Most people assume a claim against a fertility clinic must be a negligence claim. Often there is a second route, and in some cases a better one.
Private IVF is a service you paid for
The Australian Consumer Law applies to services supplied in trade or commerce to a consumer. Private fertility treatment is paid for, provided commercially, and bought by an individual — which brings the statutory consumer guarantees into play alongside the ordinary law of negligence. Two matter here:
- Section 60 — due care and skill. A guarantee that the services will be rendered with due care and skill.
- Section 61 — fitness for purpose. Where you made a particular purpose known and relied on the provider's skill or judgement. This is more constrained in a medical setting, because no clinic guarantees a baby — but it can matter where a specific service, such as correctly storing an embryo, plainly had one purpose.
The consent form does not sign these away
This is the part that surprises people. Fertility treatment involves lengthy consent documents, and patients reasonably assume that signing them closes off any complaint.
The consumer guarantees cannot be excluded, restricted or modified by contract — s 64 of the Australian Consumer Law says so directly. A consent form can record that you accepted a disclosed clinical risk. It cannot relieve a clinic of the obligation to provide the service with due care and skill.
Why the route can be worth taking
Two reasons.
The first is remedies. A breach of a consumer guarantee gives rise to statutory remedies in its own right, without the claim having to be framed as negligence.
The second is more technical and, at present, untested. The Competition and Consumer Act 2010 (Cth) restricts damages for personal injury in Part VIB — but s 87E limits Part VIB's operation to proceedings relating to particular Parts of the Australian Consumer Law, and the due care and skill guarantee is not in any of them. Commentators have therefore argued that the Part VIB restrictions do not apply to an s 60 claim, which would leave damages closer to a full contractual measure as modified by state law.
This argument has not been decided by an Australian court in a treatment case. It is a genuine argument, advanced by serious commentators, and it may well be right. It is not a settled position, and nobody should assume the outcome. It should be weighed, not relied on.
Where a consumer claim is heard
A consumer claim can often be brought in a tribunal rather than a court. In Victoria that is VCAT, which is designed to be lower-cost and less formal. For a claim of modest value — which many fertility claims are — that can be the difference between a claim being worth running and not.
The honest limits
- The due care and skill standard is not obviously easier to satisfy than the negligence standard; you still have to show the service fell short.
- Causation still has to be established.
- The damages argument above is untested, and a clinic will contest it.
- Different limitation rules may apply to a consumer claim than to a negligence claim, and the interaction is not straightforward.
Which route is better is a matter for advice on your particular facts. Often the answer is to plead both.
See also IVF and fertility clinic claims and Time limits for IVF and fertility claims, or start a free assessment.