In this decision, Crow J considered whether a wrongful birth claim was subject to the limitation period in s 11(1) of the Limitation of Actions Act 1974. That question turned on whether such a claim was properly characterised as a claim for damages “in respect of” personal injury or solely a claim for damages for pure economic loss. His Honour concluded that the claim was a claim for damages in respect of the personal injury suffered by the mother in the form of her continuing pregnancy and the birth of her daughter and was therefore subject to the limitation period.
31 May 2019
The first applicant, Mrs Stephens, fell pregnant in 2014. . The second respondent was her husband, Mr Stephens. . Mr and Mrs Stephens attended upon the first respondent, Paradise Ultrasound Specialists, for an ultrasound that “would determine whether the embryo was affected by chromosomal abnormalities”. . The ultrasound images were sent to the second respondent, Dr Naidoo, who reported that “the overall risk assessment shows low risk of chromosomal abnormality”. . Lily Stephens was born in 2015 with Down syndrome. .
By claim filed 24 September 2018, Mr and Mrs Stephens brought an action in the Supreme Court against Paradise Ultrasound Specialists and Dr Naidoo, in which two claims were advanced. . Mr and Mrs Stephens brought a wrongful birth claim, and they claimed past and future child rearing and maintenance costs and future loss of earnings. . Mrs Stephens also brought a claim for damages for personal injury sustained by her in respect of the birth of Lily. , . The claims were brought outside of the threeyear limitation period imposed by s 11(1) Limitations of Actions Act 1974 (“the Act”). . The primary issue in the present application was whether the claims were subject to that limitation period. .
Section 11(1) of the Act provides:
“Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.” (emphasis added)
Mr and Mrs Stephens submitted that wrongful birth claims are actions for pure economic loss, and thus are not captured by s 11(1) of the Act. . They argued that s 11(1) is not engaged in claims for damages for wrongful birth by the father of a child, on the basis that his claim could not be “damages for personal injury to any person” because it is limited to recovering past and future child-rearing and maintenance costs. .
Crow J noted that “[t]he classification of a wrongful birth claim as a claim in respect of personal injury or as a claim for economic loss is somewhat controversial”, and that the High Court had split evenly on the question in Cattanach v Melchior (2003) 215 CLR 1. Crow J agreed with the analysis of Kaye J in Caven v Women’s and Children’s Health (2007) 15 VR 447, and in particular with the following:
“One common theme [which emerges from a number of the judgments in Cattanach] centres on the unity of the interests of the husband and wife in the reproductive processes of the wife, which resulted in the birth of the child, in respect of whose care damages are sought. To describe the claim for costs of care of the child as a separate and distinct claim for pure economic loss is to ignore the essential and intimate relationship between, on the one hand, the pregnancy and childbirth undergone by a female plaintiff, and the costs in respect of which damages are sought. Equally, to ignore the relationship between the husband and the wife, and to describe the claim for damages as one of pure economic loss, is to ignore the source of the legal and moral obligations of both parties to provide for the care and maintenance of the child after his or her birth.” .
After reviewing the authorities, Crow J held:
“[T]he prepositional phrase ‘in respect of’ is wider than the preposition ‘for’ … [Section] 11 of the Act specifically uses the wide prepositional phrase ‘in respect of’. The essence of a wrongful birth claim is that, absent the negligent act, the mother would not have given birth to the child and the parents of the child would not be subject to the moral and financial burden of past and future child-rearing and maintenance costs. Whilst it is plain that the damages are not ‘for’ personal injury to any person it is highly artificial to conclude the damages are not ‘in respect of’ personal injury to any person. In the present case, Mrs Stephens has brought a claim … that she has in fact suffered personal injury in the form of her continuing pregnancy with and giving birth to her daughter Lily Stephens.” .
Crow J concluded that the claims of Mr and Mrs Stephens were claims that included “damages in respect of personal injury to any person” and accordingly fell within the limitation period of three years provided by s 11(1) of the Act. . His Honour then proceeded to consider whether the time for commencement of proceedings should be extended pursuant to s 31, and granted an extension. –.
M J Hafeez-Baig