High Court disagrees that relevant risks are sufficiently linked for causation purposes in 'wrongful birth' claim

Insurance eBulletin - 18 February 2016


The parents in Waller v James, a 'wrongful birth' claim, filed an application for special leave to appeal to the High Court of Australia after failing in the New South Wales Court of Appeal.

On 12 February 2016, that application was heard and the High Court refused special leave, finding that there was no reason to doubt the correctness of the Court of Appeal's decision.

Submissions focussed on whether the risk which was unacceptable to the parents and the risk which materialised were linked, such that causation was established.


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Waller v James is a 'wrongful birth' claim brought by the parents of a child who suffered a stroke after birth causing significant disabilities. The father suffered from anti-thrombin deficiency (ADT). Prior to assisting the parents to conceive a child through IVF, their gynaecologist, Dr James, referred them to a genetic counsellor because of the father's ADT. This referral was not acted upon by the parents and the child was born with ADT.

At first instance in the New South Wales Supreme Court, the parents contended that the child's ADT caused or materially contributed to his stroke, however, this was not accepted by the Court. The trial judge also found that while Dr James had breached his duty of care to ensure that the parents understood the purpose of the referral to the genetic counsellor, the harm suffered was not within the scope of his duty of care and the damage claimed was not a reasonably foreseeable consequence of the breach.

The parents appealed to the New South Wales Court of Appeal. The finding that the child's stroke was not causally related to his ADT was not challenged on appeal. The Court agreed that while there had been a breach of duty, 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 stroke.

We have previously written about both of these decisions. More information on the Supreme Court decision can be found here and on the Court of Appeal decision here.

After failing in the Court of Appeal, the parents filed an application for special leave to appeal to the High Court of Australia. The application was heard in Sydney on 12 February 2016 before her Honour Justice Bell AC and his Honour Justice Keane AC. The High Court has now published the transcript from the hearing which can be found here.


Applicants' submissions

The parents submitted that there were two main risks which they faced when deciding whether to proceed to conceive a child by IVF under the supervision of Dr James. Firstly, that the child would have ATD (ATD risk) and secondly, that the child would have a stroke (stroke risk).

In the Supreme Court and Court of Appeal, the ATD risk was considered to be a risk which was unacceptable to the parents. However, the stroke risk, which was the risk which materialised, was considered to form part of the general risks of pregnancy, which were accepted by the parents.

It was submitted that the ATD risk and the stroke risk were relevantly linked, because both involved the potential for significant disabilities, and that the parents were not willing to accept both risks, as had they known about the ADT risk, they would not have accepted the general risks of pregnancy.

It seems that in seeking to link the ADT risk and the stroke risk, the parents were endeavouring to overcome the potential obstacle posed by the decision of Wallace v Kam, which established that in cases involving a failure to warn, the risk which is unacceptable to the patient and the risk which materialises must be one and the same.

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Respondent's submissions

Dr James submitted that the parents were seeking to run the ADT risk and stroke risk together when they were in fact distinct. The two risks were different in kind and occurred at different times (ADT becomes symptomatic in adulthood, whereas the stroke was suffered four days after birth).

Further, there was evidence in the Supreme Court and Court of Appeal that the parents had accepted the general risks of pregnancy, despite their assertion otherwise during the hearing.

It was submitted that while factual causation was established in this matter, this was not enough. The issue was legal responsibility, as considered in Wallace v Kam. It was not part of Dr James' duty to warn about the stroke risk and the materialisation of this risk was simply a tragedy. Accordingly, causation was not made out.


High Court's position

The High Court refused special leave with costs. In coming to this decision, it appears to have accepted that the ADT risk and stroke risk were sufficiently distinct such that, applying Wallace v Kam, normative causation or the 'scope of liability' element of causation could not be established.



In refusing special leave, the High Court has effectively endorsed the Court of Appeal's findings concerning causation and also reaffirmed the importance of Wallace v Kam to causation questions in failure to warn cases. Accordingly, consistent with the principles in Wallace v Kam, it remains the case that the risk which is unacceptable to the patient must be the risk which eventuates.

The decision means that unfortunately, there will be no consideration by the High Court of the assessment of damages in these types of claims, which remains a contentious issue.

While this case has come to an end, given the potential for 'wrongful birth' claims to increase with advancements in medical technology, we will continue to watch this space with interest.

Hayley Marano, Senior Associate

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Further information

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