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How to lose even if you “win”

In order to recover damages in Personal Injury matters a plaintiff must establish:

  1. That the defendant breached the duty of care he or she owed to the plaintiff.
  1. That the breach of duty of care has caused harm. This is known as causation.


The concept of causation is simple in theory. The dictionary describes it variously as “the act of causing something” or “the relationship between cause and effect”.

When examining the issue of causation a 2 step enquiry is necessary:

  1. To establish factual causation, i.e. that the injury suffered was caused by the actual breach which occurred.
  1. Normative causation, which is an enquiry as to whether it is appropriate that liability of the wrongdoer be extended to the harm actually caused.

Normative Causation

Recent authority concerning the issue of causation is the matter of Waller v James, a judgment handed down in August 2015 in the court of Appeal NSW.

In that matter baby Keeden was conceived via IVF treatment overseen by Dr James. He was born in 2000 and inherited a blood clotting disorder known as ADT from his father.

Four days after his birth Keeden suffered a stroke which has left him permanently and severely disabled.

At trial the Wallers were successful in establishing that Dr James breached his duty of care to them, and that they would have deferred IVF and not have given birth to Keeden, had they received accurate information about the inheritability of his condition.

Notwithstanding this the Wallers were unsuccessful in their claim because they failed to establish normative causation. The court found that the harm suffered by Keeden, namely the stroke he suffered at day four, was a general risk of pregnancy that they had been prepared to accept when undergoing IVF treatment.

This meant that the Wallers failed in their claim even though they succeeded in establishing that Dr James had been negligent.

Whilst it is easy to feel significant sympathy for the Wallers following this case and others similar to it, there is no doubt that the courts will carefully consider normative considerations in determining whether or not responsibility should be imposed (and damages awarded) in the case of any negligently caused injury.

If you have suffered injury as a result of an injury you may have a claim against the person who caused the injury. If you would like more information about these claims and what you can do call Stacks Goudkamp on 1800 25 1800 ore make an online enquiry for a free no obligation consultation.

Written by Julie Mahony.

Julie Mahony is the head of the Medical Negligence practice group, and has extensive experience in acting for people who have suffered injury from medical negligence incidents.

2017-06-26T14:55:50+00:00 February 17th, 2017|