Caven v Women's and Children's Health

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9725 of 2004

MARIA CAVEN AND STEPHEN HUYSING	Plaintiffs
v
WOMEN'S AND CHILDREN'S HEALTH	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 November 2006; 22, 23 January 2007
DATE OF JUDGMENT:	2 February 2007
CASE MAY BE CITED AS:	Caven & Anor v Women’s and Children’s Health
MEDIUM NEUTRAL CITATION:	[2007] VSC 7

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LIMITATION OF ACTIONS – Tort – Birth of child with Down’s Syndrome after alleged failure of defendant to detect associated heart defect on ultrasound – Claim by plaintiffs for cost of care and maintenance of child – Whether Limitation of Actions Act 1958 Part 2A applies to such a claim – Whether claim is for damages that “relate to the … personal injury to a person” – Whether husband’s claim “relate(s) to” that injury – Whether claims are claims for pure economic loss – Whether claims were discoverable more than three years before commencement of proceedings and therefore barred under s.27D – Whether just and reasonable to grant extension of time – Whether s.23A applies to claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. O’Dwyer S.C. with Mr M. Wilson	Slater & Gordon
For the Defendant	Mr J. Noonan S.C. with Mr D. Martin	Phillips Fox

HIS HONOUR:

This application commenced as the trial of preliminary questions in a proceeding issued by the plaintiffs in which they claim damages arising out of the birth of their second child in May 1997. The questions arose out of defences pleaded by the defendant that the claim by the plaintiffs is barred by the provisions of the Limitation of Actions Act 1958 (Victoria), and also out of an application by the plaintiffs to extend the time for issuing the proceedings, if such claims are otherwise barred. Ultimately it was agreed by the parties that it was unnecessary and undesirable that I dispose of the questions as a preliminary determination of the issues. Accordingly the application to be determined by me is the application to extend the time for issuing the proceedings.

Background

The first plaintiff, Maria Caven, and the second plaintiff, Stephen Huysing, commenced to live together in 1993. They subsequently married in 1999. Their first child, a daughter named Madison, was born in May 1995. In early 1997 Ms Caven became pregnant. On 21 February 1997 she attended the Royal Women’s Hospital for antenatal care. On 12 May 1997 an ultrasound was performed at the hospital. Ms Caven was then about 18 weeks pregnant. After the ultrasound was performed Ms Caven was not told that she should undergo a further ultrasound, nor was it suggested that she should undergo any other form of testing to review the foetus. Subsequently on 24 September 1997 Ms Caven gave birth at the Family Birth Centre to a baby boy named Jared.

Shortly after Jared’s birth it became evident that he had problems. The next day a senior paediatrician advised Ms Caven that he suspected that Jared had Down’s Syndrome. That diagnosis was confirmed in the following week. In the meantime, Jared’s condition deteriorated. He was transferred to intensive care, and at three days of age, was admitted to the Royal Children’s Hospital Intensive Care Unit.

At the Royal Children’s Hospital, Ms Caven was advised by an ear, nose and throat specialist that Jared had a condition called choanal atresia, which, apparently, involves the development of a membrane or bone within the nasal passage, thus causing difficulty in breathing. As a consequence Jared required to undergo a surgical procedure to assist with his breathing. At the same time Ms Caven was advised by a cardiologist that Jared had a congenital heart defect. At the age of about five weeks he underwent surgery to repair that defect.

Jared was discharged from the Royal Children’s Hospital in the latter part of November 1997. In January 1998 he was reviewed by a cardiologist at the hospital. In the course of that review the cardiologist asked Ms Caven if she had undergone an ultrasound in the course of her pregnancy. Ms Caven told the cardiologist that she had. The cardiologist responded that the defect should have been picked up on the ultrasound. Ms Caven, and Mr Huysing who was also present, both considered that the cardiologist was referring to Jared’s heart condition when he used the word “defect”. Neither of them understood that the cardiologist might be referring to Jared’s Down’s Syndrome.

In the later part of 1998 Jared underwent grommet surgery in both of his ears. Ms Caven commenced work at about that time on a part time basis.

In 1998 Jared attended the Early Intervention Centre called EPIC at Bundoora each two months. In 1999 he attended that Centre regularly, twice per week. In early 2000 Ms Caven became pregnant with her third child. On 27 March 2000 she underwent an ultrasound carried out by Dr Lachlan De Crespny. Ms Caven ceased her part time employment in about September 2000, and gave birth to her third child on 14 October 2000.

Meanwhile, during 2000, Jared underwent further grommet surgery. In 2001 Ms Caven completed some part time studies which she was then undergoing, and in 2002 she returned to her employment with Telstra Superannuation, working three days per week. In 2003 Jared commenced kindergarten. Early in the same year Ms Caven became unexpectedly pregnant. The plaintiffs’ fourth child was born in January 2004. In the meantime, during 2003, Jared required frequent medical appointments, together with speech therapy, orthotic appointments and optometry appointments.

In January 2004 Jared commenced school. At about that time Jared’s heart condition deteriorated and he had leakage between the ventricles. On 24 March 2004 Ms Caven made inquiries of Messrs Slater & Gordon, solicitors. In her affidavit Ms Caven stated that she did so because Jared’s heart condition had worsened. In addition, it was apparent to Ms Caven that Jared’s development, when considered against the development of her other children, was significantly delayed. In her affidavit, Ms Caven stated that she consulted Slater & Gordon to see if the issue raised by the cardiologist, in early 1998, would allow her to bring an action against the Royal Women’s Hospital.

On 20 April 2004 Ms Caven saw Mr Paul Henderson, a partner at Slater & Gordon, in relation to this matter. On 10 May 2004 Mr Henderson wrote to Ms Caven, advising her that as three years had passed since the date of the injury, an application would need to be made seeking an extension of time in which to issue proceedings. Mr Henderson also stated that the cost of such an application would be in the order of $8,000 to $10,000. Since Ms Caven was not in a position to fund such an application Mr Henderson provided her with an application to Law Aid. There were delays in the processing of that application which were explained in the affidavits of Ms Caven and Mr Henderson. Ultimately in February 2005 Mr Henderson was advised that Law Aid would fund the plaintiffs.

In the meantime on 21 December 2004 Mr Henderson caused a generally endorsed writ to be issued on behalf of Ms Caven and Mr Huysing against the defendant, Women’s and Children’s Health. That entity is, in effect, the successor to the rights and liabilities of the Women’s and Children’s Health Care Network, which conducted the Royal Women’s Hospital until 1 July 2000.

In April 2005 Mr Henderson sought an expert opinion in relation to the plaintiffs’ claim from Dr Phillippa Ramsey, a specialist in obstetric ultrasounds. There were delays in receiving that report. Ultimately Dr Ramsey provided a report dated 27 November 2005. Dr Ramsey advised that the video of the ultrasound examination which had been conducted on 12 May 1997 showed a congenital heart defect which is often associated with Down’s Syndrome. In particular the ultrasound video of the foetal heart showed a defect in the atrial septum and a possible defect in the ventricular septum also. Dr Ramsey stated that the cardiac view should have alerted the radiographer to the potential for Down’s Syndrome, because 50 percent of Down’s Syndrome foetuses have some sort of heart defect. She stated that atrial septal defects, ventricular septal defects, and the combination of atrial/ventricular canal defects, are “classic defects” encountered in Down’s Syndrome individuals.

Based on that report a statement of claim was prepared and served on 15 September 2005. In that statement of claim damages are claimed on behalf of each of the two plaintiffs. As “particulars of injury loss and damage”, it is pleaded that each of the two plaintiffs have suffered anxiety, depression, nervous shock and psychological suffering. It is also pleaded that the first plaintiff, Ms Caven, has suffered pain and suffering associated with child birth. The “Particulars of loss” state that as a consequence of the birth of Jared each of the two plaintiffs have lost significant periods from work. In addition, as a consequence of the birth of Jared, the two plaintiffs have suffered loss and damage “ … as a consequence of undertaking the additional care of Jared which has been required as a consequence of his Down Syndrome”. The plaintiff’s claim that those damages were caused by the negligence of the defendant in failing to advise the first plaintiff (Ms Caven) of the effect of the ultrasound and of the risk that her baby may suffer from Down’s Syndrome.

The defendant has delivered an amended defence dated 2 March 2006. In paragraphs 16 to 17 of the amended defence it is pleaded that insofar as each of the plaintiffs claim damages in relation to personal injury suffered before 21 December 2001, that claim is barred by the operation of s.27D of the Limitation of Actions Act 1958. It is further pleaded (in paragraphs 18 to 19) that insofar as the plaintiffs make a claim for damages with respect to “pecuniary loss” allegedly suffered as a consequence of undertaking additional care of Jared and losing time from work as a consequence of the birth of Jared, such a claim is barred by the operation of s.5(1)(a) and/or s.27D of the Limitation of Actions Act 1958. In paragraph 20 of the defence, a defence is pleaded invoking the provisions of Part VB and VBA of the Wrongs Act 1958.

On 29 March 2006 the Listing Master made an order by which, pursuant to Rule 47.04, it was directed that there be a “preliminary hearing of the issues raised in paragraphs 16 to 20 of the defendant’s amended defence filed 3 March 2006”. Directions were given for the filing and serving of affidavits in relation to that preliminary hearing. Subsequently, on 9 November 2006, a summons was issued on behalf of the plaintiffs seeking orders that the period within which the action might be brought be extended pursuant to s.27K and/or s.23A of the Limitation of Actions Act.

Subsequent to the orders made by the Master, the parties, by agreement, formulated the questions which they considered require preliminary determination. When the matter came before me, I made orders directing that there be a preliminary trial of those questions. I also directed that the facts relevant to those questions be tried and determined in the course of the trial of the preliminary questions, and that the evidence in chief of the witnesses to be called on the trial of the preliminary questions be on affidavit. The plaintiffs relied on affidavits sworn by each of them and by their solicitor. Both plaintiffs were cross-examined. The defendant relied on one affidavit. However, shortly after the commencement of final addresses it became evident that the plaintiffs needed to adduce further evidence, particularly as to the damages which they allege they sustained. Accordingly I adjourned the matter to enable the plaintiffs to adduce that further evidence.

After the plaintiffs and the defendant filed further affidavits containing additional evidence, it became apparent that there might be difficulties in proceeding with the trial of the preliminary questions. Furthermore it was unnecessary to do so, because the questions which had been formulated for my decision were, in any event, the same questions which were necessary to be considered in response to the application by the plaintiffs to extend the period of time within which their action might be commenced. Accordingly, at the behest of the parties, I made a further order vacating the previous orders by the Master, and by myself, in relation to the trial of the preliminary questions, and I proceeded to hear the matter as an application by the plaintiffs to extend the period of time within which they might bring the proceeding.

The five questions which I had directed be tried and determined are as follows:

(1)Was the cause of action pleaded by the plaintiffs in their statement of claim discoverable by the plaintiffs before 21 December 2001 and therefore barred by s.27D(1)(a) of the Limitation of Actions Act 1958 (“the Act”)?
(2)If yes to question 1, should the plaintiffs be granted an extension of time within which to bring proceedings in respect of that cause of action pursuant to s.27K of the Act?
(3)Is that part of the plaintiffs’ claim with respect to the additional cost of care of their son Jared as a consequence of his Down’s Syndrome and for loss of time from work as a consequence of his birth, a cause of action or part of a cause of action for damages that relate to personal injury to a person pursuant to s.27B of the Act?
(4)Is that part of the plaintiffs’ damages referred to in question 3 an action or part of an action for damages where the damages claimed include damages in respect of personal injuries to any person within the meaning of s.23A of the Act?
(5)If no to question 3 and yes to question 4, is it just and reasonable to order, pursuant to s.23A of the Act, that the period within which an action on the cause of action may be brought be extended so as to allow the plaintiffs to bring this proceeding?

Those questions were all agitated in the application now before me. They involve a consideration of ss.5, 23A and 27B to 27K, of the Limitation of Actions Act.

Limitation of Acts Act 1958

Section 5(1)(a) of the Limitation of Actions Act provides that an action founded (inter alia) on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Section 23A was originally introduced into the legislation by the Limitation of Actions (Personal Injuries) Act 1972. In 1983 the Limitation of Actions (Personal Injury Claims) Act repealed that provision, and substituted the current section 23A. Section 23A(2) enables a person, claiming to have a cause of action to which s.23A applies, to make an application for an extension of time within which to commence that proceeding. Section 23A(1) provides that the section applies to any action for damages for (inter alia) negligence “… where the damages claimed consist of or include damages in respect of personal injuries to any person”. Section 23A(3) specifies the matters to which the Court shall have regard in determining an application for an extension of time.

In 2003, Part 2A of the Limitation of Actions Act was introduced by the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003. That legislation effected significant changes to both the Wrongs Act 1958 and to the Limitation of Actions Act. Section 1(b) of the 2003 Act provided that one of the “main purposes” of the Act was to amend the Limitation of Actions Act 1958 “ … to provide for new limitation periods for certain civil actions for damages that relate to death or personal injury”.

Part 2A, as introduced into the Limitation of Actions Act, contains section 27A to section 27N. Section 27N(2) provides that, on and from 1 October 2003, Part 2A applies to causes of action where the act or omission alleged to have resulted in the death or personal injury with which the action is concerned occurred before 21 May 2003. Thus Part 2A applies to this proceeding.

The correct construction of s.27B(1) was a matter of detailed submission before me. That section provides:

“This Part applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise.”

Section 27B(2) specifies a number of causes of action (such as actions for damages to which Part IV of the Accident Compensation Act 1985 applies) to which Part 2A does not apply.

Section 27D prescribes the relevant period of limitation for a cause of action to which Part 2A applies. Section 27D(1)(a) provides:

“(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire –
(a)the period of three years from the date on which the cause of action is discoverable by the plaintiff; … .”

Section 27F(1) defines when a cause of action is “discoverable”. It provides:

“(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts –
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.”

Section 27K and s.27L entitle a person, claiming to have a cause of action to which Part 2A of the Act applies, to apply to the Court for an extension of the period within which the action might be brought.

The issues

The principal propositions advanced by the plaintiffs in this application may be summarised as follows:

(1)The claims by both plaintiffs in the statement of claim, including the claims for the cost of care of Jared, are claims to which Part 2A of the Limitation of Actions Act apply.
(2)Those claims were not “discoverable” by the plaintiffs, pursuant to s.27D, until they received the report of Dr Ramsey in November 2005. Accordingly the claims are not barred under s.27D(1).
(3)If those claims are barred under s.27D(1)(a), the Court should extend the time within which the action might be commenced pursuant to ss.27K and 27L.
(4)If and to the extent that Part 2A of the Act does not apply to the claims of either plaintiff, s.23A applies to those claims, as the damages claimed “consistent of or include damages in respect of personal injuries to any person”. The Court should extend the period of time within which the proceedings might be commenced pursuant to s.23A.

The principal propositions argued by the defendant may be summarised as follows:

(1)The claims by both plaintiffs, and in particular the claims for the cost of care of Jared, are not claims to which Part 2A applies. In particular, the claim for the costs of care of Jared is separate and distinct to any claim by either plaintiff for damages for personal injury.
(2)If Part 2A applies, the plaintiffs’ cause of action was discoverable by January 1998 (when the plaintiffs consulted the cardiologist and were told that the heart defect should have been detected on the ultrasound) or alternatively in March 2000 (when the plaintiffs consulted Dr Crespny and understood that the detection of a heart defect on ultrasound might be a pointer to the existence of Down’s Syndrome). Accordingly the claims are barred under s.27D(1).

(3)The Court should not extend the time within which the plaintiffs might commence their proceedings pursuant to ss.27K and 27L.
(4)Section 23A does not apply, at least to the claims by the plaintiffs for the cost of care of Jared, since those damages do not consist of or include damages “in respect of personal injuries to any person”.
(5)If s.23A applies to such claims, the Court should not extend the period of time within which those claims might be commenced.

The application of s.27D

The first question is whether the claims by the plaintiffs for the cost of care of Jared constitute claims “for damages that relate to the … personal injury to a person” within s.27B. On behalf of the plaintiffs, Mr O’Dwyer SC, who appeared with Mr M Wilson, submitted that the claim by the first plaintiff, relating to the continuation of her pregnancy from the date of the ultrasound to the date of birth of Jared, was a claim by her for personal injury. He then submitted that the claim by each plaintiff for the cost of care of Jared constitutes a claim for damages that “relates to” the personal injury so sustained by the first plaintiff. Accordingly he submitted that s.27B applies to the claim for those damages.

In response Mr J Noonan SC, who appeared with Mr D Martin for the defendant, made the following submissions:

(1)The claim for damages by the first plaintiff in respect of the continued pregnancy and birth of Jared is not a justiciable claim, and in any event, is not a claim for personal injury.
(2)In any event the claims by each plaintiff for the cost of care of Jared do not “relate to” that personal injury sustained by the first plaintiff.
(3)Further, and in any event, on its proper construction s.27B requires that the cause of action for damages by the plaintiff must relate to personal injury to that person. The second plaintiff relies on the alleged personal injury to the first plaintiff (the continued pregnancy) and not on any personal injury sustained by him, as being the “personal injury” to which the claim for costs of care relate. Accordingly, even if the claim by the first plaintiff is a claim for damages which relates to personal injury within s.27B, the claim by the second plaintiff in respect of those damages is not a claim which relates to personal injury.

The first issue therefore is whether the continued pregnancy of the first plaintiff, up to the time of the birth of Jared, is properly characterised as a “personal injury” to the first plaintiff. Before dealing with the arguments by the parties in relation to that issue, I should note one preliminary matter. In their statement of claim the plaintiffs pleaded that they each had suffered anxiety, depression, nervous shock and psychological suffering. In December 2006 they were both examined by Professor Lorraine Dennerstein, a clinical psychiatrist. Professor Dennerstein has provided reports which were tendered in evidence before me. In her report relating to the first plaintiff, she concluded that Ms Caven had developed an adjustment disorder with mixed anxiety and depressed mood since the birth of Jared. In her report relating to the second plaintiff, Professor Dennerstein concluded that Mr Huysing reported symptoms and has mental state findings of an adjustment disorder with anxiety occurring as a consequence of Jared’s birth with Down’s Syndrome and the emotional demands of caring for a Down’s Syndrome child. It was not contended before me that the claims by the plaintiffs for damages for the cost of care for Jared have any causal relationship with the psychological injury alleged by the plaintiffs in their statement of claim. Thus, as I have set out above, both plaintiffs relied on the submission that the claim for damages for the cost of care for Jared is a claim within s.27B, because it “relates to” the personal injury sustained by the first plaintiff, in the form of her continued pregnancy and childbirth.

The plaintiffs’ claim in the case is that after the ultrasound was performed on the first plaintiff in May 1997, they should have been informed that the ultrasound showed a congenital heart defect which is not uncommonly associated with Down’s Syndrome. The plaintiffs claim that if they had been so informed, the first plaintiff would have undergone further investigation which would have indicated that the baby carried by her had or was likely to have Down’s Syndrome. Accordingly the first plaintiff has lost the opportunity to terminate her pregnancy. One of the heads of damages claimed by the first plaintiff in the statement of claim is for pain and suffering associated with the continued pregnancy, confinement and birth of Jared.

Mr Noonan submitted that such a claim by the first plaintiff is not one which is recognised at law. However, he accepted that that submission was made in the face of number of authorities to the contrary. In my view that concession was correctly made by Mr Noonan. There is a substantial body of authority which recognises the right of a female plaintiff to be awarded damages for pain and suffering and loss of enjoyment of life, and associated damages, where the plaintiff’s pregnancy or continued pregnancy is the result of the negligence of the plaintiff’s medical practitioner.

In CES v Super Clinics (Australia) Pty Ltd[1], the plaintiff claimed damages arising out of the negligent failure by the defendant to diagnose her pregnancy. The plaintiff claimed that the defendant’s negligence had deprived her of the opportunity to obtain a lawful abortion which she would have undergone. Priestley JA held that the plaintiff was entitled to damages arising from her continued pregnancy, including damages up to and concluding at the period shortly after she had given birth.[2] Meagher JA dissented and held that no damages should be awarded at all. Kirby P considered that the plaintiff was entitled to a full measure of damages, including damages for the cost of raising the child. However, in order to provide guidance for the retrial ordered by the Court of Appeal, and to trial courts in general, his Honour agreed with the approach of Priestley JA.[3]
[1](1995) 38 NSWLR 47.
[2]At 84.
[3]At 78-9.

In McFarlane v Tayside Health Board[4], the plaintiffs were the parents of a healthy child born following a negligently performed sterilisation procedure. The House of Lords unanimously held that the plaintiffs were not entitled to recover the damages for the cost of raising the child. However, by a majority[5] their Lordships held that the female plaintiff was entitled to damages for pain and suffering and loss of enjoyment of life arising from the continued pregnancy and child birth.[6]
[4][2000] 2 AC 59.
[5]Lord Millett dissenting at 114.
[6]Page 74 (Lord Slynn); 81, 84 (Lord Steyn); 87, 89 (Lord Hope); 102 (Lord Clyde).

In Cattanach v Melchior,[7] Dr Cattanach, an obstetrician and gynaecologist, had performed a tubal ligation on the first plaintiff, Mrs Melchior. Mrs Melchior had told the doctor that when she was younger her right ovary and right fallopian tube had been removed. Accordingly Dr Cattanach only performed a tubal ligation on the left fallopian tube. At trial, Holmes J held that the ligation was not negligently performed, but that Dr Cattanach had negligently failed to give advice to the female plaintiff that she should have her assertion about the removal of her right fallopian tube properly investigated, and that if she was wrong about that, there was a risk she might nonetheless conceive. Following the sterilisation procedure Mrs Melchior became pregnant and gave birth to a healthy male child. Mrs Melchior and her husband claimed damages based on three separate heads. The first was a claim by Mrs Melchior for compensation to pain and suffering of loss of amenities of a life associated with the pregnancy and child birth. The second was a claim by Mr Melchior for loss of consortium. The third was a claim by both plaintiffs for the costs of raising and maintaining the child. At trial, the first head of claim, by Mrs Melchior for damages relating to the pregnancy and birth, was not in dispute.[8] Holmes J awarded damages on each of the three bases sought by the plaintiffs. The Court of Appeal[9], with Thomas JA dissenting, dismissed the defendant’s appeal against the award of damages for the cost of raising and maintaining the child. In his dissenting judgment, Thomas JA[10] stated:

“The first component of the judgment is in respect of the familiar claim for damages for personal injury caused by the defendant’s negligence. None of the heads of the damage allowed under that claim were too remote. The pregnancy, birth and depression that followed may be regarded as a form of personal injury … .”

McMurdo P expressly agreed with that part of the judgment of Thomas JA.[11]

[7](2003) 215 CLR 1.

[8]Melchior v Cattanach [2000] QSC 285 at [36].

[9]Melchior v Cattanach [2001] QCA 246.

[10]Paragraph 141.

[11]Paragraph 5; see also at 72, per Davies JA.

The defendant was then granted special leave to appeal to the High Court in relation only to the recoverable of damages for the cost of raising and maintaining the child. However, in passing, at least four of the Justices expressed views which would sanction the recoverability of damages for pain and suffering and loss of enjoyment of life arising from a continued pregnancy and child birth.[12]
[12]Para 66 (per McHugh and Gummow JJ); para 148 (per Kirby J); para 192 (per Hayne J).

Thus it is well established that a female plaintiff is entitled to damages in respect of the effect on her of a pregnancy, or a continued pregnancy, which has resulted from the negligence of her medical practitioners. The damages awarded by the Courts in the cases to which I have referred comprise compensation for pain and suffering and loss of enjoyment of life, medical expenses, and interruption to employment during the period of the pregnancy. Those damages have a striking similarity to damages awarded to an injured plaintiff in a personal injury case. They were so characterised by Thomas JA in Melchior v Cattanach (above). Similarly, in McFarlane’s case, Lord Steyn expressly identified the processes of the conception, pregnancy and child birth, in that case, as amounting to personal injury.[13] The definition of “personal injuries” in s.3(1) of the Limitation of Actions act is inclusionary, providing that that phrase includes “any disease and any impairment of a person’s physical or mental condition”. In my view, given the type of damages that are ordinarily awarded for a pregnancy, or a continued pregnancy, and the processes of child birth, which are consequent upon the negligent act or omission of a medical practitioner, those processes might be properly described as “a personal injury” within s.27B of the Limitation of Actions Act. Accordingly it follows that the continued pregnancy of the first plaintiff, Ms Caven, after the ultrasound in May 1997, her confinement, and the processes of child birth, do constitute a “personal injury” to her for the purposes of that section.
[13]At page 81.

The next issue concerns the characterisation of the claims by the plaintiffs for damages for the cost of care and upkeep of Jared. The critical, and central question, is whether that claim for damages “relates to” the “personal injury” of the first plaintiff, Ms Caven. Mr Noonan submitted that the claim for damages for cost of care of Jared is a discrete cause of action for pure economic loss, which is separate and distinct from the claim by the first plaintiff for personal injury in respect of her continued pregnancy and child birth. Mr Noonan submitted that therefore the claim for damages for cost of care of Jared does not “relate to” the personal injury alleged by the first plaintiff, and therefore is not a cause of action to which s.27B applies. In support of that submission Mr Noonan relied on the decision of Chesterman J in Murray v Whiting[14], the decision of the House of Lords in McFarlane v Tayside Health Board (above) and the judgments of Gleeson CJ and Callinan J in Cattanach v Melchior.Mr Noonan submitted that those authorities support the proposition that the claim for damages for cost of care of Jared is a claim in tort for pure economic loss. He submitted that it is a separate and distinct cause of action to the cause of action relied on by the first plaintiff for personal injuries arising out of her continued pregnancy and child birth. Mr Noonan referred to the decision in the Court of Appeal of the Supreme Court of Victoria in Linslie v Petrie[15].
[14][2002] QSC 257.
[15][1998] 1 VR 427.

In response Mr O’Dwyer submitted that the claim by the plaintiffs for the damages for the cost of care of Jared is not a separate and discrete claim for damages for pure economic loss. Mr O’Dwyer relied on the judgments of Kirby J, McHugh and Gummow JJ and Hayne J in Cattanach v Melchior. Further he submitted that the characterisation of the claim in those terms is beside the point. For, he submitted, the real question is whether the damages, claimed by the plaintiff for the cost of care of Jared, “relate to” the personal injury of the first plaintiff, comprising her continued pregnancy after May 1997 and the child birth. Mr O’Dwyer submitted that there is a clear relationship between the damages claimed and the personal injury sustained by Ms Caven. The continued pregnancy resulted in the birth of Jared, and thus relates to the costs of the care of Jared after his birth and during his lifetime. In support of that proposition Mr O’Dwyer referred to the decision of the Full Court of the Supreme Court of Victoria in Petricola v Metropolitan Transit Authority[16].
[16](1989) Aust Torts Rep 80-247.

The authorities contain differing views as to the correct characterisation of a claim for the costs of care in respect of a child, whose birth is the result of a pregnancy, which is the consequence of the negligence of a medical practitioner. Until the decision of the House of Lords in McFarlane in 2000, the predominant view in the United Kingdom was that such a claim is part of a claim for personal injuries, and is not a separate and distinct claim for pure economic loss. In Walkin v South Manchester Health Authority[17], the plaintiff underwent an operation to sterilise herself at the defendant’s hospital in 1986. Unbeknown to her that operation was not successful. As a consequence she became pregnant and gave birth to a child in 1987. In 1989 she issued a writ for the damages for personal injury, but did not serve it, and it lapsed. In October 1991 she issued a further writ. In those proceedings the damages claimed by the plaintiff were confined to damages for the cost of care and upkeep of the child. The defendant pleaded that the claim was barred under s.11(1) of the Limitation Act 1980, because the damages claimed “consisted of or included damages in respect of personal injury”. The Court of Appeal upheld the trial judge’s decision that the claim by the plaintiff was a claim for damages for personal injury and therefore was statute barred. Auld LJ referred to an obiter dictum of Brooke J in Allen v Bloomsbury Health Authority[18] where his Lordship observed that the claim for damages for the pregnancy was a separate and distinct claim to the claim for the cost of upkeep of the child resulting from the pregnancy. Auld LJ rejected that view in the following terms:

“In my view, Brooke J’s suggestion in this obiter passage that an unwanted pregnancy creates two different causes of action according to the nature of the damages claimed is not supported by the authorities nor by his own analysis of them. Post natal economic loss may be unassociated with ‘physical injury’ in the sense that it stems from the cost of rearing a child rather than any disability in pregnancy or birth, but it is not unassociated with the cause of both, namely the unwanted pregnancy giving rise to the birth of a child.
In my view, claims in such circumstances for pre‑natal pain and suffering and post natal economic costs arise out of the same cause of action.”[19]

[17][1995] 1 WLR 1543; [1994] 4 All ER 132.

[18][1993] 1 All ER 651 at 658.

[19]Page 1549; 139.

That view, however, was not adopted by the House of Lords in McFarlane v Tayside Health Board (above). In that case the pursuers were a married couple. After their fourth child they did not want any more children, and the husband underwent a vasectomy. Following that procedure the husband was advised that his sperm counts were negative and that contraceptive measures were no longer necessary. The pursuers acted on that advice. Subsequently the wife became pregnant. After a normal pregnancy she gave birth to a healthy child. The pursuers issued proceedings in which the wife claimed damages for pain and distress arising from the pregnancy and birth, and in which they both claimed damages for the costs of rearing the child who resulted from the pregnancy. The Lord Ordinary of the Outer House of the Court of Session dismissed the action. The second division of the Inner House of the Court of Session reversed that decision. The Court held that the wife was entitled to damages for the physical effects of the pregnancy and child birth, and that the pursuers were both entitled to damages for the extra expenditure incurred in the care of the child. The House of Lords (Lord Millett dissenting) dismissed the defendant’s appeal in respect of the claim of the mother for damages for pain and suffering and the inconvenience of pregnancy and child birth, and unanimously allowed the appeal of the defendant in respect of the parents’ claim for the cost of raising the child. In doing so their Lordships held that such a claim was a claim for pure economic loss to which separate considerations applied than those which applied to the claim of the wife for the pain, suffering and inconvenience of pregnancy and childbirth. Thus Lord Steyn stated:

“Here the father’s part of the claim for the cost of bringing up the unwanted child is undoubtedly a claim for pure economic loss. Realistically, despite the pregnancy and child birth, the mother’s part of the claim is also for pure economic loss. In any event, in respect of the claim for the costs of bringing up the unwanted child, it would be absurd to distinguish between the claims of the father and the mother. This feature of the claim is important. The development of a new ground of liability, or a new head of such liability, for the recovery of economic loss must be justified by cogent reasons.”[20]

[20]Page 79; see also at 89, per Lord Hope; 105-6, per Lord Clyde; compare at 109, per Lord Millett.

The decision of the House of Lords in McFarlane was followed and applied by Chesterman J in Murray v Whiting[21]. In that case the plaintiffs were a married couple. The husband suffered from a condition which affected his fertility. Accordingly he was prescribed and received testosterone replacement therapy. The plaintiffs alleged that they each believed that without that therapy the husband would be sterile. The therapy was interrupted in 1995 and the wife fell pregnant. The wife claimed damages for pain and suffering resulting in the pregnancy and child birth. Both plaintiffs claimed damages for loss of income and expense in maintaining the child. The writ was not issued until 6 April 1999. The defendants pleaded that the claim by the plaintiffs was a claim for personal injuries which was barred pursuant to s.11 of the Limitation of Actions Act 1974. That section provided that an action for damages for negligence in which the damages claimed “consist of or include damages in respect of personal injury to any person” should not be brought after the expiration of three years from the date on which the cause of action arose. The defendants made a summary application that the action be dismissed based on that defence. Chesterman J applied the decision of the House of Lords in McFarlane’s case, and held that the claim by the plaintiffs for the cost of maintaining the child was a claim for pure economic loss which was not affected by s.11 of the Limitation of Actions Act. Accordingly his Honour dismissed the application to strike out that part of the plaintiffs’ statement of claim which pleaded the claim for the costs of maintaining the child. His Honour concluded:

“A cause of action for negligently caused economic loss is different to and distinct from a cause of action for negligently caused personal injuries, just as it is from negligently caused property damage. This is clear from the judgments in McFarlane where the claim for the maintenance of the child was rejected by reference to the particular principles governing liability for economic loss. … The plaintiffs’ claims do give rise to different causes of action. Both plaintiffs allege facts, which if proved, will give rise to a right to damages for the economic loss incurred in raising their child. The facts necessary to establish that cause of action do not include a personal injury to either plaintiff. It is no part of the cause of action that the plaintiff suffered any injury pain or impairment. The cause of action is not in respect of personal injury. Section 11 of the Limitation Act is no bar to the claim for economic loss. The relevant time limit is six years.”[22]

[21]Above.

[22]Para 25, 27.

The foregoing analysis brings me to the decision of the High Court in Cattanach v Melchior, to which I have referred above. As I have stated the issue before the High Court was whether the plaintiff respondents were entitled to an award of damages in respect of the costs of the maintenance and care of the child born to Mrs Melchior. By a majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon JJ dissenting) the Court held that the plaintiff respondents were entitled to an award of such damages, and dismissed the appeal. However, in the course of their separate judgments, the members of the Court expressed differing conclusions as to whether the claim relied on by the plaintiffs was a claim for pure economic loss. On the one hand, Gleeson CJ, in his dissenting judgment, held that the claim was one for pure economic loss. His Honour reasoned that in the hands of Mr Melchior, the claim could be none other than a claim for pure economic loss. The role of Mr Melchior in the claim of his wife and himself for such damages was critical to its characterisation.[23] Similarly, Callinan J, who formed part of the majority, also considered that the claim of the plaintiffs was a claim for pure economic loss.[24] However, in the course of his judgment, his Honour did treat those damages as a separate head of damage, as distinct from part of a separate and distinct cause of action to that in which Mrs Melchior had sought damages for pain and suffering and loss of enjoyment of life.[25] On the other hand, Kirby J[26] and Hayne J (who dissented)[27] each held that the claim for the cost of care and maintenance of the child was not a claim for pure economic loss. In their joint judgments (which form part of the majority) McHugh and Gummow JJ[28] expressly declined to provide a view as to whether the claim was one for pure economic loss. In his separate dissenting judgment Heydon J did not express a view either way.
[23]Page 14, [19]; 19 [30].
[24]Page 107, 109 [299, 302].
[25]Page 99, 108 [292, 300].
[26]Page 57-8 [148-150].
[27]Page 72 [192-‘3].
[28]Page 31 [66].

Thus on the surface there was an “even split” of views in the High Court as to whether or not the claim for costs of care of the child comprised a claim for pure economic loss. To complicate matters further, on their face, the majority justices dissented amongst themselves, as did the minority justices. Nonetheless, in my view, on closer analysis, there may be discerned from the judgments of the High Court the answer to the question, in a case such as this, as to the legal relationship between the claim by a parent of the cost of care of a child, and the claim by a female plaintiff for general damages in respect of her pregnancy, confinement and birth.

As I stated Kirby J considered that the claim for costs of care was not a claim for pure economic loss. His Honour’s reasoning is set out in the following passages:

“… it is not the birth of the child that constitutes the harm, injury or damage for which the parents sue. Instead, it is for the economic harm inflicted upon them by the injury that they have suffered as a consequence of the negligence that they have proved. Contrary to the assumptions that appear to have been accepted by the Courts below, the present was not a case of pure economic loss. It was, rather, an instance of direct injury to the parents, certainly to the mother who suffered profound and unwanted physical effects (pregnancy and child birth) involving her person, after receiving negligent advice about the risks of conception following sterilisation. Any economic loss was not pure, but consequential …
In his reasons in this appeal Gleeson CJ suggests that … this case … involves a form of pure economic loss. With respect that reasoning is flawed. It gains no support from the fact (thought critical to the point) that the father himself suffered no physical injury. The mother certainly did and, whatever the position of the father, she would be entitled to recover on normal principles without disqualification. On no view could her claim for the costs of child rearing be viewed as involving ‘pure’ economic loss. The claim of the parents (including the father) is made in common for that item of loss. To that extent the father’s claim is made concrete by the physical injury suffered by the mother. It is artificial to sever the parents’ claim which is made jointly for the same sum.”[29]

[29]Pages 57-8 [148-‘9].

In his dissenting judgment Hayne J expressed similar views. His Honour stated:

“If the wife suffered loss or damage at which the doctor’s negligence was a cause, she is, prima facie, entitled to recover damages for that loss or damage. In the present case the wife alleged that the negligence of the doctor was a cause of several different consequences for her. They were: (a) her falling pregnant with the associated pain and discomfort of pregnancy and child birth, together with some further deleterious physical consequences for her which followed from her pregnancy; (b) the financial consequences for her of pregnancy and child birth; and (c) the financial consequences for her of having another child to maintain and nurture. Each was a reasonable foreseeable consequence of the negligence of the doctor. …
… to describe the wife’s claim as one of economic loss caused by negligent advice would ignore the first consequences identified or it would treat her claim as if it were two distinct claims when, in truth, it was but a single claim for damages. There being no dispute about the existence of the ambit of the duty of care owed by the doctor to his patients, the dispute was confined to what damages were to be allowed for what in this Court must be accepted to have been a negligent failure by the doctor to tender proper advice.”[30]

[30]Page 72 [66]; see also p.33 [72].

As I have stated in their joint judgment McHugh and Gummow JJ expressly declined to proffer a view as to whether the damages claimed were for pure economic loss or not. However it is important to note the terms in which their Honours considered that that consideration was not relevant. In response to the proposition that the claim for costs of care was not recoverable their Honours stated:

“It is here that the case for the appellants encounters difficulty. Duty, breach and damage are all conceded. The interest of the respondents which the law of negligence protected in respect of the negligence misstatement or omission by Dr Cattanach was that of each of the respondents in the planning of their family or, as it has been put in the United States, in their reproductive future. The injury to that interest had varied elements. There were those matters reflected in the first award of some $103,000 to Mrs Melchior but there were also those touching the responsibility the spouses incurred to rear their third child. That responsibility was both moral and legal. … It does not advance understanding greatly, one way or the other, to describe the expenditure required to discharge that obligation as ‘economic loss’.”[31]

[31]Page 31 [66]; see also p.33 [72].

One common theme emerges from the passages of the judgments of Kirby, McHugh, Gummow and Hayne JJ to which I have just referred. That theme 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 child birth 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. It is these considerations which, I consider, lead Kirby J and Hayne J to regard the claim by Mr and Mrs Melchior as not one for pure economic loss, and which lead McHugh and Gummow JJ, in their joint judgment, to regard it as irrelevant whether or not the claim was for economic loss alone. Similarly, it is these considerations which markedly differentiate the claim by the plaintiffs for the cost of care of Jared, from the type of claims treated as claims for pure economic loss in cases such as Perre v Apand Pty Ltd[32] and Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad”.[33] In cases such as those, the concern of the law, in imposing a duty of care on the alleged tortfeasor, is not to expose potential defendants “… to a liability in an indeterminate amount for an indeterminate time to an indeterminate class”; Ultramares Corp. v Touche, Niven & Co.[34] Here, by contrast, when the defendant performed the ultrasound on Ms Caven, its conduct directly and necessarily affected the continued pregnancy of Ms Caven, in which she and her husband, the second plaintiff, had an immediate and shared interest as potential parents. It was that status which, on birth, is and was the source of their joint legal and moral obligation for the cost of care of Jared, for which they now claim damages.
[32](1998) 198 CLR 180.
[33](1976) 136 CLR 529.
[34](1931) 174 NE 441 at 444, per Cardozo CJ.

Strictly speaking it may not be necessary for me to determine, and express a view, whether the claim by the plaintiffs in this case for the care and upkeep of Jared is a claim for pure economic loss. Nevertheless, in light of the submissions which have been made, and the views I have thus far expressed, it follows that I consider that that claim is not a claim for pure economic loss, but is a claim which has an integral and unique link with the continued pregnancy of Ms Caven, and the birth of Jared, which are considered by law to constitute personal injury. However, the question for me is whether, in terms of s.27B of the Limitation of Actions Act, the damages claimed by the plaintiffs for the cost of care and upkeep of Jared are damages “that relate to the … personal injury” of Ms Caven, namely her continued pregnancy and the child birth. In this sense, the ordinary English meaning of “relate”, is “to bring into or establish association connection or relation; … to have reference to”.[35] The section does not define what type of relationship must exist between the cause of action for damages and the personal injury identified. Nonetheless, for the reasons I have set out above, it is clear that there was an intimate and essential relationship between the damages sought by the plaintiffs for the cost of care of Jared and the personal injury (pregnancy and child birth) of Ms Caven. Ms Caven’s pregnancy, and, more relevantly, her continued pregnancy and child birth, was both a product of, and a natural and integral feature of, the marital relationship between the two plaintiffs. So too is the joint obligation of the plaintiffs to care for and maintain the child born of that pregnancy. The relationship between Ms Caven’s pregnancy and the obligation of the plaintiffs to care for Jared is, on any view, direct, proximate and substantial. It would be wholly artificial to characterise such a claim for damages as one which is “unrelated” to the “personal injury” of Ms Caven constituted by her continued pregnancy and childbirth. It therefore follows that the damages claimed by the plaintiffs for the cost of care and upkeep of Jared do “relate to” the personal injury of Ms Caven for the purposes of s.27B(i) of the Limitation of Actions Act.
[35]The Macquarie Dictionary page 1434.

Mr Noonan further submitted that even if the claim of Ms Caven related to her personal injury (her pregnancy), s.27B does not apply to the claim by Mr Huysing, the second plaintiff, for the cost of upkeep of Jared. Mr Noonan contended that in order that that section apply, the damages sought by the plaintiff must relate to the personal injury of that plaintiff.

As I have already set out, s.27B(1) provides “This part applies to a cause of action for damages that relate to the death of or personal injury to a person …” (emphasis added).

Mr Noonan contrasted the use of the indefinite article “a” in s.27B with the use of the adjective “any” in s.23A(1). That section provides that s.23A applies to a claim where the damages claimed consist of or include damages in respect of personal injuries “to any person”. Thus it has been held that s.23A applies to a claim by a husband for loss of consortium arising out of an injury to his wife.[36] In my view, the use of “any” in s.23A, and “a” in s.27B, does not justify a judicial rewriting of the indefinite article in s.27B to convert it into the definite article. If the legislature had intended to confine s.27B to a claim for damages by a person that relate to the death or personal injury of that person, the provision could have been easily drafted to reflect such an intention. By contrast the use of the indefinite article makes it clear that it was intended that s.27B perform a similar role to that of s.23A, namely to cause Part 2A of the Act to apply to a claim for damages that relate to the personal injury to a person, whether or not the person claiming the damages is the person who suffered the personal injury.
[36]Petricola v Metropolitan Transit Authority (above).

Indeed, insofar as Part 2A of the Act was intended to largely supplant s.5(1)(a) and s.23A in all personal injury cases other than those specified in s.27B(2), it would be curious if a species of claim (such as the claim in Petricola,) which would otherwise have fallen within s.23A, would be excluded from coming within the new provisions in Part 2A of the Limitation of Actions Act. For those reasons, I consider that s.27B does apply to the claim for cost of care of Jared by Mr Huysing, notwithstanding that that claim relates to the personal injury of his wife and not of himself.

Section 27F: When was the plaintiffs’ cause of action discoverable?

The next question is whether the claims of the plaintiffs in these proceedings are barred by s.27D of the Limitation of Actions Act. That question depends on whether the cause of action on which the plaintiffs rely was “discoverable”, within the meaning of that term as defined in s.27F, more than three years before the writ was issued in these proceedings in December 2004. Thus the question is whether the plaintiff knew or ought to have known each of the three prescribed facts under s.27F(1) before December 2001. It is common ground that the critical question is whether the plaintiffs, on or about that date, knew or ought to have known of the facts prescribed in s.27F(1)(b), namely that “personal injury was caused by the fault of the defendant”.

The Act does not define the term “fault”. In some other contexts, such as s.5(1A), it uses a different phrase, namely “act or omission”. It is arguable that the use of the different term “fault” evinces a legislative intention that the plaintiff must know, or ought to know, not simply of the existence of the act or omission which caused the injury, but also that the injury was caused by a legal wrong. However, it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights. This matter was not argued before me. Mr Noonan submitted that I should adopt the construction of the term “fault” in s.27F(1)(b) which was adopted by his Honour Judge Stott at the County Court in Dark v Country Fire Authority[37] and Ilardi v Forster[38]. In those cases Judge Stott construed the word “fault” to mean “act or omission”. Thus the discoverability referred to in s.27F(1)(b) was held by his Honour to relate “to the time at which the plaintiff knew that there was a causative link between the defendant’s conduct and the injury he suffered”.[39] With respect I find the reasoning of his Honour to be sound and convincing. In the absence of argument to the contrary, for the purpose of these reasons, I shall adopt his Honour’s construction.
[37]Unreported, 21 June 2005, para 10.
[38][2006] VCC 793 at [16].
[39]Dark v Country Fire Authority at [10].

Mr Noonan submitted that the plaintiffs each knew, or ought to have known, that the personal injury was caused by the “fault” of the defendant in January 1998 or, alternatively, in March 2000. In support of that submission Mr Noonan referred to evidence which he submitted establishes that by those dates the plaintiffs knew each of the following facts:

(a)Jared was born with Down’s Syndrome
(b)Jared was born with a heart defect
(c)In May 1997 Ms Caven had undergone an ultrasound conducted by the defendant.
(d)Ms Caven had not been told that the ultrasound demonstrated that the baby carried by her had a heart defect.
(e)The heart defect which was suffered by Jared should have been disclosed by the ultrasound.
(f)There was a strong connection between a baby having a heart defect and the possibility of the baby being affected by Down’s Syndrome.

Based on those six facts, Mr Noonan submitted that the plaintiffs either knew or ought to have known, by January 1998, or alternatively March 2000, that, following the performance of the ultrasound in May 1997, the defendant hospital had failed to inform the plaintiffs that the baby carried by Ms Caven had a heart defect which might indicate that the baby was affected by Down Syndrome.

It is not in dispute that the first four facts, relied upon by Mr Noonan, were clearly known to the plaintiffs shortly after the birth of Jared in September 1997. The fifth fact, to which I have referred above, is based on the evidence of the plaintiffs. In paragraph 13 of her affidavit sworn 29 June 2006 Ms Caven stated:

“In approximately January 1998, in the course of Jared being reviewed by a cardiologist, the cardiologist asked me if I had undergone an ultrasound in the course of my pregnancy. I informed the cardiologist that I had. The cardiologist stated that the defect should have been picked up on the ultrasound. I thought that the cardiologist is referring to Jared’s heart condition because he was a cardiologist, he used the word defect, and Jared was having a review after cardiac surgery. I did not understand or believe the cardiologist to be referring to Jared’s Down Syndrome when he made this comment.”

In paragraph 4 of his affidavit Mr Huysing referred to paragraph 13 of his wife’s affidavit and confirmed that he was present when Jared was reviewed by the cardiologist. Mr Huysing stated:

“I also recall the cardiologist inquiring as to whether my wife had undergone an ultrasound and the cardiologist stating that the defect should have been picked up on the ultrasound. At no time did the cardiologist refer to Jared’s Down Syndrome when he made this statement. Further I did not understand the cardiologist to be saying that there was a connection between the heart defect and his Down Syndrome.”

In cross-examination, Mr Huysing sought to qualify that part of his affidavit by stating that he understood the cardiologist to have been saying that the heart defect should have been picked up by the ultrasound “in a perfect world”. I do not accept that that qualification accurately reflects Mr Huysing’s state of mind. It was something which emerged in the heat of cross-examination. Both Mr Huysing and his wife, in their affidavits, recited the advice given to them by the cardiologist without any qualification such as that advanced by Mr Huysing in cross-examination. While I consider that Ms Caven and Mr Huysing were fundamentally honest and candid witnesses, who endeavoured to do their best in their evidence, nonetheless I do consider that that part of Mr Huysing’s evidence was an exercise by him in rationalisation rather than an accurate reflection of what he recalls being told by the cardiologist in January 1998. It follows that I accept that the plaintiffs were informed by a cardiologist, in January 1998, that Jared’s heart defect which had then been diagnosed should have been disclosed on the ultrasound of May 1997.

Mr Noonan submitted that the plaintiffs’ knowledge of the sixth fact, which I set out above, was based on two pieces of evidence given by each plaintiff. First, in cross‑examination, Ms Caven stated that shortly after Jared was born she was given a book on Down’s Syndrome. On page 69 the book stated that approximately 40 to 45 percent of babies with Down’s Syndrome are born with heart defects. Ms Caven stated that she had read part of the book at Jared’s bedside in hospital. She agreed that she most certainly read the chapter about heart defects and she assumed that she read the passage to which I have just referred. In cross-examination Mr Huysing agreed that he had read and notated with his own handwriting the section of the book relating to atresia. Although he could not specifically recall reading the section relating to heart defects, he agreed that he may have read the book to ascertain the problems which were then facing Jared. Mr Huysing was a secondary school science teacher. He struck me as an intelligent person. At the time the plaintiffs received the book, Jared’s principal problem was his heart defect. In those circumstances, on the balance of probabilities, I do accept that that both plaintiffs either read or knew of the contents of the part of a book which stated that about 40 to 45 percent of children affected by Down’s Syndrome also have heart defects.

The second item of evidence on which Mr Noonan relies to establish the sixth fact arises from the ultrasound conducted on Ms Caven in March 2000 by Dr Lachlan De Crespny, when Ms Caven had become pregnant with her third child. Ms Caven, in cross-examination, agreed that at the time she was undergoing that ultrasound in Dr De Crespny’s rooms, she understood that if the ultrasound identified a defect in the baby’s heart, there was a possibility that the child might be affected by Down’s Syndrome. In the course of cross-examination Mr Huysing also made a similar concession, but subsequently contradicted it. Mr Huysing was present when Ms Caven underwent the ultrasound. In those circumstances, on the balance of probabilities, I do accept that Mr Huysing also understood that if the baby then carried by Ms Caven was shown by the ultrasound to have a heart defect, that might be an indication that the child could be affected by Down’s Syndrome.

Mr Noonan submitted that, based on those six facts, it was “inevitable”, and I should find, that the plaintiffs realised, by at least March 2000 that the defendant had failed to advise them that the ultrasound of March 1997 demonstrated the evidence of a heart defect in the foetus which was an indicator that the baby might be affected by Down’s Syndrome. He submitted that both plaintiffs are intelligent people who were well alert to the nature of Jared’s problems after he was born. He therefore submitted that I should conclude that both plaintiffs had become aware, at least by 2000, of the fact that that after the ultrasound the defendant had failed to disclose to the plaintiffs that Jared had a heart defect which, if disclosed to the plaintiffs in May 1997, would have indicated the possibility that the baby might suffer from Down’s Syndrome.

In their evidence, both plaintiffs swore that until their solicitor, Mr Henderson, told them of the report of Dr Phillipa Ramsey, they did not know whether the cardiac views of Jared on the ultrasound conducted in May 1997 should have alerted the radiographer to the potential that the baby suffered from Down’s Syndrome. In other words both plaintiffs swore that they did not draw the inference which Mr Noonan has submitted inevitably must have been drawn by them, based on all the facts with which they were seized. Both plaintiffs were skilfully and thoroughly cross-examined by Mr Noonan. I closely observed both of them under cross‑examination. Subject to the one qualification which I have already mentioned, I consider that both plaintiffs were candid and reliable witnesses. I do not accept that they have untruthfully denied knowing that the cardiac views of the ultrasound should have alerted the radiographer, in May 1997, to the potential that the baby had Downs’s syndrome. Indeed, it would seem to me that if that circumstance had dawned on the plaintiffs during those years, it is most unlikely that they would have done nothing about it. Neither plaintiff struck me as being an entirely passive person. Ms Caven, despite her heavy load at home, has returned to the work force, involved herself in part time study, and continued her duties as a Sergeant in the Army Reserve. I consider it most unlikely that she, or her husband, would have simply remained inactive had either of them realised that the defendant had failed to advise them of a critical fact which might have alerted to them to the fact that the baby carried by Ms Caven in May 1997 might be affected by Down’s Syndrome.

There is of course a fundamental difference between facts which the plaintiff might have known, and facts which they might have simply suspected.[40] Furthermore, there is an important and substantial difference between, on the one hand, knowing a fact in question, and, on the other hand, being seized of certain other facts which are capable of leading to an inference or suspicion as to the existence of the fact in question. In other words it is one thing for the plaintiffs to have had in their possession and known of the six facts relied upon by Mr Noonan. It is another matter for them to have subjectively drawn the inference on which Mr Noonan relies, namely, that the ultrasound in May 1997 should have disclosed to the plaintiffs a heart defect which was commonly associated with Down’s Syndrome. In hindsight the drawing of such an inference might be logical and even obvious. However that does not mean that the plaintiffs themselves did, in the circumstances in which they found themselves, subjectively draw that inference or, to adopt the phrase used in the course of argument, “join the dots”.
[40]Compare Paget v JLT Workers Compensation Services Pty Ltd and Glenelg Shire Council [2005] VSCA 144 at [29] [34], per Callaway JA.

Accordingly I reject the proposition advanced on behalf of the defendant that by January 1998 or March 2000 the plaintiffs knew that the continued pregnancy of Ms Caven, which resulted in the birth of Jared, was “caused by the fault of the defendant”.

The question which then arises is whether, before December 2001, the plaintiffs ought to have known that the personal injury of which they complain was caused by the “fault” of the defendant. As I have stated, the personal injury relied on by the plaintiffs is the continued pregnancy of Ms Caven, which she lost the opportunity to terminate after the ultrasound in 1997. The question is whether, before December 2001, the plaintiffs ought to have known that the cardiac views of the ultrasound should have alerted the radiographer to the possibility that the baby might suffer from Down’s Syndrome. In turn, s.27F(2) raises the question whether that fact would have been ascertained by the plaintiffs had they taken all reasonable steps before December 2001 to ascertain it.

The answer to this question is not easy. It involves an exercise obscured by the wisdom of hindsight. It requires me, as a judge, to postulate what reasonable steps ought have been taken by the plaintiffs in the circumstances in which they found themselves, and what they might have learnt, had they taken such reasonable steps.

Mr Noonan submitted to me that, at least by March 2000, the plaintiffs ought reasonably to have consulted a solicitor. Certainly had the plaintiffs done so, then it would be open to conclude that, ultimately, they would have gained the knowledge which they have subsequently derived from the report of Dr Ramsey, namely, that the cardiac views shown on the ultrasound should have alerted the radiographer to the potential for Down’s Syndrome, because 50 percent of Down’s Syndrome foetuses have some sort of heart defect.

The question is, then, given the information in the possession of the plaintiffs in January 1998 or alternatively March 2000, should they have then consulted a solicitor, as a consequence of which they would have, ultimately, gained the knowledge which is contained in the report of Dr Ramsey. In my view it would be setting too high a standard of reasonableness to have expected the plaintiffs to have made inquiries of the solicitor when the cardiologist first spoke to them in January 1998. At that time they were under considerable pressure. Jared was gravely ill. They were adjusting their lives with a seriously ill young baby with Down’s Syndrome. In my view they did not, at that time, fail to take the reasonable steps postulated by Mr Noonan, namely, to instruct a solicitor to inquire whether the hospital had failed to inform them that the ultrasound disclosed a cardiac defect which might have alerted them to the potential for the baby to have Down’s Syndrome.

However, the position did change somewhat by March 2000. By then, although Jared’s health was still poor, they were not confronted with the immediate and pressing health crises of Jared’s earlier days. Further, in March 2000, their knowledge as to the link between heart defects and Down’s Syndrome, which they had gained from a book, was reinforced by what they learnt when consulting Dr De Crespny. By then they knew that if the ultrasound of the next baby indicated a heart defect, that was a potential indication that that baby was affected with Down Syndrome. By then they knew each of the six facts on which Mr Noonan has relied. In particular they knew that Jared had a heart defect, that he had Down’s Syndrome, and that they had not been informed that the ultrasound performed in 1997 had disclosed either such matter. They also knew, from what they were told by the radiologist in January 1998, that the heart defect should have been disclosed by the ultrasound. Finally, their knowledge as to the potential link between the detection of a heart defect, and the detection of Down’s Syndrome, had been reinforced. In those circumstances, and even allowing for judicial wisdom of hindsight, it would seem to me that ordinary reasonable parents would have been particularly curious as to why, after the ultrasound, they had not been informed that Jared might have a heart defect, which might be a pointer to the existence of the Down’s Syndrome. In my view it would not be unreasonable to have expected persons in the position of the plaintiffs to have consulted a solicitor, at least with a view to making inquiries as to whether the ultrasound did in fact disclose a heart defect, and if so whether that the heart defect might have been a pointer to the baby then carried by Ms Caven being affected with Down’s Syndrome. If the plaintiffs had made such inquiries, then it is probable that a prudent solicitor would have done just what Mr Henderson did, namely, consult an appropriately qualified obstetric radiologist.

Dr Ramsey, when consulted, advised that the cardiac view should have alerted the radiographer to the potential for Down Syndrome’s because 50 percent of Down’s Syndrome foetuses have some sort of heart defect. Dr Ramsey does not state that that knowledge only lay within the expertise of any particular narrow specialty. In those circumstances I consider it appropriate to infer that, if the plaintiffs had consulted a solicitor in 2000, then the solicitor would have received the type of advice obtained by Mr Henderson, which would have informed the plaintiffs of the fact that the defendant had failed to inform the plaintiffs that the ultrasound conducted in May 1997 showed a heart defect which was commonly associated with Down’s Syndrome. Thus I conclude that at some time after March 2000 the plaintiffs ought to have known that the personal injury which is the basis of their action (the continued pregnancy of Ms Caven) was caused by the fault of the defendant under s.27F(1)(b) of the Limitation of Actions Act.

It thus becomes necessary to determine, for the purposes of s.27D, when it was that those facts ought to have been ascertained by the plaintiffs. The answer to that question lies in determining when information of the type contained in Dr Ramsey’s report would have been available to the plaintiffs, had they consulted a solicitor shortly after March 2000.

The affidavits of Ms Caven and of the plaintiffs’ solicitor, Mr Henderson, set out the events which occurred after the plaintiffs first consulted the solicitors in April 2004. In the upshot it was not until 29 November 2005 that the solicitors received Dr Ramsey’s report. The delay was not of the making of either the plaintiffs or the solicitors. A substantial part of the delay until February 2005 occurred in obtaining funding for the plaintiffs from Law Aid. Dr Ramsey was instructed in April 2005, but her report was not received for a further seven months. If the plaintiffs had consulted solicitors shortly after March 2000, it does not necessarily follow that there would have ensued the same period of delay until they received a report similar to that of Dr Ramsey. However, the delay which occurred between April 2004 and November 2005 does provide some guide as to the type of period which would have lapsed between the plaintiffs’ first consultation with solicitors, and the receipt of an appropriate expert’s report, if the plaintiffs had consulted a solicitor shortly after March 2000. In the absence of any other evidence, on the balance of probabilities I would infer that such a delay would have been in the order of some 12 months or so. It therefore follows that if, shortly after March 2000, the plaintiffs had consulted solicitors, then they would have ascertained the relevant facts set out in s.27F by approximately April 2001. In the terms of s.27D, it was then that the cause of action relied on by the plaintiffs was “discoverable”. The writ in this proceeding was not issued until December 2004. I therefore conclude that the proceedings have commenced more than three years after the expiration from the date on which the cause of action of the plaintiffs was discoverable by them.

Accordingly it is necessary for me to determine whether I should grant the plaintiffs’ application to extend the period of limitation applicable to the plaintiffs’ cause of action pursuant to s.27K(2) of the Limitation of Actions Act.

Section 27K(2): Application to extend period of limitation

Section 27K(1) provides that a person claiming to have a cause of action to which Part 2A applies may apply to a Court for an extension of a period of time applicable to that cause of action. Section 27K(2)(b) provides that the Court may “if it decides that it is just and reasonable to do so” order the extension of the period of limitation applicable to the cause of action for such period as the Court determines. Section 27L provides that in exercising the powers provided by s.27K the Court shall have regard to all the circumstances including (but not limited to) the set of factors numerated in s.27L(1). It is convenient if I consider the application by the plaintiff by reference to those factors.

(a)Length of and reasons for delay.
The first factor is the length of and the reasons for the delay on the part of the plaintiff. In the context of s.23A(3)(a), which is identical terms, the Courts have construed the “delay” to be the period from the accrual of the cause of action to the making of the application for extension of time or the issue of the writ[41].
[41]Repco Corporation Limited v Scardamagilia [1996] 1 VR 7 at 11; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 616.
I have already held that the plaintiffs ought to have known all of the facts necessary to constitute the cause of action by approximately April 2001. If they had learnt of those facts by then, proceedings would have been issued shortly thereafter. Accordingly the relevant period of delay is approximately three and a half years.
The explanation for that delay is contained in the affidavit of Ms Caven. There she states that she contacted her solicitors in March 2004 because at that time Jared’s heart condition had deteriorated. Furthermore, it was becoming apparent to Ms Caven that Jared’s development “when considered against the development of my other children was significantly delayed”. She states that she was also informed that he may require further surgery as his heart enlarged with age.
In cross-examination by Mr Noonan, Ms Caven stated that in 1999 it was evident to her that Jared’s development was significantly delayed compared with the development of her eldest child, Maddison, at a similar age. By that time Jared was already attending EPIC, the early intervention centre. Accordingly Mr Noonan contended that the explanation of the delay given by his Ms Caven in her affidavit was substantially discredited.
In re-examination Ms Caven stated that until Jared commenced school her main concerns with him related to matters of health rather than his development. However when he commenced school she stated “I see it as my eyes were opened, in that school isn’t going to provide him with everything he needs in terms of speech, because … he seemed to understand the routine and what was happening, but he was not able to verbalise it”. She stated that she became concerned as to Jared’s ability to cope in a mainstream school.
It seems clear that, from an early stage, Ms Caven, and indeed Mr Huysing, were each aware that Jared’s development was and would be substantially delayed behind that of other children. Nonetheless, I accept that it was not until Jared commenced school that the full impact of that developmental delay was brought home to the plaintiffs, when they had the opportunity to compare his development with that of other children who were in the mainstream of education. It is understandable that a parent might not fully appreciate, subjectively, the full extent and effect of the child’s disability until the child can be compared in a situation such as the commencement of school. That explanation does, in some measure, provide some palliation of the delay of the plaintiffs in commencing with litigation. However, it does not entirely excuse that delay. After all, as pointed out by Mr Noonan, the plaintiffs were well aware that Jared did have significant developmental problems, from as early as 1999. Those developmental problems were sufficient to require him to attend EPIC. There is little evidence before me as to the nature and extent to which Jared suffers from Down’s Syndrome. However, in re-examination Ms Caven did tell me that in his early years he lagged significantly behind her elder child in achieving the usual milestones such as sitting up, crawling and walking.

(b)The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant.
The defendant has not sought to establish, or contend, that it has suffered, or will suffer, any prejudice to it in the conduct of the litigation, or otherwise, as a consequence of the delay in the commencement of proceedings. In some cases, it is appropriate that to infer that, nonetheless, some prejudice may be occasioned, even if the defendant is unable to establish such prejudice.[42] Certainly in some cases of professional liability, it is clear that delay in the commencement of proceedings redounds to the disadvantage of a defendant, particularly where there is a dispute as to what advice was or was not given to a patient or client. However, that is not the case here. It was accepted by Mr Noonan that the issue of liability in this case will depend, significantly, on expert evidence as to what may be observed on the video of the ultrasound performed on Ms Caven on 12 May 1997, and what advice ought to have been given to Ms Caven as a result of that procedure. There is no suggestion that Ms Caven was informed, at all, that the ultrasound disclosed a heart defect, or gave any indication of Down Syndrome or indeed any other abnormality in the foetus. In those circumstances the question of the potential for prejudice to exist is of little significance in this application.
[42]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 to 553.
(c)The extent if any to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendants.
Mr O’Dwyer submitted that the defendant had the means available to it to inform the plaintiff of the facts which are relevant to the present cause of action. To some extent that proposition is correct. The ultrasound was taken by the defendant, and it was the defendant’s expert radiologist who viewed and interpreted the film. Nonetheless the plaintiffs did know that the first plaintiff had undergone the ultrasound in May 1997. As I have found, by March 2000, they knew of sufficient facts to put them on inquiry as to what the ultrasound should have disclosed to them. Accordingly I do not consider that this circumstance to be particularly significant in the determination of this application.
(d)The duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability.
This consideration is not relevant.

(e)The time within which the cause of action was discoverable.
I have already found that the cause of action was discoverable by approximately April 2001.

(f)The extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant to which the injury of the plaintiff was attributable might be capable at that time of giving rise to an action for damages.
This sub-paragraph relates to a different consideration in that set out in sub-paragraph (e). This consideration focuses on the time when the plaintiff actually knew that the defendant’s act or omission, to which the plaintiffs’ injury, might be capable of giving rise to an action of damages. The plaintiffs did not know that fact until they received the report of Dr Ramsey.
(g)The steps if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
This consideration is allied to the previous consideration, namely, the plaintiffs obtained the report of Dr Ramsey in November 2005.

Section 25L(2) provides that to avoid doubt the circumstances referred to in sub-section (1) include (inter alia) the nature and extent of the plaintiffs’ loss. The plaintiffs did not adduce any medical or other evidence as to the nature and extent of the Down Syndrome condition suffered by Jared. Nonetheless the evidence of the nature of his developmental delays, both in Ms Caven’s affidavit and in her evidence, make it clear that the claim by the plaintiffs, particularly for the cost of care of Jared, is not insubstantial. In addition Jared has had significant health problems, particularly relating to his cardiac condition. On any view, it is reasonable to assess the plaintiffs’ claims, if they are successful, as being of some substance.

In light of the considerations that I have set out above, the question is whether it is just and reasonable in the circumstances to order that the period of limitation applicable to the plaintiffs’ cause of action be extended to the date upon which proceedings are issued in this case, 21 December 2004. Essentially that question involves a proper assessment and balancing of all of the relevant factors to which I have already adverted. There has been reasonably significant delay. On the other hand, the reasons for that delay advanced by Ms Caven are to some extent at least “understandable”. The defendant has not demonstrated that it will suffer any prejudice, whether in the litigation or otherwise, as a result of the delay. The claim by the plaintiffs, if it succeeds, is not insubstantial. If they are deprived of the ability to pursue that claim, they would lose the opportunity to vindicate a substantial right. Having regard to all those circumstances it is my conclusion that it is just and reasonable to extend the time within which the proceeding might be commenced to 24 December 2004. Therefore I order that the period of limitation applicable to the cause of action on which the plaintiffs have brought these proceedings be extended to that date.

In their summons to extend the limitation period applicable to their action, the plaintiffs relied, by way of alternative, on s.23A of the Limitation of Actions Act. In light of the conclusions which I have already reached it is not necessary for me to decide whether s.23A would have applied so as to permit an extension of time for the plaintiffs’ claim. The question of the application of s.23A may turn on the construction of s.23A(6), which was inserted in the legislation in 2003. That provision provides that s.23A “does not apply to an action to which Part 2A applies.” This provision was only raised in submissions in reply and was not the subject of detailed argument before me. As it is not necessary for me to determine the proper construction of that provision I shall decline to do so. However, if apart from s.23A(6), s.23A applied to these proceedings, then it is appropriate for me to express the view that, if necessary, I would have concluded that the claims of both plaintiffs came within s.23A. That provision applies to claims for damages which “consist of or include damages in respect of personal injuries to any person”. The phrase “in respect of” was described by Murphy J in Petricola’s case[43] as a broad expression denoting “some connection or relation between the two subject matters to which the words refer.” In Petricola’s case, accordingly, it was held that the husband’s claim for loss of consortium was a claim for damages in respect of the injury to his wife. Likewise, in my view, the claims of the plaintiffs in this case, both for personal injuries, and for the cost of the car of Jared, would be claims for damages “in respect of” the continued pregnancy and childbirth undergone by the first plaintiff. Section 23A(3) prescribes, with one irrelevant exception, the same list of circumstances as s.27L(1), which the Court is to consider and determine whether to grant an extension of time. It follows that if it were necessary for me to so decide, I would have concluded that the claims of both plaintiffs came within s.23A, and the plaintiffs would have been entitled to an extension of the limitation period under that section, apart, of course, from considerations as to the correct construction of s.23A(6).
[43]Above p.68,636.

Conclusions

I therefore summarise the conclusions which I have reached in this application as follows:

(1)I consider that that part of the plaintiffs’ claim in respect to the additional cost of care of their son Jared as a consequence of his Down’s Syndrome, and for loss of time from work as a consequence of Jared being affected by that condition, is a cause of action or a part of a cause of action which relates to personal injury to a person pursuant to s.27B of the Limitation of Actions Act 1958.
(2)The cause of action pleaded by the plaintiffs in their statement of claim was discoverable by the plaintiffs before 21 December 2001 and therefore is barred pursuant to s.27D(1)(a) of the Act.
(3)The plaintiffs should be granted an extension of time to 21 December 2004 within which to bring proceedings in respect to that cause of action pursuant to s.27K.
(4)It is not necessary for me to determine the alternative application by the plaintiffs for an extension of time under s.23A of the Limitation of Actions Act. If it were so necessary, and apart from questions of the construction of s.23A(6), I would conclude as follows:
(a)that part of the damages claimed by the plaintiffs for the additional cost of care of their son Jared as a consequence of his Down’s Syndrome and for loss of time for work as a consequence of Jared being affected with that condition is an action for damages where the damages claimed include damages in respect of personal injuries to any person within s.23A of the Act;
(b)it would be just and reasonable to order, pursuant to s.23A of the Act, that the period within which an action on the cause of action may be brought be extended so as to allow the plaintiffs to bring this proceeding.

ORDERS

Based on those conclusions it seems necessary only to make an order in terms of s.27K, namely that the period of limitation applicable to the cause of action relied on by the plaintiffs in this proceeding be extended up to and including 21 December 2004.

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[2007] VSC 7

2 February 2007