Australia: Wrongful birth may give rise to damages for life

Last Updated: 11 February 2012
Article by Kristina Fox and Joanna Burton

Wrongful birth cases include claims made by the parents of a child with a congenital disorder alleging that their doctor failed to adequately warn them of the risk of conceiving a child with a serious genetic disorder or congenital abnormality.

A claim for wrongful birth brought by the parents of Keeden Waller is currently before the New South Wales Supreme Court. Mr and Mrs Waller are reportedly seeking $10 million in damages, including damages for the cost of caring for their son Keeden (who is disabled and suffers from anti-thrombin III deficiency1), and for nervous shock. The defendant, Dr James, provided IVF treatment to Mrs Waller that lead to the conception of Keeden.

The Wallers had experienced difficulty conceiving a child and were referred to Dr James by a medical practitioner. In the referral letter, Dr James was informed about Mr Waller suffering from anti-thrombin III (AT3) deficiency "...which caused...[Mr Waller's] blood to have a propensity to clot"2. Dr James organised for Mr Waller to undergo a number of tests, none of which according to the Wallers were "...designed to elucidate anything about the deficiency, its genetic basis, or its transmissibility to any child who he might father". The Wallers accepted Dr James' advice to undergo IVF treatment. Keeden was born on 10 August 2000. On 15 August 2000, Keeden suffered a stroke causing permanent brain damage resulting in the need for lifetime care and treatment. The Wallers allege that Keeden's stroke was caused by his AT3 deficiency, a hereditary disorder he acquired from Mr Waller.3

This is not the first occasion that a Court has had to consider the circumstances surrounding Keeden's birth. In 2006 the High Court dismissed Keeden's wrongful life case.4

The Wallers allege that Dr James failed to investigate and advise of the AT3 condition and as such they were "...deprived of the opportunity of understanding the possibility of the transmission of it..." to Keeden. Had the Wallers been advised of such a risk they say that they would have either:

  1. deferred the IVF process until such time as methods were available that allowed "...only embryos without the AT3 deficiency..." to be transferred;
  2. used a sperm donor; or
  3. terminated the pregnancy.5

The outcome of the case is keenly anticipated by medical practitioners and their insurers and more particularly IVF specialists with regard to the scope of the duty that they owe to fully inform patients of the risk of genetic disorders.

The Wallers' alleged cause of action predates the introduction of tort law reform legislation. The Wallers are not therefore constrained by provisions of the NSW Civil Liability Act 2002 (the CLA) which restrict a plaintiff's ability to make a wrongful birth claim.

Part 11 of the CLA deals with damages for the birth of a child. Section 71 provides:

"71 Limitation of the award of damages for the birth of a child

  1. In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:
    1. the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or
    2. any loss of earnings by the claimant while the claimant rears or maintains the child.
  2. Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability."

The purpose of the provision is to exclude claims for damages for the costs associated with raising a healthy child, but to allow such claims for disabled children. Lost earnings which result from raising a disabled child are however still excluded.

The situation differs between the States. There is for example no identical provision in the Queensland Civil Liability Act 2003. Sections 49A and 49B of the Queensland Act exclude the costs associated with raising a healthy child, but only in relation to a child born as a result of a failed contraceptive or sterilisation procedure, not an IVF procedure or antenatal negligence.

Wrongful birth cases are typically complex by the time they get to trial, involving detailed causation arguments and rather complex issues in the assessment of damages. Generally, wrongful birth cases frequently arise in the context of failed sterilisation or failed contraception procedures. The Wallers' case is unique in that it involves a procedure designed to promote the birth of a child, which will give added complexity to the liability issues which the court has to consider.


1 Congenital anti-thrombin III deficiency is a condition where the individual inherits a defective gene. The condition involves an increased risk of clots forming in the blood vessels. See
2 Waller v James; Waller v Hoolahan [2006] HCA 16 [52]
3 Ibid [53-54], [59-60]
4 A wrongful life case is one where a medical practitioner or health care organisation is sued by a severely disabled child (not the parents) for failing to prevent that child's birth.
5 Waller v James; Waller v Hoolahan [2006] HCA 16 [61], [16].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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