Wrongful birth causation: Special leave refused

Justice Bell & Justice Keane this morning heard oral submissions in support of an application for special leave to appeal, made by Mr & Mrs Waller in the matter of Waller v James.

Special leave was refused, the Court remarking that there was no reason to doubt the correctness of the Court of Appeal decision. The normative causation issues in Wallace v Kam were the subject of much discussion during the application.

The Court of Appeal decision per Beazley P, McColll & Ward JJA encompassed:


(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].

Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Fox v Percy [2003] HCA 22; 214 CLR 118.

(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].

Hunt & Hunt Lawyers v Mitchell Morgan Nominees [2013] HCA 10; 247 CLR 613; Cattanach v Melchior[2003] HCA 38; 215 CLR 1.

(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].

Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40; Gover v South Australia & Perram (1985) 39 SASR 543.

(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].

Cattanach v Melchior [2003] HCA 38; 215 CLR 1; Wallace v Kam [2013] HCA 19; 250 CLR 375; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870; Moyes v Lothian Health Board 1990 SCT 444; [1990] 1 Med LR 463; Kenny and Good v MGICA [1999] HCA 25; 199 CLR 413; Wallace v Kam [2012] NSWCA 82;[2012] Aust Torts Reports 82-101; Barnes v Hay (1988) 12 NSWLR 337; Henville v Walker [2001] HCA 52;(2001) 206 CLR 459; Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167.

(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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