The New South Wales Court of Appeal today dismissed (by majority) an appeal in the matter of King v Western Sydney Area Health Service [2013] NSWCA 162.

The matter arose from an alleged failure to advise a pregnant woman (the mother) who was at risk of developing “chicken pox” when pregnant, of the availability of VZIG and its potential beneficial effects. The central issue on appeal was not the breach of duty but rather the trial judge’s findings as to whether the mother would have developed the illness in any event.

Of particular interest was the appellant’s causation argument at [143], asserting that the breach of duty gave rise to an increased risk, which came home. Hoeben JA considered but rejected that argument at [145] – [152], noting that there are real difficulties in applying the “but for” test to the concept of “increase in risk”.

The appellant at [153] sought to call upon the exceptional case causation alternative provided by section 5D(2), however that alternative was not argued at the trial and seems not to have been strongly pressed. At [155] Hoeben JA (with Ward JA agreeing) observed:

As the discussion in Strong v Woolworths Ltd makes clear, the application of s5D(2) involves an examination of the Ipp Report, an analysis of the causation issues discussed by Professor Stapleton and the application of normative considerations to circumstances which may or may not constitute “an exceptional case”. The normative considerations may require the adducing of evidence. Where it is intended to ask this Court to embark upon such an inquiry, the matter needs to have been raised at trial and the Court is entitled to the benefit of full argument. It follows that this Court should not undertake an inquiry as to the application of s5D(2) CLA in these circumstances.

Conversely Basten JA (in the minority) commented at [34]:

Upon this reasoning, the present case falls within s 5D(1)(a) of the Civil Liability Act, “factual causation” having been established. In the alternative, it might be thought that a case involving the elements to which reference has been made, but lacking a sufficient empirical basis for reaching a conclusion about the effectiveness of a recommended treatment, fell within s 5D(2) as an exceptional case of the kind illustrated by Bonnington Castings Ltd v Wardlaw [1956] AC 613, referred to in Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 at [24]-[27]. At trial, it was said that the plaintiff eschewed reliance on s 5D(2). However, like the relationship between duty, content and breach, questions of factual causation and scope of liability, as separately identified in s 5D, do not readily fall into separate and independent watertight compartments. Valuable as it is to separate the “factual” and “policy” elements of causation, the separation is, to an extent, an artefact. It would be a triumph of form over substance to deny the plaintiff recovery on that basis.

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