Eugenics & extension of limitation periods for wrongful birth claims

Stephens & Anor v Paradise Ultrasound Specialists Pty Ltd [2019] QSC 134

Crow J

Mr and Mrs Stephens, the applicants, sought an extension of time under s.31 of the Limitations of Actions Act 1974 (“the Act”) to commence court proceedings for an action for wrongful birth and personal injuries consequent to wrongful birth after their daughter was born with Down syndrome.

Facts

In 2014, Mrs Stephens fell pregnant.  Mrs Stephens gave evidence that this was “an extremely emotional time for her”. She and her husband were post-graduate students, and whilst they wished for a family they both considered it necessary to complete their education prior to raising a family.  Mrs Stephens alleges that while they were concerned about the timing, they were also concerned that if they delayed too long in having any children there were higher prospects of their children developing genetic abnormalities such as Down syndrome.  Deciding to continue with the pregnancy, Mrs Stephens attended an ultrasound on 20 August 2014 that “would determine whether the embryo was affected by chromosomal abnormalities”.  The sonographer who performed the nuchal translucency screening informed the applicants that the ”nuchal translucency is a bit raised” but “not to worry, the final risk number is in the low range”.

Studying a Bachelor of Medicine/Bachelor of Surgery at the time, Mr Stephens asked the sonographer whether a maternal chromosomal blood test should be performed “…to double check for Down syndrome”.  The sonographer replied that there was a new blood test available that would be sent to the United States for analysis, however, advised against it as Mrs Stephens has a low risk range.  The ultrasound images were sent to the second respondent, a radiologist, who reportedly confirmed that Mrs Stephens has a low risk of chromosomal abnormality.  The applicants allege that, on this basis, they were satisfied that their pregnancy was of low risk and absent any advice of non-invasive prenatal testing or amniocentesis, the applicants continued with their pregnancy.

Lily Stephens was born on 5 February 2015 with Down syndrome.

Issues

By a claim filed 24 September 2018, the applicants brought an action for wrongful birth and action in personal injury for Mrs Stephens consequent to the birth of her daughter.

Regardless of whether the time limitation period commenced from the date of the ultrasound on 21 August 2014 or the provision of the second respondent’s report on 25 August 2014 or their daughter birth on 5 February 2015 or the definitive diagnosis of Down syndrome on 12 February 2015, the claim for personal injuries is outside the three year time limitation imposed by section 11 of the Act.

Is section 11 of the Limitations of Actions Act 1974 (Qld) enlivened?

In oral and written submissions, the applicants argued that their claim for personal injuries did not engage section 11 of the Act or, in the alternative, if section 11 is engaged, they are entitled to an order pursuant to section 31 of the Act extending the time for the commencement of proceedings to 11 November 2018.

Section 11 of the Limitations of Actions Act 1974 (Qld) relevantly provides that:

Actions in respect of personal injury

  • 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 provisions) 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).

Relying on Waller v James [2015] NSWCA 232, the applicants argued that there is “considerable authority that the cause of action of the costs of child rearing of the sort brought by the applicants are actions for pure economic loss”.

His Honour Justice Crow observed that the classification of wrongful birth claims as claims of personal injury has been considered by his learned friends as somewhat controversial.

Citing Justice Kaye’s evaluation of the High Court decision of Cattanach v Melchior (2003) 215 CLR 1 in Caven and Another v Women’s and Children’s Health (2007) 15 VR 447, Justice Crow agreed that it is evident that there was an “even split” of views in the High Court as to whether claims for the cost of care of a child comprised a claim for personal injury or a claim for pure economic loss.  Further, His Honour agreed with Justice Kaye’s formulation that:

“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.”

The decision turned to one of statutory interpretation, with Justice Crow noting, as Justice Fullagar before him argued in Unsworth v Commissioner for Railways (1958) 101 CLR 73, that the prepositional phrase “in respect of” employed by section 11 has a wide ambit which encapsulates wrongful births.  His Honour observed that 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 financial burden of past and future child-rearing and maintenance costs to which they are now subject to.

Justice Crow concluded that the applicants claimed damages for personal injury and, accordingly, are subject to the three year limitation prescribed by virtue of section 11 of the Act.

Are the applicants amenable to an extension pursuant to section 31 of the Limitations of Actions Act 1974 (Qld)?

In accordance with sections 30 and 31 of the Act, in order to succeed in an application for an extension of time, the applicant bears the onus of showing that a material fact of a decisive character was not within his or her means of knowledge until a date no more than 12 months prior to the date to which the extension is granted, there is evidence to establish a right of action and that no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application.[1]  In the present case, his Honour concluded that the applicants were able to satisfy all but one requirement without controversy.  The issue that remained in contention was whether the applicants’ knowledge of a decisive character was within the means of knowledge of the applicants prior to 24 September 2017 (being one year prior to the filing of proceedings on 24 September 2018).  His Honour opined that the relevant consideration is whether the applicants took reasonable steps to find out the fact, determined by reference to the inquiries a reasonable person could and should have made.

To this end, His Honour contended that the applicants were two intelligent and highly educated people.  Although he did not then have medical qualifications, Mr Stephens personally considered at the time of his daughter’s birth that there had been medical negligence in respect of the ultrasound on 21 August 2014 and its subsequent reporting.  They sought the advice of a personal injury law firm on or about 12 February 2015, some seven days following the birth of their daughter, and were advised that the claim had no prospects of succeeding.  That same day, Mr Stephen contacted another law firm, however, following a subsequent meeting on 16 February 2015, felt uncomfortable with proceeding with this firm.  Finally, the applicants made an appointment with a third and final law firm on 17 February 2015.  Unfortunately, the applicants were unable to attend due to the health of their daughter and were later preoccupied with completing their studies.

On 30 November 2015, the third solicitors provided general advice that the claim should be brought before 5 February 2018, and the applicants reasonably believed that the claim was being investigated by the solicitors.  Thereafter, on 10 May 2017, the applicants received an email advising that a specialist radiologist was not supportive of a claim in medical negligence and, further, that they “may be running out of time to make a claim”.

On 23 May 2017, Mr Stephens personally delivered the scans to Professor David Ellwood, Specialist at the Gold Coast University Hospital, who opined that there was at least a suggestion of a case.  His Honour opined that evidence of a suspicion of a case, contextualised by three law firms denying the existence of a viable case, is an insufficient oral opinion to support a conclusion that the applicants were thereafter in receipt of a material fact of a decisive character.  As Justice Heydon explained in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, a bare ipse dixit (‘he, himself, itself’) is inadmissible as it is a primary requirement for the admission of expert evidence that is supported by logical reason.  Professor Ellwood’s oral opinion did no more than call for further inquiry.

Four days later, on 27 May 2017, the applicants retained a new firm who thereafter obtained the supportive expert opinion of Dr Nicole Woodrow on 12 November 2017.

Senior counsel for the first respondent submitted that once knowledge of the requisite fact (being expert medicolegal opinion dated 12 November 2017 as to liability exposure) was obtained, the requisite means of knowledge was gained, irrespective of whether this was communicated orally or in writing, as long as it was clear and logical.  This submission was accepted by His Honour.

It was held that the material fact of a decisive character was not within the means of knowledge of the applicants until 9 October 2017, being the date of receipt of Dr Woodrow’s oral advice to their solicitors and not the date the written report was received.

Order

His Honour ordered that the time for commencing proceedings be extended.

 David Cormack – Brisbane Barrister & Mediator

Nadia El Moslemani – Research Assistant

[1] Limitation of Actions Act 1974 (Qld) ss 30, 31; Ferrier v WorkCover Queensland [2019] QSC 11 at 23.

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