Wrongful birth: Whether an injury, in particular a ‘service injury’

Previously noted (apparently before an anonymity order) was a decision of the Victorian Supreme Court considering whether a failure to diagnose a pregnancy such that a termination could not readily be obtained was compensable under a statutory scheme for naval personnel.

On appeal as FJ v Commonwealth of Australia [2017] VSCA 84, the court explained that the pregnancy of the applicant was not detected in medical examinations conducted by the Commonwealth after she had entered service in the Navy.  She has alleged that, if her pregnancy had been detected, she would have had an abortion.  Now, she is seeking to recover from the Commonwealth the costs of raising her child, but not any compensation for any pain and discomfort associated with her pregnancy and childbirth: [2].

FJ argued that her claim is solely one for ‘pure economic loss’ and that, ex hypothesi, it is not one ‘in respect of a service injury’: [80].

The decision is of interest outside of the statutory scheme for its review of a number of leading  wrongful birth decisions (Vievers v Connolly; CES v Superclinics; McFarlane v Tayside Health Board; Cattanach v Melchior; Caven v Womens and Childrens Health; Waller v James), leading to a conclusion at [130] that an action in negligence does not have to be understood solely in terms of an injury to the person or his or her property.

As to the statutory scheme, at [3] the court noted:

As has been the case in many common law jurisdictions, the Commonwealth has abolished some common law rights to compensation where personal injuries have been suffered and replaced them with a statutory scheme for statutory compensation combined with provisions for rehabilitation and treatment.  The applicant’s action is barred under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the Act’) if it is ‘an action or other proceeding for damages … in respect of … a service injury’. The Commonwealth contends that her action is ‘in respect of … a service injury’: unwanted pregnancy and childbirth are injuries and an action for damages for the cost of raising the child is necessarily ‘in respect of’ those injuries. The applicant says that her pregnancy and childbirth are not injuries within the meaning of the Act; alternatively, she contends, if they are injuries, her action is not in respect of them but is in respect of the economic cost of raising her child.

In a joint judgment the court concluded:

  • “While pregnancy will bring about physiological changes in a woman’s body, in our view those changes are not a ‘deviation’ or ‘disruption’ from the normal physiology of a female body any more than the changes associated with puberty, or with aging, (neither of which is regarded as an injury), are a deviation or disruption from normal physiology.  We do not accept that in ordinary language a healthy pregnancy and childbirth are described as injuries: [75]. But, in the present case, the question is not whether, in everyday language, pregnancy and childbirth may be described as injuries. It is whether they are understood at law as injuries”: [76].
  • “The Act broadly reflects the ordinary meaning of ‘injury’ but sharpens that meaning by restricting its application to those impairments or incapacities that require treatment or ‘rehabilitation’. Accordingly, unless the authorities otherwise dictate, we consider that there are matters within the statutory context which indicate that the applicant’s pregnancy and childbirth do not come within the definition of ‘injury’ as that terms appears in s 388 of the Act”: [128].
  • “If a normal pregnancy and childbirth do not amount to an ‘injury’ within the meaning of the Act, it is irrelevant how wide a construction is to be attributed to the expression ‘in respect of’ as there is no injury to which some other subject matter can connect. For that reason, the present claim is not a claim ‘in respect of’ an injury within the meaning of s 388(1) of the Act”: [136].
  • The applicant’s action is not one ‘in respect of … a service injury’. Therefore it is not barred by s 388 of the Act: [142].

The appeal was allowed. Absent an application for special leave to appeal to the High Court (which may well be made), the matter will presumably return to the Victorian Supreme Court for assessment of damages for the costs of raising the child.

[Note – An application for special leave to appeal to the High Court was refused.]

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