On this occasion the defendant sought the to have the the blood taken from the plaintiff for the Guthrie test by the Newborn Screening Department at the Children’s Hospital at Westmead for pre and post- natal congenital infections and conditions including cytomegalovirus.
Adamson J made the order sought by the defendant, noting at :
Whether the risk of CMV infection ensued and caused the plaintiff’s condition is plainly relevant to the principal remaining issue in the proceedings. Although the plaintiff bears the onus on causation on the balance of probabilities (s 5E of the Civil Liability Act 2005 (NSW)), the evidence would appear to provide a basis for the hypothesis that trauma was at least a possible cause. The evidence of at least one expert elevates the prospect to a likelihood. Although the question of causation is a legal one and not to be determined by the expert evidence alone (Seltsam Pty Ltd v McGuiness  NSWCA 29; 49 NSWLR 262 at  per Spigelman CJ), such evidence is highly significant in the present case.