Reasons to choose Wilson Browne
This recent appeal concentrated on the aspect of the Defendant’s duty of care which should be provided to all, and how to apply this duty as an approach in clinical negligence cases.
In summary, the Claimant, in this clinical negligence case, consulted her GP when pregnant as she wanted to establish whether she had the haemophilia gene as she wanted to avoid having a child with haemophilia.
Blood tests could not establish whether her unborn child was also a carrier of this gene and further testing was required for the Claimant. The Claimant underwent further testing and was advised that the results appeared to be normal and she was led to believe she was not a carrier and thus her child would not be either.
The Claimant thereafter gave birth to a son who tested positive for the haemophilia gene and had autism. There was not a dispute between the parties that had appropriate genetic testing been performed, this would have revealed the baby’s haemophilia gene earlier in the pregnancy and the Claimant would have terminated the pregnancy.
The Defendant admitted liability for the wrongful birth of the child with haemophilia but denied liability in respect of the autism aspect of the claim. The High Court originally held that the Defendant was liable for both aspects however the Defendant appealed this judgment.
The question of the appeal was whether the Defendant should be liable for the autism even though this was an unrelated health issue.
The judgment of this appeal considered the question of “what would the Claimant’s loss have been if the information which the Defendant in fact gave, had been correct?” The Court considered the attributable damages as being different in comparison to the but for argument.
The Court further considered the reason for the Claimant’s attendance at the GP was to establish whether her unborn child would have the haemophilia gene and therefore any unrelated health issues could not be found to be as a result of negligence, i.e the autism.
Applying the South Australia Asset Management Corp v York Montague Ltd (1997) [SAAMCO] principle regarding the scope of the Defendant’s duty to this case concluded that the Claimant’s child would have been born with the condition of Autism irrespective of the Defendant’s involvement in the information provided to the Claimant.
The judgement confirmed that “in the context of this case the development of autism was a coincidental injury and not one within the scope of the appellant’s duty.” Thus, the damages in respect of the autism aspect of the case, the appeal was allowed.
This judgment is an important one for all clinical negligence practitioners as it analyses the importance of the scope of the Defendant’s duty of care when applied where Defendant’s provide information to Claimant’s about risks and in particular, consent cases.
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