Wrongful birth claim: Whether an ‘injury’

FJ v Department of Defence [2015] VSC 448 arose as the claimant underwent a medical examination on enlistment in the Royal Australian Navy, which failed to note her early pregnancy. By the time she became aware of the pregnancy it was no longer feasible to undergo a termination procedure. She brought a claim against the Commonwealth of Australia which was framed as a common law negligence / breach of contract claim.

The defendant pleaded section 388 of the Military Rehabilitation and Compensation Act 2004 (Cth) as a bar to the claim, Except for a very limited exception, confined to non-economic loss with a damages ceiling of $110,000, s 388 of the Act bars all legal action or proceedings against the Commonwealth for damages in respect of a service injury sustained, or a service disease contracted.

The present matter required consideration by the court of whether the claim fell within that section, being and injury and, if so, a service injury.

As to whether the claimant had suffered an injury, the court said:

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 …. 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 …. 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.

As to whether the injury was a service injury, the court at [15] held that in attending medical centres referred to for medical examinations, the claimant was acting in the interests of the Navy as well as in her own interests. 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 obviously Naval activity. Then at [22]:

22 In the plaintiff’s case, she was required, or, at least expected, to undertake the medical examinations which failed to diagnose her pregnancy. In complying with that requirement, or expectation, she was ‘rendering defence service’ within the meaning of s 27 of the MRC Act. Her subsequent injuries, already described, ‘arose out of, or [were] attributable to’ that defence service. The outcome of her medical examinations, which resulted in her pregnancy not being diagnosed, with the consequences already discussed, is no less attributable to her having rendered defence service than would have been the outcome of a positive, but erroneous, diagnosis of cardiac disease which resulted in open heart surgery.

Accordingly the court held that the claim as a common law claim was barred by section 388 of the Act.

(Note: Overturned on appeal – see FJ v Commonwealth of Australia [2017] VSCA 84.)

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