On 13 August 2015, the New South Wales Court of Appeal handed down its decision in Waller v James,1 a 'wrongful birth' claim.

The Court dismissed the parents' appeal, confirming the trial judge's findings that, while there was a breach of duty, causation was not established.

This decision provides important guidance to clinicians and their insurers concerning how far a clinician's duty to a patient can extend. In addition, its examination of causation principles will assist in the analysis of causation in both 'wrongful birth' and medical negligence claims more broadly.


Mr and Mrs Waller consulted Dr James, a gynaecologist with a sub-speciality in IVF and infertility, to assist them to conceive a child through IVF. Mr Waller suffered from anti-thrombin deficiency (ATD). Dr James was made aware of this.

Dr James referred the parents to a genetic counsellor, by providing them with a name and contact number on a post-it note. The parents made one unsuccessful attempt to telephone the counsellor. Dr James did not follow up with the parents as to whether they had consulted with the counsellor.

The parents successfully conceived, however, their child was born with ATD. Four days after birth, the child suffered a cerebral sinovenous thrombosis (CSVT), a type of stroke, causing significant disabilities.

At first instance

The alleged negligent conduct pre-dated the introduction of the Civil Liability Act 2002 (NSW) and accordingly, the case was decided under the common law principles of negligence.

The trial judge found that Dr James owed a duty of care to the parents to ensure that they were adequately informed and understood the hereditary aspects of ATD, including the purpose of the referral to the genetic counsellor. This duty was found to have been breached.

However, the harm suffered, being the economic loss associated with raising the child and physical injury, including psychological damage, was not within the scope of Dr James' duty of care. Therefore, the damage claimed by the parents was not a reasonably foreseeable consequence of the breach by Dr James.

Importantly, the trial judge disagreed with the parents' contention that the child's ATD caused or materially contributed to his stroke.

More information on the trial judge's decision is available in Issue 3 of our health law publication, Pulse, in the article: NSW Supreme Court denies $10m ‘wrongful birth’ claim.

On appeal

The parents' appeal primarily focussed on the trial judge's findings concerning the scope of duty, breach of duty and remoteness of damage. They did not challenge the finding that the child's CSVT was not causally related to his ADT.

The Court unanimously found that:

  • the parents' right to plan their family by choosing when to have a child was an interest which, if infringed, could give rise to a claim for economic loss;
  • Dr James' duty of care extended to providing information to the parents concerning the importance of seeking genetic counselling, and this duty was breached. (Note that Beazley P thought it was arguable that the failure to follow up with the parents to ensure they had sought genetic counselling would constitute a breach, although Ward JA disagreed);
  • the trial judge was correct to conclude that the provision of a referral to a genetic counsellor by way of a post-it note was not a breach of duty;
  • although factual causation was established, it was not appropriate for Dr James' liability to extend to all the harm suffered as a result of the child's birth. This was because the unacceptable risk which the parents sought to avoid was having a child with ADT, not the general risks of childbirth, which included the risk of CSVT; and
  • even if the above causation finding was not correct, the parents' claim still would have failed because the harm was too remote; the parents were willing to accept the risks of pregnancy, therefore the harm did not come within the scope of risk created by the breach of duty.

Accordingly, the appeal was dismissed. As the appeal was dismissed, no consideration was given to the assessment of damages.


This decision illustrates that a clinician's duty to a patient can extend to the provision of information concerning the reason for and importance of a referral to a clinician in another field. Arguably, it may also extend to follow up. Accordingly, prudent clinicians should ensure that they adequately explain the purpose of a referral to their patients and follow up with them to ensure that they have acted upon the referral.

The decision also suggests that in 'wrongful birth' and medical negligence cases involving a failure to inform/warn, a patient must establish that there was a failure by the clinician to protect the patient from the occurrence of physical injury, the risk of which was unacceptable to them. If the unacceptable risk comes to pass but does not actually cause the patient any loss, the patient's claim will not succeed.