At what point does a child plaintiff suffer personal injury

Opbroeck v Australian Capital Territory [2016] ACTSC 64 concerned an application for leave to amend a statement of claim in a birth trauma medical negligence claim. The allegation was one of delay in performing a caesarean section, with the amendments seeking to include allegations in respect of earlier antenatal management.

The defendant argued that the amendments constituted new causes of action, outside the limitation period: [16].  At [34] the court held that section 30B of the Limitation Act 1985 (ACT) applied because what must be alleged is the suffering of injury on the plaintiff’s birth. Any pre-birth injury is only part of the evidentiary chain leading to an individual’s injury post birth, hence an entitlement to sue. Watt v Rama was discussed (see [27]).

The defendant unsuccessfully opposed the amendments in respect of “pre-birth facts”, in the absence of relevant expert evidence.

Leave was granted, subject to the exclusion of some allegations because of prejudice arising from the elapse of time.



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