion of two embryos.
48. This is not the case of an unwanted procedure being performed or of harm or injury by reason of the procedure itself. Ms G wished to have IVF and wished to have embryo transfer. She wanted to become pregnant. The procedure carried a risk of multiple pregnancy even with the transfer of one embryo. That risk increased if two embryos were transferred. There was no general obligation on the part of the doctor in Dr Armellin's position to avoid or prevent multiple pregnancy, where that is a known risk associated with IVF. The likelihood of pregnancy ensuing for someone of Ms G's age if two embryos are transferred is 35-45% whereas the likelihood of pregnancy ensuing if only one embryo is transferred is 20-25%.
49. The plaintiffs do not complain about the multiple pregnancy and the birth of the twins or the transfer of two embryos out of any context. They acknowledge that the risk of a multiple pregnancy was explained to them and that, in certain situations such as the attempts at AI, they accepted that risk. The plaintiffs also accept that they signed the form, which permitted the transfer of one to two embryos for the purposes of IVF and, at that stage, that they accepted the risk. They rely on the conversation in theatre with Dr Armellin.
50. The risk of twin births with the transfer of two embryos and the degree of its occurrence would have been well known to Dr Armellin. Had a reasonable person in his position foreseen that his failure to inform the embryologist of his conversation with Ms G prior to the removal of the embryos from the freezer or their insertion would result in the transfer of two embryos, he would have had a responsibility to inform the embryologist. It involved a risk of injury to which Ms G did not consent and there was no additional risk or difficulty, expense or sufficient inconvenience in complying with her request. None was suggested.
51. Dr Armellin submits that he had a paramount duty to assist Ms G to conceive that overrides any alleged breach of duty in the transfer of two embryos. I do not accept that submission. Dr Armellin had a duty to assist Ms G to conceive, consistently with her instructions and consent, where those instructions were adequately conveyed to him. That duty of care does not operate in a vacuum. It operates as between the doctor and the particular patient for whom the procedure is being performed. The patient may make a decision as to the risks of multiple births and, if that decision is appropriately communicated, it affects the doctor's obligation to the patient to conform with the patient's wishes, to the extent that it is possible to do so.
52. In the present case, a central consideration is the timing and method of communication of Ms G's decision to have only one embryo transferred. It is also relevant to consider the person to whom the communication of her decision was or should have been addressed. Dr Armellin was not the only party involved in the IVF process at the Fertility Centre, nor was he the sole person with whom Ms G and Ms M communicated. It is important to determine whether Dr Armellin ought to have understood that her conversation with him constituted instructions and that she had not previously conveyed those instructions to the Fertility Centre staff and, through the staff, to the embryologist who prepared the embryos for transfer.
53. Dr Armellin relies upon the system that was in place at the Fertility Centre for the provision of IVF, which included the implantation of embryos (`the system'). He says that he was not responsible for the system or for the practices and/or procedures conducted by the staff of the Fertility Centre. He says that he was, as a participant in the system and as part of the IVF team, entitled to rely upon the staff to discharge their own responsibilities within the system. He did not accept the responsibilities of other professionals within the system. He says that he did not delegate his responsibilities to the staff of the Fertility Centre and does not therefore owe the plaintiffs a non-delegable duty with respect to the Fertility Centre's duties and obligations.
54. Neither the Fertility Centre nor any staff member was joined as defendant in the proceedings or as a third party. The pleadings were directed to Dr Armellin. I have also considered Dr Armellin's liability individually, in the context of the system in which others participated (s 45(2)(b) of the Act). The plaintiffs did not allege any negligent act or omission on the part of the Fertility Centre or its staff for which Dr Armellin was said to be liable. However, the defendant's case raises squarely the participation of the Fertility Centre and its staff and the system that operated and in which Dr Armellin participated.
55. There was no allegation based in contract. During the course of the hearing and after several of the witnesses had given evidence, the plaintiffs sought to amend the statement of claim to include a contract claim. I gave the parties an adjournment to consider their position on this proposed amendment. After the adjournment the plaintiffs informed the Court that they did not wish to proceed with that amendment.
The system under which IVF procedures were carried out
56. In the system, three sets of participants communicated: patients, staff members (including the embryologist) and a specialist.
57. As at 12 November 2003, the system was:
* The patient consulted with Fertility Centre staff and the specialist, with respect to the harvesting, fertilisation and implantation of the embryos.
* The patient nominated the number of embryos to be implanted on the form and signed the necessary consent.
* Within the system, it was the responsibility of the Fertility Centre staff to obtain from the patient the number of embryos she wished to have transferred. That was the number nominated in the form, subject to confirmation or change prior to the procedure. The embryologist informed the relevant staff members of the number of fertilised and viable embryos and they informed the patient.
* The Fertility Centre staff usually talked to the patient on the day prior to the procedure and advised her of the number of viable embryos. The patient then nominated or confirmed the number to be transferred. It was for the Fertility Centre to confirm the number to be transferred. The Fertility Centre staff advised the embryologist of the number to prepare for transfer.
* It was for the Fertility Centre to ensure that the embryologist provided the requested number of embryos, as nominated and confirmed by the patient.
* A further discussion usually occurred between the embryologist, the patient and the specialist at the time of the procedure.
* The embryologist delivered the selected number of embryos to the specialist and placed the embryos after the placement catheter had been inserted.
Dr Armellin's role within the system
58. The process of artificial conception, including IVF, involves the participation of a number of people, separately qualified. Those persons communicate during the process within the system. The system that operated at the Fertility Centre divided responsibilities between the participants, reflecting their different qualifications. The embryologist was on the staff of the Fertility Centre. That person was highly qualified and responsible for the development of the fertilised eggs and their preparation for transfer. It is not suggested that Dr Armellin was qualified as an embryologist or that he was responsible for the embryologist's work. One might ask if Dr Armellin would have been responsible if, unknown to him, the embryologist had permitted the embryos to thaw, perhaps by withdrawing them a few minutes early from the freezer. Clearly, he relied upon the embryologist, as a professional, to carry out her duties to the appropriate standard. He was similarly entitled to rely upon other members of the team to fulfil their duties. That included counselling and providing information to and receiving information from the patient.
59. There is no evidence that Dr Armellin was responsible for the creation of or operation of the system. He was not a director of the Fertility Centre; he was a consultant to it. The standard of care required of Dr Armellin, as accepted by the plaintiffs, was to provide treatment with a level of care and skill reasonably commensurate with his specialty and experience. That specialty and experience did not extend to, for example, counselling or embryology. There is no evidence to demonstrate that Dr Armellin delegated his responsibilities to the Fertility Centre staff, or that he had adopted and assumed the responsibilities and obligations owed by the staff employed at the Fertility Centre in the performance of their duties in the system which provided artificial conception services.
60. After the plaintiffs consulted Dr Armellin and were referred to the Fertility Centre, they consulted with Fertility Centre staff without Dr Armellin being present. For example, they received counselling before being accepted into the programme. There is no evidence to suggest that, apart from the fact that the counsellors were satisfied that they were suitable for acceptance into the programme, Dr Armellin was made aware of the content of the counselling. Similarly, the staff relayed to Ms G the information from the embryologist who worked at the Fertility Centre as to the number of viable embryos available for transfer. This was usually the day before the procedure. Dr Armellin says that he understood the usual practice to be that the Fertility Centre contacted the patient, or the patient rang in, and was told how many embryos had been fertilised, the state of those embryos and when the patient should come in the next day. The Fertility Centre would also confirm with the patient the number to be transferred. Dr Armellin says that he did not normally do this himself because he could never be sure when the patient would ring in and he was usually consulting. The plaintiffs accept that there were matters that were the subject of direct communication between them and the Fertility Centre staff which did not include Dr Armellin.
61. Dr Armellin referred his patients to the Fertility Centre for the preparation for AI and IVF, the stimulation of ova, harvesting of eggs, fertilisation and preparation for embryo transfer. That does not, of itself, make him responsible for the operation of the system or the actions of its other participants. His duty of care to his referred patient did not extend to the actions of the staff of the Fertility Centre operating within the system. The plaintiffs characterise the system as Dr Armellin's system which encompasses the system of the Fertility Centre. They accept that Dr Armellin's duty does not encompass matters beyond his control but say that the duty extends to those matters within the scope of his duty and the scope of his capacity to control them. The plaintiffs submit that even if, under the system, all contact with the patient in the 24 hours prior to the procedure were delegated to the Fertility Centre, it was within the scope of Dr Armellin's duty to ensure that all contact, questions and checking occurred. The plaintiffs say that there was no system of divided responsibility but an absolute obligation at law on Dr Armellin.
62. However, a system of divided responsibility did exist. Dr Armellin says that he relied upon the staff of the Fertility Centre, including the embryologist, to provide him with the number of embryos that had been nominated by the plaintiff. He was entitled to rely upon the staff at the Fertility Centre to do that for which they were responsible (Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 at [69] per Giles JA). Applying what Giles JA said in Elliott at [103]:
In the manner in which [IVF] is performed, the patient receives the attention of a team: the [doctor, the embryologist and Fertility Centre staff]. There is divided responsibility. The [doctor] can be regarded ...as the master of ceremonies, but he is nonetheless a member of a team and reliant on the due discharge of their responsibilities by the other members of the team. He should be able to concentrate on his own skilled tasks without shouldering the responsibilities of the other members of the team.
63. This is not to say that the doctor's own duty was delegable. The plaintiffs submit that the touchstone of the relationship of doctor and patient is control. Within the system, the doctor did not control the transmission of Ms G's instructions to the embryologist via Fertility Centre staff.
64. Dr Clarke, in his report, described "reasonable practice" and the communication system under which he operated. The plaintiffs rely in particular on two aspects of Dr Clarke's procedure, as set out in his report, in support of their submission that that which occurred was not in accordance with proper or reasonable competent practice:
* A competent gynaecologist should confirm with the patient the number of embryos she wishes to have replaced and then notify the embryologist involved with the transfer of this decision.
* A double check of the number of embryos to be transferred should occur, as a conversation at the time of the procedure with the three participants, being the patient, the specialist and the scientist/embryologist.
65. Neither of these aspects of Dr Clarke's procedure took place. The first because the system under which Dr Armellin acted was not in accordance with that described by Dr Clarke. The second, according to Dr Armellin, was because Ms G was under sedation. In the ordinary course, the patient is not under sedation and the embryologist, on arrival, has a conversation with the patient in theatre.
66. Dr Clarke did not give oral evidence, so he did not expand upon his report, nor was he cross-examined. He described the system that he has in place in his professional practice and gave his opinion in that context. In Dr Clarke's unit, there is a division of responsibilities but instructions from the patient are given to the clinician and, in theatre, to the clinician and to the scientist/embryologist.
67. It is apparent that, in the case of Dr Clarke, it is the clinician that informs the embryologist of the number of embryos. Dr Clarke does not say that he developed or was responsible for the communication system, nor that it is the only system that should operate. Dr Clarke was not asked about, nor did he give an opinion concerning the system at the Fertility Centre or the proper or reasonable course for a clinician within the system. He did not express an opinion on Dr Armellin's actions within the system or whether, within the system, Dr Armellin's actions and responses were in accordance with proper or reasonable competent practice.
68. Dr Clarke gave the unremarkable opinion that it was not permissible for a reasonably competent obstetrician/gynaecologist to fail to comply with a patient's request that only one embryo be transferred. He also observed, again unremarkably, that if there is a change in the decision as to the number of embryos because of a change in circumstances, the clinician must notify the embryologist prior to the transfer and sign a confirmation of change of embryo transfer number. That opinion assumes that the obstetrician/gynaecologist understood the purpose of the request and that it constituted the patient's instructions or a change of decision.
The right to choose the number of embryos
69. Where a patient chooses to undergo IVF, it is for the patient to decide the number of embryos to be inserted (Thompson v Sheffield Fertility Clinic (High Court (QBD), Sheffield District Registry, unreported, 24 November 2000)). That was recognised by Dr Armellin in the 11 August consultation with the plaintiffs and by the Fertility Centre when Ms G attended in September 2003 and again in November 2003. However, Dr Armellin submits that this is not necessarily so. He says that the right to choose the number of foetuses is non existent in natural human reproduction and there can be no greater right or interest when IVF is utilised, through the advent of technology. Dr Armellin accepts that the courts have recognised a right to limit the number of children by undergoing sterilisation procedures but distinguishes those cases as concerning an intention not to conceive.
70. It is the case that there is no opportunity to choose the number of children born as a result of natural reproduction. However, where such a choice is available and offered, I fail to see why Ms G should not have the right to choose. In this case, it is not the exercise of her right to choose the number of embryos that is in issue, it is the transmission of that choice.
71. The plaintiffs dispute that they bore a responsibility to advise the defendant and/or the staff at the Fertility Centre of their intent as to the number of embryos to be transferred prior to the first plaintiff being transferred to theatre. However, Ms G knew that she could change her mind and alter what had been endorsed by her on the form up to the morning of, or at least prior to, the procedure. Making up her own mind was not enough. Ms G had the right to nominate the number of embryos to be transferred. She also had the responsibility to do so if she wished to nominate a particular number. Ms G, after discussion with Leanne, requested in the form that up to two embryos be transferred. The staff at the Fertility Centre informed her, and she accepted, that she had the right to change that instruction `anytime up to the procedure'. The staff member told Ms G that she should `let us know' if she changed her instructions. That, reasonably, meant at least the staff of the Fertility Centre, with whom Ms G dealt in respect of preparation, harvesting and fertilisation of the ova.
72. The evidence does not establish Ms G's appreciation of precisely how and when her decision needed to be made and communicated to ensure that her wishes were complied with, nor that Ms G understood that it was sufficient only to tell the doctor in the theatre of any change of mind.
73. Ms G knew that she had to convey that decision to the Fertility Centre, in accordance with her understanding of the process in place. She did not do so during her telephone conversation with a staff member the day before. She had not done so by the morning of the procedure. She said nothing to the Fertility Centre staff on admission or prior to the procedure, despite the opportunity to do so. She knew that she would be placed under sedation, which was her specific choice. She knew or ought to have realised that the conversation with Dr Armellin in theatre was simply not the kind of conversation that conveyed a decision to Dr Armellin, the decision as to the number of embryos to be transferred, a decision different from that previously conveyed. There was no discussion about the likelihood of success or the percentage possibility of multiple births with one or two embryos, no discussion about the fate of the remaining embryos or a consideration of the prospect of success and the number of available treatments.
How the system applied in this case
74. As the system operated, Dr Armellin would reasonably have expected that the Fertility Centre had contacted Ms G in accordance with the usual procedure, ascertained her wishes and given instructions to the embryologist to take the requested number of embryos for placement into the straw for implantation.
75. Ms G's "point of contact" for instructions as to the artificial conception procedures was the Fertility Centre. A number of factors give rise to that conclusion. While they are not all of equal importance, they give an indication of the system as it applied to Ms G, a system in which she participated, apparently without objection. To reiterate and to describe what happened:
* The first consultation was with Dr Armellin, to whom Ms G was referred by her general practitioner.
* She discussed the risks of hyperstimulation and the possibilities of multiple pregnancy with the doctor.
* Dr Armellin was a consultant to the Fertility Centre and referred Ms G there.
* Counselling was given and admission into the programme was determined by the Fertility Centre.
* Ms G only wished to have one child but informed the Fertility Centre that, for the purposes of AI, three or four follicles were unacceptable but two follicles, which resulted in a 5% risk of multiple pregnancy, were suitable. That instruction was followed and two follicles were presented.
* Ms G accepted the risk of multiple pregnancy in IVF.
* Before IVF commenced, the plaintiffs discussed with Dr Armellin that they did not want a multiple pregnancy. They did not, on that occasion, discuss the number of embryos to be transferred.
* Ms G told Dr Armellin that she was unsure of the number of embryos she wanted transferred but that she would let him and the Fertility Centre know before the embryo transfer.
* Ms G completed the form which represented initial instructions to the Fertility Centre saying that she wished one to two embryos to be implanted. It was not suggested that she did not believe that the form presented by the Fertility Centre represented her instructions to the Fertility Centre and to Dr Armellin, subject to any change, which would be communicated.
* I am satisfied that, on 11 September 2003, Leanne told the plaintiffs that they could let the Fertility Centre know of the number to be transferred up to and including the morning of the procedure. That accords with the statement of agreed facts and Ms M's evidence. It also accords with the system. It would give the plaintiffs time to decide after being told of the number of embryos the day before the procedure and also give the embryologist advance notice of the number to prepare for transfer. It also accords with Dr Armellin's understanding that these decisions are notified in the conversation with the Fertility Centre staff the day before the procedure.
* Ms G was asked to ring the Fertility Centre prior to the procedure and after the eggs were fertilised. She does not recall making that call.
* The Fertility Centre left a message on Ms G's mobile phone and then spoke to her in the afternoon prior to the procedure being performed, telling her that five of the six eggs were fertilised.
* Whether or not there was a conversation about the number to be transferred, there was an opportunity for the staff and for Ms G to confirm her instructions when they talked to her about her admission, when she was admitted and while she was waiting to be transferred to the theatre. In any event, the staff did not do so, nor did they inform Dr Armellin that there was no such confirmation from Ms G.
* With the possible exception of Ms M, Ms G was the only person aware of the fact that she had decided to have only one embryo transferred and that she had not informed the Fertility Centre of that fact.
* Ms M confirmed that as far as she knew no one had been informed of a change in the number of embryos to be transplanted prior to the transfer to theatre.
* Ms G did not start a conversation with Dr Armellin in theatre, nor volunteer the number of embryos she wished to have transferred.
* Dr Armellin's version of the conversation, as answered in interrogatories and in his evidence, is that he said to Ms G: `...I have spoken to the Fertility Centre and I was told they had four good embryos. Are we going to implant two?' and Ms G replied `No, only one'.
* Ms G accepts that Dr Armellin asked her `Are we going to implant two?' and that she said `No, only one'.
* According to Ms G's version of the conversation, that is not disputed, she said to Dr Armellin: `That means one to be transferred'. Viewed from the perspective of Dr Armellin, that did not reasonably constitute an instruction or the response of a person who had not already been told of the four embryos and had given her instruction to the Fertility Centre in accordance with the system. It is framed as a confirmation.
* Dr Armellin replied, according to Ms G: `one can still make two'. That indicates recognition by Dr Armellin that Ms G was concerned not to have multiple births.
* Ms G's reply was to hold one finger in the air and respond: `don't even joke, just one'. That could have referred to one embryo to be transferred or to her wish to have only one child.
* This conversation did not represent the kind of discussion that would normally be expected to occur if a patient undergoing IVF was first made aware of the number of available embryos, or was deciding on the number to be transferred, or was changing her previous instructions. There was no discussion of what would occur if the procedure was not successful with the transfer of a single embryo and no discussion of the fate of the remaining viable embryos.
* Before the procedure commenced Dr Armellin wrote up the Hospital operation record with the words `embryo transfer one embryo under sedation '.
* These matters are consistent with Dr Armellin's understanding that the embryologist, through the Fertility Centre, had already been informed by Ms G of her decision. That is not unreasonable as it must be, at the least, unusual for that decision only to be made and conveyed by instruction to the doctor immediately prior to the performance of the procedure.
* Dr Armellin's understanding is confirmed by the conversation between him and the embryologist immediately after the insertion of the embryos. Dr Armellin asked the embryologist about the remaining viable embryos. When the embryologist informed the doctor that only two remained as two had been inserted, Dr Armellin said `Oh fuck'.
* Dr Armellin agrees that the implantation of two embryos rather than one was a mistake.
76. The system failed in that Ms G failed to confirm with the Fertility Centre staff the number of embryos to be transferred and the staff did not follow up that failure or advise Dr Armellin that Ms G had failed to confirm or renominate the number to be transferred after being informed of the number of available embryos. In the absence of any such conversation between the staff and Ms G, the previous instruction took effect. If the Fertility Centre staff had asked Ms G to reconfirm the number of embryos to be transferred, she would have nominated one or two and the embryologist would have been so informed and would have prepared that number for implantation.
77. At the time of the conversation in theatre between Dr Armellin and Ms G, Dr Armellin assumed, reasonably, that the system had operated as expected or, if it had not, that he would have been notified.
78. The request for one embryo, minutes before the transfer in theatre, was not conveyed by Ms G in a manner or form to indicate to Dr Armellin that the nomination of one embryo was inconsistent with the instructions then in place by reason of communication between the plaintiffs and Fertility Centre staff. If Ms G had not been placed under sedation, at her request, a double check in theatre in the presence of Ms G, Dr Armellin and the embryologist would have clarified Ms G's new instructions but there was nothing to alert Dr Armellin to a need for that, or a double check with the embryologist, to occur.
79. I accept Dr Armellin's submission that there was nothing in the context of the conversation between him and Ms G in theatre that would have alerted him to the fact that she had failed to nominate to the Fertility Centre staff the number of embryos to be transferred. There was nothing to alert him or to put him on notice that his reliance on the system, which included the Fertility Centre staff checking with the patient the day prior to the procedure the number of embryos to be transferred, had failed. There was nothing to alert him to the need to inform the embryologist that there had been a change in the chosen number. The embryologist did not say anything to suggest that there was a need to confirm the number. The reliance by Dr Armellin on the system and the fact that he did not inform the embryologist of his conversation with Ms G was reasonable in the circumstances. There is no suggestion that Dr Armellin was of the view that it was incumbent on him to receive from Ms G information of any change in the number of embryos to be transferred. Despite the fact that the parties agree that Ms G did not make her decision until she actually spoke to Dr Armellin in theatre, there is nothing to suggest that Dr Armellin was aware of that fact.
80. There is no suggestion of lack of bona fides on the part of Dr Armellin. When Ms G stated to him in the theatre that only one embryo was to be transferred, he says and I accept that, if he believed that that decision had not already been communicated to the Fertility Centre, he would have ensured or double-checked with the embryologist that only one embryo was being transferred. At no time did Dr Armellin indicate or suggest that he intended or wished to act against Ms G's wishes. It is quite clear to me that, when that conversation took place in the theatre, Dr Armellin believed that the Fertility Centre was aware of the decision and that the embryologist would only present one embryo for implantation. That this is so is confirmed by his reaction when the embryologist informed him after the procedure was concluded that two embryos had been transferred.
81. Dr Armellin assumed and was entitled to assume that Ms G had confirmed with the Fertility Centre staff the number to be transferred on the day prior to the procedure and that that had been communicated to the embryologist. Dr Armellin exercised reasonable care and skill in carrying out his responsibilities as the consulting doctor.
82. Even if the system had operated as intended and Ms G had informed the Fertility Centre of the number of embryos to be transferred, she might have changed her mind at the last minute and informed Dr Armellin of that fact. In those circumstances, had Dr Armellin understood that he was the recipient of the final decision by Ms G that was to be complied with and transmitted to the embryologist, proper and reasonable practice would have required him to transmit that instruction.
83. However, the conversation between Ms G and Dr Armellin just prior to the procedure would not have alerted Dr Armellin to the possibility that he was the first to receive that instruction, or that Ms G had only then made the decision on the number to be inserted. Nothing that was said and nothing that occurred should have alerted him to the possibility that the system had not been complied with, that Ms G had not communicated her instructions to the Fertility Centre either in the ordinary course, or on admission or during preparation for theatre. He would not have known that Ms G's instructions had not been previously communicated or that his failure to inform the embryologist would result in two embryos rather than one being transferred. In the circumstances, the standard of care required of Dr Armellin did not include the obligation to apprise the embryologist or other members of the Fertility Centre staff of the number of embryos to be transferred, or of the fact of or content of the conversation with Ms G in theatre or, following that conversation, to ensure that only one embryo was transferred.
84. The plaintiffs submit that it would have been `profoundly simple, easy and indeed recommended process' for the mistake to have been avoided for Dr Armellin to say to the embryologist that Ms G had just told him that she only wanted one embryo transferred and to ensure that only one was in the straw/catheter. That is so, but it is not the test. The fact that it would have been easy to do and thus avoid the injury does not mean that it was reasonably foreseeable. It imports hindsight and present knowledge, knowledge that Dr Armellin did not have. He did not know that the system had not been complied with and that Ms G's decision to reduce the number of embryos to be transferred had changed from "one to two" to one.
85. The correct approach is to look forward to identify what a reasonable man in the defendant's position would have done, not to look back to identify what would have avoided the injury (NSW v Fahey [2007] HCA 20; (2007) 236 ALR 406 at [57]- [58] per Gummow and Hayne JJ).
86. The duty of care is not to be considered in the abstract (Cattanach at [65] per McHugh and Gummow JJ citing Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397 at 418 per Windeyer J) but in respect of the nature of the harm suffered (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [13] and [17] per Gleeson CJ, [102]-[104] per Hayne J; Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 per Brennan J). The risk of multiple pregnancy was foreseeable. The increased risk with the implantation of two embryos was foreseeable. The risk was realised. If Dr Armellin had appreciated that the conversation with Ms G constituted her instructions to change her previous direction to insert one to two embryos to a direction to insert one embryo and that she had not previously given that instruction to Fertility Centre staff, his duty would have extended to ensuring that the embryologist was told of the change.
Conclusion on breach of duty of care
87. I accept that Dr Armellin would reasonably have foreseen that the transfer of two embryos involved the risk of multiple pregnancy and birth. However, Dr Armellin did not know that two embryos were transferred until after the event. He was aware prior to the transfer that Ms G only wished one embryo to be transferred but was not aware that her decision had not been transmitted to the staff of the Fertility Centre or by the Fertility Centre to the embryologist. That lack of knowledge on his part was reasonable in the context of the system in place at the Fertility Centre and the fact that Ms G had not complied with her expected participation in that system, a fact not transmitted to Dr Armellin.
88. Ms G had completed the form authorising one to two embryos. The transfer of two embryos was normal procedure for IVF as a means of maximising implantation and pregnancy, balancing the risk of multiple births. On being told of the number of available embryos and their condition, Ms G did not tell the Fertility Centre in the conversation the day before the procedure that she changed her mind about the number to be transferred or that she only wished one embryo to be transferred. She did not tell anyone at the Fertility Centre of either of those matters on admission or prior to her transfer to theatre.
89. Ms G says that she only made up her mind about the number while in the theatre and then informed Dr Armellin. Whoever initiated the conversation in theatre, there was nothing to alert Dr Armellin to the fact that Ms G was conveying new instructions, or instructions inconsistent with those in the form, or that there was any alteration to the consent previously given.
90. It is apparent from Dr Armellin's completion of the pre-operation report, referring to the transfer of one embryo, that he believed that Ms G's decision to have one embryo transferred had been communicated through the Fertility Centre to the embryologist. That is reinforced by his conversation with the embryologist after transfer.
91. Dr Armellin's reliance on the system was reasonable. He did not reasonably foresee and a doctor in his position would not reasonably have foreseen that the system had not operated in accordance with normal procedure. There was no conversation or double check of the number of embryos to be transferred with the patient and the embryologist prior to the procedure because Ms G was under sedation when the embryologist arrived. However, it was reasonable for Dr Armellin to continue to assume that the system had operated normally. As part of that system, the embryologist brought the straw containing the embryos into the theatre and inserted them as indicated by the placement catheter placed by Dr Armellin. Dr Armellin, acting reasonably, did not foresee that his conduct involved a risk of injury to the plaintiffs. That was reasonable in the circumstances.
92. Dr Armellin did not have the information that Ms G was changing her instructions as to the number of embryos. He neither had it nor, in the circumstances, ought he reasonably to have had it at the time of the procedure (s 42 of the Act). The risk of multiple pregnancy and multiple birth was foreseeable but it was not foreseeable that it was an unwanted risk or one that Ms G had not accepted with the transfer of one or two embryos. Accordingly, Dr Armellin was not negligent under the Act in failing to take the precaution of reducing the number of embryos to one (s 43 of the Act). The fact that a risk of multiple pregnancy and multiple birth could have been avoided by the transfer of a single embryo does not of itself give rise to or affect liability for the way in which the transfer was done (s 44(b) of the Act).
93. Dr Armellin did not breach his duty of care to the plaintiffs.
THE CONCESSION
94. In the amended statement of claim, the plaintiffs allege that Dr Armellin was in breach of his duty of care to the plaintiffs. Dr Armellin gave evidence and was extensively cross-examined. I found him to be a forthright witness. He freely acknowledged that the implantation of two embryos rather than one was a mistake and an incorrect procedure and that it came about as a result of lack of communication between him, the embryologist and Ms G. However that did not amount to an acknowledgement or admission that there had been a breach of the duty that he owed to Ms G, or that he was otherwise negligent. His counsel, Ms Burke, made that clear in her summarised submissions which were made orally at the conclusion of the evidence. She emphasised the system and Dr Armellin's role within it. However, the plaintiffs rely on a concession made by Ms Burke during those oral submissions. Detailed written submissions followed.
95. In the context of her oral submissions concerning the interaction between the clinician and the embryologist, Ms Burke said:
...it is conceded that a reasonable practitioner in the defendant's position would have done a double check and had a conversation with the embryologist to confirm that it was one embryo being transferred. In other words, when he rings up the embryologist to say, "I'm ready to go. This lady's under sedation. It's one is it?", the embryologist said, "No, it's two", that didn't happen. And I for one moment don't say that ought not to have happened in this instance.
Ms Burke continued:
So therefore that concession in relation to the second breach, the second leg of the second breach, and the third breach, knowing that she was under general anaesthetic and failing to make sure that he only in fact transferred one embryo, is a concession by the defendant that he ought to have taken reasonable steps to have at least a conversation with the embryologist to say, "It is only one embryo, is it?" That didn't happen. However, the fact that he did not do that himself and the fact that that resulted in the transferring of two embryo instead of one, the actual transfer of two embryo instead of the one is not outside what was apparently the standard practice at the time in relation to insertion of two embryos
(`the concession').
96. The plaintiffs rely on the concession to establish Dr Armellin's breach of duty as alleged in the statement of claim.
97. Upon the concession being made, I put to Ms Burke the difficulty I had with the apparently contradictory aspect of her submissions: first, that there was a system in place for which Dr Armellin did not have responsibility and secondly, that she conceded that a reasonable practitioner in his position should have clarified Ms G's last minute request to him that only one embryo be transferred with the embryologist. Ms Burke's response was `that in this particular instance there was something that was outside the system, and that was that she was under general anaesthetic or sedation'.
98. I granted a short adjournment for Ms Burke to consider whether, because of the concession, the issues that she had raised in relation to the system that operated at the Fertility Centre were irrelevant. Her response after that short adjournment was to repeat that the concession was that the defendant ought to have said to the embryologist `"That's one, is that right?", but the embryologist should have said to him as well' that she had two embryos.
99. After the adjournment, when given the opportunity to explain how the concession affected the defence of no breach of the duty of care, Ms Burke again repeated the concession that, for a prudent doctor in Dr Armellin's position in this last step of the system, a conversation should have taken place between the plaintiff, the consultant and the embryologist. She reiterated that, with Ms G under sedation, that left two other people to have the conversation and that neither did the double check. When I put it to her that her allegation of equal responsibility between the embryologist and the doctor did not absolve the doctor of the responsibility, Ms Burke agreed. When I put to her that there was a breach of Dr Armellin's duty, she said `there was'. Again, when I sought to clarify that she accepted that, whether or not the embryologist or the doctor initiated a conversation, the doctor had an obligation to ensure that a double check took place Ms Burke repeated `I'm not resiling from that concession'. When asked whether she accepted that the doctor breached his duty of care she said `I accept that there was the breach there, he ought to have asked, but the corollary to that is the embryologist was also a participant'.
100. Ms Burke disagreed that that meant that her submissions about the system were irrelevant, saying `my submissions in relation to the system went to the scope of the duty in addition to the issues in relation to breach'. It could be said that that derogated from what seemed to be the clarity of the concession. When I asked her again if she accepted that Dr Armellin had breached his duty of care, Ms Burke resiled from the expression of the concession and framed it in terms of Dr Armellin's evidence. She said `and that concession was made as a direct consequence of Dr Armellin's evidence, his evidence was, he'd said from day one it was a mistake'.
101. What exactly did Ms Burke concede at the hearing? Ms Burke made it clear that the concession arose from Dr Armellin's statement that he accepted that there had been a mistake. She did not concede that Dr Armellin was under an obligation to initiate the conversation with the embryologist but confirmed that he should have had a conversation with the embryologist. When asked whether Dr Armellin's evidence was simply that there was a mistake in the overall circumstances and whether she conceded that Dr Armellin had a duty to avoid a mistake being made, Ms Burke said that the concession `was prefaced following that that act in itself was not negligent'. When asked to confirm that what she described as `the second leg of the second breach...and the third breach...are conceded', she said `Yes. I do not move from that'.
102. Despite having given Ms Burke every opportunity to clarify the concession, I told her that I would give her the opportunity to frame the concession precisely and would not hold her to what had been said during the course of oral argument. Counsel for the plaintiffs did not object to that course of action. Ms Burke then said that she did wish to have the opportunity to clarify the concession precisely, saying:
I didn't realise I'd used the words in relation to the concession I made linking it immediately into the breaches per se, and I certainly do want to alter it. Before I do though I want to think about how I want to put the words because it is an important point and I do not want to sell my client Dr Armellin down the river as a result of throwing away a few words without taking the necessary care.
103. In her written submissions, Ms Burke refers to the concession. She acknowledges that she had, in oral submissions, conceded that a reasonable man in the defendant's position would have double-checked with the embryologist. She withdraws it. She says that she had only intended to concede the mistakes or errors as conceded by the defendant in evidence. Dr Armellin conceded that the transfer of two embryos rather than one was a mistake. He had said in evidence that there was usually a conversation between himself, the embryologist and a patient as the patient was normally not sedated and therefore awake when the embryologist arrived. This had not occurred as Ms G was under sedation when the embryologist arrived.
Admissions of fact and of law
104. The Court Procedures Rules 2006 (ACT) (`the ACT Rules') made under the Court Procedures Act 2004 (ACT) provide for admissions in rule 493, relevantly:
(1) If an admission is made by a party, whether in a pleading or otherwise, after the start of the proceeding, the court may, on another party's application, make an order to which the party applying is entitled on the admission.
(2) The court may give judgment or make another order even though other issues in the proceeding have not been decided.
105. No application has been made under rule 493. The rule is not instructive as to when a party will be bound by an admission or concession.
106. In considering the effect of admissions, courts have distinguished between admissions of fact and admissions of law. In Shine v Williams [2007] WASCA 194, the Court of Appeal of the Supreme Court of Western Australia considered the applicable rule, O 30 r 3(1) of the Rules of the Supreme Court 1971 (WA), (`the WA Rules') which states:
Where admissions of fact have been made on the pleadings or otherwise, any party may at any stage of a cause or matter apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may on such application make such order or give such judgment as the Court thinks just.
107. The appellant in Shine was injured aboard a bus operated by the respondent. The Insurance Commission of Western Australia entered into correspondence with the appellant, in which the appellant claimed that the Commission made admissions attracting the Court's discretion under O 30 r 3(1) of the WA Rules. In later correspondence between the parties, the Commission attempted to withdraw the admission.
108. As to the applicability of O 30 r 3(1) to admissions of law, Buss JA and Murray AJA observed (at [27]) that:
...a statement that there has been a failure to comply with a legal standard of conduct is not an admission of fact but a statement about the law, whether it is right or wrong or whether wisely made or not. It remains for the court to give effect to its own conclusion about the law applicable to the facts of the case, whether established by admission or otherwise.
109. The Court noted that, as to admissions of fact, the matter is left within the discretion of the Court and that the Court's discretion is `informed by the court's appreciation of the justice of the case' (at [19]).
110. In Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 the High Court considered the distinction between admissions of fact and of law where admissions were made in a media release and in correspondence in terms of (at [19]-[20]):
We apologise...This situation should not have occurred...this does not excuse Dovuro in failing in its duty of care to inform growers as to the presence of these weed seeds. We got it wrong in this case...
Counsel also made concessions as to the existence of the duty of care in closing submissions at trial (Dovuro at [48]-[49]).
111. Justice Gummow (with whom McHugh and Heydon JJ agreed), expressed the view (at [68]), that a party may make an admission not only of a fact but also of a conclusion from facts but that to say that a party may undo an admission as `a mixture of fact and law, or even of law' (citing Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 231 per Mahoney JA) was to state the proposition too widely. Further, `a party may admit the facts from which a conclusion of law may then be drawn' (at [69]). However, a conclusion with respect to the legal standard, or its application, is for the court (at [70]-[71]).
112. Dovuro and Shine stand for the proposition that admissions will be valid insofar as they pertain to facts. Questions of law and concessions by a party concerning those questions of law remain for the Court to decide.
113. Ms Burke's concession may be taken to admit the facts supporting a duty of care and the facts relating to its breach, leaving the Court to apply the relevant legal standard.
Withdrawal of admissions
114. The concession in Dovuro was made at trial and only sought to be withdrawn on appeal. Justices Hayne and Callinan at [152] considered as relevant:
* the concession was a concession of law not of fact;
* the point sought to be agitated had been raised in the pleadings and at trial; and
* it could not be said that Dovuro's concession affected the course of evidence.
Their Honours accepted at [151] that whether a new point may be raised on appeal depends on whether it is `expedient in the interests of justice' (citing O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 7 per Mason J). A fortiori when a concession was made and withdrawn in the same proceedings after the conclusion of the evidence.
115. Justice Kirby in Dovuro (dissenting, at [85]-[88]) turned to the purported withdrawal in the appellate jurisdiction of the Federal Court of a concession made during trial to the effect that the appellant was under a duty of care to persons in the position of the plaintiff. The appellant sought to rely on a ground of appeal that it did not owe a duty of care to the plaintiff. Justice Kirby said at [87]:
In an appeal, an obvious restriction on permitting the withdrawal of a concession made at trial occurs where, by reason of the concession, the evidence has taken a course which it otherwise might not have followed. Where a party would be prejudiced by acting at trial on the faith of a concession formally made by another party, withdrawal will not normally be allowed.
[footnote omitted]
116. These considerations do not apply here. The concession was made and withdrawn at the trial stage, in the same proceeding. Further, as Kirby J said, an exception to this general proposition is the principle that `the interests of justice may require that a party be allowed to withdraw a concession and to make submissions on a point of law or construction abandoned below' (at [89]), if all the facts of possible relevance to an issue have been adduced and the question is a pure question of law.
117. The analysis that was undertaken by Gyles J in the Full Federal Court proceeding (Dovuro Pty Ltd v Wilkins [2000] FCA 1902; (2000) 105 FCR 476) and considered with approval by Kirby J at [92] is relevant to the present case:
... (a) that the concession was only made at trial at the commencement of the final address by counsel for Dovuro and then in very general terms; (b) that, because of the denial that a duty of care was owed, set out in the pleadings, all relevant evidence for the Wilkins on this issue must have been adduced by the time the concession was announced; (c) that the question of the existence of a duty involved the application by the judge to the facts of the applicable principles of law and little time was lost or saved by the course taken at trial; (d) that no hidden tactical or forensic motive for the course adopted by Dovuro at trial was proved or suggested...
118. That analysis is persuasive in the present circumstances. The evidence in support of the duty of care and its breach had been adduced. The concession was made and withdrawn before submissions were complete and before the Court formed its judgment on the basis of that admission. Furthermore, it is difficult to discern a tactical advantage served by conceding that Dr Armellin owed a duty of care to the plaintiffs which was breached or relevant prejudice to the plaintiffs.
119. Whether or not the concession is binding as an admission of fact or law, it is in the interests of justice to permit Ms Burke to withdraw it and I allow the withdrawal. Although Ms Burke was given several opportunities at the time it was made to reconsider the terms and effect of the concession and she reiterated it, she reserved her position to clarify it in written submissions, which she did and withdrew it. There is no suggestion that, apart from the benefit of the concession in proving the plaintiffs' case, the plaintiffs relied on the concession in the conduct of their case.
REMAINING ISSUES
120. Although I have determined that Dr Armellin was not negligent and did not breach his duty of care to the plaintiffs, I will consider the remaining aspects of the case.
CONTRIBUTORY NEGLIGENCE
121. Dr Armellin submits that Ms G contributed to any negligence by failing to communicate, advise, or nominate to the staff at the Fertility Centre the number of embryos to be transferred.
122. The plaintiffs deny any behaviour on their part which contributed to the damage that flowed from the insertion of two embryos. In answer to the complaint that Ms G did not nominate the number of embryos at an appropriate time, such as the day before transfer, the plaintiffs say that no such request was made of her on that occasion.
123. The following matters are relevant in determining the extent, if any, of Ms G's contributory negligence:
* Ms G made the decision to undergo embryo transfer.
* She requested, in writing, the transfer of one to two embryos.
* The request was made to the Fertility Centre.
* She took no step to revoke that request in writing.
* The Fertility Centre performed its practices and procedures based on the written request.
* Ms G did not advise the Fertility Centre nurse or the embryologist at the Fertility Centre of her intent to have only one embryo transferred, despite having every opportunity to do so on 11 November 2003 when she was advised that there were five fertilised eggs available and on the day of the procedure on admission to the Fertility Centre and prior to being taken to theatre.
* The embryologist needed to know the number to be inserted to prepare the straw containing the embryos for insertion.
* Ms G was aware that the embryos were stored in a refrigerator in a laboratory, to ensure viability.
* She was aware, to Dr Armellin's knowledge, that even one embryo could result in multiple births and consented to the procedure.
* Most importantly, she did not make it clear to Dr Armellin in the conversation in theatre that she was altering her previous written instructions.
124. By reason of these matters, Ms G's conduct was negligent and that negligence materially contributed to the mistaken transfer of two embryos.
125. Dr Armellin submits that, if he were found negligent and liable for damages, any damages awarded should be reduced by 35% to account for Ms G's contributory negligence. This represents, in my view, the minimum percentage that should apply. As the defendant submits that it is appropriate, I accept that any damages found to be due to Ms G because of negligence on the part of Dr Armellin would be reduced by 35%.
DAMAGE
126. The defendant was under a duty to take reasonable steps to prevent a foreseeable risk of harm (Chappel v Hart (1998) 195 CLR 232 at [7] per Gaudron J). Dr Armellin accepts that, where a person does something which creates or increases the risk of injury to another, the person is bound to take steps to avoid or prevent that injury (Sutherland Shire Council at 479 per Brennan J). The undisputed evidence is that the risk of multiple births with the transfer of one embryo was 0.1% and with two embryos 20%. However, Dr Armellin says that there was no harm or damage which is actionable.
127. The parties do not agree on the harm or injury suffered by Ms G. The transfer of two embryos was a necessary condition of the birth of the non-identical twins (s 45(1) of the Act). The plaintiffs submit that the damage or harm was the transfer of the two embryos with the consequential effects of the multiple pregnancy and the economic loss of the second child. The plaintiffs say that the gist of the claim is not the birth of the twins but the suffering, harm and damage that arises from the breach of duty of care. They submit that their damage includes `anger at the violation', anger at the failure of the doctor to comply with the request, the exacerbation of the symptoms before birth and the need to undergo relationship counselling. There is no economic loss at the time of the manifestation of the first emotional harm. The birth of the twins results in the cost of raising an additional child.
128. Dr Armellin submits that the damage was the birth of twins. He submits that there was no harm or damage for which he was liable, as the transfer of two embryos cannot fairly and properly be considered a cause of relevant injury or harm to Ms G. He raises a number of reasons why, he says, this is so:
* As Ms G intended to become pregnant and have a child or, if an embryo split, two children, there was no injury suffered by becoming pregnant and having two children.
* The risk of multiple pregnancy and twin birth was not created by the transfer of two embryos. It is an inherent risk of IVF, even with the transfer of one embryo and one that Ms G accepted.
* Ms G was already exposed to the class of risk of multiple pregnancy and twin birth and the fact that there was an increased risk is not relevant.
* The birth of a child is not compensable damage.
Was there an injury?
129. Dr Armellin distinguishes the failed sterilisation cases on the basis that the plaintiffs in those cases did not wish to fall pregnant, whereas Ms G did. Dr Armellin points to the different descriptions of the gist of the action, the damage or the nature of the loss as found by some of the Judges of the High Court in Cattanach, a failed sterilisation case where damage was recognised:
* the creation of the parent/child relationship (at [25] per Gleeson CJ).
* the physical injury of an unwanted pregnancy and giving birth (at [148] per Kirby J).
* the burden of the legal and moral responsibilities that arise by reason of the birth (at [68] per McHugh and Gummow JJ).
* the value to the parent of the new life of the child (at [258] per Hayne J).
130. In the present case there was, Dr Armellin submits, no unwanted pregnancy and so no injury as found by Kirby J in Cattanach. Accordingly, he submits, there is no majority that binds me on what the nature of the damage is and whether damages can be recoverable for the birth of a second child where one child was wanted.
131. Whether the damage suffered was the multiple rather than the singleton pregnancy, the creation and existence of the parent-child relationship with the unwanted second child, the new life of the additional child, or the expenditure that the plaintiffs have incurred or will incur in the future, the plaintiffs have suffered them all.
132. Dr Armellin submits that the duty of care does not extend to a duty to avoid or prevent a pregnancy or an unwanted birth. He says that Ms G wanted a pregnancy and, if a single embryo split, there would not have been an unwanted birth. He says that there was no unwanted pregnancy, no injury, no assault on the body by falling pregnant, no symptom of pregnancy that occurs only by reason of twins rather than a singleton.
133. However, while a pregnancy was wanted, a multiple pregnancy was not. It differed in the extent of the symptoms and the fact that it resulted in the birth of two children.
134. Dr Armellin submits that there is inconsistency in the identified damage in Cattanach, as physical injury to the mother from an unwanted pregnancy is not the same as legal and moral responsibilities arising by reason of the birth of the child. He submits that the majority of Judges in Cattanach found that the cost of raising a child arose as a consequence of economic loss flowing from physical injury to the mother. Here, he says, there was none, as Ms G wanted a pregnancy. He says that there was no assault on the body by falling pregnant, as that was Ms G's wish. While there may be have been some exacerbation of symptoms, there is no symptom of pregnancy that occurs in a twin pregnancy that does not occur when pregnant with a single child (as noted by Dr Clarke in his report). He submits that, as the pregnancy was not unwanted, there was no damage. Accordingly, Dr Armellin submits, the only damage in this case can be the birth of an unplanned and unwanted child, which is not actionable.
135. In support of that latter proposition, Dr Armellin draws attention to the decision of the High Court in Harriton. Harriton was decided after Cattanach and to some extent clarified the application of that case. In Harriton, a child born with severe disabilities, because her mother had contracted rubella during pregnancy, brought a claim against the doctor who had not advised the mother of circumstances which would have led the mother to have a lawful termination of the pregnancy. At issue was whether the child had a cause of action in negligence against the doctor. The plaintiff in Harriton failed because proven damage or harm requires a comparison between her present condition and the condition she would have been in had there been no negligence. It was not possible to compare a life with disabilities and non-existence.
136. Dr Armellin says that there is no distinction between an action by a child born with disabilities (Harriton) and a claim by parents of an able bodied child (Cattanach). Dr Armellin submits that both types of claim are repugnant to the principle of sanctity of life and the value and valuation of life itself, supported in Harriton and discussed in detail by Crennan J with whom Gleeson CJ, Gummow and Hayne JJ agreed. However, the High Court has decided differently. Dr Armellin fails to grapple with the fact that the majority of the High Court found that the claim by the parents was compensable and that, in Harriton, Cattanach was approved and distinguished. Cattanach was a claim for wrongful birth; Harriton for wrongful life. This is a claim for wrongful birth.
137. Further, the submission that there was no damage because there was no unwanted pregnancy, so that the decision of the majority in Cattanach is not binding, fails to understand the reasoning behind the decision of Kirby J in Cattanach on whom Dr Armellin's submission principally relies. Justice Kirby in Cattanach and, previously, in CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 (`CES Superclinics') at 71-72 considered the situation when a pregnancy was unwanted. The same reasoning applies where a single pregnancy was wanted but a multiple pregnancy was not.
138. In my view, Ms G did suffer injury. That was the insertion of two embryos that resulted in a multiple pregnancy and twin birth. This can be understood in the context of Ms G's distress on learning of the fact that two embryos had been inserted and that the increased risk of multiple birth had materialised. As both embryos successfully proceeded to develop, there was an exacerbation of the symptoms of pregnancy, together with the extra difficulties of carrying twins to term. After the twins were born, the plaintiffs assumed the legal and moral responsibilities of raising them and became liable for the extra costs in doing so.
139. The injury in question, the interest of the Melchiors in Cattanach that the law of negligence protected, was the interest in their reproductive future. A responsibility was then incurred which was both moral and legal. Justices McHugh and Gummow eschewed at [67] the characterisation of damage as the parent-child relationship or the coming into existence of the parent-child relationship. The damage, as their Honours put it at [67] had to be either physical injury to person or property or the suffering of a loss measurable in monetary terms or the incurring of expenditure as the result of the invasion of an interest recognised by the law. The physical injury was the unwanted multiple pregnancy. Loss flowed from the consequences of that multiple pregnancy in the birth of the additional child. The damage is linked to the actual expenditure incurred or to be incurred in the future in relation to that child. The damages are then determined by reference to causation and reasonable foreseeability.
The inherent risk of multiple pregnancy; the exposure to the same class of risk
140. In Chappel, Gaudron J at [11]-[13] rejected the argument that, where there was an inherent risk, no damage was suffered by reason of exposure to an increased risk of harm which eventuated. Her Honour rejected an argument that assumes that the degree of risk, as distinct from the nature of the risk, are the same. Further, she said that it was erroneous to say that the damage sustained was exposure to risk, it was the harm which eventuated. To say that Ms G, like Mrs Hart in Chappel, would inevitably have been exposed to risk of the harm which she suffered is not to say that she would inevitably have suffered that harm. It is correct that Ms G would have been exposed to a risk of multiple pregnancy with the transfer of one embryo but that is not to say that exposure to that risk would have eventuated in the twin pregnancy. She may have submitted to a risk of 0.1% but did not submit to a risk of 20%. Put another way, she consented to a multiple pregnancy only to the extent that it arises with the transfer of a single embryo.
141. In Chappel, of the Judges who considered the difference between exposure to a class of risk and exposure to a similar degree of that class of risk, Kirby J (in the majority) and Hayne J (in dissent) distinguished between the two in the context of liability. Dr Armellin relies on McHugh J (in dissent) at [28] to submit that a person is not to be held liable for risks that cannot be avoided by the exercise of reasonable care. However, the totality of his Honour's reasons make it clear that he considered a defendant liable for negligent action that resulted in increased risk where the risk was realised. His Honour said at [27] that if a wrongful act or omission results in an increased risk of injury and that risk eventuates, the defendant's conduct has materially contributed to the injury, whether or not other factors also contributed to the injury occurring. The risk to which Ms G was exposed was the transfer of more than one embryo. The harm that resulted was the multiple pregnancy.
142. Justice McHugh in Chappel said at [34] that a causal connection will not exist if every alternative means of achieving the plaintiff's goal gave rise to an equal or greater probability of the same risk of injury and the plaintiff would probably have attempted to achieve that goal in any event. Dr Armellin does not pose such an alternative means. He does not dispute that a single embryo would have fulfilled the goal of a child, with a reduced risk of twin births.
143. A consideration of the reasoning in Chappel does not support the proposition that liability only accrues where the totality of the risk was created by the tortfeasor. It is sufficient if the actions increased the risk to which the plaintiff was exposed. A person would not normally be held liable for those risks that cannot be avoided or reduced by the exercise of reasonable care. Here, risk could not be avoided but the risk could have been reduced.
144. Dr Armellin submits that the relevant question is not whether the transfer of two embryos increased the risk but whether it created the risk of multiple birth which, clearly, it did not. For the reasons in Chappel, the fact that the risk was inherent in the procedure does not avoid liability for the increased risk that accrued from the transfer and resulted in a multiple birth.
145. As Crennan J said in Harriton at [251], inherent in the principle that damage is the gist of the action is the requirement that a plaintiff is left worse off as a result of the negligence complained about. Whether the damage was the transfer of two embryos or the birth of the twins, Ms G is, in her mind, worse off in that she considers herself worse off with two children than with one. Minds may differ on whether the birth of two children rather than one is an injury or damage or results in the parents being worse off but that is not the point here. The plaintiffs did not want two children. That was their choice. They consider themselves worse off. It is, for the purpose of this analysis, no different from other aspects of life and activity which different people regard as advantageous and disadvantageous, important and unimportant, a bearable pain and an unbearable pain.
146. Dr Armellin submits that he cannot be made liable for a risk, multiple pregnancy, which could not be avoided in the IVF procedure even with the transfer of a single embryo. He submits that it cannot be said that, but for the transfer of two embryos, only one child would have been born. Dr Armellin submits that it is impossible to determine with any degree of accuracy what would have been the situation if the alleged negligent act had not occurred and that such a comparison is required (Harriton at [168] per Hayne J, at [251] per Crennan J). He points to the possibilities that one embryo was transferred but failed to take, that it took but miscarried, that it took and split into two foetuses or that it took and resulted in the birth of a single child. As he observes, the plaintiffs' case assumes the last of these events. These submissions advance an analysis that applies the "but for" test to causation. Each of the embryos may have developed differently. However, both transferred embryos did take. Neither miscarried. Neither split into two foetuses and each embryo developed into a child that was born. It is not possible to say that, if one embryo had been transferred it would have failed to take or have miscarried and there is no evidence supporting that outcome.
147. But for the insertion of two embryos, Ms G would not have had twins. However, the "but for" test is not the exclusive test for application and there may be adequate reason to refuse to regard that test as the cause of injuries sustained (Chappel at [70] per Gummow J). This is not a case where it is proper to assess causation solely by the "but for" test (March v E & M.H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Chappel at [24] per McHugh J, at [62] per Gummow J, at [93] per Kirby J).
148. In summary, Ms G did accept a risk of multiple pregnancy but she accepted a degree of risk of the order of 0.1%, associated with the transfer of a single embryo. She did not accept the degree of risk of the order of 20% associated with the transfer of two embryos. There was exposure to a different degree of risk and "harm" resulted, twin births. Adapting what was said by Gaudron J in Chappel at [12], to say that Ms G would inevitably have been exposed to risk of the harm which she suffered is not to say that she would inevitably have suffered that harm. The duty to avoid injury is called into existence because of the foreseeablity of that increased risk, which eventuated (Chappel at [8]-[10] per Gaudron J). The likelihood of the risk eventuating was not the same with one embryo and with two embryos (Chappel at [17] per Gaudron J). If a wrongful act or omission results in an increased risk of injury and that risk eventuates, the conduct has materially contributed to the injury, whether or not other factors also contributed to that injury occurring (Chappel at [27] per McHugh J).
The birth of the second child
149. Faced with the decision in Cattanach, where a plaintiff recovered damages for the birth of a child after a doctor negligently performed a sterilisation procedure, Dr Armellin, as I understand his submissions, seeks to distinguish Cattanach on the basis that, while a child was born in Cattanach and a child (one of two) was born in this case, the nature of the damage in the two cases was different.
150. In Cattanach the defendants accepted a duty of care, a breach of the duty, causation and damage of various kinds (at [66] per McHugh and Gummow JJ, at [314] per Heydon J). There was no question raised of remoteness, or of insufficient causal connection between the breach of duty and the claimed loss, or of the right of both parents to claim the benefit of an award of damages (at [51] per McHugh and Gummow JJ).
151. Dr Armellin submits that the present case should not be characterised as a "wrongful birth" case but as a "wrongful life" case, so that the principles in Harriton apply. He characterises the cause of action as one that says that one of the twins should not have been born. He contends that there was no relevant damage and hence no cause of action.
152. That is a misreading of the decision in Harriton, a case brought by a child, not by the parents. In Harriton, Crennan J explained at [223] the distinction between wrongful life and wrongful birth claims. The former encompasses claims by disabled children for alleged negligence after conception and negligent medical advice and diagnosis prior to conception. The latter, that is wrongful birth claims, involve claims by parents for the costs of raising a child, whether healthy or disabled, whose unplanned birth occurs as a result of medical negligence.
153. Dr Armellin seeks further to distinguish Cattanach by drawing a distinction between a failed sterilisation case, where there was no intention on the part of the plaintiff to conceive and fall pregnant and a case where there was such an intention. The distinction is, he says, between the doctor's duty in the former to avoid or prevent conception and pregnancy; in the latter to assist the patient to conceive and fall pregnant. Mr Marshall likens Dr Armellin's submission, that Cattanach be distinguished by restricting it to cases of tubal ligation, to a suggestion that Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562 ought only be applied to snail in bottle cases and not to other contaminated consumer product cases.
154. In essence, Dr Armellin's submission amounts to a submission that, because Ms G accepted the possibility of twins in undergoing AI and IVF treatment, that served to limit the duty of care owed by him to ensure that the outcome of the procedure was in accordance with her instructions as to the number of embryos to be implanted. That is not correct. Dr Armellin's duty was not limited to assist in reproduction or to preventing conception and pregnancy. It extended to a duty to comply with the plaintiffs' wishes with respect to the procedure adopted. IVF, like a tubal ligation, is a medical procedure and it was the consequences of a negligently performed procedure with which the Court dealt in Cattanach.
The chain of causation
155. If there was a breach of duty by Dr Armellin, the plaintiffs must prove that the injury was connected to the breach of duty. That is to be determined according to common sense, rather than according to philosophical or scientific theories of causation (Chappel at [23] per Gaudron J, at [93] per Kirby J).
156. It may be a curious consequence that Dr Armellin would not have been liable for a multiple pregnancy and the birth of twin girls resulting from a single embryo but would be liable for a multiple pregnancy and the birth of twin girls resulting from two separate embryos.
157. Dr Armellin points to the possibility of twin births with the transfer of one embryo. He submits that the transfer of the two embryos did not have any effect on the manner in which the embryos developed in utero. It was, he says, Ms G's body that determined whether the transfers were accepted or rejected and that as each embryo could have resulted in multiple births or miscarriage, it is not possible to say what would have happened if only one embryo had been transferred. There is nothing Dr Armellin could have done to change this course after transfer.
158. The causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission (Chappel at [113] per Hayne J). As Crennan J said in Harriton, inherent in the requirement that there be damage is the requirement that a plaintiff is left worse off as a result of the negligence complained about (at [251]).
159. Ms G was exposed to increased risk and the risk eventuated in the twin pregnancy and twin birth. It was the transfer of the two embryos that caused the twin birth that occurred.
MITIGATION AND BREAKING OF THE CAUSAL CONNECTION
160. Doctor Armellin points to two ways in which Ms G failed, he says, to mitigate the damage and loss arising from the transfer of two embryos instead of one. The first was failing to undergo a reduction of the number of embryos, that is to abort one embryo. The second was a failure to have one of the children adopted at birth. In each case Ms G was aware of the possibility, thought about it and decided not to take that action. Dr Armellin also submits that the failure to undergo an embryo reduction and the failure to adopt out one of the children at birth breaks the chain of causation, in that the relevant choice means that he is no longer liable for the loss arising after the time the choice was made.
Mitigation
161. As a general rule, the victim of a negligent act must take reasonable steps to mitigate the loss suffered as a result of the negligence. The victim cannot simply choose not to act and let the losses flowing from the negligence multiply (Ardlethan Options Ltd v Easdown [1915] HCA 53; (1915) 20 CLR 285 at 296 per Isaacs J). Rather, the victim must take action to keep damages limited, so far as is reasonable in all the circumstances of the case. As Santow JA stated in Ackland v Commonwealth of Australia [2007] NSWCA 250; (2007) Aust Torts Reports 81-916 (at [96]): `under mitigation the question becomes whether the plaintiff has, after the initial event, failed to act reasonably to mitigate ongoing damage'. This applies to action and inaction.
162. The test for whether the victim has failed to mitigate his or her loss requires an analysis of the type of damage and whether the victim has failed to act in a reasonable fashion to mitigate that damage. The question is whether a reasonable person in circumstances as they existed for the plaintiff would have acted in the way the plaintiff did (Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345 at 350). It may assist to ask what the victim would do to avoid further loss supposing that for some reason, he or she could not get any damages (Marinko v Masri [1999] NSWCA 364; (2000) Aust Torts Reports 81-581 at [14] per Handley JA citing Driver v War Services Homes Commissioner (1923) 44 ALT 130 at 134 per Irvine CJ). The test of what is reasonable in the circumstances is objective (Marinko at [23] per Handley JA).
163. In personal injury actions, failure to mitigate has commonly been addressed in situations where the victims have failed to undergo medical treatment to reduce their losses. In such cases, the question has been considered, not as whether it would have been reasonable to have the medical treatment, but whether it was unreasonable of the victim to refuse the operation (Fazlic at 350). Trindade, Cane and Lunney (The Law of Torts in Australia, 4th ed, 2007) state that it appears that this question `which is one of fact, is to be judged objectively but taking into account quite a few of the victim's personal characteristics' (Glavonjiv v Foster [1979] VR 536; Fontaine v Quality Platers (1994) 12 WAR 71). For instance, if the victim has a predisposition to react neurotically to slight physical trauma, this ought to be taken into account in assessing the response to mitigation opportunities (Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 at 361 per White J).
164. The assessment of the reasonableness or otherwise of the decisions concerning abortion or embryo reduction and adoption depends on Ms G's state of knowledge at the relevant time. She is not expected to give effect to factors unknown to her and, as in the case of a medical procedure, she would know little except what she is told (Fazlic at 350). It is for Dr Armellin to establish that her decision was unreasonable in either case (Marinko at [22] per Handley JA).
Breaking the chain of causation
165. A superseding event is said to "break the chain of causation" where the event severs the link between the defendant's negligent action and the claimed injury. The question of whether a particular superseding event itself causes the loss is one of fact to be resolved as a matter of common sense.
166. Whether an action breaks the chain of causation has commonly been considered where, following the defendant's act of negligence the subject of complaint, the plaintiff, or a third party, acts negligently. One example was where a non-passenger plaintiff jumped out of a train that was negligently pulling away from the platform early and injured himself (Caterson v Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99 at 110). The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. To show that conduct breaks the chain of causation requires the conduct to be the result of the plaintiff's independent and unreasonable action (March at 517-8 per Mason CJ).
167. The chain of causation is not broken where the harm resulting from the negligence of the plaintiff or the third party is the very risk generated by the defendant's negligence and occurs in the ordinary course of things. In March Mason CJ stated (at 518) that `...it makes no sense to regard the negligence of the plaintiff...as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff...and that injury occurs in the normal course of things'.
168. Dr Armellin does not say that Ms G's decisions not to undergo embryo reduction or have one of her children adopted after birth were themselves negligent. The question arose whether the decisions and failure to act was deliberate and voluntary and themselves were the superseding cause of the loss. Inevitably, a determination of this question will involve similar considerations to those addressed under mitigation.
Guidance from authority as the effect of a failure to abort or adopt on mitigation and causation
CES Superclinics and Cattanach
169. In CES Superclinics, Priestley JA held that damages recoverable for an unwanted child as a result of medical negligence were limited to the confinement and did not extend to the costs of rearing the child after the mother made a decision not to have the child adopted. Justice Priestley did not suggest that the mother should have given the child away for adoption but was of the view (at 84) that the damage flowing from the negligent act did not extend to the time after that choice was made, although the anguish of that choice would be part of the damage. His Honour concluded that the expense of raising the child was relevantly caused not by the breach of duty but by the plaintiff's choice not to have the child adopted (at 85).
170. In CES Superclinics, Kirby ACJ considered that it was unreasonable to describe the choice not to adopt as "unreasonable". His Honour was of the view that the costs of raising the child were either available or to be rejected on public policy grounds (at 79). In Cattanach, Kirby J referred to what he described as the "unloved holding" in CES Superclinics (at [115]). His Honour commented that he had agreed with the approach of Priestley JA in that case (to reach agreement on the orders) and that the approach had attracted criticism. He noted that it was not argued in Cattanach that a failure to procure a termination of pregnancy or a failure to adopt disentitled a plaintiff to damages (at [114]). Justice Kirby said at [161] `...severing the causal link between various outcomes of the pregnancy [ie immediate consequences of the negligence, such as hospital costs, and longer term consequences] is incontestably arbitrary. Both kinds of damage are equally foreseeable as a consequence of negligence. Each is directly caused. Neither is too remote'. Similarly, Callinan J referred at [294] to the fact that the argument that a failure to offer for adoption or to terminate the pregnancy was a failure to act reasonably was not advanced in Cattanach and his Honour left the matter open. At [301] Callinan J said: `To many, the abortion of a child or the offering of him for adoption, particularly within wedlock, would be more morally repugnant than the claiming of damages in respect of the rearing of the child.' Justice Callinan held that those damages could be claimed and his Honour's statement is read in that context.
171. Chief Justice Gleeson observed in Cattanach at [26] that the possibility of adoption was not raised, nor was it argued that the failure to adopt breaks the causal relationship between the medical negligence and the cost of raising and maintaining the child. A child is not a commodity which can be disposed of to mitigate hardship to a parent (Cattanach at [35] per Gleeson CJ) but his Honour observed that the legal incidents of the parent-child relationship can be lawfully avoided by adoption.
172. Justice Hayne held the minority view that damages for wrongful birth were not recoverable. His Honour's comments at [220]-[222] on the choice to keep the child and the issues of abortion and adoption may reflect that opinion:
At various points in the debate about whether damages should be allowed for the cost of bringing up a child, reference is made to the parents having made a choice to keep the child rather than offer it for adoption, or to their having made a choice not to terminate the pregnancy by abortion. As mentioned earlier, this "choice" has been said to reveal that for the parent the benefits of having the child outweigh the burdens. Sometimes, it has been advanced (as it was in McFarlane v Tayside Health Board [1999] UKHL 50; [2000] 2 AC 59) as an argument about causation - the parents' choice is said to break the causal nexus between negligent conduct and expenditure on bringing up the child.
Inevitably, references to "choice" invite attention to the fact that for the individual the decision the parent makes, or refrains from making, is necessarily determined by the application of a combination of reason, emotion and beliefs that is unique to that individual. Whatever the decision, so long as the decision is to pursue a lawful course, it would be wrong for the law to characterise that course as unreasonable. To do so would deny the individual's autonomy to choose the lawful course of action which, to that individual, seems best.
That a parent has decided to keep the child (or did not decide not to continue with the pregnancy or to offer the child for adoption) is the premise for debate. To adopt and adapt what was said in one American case (in a dissenting opinion), "[a] person who has decided that the economic or other realities of life far outweigh the benefits of parenthood" is confronted by the result which, but for the want of care by the defendant, would have been avoided. To say that a child is born and not given for adoption as a result of the plaintiff's choice to keep the child tells only part of the story. Not only does it ignore the fact of the defendant's negligence, "choice" is an expression apt to mislead in this field. For some, confronted with an unplanned pregnancy, there is no choice which they would regard as open to them except to continue with the pregnancy and support the child that is born. For others there may be a choice to be made. But in no case is the "choice" one that can be assumed to be made on solely economic grounds. Human behaviour is more complex than a balance sheet of assets and liabilities. To invoke notions of "choice" as bespeaking economic decisions ignores that complexity.
[original emphasis, citations omitted]
173. In Harriton there was some consideration of the impact on causation of the intervening, subjective decision by the mother whether or not to terminate the pregnancy. Justice Hayne again observed, at [179], that how the mother would act in response to proper advice and information about termination would be a matter for her choice. If she chose not to terminate, Hayne J was of the view that the doctor's negligence could not be said to have caused the child, when born, any damage.
174. Justice Crennan, with whom Gleeson CJ and Gummow and Heydon JJ agreed, observed at [221] that it was only because the mother did not have an abortion and did not miscarry that the doctor could be liable for his failure to diagnose rubella and advise of its consequences. Justice Crennan said at [248] that a mother with an ethical, moral or religious objection to abortion is entitled to continue her pregnancy despite risks identified by her doctor or despite being advised of the effect of rubella. Her Honour adopted what was said by Hayne J in Cattanach at [220]-[222] that the decision of parents to have even a lawful abortion has been respected by the law. Her Honour also adopted at [248] the comment in Fleming (The Law of Torts, 9th ed, 1998) that it is not unreasonable for a woman to decline an abortion. Her Honour then stated `the damage will be contingent on the free will, free choice and autonomy of the mother'. However, Crennan J also noted at [250] that such conduct would then be the intervening immediate cause of the damage claimed.
Overseas authority
175. Overseas authority also provides guidance. I have not conducted an exhaustive analysis of overseas authority or canvassed all of the authorities in different jurisdictions. The following represents a summary of some judicial observations.
176. While courts in the United Kingdom have come to a different view to that of the High Court on the right to recover damages in failed sterilisation cases, they have considered questions of causation and mitigation. In Emeh v Kensington & Chelsea & Westminster Area Health Authority [1984] 3 All ER 1044 a refusal to have an abortion was held by the Court of Appeal not to be unreasonable. The Court held that the decision not to have an abortion was not a novus actus interveniens or a failure to mitigate damage. It said that it was the negligence of the defendant that resulted in the plaintiff being confronted by the very dilemma she had sought to avoid by undergoing sterilisation.
177. In McFarlane the House of Lords held that the upbringing costs for a healthy child are not recoverable. Regardless, the Lords made some comments of note in relation to adoption. Lord Slynne said (at 74) that, whether or not the parents could recover the costs of maintaining the child born as a result of a failed sterilisation procedure, he would reject that a failure to abort or to arrange adoption was a new act which broke the chain of causation or made the damage too remote. Lord Millett observed (at 113) that the parents had kept the child, they did not deliberately choose or decide to do so. His Lordship was of the view that it could never be unreasonable for parents or prospective parents to decline to terminate a pregnancy or to place the child for adoption and that the keeping of the child did not break the chain of causation. Lord Steyn stated (at 81):
I cannot conceive of any circumstances in which the autonomous decision of the parents not to resort to even a lawful abortion could be questioned. For similar reasons the parents' decision not to have the child adopted was plainly natural and commendable. It is difficult to envisage any circumstances in which it would be right to challenge such a decision of the parents. The starting point is the right of parents to make decisions on family planning and, if those plans fail, their right to care for an initially unwanted child. The law does and must respect these decisions of parents which are so closely tied to their basic freedoms and rights of personal autonomy.
178. Canadian authority is somewhat different and focuses on questions of unreasonableness and mitigation, rather than chains of causation. In Keats v Pearce 48 Nfld. & P.E.I.R 102 (1984 Newfoundland SCTD), Noel J accepted that abortion was not reasonable after a failed sterilisation. However, he said at [4]:
...if she truly did not want the child, with all the blessings and burdens entailed, she could have terminated her responsibility and relationship to the child by arranging for an adoption before or after she was delivered. That is the position at law, and her loss must be assessed on that basis.
179. In Kealey v Berezowski 30 O.R (3d) 37 (1996 Ontario Court, General Division), Lax J took a different approach. His Honour concluded that child rearing costs were not compensable (at [88]) but that neither abortion nor adoption `was an option' and accepted that this was a decision for the plaintiffs to make and a personal choice into which the court ought not ordinarily to inquire (at [89]). However, his Honour continued:
...when parents ask a court to be relieved of the consequences of those choices, I think it is appropriate for a court to ask whether it was reasonable in the circumstances to have made those choices. If the answer is only that notwithstanding these choices, they have suffered a foreseeable loss, it is my view that this is an insufficient reason to impose the responsibilities which are at issue here on the tortfeasor.
180. This was not the approach taken by Groberman J in Bevilacqua v Altenkirk 2004 BCSC 945 (British Columbia Supreme Court) who referred to Kealey but said at [199] that he thought it difficult to imagine a situation in which a decision to keep a child could ever properly be branded "unreasonable".
181. In the United States, in Chaffee v Seslar 751 N.E.2d 733 (Ind. App. 2001) the Indiana Court of Appeal considered whether a woman who had a child after a failed sterilisation procedure had not used reasonable diligence to mitigate the damages. Justice Robb (with whom the other Judges concurred) said at [28] that the Court believed that the requirement of considering an abortion or placing the child for adoption was unreasonable and that the choice to do so is a personal and private choice.
182. The same conclusions were reached in Emerson v Magendantz 689 A.2d 409 (R.I. 1997) by Boucier J, in dissent, and by Bablitch J in Marciniak v Lundborg 450 N.W.2d 243 (Wis. 1990). On the other hand, conflicting views were expressed in Emerson where Weisberger CJ (at 413) held that the public policy of Rhode Island precluded the granting of rearing costs for a healthy child `whose parents have decided to forego the option of adoption and have decided to retain the child as their own with all the joys and benefits that are derived from parenthood. Their decision to forego the option of releasing the child for adoption constitutes most persuasive evidence that the parents consider the benefit of retaining the child to outweigh the economic costs of child rearing'.
Do the plaintiffs' decisions constitute a failure to mitigate?
183. While Ms G had not sought to avoid pregnancy, it was the transfer of two embryos rather than one embryo that resulted in her being confronted by the dilemma of abortion and adoption.
The decision not to undergo a reduction of the number of embryos
184. Dr Armellin does not submit that it was unreasonable for Ms G not to have an abortion.
185. Ms G consulted with another obstetrician and gynaecologist and discussed the possibility of selective termination, the removal of one of the foetuses. That doctor, Dr Sneddon, advised her that no one would carry out such a procedure with twins, only with higher multiples. She told Ms G that it could not be done in Canberra. Dr Sneddon said that it was an ethical consideration because it posed a significant risk to the other foetus, by way of spontaneous abortion, which would have resulted in the loss of both embryos. Ms G accepted that advice. She did not know that other obstetricians/gynaecologists might have had different practices. She understood that an embryo reduction was not `on the table'. She and Ms M canvassed the possibility of aborting both twins and dismissed it.
186. Ms G's decision not to undertake embryo reduction was not unreasonable. She was not cross-examined to suggest that it was. Her failure to do so does not constitute a failure to mitigate her damages.
The decision not to adopt out a child
187. The question of adoption was raised by a counsellor with whom Ms G and Ms M consulted, at about 36 weeks into the pregnancy. Ms G submits that her failure to have one of the twins adopted was reasonable. In evidence, Ms G spoke of the dilemma posed by such a choice in circumstances where she would keep one twin and give the other for adoption. She said that she felt that it was shifting the burden of the problem to both children. She spoke of the difficulty of deciding which one to have adopted and which one to keep, as well as her concern about the consequences of adoption of one twin on both of them. She said that, for her, it was not an option.
188. Ms G's decision not to adopt out one of her children was not unreasonable. Her failure to do so does not constitute a failure to mitigate her damages.
Do the two decisions constitute a break in the chain of causation?
189. Dr Armellin submits that each of the decisions severs the causal connection between any negligent act on his part and the damages that are said to flow from it.
190. If this were so with respect to the decision not to abort or reduce the number of embryos, the damages would cease from the date of such a procedure, presumably in the first trimester. With respect to the decision not to adopt, on this basis Ms G would be entitled to damages up to and including the birth but not for the cost of raising the second child.
The decision not to undergo a reduction of the number of embryos
191. The uncontested evidence given by Ms G was that she was told that she could not undergo an embryo reduction in Canberra. The failure to do so was not an independent act or choice on Ms G's part but an inevitable consequence resulting from the damage. Her failure to undergo such a reduction was, therefore, reasonable and could not be said to constitute a failure to act that breaks the chain of causation.
The decision not to adopt out a child
192. In a failed sterilisation case, where the parents did not want a child at all, I see some force in the argument that a failure to adopt constitutes a novus actus interveniens, a break in the chain of causation (CES Superclinics at [84] per Priestley JA; Harriton at [250] per Crennan J). A failure to adopt is not, in my view, a failure to interrupt the chain of causation that otherwise exists (cf Holmes J in Melchior v Cattanach (2001) Aust Tort Reports 81-597 at [57]). The parents make a decision. That decision is to keep the child and shoulder the financial and moral obligations of doing so. The alternative decision is to avoid those obligations and adopt the child out. It follows from the reasoning of the majority in Cattanach that emotional considerations and the formation of a parent-child relationship have no part to play in the liability for wrongful birth. It follows that they play no part in considerations of causation and mitigation.
193. However, this case is different. Questions of causation and whether the requisite causal connection exists or has been broken by an intervening act or decision can be assessed as a matter of commonsense and experience (Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 6 per Deane, Dawson, Toohey and Gaudron JJ, at 21 per McHugh J). It cannot be said that the plaintiffs acted unreasonably in choosing not to adopt out one of the twins. Their decision was not based on the decision to keep or adopt out an unwanted child; it was based on the fact that such a decision would affect both of the twins, the one kept and the one given away. The choice of which to adopt out was, to the plaintiffs who understood that it was deleterious for twins to be separated, `absurd'. Ms M put it well when she said that, when the option of adoption was raised by the counsellor towards the end of the pregnancy, she did not know how to make the choice.
194. As a matter of common sense, the choice of which twin to keep and which to adopt out was almost impossible. It was certainly not unreasonable. It was a decision faced by the plaintiffs because two embryos were transferred. While they may have had twins with a single embryo, I am satisfied that they would have accommodated that circumstance better. It was the fact that they had not wanted two embryos transferred that caused the added factors that led to the initial rejection of and unhappiness with the twin birth. It was foreseeable that such a decision would have to be faced if more embryos were transferred than requested, resulting in an unwanted multiple birth. It was foreseeable that the plaintiffs would choose to keep both children with the consequential harm of the attended legal and moral responsibilities.
195. The decision by the plaintiffs to keep both twins and not to adopt one out did not break the chain of causation.
DAMAGES
196. The object of an award of damages is to restore the plaintiffs, as nearly as can be done by an award of financial compensation, to the position in which they would have been but for the wrongdoing (Cattanach at [36] per Gleeson CJ). This was found by the majority in Cattanach to include the cost of rearing the additional child. The plaintiffs were entitled to financial compensation for the damage that they would suffer as a result of their legal responsibility to raise a child. The majority rejected the notion that damages for wrongful birth were incalculable. Justice Kirby concluded at [179] that ordinary principles of tort liability would entitle recovery for all aspects of harm that were reasonably foreseeable and not too remote, including costs of child-rearing. Justice Callinan was of the view, at [297], that the assessment of damages was relatively straightforward and that emotional factors were not relevant to the claim for financial consequences. His Honour concluded that the parents were entitled to be compensated for the costs that they were likely to incur in rearing the child until 18 years of age, which is what was claimed. Justice Kirby said (at [179]) that the most appropriate formula under which to award damages was for the cost of rearing the child, subject to the ordinary limitations of foreseeability and remoteness, with no discounts for joys, benefits and support.
197. The damages claimed in this case are of the same class as those allowed in Cattanach, are readily identifiable and follow from the straightforward application of general principle. Although Hayne J in Cattanach concluded that damages should not include the costs of maintaining the child (at [183]), his Honour accepted that each class of loss claimed by Mrs Melchior including the cost of raising the child, was a reasonably foreseeable consequence of the negligence of the doctor (at [192]). The costs claimed here were a foreseeable consequence of a multiple pregnancy and multiple birth, following the transfer of two embryos.
198. The heads of damages claimed are:
* general damages;
* the cost of rearing the additional child;
* economic loss; and
* out-of-pocket expenses.
199. The parties have agreed on the quantum of economic loss and out-of-pocket expenses.
200. Dr Armellin submits that the entitlement to damages should be rejected because the procedure was IVF rather than sterilisation. Undergoing either IVF or sterilisation are available options in a person's control of her reproductive life. Insofar as Dr Armellin relies on a distinction between a procedure to prevent the birth of a child and a procedure to enable the birth of a child in a philosophical sense, there is no difference for the purpose of entitlement to damages. They each represent the parents' choice.
General Damages
201. Dr Armellin submits that the damages are limited by the physical injury that represented the damage suffered: the pregnancy itself. He then draws a distinction between the carrying of the extra foetus and the effects of the carrying of the extra foetus: the exacerbation of the symptoms of pregnancy. I do not accept the submission that the injury is limited to the mere presence of the extra foetus. The foreseeable consequences of the transfer of two embryos included a multiple pregnancy, the carrying of the extra foetus and the exacerbation of the symptoms of pregnancy.
202. The plaintiffs gave evidence of their reaction to the news of the implantation of two embryos, the symptoms suffered by Ms G and the effect on their relationship. They said that, overriding the symptoms and effect on their relationship, was the knowledge that they had not wanted a multiple pregnancy or multiple birth and that these had occurred, not through the chance occurrence with a single embryo but because, by mistake, two had been transferred. Ms G was angry and disappointed at the transfer of two embryos and angry and disappointed that she was carrying twins. While the plaintiffs clearly felt strongly about the way in which they found themselves with a multiple pregnancy and birth, they generally gave evidence in a straightforward manner, without unnecessary embellishments. They did not, in my view, exaggerate the matters of which they spoke. They readily accepted that many of the effects and reactions would, to an extent, have been present with a single pregnancy and one child.
203. Ms G says that she felt "sick" and "anxious" and "distressed" and "devastated" during the pregnancy. She felt "violated". She was "terrified" as to how she would handle twins. The news that two foetuses had taken had a deleterious effect on the plaintiffs' relationship, which worsened through the pregnancy, to the extent that Ms G thought the relationship would end and that she would be left alone with the twins. The emotional distress became more severe in the third trimester and continued, despite professional help, until some time after the birth.
204. Ms G says that her depression substantially resolved after the birth of the twins. However, Ms M says that Ms G lost her confidence and did not have as much love to give. Ms G also describes what she termed her "grief" for the loss of a life with Ms M and one child. She spoke of the fatigue and the emotional and financial burden of a life that she had not intended. On the other hand, she loves the children very much.
205. Apart from the emotional response, Ms G experienced physical symptoms. They included nausea and vomiting which, according to the medical evidence, are often more severe with a twin pregnancy. The same applies to pelvic instability and the need for medical intervention in the delivery of the babies. The pelvic instability caused pain in Ms G's hips which she describes as excruciating and also resulted in pain in her legs. By the third trimester, she had difficulty walking. She also experienced pubic symphysitis, being the separation and swelling of the joints at the front of her pubic bone, and carpal tunnel syndrome. She had severe heartburn.
206. Ms G experienced a difficult delivery and had a primary post-partem haemorrhage, the risk of which is increased after a twin delivery. She required blood transfusions. Lactation and breastfeeding were also difficult. Ms G had difficulty feeding one of the twins. She suffered post-natal depression, also more common after a multiple birth.
207. Dr Armellin places in the category of symptoms that are exacerbated by a twin pregnancy Ms G's complaints of emotional distress, nausea and vomiting during the first trimester, decreased mobility, ante-natal depression, pubic symphysitis, heartburn and headache. Dr Armellin submits that disabilities not shown to be causally related to the carrying of twins, but to the pregnancy with one child, are not allowable. Examples given are carpal tunnel syndrome, bilateral tendonitis and bilateral arm pain with the inability to turn on taps.
208. The plaintiffs say that some of the symptoms Ms G experienced may have been caused solely by the fact that she was carrying twins but they have not provided evidence to support that submission. The evidence is to the contrary. It supports Dr Armellin's contention that there are no symptoms that would be experienced with a twin pregnancy that would not be experienced during a singleton pregnancy.
209. There was a significant strain on the relationship between the plaintiffs. They say that they have had to abandon plans to travel overseas, which they had planned to do with one child but say is not feasible with two. The plaintiffs claim that all of the difficulties in their relationship post-birth are attributable to the fact of the second child. They do not say that it exacerbated the impact on their relationship. However, few parents predict the impact of having a child in a relationship. Many partners feel unloved and that they lack attention after the birth of a child. I accept that the impact of twins may be greater but I do not accept that the totality of the effect on the relationship or the effect on their travel plans was due to the additional child.
210. Dr Armellin concedes that, if the damage was the birth of twins and actionable, damages for pain and suffering during the ante-natal and post-natal period are an incident of such harm and that, accordingly, it is appropriate to make an award of damages for general damages.
211. I have taken into consideration the submissions of the parties on an appropriate award for general damages. I also take into account the fact that many of the symptoms described by Ms G would have been experienced in a singleton pregnancy. On the other hand, many of the symptoms were exacerbated and thereby caused pain and severe discomfort. The delivery itself was difficult and painful, as a consequence of the twin birth. The extra emotional distress was reasonable in the circumstances. I would award Ms G $55,000 for general damages.
Interest on general damages
212. The plaintiffs submit that interest should be allowed for the general damages from November 2003 to the present. They say that two thirds of the amount for general damages should reflect the past. They submit that the appropriate interest rate is 4% but agree that 2% would be appropriate over the entire period to take into account the fact that not all of the symptoms continued to manifest themselves throughout the entirety of the period.
213. I agree that interest on the amount of general damages should be included at the rate of 2% for two thirds of the amount I have determined, $55,000, calculated since November 2003 (a period of four years and eight months). Accordingly the plaintiffs would be entitled to interest on this component of $3,422.20.
Economic loss and out-of-pocket expenses
214. Dr Armellin accepts that the loss of earnings incurred by Ms G is incidental to the ante-natal and post-natal pregnancy disabilities and is accordingly recoverable. The parties agree on the sum of $15,893.23 for economic loss sustained by Ms G. The parties also agree on the amount of out-of-pocket expenses; $1,335.00.
215. The plaintiffs claim interest on these amounts. They submit that it is appropriate to allow interest at the Supreme Court rate of 9% over the four year and eight month period since November 2003. I agree that interest should be included and accordingly the plaintiffs would be entitled to interest on the amount of past economic loss of $6,675.16 and on the out-of-pocket expenses of $560.70.
Cost of raising the additional child
216. Dr Armellin submits that the costs of raising a child are not recoverable and not assessable. He relies on the reasoning of the minority in Cattanach; specifically that the child is not a commodity and that a proper consideration should take account of the benefits of having the child and the relationship between the child and the family. That argument was rejected by the majority in Cattanach.
217. Cattanach dealt with the arguments concerning the extent of the damages that may be sought for wrongful birth and whether there should be a set-off for the benefits that a child may bring or for the fact that children are not, as pointed out by Gleeson CJ at [34], unmitigated financial burdens. In Cattanach, as here, no attempt was made to confine the claim to bare legal obligations or to pursue to a logical conclusion the full extent of the claim which might be made. The claim in Cattanach was for recovery of pure economic loss arising out of a relationship. There is no set-off against financial loss consequent on the damage for non-analogous benefit (Cattanach at [36]-[37] per Gleeson CJ, at [90] per McHugh and Gummow JJ).
218. Justices McHugh and Gummow observed at [91] that, as a matter of logic, if the immeasurability of the benefits of the child denies damages for the cost of maintaining the child, other costs such as attendant pain and suffering associated with the birth should also be denied. In Cattanach the award of such damages was not challenged. Justices McHugh and Gummow saw no reason why `the law should shield or immunise the appellants from what otherwise is a head of damages recoverable in negligence under general and unchallenged principles in respect of the breach of duty' (at [57]).
219. There is little evidence as to the costs of raising a child. The assessment will be made on the basis of the evidence presented.
220. The plaintiffs rely on a report from Dr Henman, an expert in the costs of children and of raising children in Australia. In that report, Dr Henman set out the basis of his preferred method of calculation of the costs of raising an additional child and the reasons why he adopted that method over others that are available. The defendant did not present any evidence on the cost of raising an additional child but cross-examined Dr Henman, mainly on his methodology.
221. Dr Henman has provided the basis on which he has calculated the reasonable cost of raising a second child. He employed a budget standards approach. An alternative is to take the average percentage of average household income that is spent on children. While there may be other methods of such calculation, there is no evidence as to why they should be preferred and Dr Henman says that there is no consensus. Dr Henman concedes that there are alternative methodologies but gives reasons why he prefers the one he adopted. I accept Dr Henman's methodology.
222. In his report, Dr Henman stated the assumptions that he made. The assumptions included Ms G working part-time for the first five years and full-time thereafter and the children living with both mothers in Melbourne, where they presently reside. The estimates are based on a "modest but adequate" living standard, what the general population would consider appropriate. Allowance was made for housing, additional energy costs, clothing, household goods and services and childcare. Also allowed for were health care costs, transport, leisure and personal care. For each factor, Dr Henman explained the matters that he included and, where appropriate, the level of expenditure allowed for. For example, clothing was costed from `the budget store Target'. On the other hand, private school fees were allowed. Childcare costs were also significant. Dr Henman did not include the lost opportunity cost of having a child or the time costs of care except for the inclusion of the purchase of child care to enable employment. Government benefits were not allowed for, although doctor's bills were assumed to be subsidised by Medicare. There was no specific adjustment for twins, as no relevant data were available for Australia.
223. Dr Henman's approach incorporated some of the costs considered allowable in Cattanach at [307] by Heydon J if the damage were actionable. That included private education and provision for holidays. His Honour noted at [308] that the countervailing view was that a recoverable amount should be set at a reasonable and not an extravagant one. Dr Henman's analysis included reasonable and not extravagant costs, save for private education and a relatively small and reasonable amount for annual holidays.
224. Dr Armellin bases his assessment of the costs of raising a child to age 18, deleting the costs of a separate bedroom and private education as sought by the plaintiffs, on the basis that there was no evidence to demonstrate that they were reasonable costs. Dr Armellin does not submit that private education, as a choice for the parents, was not foreseeable. Dr Armellin does not submit that, apart from the base methodology utilised and the provision for private school fees and support after the age of 18, any individual amounts were otherwise unreasonable. In the assessment of reasonable costs, Dr Armellin asks whether the unidentified child requires or needs private schooling, as claimed by the plaintiffs. In the absence of such a need, he asks why public schooling is reasonable. He also draws attention to the claim for the costs of a separate bedroom after the age of 12 years. He submits that the Court cannot know sufficient to determine the quantum of damages necessary to put the parents in the position they would have been in but for the negligence. Both parents were privately educated and already provide private education for the girls, apparently irrespective of this litigation. It is apparent that, for these parents, private schooling is reasonable and a necessity. As was pointed out by Gleeson CJ in Cattanach at [7], a tortfeasor takes the victim as he or she is found. A separate room for teenage girls engaged in high school study is not unreasonable and may be considered a necessity by some. A separate room for each of two children is not suggested to depart from the average.
225. The plaintiffs claim that they will continue to support each of their children through three years of tertiary education. Dr Henman has calculated this at $62,000. I do not propose to include a sum for this purpose. Whether the plaintiffs have undertaken tertiary education and believe in tertiary education or not, it is not known if the child will want to undertake it. Unlike secondary schooling it is not part of the legal responsibility of a parent to support a child through university and many parents do not do so. Many students support themselves in whole or in part. It is to be applauded that the plaintiffs intend to support their children at that stage of their lives but it is not reasonable to ask Dr Armellin to pay for this additional support. Chief Justice Gleeson and Heydon J in Cattanach both discussed the reasons why claims should not be limited to the first 18 years of life, but that was in the context that they concluded, in part for that reason, that damages were not assessable. The Judges referred to damages in the context of the legal responsibility for the child (at [68] per McHugh and Gummow JJ, at [244] per Hayne J). The fact that individual parents may wish to provide more than what is considered reasonable should not be visited on Dr Armellin.
226. Dr Armellin says that, if the majority of Cattanach is followed, it is still necessary to determine the claims in accordance with the principles of pure economic loss. Dr Armellin's submissions point out that it is not possible to ascertain which twin Ms G considers the wanted one and which is the one for which Dr Armellin is said to be liable. Some children cost more than others and the plaintiffs are, Dr Armellin says, only responsible for reasonable costs.
227. Dr Armellin says that the economic loss is, for these reasons as well as those expounded by Gleeson CJ in Cattanach, indeterminate. In the alternative, he submits that the majority in Cattanach was wrong in principle. Further, he says that the majority erroneously treated a child as a commodity. Again, I shall treat that as a formal submission because the majority decision is binding. I am not free to apply my own views which, in this regard, correspond more closely with the reasoning of the minority on the way in which a child in a family should be understood for the purposes of the assessment of damages.
228. The difference between the average costs of raising a child, necessary costs and reasonable costs within the particular family has been discussed in the authorities. The difficulty of formulating the limits and assessing damages that can be claimed on the costs of raising a child formed a basis for the decisions of Gleeson CJ and Heydon J to reject the claim for wrongful birth in Cattanach. Different views have been expressed in Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002 at 11.8.6), favouring a conventional sum based on the average costs of raising a child and Brooke J in Allen v Bloomsbury Health Authority [1993] 1 All ER 651 at 658 (cited by Kirby ACJ in CES Superclinics), favouring reasonable rather than necessary costs.
229. In this case, I have only been presented with the evidence of Dr Henman. That was challenged only in part but no countervailing evidence was adduced. With the exception of the allowance for private education, support for tertiary education and, possibly, a requirement for a separate room after the age of 12, I do not see that the provision for the additional child rises much above necessity or average. It is not suggested that they do.
230. Dr Henman has estimated the cost, as at January 2006, of raising an additional child to age 18 at $334,000 which, after being discounted at 3% amounts to $276,000. The plaintiffs note that these damages should also be discounted by 15% to take into account vicissitudes (eg early death). Accordingly, the cost of raising the additional child should be calculated at $234,600.
Conclusion on damages
231. As discussed above, the damages found to be due should be reduced by 35% for contributory negligence. Accordingly, the appropriate damages which would be awarded are:
General damages |
$55,000 |
Interest on general damages |
$3,422.20 |
Economic loss |
$15,893.23 |
Interest on economic loss |
$6,675.16 |
Out-of-pocket expenses |
$1,335.00 |
Interest on out-of-pocket expenses |
$560.70 |
Costs of raising child (discounted for vicissitudes) |
$234,600.00 |
Sub-total |
$317,486.29 |
Discount of 35% for contributory negligence |
$111,120.20 |
TOTAL |
$206,366.09 |
THE SUPPRESSION ORDER
Request to suppress the plaintiffs' names
232. On the first day of hearing, counsel for the plaintiffs applied for an order to suppress `the names of the plaintiffs and of any witnesses in the case, such as would prevent the children discovering that this case has been brought'. It was submitted that the making of such an order was a matter entirely for the exercise of the Court's discretion. Counsel for the defendant did not oppose the making of the order but noted that in other cases decided along similar lines (such as Cattanach and Harriton) there was no such application.
233. No evidence was proffered at that stage of the proceedings. No submissions were made as to the relevance of suppressing the names of witnesses other than the plaintiffs and no further reference was made to that aspect of the request throughout the course of the hearing.
234. Mr Marshall accepted that the criteria upon which I should exercise my discretion involved a balancing exercise between the interests of open justice and any potential harm to the children from the identification of the plaintiffs. Mr Marshall agreed that the interests of the parents themselves were not relevant; rather, he said, it was the potential psychological harm to the children that could occur as a result of discovering that their parents had only wanted one child.
235. I asked counsel to consider whether there were separate bases for suppressing the names of the parents and those of the children. Given the present young age of the children, I noted that there would be time for the parents to deal with any effect of the parents' names being published by, for example, explaining to the children any of the factual matters arising in the proceedings.
236. To give Mr Marshall time to consider these issues I made an order to suppress the names of the plaintiffs and the children until the luncheon adjournment, in order to preserve the status quo because, once the names were made public, it could not be reversed.
237. After the luncheon adjournment, Mr Marshall requested a further continuation of the suppression order but said that he could see no legal reason for the suppression of the parents' names. The main focus of his submissions was the potential for the children to suffer psychological hurt in the future. He accepted that, at this stage, any such harm was just a theoretical possibility. He said that the plaintiffs were concerned that, with the identification of their names, their friends and family who did not know of the case or the details of the evidence would become aware of the situation and that those friends or family could inadvertently refer to the case in front of the children.
238. Counsel submitted that unlike other cases where children found out later in life that pregnancy may not have been intended, the plaintiffs were going to give specific evidence of the fact that they did not want to have two children.
239. To give counsel further time to provide evidence and submissions, I extended the order to the following day.
240. The next day Mr Marshall read an affidavit of Ms G.
241. In that affidavit Ms G sought a suppression order relating to the publication of material which may disclose the identity of her twin daughters. That material was limited to their names and those of herself and Ms M. The basis of her concern was that the children would become aware of the details surrounding their birth, including her feelings of ambivalence towards them before and after their birth and the fact that one of them was unwanted. Ms G and Ms M plan to tell the children about their conception and birth, that the discovery of having twins was confronting for them, in that they were taken by surprise, and that the twins were both wanted and loved. They do not wish to tell them about the grief and hurt that the knowledge of their existence caused. Ms G says that she does not want them to know of the prospect that one of them might have been terminated or adopted out. She is of the view that the information may be hurtful or cause psychological damage. Ms G stated her concern that family members or friends who find out about the case through the press may tell the children material that differs from the information that she plans to tell the children, or that the children may, in years to come, find information about the case on the Internet.
242. Mr Marshall relied on several cases where suppression orders have been made. In DJ v RHS [2004] ACTSC 12; (2004) 182 FLR 76 a suppression order was made in relation to the names of the parties in a personal injury claim following a termination of a pregnancy. Justice Connolly made the order, but there is no discussion as to why the order was made. The only discussion occurred at [1] where his Honour stated that `due to the nature of the claim an order was made...to prohibit publication of the names of the parties to this action'. The order appears to have been made by consent.
243. In X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630, the primary judge had made an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) (`the Federal Court Act'), suppressing the identity of the relevant parties and, by consent, the order had continued thereafter. The grounds for a suppression order under s 50 of the Federal Court Act are limited to circumstances where such an order is necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. The majority did not address this issue but Kirby J did so at [85]-[92]. At [86] his Honour stated:
The suppression of names ought to be confined to cases in which disclosure "would prejudice the court's proper exercise of the function it was appointed to discharge, to do justice between the parties", or where disclosure "would destroy the subject-matter of the proceedings and render them nugatory" [citing Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228 at 233]. A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula.
Counsel relies on the second limb of that sentence, namely where the use of the names would impede or discourage access to the courts.
244. Justice Kirby also noted at [87] that the identification of the parties' names might be embarrassing to them and, with the ready availability of the Internet, the disclosure of their identities might do some harm to individual and corporate reputations. His Honour observed that Australian courts sometimes anonymise proceedings to protect from needless harm the identity of persons who become involved in court process (at [88]). However, his Honour went on to qualify that (at [89]) and said that, every day in the courts, parties and witnesses must disclose their names and identities, although often this is `uncongenial and even damaging. It is part of the strong tradition of open justice that characterises the courts of this country'. His Honour noted at [90] that `the proliferation of instances where courts suppress the identity of parties and witnesses (without specific legislative warrant) is undesirable...[the naming] may cause some prejudice to the parties, perhaps, but ordinarily the administration of justice is strengthened by openness and full disclosure'.
245. In my view, this does not assist the plaintiffs in their application.
246. In John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 the Court of Appeal discussed non-publication orders at [38]-[49]. The issue involved a defendant in a criminal trial and the Court of Appeal found that the party's name had been suppressed by the trial judge inappropriately. At [40] the Court cited with approval McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 where his Honour said:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it...The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is `necessary to enable it to act effectively within' its jurisdiction.
[emphasis as added by the Court of Appeal]
247. The Court commented at [43] that John Fairfax (1986) is authority for the existence of a narrow jurisdiction empowering a statutory court to make non-publication orders. At [45] the Court noted that there were some "well established" categories where a non-publication order will be made, including one preventing the publication of the identity of an informer, an application of a test of necessity for the administration of justice (at [48]).
248. As was observed by the President and Lee J of the Queensland Court of Appeal in J v L & A Services Pty Ltd [1993] QCA 012 at 33, the permitted exceptions for the requirement of open justice are not based on the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility but upon the actual loss of utility which would occur.
249. It has not been shown in this case that the utility of the proceedings would be affected. This case falls within a category considered inappropriate for suppressing by the President and Lee J at 35: concern for the social disadvantages that might flow to the plaintiffs and their family.
250. There may be statutory authority to derogate from the openness principle.
Statute
251. Counsel for the plaintiffs directed me to s 91(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (`the Evidence Act') which relevantly provides that the Court may make an order forbidding the publication of the name of a party or witness or of evidence if publication is likely to prejudice the administration of justice or it is in the administration of justice that the name of a party not be published. Section 91 allows for a general or conditional suppression order, the latter permitting an alphabetic pseudonym to be used.
252. No reason was advanced why the failure to suppress the names would be contrary to the interests of the administration of justice.
253. Counsel also referred to the Human Rights Act 2004 (ACT) (`the Human Rights Act') which provides in s 11(2) that `every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind'. However, the protection sought here is not being sought because the child is a child, although I accept that when children are involved in litigation there may need to be extra consideration given to issues such as publication. The protection sought by the suppression of the names of the children and their parents is because of the circumstances of their conception. The plaintiffs do not wish the children to learn of those circumstances and this litigation at all, whether as children or not, other than from them.
254. Counsel also referred to s 21(2)(b) of the Human Rights Act which provides that:
(2) ...the press and public may be excluded from all or part of a trial -
...
(b) if the interest of the private lives of the parties require the exclusion;
255. In relation to that section, counsel did not request that the press be excluded from the court but rather that the entitlement of the press to publish certain information, the names of the parents, be excluded. No other statutory basis for the suppression order was suggested.
Further submissions
256. Without time to consider the authorities fully during the hearing, I continued the suppression order until further order.
257. I gave the parties the opportunity to provide further written submissions on this issue. The plaintiffs rely on ABC v D1 [2007] VSC 480, a decision under the Supreme Court Act 1986 (VIC) which provides in ss 18-19, inter alia, for an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding if, in the Court's opinion, it is necessary to do so in order not to prejudice the administration of justice. In ABC, Forrest J considered the damage which may be suffered by individuals and the pain and loss of those touched by what is done in the courts and publicised (at [54] citing John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 163-164 per Mahoney JA). His Honour recognised the competing public interests (at [55]). He also noted the necessity for evidence of a cogent nature that must establish more than a remote possibility and establish a real risk, but allowed for the courts not to receive evidence of matters in respect of which they are thoroughly familiar (at [62]).
258. Justice Forrest, at [68], considered that, in determining whether to make a pseudonym order, the Court is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principle of open justice and whether the administration of justice warrants the making of the order. His Honour identified two examples: a real risk of psychological harm as a result of publication and a real risk of a party not proceeding with an action if he or she or another person is identified. His Honour also considered the fact that there was reporting of the case to be relevant.
Consideration
259. I have now had the opportunity to consider the matter further. I have decided that notwithstanding the sympathy that I feel for the plaintiffs and the children, especially in the context of the public interest in the case, there is no sufficient reason to suppress the plaintiffs' names.
260. Although s 91(1) of the Evidence Act allows me to make an order forbidding the publication of the plaintiffs' names, the section requires that the order be made if it is in the interests of the administration of justice. As discussed by Kirby J in X v Australian Prudential Regulation Authority, while the disclosure of the plaintiffs' names may be uncongenial, the administration of justice does not require suppression of those names. The utility of the proceedings will not be affected. Rather it is concern for the social disadvantage that may flow to the plaintiffs or their family that is in issue.
261. In relation to any social disadvantages to the children, I have considered the comments made by the various courts in Cattanach.
262. In Melchior v Cattanach, there is no indication in the reasons of Holmes J, the primary judge, that the issue of suppression of names was raised. Clearly, no suppression order was made of the parents' names. However, his Honour did address, at [53], as part of the reasoning in relation to damages, the issue of a child finding out about the parents claim:
Nor do I find sufficient the argument that a child should not be exposed to the knowledge that its parents have made a claim for damages arising out of its existence. My inclination is, as was that of Kirby...in CES v Superclinics...to regard it as likely that a child whose parents' financial burden was ameliorated by an award would be in a considerably happier position than one whose parents were precluded by public policy from any relief. To suppose that parents, because they cannot recover damages, will never mention to their child the misfortune which brought about his or her conception is unrealistic...
These observations apply whether or not the parents were successful in the litigation.
263. On appeal to the Queensland Court of Appeal (Melchior v Cattanach (2001) 217 ALR 640), McMurdo P considered the public policy against awarding damages where children could be put at risk of finding out they were unwanted. Her Honour noted (at [59]):
First, an unwanted or unplanned pregnancy does not mean that the child when born is not cherished by the family. Such births are a common enough occurrence, although most are not caused by established medical negligence. It is only the financial and social burden arising from the negligence that was unwanted, not the child that is consequently born...
264. The evidence is that Ms G and Ms M overcame their initial reaction against a twin birth and want, love and cherish their children.
265. Justice Davies also considered this issue at [97] and found that the claim would not have any effect on the psychological well-being of the child, as the claim did not involve any assessment of the non-financial benefits and burdens of the child. His Honour also pointed to the fact that unwanted conception was not uncommon and said `I think it unlikely that the disclosure of that fact would be likely to harm the relationship or the well-being of the child. Moreover the addition of a financial claim for the support of the child...if successful, [is] more likely to be something for which the child will be grateful than a matter which he or she will regret'.
266. Importantly, in the High Court, McHugh and Gummow JJ (at [79]) rejected as speculative any perceived disruption to familial relationships if the child in question became aware of the litigation and said that the common law should not justify preclusion of recovery on speculation as to possible psychological harm to children. Justice Kirby at [145] described as "unconvincing" the notion that a child might be hurt emotionally if he or she learned of the litigation. Justice Hayne also considered that it was not self-evident that any damage would follow from such discovery (at [202]-[203]). Justice Callinan pointed out at [301] that there are many harsher truths which children have to confront in growing up than the knowledge that they were not, at the moment of their conception, wanted. Justice Heydon cited the judgments of the Judges of the Queensland Court of Appeal which discussed the fact that an unwanted conception does not necessarily have a detrimental effect on the child born under such circumstances (at [385]-[386]) and considered the potential damage to the child to be a factor against permitting recovery of damages.
267. While the discussion of the effect on the child was not in the context of an application for a suppression of identity, their Honours rejected an automatic acceptance of such potential harm. It is apparent that the majority rejected the potential harm to a child on learning of wrongful birth litigation and the facts alleged as part of it.
268. If there is no such harm or potential harm to the children there is no need to protect them from that harm under the common law or the Human Rights Act by suppressing the names of the plaintiffs, their parents.
269. The plaintiffs only sought a suppression order at the commencement of the proceedings. The potential for publication did not deter them from commencing and proceeding with the action. The children are presently four years old. It is unlikely that they will read or, indeed, understand the import of any publications of the proceedings. By the time they are able fully to comprehend the evidence and the judgment, their parents will have had the opportunity to explain to them in their own way the circumstances of their birth and these proceedings. They intend to do so.
270. Justice Forrest in ABC said at [71] that the judge is able to act on his or her own experience and draw appropriate inferences. However, that was balanced by the observation that, usually, the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. The evidence before me is of mere belief. I accept that publication of their names will cause the plaintiffs personal difficulties but my experience does not extend to an understanding of whether or not there will be harm to the children, at this age, if their parents' names are published and their own names are suppressed. Further, one of the plaintiffs is in the process of changing her name and the children bear, as part of their name, the proposed name.
271. The plaintiffs submit that other plaintiffs will be discouraged from availing themselves of the justice provided by the court system if these names are published. I am not satisfied that that is the case. The names were not suppressed in Cattanach or Harriton and there is no evidence that this discouraged others from commencing proceedings. It did not discourage the plaintiffs.
272. The plaintiffs, understandably, are concerned at the nature of the reporting of the case. In particular, they point out that the reporting refers to their sexual preference and family history and is emotive and negative. Inappropriate and insensitive reporting in any case has the likely consequence of causing hurt and harm. That is unfortunate for any party affected by it. I can only urge the media to recognise that there are children involved. The media urges an open system of justice and an absence of suppression orders. If it abuses the system, the courts may become more ready to make such orders to protect parties and witnesses from that abuse. I urge the media to adopt a reasonable, non-sensational reporting of this case. The open administration of justice should be mirrored by ethical reporting of proceedings.
273. Once the suppression order is lifted, the names of the plaintiffs can be published. That cannot be reversed. Accordingly, I will stay the order lifting the suppression order for 28 days, being the time for any appeal to be filed. Whether there is an appeal from the whole of the judgment or not, it will enable the plaintiffs to consider an appeal as to the suppression of their names.
274. Regardless, I will suppress the names of the plaintiffs' children. Although I have not referred to them in my reasons, the children are identified by name in papers on the Court file. The children do not, for the reasons advanced in Cattanach need protection because they are children from the fact of or facts in this litigation. However, it is not the children who have brought this proceeding. There is no benefit to be gained from the publication of their names and an order that they be not published will not affect the principle of open justice. The plaintiffs have said that they intend to tell the children of the circumstances of their birth. Such an order will reduce the effect of any Internet search by the children in the future.
CONCLUSION
275. Although I have proceeded to consider the remaining matters to be proved in a negligence claim, as outlined above I have determined that Dr Armellin was not negligent by reason of the specific circumstances surrounding the transfer procedure including the operation of the system at the Fertility Centre. Accordingly, the application must be dismissed. The plaintiffs should pay the defendant's costs of the proceeding.
ORDERS
276. The appropriate orders to make in this matter are:
1. That the application be dismissed.
2. That the plaintiffs pay the defendant's costs of the proceedings.
3. That the order made on 17 September 2007 suppressing from publication the names of the plaintiffs be vacated.
4. That the names of the plaintiffs' children be suppressed from publication indefinitely.
5. Order 3, vacating the suppression order in relation to the plaintiffs' names, is stayed for 28 days.
I certify that the preceding two hundred and seventy-six (276) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Bennett.
Associate:
Date: 24 July 2008
Counsel for the plaintiffs: H Marshall SC
Solicitor for the plaintiffs: Pamela Coward & Associates
Counsel for the defendant: K E Burke
Solicitor for the defendant: Ken Cush & Associates
Date of hearing: 17, 18, 19 and 20 September 2007
Date of judgment: 24 July 2008
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