Where's Waller?

12 April 2016

On 12 February 2016 the High Court refused special leave to appeal from the decision in Waller v James [2015] NSWCA 232, which had been the subject of our previous health insurance review.


In short, the Court of Appeal had found that by reason of the respondent’s breach of duty, Mr and Mrs Waller had proceeded to IVF without accepting the risk that the child would inherit anti-thrombin deficiency (ADT). While this risk in fact materialised, the Court held it was not the cause of the harm suffered. Rather, baby Keeden’s disabilities were the result of a stroke, a general risk of any birth, which had been accepted by the parents. 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.


It was submitted by the appellants that the risk of ADT and the risk of stroke were linked, because both involved the potential for significant disabilities, and because had Mr and Mrs Waller known about the ADT risk, they would not have accepted the general risks of pregnancy.

If accepted, this argument would have likely satisfied the Wallace v Kam test, which requires 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.

The respondent disputed this attempt to aggregate the risks, pointing out that in Wallace v Kam the High Court had maintained a distinction between the closely related risks of temporary nerve damage and permanent paralysis.  It was submitted that the risk of stroke was a tragic accident, no different than if Keeden had been injured in the car on the way home, such that legal responsibility should not be attributed to Dr James.

In refusing special leave, the High Court has effectively endorsed the Court of Appeal’s findings with respect to causation.

Although the case pre-dated the Civil Liability Act 2002 (NSW), it demonstrates the way in which the Courts might apply sections 5D(1) and (4) of the Act in determining causation, and the normative considerations that can properly be considered in determining whether or not and why responsibility should be imposed. Other normative considerations may include arguments as to whether or not a subsequent negligent act broke the chain of causation, so as to sever the initial negligent conduct from the harm suffered by the plaintiff.

This article was written by Brit Mainhoff, Partner and Jacqueline Wilmott, Solicitor.

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