Last Thursday, the NSW Court of Appeal dismissed an appeal against Justice Hislop’s decision in Waller v James [2013] NSWCA 497.

Causation is often an issue in medical negligence cases and this was no different. The appellants established that the respondent had breached his duty of care to them but they failed on causation.

The facts

The appellants are the parents of Keeden Waller who was conceived through in vitro fertilisation treatment coordinated by the respondent, Dr Christopher James. Keeden was born with anti thrombin deficiency (ATD) which he genetically inherited from his father. Four days after his birth, Keeden suffered an extensive sinovenous thrombosis, a form of stroke (Stroke). As a result, Keeden is, and will remain profoundly disabled and require care for the remainder of his life.

The appellants alleged that the respondent was in breach of contract and breached his duty of care by having failed to inform them, or cause them to be informed, of the hereditary aspects of ATD. They contended that, but for this, they would have deferred undergoing the IVF procedures until they could do so without having a risk of a child with ATD, and as a result of that deferral, they would not have had a child who suffered a stroke. The appellants’ claim included a claim the costs of raising Keeden.

The lower court decision

In the Supreme Court trial, Hislop J gave judgment for the respondent, finding that although he had breached his duty of care to ensure that the appellants were informed of information relating to the inheritability of ATD, causation was not made out because the scope of his duty did not extend to the harm suffered, and that the loss was too remote.


On appeal, it was not contested that Keeden’s ATD was not causally related to the occurrence of the Stroke. They were two separate things.

Beazley P gave the leading judgment with which the other two judges agreed.

The finding in the lower Court that the respondent had breached d his duty of care was not disturbed.

On the subject of loss, whilst it can be said that ‘but for’ the negligence of the respondent Keeden would not have been born, Beazley P cited extensive case authority affirming that the ‘but for’ test is not sufficient proof of legal causation in the circumstances of a case such as this. Beazley P (and Ward JA) distinguished this case fromCattanach v Melchior, a case in which the plaintiffs were successful in recovering the costs of raising a child following a failed sterilisation. In that case, it was an unwanted pregnancy. The plaintiffs had wanted to avoid the ‘legal and moral responsibilities’ associated with it.

In his judgment Beazley P said ‘In this case, the unacceptable risk that the appellants were not willing to bear was having a child with the inherited condition of ATD.’ There was, however, he said no loss caused by the ATD. The loss was caused by Keeden’s stroke which was coincidental but unrelated to his ATD.

The appellants therefore failed to establish that their loss was caused by the respondents breach of duty and so the appeal was dismissed.

Had the appellants succeeded, the NSW Court of Appeal would have been required to identify exactly what costs associated with raising Keeden the appellants would have been entitled recover. In ‘wrongful birth litigation’ exactly what costs of raising a child with disabilities are recoverable, and whether costs incurred in adulthood and, if so, for how long into adulthood, are vexed questions familiar to medical negligence litigators and which, to date, remain unresolved.