The claims by the third plaintiff against the first, second and third defendants considered
12 Since the facts relevant for the purposes of the issues now to be considered have been agreed and recorded, I do not propose to analyse them further but to proceed directly to a consideration of the issue of the duty of care. I note at the outset that because their involvement was different, it will be necessary to look discretely at the positions of the first and the second defendants and then of the third defendant. The third defendant was first consulted after the first plaintiff's pregnancy had been confirmed.
13 Mr Bates referred to the decisions in Watt v Rama (1972) VR 353, X & Y (by her tutor X) v Pal & Ors (1991) 23 NSWLR 26 and Kosky & Anor v The Trustees of the Sisters of Charity (1982) VR 961 as authorities for the existence of a duty of care owed by the first, the second and the third defendants towards the third plaintiff. In the course of his written submissions, Mr Bates made a very close analysis of these cases, referring extensively to dicta in them. I do not propose to quote so extensively from these authorities because what they establish is now well settled.
14 The infant plaintiff in Watt v Rama was injured en ventre sa mere when his mother was seriously injured in a motor vehicle accident. The contention in that case that the infant did not have a cause of action because the defendant owed no duty of care to an unborn child was rejected. It was held unanimously that the defendant did owe a duty of care not to cause injury to the child then unborn although damage for the purpose of tortious negligence only crystallised on birth and the cause of action in tort for a minor crystallised when he was born.
15 X & Y (by her tutor X) v Pal was a case in which the mother was unaware that she had syphilis. The allegation was that her medical advisers were negligent in failing to test for and to discover the syphilis whilst she was pregnant with Y who was subsequently born with congenital syphilis and other disabilities. The defendant doctors asserted they owed no duty to Y as an unborn person but that assertion was rejected. Mr Bates drew particular attention to the judgment of Clarke JA in this case in the following passages (at p 37):
"The correct approach requires that attention be focussed on the question whether A breached a duty of care which he owed to a class of persons and, if so, whether B was a member of that class. Unless the law requires that each member of the class be in existence at the time of the breach of duty then no reason would appear why a person born, or even conceived, after it occurred would not be entitled to recover in respect of damage suffered as a result of that breach of duty if he could show that he was a member of the relevant class. To hold otherwise would, in my view, be contrary to authority and would, in addition, lead to results in particular cases which would universally be considered unfair or unjust.
I would express the position in these terms - A may be liable in damages to B notwithstanding that B had not been conceived at the time A acted carelessly if the following conditions be satisfied:
(a) In all the circumstances A owed a duty to take care to a particular class of persons;
(b) A breached that duty;
(c) B was subsequently born suffering from damage which was causally related to those actions/omissions of A which constituted the breach of duty to the particular class of persons; and
(d) B was a member of the relevant class of persons.
If the matter is expressed in that way then, as I see it, there is no need for a court to concern itself with perceived difficulties arising from the apparent awkwardness of a concept that A may both owe a duty to B and breach that duty before B is born (or even conceived)."
16 Then, later at p 38, his Honour went on to say:
"Fleming, The Law of Torts 7th ed, (1987) at 152, saw two problems in a claim brought by a child deformed as a consequence of negligent conduct occurring before her birth. First, the lack of legal personality and, secondly, the absence of foreseeability.
The latter is a problem to be resolved on the facts of the case just as in the more usual cases which come before the courts. In some instances it may not be possible for a plaintiff to establish this element but in others the pre-natal injury leading to a child being born deformed may be just the kind of thing which a doctor would recognise may occur if he did not use due care. Fleming postulated two ways of overcoming the problem of the absence of legal personality. One was to deem the child 'to be a person entitled on birth to compensation for injury…'. The other to consider the position upon the birth of the child (when the damage occurred and the cause of action arose) and resting liability solely on foreseeability.
If one postulates the duty in terms of the class or category of persons to whom it is owed, as I believe one should, and accepts that there may be within that class persons who are not born when the careless conduct occurs there is no need to resort to artificial concepts, such as deeming, or to be unduly troubled about the child's lack of legal personality at the time of that conduct.
While in particular cases the relevant question may simply be whether it can be said that A owed a duty to B there will be other cases in which the question, more accurately phrased, is whether A owes a duty to a category of persons so that if he breaches that duty any of the persons within that category, subject to particular defences which may arise in relation to the claim being pursued, may sue. Of course, proof that a duty is owed by A to B which duty is breached by A will not, without more, give rise to a cause of action in B. That will only arise if B suffers damage as a result of the breach. In a case such as the present that damage will be suffered, or at least the law will only recognise that it has been suffered, upon the birth of the child. The fact that damage was suffered many years after the breach of duty has never been regarded as an impediment to the cause of action. Nor should, in my view, the fact that a particular plaintiff acquired legal personality (and suffered damage) years after the breach."
17 His Honour did not consider it mattered whether the infant harmed was even in existence at the time when the acts constituting the breach of duty occurred. As to this, his Honour said (at p 40):
"I do not know whether it is necessary to speak of the duty as being potential or contingent. For my part I would prefer to say that if the injured person falls within the class to whom the duty was owed it matters not that he was not identified, or not in existence, at the time when those acts occurred which constituted the breach of the duty to take care. Let me give an example in an endeavour to make my point good.
Take the case of tinned baby foods. They are made for ingestion by infants. If a young child ate baby food which had been impregnated with deleterious substances, and which impregnation was not discoverable on a reasonable inspection by the child's parents, and as a result suffered serious illness, prima facie that child would enjoy a good cause of action against the manufacturer. Would it make any difference if the child which ingested the baby foods had been conceived but not born when the goods were released onto the market? I think not. I would take it that the manufacturer would know that babies were likely to be affected by carelessness on its part in marketing deleterious products and would therefore owe to that class of person a relevant duty of care. In this respect I cannot accept that the fact that the injured child was born one day after the goods had been released onto the market, rather than one day before, would provide a reason for excluding that child from the class of persons to whom the duty of care was owed. In both cases the risks would be foreseeable. Nor can I see any reason in principle for excluding a child who had not been conceived at the time the goods were released onto the market. No doubt the nature of some goods would be such that the length of time between the marketing of the goods and the conception of the child might negate a duty of care but leaving to one side those cases in which time may be a significant feature it is my opinion that the manufacturer would owe a relevant duty to all children likely to be fed the foods irrespective of whether they had been born, or even conceived, at the time the goods were put on the market."
18 Mr Bates then referred to Kosky & Anor v The Trustees of the Sisters of Charity, a decision of Tadgell J in the Supreme Court of Victoria. In that case, many years before her pregnancy the mother was injured in a car accident and afterwards she had been given an incompatible blood transfusion in hospital. That had introduced a particular disorder into her blood system and the child later conceived became affected. In proceedings subsequently commenced by the child, the hospital asserted no duty had been owed to him because the incompatible blood transfusion had occurred eight years before his conception. Tadgell J expressed the view (at p 969), following Watt v Rama, that a duty was owed to the child.
19 Mr Bates submitted, consistently with the above cases and in particular the case of X, that the potential duty to the third plaintiff arose even before his conception as a potential member of a class of persons, namely that class who may become persons upon birth following the creation of an embryo and implantation into the mother's womb. It was argued that after the embryo was developed and even before its transfer to the womb, there was clearly a duty, or a potential duty, owed to him as a member of a narrower class of persons, namely those who may become persons after live birth coming from embryos developed artificially in the laboratory and then implanted.
20 Mr Bates submitted on this analysis that the first and the second defendants owed a potential duty of care to the third plaintiff from the time they first became involved in treating the first plaintiff.
21 So far as the third defendant was concerned, since the third plaintiff was en ventre sa mere when he was first consulted, it was submitted that Watt v Rama established that a duty of care to the third plaintiff existed from the time of that first consultation.
22 The authorities reviewed lead me to conclude that the third defendant owed to the third plaintiff a duty of care from the date upon which his mother first consulted him. The first and the second defendants also owed to the third plaintiff a duty of care, not necessarily only from the date of his conception but potentially existing during the time of their treatment of his mother.
23 What was the content of the duty owed to the third plaintiff by the defendants?
24 I consider firstly the position of the first and the second defendants.
25 Mr Bates has submitted that the first and the second defendants owed to the third plaintiff as a potential person a duty to inform the first and second plaintiffs of all material facts that would bear on his potential health as a person to enable the first and second plaintiffs to decide what course they should take having regard to the potential third plaintiff's best interests. This meant that the first and second plaintiffs should have been advised, in discharging the duty of care owed to the third plaintiff, that the second plaintiff had the AT3 deficiency and that this could be passed on to the child. It was also submitted that the parents should have been told, in the discharge of the duty owed to the third plaintiff, that testing could be undertaken for the presence of AT3 in any embryo before implantation in the womb.
26 It was submitted that the duty owed to the third plaintiff could only be discharged through giving the necessary information to his parents and that it was for them, and in particular his mother, to decide what should be done. The decision of the mother or the parents was to be determinative, and the duty of the first and the second defendants extended no further than to convey the necessary information to the parents. Had the parents, duly informed, decided to proceed with the implantation of the embryo and the child was later born disabled because of AT3 deficiency, then, in such circumstances, the defendants would not have been liable.
27 In developing this argument, Mr Bates referred to cases in which the courts have declined to intervene to prevent a mother from having an abortion. Reference was made to the Attorney General for the State of Queensland v T (1983) 57 ALJR 285. In that case Gibbs CJ cited with approval the decision of Sir George Baker P in Paton v BPAS Trustees (1979) 1 KB 276 at 279 that a foetus has no right of its own until it is born and has a separate existence from its mother. In The Marriage of F & F (1989) FLC 92-031 the Family Court refused injunctive relief to a husband seeking to restrain his estranged wife from terminating her pregnancy.
28 I do not find those cases helpful in determining the content of any duty of care owed by the first and the second defendants, or, indeed, by the third defendant, to the third plaintiff. Those decisions demonstrate a refusal to intervene in cases where an expectant mother has, for her own reasons, decided to have an abortion.
29 That the duty as defined by Mr Bates may have been owed to the first and the second plaintiffs personally is not in question here. But was that same duty owed to the third plaintiff? Had the duty in such terms been owed to the third plaintiff and had it been discharged, the third plaintiff would never have been born. This emerges from agreed fact 44:
"44. If the first and second plaintiffs had been advised by the first, second and/or third defendants that the second plaintiff's antithrombin 3 deficiency was genetic and could be passed to any child, the first and second plaintiffs would have:
(a) deferred egg harvest and/or embryo transfer until methods to ensure transfer of only AT3 deficiency free embryos were identified; or
(b) used donor sperm; or
(c) if informed after confirmation of pregnancy of the 50% chance or the certainty of the foetus suffering from the AT3 deficiency, sought and obtained a lawful termination."
30 Mr Bates has been unable to refer to any authority supporting the existence of such a duty of care as that for which he here contends. Watt v Rama was a case in which harm was done to the foetus by negligent conduct. In X & Y v Pal the tort feasor caused harm to the foetus by omitting to detect and to treat syphilis in the mother. In each of these cases the liability of the tort feasor was consequential upon breach of a duty whether by act or omission not to cause injury to the unborn child.
31 I cannot accept that the first and the second defendants owed to the third plaintiff a duty, the content of which could encourage a decision by his parents to prevent his birth. Moreover, if there existed the concurrent duties urged by Mr Bates, this could lead to conflicting and inconsistent interests and obligations in the parents. As he expresses them, the duty to the parents was a duty to inform, thus putting the parents in a position to act as they saw fit in their own interests. The duty to the child-to-be was to provide the same information, but it was then for the parents to act in the best interests of such child. It by no means follows that what was perceived to be in the decision-maker's best interests would be perceived to be in the potential child's best interests. Indeed, the potential for conflict and mutually inconsistent responses is obvious. Making a decision in her own interests, a potential mother may well decide that the risk of having a child born disabled would not be worth taking and that it was in her best interests to terminate a pregnancy. On the other hand, if that same person was called upon to decide whether the termination of the pregnancy was in the potential child's best interests, in the very same circumstances, the opposite conclusion may well have been reached.
32 The duty of care owed by the relevant authority's laboratory and by the doctor in McKay & Anor v Essex Area Health Authority & Anor [1982] 1 QB 1166 was defined by Stephenson LJ at 1178-1179 as being a duty not to injure the child during the mother's pregnancy. Acker LJ at 1188 rejected the submission that the duty of care to the foetus "involved a duty…albeit indirectly by advice to the mother, to cause its death" and added:
"I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person whether or not in utero to terminate his existence. Such a proposition runs wholly contrary to the concept of sanctity of human life."
33 Griffiths LJ said at 1192:
"It surely cannot be asserted that the doctor owes a duty to the foetus to urge its destruction."
34 Mr Bates has acknowledged that the decision in McKay which I have reviewed extensively in both Edwards and in Harriton is against him, but Mr Bates has submitted that I should not follow McKay because the reasoning in McKay was flawed. It was submitted that the court confused the doctor's role with the parents' role and went too far in formulating the content and scope of the doctor's asserted duty of care to the foetus. It was submitted that the court in McKay was in error in trespassing into the decision-making prerogatives which were those of the parents, particularly the mother.
35 I have given Mr Bates' submissions concerning McKay anxious consideration, as, indeed, I gave the submissions of Mr Hirsch and Mr Segal anxious consideration in the matters of Edwards and Harriton. I will not repeat here the extensive references to the judgments in McKay which I set out in Edwards (paras 14-22), but I have found the reasoning in McKay to be most persuasive. So, too, I observe did the Court of Appeal in Manitoba in Lacroix v Dominique [2001] MBCA 122: see in particular the judgment of Twaddle JA at para 37. Mr Bates' criticism of the reasoning in McKay is similar to that of Mr Segal in his submissions in Harriton. I addressed that criticism at paras 18-21 in Harriton, and I will not repeat what I there said.
36 I respectfully agree with the definition of the content of the duty of care owed to the unborn child expressed by Stephenson LJ in McKay. The duty which was owed to this plaintiff was a duty not to injure him. I do not consider that a duty in the terms contended for by Mr Bates was owed to the third plaintiff, and indeed I would regard the formulation of such a duty as being contrary to public policy. I shall address considerations of public policy later.
37 Was there a breach of the duty of care which was owed by the first and the second defendants, limited in content as I find it to have been to a duty not to injure the third plaintiff? Obviously the first and the second defendants played a very important role in facilitating the development of the embryos which were implanted in the womb of the first plaintiff but does it follow from this that they caused injury to the third plaintiff?
38 On this issue I again repeat what I wrote in Edwards (at para 68):
"Common sense has a central role to play in determining causation. In Stapley v Gypsum Mines Ltd (1953) AC 663 at 681, Lord Reid said that what caused an accident from the point of view of legal liability 'must be determined by applying common sense to the facts of each particular case'. Lord Reid's dicta were cited with approval in March v Stramare (1991) 171 CLR 506 by Mason CJ at 515 and by Deane J at 523-524, and in Chappel v Hart (supra) by Gaudron J at 238. The application of common sense cannot be divorced from value judgments and policy considerations: March v Stramare (at 516) and Chappel v Hart (at 243)."
39 The AT3 deficiency responsible for the third plaintiff's disabilities was a deficiency inherited from the second plaintiff and, indeed, it is an agreed fact that this deficiency was genetic and not iatrogenic (see agreed fact 47). This being so, the first and second defendants did not cause the third plaintiff's disabilities and there was no breach by either of them of the duty of care limited, as I find it to have been, to a duty not to injure the third plaintiff. Indeed, as I understand them, Mr Bates' submissions on breach of duty of care and on causation depended upon acceptance of the proposition that the duty of care owed by the first and the second defendants was more broadly based in the manner in which he expressed it.
40 Turning to the third defendant, it was submitted that he owed a duty to the third plaintiff to inform the first plaintiff, and possibly the second plaintiff, about the significance of the AT3 deficiency in the second plaintiff and its possible consequences.
41 I reject that submission. I do so for substantially the same reasons as I have rejected the submission Mr Bates advanced concerning the content of the duty of care owed by the first and the second defendants. Again, in the case of the third defendant, I cannot accept that he owed a duty, the content of which could encourage, and indeed here would have encouraged, a decision by the third plaintiff's parents to prevent his birth.
42 In my opinion, the content of the duty of care owed by the third defendant was no more and no less than the content of the duty of care owed by the first and the second defendants. It was simply a duty not to injure the third plaintiff.
43 The third defendant did not cause the AT3 deficiency so there was no breach of the duty of care which I find was owed by the third defendant to the third plaintiff by reason of the fact of the third plaintiff's birth with that deficiency and the disabilities solely attributable to it.
44 The third plaintiff brings an additional claim against the third defendant, and this is recognised in agreed fact 48, that the third plaintiff suffered injury in consequence of the third defendant's negligence in the management of his delivery and neonatal care. This judgment is not concerned with that additional claim. If the third defendant was negligent as alleged in the management of the third plaintiff's delivery and neonatal care so as to cause him harm, then findings to this effect would attract an entitlement to an award of damages. That is a matter to await determination at a subsequent trial. However, for the purposes of this separate determination of question 1 as identified in para 3 of this judgment, I find no breach of the duty of care which the third defendant owed to the third plaintiff.
45 It follows from the conclusions I have expressed that the first of the questions the subject of this separate determination is to be answered in the negative. However, this matter has been fully argued before me, and I propose to consider the further issues of damage and damages.
46 Mr Bates submitted that the third plaintiff is entitled to damages including general damages as against each of the three defendants. Mr Bates submitted that the plaintiff was entitled to be compensated for the difference between life without suffering, such as is associated with the third plaintiff's disabilities, and the life that would be enjoyed by a person uninjured. He submitted further that the third plaintiff was entitled to other heads of damage including medical and hospital expenses and other traditional heads of damage in actions based upon the tort of negligence.
47 In Edwards, and again in Harriton, I addressed what I perceived to be, firstly, the necessity to determine damage and then the impossibility of doing so conceptually, and I went on to address the impossibility of assessing damages in cases of "wrongful life". I refer to paras 70-92 of my judgment in Edwards and to paras 28-50 of my judgment in Harriton. I do not propose to repeat all that I said on these issues in those two matters.
48 However, the starting point must be to determine what was the damage that the third plaintiff has suffered. The "damage" must be identified before the court can proceed to attempt an assessment of "damages": see Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522, and in particular the joint judgment of Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ at 527.
49 I cannot accept the submission made by Mr Bates that in order to determine whether the plaintiff has suffered damage, it is appropriate to consider and to draw a comparison between life without disabilities and life with disabilities. Had the defendants done that which the third plaintiff contends ought to have been done to discharge the respective duties of care which it is claimed were owed, then on the agreed facts the third plaintiff would never have been born. In order therefore to determine whether the third plaintiff suffered "damage" in being born disabled inevitably involves comparing the value of non-existence with the value of existence in a disabled state. The comparison which legal principle requires is an impossible exercise.
50 Again I state that I have found the reasoning of the Court of Appeal in McKay on this question of damage and the assessment of damages to be very persuasive, and I refer once again to the following passages: