Wrongful birth claim, care damages and normative causation: Neville v Lam

Neville v Lam (No 3) [2014] NSWSC 607, a decision published today, concerned a claim arising from a pregnancy and the birth of a child (suffering disabilities) in mid 2006.

The defendant had performed endometrial ablation for treatment of severe menorrhagia. The claimant asserted that she believed, after that procedure in 2004, that she could no longer fall pregnant and therefore did not pursue contraceptive or sterilization treatments. She argued that the defendant had a duty to inform her that she  could still fall pregnant, as she later did.

At [140], the court was not persuaded that the defendant failed to make the claimant aware that she could still fall pregnant. Accordingly there was no breach of duty.

Claim for costs of voluntary care or loss of wages while providing care

The trial judge went on to make some obiter comments in relation to wrongful birth damages. Most significant is the remark at [161] that the judgments of at least five members of the High Court in Cattanach v Melchior preclude recovery for the cost or value of voluntary care provided to a child in such cases.

See also [162], to the effect that as such a claim for care is not analogous to Griffiths v Kerkemeyer, the decision CSR v Eddy would preclude its recovery.

An alternate claim by the parents for loss of income whilst providing such care was noted at [163] as not to be available in New South Wales, by virtue of section 71 Civil Liability Act 2002 (NSW).

Normative causation

The trial judge went on to deal with causation issues, in particular a normative causation / scope of liability argument that the defendant should not bear legal responsibility for all the reasonable financial costs of raising that arise from his disabilities, which were congenital in nature, unrelated to the defendant’s treatment.

The Court did not accept the defendant’s argument, holding at [194]:

At the risk of repetition the relevant harm was the financial costs consequent upon an unwanted pregnancy. The foreseeable outcomes of a pregnancy include the birth of twins or triplets, or the birth of a child born with a physical, emotional or intellectual deficit or disability. No child is perfect and many children have some form of special need. Samuel maybe at the end of that spectrum but, as noted in Parkinson, one reasonably foreseeable outcome of pregnancy was the birth of a child with congenital defects (even if the particular congenital defect in question may be rare). To distinguish between the cost of raising a “healthy” child and the cost of raising a child born with congenital defects in the causation context of this case is to confuse the distinction between the foreseeability of the type or kind of loss, and the inability to foresee the extent of the loss. 



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