Wrongful birth appellate decision: Causation issues

Waller v James [2006] HCA 16 previously came before the High Court, when brought by the child as a wrongful life matter. Later a wrongful birth claim by the parents was determined by Hislop J: Waller v James [2013] NSWSC 497. The claim pre-dated the Civil Liability Act 2002 (NSW).

The plaintiffs’ claim failed on a causation point, leading to an appeal heard in mid-2014, the judgment on which was published today: Waller v James [2015] NSWCA 232.

The appeal and was dismissed (Beazley P, McColl JA, Ward JA). The Court of Appeal did not interfere with the trial judge’s factual findings nor his characterization of the breach of duty of care as a failure to explain to the parents the reason for a referral to a genetic counsellor.

The Court held that the stroke suffered by the child was coincidental, a normal risk of pregnancy and so not within the scope of risk created by the doctor’s breach of duty.

Damages issues were not considere, given the findings.

The headnote reads:

(1)   There was no error in the factual findings challenged by the respondent. Appellate restraint was warranted in relation to those findings which were made by reference both to matters subjective to the witnesses and the objective circumstances. [62]-[71].

(2)   The appellants’ right to plan their family by choosing whether and when to have a child was an interest the infringement of which could give rise to a claim for economic loss. [129]-[130].

(3)   The respondent’s duty of care extended to the provision of information to the appellants relating to the importance of seeking genetic counselling and arguably to following up with the appellants as to whether they had done so. [131]-[137], [235]-[238].

Wallace v Kam [2013] HCA 19; 250 CLR 375; Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 75 NSWLR 649; Tame v New South Wales [2002] HCA 35; 211 CLR 317.

(4)   The provision of a referral to a genetic counsellor by way of a post-it note did not constitute a breach of duty in the circumstances of this case. Rather, as the trial judge found, the respondent’s breach was in failing to adequately explain the reason for the referral. [138]-[144].

(5)   The harm suffered by the appellants, being that consequent on Keeden’s CSVT, was not causally connected to the breach by the respondent of his duty of care, as the CSVT was coincidental, for legal purposes, to the inheritance of ATD, and the risks of each should not be accumulated. [185]-[195], [226]-[233], [239]-[252].

(6)   The risk of Keeden suffering a stroke was not a risk of the same kind as being born with ATD but was encompassed within the normal risks of pregnancy and IVF that the appellants were willing to accept. In those circumstances, the harm suffered as a result of Keeden’s stroke was not within the scope of the risk created by the respondent’s negligence and was not relevantly foreseeable, and it was therefore too remote to be recoverable. [208]-[210], [239].

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