Tina Cockburn, Bill Madden

Wrongful birth damages in Australia: Difficult questions, Incomplete answers
Bill Madden, Carroll & O’Dea Lawyers + Tina Cockburn, QUT ACHLR 1Tina Cockburn + Bill Madden - August 2017

Some statistics
Annual birth rate 300,000; Median age 31 years
Down syndrome 275 per year
Cystic fibrosis 120 per year
Fragile X (full) 50 per year
2Tina Cockburn + Bill Madden - August 2017

Looking for a framework
• A child not wanted, ever – or just not now?
• A child wanted, but not this child.
• And in any event, what compensation?

Aria’s story
• Aria’s mother, aged 39, does not
wish to have any more children.
She obtains a referral for a
sterilisation procedure which is
performed negligently.
• Aria is born suffering a mild
intellectual disability.

A child not wanted, ever.
Failed sterilisation

Dahl v Purcell (1993) 15 QLR 33
• Failed vasectomy
• Pratt DCJ awarded damages including
• Prenatal distress and pain and suffering of child birth
• Past and future costs of bringing up the child
• Out of pocket expenses – maternity clothes and medical expenses
• Loss of consortium
• And parents’ voluntary services, past and future, associated with raising the
child BUT reduced by ¼ to reflect the intangible benefits of a healthy child
• Public policy considerations did not prevent P’s claim
Tina Cockburn + Bill Madden - August 2017 6

Cattanach v Melchior (2003) 215 CLR 1
• Failed tubal ligation
• Held: past and future costs of raising child recoverable, regardless of
whether child suffers a disability
• Without reference to benefits and pleasures derived, or to be derived, from
the child
• Kirby J: “it is not the birth of the child that constitutes the harm,
injury or damage for which the parents sue. Instead, it is for the
economic harm inflicted upon them by the injury they have suffered
as a consequence of the negligence that they have proved.” (57)

Gentile v Ferri [2004] WADC 144
• Failed tubal ligation with Filshie clips
• Costs of raising child awarded
• Additional claim, for voluntary services based on commercial costs of
paying someone to discharge the parents’ duty of bringing up the
child, unsuccessful

Civil Liability Legislation
• Cannot recover the costs of a healthy child’s upbringing
• Damages for the costs ordinarily associated with rearing or maintaining a
child not recoverable
• Civil Liability Act 2003 (Qld) ss49A, 49B
• Civil Liability Act 1936 (SA) ss67(1),(3),(4)
• Recoverability of child raising costs limited to those associated with rearing or
maintaining a child who suffers from a disability
• Civil Liability Act 2003 (NSW) ss71(1)(a),(2)

Aria’s story
• Aria, when aged 17 years, would like
to have a child when she is 25.
• After a night out with friends she
does not remember clearly, she
consults a local GP for a ‘morning
after pill’ as a form of contraception.
• The GP’s prescription is incorrect and
the pregnancy continues, despite
another GP visit, beyond a point at
which Aria is comfortable with
termination.

A child not wanted, at present.
Failed contraception
Failed termination
Loss of opportunity to terminate pregnancy

Neville v Lam (No 3) [2014] NSWSC 607
• Alleged failure to advise of a risk of pregnancy following an
endometrial ablation.
• P asserted that after the procedure she believed that she could no
longer fall pregnant and therefore did not pursue contraceptive or
sterilization treatments.
• As a result, she conceived and gave birth to a child who suffered from
a range of disabilities
• Held: claim failed because failure to advise of possible pregnancy not
a breach of duty BUT comments on assessment of damages.

CES v Superclinics (1995) 38 NSWLR 47
• CES alleged loss of opportunity to terminate pregnancy because medical
practitioners failed to detect her pregnancy despite repeated consultations
• CES visited D 5 times over a period of 2 months, concerned that she was
pregnant and wishing to terminate the pregnancy if she was
• When pregnancy finally diagnosed CES was 19 weeks pregnant and was
told that it was too late to perform a lawful termination
• Held: Kirby ACJ and Priestly J disallowed damages from the point at which
adoption could occur. (at 73)
• Justice Meagher dissented - abhorrent that the birth of a healthy child could lead to
an award of damages. It might be damaging to the child to become aware that she
was an unwanted child. (at 79)

Veivers v Connolly [1995] 2 QdR 326
• Failure to test a pregnant woman for rubella (German measles)
• Baby subsequently born with congenital rubella embryopathy leading to
severe disabilities
• Mother asserted that she would have terminated the pregnancy had she
been informed that she had Rubella at an early stage in her pregnancy
• Mother successfully sued for extra costs of raising a disabled child
• De Jersey J: damages award reduced by 5% to reflect that the case was
essentially for loss of chance to terminate pregnancy and there was a
possibility that she may not have been able to obtain a lawful termination.

FJ v Cth of Australia [2017] VSCA 84
• Pregnancy of FJ not detected in medical examinations conducted by
Commonwealth after she entered service in the Navy
• FJ alleged that if her pregnancy had been detected she would have
had a termination
• FJ sought to recover costs of raising her child
• Held: for purposes of the Military Rehabilitation and Compensation
Act 2004 (Cth) pregnancy and childbirth are not an “injury” so claim
was not one in respect of a service injury and was not barred by s388
of the Act.

FJ v Cth of Australia
• “In ordinary language, pregnancy and childbirth are not injuries. The
definition of ‘injury’ in the Act broadly reflects its meaning in ordinary
usage and the statutory context of the Act sharpens that meaning by
deploying the concepts of ‘rehabilitation’ and ‘treatment’. The
statutory context here is of considerable significance.”

Acceleration of costs
• Should a child born at a particular time (rather than later) give rise to
damages for the entire cost of child raising, or should the damages
only be for the acceleration of costs?

Aria’s story
• Aria’s older sister Zoe has tried but
failed to conceive. She presents
with her husband for assisted
reproduction treatment which is
successful.
• On the birth of the child it is soon
apparent that the husband was
not the source of the donor
material.

A child wanted, but not this child
Wrong donor materials
• Incorrect father
• Misleading donor profile

G & M v Armellin [2009] ACTCA 68
• Claim arising from assisted conception procedure alleging breach of
duty in transferring two embryos when only one embryo requested
• Held: failure by respondent to confirm number of embryos for
transfer with fertility centre staff was breach of duty
• Damages assessed by trial judge included $234,600 for costs of raising
the child

Waller v James [2013] NSWSC 497; [2015]
NSWCA 232
• D should have advised Mr and Mrs W that Mr Ws anti-thrombin 3 (AT3)
deficiency was genetic and susceptible of being transferred to his children
• If such advice had been given, Mr and Mrs W would have deferred
undergoing artificial insemination until methods were available to ensure
that only embryos without the AT3 deficiency were transferred, would have
used donor sperm, avoiding the risk, or would have terminated the
pregnancy upon discovery of the risks of a child being born with serious
genetic disabilities
• Claim costs of upbringing and compensation for gratuitous care
• Held causation not established but comments on damages assessment

Backwell v AAA (1996) Aust Torts Rep 81-387
• D inseminated P with incorrect donor sperm.
• D discovered error > told P not to worry & return next week for pregnancy test.
• Test revealed P pregnant
• D advised termination – risk of stillbirth
• D threatened P that if baby stillborn, her identity might be revealed & publicity
might cause closure of clinic.
• D told P that if she did not terminate, further IVF might be difficult to receive
• P terminated pregnancy
• P suffered depressive disorder
• Held: compensatory damages and $60,000 exemplary damages

ACB v Thomson Medical Pte Ltd
[2017] 1 SLR 918
• A and H sought to conceive a child through IVF – baby P born
• Mistake: A’s ovum fertilised using unknown donor sperm instead of H’s
sperm
• A Chinese Singaporean woman – H Caucasian male – donor sperm mistakenly used
was Indian
• Court drew attention to the race of the parties involved not because of any approval of
outmoded attitudes towards race and ethnicity, but because of a recognition of ‘the complex
role that physical resemblance, race, and cultural and ethnic identity have had and continue
to have on our individual well-being’, as they so evidently did have on A’s. [134]
• Claims:
• Financial costs of raising child to age 21
• Loss of autonomy
• Punitive damages

ACB v Thomson Medical Pte Ltd (cont…)
• Costs of child rearing claim failed – compare Australian position
• ‘[t]he duty to maintain one’s child is a duty which lies at the very heart of
parenthood, and thus the expenses which are incurred towards the discharge
of this estate are not capable of characterisation as a loss.’ [93]
• Loss not recognised by the Court as legally actionable
• Conflict of interest between parent’s private interests in litigation and their duties
vis a vis their children
• A only entitled to recover damages for: pain and suffering arising from the
pregnancy AND costs of failed IVF procedure

• Loss of autonomy claim failed – compare English position
• Conceptual objection: concept of autonomy too nebulous and contested a
concept
• Coherence: action for loss of autonomy akin to action for vindication of a legal
right BUT negligence action sees damage in terms of objective detriment and
damages are compensatory in nature
• Over-inclusiveness objection: recognition of loss of autonomy would allow for
circumvention of “damage requirement” as any form of damage could be
potentially reconceptualised in terms of damage to autonomy

• However: recognised claim for loss of genetic affinity
• Loss suffered by A was product of ‘complex amalgam of biological, social,
ethical, and historical factors’.
• Many of these factors had to ‘do with certain aspects of human relationships
and personhood that are fundamental parts of the human condition, such as
the role of genetic relatedness, physical resemblance, race, culture, and the
importance of familial relations.’
• Some of these factors were rightly cherished; while others were ‘perhaps
regrettable features of the society which we inhabit’. [135]
• A’s interest in ‘genetic affinity’ was one which the law ought to recognise
and protect.

• Assessment of damages for a loss of genetic affinity - fraught with difficulty.
• Loss of genetic affinity could be seen as an element of non-pecuniary loss, akin in some
ways to an award for pain and suffering, but with distinct incidents.
• As in all cases involving non-pecuniary loss, there was no objective yardstick which could
be used, and the sum which was awarded was ‘conventional’ in the sense that it was not
the product of precise calculation but was instead a sum that afforded reasonable
compensation in the circumstances of the case.
• In the absence of comparable precedents, the Court held that the award would be
benchmarked as a percentage of the financial costs of raising Baby P. [149]
• This did not derogate from the finding that the obligations of parenthood were incapable
of being regarded as loss, but was a practical approach that prevented the court from
having to pluck a figure out of thin air. Having regard to all the circumstances of the case,
the Court found that an award equivalent to 30 per cent of the financial costs of raising
Baby P properly reflected the seriousness of the appellant’s loss and would be just,
equitable, and proportionate.[150]

• Exemplary damages declined - facts too scant to support a finding of outrageous
conduct.
• Allegation in the statement of claim that the mix-up had taken place because
more than one sample had been handled in the laminar hood at the same time
and because the disposable pipettes were not discarded promptly after each use.
• Held: Even accepting both of these assertions to be correct, Court could not
conclude — from this single instance of negligence alone — that the respondents’
conduct was of such a character as to be considered outrageous.
• However, if an award of punitive damages had been justified, it would have been
an additional head of damages, and the sum awarded would be additional to,
and not in lieu of any compensatory award that might be made. [209]
• Compare: Civil Liability legislation abolition of exemplary and aggravated damages in negligence claims

This has been a difficult case, possibly one of the most difficult to come before this
court thus far. However, not once have we wavered in our conviction as to the truth
of the following principle, which has already been emphasised right at the outset of
this judgment: the life of every person carries with it its own inestimable value
and dignity and the worth of a person can neither be enlarged nor its importance
abridged by any pronouncement of this court — nothing we have said should (or,
indeed, could) be taken as a reflection of this court’s view of the worth of Baby P.
That is not the issue before this court nor can it ever be. The question in this
appeal was the proper legal response to what is, by any account, a tragic set of
facts ... [210]

The accident
• Aria’s mother died leaving her a
substantial inheritance, but she
develops severe depression.
• Shortly before hearing of her
wrongful birth claim, when Liam is
aged 5 years, Aria dies from an
overdose of prescription
medication.
• Her sister Zoe takes over conduct
of the compensation claim as
executrix of her estate and with a
view to caring for Liam.

Can the claim continue?
• Would the law recognise a claim for costs incurred by someone other than the
parent?
• Is the claim a claim by the estate and or by the person who assumes the
responsibility for the child?
• And if there is a claim in such circumstances does that mean that all claims should
not be limited to the life expectancy of the parents?

Does parental wealth matter?
“[t]he common law does not permit courts to impose a means test upon plaintiffs.
Wealthy parents, who might reasonably be expected to spend more on bringing up
their children, may have a larger claim than poor parents.”
Cattanach v Melchior (Gleeson CJ)

Waller v James
• As an alternative to gratuitous care claim, P sought compensation for
‘future paid care on the basis of 24 hour, seven days a week live-in care
provided at commercial rates’.
• No evidence that P could fund such care absent a substantial verdict
• P had not employed paid carers to date, but had adequately and appropriately cared
for their child themselves.
• D submitted that application of “compensatory principles” eg indemnity
principle, meant that P could not recover compensation for an expense
they would not incur, absent a damages award.
• Hislop J:
• labelled D’s submission ‘unattractive’, but as a court at first instance, felt ‘bound to
accede to it’ by limiting P’s claim to the income that they had and would forego
because of the care they had and would provide to their child.
• acknowledged that a ‘more pragmatic approach may well prevail’ if a higher court
were to perceive the rule as requiring an unfair or unjust result.

Neville v Lam
• Beech Jones J:
• For costs of care to be recoverable the court must be satisfied that relevant
expenditure would be incurred regardless of whether or not the parents’
claim is successful
• Insofar as “this requirement clearly favours a parent of a disabled child who
has means compared with the less well off” while “it is unjust … it is the law
as it stands.”

Can time spent on care be claimed?
• Time
• Wages
• NDIS impact

Waller v James
• Claim for compensation at commercial rates for time spent and to be
spent in the future providing care for their child (Griffiths v
Kerkemeyer analogy)
• Held Hislop J:
• Claim denied – instead awarded an amount for past and future wages lost by
them from reducing working hours to care for their son

Neville v Lam
• Beech Jones J:
• “ No recovery for the ‘cost’ or value of any voluntary care of the child
provided by anyone.”

Cattanach v Melchior
• McHugh, Gummow J (obiter)
• “the relevant damage suffered by the Melchiors is the expenditure that they
have incurred or will incur in the future, not the creation or existence of the
parent-child relationship. If, for example, their child had been voluntarily
cared for up to the date of trial, they could have recovered no damages for
that part of the child’s upbringing.”

Wrongful birth damages in Australia: Difficult questions, Incomplete answers
Bill Madden, Carroll & O’Dea Lawyers + Tina Cockburn, QUT ACHLR 39Tina Cockburn + Bill Madden - August 2017

Tina Cockburn, Bill Madden

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