Issue 37 / 28 September 2015

A RECENT appeal case in the Supreme Court of NSW has shed some light on the complex and often confusing area of legal causation.
The case involved Keeden Waller, who was born in 2000 and tragically at 5 days old suffered a cerebral sinovenous thrombosis (CSVT) leaving him permanently and significantly disabled. Keeden was conceived as a result of an in vitro fertilisation (IVF) procedure coordinated by IVF specialist Dr Christopher James.
His father Lawrence Waller had antithrombin deficiency (ATD), a genetic condition that increases the risk of thrombosis. Mr Waller and his wife were concerned that the ATD may have been the cause of their infertility problems, so Dr James referred them to a genetic counsellor but failed to follow up with them that they had sought counselling.
The court found that Dr James failed to explain the reasons for the referral and therefore had breached his duty of care to the Wallers.
However, the interesting aspect of the case is the court’s comments on causation.
Causation at law is complex and often confusing — even to lawyers. It is not the same as scientific causation, but is a means of allocating legal responsibility for harm.
In a claim of negligence against a doctor, even if a patient is able to prove that a doctor breached their duty of care, the case will not be successful if they cannot show that the breach legally caused harm.
There are two aspects to causation — “factual” causation, which considers how the harm occurred, and whether liability should be imposed.
In this case, the Court of Appeal upheld the trial judge’s finding that causation was not proven. Although factual causation was established — if properly informed, the Wallers would have elected not to have proceeded to IVF at that time and so would not have had their child — legal causation was not.
As explained in an earlier High Court decision on causation, the rationale for a doctor’s liability in negligence is “to protect the patient from the occurrence of physical injury, the risk of which is unacceptable to the patient”.
In this case, the risk the Wallers were seeking to avoid was having a child with the inherited condition of ATD. However, the harm the child suffered was not from ATD but from the CVST. The court found that, based on the expert evidence, this was coincidental and unrelated to the inherited ATD.
The Wallers had been prepared to accept the ordinary or inherent risks of pregnancy, including the rare risk of CVST. Thus the court found that there was no “causal link” between the doctor’s breach and the Waller’s loss.
This case is one of a line of recent court decisions, including the High Court decision and another NSW case involving treatment of an aneurysm, where the scope of a doctor’s liability in negligence has been clarified.
This latest case confirms that the courts will not attribute legal responsibility in all cases where a doctor has breached their duty of care to the patient, and liability will not extend to harm from risks that the patient was willing to accept.
There is no argument that, as noted by one of the Court of Appeal judges, “the catastrophic injuries and disabilities suffered by Keeden shortly after his birth must have been nothing short of a tragedy … such an outcome must be every expectant parent’s nightmare”.
The Wallers are not alone. Australian Bureau of Statistics data show that in 2009 more than half (57%) of all children with a disability had a profound or severe disability. Ensuring access to necessary support services was noted to be an ongoing issue for government and disability advocacy groups.
Until recently, options for parents of disabled children to obtain an adequate level of care and support were limited, and this led some of them on a pathway through the courts.
The Waller case also illustrates the importance of having an effective and well funded long-term care and support scheme for people with disabilities — the National Disability Insurance Scheme — to ensure they do not have to resort to expensive litigation involving technical legal arguments as a way of obtaining the care and support they need.
Nicole Kroesche is practice manager of Claims at Avant. Georgie Haysom is the head of Advocacy at Avant.

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