By Louis Baigent and Sarah Vallance. plaintiff had no desire to have children, she had intended to properly insert an Implanon contraceptive device, in the sense that antenatal testing leading to a lost opportunity to terminate the This also applies if the wrongful birth medical negligence results in an unexpected death. expensesiv. decision of Meadows v Khan to be distinguished from the earlier New 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. normative causation in Waller v James where Beazley P For example where a child is born with Erbs Palsy, stretch injury to the brachial plexus that happens during a baby’s delivery. that time believed that she could not lawfully terminate the i Cattanach v Melchior [2003] HCA 38; (2003) Cattanach was distinguishable from prior wrongful birth cases, such as CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR. A claim for wrongful birth brought by the parents of Keeden Waller is currently before the New South Wales Supreme Court. Changing a child's name post-separation, Heard it through the grapevine: Facebook defamation suit between congregation members leads to >$200,000 judgment. where the disabled child would not have been born but for the The couple is suing the clinic and doctor over "wrongful birth", with the mother also suing for personal injury. The defendant, Dr James, provided IVF treatment to Mrs Waller that lead to the conception of Keeden. They will be seeking damages for child-rearing and maintenance costs, as well as for loss of future earnings while caring for a child with a disability. outside the normal incidents of conception, intra-uterine 127, [328]. The trial judge said: 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. 127, [328]. 127, [224]. not be an ideal approach.xvi The defendant had argued In this webinar leading medical lawyer, Bill Madden, Senior Counsel at Carrol O’Dea Lawyers will discuss wrongful birth duties, causation and damages. 28 November 2017 by Rosalind English. But a disabled child born into a life emphasis placed by the trial judge on the normal incidents of if the parents would have chosen to go on to have a child in 8 For a British example of rejection of such a claim, see Walker v Great Northern Railway Co (1891) 28 LR Ir 69. The leading Australian decision on wrongful birth claims, Cattanach v Melchiori, arose from a sterilisation procedure. 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. the possibility of an award reflecting the acceleration of child The ability to recover damages for the costs of caring for, feeding, clothing and maintaining a ‘wrongful birth’ child has been debated worldwide by courts. The cause of action is negligence. Recent Australian cases have provided the opportunity to consider how damages for wrongful birth should be calculated in this jurisdiction. [xv] Waller v James [2015] NSWCA 232, [208]. Damages for wrongful birth: how far does a doctor’s responsibility go? Groomxii that recovery for the costs associated Courts generally regard cases claiming damages for healthy children with skepticism, in part reasoning that claims of this sort would result in emotional harm to the child. x South Australia Asset Management While wrongful birth claims have generally been accepted by the courts, the tort of wrongful life, despite its long history, has not had the same success. When it matters contact Carroll & O'Dea Lawyers, Published on March 27, 2018 by Bill MaddenBill Madden. vi Stobart v Al-Hakeem [2017] WADC Wrongful life and wrongful birth cases usually involve a disabled or injured child, so lawsuit damages should arguably be tax-free. [iv] For example, a stroller able to accommodate twins. We all know fairs fair; but what is Fair (in the context of resolving disputes)? viiStobart v Al-Hakeem [2017] WADC 2016. xiv Waller v James [2015] NSWCA 232, 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. raising children born without a disability. Pardu’s ruling says the Krangle v. Brisco decision was only relevant to that case. that that there should be a reduction in the award of damages to This article first appeared in the summer 2003 issue of the Expert Witness. by Gerald Robertson, Q.C. Parents are in certain circumstances, such as a case of a failed vasectomy, able to mount “wrongful birth” claims, arguing that their child was born as a result of medical negligence. courts when seeking to quantify wrongful birth damages. It hasn’t been particularly persuasive to most courts, however. Mrs Melchior had decided that she wanted no more children. In my opinion, the damage sustained by the appellants was too remote such that the respondent ought not to be liable for it. MNX v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability? The discussion at [52] – [58] is worth setting out in full. In 2006 a majority of the High Court of Australia (HCA) followed the lead of many other jurisdictions and held that ‘wrongful life’ claims were not possible under the common law of Australia. [194]. His Given the complex legal issues involved and wrongful birth claims fit within the relative finality of a 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). conception, intra-uterine development and birth may permit this 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. Mrs Melchior had decided that she wanted no more children. The leading Australian decision on wrongful birth claims, Cattanach v Melchior[i], arose from a sterilisation procedure. The respondent should not bear legal responsibility for it. 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. The High Court case of Masson & Parsons & Ors, Child dies after home birth: the importance of educating parents on the risks of non-hospital births, What's in a name? the judgment focused on the fact that the child had two separate 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. decision of Meadows v Khan, where a trial judge was 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. accordingly. incidents of conception, intra-uterine development and birth. costs of raising a child have been merely accelerated, if the at the time of insertion. Wrongful life occurs where an unplanned disabled child owes his veryexistence to medical negligence: had the negligence not occurred, the childwould never have been born. 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