Supreme Court of Victoria Denies Navy Women Common Law Damages in a Wrongful Birth Claim

PUBLISHED 20 Oct 2015

The plaintiff, Ms Emily Hetherington, brought a common law claim for damages against the Commonwealth of Australia, Department of Defence, arising out of a medical examination at a Navy medical centre, and five further examinations at regular intervals at a similar centre at HMAS Cerberus in Victoria, which failed to detect her early pregnancy.

On 2 May 2008, an ultrasound examination was undertaken, and confirmed that she was 22 weeks pregnant, by which time it was no longer feasible for her to undergo a termination procedure, such as an abortion.

Section 388 of Military Rehabilitation and Compensation Act 2004 (Cth)(“MRCA”)

As a bar to the plaintiff’s common law claim for damages, the defendant relied on section 388 of MRCA.

Section 388 provides for a limited exception, confined to damages for non-economic loss to an amount of $110,000.00, and precludes all legal action and/or proceedings for common-law damages against the Commonwealth of Australia, where the injury on which the plaintiff sues was a “service injury sustained, or a service disease contracted” from, inter alia, an occurrence that “happened” or “arose out of” or was “attributable to” any defence service rendered by that person.

Wrongful birth is a “service” injury

At [11] to [13], Bonjiorno JA had to consider, whether the plaintiff suffered an injury, and stated:

[11]         In his submissions as to the nature of the damage held to be compensable at law in a case such as the present, counsel for the plaintiff sought to distinguish between damage as personal injury simpliciter and damage such as that described by Thomas JA in the Queensland Court of Appeal in Melchior v Cattanach as ‘a form of personal injury’ comprising the ‘pregnancy, birth and depression that followed’;… or that described by Kaye J in this Court in Caven v Women’s and Children’s Health as having ‘a striking similarity to damages awarded to an injured plaintiff in a personal injury case’…

[12]         I am unable to accept counsel’s analysis. There is no meaningful difference in the present context between an injury suffered as a result of a negligently caused traffic collision and the injury suffered by a pregnant woman who has a negligently undiagnosed pregnancy. Each constitutes bodily injury with greater or lesser consequential losses, economic or otherwise, depending on the circumstances of the particular case.

[13]         Clearly, the plaintiff’s pregnancy itself was not causally related to any action of the Commonwealth. She was already about six weeks pregnant when she enlisted in the Navy. However, having regard to the various medical examinations performed upon her when she enlisted, and subsequently, until 2 May 2008 when her pregnancy was ultimately diagnosed, she seeks to hold the Commonwealth responsible for not making that diagnosis earlier so as to enable an abortion to be performed. The plaintiff seeks damages from the Commonwealth for the injuries of an unwanted pregnancy from mid-January 2008 until the birth of her child on 24 August 2008, the labour and associated injuries connected with that birth, psychological trauma, the financial detriment suffered as a result of having to support and raise the child, and her own consequential loss of earnings and earning capacity into the future.

Having said the above, the Court denied Ms Hetherington common law damages, on the basis that in attending the medical centres referred to for medical examinations, she was acting in the interests of the Navy, as well as in her own interests. In this regard, she was engaged in “rendering defence service” just as much as if she were driving a truck, cleaning the deck of a ship, or engaging in some other more obvious naval activity. His Honour stated at [22], that Ms Hetherington was required, or, at least expected, to undertake the medical examinations which failed to diagnose her pregnancy. In complying with that requirement, or expectations she was “rendering defence service” within the meaning of section 27 of the MRCA. Accordingly, her subsequent injuries, “arise out of, or [were] attributable to” that defence service. The outcome of her medical examinations, which failed to disclose that she was pregnant, was no less attributable to her having rendered defence service then would have been the outcome of a positive, but erroneous, diagnosis of cardiac disease which resulted in open heart surgery.

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