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Wrongful birth damages – Two more difficult questions

Wrongful birth damages – Two more difficult questions

Published on March 27, 2018 by Bill Madden

As first published in the Australian Health Law Bulletin, February 2018, Volume 26.1.

Abstract

This short article notes a recent first instance English decision of Meadows v Khan, where a trial judge was required to grapple with the challenge of determining damages in a loss of opportunity to terminate a pregnancy case, where the child was born with two unrelated disabilities. The decision of the English trial judge appears to differ from the approach taken in a New South Wales appellate decision, albeit a decision which may be said to fall outside the normal incidents of conception, intra-uterine development and birth. As discussed below, the challenge of unrelated disabilities is not the only one facing the courts when seeking to quantify wrongful birth damages.

No child ever, or just no child now?

The leading Australian decision on wrongful birth claims, Cattanach v Melchior[i], arose from a sterilisation procedure. Mrs Melchior had decided that she wanted no more children. To that extent, the scope of damages recoverable had at least one simple aspect – as the parents did not wish to have the child then, or in the future. Hence the claim was simply for the total costs of raising that child. However not all wrongful birth claims fit within the relative finality of a sterilization decision.

An example arose where the claimant parents wished to have one child, but in an ART setting conceived two, such that the claim made was for the total costs of raising the additional child. G and M v Armellin[ii] on appeal only dealt with breach of duty, but the trial judge[iii] assessed the cost of raising the additional child. The Court does not appear to have been asked to consider the possibility that (absent the twin pregnancy) the parents would have gone on to have a second child at some future date, such that the claim should only be for the acceleration of such costs and perhaps some additional expenses[iv]. Failed (non-permanent) contraception claims may also be said to focus on a decision not to have a child at that point in time, such that defendant’s may seek to argue that the costs of raising a child have been merely accelerated, if the evidence indicates that a young mother would have a child at some later time. Factors such as not wishing to ever have a child with the then father give rise to more challenging damages quantification issues.

Stobart v Al-Hakeem [2017] WADC 127 was a ‘wrongful birth’ claim asserting that a medical practitioner failed to properly insert an Implanon contraceptive device, in the sense that the defendant medical practitioner failed to properly ascertain that the claimant was in the first five days of her menstrual cycle at the time of insertion. The claimant later became pregnant but by that time believed that she could not lawfully terminate the pregnancy as it was too far advanced. The defendant had not asserted contributory negligence in that regard, in any event.[v]  . The claim was ultimately unsuccessful, with some adverse comment about the reliability of the evidence of the claimant.[vi] In the notional assessment of damages, the trial judge applied a “contingency” of 10% given that the claimant may have later chosen to have another child.[vii]

The three claims above focused on claims for the costs of raising children born without a disability. It may be thought that if a child was to be born with a disability such as by deficient antenatal testing leading to a lost opportunity to terminate the pregnancy, at least the disability costs would be recoverable, even if the parents would have chosen to go on to have a child in future.  However, a recent English decision and an earlier Australian decision have focused on that question, suggesting that the answer may be dependent on the facts.

Unrelated disabilities

Meadows v Khan[viii] saw reasons for judgment published recently in a wrongful birth claim based on antenatal testing failures giving rise to a lost opportunity to terminate the pregnancy.  The opening paragraph of the judgment focused on the fact that the child had two separate disabilities – haemophilia and autism. It was the haemophilia which had been tested for. At [1] the trial judge, Yip J said:

This is a claim by Omodele Meadows for the additional costs of raising her son, Adejuwon, who suffers from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, Adejuwon would not have been born because his mother would have discovered during her pregnancy that he was afflicted by haemophilia and so would have undergone a termination. It is agreed that she can recover the additional costs associated with that condition. What is in dispute is whether she can also recover the additional costs associated with Adejuwon’s autism. The defendant’s position is that such costs are outside the scope of her liability because the service she was providing was only in relation to the risk of haemophilia. In such circumstances, responsibility for the wholly unrelated risk of autism is not to be transferred from the mother to the doctor. The claimant maintains that she is entitled to damages for the continuation of the pregnancy and its consequences, including all the additional disability related costs, on the basis of well-established principles in wrongful birth claims.

The Court ultimately awarded damages for the autism costs as well as the haemophilia costs, on the basis that the scope of the doctor’s duty extended to preventing the birth of Adejuwon and all the consequences that brought.

The discussion at [52] – [58] is worth setting out in full. The trial judge said:

  1. I accept that, if looked at from the perspective of the risks that the parent was willing to run, there is a distinction between a case in which a parent does not want to have any child and one where a parent does not want to have a child with a particular disability. However, I am not persuaded that this is the appropriate starting point.
  2. As a matter of simple ‘but for’ causation, Adejuwon would not have been born but for the defendant’s negligence. The claimant therefore would not have had a child with the combined problems of haemophilia and autism. Had she known she was a carrier, she would have undergone foetal testing and would then have terminated this particular pregnancy. The other risks associated with that pregnancy would no longer have existed.
  3. It is right that the claimant would have gone on to have another pregnancy at another time and involving, necessarily, a different combination of genes. Although any pregnancy would have carried the same risk of autism, on the balance of probabilities, the subsequent pregnancy would not have been affected by autism.
  4. It seems to me that those circumstances produce a much closer analogy to Chester v Afshar[ix]than to the mountaineer’s knee in SAAMCO[x]. Just as with the risk inherent in the surgery in Chester v Afshar, the risk of autism was an inevitable risk of any pregnancy, but it cannot be said that it would probably have materialised in another pregnancy. In the case of the hypothetical mountaineer in SAAMCO, it can be said that if the advice about his knee had been right he would have gone on to climb the same mountain and would have had the same accident. The risk that materialised (an avalanche) had nothing to do with his knee. Here though the risk that materialised had everything to do with the continuation of this pregnancy. The autism arose out of this pregnancy which would have been terminated but for the defendant’s negligence.
  5. I agree with Mr Havers when he says that it is inapt to ask, as the defendant does, what losses would have occurred if the information had been correct. The pregnancy is indivisible. It cannot be said that, if the advice had been accurate, the claimant would have had a child with autism but not with haemophilia. Unlike the mountain and the avalanche which existed quite independently of the condition of the mountaineer’s knee, Adejuwon was the product of a particular pregnancy which only continued to exist as a result of the negligent advice.
  6. I accept that a key part of the rationale in Chester v Afshar was that the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon’s duty to warn. By contrast, the misfortune which was the focus of the duty here was haemophilia not autism. However, the focus of the defendant’s duty, or the purpose of the service to put it another way, was to provide the claimant with the necessary information so as to allow her to terminate any pregnancy afflicted by haemophilia, as this pregnancy was. In the circumstances, the continuation of this pregnancy was as unwanted as that in Groom.
  7. Once it is established that, had the mother been properly advised she would not have wanted to continue with her pregnancy, should it matter why she would have wanted a termination? Why logically should there be a distinction between the parent who did not want any pregnancy and one who did not want this particular pregnancy? In each case, the effect of the doctor’s negligence was to remove the mother’s opportunity to terminate a pregnancy that she would not have wanted to continue. To draw a distinction on the basis of considering the underlying reason why a mother would have wanted to terminate her pregnancy seems unattractive, arbitrary and unfair.

The trial judge noted at [71] that the England & Wales Court of Appeal had decided in Parkinson[xi] and Groom[xii] that recovery for the costs associated with a disability not directly linked to the negligence is fair where the disabled child would not have been born but for the negligence and where the disability arises out of the normal incidents of conception, intra-uterine development and birth. The emphasis placed by the trial judge on the normal incidents of conception, intra-uterine development and birth may permit this decision of Meadows v Khan to be distinguished from the earlier New South Wales Court of Appeal decision in Waller v James[xiii] (Beazley P, McColl and Ward JJA agreeing). In that matter, the primary disability arose four days after his birth, when Keeden suffered an extensive cerebral sinovenous thrombosis (CSVT), being a form of stroke. His underlying anti-thrombin deficiency was held (at trial) not to have caused or materially contributed to the stroke he suffered when he was four days old. That finding was not challenged at trial.

In Waller v James, the Court recognised (at [185] that factual causation was established, however that was not sufficient for legal causation to be established. [xiv]A difference in approach between Meadows and Waller may be seen in the discussion on remoteness of damage as part of a consideration of normative causation in Waller v James where Beazley P said:[xv]

In my opinion, the damage sustained by the appellants was too remote such that the respondent ought not to be liable for it. Except for the risk of having a child with ATD, the appellants were willing to undertake the risks of pregnancy, including the risks that a child they might have may be born with abnormalities. Those risk factors were in the order of at least 2-3 per cent and potentially as high as 4-5 per cent (see [45] above). The cause of Keeden’s CSVT was multifactorial, but was not associated with ATD….

Similarly, McColl JA said at [232]:

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

And per Ward JA at [249]:

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

Conclusion

For claims addressing the ordinary costs of raising a child (where permitted by statute), the 10% contingency noted above as having been applied in Stobart v Al-Hakeem to address the prospect of the planned birth of another child at a later date may not be an ideal approach.[xvi] The defendant had argued that that there should be a reduction in the award of damages to recognise that, although at the time of the unplanned pregnancy the plaintiff had no desire to have children, she had intended to reconsider her position when she reached her ’30s’ (at [327]). An alternate approach may have simply been to make a finding on the balance of probabilities and to assess damages accordingly.  Obiter comment in Waller v James mentioned the possibility of an award reflecting the acceleration of child rearing expenses.[xvii]

As noted at the outset, the decision of the English trial judge in Meadows v Khan appears to differ from the approach taken in Waller v James, though the basis for that different approach may be that the latter decision arguably falls outside the normal incidents of conception, intra-uterine development and birth. Given the complex legal issues involved and the significant financial impact of the decision (the agreed damages being either £1.4 million or £9 million), Meadows v Khan may find its way to the Court of Appeal of England and Wales.


[i] Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1.

[ii] G and M v Armellin [2009] ACTCA 6.

[iii] G and M v Armellin [2006] ACTSC 68, [216]

[iv] For example, a stroller able to accommodate twins.

[v] Stobart v Al-Hakeem [2017] WADC 127, [224].

[vi] Stobart v Al-Hakeem [2017] WADC 127, [308].

[vii] Stobart v Al-Hakeem [2017] WADC 127, [328].

[viii] Meadows v Khan [2017] EWHC 2900 (QB)

[ix] Chester v Afshar [2005] 1 AC 309

[x] South Australia Asset Management Corporation v York Montague [1997] AC 191.

[xi] Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266

[xii] Groom v Selby [2002] PIQR P18.

[xiii] Waller v James [2015] NSWCA 232. Special leave to appeal was refused on 12 February 2016.

[xiv] Waller v James [2015] NSWCA 232, [185].

[xv] Waller v James [2015] NSWCA 232, [208].

[xvi] Stobart v Al-Hakeem [2017] WADC 127, [328].

[xvii] Waller v James [2015] NSWCA 232, [194].

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