A Claim for a Wrongful Life? A Claim for a Wrongful Birth?

The Claims of Keeden Waller

Keeden Waller was born on 11 August 2000. He was conceived with the assistance of IVF treatment. A few days after his birth he suffered a stroke caused by antithrombin deficiency (AT3) – a condition inherited from his father. Keeden has severe brain damage and multiple injuries.

The Waller family have issued NSW Supreme Court proceedings seeking compensation for Keeden’s disabilities. They allege Dr Christopher James, obstetrician and fertility specialist, was negligent for failing to take steps to investigate the impact of the father’s antithrombin deficiency on a foetus. They say they were deprived of an opportunity to “…understand the possibility of the transmission of it (AT3)…”. As a result of this alleged act of negligence the Wallers say they had lost the opportunity to:

1. defer the IVF process until embryos with AT3 deficiency could be identified and isolated
2. use a sperm donor
3. terminate the pregnancy

This is the second occasion Dr James has been a defendant to an action by the Wallers in respect of his management of the pregnancy. In 2006 Keeden made legal history when he, as one of three plaintiffs, asked the High Court to determine if a cause of action existed for the person born as a result of the “negligent” continuation of a pregnancy¹. In other words, are damages available to the child who, but for the negligent continuation of the pregnancy, would not have been born to a life with severe disabilities. In common parlance this is known as a “wrongful life” claim.

By a majority of six to one the High Court dismissed the claim concluding that the notion of life as compensable damage could not be considered or evaluated by the court, and could not therefore be recognised by the law. The court’s findings are based in what they thought was the logical impossibility of comparing nonexistence (which cannot be experienced) to a damaged existence. The finding led to the conclusion that no meaningful assessment of damages could be made in such a case.

While the findings of the High Court prevented Keeden from pursuing his action for damages, it did not operate as a bar to a claim by his mother for the cost of raising a child born as a result of an alleged act of negligence. It is her claim for such damages that has recently been heard by the NSW Supreme Court – we are awaiting judgment.

A claim for the cost of raising a child born as a result of an act of negligence is not novel. Mrs Waller’s claim does, however, have two interesting aspects to it.

Firstly, what is the scope of the duty an IVF specialist owes to fully inform patients of the risk of genetic disorders. As the case has been reported in the press² Mrs Waller says that when Dr James was told of the father’s AT3, he handed the couple the name and phone number of a genetic counsellor on a Post-it note. The Wallers allege the note was given in the context of a discussion about fertility and the number was the switchboard of the hospital and not the counsellor’s direct line.

“There was a duty of care on the part of Dr James to ensure that both he and the Wallers understood that this problem could be passed on and for there to be proper counselling and discussion about the other options they had, including the option of an anonymous sperm donor”, counsel for the Wallers, David Higgs, SC, said.

Lawyers for Dr James argued it is not the responsibility of anIVF specialist to find out whether rare genetic conditions, such as antithrombin deficiency, can be passed on from father to son. If a duty is found to exist the court will have to determine whether Dr James’ efforts, as reported in the press, were sufficient to discharge that duty of care.

Should Dr James be found to have breached his duty of care, damages will follow for the costs of raising Keeden. The court will need to determine the extent of the damages. As Mrs Waller’s cause of action predates the introduction of the NSW Civil Liability Act she is not restricted to claiming damages only for the additional costs incurred in rearing a disabled as opposed to a healthy child.³

Mrs Waller is asking the court to compensate her for the costs she has and will incur in rearing Keeden, a child much loved, but one she says would not have been born but for Dr James’ alleged negligence. Parental responsibilities are generally thought to cease at the point when a child finishes full time education. This is either at the end of schooling or, for some, at the end of a university education. However the court has been asked to consider whether the defendant should be asked to pay the cost associated with raising a child beyond this age. Similarly, and bearing in mind this is a claim by the mother for compensation for expenses she has and will incur, should she be awarded damages for the costs of raising Keeden beyond her death, assuming he survives her? A parent does not incur costs beyond death.

The Wallers are asking the court to extend the current position in respect of duty of care and damages flowing from an unwanted birth. These are challenging considerations, the outcome of which has yet to be decided. If successful, the damages will be many millions. Given the complexity of the issues involved, and the potential value of the case, it is perhaps not unusual that the case has taken several years to come before the court and we have seen a change of lawyers since Keeden took his case to the High Court.

1 Waller v James [2006] HCA 16
2 The Sydney Morning Herald. 2012. Available at: www.smh.com.au/nsw/ keedens-stroke-not-related-to-inherited-disorder-20120201-1qsr0. html#ixzz1q4taBtvl
3 S.71 Civil Liability Act restricts the claim for damages for wrongful birth to the additional cost incurred to rear a disabled child.