Background
As a result of a genetic abnormality, Ms Waine suffered a miscarriage in April 2017. Later that year, she became pregnant again but terminated the pregnancy in October 2017 due to the presence of the same genetic abnormality. To bring some joy back to her life, she booked a cruise with her family from Sydney to Noumea, New Caledonia in April 2018 with Carnival.
Shortly before the cruise, Ms Waine became pregnant. She obtained medical clearance to continue with the cruise and boarded on 3 April 2018 at 15 weeks gestation. After boarding, Ms Waine experienced some spotting and attended on the ship’s doctor, Dr Pretorius on 4 April 2018, who diagnosed a scratch on her cervix, attributed to sexual intercourse.
After her spotting continued, an ultrasound was arranged offshore in Noumea on 6 April 2018. The ultrasound revealed a non-viable foetus. Ms Waine spoke with Dr Pretorius via telephone the same day and alleged that she was not provided any medical advice regarding risks related to her miscarriage or any options for future treatment.
Carnival arranged for Ms Waine and her family to return to Australia via Auckland. Whilst in Auckland Airport on 7 April 2018, Ms Waine suffered heavy bleeding and discharge of the products of conception. She was hospitalised for two days and required a blood transfusion.
The primary issues were:
- whether on 4 April 2018, Dr Pretorius diagnosed a threatened miscarriage, recommended an urgent ultrasound and warned Ms Waine of risks associated with a miscarriage including severe and uncontrolled bleeding which could occur suddenly; and
- whether on 6 April 2018, Dr Pretorius had a duty to and did discuss with Ms Waine options for future treatment, namely advising of the risks and appropriateness of:
- staying in Noumea until the products of conception were discharged naturally;
- hospital treatment in Noumea, including a dilation and curettage or oxytocic treatment; or
- travelling home urgently to Australia.
Carnival accepted there was a duty of care owed to Ms Waine but denied any breach or that any conduct of Dr Pretorius caused damage.
Outcome
Breach of Duty of Care
Taylor SC DCJ held that Dr Pretorius gave no advice or warnings to Ms Waine regarding the risks of bleeding, infection or the loss of her baby, nor about the risks of travel or options for future treatment, in the context of her incomplete miscarriage.
The duty imposed on Dr Pretorius was:
- on 4 April 2018, to advise Ms Waine of the possibility and risks of miscarriage, including severe bleeding, infection and loss of child, and identify a management plan, including an urgent ultrasound and facilitation of her removal from the ship, if necessary; and
- on 6 April 2018, to advise Ms Waine of the risks of complications if she were to fly with an incomplete miscarriage and discuss the options identified at subparagraphs 2.1 to 2.3 above with a proper explanation of the risks and benefits of each option.
Dr Pretorius in failing to advise Ms Waine of the above, failed to act in accordance with competent professional practice, and therefore breached the duty of care owed to Ms Waine.
Causation
Taylor SC DCJ found that the breach of duty on 4 April 2018 had no impact on Ms Waine’s movements and would not have resulted in her returning to Australia prior to 7 April 2018. Therefore, this breach was not causative of any harm.
However, appropriate advice on 6 April 2018 could have postponed her decision to return to Australia and therefore prevented Ms Waine from travelling to Auckland, where she had a miscarriage in an uncontrolled environment, that subsequently caused her psychological harm.
The evidence indicated that Ms Waine would have followed appropriate medical advice to attend for hospital treatment and that she was not opposed to attending Noumea for that treatment. This was supported by her previous hospital attendances for her prior miscarriages.
In effect, Ms Waine’s decision to return to Australia was uninformed. On the balance of probabilities, the risks associated with travel with an incomplete miscarriage, were risks she would not have accepted.
Ultimately, Taylor SC DCJ found that Dr Pretorius’ negligence on 6 April 2018 was a necessary condition of the harm because if appropriate advice had been given to Ms Waine, she likely would have made the decision to have treatment in Noumea and chosen not to travel on 7 April 2018. Accordingly, she would not have travelled back to Australia on 7 April 2018 and would have avoided the discharge of the products of conception in Auckland Airport (or some other uncontrolled environment), which caused her psychological harm.
Judgment was entered for the Plaintiff in the sum of $326,122.00, including $162,000.00 for general damages.
Implications
The assessment of breach and causation in claims of this type can be complex. Here, the inadequate medical advice of Dr Pretorius did not cause Ms Waine to have a miscarriage, but rather led to the circumstances in which the miscarriage occurred, which caused her damage, namely psychological harm.
Whilst this appears to broaden the scope of the duty of care imposed on practitioners, especially those with limited resources and access to treatment (when working on a cruise ship), practitioners should be aware that each case turns on its own facts. The findings in this case may not necessarily be upheld in different circumstances.
To read the decision in Waine v Carnival PLC t/a P&O Cruises Australia [2022] NSWDC 650, click here.
