Commonwealth of Australia v FJ (A Pseudonym)

[2017] HCATrans 211

[2017] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M58 of 2017

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

FJ (A PSEUDONYM)

Respondent

Application for special leave to appeal

BELL J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 OCTOBER 2017, AT 10.32 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR R.C. KNOWLES, for the applicant.  (instructed by Moray & Agnew)

MR M.F. WHEELAHAN, QC:   If the Court pleases, I appear with my learned friend, MR M.J. HOOPER, for the respondent.  (instructed by Slater and Gordon Solicitors)

BELL J:   Thank you.

MR KIRK:   Your Honours, may I start with the statutory definition of “injury” which your Honours will find in the application book at page 121 round line 40 and as is common for statutes of this kind it does contain a great deal of content.  Your Honours will see round line 40 that:

injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a)      a disease; or

(b)      the aggravation of a physical or mental injury.

So it is an inclusive definition.  There is, of course, however, a great deal of judicial guidance for such definitions which are to be found in a range of workers compensation statutes and related statutes and if I could take your Honours briefly to page 108 of the application book at paragraph 9 within our primary submissions there are some of the familiar terms from previous cases, recognising that of course is not statutory text, but we would give particular emphasis to “disturbance of the normal physiological state which may produce physical incapacity and suffering” and that that need not be sudden, as this Court confirmed in May’s Case last year.

Now, that argument did not commend itself to the Court of Appeal.  If your Honours could go to page 66 of the application book at paragraph 75, particularly the last six lines or so of paragraph 75, the sentence beginning “While pregnancy will bring about physiological changes ‑ ‑ ‑

BELL J:   Well, there is a bit to be said for what their Honours say there, is there not?  Puberty brings about physical changes.

MR KIRK:   Yes, of course, that is quite right and my learned friends also give the examples of getting older or fatter or so forth.

BELL J:   Yes, growing taller. 

MR KIRK:   Indeed.  The response we would make to that is that that ignores, in a sense, the legal premise of these claims for what are sometimes called wrongful births, namely, that what is interfered with and, indeed, this is put by my learned friends in their submissions, accepted by the Court of Appeal, is an interference in, as my friends call it, the right to plan a family.  It is interference in what some of the American cases call “reproductive autonomy”, a phrase picked up by Justices McHugh and Gummow in Cattanach v Melchior. 

So, the very premise of these types of claims is that it is for the parents and, in particular, of course, for the prospective mother to choose whether or not to seek to become pregnant, to become pregnant and to allow that pregnancy to continue.

NETTLE J:   It sounds a long way from a soldier’s service injury.

MR KIRK:   That is certainly true, your Honour, but fundamentally the starting point here is injury and the question then is whether to interfere, as my friends put it, with the right to choose about whether the pregnancy continues has such an effect on the physiology of the woman as to fall within “injury”.

EDELMAN J:   But you are conflating two different meanings of “injury” there.  There is one very old meaning of “injury” which I do not understand you to put which is that injury in the sense of injuria, or the interference with a right, any wrong is an injury in that sense.  There is another meaning which is it is some form of consequence.  Your concern is the latter.

MR KIRK:   Correct.  That is quite true, with respect.  The consequence here is a consequence leading to the continuation of a pregnancy and childbirth and that has, to state the obvious, significant effects on the mother’s physiology leading to claims of pain and suffering and so forth.  That leads me to this point.  If your Honours go to page 68, paragraph 83, the Court of Appeal in the second half of the paragraph rightly, with respect, acknowledge that for these wrongful birth claims – again you will forgive the label - pain and suffering awards and associated costs to do with a pregnancy and childbirth are commonly awarded. 

Now, an example of that is Melchior v Cattanach in the framework before it came to this Court.  Can I provide to your Honours some cases, I just want to take your Honours to them very briefly.  We have some bundles here if I can hand those out?

BELL J:   In circumstances where there is no longer a claim of the kind commonly made in relation to pain and discomfort associated with pregnancy and childbirth, what point are you now developing?

MR KIRK:   Because, your Honour, in a sense, that is the very heart, with great respect, of the point of this special leave application.  As your Honours would have seen in the statement of claim and the amended statement of claim, a claim was made for pain and suffering and I think psychological injury as well.  By a couple of strokes of the red pen that was cut out from what became the…..accepted in the Court of Appeal.  The core of our argument is to say that it should not be possible in the terms of this statute to so easily sidestep the operation of the bar in section 388 by simply saying we are no longer going to claim part of what we previously claimed for even though it is fundamental to the case.

BELL J:   So you will now take us to cases in which the focus has been on pain associated with childbirth in order to make good that a claim that is not for that might fall within the notion of a service injury.

MR KIRK:   But it should not be forgotten, of course, your Honour, that the statutory language, to go back to section 388 itself, which is found, for example, at page 129 is - and it is terms familiar from other such statutes, in 388(1) just under line 20 that:

an action or other proceeding for damages does not lie against the Commonwealth . . . in respect of:

(a)      a service injury –

So it is not just in relation to the injury itself.  It is the broader notion of “in respect of”.  So, fundamental to our submission is that at the heart of the claim here is the pregnancy and the childbirth.  The logic of where my learned ‑ ‑ ‑

EDELMAN J:   It is not the pregnancy, is it?  It is the continuation because you do not complain about the pregnancy.

MR KIRK:   No, that is right.  It is the continuation of the pregnancy.  Where the argument of my learned friends leads, if I can take your Honours to their written submissions briefly at page 138, at the bottom of the text at page 138 within paragraph 23, my learned friends say:

That the respondent was pregnant and gave birth to a child was no more than a concomitant. 

Now, with great respect to my learned friends, that first is the logical conclusion of my friend’s argument but, secondly, cannot be right.  The continuation of the pregnancy and the birth is not just a concomitant.  It is the foundation of all that follows.  The claim here for economic – the economic costs of raising the child is because of the pregnancy and the childbirth.  It is clearly “in respect of” it, albeit, it is a consequence of it. 

BELL J:   Accepting that, where do we get to injury?

MR KIRK:   It comes back to injury because first, the point I have made about the change to physiological processes and so forth to a woman’s body and I have dealt with that point but, secondly, a whole range of cases including judgments of this Court, have recognised that at the heart of these wrongful birth claims is a claim for personal injury.  Now, I have to acknowledge that different judges have seen it in different ways.  So, in this Court, for example, if I could go to the Court of Appeal’s summary of it at – summary of Cattanach v Melchior at page 80 of the application book.

NETTLE J:   It was all over the place in Cattanach v Melchior, was it not?

MR KIRK:   Yes, and the Court of Appeal, with respect, summarises it quite well.  Chief Justice Gleeson ‑ ‑ ‑

NETTLE J:   That is economic loss.

MR KIRK:   ‑ ‑ ‑ saw it as pure economic loss in the minority.  Justice Kirby in the majority said it is at its heart personal injury.  Justice Hayne in the minority said at its heart it is personal injury.  Justices Callinan and Heydon did not address that aspect of the argument.  Justices McHugh and Gummow ‑ ‑ ‑

BELL J:   None of their Honours were looking at it in the statutory context of what constitutes an injury much less a service injury.

MR KIRK:   No, that is – sorry.  I accept the force with respect of what your Honour puts to me, that is true, and this is obviously the first case to deal with it.  Caven’s Case, which I will come to momentarily, is the closest analogy as the Court of Appeal accepted it and I will say something about that shortly.

BELL J:   That is the statute of limitations case.

MR KIRK:   Correct.

NETTLE J:   It is a really interesting point but you do not get to it unless you get past injury, do you?

MR KIRK:   That is true.  So, the starting point for the analysis is injury.

NETTLE J:   It is the starting point and finishing point, really.

MR KIRK:   Well, if we lose on it, it is the finishing point.  If we do not lose, we get beyond that.  As to why it is injury, so first, you have two judgments, one in the majority, one in the minority, in this Court treating as a personal injury, I accept for a different purpose.  You have a range of other judgments, if I can just hand up this bundle ‑ ‑ ‑

EDELMAN J:   Just while you are doing that, do you accept that a continuation of a pregnancy does not fall within the ordinary meaning of the word “injury”?

MR KIRK:   Within the ordinary dictionary definition or the primary dictionary definition?

EDELMAN J:   If one went to a doctor and said “I have been pregnant for a while; my pregnancy is continuing”, the response would not be how would your injury be treated?

MR KIRK:   It is a bit hard for me to make that argument, I accept that.

EDELMAN J:   What then, if it is not within the ordinary meaning of “injury”, what is the special legal meaning of “injury” that would pick up a continuation of a pregnancy within this Act?

MR KIRK:   First, because of that point I made about the physiological changes and so forth which reflects very long established case law of this Court and other courts for a range of such statutes and that, I do not think it is in dispute that that case law has wisdom to offer for this statute as it does for other statutes, but secondly, because of the nature of the wrongful birth claim and the way it has been dealt with. 

Now, your Honour, Justice Bell rightly asked me, well, what about other analogies.  It is far from perfect because every statute depends on its own terms and that might be said of Caven too, which I will come back to, but the third case that I have just handed to your Honour is a New Zealand case of the Supreme Court – Allenby - concerning their statutory compensation scheme with which your Honours will be familiar. 

Now, I recognise it turns on particular definitions.  If I can take your Honours to the relevant one at page 435 within her Honour the Chief Justice’s judgment.  There is a definition of “personal injury” in section 26 of the New Zealand Act and the main relevant one was (b):

physical injuries suffered by a person, including, for example, a strain or a sprain –

Now, over the page, paragraphs [18] to [19], if your Honours start about line 20 in paragraph [18] her Honour says: 

If a “sprain or strain” amounts to personal injury –

and pausing there I note that is not language we have here:

impregnation (with its profound impact on the physiology of the woman) is properly seen as physical injury . . . It must be interpreted in the light of the purposes of the Act which are concerned with establishing entitlements for impairment, rehabilitation, and treatment.

Now, I pause there to note, that was one of the arguments put against us by the Court of Appeal that this statute here is to do with rehabilitation and treatment but treatment in relation to pregnancy and childbirth is well within the ordinary meaning of that phrase.  Within the plurality’s judgment, if your Honours go to page 451, Justice Blanchard writing for three members of the Court, starting about five lines in:

The development of the fetus following impregnation occurs because of the medical error –

This was a medical error case:

just as in the case of the undetected tumour.  It causes significant physical changes to the woman’s anatomy –

and then down to the end of the page, your Honours.

EDELMAN J:   But is that not concerned with the section 20(2)(g), which is at page 434:

personal injury caused by a gradual process . . . consequential on personal injury suffered by the person for which the person has cover ‑ ‑ ‑

MR KIRK:   That may well be right, that is not true of what Chief Justice Elias was talking about.  She goes on to deal with that issue separately.  But, even accepting that, your Honour, what the plurality says there illustrates the point I am seeking to make about physical changes to the mother’s body.  Then, within Justice Tipping’s judgment at page 453 on the last page, paragraph [88], his Honour says:

I am unable to accept that the changes which occur to a woman’s body as a result of pregnancy do not come within the compass of the expression “physical injuries” in the context of the legislation in issue.  Clearly the bodily changes are of a physical kind.

Then, the first five lines of [89], to come back to an issue your Honour Justice Bell raised with me: 

I am not persuaded to a different view by the argument that pregnancy is “a natural process” and is necessary for the survival of the human species.

That is a point my friends make:

A woman is entitled to choose whether or not to become pregnant.  If she does not wish to do so, the consequences of her becoming pregnant are not to be discounted because pregnancy per se is a natural process.

So, here is a decision of the ultimate Court of Appeal of New Zealand.  It is not a direct analogy, there are differences, I accept that, but it is close and it takes by five/nil a different view to what the Court of Appeal has taken.

EDELMAN J:   Only on the point of pregnancy, not on the point of the continuation of a pregnancy that may not be – where the pregnancy itself may not be referable to the wrong at all.

MR KIRK:   We would say there is no material difference because in terms of the ongoing changes - it is the very point that pregnancy is a continuing process, to state the obvious, which continues to have effect on the woman’s body leading up to childbirth and it is the childbirth, in particular, which often sounds in the pain and suffering awards.

NETTLE J:   Dr Kirk, can I ask, apart from this New Zealand authority to which you have just taken us, do you know of any case, at least in Australia or UK or New Zealand for that matter in which a change, a physiological change which is not pathological has been held to constitute an injury?

MR KIRK:   I do not think I can name one, no.

NETTLE J:   That is what seems to be missing from this analysis, with great respect, to the Supreme Court of New Zealand.  There is no reference to the implicit requirement of a pathological change to constitute an injury.

MR KIRK:   Well, save that – I accept the force of that, your Honour, save that we are in this very unusual area of law here where it is the continuation – that is the very premise as I put it earlier, of the wrongful birth claim or at least some of them ‑ it is the continuation of the pregnancy.

NETTLE J:   Which rather suggests that Chief Justice Gleeson was right about being a claim for economic loss but it does not make something that is not pathological become pathological just because it is not wanted.

MR KIRK:   Well, that may be right but that was one view.  It depends how one views “pathological” perhaps.  The claim here is that the plaintiff would have terminated the pregnancy if she had known of it in time and she did not.  So, that led to a continuation of changes in her body, leading to childbirth, with all the pain and suffering that that brings and for which you could normally get compensation at a common law claim.

Can I then come to Caven, which the Court of Appeal did deal with?  Your Honours will be familiar with Caven.  Can I just turn directly to how the Court of Appeal distinguished it at page 87, paragraph 115?  Their Honours say that, with respect, the analysis – to paraphrase Justice Kaye - is persuasive:

However, there are two matters that prevent the analysis . . . from being decisive in the present case.  First, there are matters proper to the construction of the Act . . . Second . . . the applicant has expressly eschewed any claim for the physical or psychological pain and suffering –

That point is re‑emphasised at page 93, paragraph 131, where again their Honours say:

The closest any judgment gets to a holding that pregnancy and childbirth are injuries is the judgment of Kaye J in Caven. 

Repeats the same two reasons and then gives the third reason at the end about:

different expansive constructional techniques apply to a . . . extension of time provision in a Limitation of Actions –

from those that apply here.  Can I deal with those in reverse order?  As to the last argument, first, that is not, in our respectful submission, consistent with the coherence of the law to, in effect, read injury down when it suits a complainant and read injury up when it does not.  Secondly, in any event, the statute here is a compensation statute and in some instances it may be in the interests of persons such as the plaintiff to read it up to extend to compensation.  That is the third reason.  The second reason which has been raised with me is that here, pain and suffering has been eschewed. 

Now, I have already made the point, well, that means that through one stroke of the pen you can seek to circumvent the bar but it leads to this further point in what we would respectfully say is an inconsistency in the Court of Appeal’s reasoning.  What the Court of Appeal goes on to deal with is the “in respect of” point and at page 94, paragraph 133, the Court of Appeal say, second line:

The words ‘in respect of’ is a connecting phrase that extends the reach of the bar . . . the expansionary connective will mean that a proceeding is barred even if all references to pain and suffering are removed from the pleading, if pregnancy and childbirth are an ‘injury’; it will catch a claim by a husband –

Paragraph 136 on page 95, to summarise, their Honours say we accept that and they accept what your Honour Justice Nettle said in Doughty but it does not solve the problem if there is an injury.  We respectfully submit there is an inconsistency at the heart of this reasoning because the Court of Appeal accepts you cannot sidestep the bar by cutting out a little bit of the pleading but that is precisely what has occurred here and that is one of their main bases for distinguishing Justice Kaye’s analysis in Caven. 

So, they distinguish Justice Kaye by saying but in this case they have cut out pain and suffering, thereby undermining the very expansive reach of the statute and illustrating an incoherence or an inconsistency, in our respectful submission, in the argument.  To go back to the first reason, the Court of Appeal distinguished Caven it is that the legislation is different.  The high point of that is at page 92 where paragraphs 127 and 128, sufficiently 128, first sentence, their Honours say:

We consider that the Act broadly reflects the ordinary meaning of ‘injury’ but sharpens that meaning by restricting its application to those impairments or incapacities that require treatment or ‘rehabilitation’.

What we would say about that, with respect, is even if that is right, a continuation of pregnancy and childbirth will require medical treatment, in any ordinary understanding in the 21st century but, secondly, there will be some injuries, perhaps at the minor end, perhaps right at the major end, which are not capable of treatment and rehabilitation.  They are, nonetheless, injuries for that. 

BELL J:   The reference to “treatment” in this context might be thought to be corrective treatment of some character.  It may be accepted that in Australia the likelihood is most women who are pregnant will accept some form of treatment but there are many places in the world where that is not

true and my point is one does not need treatment to correct a problem associated with pregnancy.  It is a natural aspect of a woman’s condition.

Indeed, there is no requirement for treatment, desirable as most women in Australia would think it is, to consult a doctor in the course of pregnancy and that seems to me to be a possible distinction.  Treatment and rehabilitation in the context of this statutory scheme may not pick up going to the gynaecologist when a healthy woman is pregnant and about to give birth to a healthy baby.

MR KIRK:   The best answer I can give to that, noting my red light is on, is this, your Honour.  For any such wrongful birth claim in Australia or any other claim in Australia at common law involving pregnancy and childbirth, there is no court in the land which would deny damages for payment of a gynaecologist and associated costs if that had a causal nexus to some breach of duty.  So, though some people do not, of course, get medical treatment as a matter of the policy of the law, the law responds to that situation.  That is the best answer I can give, your Honour.

BELL J:   Thank you.  Mr Wheelahan, we do not need to hear from you.

In our opinion there is insufficient reason to doubt the correctness of the decision of the Court of Appeal.  Special leave is refused with costs.

MR KIRK:   May it please the Court.

MR WHEELAHAN:   If the Court pleases.

AT 10.54 AM THE MATTER WAS CONCLUDED