FJ (a Pseudonym) v Commonwealth

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0102

FJ (A PSEUDONYM)[1]	Applicant
v
COMMONWEALTH OF AUSTRALIA	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	TATE, SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2016, 31 October 2016
DATE OF JUDGMENT:	12 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 84
JUDGMENT APPEALED FROM:	[FJ] v Commonwealth [2015] VSC 448 (Bongiorno JA)

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PRACTICE AND PROCEDURE – Determination of preliminary issue – Proceeding dismissed – Application for leave to appeal – Application to amend statement of claim – Application made after authentication of judgment – Application granted.

STATUTORY INTERPRETATION – Pregnancy of naval rating not detected at medical examinations – Whether pregnancy and childbirth an ‘injury’ within Military Rehabilitation and Compensation Act 2004 (Cth) – Whether applicant prohibited from bringing a proceeding at common law for damages to compensate her for the costs of raising her child.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D E Curtain QC with Mr M J Hooper	Slater & Gordon
For the Respondent	Mr P J Hanks QC with Mr R Knowles	Moray & Agnew

TATE JA
SANTAMARIA JA
BEACH JA:

The issue

The modern science of reproduction has brought the law in its train. Over the last 50 years, the law has had to resolve the claims of parents who had used the services of and accepted advice from scientists, mostly medical practitioners, to avoid having children. Those services are well known: contraceptive advice, pregnancy and genetic counselling, sterilizations, abortions and so forth. When performed negligently, women become or remain pregnant, and children are born. Sometimes those children are healthy; sometimes not. Faced with claims for negligence, the law has had to determine whether damages are recoverable and, if so, on what basis. Where claims are made in negligence, damage is, of course, the gist of the action. Generally speaking, the law has accepted that there has been damage and has awarded damages for the pain and discomfort associated with pregnancy and childbirth. Exceptionally, in Australia, it has been decided that damages may also be awarded for the costs of raising a healthy but unintended child whose birth may be attributable in law to the negligence of a medical practitioner. Although the pain and discomfort of pregnancy and childbirth are accepted as damage and as giving rise to an entitlement to compensatory damages, the question arises whether they are ‘injuries’ within the specific statutory context with which this case is concerned.

In the present case, the pregnancy of the applicant was not detected in medical examinations conducted by the Commonwealth after she had entered service in the Navy. She has alleged that, if her pregnancy had been detected, she would have had an abortion. Now, she is seeking to recover from the Commonwealth the costs of raising her child, but not any compensation for any pain and discomfort associated with her pregnancy and childbirth.

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

The applicant experienced a normal pregnancy and childbirth. She had a healthy but unintended child. Her further amended statement of claim does not seek compensation for pain and suffering or psychological trauma associated with the pregnancy or childbirth. Her claim is to be compensated for the performance of the legal and moral responsibilities arising by reason of the birth of her child. We do not consider that a claim for such compensation, in the circumstances of the case, is a claim arising from an injury within the meaning of the Act. There being no injury within the meaning of the Act, we consider that her claim is not a proceeding for damages ‘in respect of’ an injury. That being so, it is not a proceeding in respect of a service injury.

Summary

When she joined the Navy in January 2008, the applicant was unaware that she was seven weeks pregnant. At various medical examinations after joining, the Navy failed to detect her pregnancy. The applicant has brought a claim for damages on the footing that the negligence of the Commonwealth meant that she lost the opportunity to have an abortion and, thereby, suffered loss and damage. The loss and damage is alleged to comprise various elements including: (a) being held back in her career and (b) the costs of raising her child. In her amended statement of claim, the applicant had made several allegations including that she had suffered ‘injury, loss and damage’. The particulars involved the requirement to undergo the pregnancy and associated birth labour and psychological trauma. In response, the Commonwealth said that the claim is barred by s 388 of the Act which bars actions or proceedings for damages ‘in respect of … a service injury sustained’ by a service person. At a preliminary hearing conducted apparently pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), a judge in the Trial Division held that the claim was one in respect of a ‘service injury’ and ordered that judgment be entered in favour of the Commonwealth.[2] Judgment was duly entered.
[2][FJ] v Commonwealth of Australia [2015] VSC 448 (Bongiorno JA) (‘Reasons’).

The applicant has applied for leave to appeal against the decision of the primary judge. However, at the commencement of the hearing of her application for leave to appeal, the applicant applied to further amend her statement of claim to remove from it all references to her having suffered injury by reason of her pregnancy and childbirth and has confined her claim to the costs of supporting and raising her child. In so far as she sought to remove any claim for compensation for injury, she contended that her action could not be characterised as an ‘action or other proceeding ... in respect of … a service injury’ and, thus, is not barred by s 388 of the Act. At the time, the Commonwealth did not consent to the filing of the proposed further amended statement of claim but also said it did not oppose its being filed.

In those circumstances, the Court adjourned the further hearing of the application for leave to appeal and directed the applicant file an affidavit in support of her application to further amend her pleading. However, before the adjourned hearing was resumed, the Commonwealth filed written submissions in opposition to the grant of leave, resiling thereby from its earlier position. In effect, the Commonwealth submitted that the applicant had agreed to a process whereby, if the substantive question set down for preliminary determination was answered unfavourably to her, judgment should be entered against her. Judgment had been entered, and it was now too late for her to amend her pleading.

At the hearing of the present matter, the Court heard submissions on three issues: (1) whether the unamended claim was barred by s 388; (2) whether the applicant should be given leave to further amend her statement of claim to remove all allegations of injury and claims for compensation that related to injury; and (3) (on the assumption that the applicant was given leave to file an amended pleading), whether the further amended claim was nonetheless barred by s 388.

For the reasons given below, the application for leave to further amend the statement of claim should be granted. Further, the application for leave to appeal should be granted and the appeal allowed.

In ordinary language, pregnancy and childbirth are not injuries. The definition of ‘injury’ in the Act broadly reflects its meaning in ordinary usage and the statutory context of the Act sharpens that meaning by deploying the concepts of ‘rehabilitation’ and ‘treatment’. The statutory context here is of considerable significance. Courts have considered the nature of the action for damages arising from the birth of a child that is attributable in law to negligent reproductive advice. In several of those cases, the courts have awarded compensation for the damage associated with the pain and discomfort associated with pregnancy and childbirth. But, in none of those cases has it been determined that compensation is payable in so far as pregnancy and childbirth alone are injuries. In some cases, the claim has been characterised as negligence causing a loss of an opportunity; in others, it has been described as being a claim in respect of the negligent interference in her right to plan her family. In the case of a normal pregnancy and childbirth, the damage that has been suffered is not any interference in the physical integrity of the mother so much as ‘the burden of the legal and moral responsibilities which arise by reason of the birth of the child’.[3]
[3]Cattanach v Melchior (2003) 215 CLR 1, 32 [68] (McHugh and Gummow JJ).

Background

On 14 January 2008, the applicant enlisted in the Royal Australian Navy at Anglesea Barracks, Hobart. She had just turned 19. Although she was subjected to a medical examination on that day at a Navy medical centre, and six further examinations at regular intervals up to 29 April at a similar centre at HMAS Cerberus in Victoria, her pregnancy was never diagnosed. On 2 May 2008, however, when an ultrasound examination was undertaken, it showed that she was then 22 weeks pregnant.

The applicant did not want to be pregnant. She says that she would have been prepared to have an abortion, but that, by the time her pregnancy was diagnosed, it ‘was too advanced to [have] undergone termination of her pregnancy’. On 24 August 2008, she gave birth to a son who is now eight years old.

On 23 August 2011, the applicant issued a writ in this Court claiming damages from the Commonwealth of Australia[4] for negligence and/or breach of contract in failing to diagnose the pregnancy. At the time of service of the writ, her solicitors informed the Commonwealth (by letter dated 26 August 2011) that the applicant had elected to pursue a common law action for damages rather than rely on entitlements under the Act. In her amended statement of claim,[5] she alleged that she gave birth to a child and that the birth of her child ‘was caused by the negligence and/or breach of agreement’ of the Commonwealth.[6] She then alleged that, by reason of her son’s birth, she ‘has suffered injury, loss and damage’.[7] In her pleading, she gave as particulars of her injuries ‘(i) Requirement to undergo the pregnancy and labour associated with the birth of [her son]; (ii) Psychological trauma’. Further, the applicant gave as particulars of special damage, the cost of supporting and raising her son, and as particulars of loss of earnings or loss of earning capacity, she alleged that her training and career progress had ‘been delayed and/or adversely impacted’ and that, due to this, she had suffered a loss of earnings and/or loss of earning capacity.
[4]Subsequently, a company, Clements Recruitment Pty Ltd, was added as a defendant to this proceeding as the alleged supplier of medical staff to the Navy to conduct its health care centres. It is no longer a defendant but the Commonwealth has filed a Third Party Notice against it. It took no part in the proceeding in this Court and need not be considered further.
[5]The amended statement of claim is dated 27 July 2012 filed pursuant to leave granted on 16 May 2012.
[6]Amended statement of claim [16]–[17].
[7]Amended statement of claim [18].

In paragraph 22 of its amended defence dated 20 December 2012, the Commonwealth said:

As the plaintiff is entitled to compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the Act’), save for section 389 of the Act, in accordance with section 388 an action for damages does not lie against the Commonwealth or Defence members. Section 389(1) of the Act does not apply. The claim for damages against the Commonwealth is prohibited at law.

On 30 April 2015, the applicant issued a summons in which she applied for the following order:

1.That a preliminary proceeding in relation to paragraph 22 of the Amended Defence be fixed for hearing, based on an estimate by the parties that the preliminary proceeding will occupy 1 sitting day.

In an affidavit affirmed in support of the summons, the solicitor for the applicant said that a preliminary point arose in respect of the validity of the defence:

Paragraph 22 of the Amended Defence states that the claim for damages against the Commonwealth is prohibited by law as the Plaintiff is entitled to compensation under the Military Rehabilitation and Compensation Act 2004 (Cth). If this Defence is found to be valid, the Plaintiff may be unable to proceed with her claim against the Defendant under the Wrongs Act 1958 and the common law. Therefore, determination of the validity of this Defence in a preliminary proceeding is in the interests of all parties.

On 1 May 2015, a judge in the Trial Division ordered:

1.The preliminary point is to be heard on 13 August 2015 on a one day estimate.

The parties were directed to file and serve ‘an amended statement of facts’ by 25 May 2015 and written submissions by 29 June 2015.

In the event, the parties subsequently agreed on a document as follows:[8]
[8]In his affidavit affirmed 13 May 2016, the solicitor for the applicant described the various draft questions and agreed facts that were exchanged between the parties before the hearing on 1 May 2015. In so far as the parties were directed to file an amended statement of facts, it would seem that some version of the document was placed before the judge on 1 May 2015. After the order was made, discussions continued until the final form of the agreed questions and facts were signed by the Commonwealth on or about 25 May 2015.

On the facts as stated in Attachment A, the following questions are to be tried before the trial of this proceeding:

1. Is the Plaintiff's action for damages against the Commonwealth, constituted by this proceeding:
1.1an action for damages by a member of the Defence Force against the Commonwealth in respect of a service injury sustained, or a service disease contracted, by that member within s 388(1)(a) of the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act); and
1.2therefore, an action for damages that does not lie against the Commonwealth?

2.If the answer to question 1 is yes, should judgment be entered for the Commonwealth?

Attachment A: facts agreed between the Plaintiff and the First Defendant

1.On 14 January 2008, the Plaintiff enlisted in the Royal Australian Navy at Anglesea Barracks in Hobart in the State of Tasmania. At the time of her enlistment, the Plaintiff underwent a medical examination conducted on behalf of the Commonwealth.
2.On six occasions between 15 January 2008 and 29 April 2008, the Plaintiff attended a Health Care Centre at HMAS Cerberus in the State of Victoria, which Centre was operated on behalf of the Commonwealth, where the Plaintiff underwent vaccinations and Mantoux testing (a screening test for tuberculosis).
3.On none of the occasions referred to in paragraphs 1 and 2 was the fact of the Plaintiff’s pregnancy identified.
4.On 2 May 2008, the Plaintiff underwent an obstetric ultrasound examination, which revealed that the Plaintiff was 22 weeks pregnant.

5. On 24 August 2008, the Plaintiff gave birth to a child.
6.On 23 August 2011, the Plaintiff issued a writ in the Supreme Court of Victoria, commencing an action for damages against the Commonwealth, as First Defendant, and Clements Recruitment Pty Ltd, as Second Defendant.
7.By letter dated 26 August 2011, which was provided to the Commonwealth at the time of service of the writ, the Plaintiff notified the Commonwealth that ‘the plaintiff has elected to pursue a common law action for damages rather than rely on entitlements under the Military Rehabilitation & Compensation Act 2004 and ... this letter serves as notice to ... the Military Rehabilitation & Compensation Commission that the plaintiff has made the election’.
8.By amended statement of claim dated 27 July 2012, the Plaintiff alleged:
8.1at all material times from the Plaintiff’s enlistment on 14 January 2008 to the birth of the Plaintiff’s child on 24 August 2008, the Commonwealth owed the Plaintiff a duty of care as her employer, including a duty to exercise reasonable care and skill in providing medical care and management to the Plaintiff;
8.2the Commonwealth breached its duty of care to the Plaintiff when the Commonwealth failed to identify the Plaintiff’s pregnancy in the course of medical examinations and the provision of medical services before 2 May 2008;
8.3the birth of the Plaintiff’s child on 24 August 2008 was caused by the Commonwealth’s breach of its duty of care to the Plaintiff; and
8.4as a result of the birth of the Plaintiff’s child on 24 August 2008, the Plaintiff has suffered injury, loss and damage.

9.By its amended defence dated 20 December 2012, the Commonwealth (amongst other matters):
9.1admitted that the Commonwealth was under a duty to have medical treatment for the Plaintiff provided with reasonable care and skill;
9.2denied that the Commonwealth breached its duty of care to the Plaintiff by failing to identify the Plaintiff’s pregnancy in the course of medical examinations and the provision of medical services before 2 May 2008;
9.3denied that the birth of the Plaintiff’s child on 24 August 2008 was caused by the Commonwealth's breach of its duty of care to the Plaintiff;
9.4denied that the Plaintiff suffered the injury, loss and damage alleged by the Plaintiff as a result of the birth of the Plaintiff’s child on 24 August 2008; and
9.5alleged that, because the Plaintiff is entitled to compensation under the MRC Act in respect of the injury the subject of the Plaintiff’s claim against the Commonwealth, in accordance with s 388 of the MRC Act an action for damages does not lie against the Commonwealth and the Plaintiff’s claim for damages against the Commonwealth is prohibited at law.

10.As noted in paragraph 8 above, the Plaintiff alleges that, consequent on the Commonwealth’s breach of its duty of care to the Plaintiff, the Plaintiff gave birth to a child on 24 August 2008, which birth caused the Plaintiff to suffer injury, loss and damage.
11.The Repatriation Medical Authority has neither determined a Statement of Principles under s 196B(3) of the Veterans’ Entitlements Act 1986, nor declared that it does not propose to make such a Statement of Principles, in respect of the kind of injury that the Plaintiff alleges she has sustained, namely the birth of a child.

In her summons dated 30 April 2015, the applicant made no attempt to identify what jurisdiction of the Court she was seeking to invoke. There was no reference to any particular rule. Further, neither the summons nor the affidavit in support identified any particular question to be determined. Nor did either indicate any agreed facts or how any particular facts were to be found.

Written submissions before primary judge

Because the applicant has applied for leave to file a further amended statement of claim in this Court, it is necessary to outline briefly the written submissions filed before the primary judge on behalf of the applicant. Those submissions included the following:

7.The Plaintiff submits that the losses sustained giving rise to the action for damages are of a kind that cannot be described as a service injury or service disease but as for pure economic loss.
8.The Plaintiff's Statement of Claim seeks damages and particularises special damage as the ‘cost of supporting and raising [name of child]’ … and the delay and/or loss of career progression with the Defence Forces resulting in ‘loss of earnings and earning capacity’ occasioned by the birth.
9.That there is a cause of action in respect of pure economic loss as a consequence of the birth of a healthy, but unintended, child due to the negligence of another, as confirmed in the decision of the High Court in Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003). The recovery of damages is not in respect of personal injury to the plaintiff but that economic loss occasioned by the pregnancy.

As is plain enough, the applicant’s written submissions contended that the loss and damage suffered was in the nature of pure economic loss.

For its part, the written submissions of the Commonwealth concentrated on the allegations in the amended statement of claim that have been summarised in [13] above. The Commonwealth submitted that, as the applicant had alleged that by reason of the negligence of the Commonwealth she had suffered injury loss and damage, her action was necessarily ‘in respect of … a service injury sustained’.[9]
[9]For example, the Commonwealth submitted: ‘The Plaintiff has alleged that, consequent on the Commonwealth’s breach of its duty of care to the Plaintiff, she gave birth to a child on 24 August 2008, which birth caused her to suffer injury, loss and damage. The Plaintiff has alleged that her injuries were the ‘[r]equirement to undergo the pregnancy and labour associated with the birth’ and ‘[p]sychological trauma’.

At the hearing before the primary judge, the parties developed the argument in their written submissions. Because the Commonwealth has opposed the application for leave to amend, it is necessary to attend closely to what happened before the primary judge.

The applicant made contentions in the alternative. Her first argument was based on the assumption that pregnancy and childbirth were injuries. She contended that her claim was not barred as her injuries were not ‘service’ injuries within s 29(1)(a) of the Act. In particular, she contended that cases in which there had been injuries that were a consequence of a failure to treat did not satisfy the requirement in s 29(1)(a)(iii) of the definition of ‘service injury’ that ’as a consequence of that treatment, the person sustains the relevant injury’. Her second argument was based on the contention that pregnancy and childbirth were not injuries and that, thus, her claim was not ‘an action or other proceeding for damages … in respect of … a service injury sustained’. She contended that the term ‘injury’ had not been defined exclusively for the purposes of the Act. The term connoted ‘harm’. Pregnancy and childbirth were not ‘harms’ or relevantly ‘harms’ and, therefore, were not injuries. The Court was not bound by any authority to the contrary. To the extent that Caven vWomen’s and Children’s Health[10] suggested otherwise, it should not be followed.
[10](2007) 15 VR 447.

During oral submissions, there were two exchanges between senior counsel for the applicant and the primary judge each of which is now relied upon by the Commonwealth in opposition to the application to amend. Counsel was contending that the injuries were not ‘service injuries’ on the assumption that the claims were not made in respect of injuries. The primary judge made reference to the pleading and its references to childbirth or the psychological sequelae. The transcript reveals the following exchange:

MR CURTAIN:        They are pleaded. I can say this to Your Honour. We would be prepared to abandon the claim for pain and suffering surrounding the birth and the psychological damage. We don’t really have any evidence in relation to psychological damage. And the real issue here is the consequences of assuming a responsibility for raising the child.
HIS HONOUR:        You would say that you would be prepared to abandon the psychological injury and?
MR CURTAIN:        And the claim for pain and suffering surrounding the birth.

HIS HONOUR: The claim for pain and suffering, yes.[11]

[11]The transcript is an exhibit to the affidavit of Norman Lee Abrams sworn 6 June 2016.

At the end of the oral argument, the primary judge asked what orders should be made on the determination of the preliminary question. The transcript is as follows.

MR CURTAIN: That is all I have to say, Your Honour, unless Your Honour has got any questions.

HIS HONOUR:        No, I think that is all. Mr Hanks?
MR HANKS:           Yes, Your Honour.
HIS HONOUR:        Before you sit down, Mr Curtain, you said ‘the application’ but, in fact, what we are hearing is actually a motion for judgment by the defendant, is it not?

MR CURTAIN:        Effectively, Your Honour.
HIS HONOUR:        Effectively. If he succeeds, he gets the result.
MR CURTAIN:        It is the end of the case.
HIS HONOUR:        And if he does not, those bits of his defence which were raised are either struck out or ignored.

MR CURTAIN: Yes, Your Honour.
HIS HONOUR: I understand. Yes, Mr Hanks?

Decision of primary judge

On the basis of that agreed statement of facts, the primary judge determined the preliminary question. He held that the claim was barred as the claim was one that was ‘in respect of … a service injury’. With respect to the question: ‘Has the plaintiff suffered an injury’, he said:

Having regard to the Court’s task in this case and the allegations made by the plaintiff in her statement of claim against the Commonwealth, there is little need to examine this question at any length.
First, the plaintiff’s own case is that she has suffered compensable injury, loss and damage sounding in damages which she claims from the Commonwealth. Her statement of claim is specific as to this.
Secondly, the birth of a child consequent upon the negligence of a medical practitioner, either not diagnosing a pregnancy or negligently carrying out a sterilisation procedure which fails to prevent a pregnancy, gives rise to a claim by the child’s mother for damages, including damages for personal injury as claimed by the plaintiff in this case: CES v Superclinics (Australia) Pty Ltd; Melchior v Cattanach; Caven v Women’s and Children’s Health; McFarlane v Tayside Health Board.
In his submissions as to the nature of the damage held to be compensable at law in a case such as the present, counsel for the plaintiff sought to distinguish between damage as personal injury simpliciter and damage such as that described by Thomas JA in the Queensland Court of Appeal in Melchior v Cattanach as ‘a form of personal injury’ comprising the ‘pregnancy, birth and depression that followed’; or that described by Kaye J in this Court in Caven v Women’s and Children’s Health as having ‘a striking similarity to damages awarded to an injured plaintiff in a personal injury case’.
I am unable to accept counsel’s analysis. There is no meaningful difference in the present context between an injury suffered as a result of a negligently caused traffic collision and the injury suffered by a pregnant woman who has a negligently undiagnosed pregnancy. Each constitutes bodily injury with greater or lesser consequential losses, economic or otherwise, depending on the circumstances of the particular case.[12]

[12]Reasons [8]–[12] (citations omitted).

On 28 August 2015, the primary judge dismissed the claim and ordered that there be judgment for the defendant. On 22 September 2015, the order was authenticated. In the authenticated order, the Court ordered:

1. There be judgment for the Defendant.
2. The Plaintiff pay the Defendant’s costs, to be taxed.

Application for leave to appeal

By application filed 25 September 2015, the applicant applied for leave to appeal the decision made by the primary judge on 28 August 2015. In her application, the applicant identified two proposed grounds of appeal as follows:

1.The Applicant’s cause of action is not in respect of a ‘service injury’ for the purposes of s 388 of the Military Rehabilitation and Compensation Act 2004 (Cth) (‘MCRA’) .
2.If the Plaintiff’s cause of action does relate in part to a ‘service injury’ then that part relating to the financial cost of rearing her child is not damages in respect of ‘service injury’.

Application to further amend statement of claim

As indicated above, the application for leave to appeal came on for hearing in the Court of Appeal on 29 April 2016. Immediately, senior counsel for the applicant applied for leave to file a further amended statement of claim. No prior notice had been given of this particular application; no proposed further amended pleading was available for inspection. However, the Court was told that the proposed further amended pleading would be stripped of any allegations or particulars that the applicant had suffered any injuries in the form of pain and suffering as a result of the breach of duties by the Commonwealth.

Senior counsel for the applicant explained to this Court that the primary judge had been informed that, if the applicant was unsuccessful on the application under r 47.04, she would apply to further amend her statement of claim to eliminate any reference to pain and suffering or personal injury. In the event, no such application had been made to the primary judge. The Court asked the Commonwealth what attitude it took to the application to amend. Unsurprisingly, senior counsel submitted that he could not respond until he saw the proposed further amended pleading. In the event, the Court stood the matter down so that the applicant could bring into Court her proposed further amended pleading. A few hours later, after the proposed further amended pleading was brought into Court, the Court asked senior counsel for the Commonwealth what attitude the Commonwealth was now taking. Counsel said that there was no objection to the applicant’s amendments so long as the Commonwealth was protected as to costs.

After further discussion, the Court directed that the application to further amend (which had not been consented to) should be made on a proper basis. In particular, the Court directed that, as the amendment was such a late amendment — in fact one made after summary judgment — the Court should be informed of what had happened below. In particular, the Court asked to be informed of what had been said before the judge who set the questions down for preliminary determination and what had occurred before the primary judge who answered the questions.

In addition the parties were given leave to file further written submissions on the substantive matter before the Court.

The affidavits filed on the application to amend

On 13 May 2016, the applicant filed an affidavit affirmed by Nicholas Matthew Mann who deposed that he had had the carriage of the matter on her behalf since March 2014. In that affidavit, he explained how it was that the parties decided that the issue whether the applicant’s claim was one in respect of a ‘service injury’ within s 388 of the Act could be set down for hearing as a preliminary question. On 30 April 2015, a summons was issued seeking the determination of the preliminary questions. On 1 May 2015, it appears that, on the strength of the consent of the parties, a judge in the Trial Division made the order that the issues be set down for determination.[13] On 13 August 2015, the summons came on for hearing before the primary judge. Mr Mann further deposed:

At no time prior to the hearing on 13 August 2015 did the Respondent advise of an intention to seek to have the matter struck out in its entirety, and I am not aware of any steps to apply to strike the matter out or to apply for summary judgment in favour of the Respondent.
Accordingly, I was of the belief that the preliminary question to be heard in relation to injury, if decided in favour of the Respondent, would extinguish the claim as it related to personal injury, but that a claim for pure economic loss would survive, albeit that the pleadings would need to be amended to reflect the Court’s determination as to injury.
[13]No transcript of the proceedings that took place on 1 May 2015 is available.

Written submissions on the proposed amendment of the pleading

On 24 June 2016, the Commonwealth filed written submissions in which it accepted that it had not originally opposed the filing of the further amended statement of claim but said that, having had an opportunity to consider the complexities of the matter, it now wished to do so. It said that its change of position would not cause any prejudice to the applicant as the decision whether to grant leave was a matter for the Court and was not dependent on lack of opposition on the part of the Commonwealth. The Commonwealth referred to the arguments advanced by the applicant before the primary judge. Although reference had been made to a claim for pure economic loss, that claim had remained hypothetical and had never been formulated. The Commonwealth said that an appeal court will usually refuse a belated amendment of pleadings when, as here, the proposed amendment raises a new issue for the first time.[14] More generally, the power to amend pleadings will be exercised to enable the real questions in controversy between the parties to be decided. At first instance, the real questions in controversy between the parties concerned the nature of the case pleaded by the applicant in her amended statement of claim. It was that case, and not some different hypothetical case, that was the subject of the questions agreed between the parties. The applicant could have sought to further amend her case at first instance but did not do so, preferring to argue her case as pleaded in the amended statement of claim. She has not given any reason for not seeking to further amend her pleading at first instance.
[14]The Commonwealth referred to Wentworth v A-G (NSW) (1984) 154 CLR 518, 526; Water Board v Moustakas (1988) 180 CLR 491, 498; Beerens v Bluescope Distribution Pty Ltd (2012) 39 VR 1, 13 [53], 14 [61], 22 [90], 40 [170], 47 [201]–[202]. See also Geelong Building Society (in liq) v Encel [1996] 1 VR 594, 605–608.

The Commonwealth also relied on the nature of the judgment that had been given by the primary judge. The matter had proceeded under r 47.04 of the Rules. The applicant could not now be heard to assert that she did not appreciate the situation she faced. Both questions answered by the primary judge had been agreed between the parties. Before the primary judge, the Commonwealth had filed written submissions to the effect that, if the Court held that s 388 barred the claim, judgment should be entered for the Commonwealth. The practical effect of the primary judge’s determination of the agreed questions was summary judgment for the Commonwealth. However, it should not be accepted that the applicant was not aware, or could not have been reasonably aware, of that prospect. Finally, the application should be refused on the ground that it was futile in that, as the first question should be answered ‘Yes’, further proceedings would serve no useful purpose.

The applicant filed no written submissions in favour of her application to further amend. Nor did she file any response to the Commonwealth’s written submissions summarised above preferring instead to rely upon oral submissions to be made at the hearing.

Should the applicant be given leave to amend her pleading?

In our opinion, leave to file the further amended pleading should be granted in order that the real controversy between the parties can be determined.

The procedural history of this case is not encouraging. The parties agreed to approach the Court and ask whether the effect of s 388 of the Act should be determined before trial. In doing so, they do not seem to have identified what power of the Court they were seeking to have exercised. The matter could have proceeded either by way of an application by the Commonwealth: (a) for summary judgment pursuant to s 62 of the Civil Procedure Act 2010 and pt 3 of O 22 of the Rules; (b) to strike out aspects of the statement of claim pursuant to O 23 of the Rules; or (c) by way of having a preliminary question determined pursuant to r 47.04 of the Rules. As best as can be gathered from the affidavits filed in respect of the application to further amend the statement of claim, the parties seem to have been proceeding under r 47.04. That appearance is strengthened when consideration is given to the form of the summons[15] and the order made on 1 May 2015 in which it was ordered that ’[t]he preliminary point is to be heard’.[16] However, as is clear, at the time the order was made on 1 May 2015, the parties had not settled on how the Court should be asked to determine the facts upon which the preliminary question was based let alone what the preliminary question itself should be. In Jacobson v Ross,[17] the Full Court discussed the manner in which the r 47.04 procedure should be conducted and the hazards associated with it. In a passage that should be closely consulted by any practitioner proposing to bring an application under r 47.04, Brooking J spoke of the ‘[t]he need for precision in the statement both of the question to be decided and of the facts on which it is to be decided’.[18]
[15]See [15] above.
[16]See [16] above.
[17][1995] 1 VR 337.
[18]Ibid 340–342 (citations omitted).

There is force in the Commonwealth’s contentions that leave should not be granted to the applicant to further amend. The questions placed before the primary judge contemplated that, if the first question was answered unfavourably to the applicant, judgment should be entered against her. Second, no actual application was made to the primary judge to further amend the pleading even though the desirability of an amendment had been identified. Finally, counsel for the applicant accepted that the proceeding before the primary judge was akin to a ‘motion for judgment’ and, in the event that the applicant failed, judgment should be entered against her.

However, all that must be set against the unusual way in which both parties approached the determination of the preliminary point and what it was that happened before the primary judge. A close reading of the transcript reveals that the applicant was addressing not so much what was in her pleading as she was the general questions whether pregnancy and childbirth could be treated as ‘injury’ under s 388 of the Act and, if so, whether the applicant’s claim was in respect of a ‘service injury’.[19] The references in the transcript to removing aspects of the pleading appear to have been directed to the presence of something that embarrassed the resolution of the issues before the Court.[20] They do not appear to have involved a request from the parties to the Court for a ‘quote’ on prospects. It is true that her counsel accepted that, if the applicant were to fail, judgment should be entered against her. However, that seems to have been accepted on the assumption that the Court might hold that her claim was necessarily in respect of an ‘injury’ and, moreover, a ’service injury’ which was barred by s 388 of the Act.
[19]See [22] above. In fact, the applicant propounded her contentions in the reverse order.
[20]See [23] above.

A close examination of the transcript of the hearing before the primary judge reveals that the applicant pursued her contention that her claim was not barred by the Act on several bases. First, she contended that pregnancy and childbirth were not injuries within the meaning of the Act. Second, she contended that, on the assumption that either was an injury, neither was a ‘service injury’ within the meaning of the Act; that is, neither was attributable to defence service rendered by her. Third, she said that her claim was, in truth, in respect of the financial consequences associated with the responsibility of raising a child.

During the hearing of the present application, counsel for the Commonwealth conceded that the application before the primary judge was conducted on these several bases. In particular, counsel properly conceded that, before the primary judge, the applicant had filed submissions that made it plain that she was seeking to rely upon her claim as being a claim for pure economic loss. Counsel explained that, before the primary judge, the Commonwealth;

dealt with the effect of section 388 on a claim for economic loss, just as we did in the written case that we filed in this Court following the application for leave, and we made the point before his Honour that a claim for economic loss would still have a sufficient connection with the injury to be properly described as a claim ‘in respect of’, a claim for damages in respect of that injury.

It appears to have been in those circumstances that the applicant spoke of removing references to physical and psychological injury from her pleading.

In these circumstances, we are of the view that the applicant should be given leave to further amend her pleading so that her claim for the financial cost of raising her child is unembarrassed by the references in it to physical or psychological injury.

Accordingly, the question becomes whether the applicant’s amended claim is barred by s 388 of the Act. Is her further amended claim an ‘action or other proceeding for damages … in respect of … a service injury’?

Military Rehabilitation and Compensation Act 2004: An overview

The Act provides for the replacement of the common law cause of action to recover damages with a statutory right to be paid compensation. Until 2004, the Safety, Rehabilitation and Compensation Act 1988 (Cth) applied to service personnel. In 2004, the Act was introduced to provide a special code for Defence personnel.

Chapter 1 is introductory. It contains several definitions. The Act provides its own definition of ‘injury’. That statutory definition broadly builds on the ordinary meaning of the word, but then excludes from its reach what might be considered to be forms of injury in ordinary language (eg ‘disease’).[21] Section 5 of the Act defines ‘disease’, ‘injury’ and ‘service injury’ as follows:
[21]It has been common for the word ‘injury’, when used in a workers compensation context (legislative or insurance), to be construed to include ‘disease’; Deeble v Nott (1941) 65 CLR 104, 109–110 (Starke J), 113 (Williams J); Peart v Hume Steel Ltd (1947) 47 SR (NSW) 384, 386–87 (Jordan CJ). In the case of Limitation of Actions legislation, a distinction has been drawn between ‘injury’ and the pain and suffering associated with an injury and their effects upon the working capacity of a person; Hevey v Leonard [1976] VR 624, 632.

disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or

(d)      a temporary departure from:
(i)        the normal physiological state; or
(ii)       the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).

…
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.
…
service injury has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note: A reference to a service injury being sustained includes a reference to an injury being aggravated by defence service (see section 7).

Chapter 2 regulates the acceptance of liability for service injuries, diseases and deaths.

Part 2 of ch 2 provides for when the Military Rehabilitation and Compensation Commission (’the Commission’) must accept liability for service injuries, diseases and death. Pursuant to s 23(1) of the Act, the Commission must accept liability for a service injury or disease where it is not prevented from doing so under pt 4 and a claim for acceptance of liability for an injury or disease has been made under s 319.

Part 3 of ch 2 contains the relevant definitions of ‘service injury’, ‘service disease’ and ‘service death’. The relevant expression in the Act is ‘service injury’; that expression narrows the circumstances in which an injury can be considered to have been sustained in ‘service’. A ‘service injury’ is an injury that has occurred in certain circumstances. Section 27 identifies those circumstances. Two involve the formation of an opinion by the Commission.[22]
[22]Sections 27(c) and (d). Section 27(c) calls for the formation of an opinion where the injury was ‘sustained’ or the disease ‘ contracted’. Section 27(d) deploys the same concepts of an injury being ‘sustained’ and a disease being ‘contracted’. Section 27(e) deals with those cases where ‘the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey’.

Sections 27, 29 and 30 of the Act relevantly provide as follows:

27 Main definitions of service injury and service disease[23]
[23]The definition of injury is different from that contained in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988. It defined ‘injury’ as follows:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment.
The words expressing the relation between ‘injury’ and ‘service’ have changed. In the 1988 legislation, the relational terms are ‘arising out of’ (causal) and ‘in the course of’ (temporal). In the Act, the relation is expressed as ‘arose out of, or was attributable to’ (both essentially causal).
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;

…[24]
[24]Section 28 defines ‘service death’.
29Definitions of service injury, service disease … arising from treatment provided by the Commonwealth
Liability for injuries and diseases caused by treatment
(1)For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a) all of the following apply:
(i)the person receives treatment for an earlier service injury or service disease;
(ii)the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii)as a consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease; or

(b)the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and as an unintended consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease.

Liability for injuries and diseases aggravated by treatment
(2)For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a) all of the following apply:
(i)the person receives treatment for an earlier service injury or service disease;
(ii)the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii)as a consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment; or

(b)the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and, as an unintended consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment.

…
30Definitions of service injury and service disease for aggravations etc. of signs and symptoms
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:
(a) the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and

(b)in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.

Part 4 of ch 2 identifies the circumstances in which the Commission is prevented from accepting liability for service injuries, diseases and deaths. The five exclusions are of no present relevance.

Chapter 3 provides for rehabilitation. Section 38, which is part of chapter 3, is headed ‘Aim of rehabilitation’. It provides:

The aim of rehabilitation is to maximise the potential to restore a person who has an impairment, or an incapacity for service or work, as a result of a service injury or disease to at least the same physical and psychological state, and at least the same social, vocational and educational status, as he or she had before the injury or disease.

Chapter 4 provides for the payment of compensation and other benefits to members and former members who suffer a service injury or disease. In particular, pt 2 of ch 4 provides for compensation for permanent impairment. Section 68 provides for the entitlement to compensation for permanent impairment; s 71 provides for additional compensation for another condition or the worsening of an existing condition; and s 75 for interim compensation. Part 3 provides for compensation for incapacity for service or work for members; pt 4 for former members.

Chapter 5 of the Act provides for compensation for the dependants of certain deceased members, members and former members.

Chapter 6 provides for treatment. Section 13 of the Act defines ‘treatment’ as follows:

(1) In this Act:
treatment means treatment provided, or action taken, with a view to:
(a)restoring a person to physical or mental health or maintaining a person in physical or mental health; or

(b) alleviating a person’s suffering; or
(c) ensuring a person’s social well-being.

(2) For the purposes of subsection (1), treatment includes:
(a)providing accommodation in a hospital or other institution, or providing medical procedures, nursing care, social or domestic assistance or transport; and
(b)supplying, renewing, maintaining and repairing artificial replacements, medical aids and other aids and appliances; and

(c) providing diagnostic and counselling services;
for the purposes of, or in connection with, any treatment.

Chapter 7 provides for the making and determination of claims. Section 319 provides for the lodgement of claims and s 324 for their investigation. After the claim has been investigated, the Commission must determine the claim; s 333. Section 335 provides for the standard of proof. Where a case ‘relates to warlike or non-warlike service[25] rendered by the person while a member’, it is covered by s 335(1): the claim must be disproved beyond reasonable doubt. Section 335(3) imposes a standard of ‘reasonable satisfaction’.
[25]For definitions, see s 6(1) of the Act.

In the present case, the applicant's claim falls within s 335(3); as a result, her claim is not covered by s 335(1); accordingly, the Commission would need to have the case proven to its ‘reasonable satisfaction’. In applying the ‘reasonable satisfaction’ standard in s 335(3), the Commission must comply with the conditions set down in s 339 which relates to ‘peacetime service’. Section 339(3) provides that the Commission may be reasonably satisfied that an injury is a ‘service injury’ only if three conditions are satisfied. First, the Commission must establish that ‘the material before the Commission raises a connection between the injury, disease or death and some particular defence service’; s 339(3)(a); second, it has to identify whether there is a Statement of Principles which is being determined under the Veterans’ Entitlements Act 1986 (Cth) or whether there might be a determination made by the Commission under s 340; s 339(3)(b); third, it has to decide whether the material, and the Statement of Principles or the determination upholds the contention of a connection on the balance of probabilities; s 339(3)(c). However, s 339(3) does not apply in relation to a claim if the Repatriation Medical Authority has neither determined a Statement of Principles nor declared that it does not propose to make a Statement of Principles; s 339(4). There is no Statement of Principles concerning pregnancy. In these circumstances, the Commission must simply determine any claim by reference to all the material before it, which might include medical reports and other things.

Chapter 8 of the Act provides for the reconsideration and review of determinations. Chapter 9 establishes and regulates the Commission.

Chapter 10 provides for liabilities arising apart from the Act. Part 2 is entitled ‘Liability of the Commonwealth to other actions’. Section 388 of the Act is subject to s 389. It extinguishes any cause of action against the Commonwealth in respect of an injury that is covered by the Act.[26] Thus, an ‘action or other proceeding for damages does not lie against the Commonwealth … in respect of: (a) a service injury sustained, or a service disease contracted’ by a member or a former member. Section 388 of the Act relevantly provides:
[26]Section 44 of the Safety, Rehabilitation and Compensation Act 1988 is the equivalent to s 388. The Commonwealth referred to Austral Pacific Group Ltd (in liq) v AirservicesAustralia (2000) 203 CLR 136 in which it was held that s 44 of the Safety, Rehabilitation and Compensation Act 1988 extinguished any cause of action (including a claim for contribution) against the Commonwealth.

388Action for damages not to lie against Commonwealth etc. in certain cases
(1)Subject to section 389, an action or other proceeding for damages does not lie against the Commonwealth, or a potentially liable member, in respect of:
(a)a service injury sustained, or a service disease contracted, by another member or a former member; or
(b) the loss of, or damage to, a medical aid used by another member.
Note:However, a person may choose to institute an action for damages for non-economic loss against the Commonwealth or the potentially liable member under section 389.

(2)Subsection (1) applies whether that injury, disease, loss or damage occurred before or after this section commences. However, subsection (1) does not apply if an action or proceeding in respect of the injury, disease, loss or damage is instituted before this section commences.
…

Section 389 contains a ceiling for non-economic loss, which has not changed since 1988, that discourages people from seeking remedies under the general law.[27] Generally speaking, s 389(1) provides that a member can sue the Commonwealth at common law for damages for non-economic loss in the form of pain and suffering, disability, functional loss etc. This right is subject to several restrictions. It only applies if compensation payable for permanent impairment has not been paid and the Commonwealth would be liable for such damages as a result of injury or disease, but for the operation of s 388(1). Section 389(5) limits the amount that can be recovered to $110,000, an amount, as mentioned, that has not changed since 1988. In the event that a member elects to seek such damages at common law, the election (which must be formally made) is irrevocable and bars the payment of compensation for permanent impairment, for additional impairment and for interim permanent impairment under ss 68, 71 and 75.
[27]See s 45 of the Safety, Rehabilitation and Compensation Act 1988.

The applicant’s contentions on s 388 of the Act

In an amended submission dated 10 June 2016,[28] the applicant developed her submissions that her claim in respect of economic loss was not one ‘in respect of’ service injury within the Act. More generally, the applicant said that an ‘action for damages [arising from] pure economic loss is not in respect of injury to the person or damage to tangible property’.[29] The applicant contended that the better view is that losses for the costs of care of a child born due to the negligence of a defendant whose negligent conduct allowed an unwanted pregnancy to proceed to term, is one of pure economic loss, quite unaffected by considerations of ‘injury’ to the mother, and that such loss and damage is not comprehended by the expression ‘service injury’ in s 388 of the Act nor is it a claim ‘in respect of’ such an injury.
[28]The amended submission appears to have superseded the original written submission dated 25 September 2015.
[29]The applicant referred to Waller v James (2015) 90 NSWLR 634; Cattanach v Melchior (2003) 215 CLR 1; Melchior v Cattanach (2001) 217 ALR 640; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47.

In a supplementary submission dated 27 October 2016, the applicant also contended that the primary judge should have held that, even if the damages that were sought were in respect of an injury, that injury was not a ‘service injury’ for the purposes of the Act. For an injury to be a ‘service injury’, s 27(b) requires there to be a causal connection between the defence service and the continued pregnancy. In this case, there was no causal connection: the applicant’s pregnancy did not arise out of and was not attributable to her defence service.

During oral submissions, the applicant contended that pregnancy and giving birth is not an injury, although it may be. The applicant accepted that pregnancy can cause an injury, for example a ruptured uterus or a bleed, but submitted that there was no suggestion in this matter that the pregnancy was anything but a normal pregnancy. The applicant said that the Commonwealth was contending that any claim with respect to pregnancy and childbirth was necessarily a claim that is premised on an injury, and that ’the result of the pregnancy is an injury, simpliciter’. This is precisely what the Commonwealth did contend for, see [70] below. The Commonwealth contended that a pregnancy causes physiological changes, which amounts to an injury. However, the applicant argued that ‘physiological change’ can include things such as nails and hair growing, weight gain, growing in height. The applicant submitted that to constitute an injury, more than just physiological change is required; there needs to be harm to a person. The applicant said that in this case there was no suggestion that any harm was done and that it would be absurd to say every normal pregnancy producing a healthy child constitutes an injury to the mother.

The applicant said that compensation can be awarded in negligence notwithstanding that the plaintiff has suffered no injury.[30]
[30]She referred to the joint judgment of McHugh and Gummow JJ in Cattanach v Melchior (2003) 215 CLR 1 in which the interest that had been infringed was not physical integrity but the right to plan one’s family. In this respect, she referred to Waller v James (2015) 90 NSWLR 634.

The applicant also contended that in this case, the negligence was related to the continuation of the pregnancy, not the actual incident of falling pregnant itself. By its negligence in not advising her that she was pregnant, the Commonwealth had deprived the applicant ‘of the right to determine when and where she had children’. That damage was not an ‘injury’ within the Act. The applicant conceded that, in attending the medical appointment, the applicant ‘was rendering a service to the Navy’. However, the applicant said that the loss of opportunity caused by the negligence was not attributable to, or did not arise out of, ‘defence service’ rendered by the applicant.[31] The applicant contended that the appointments had no effect on her pregnancy. Although she may have done something about the pregnancy if she had been told about it, that did not make the continued pregnancy arise out of, or be attributable to, the rendering of service.
[31]The applicant referred to the definition of ‘service injury’; s 27(b) of the Act.

The Commonwealth’s contentions

In its written submissions, the Commonwealth said that pregnancy and its consequences such as labour and childbirth, may constitute an injury.[32] In particular, the Commonwealth argued that pregnancy and childbirth may involve various instances of an ‘identifiable pathological change’ or a ‘harmful effect on the body’ or a ‘disturbance of the normal physiological state which may produce physical incapacity and suffering’. Further, with respect to the amended statement of claim before the primary judge, the applicant had herself alleged that her injuries were the ‘[r]equirement to undergo the pregnancy and labour associated with the birth’ and ‘[p]sychological trauma’. Having regard to the nature of the allegations that the applicant had advanced before the judge, the proceeding was an action for damages against the Commonwealth in respect of an injury or injuries allegedly sustained by the applicant.
[32]The Commonwealth filed a written case dated 30 October 2015.

Section 388 barred claims ‘in respect of’ an injury or injuries allegedly sustained. The Commonwealth submitted that, in the context of s 388 of the Act, the phrase ‘in respect of’ has a wide meaning. The Commonwealth contended that it requires no more than a relationship, whether direct or indirect, between ‘an action or other proceeding for damages’ and ‘a service injury sustained … by … [a] member’. For the purposes of s 388, the Commonwealth said there was a sufficient relationship between the action brought by the applicant, whatever the character of the loss said to have been suffered by her, and the injury or injuries she had allegedly sustained. Accordingly, the Commonwealth argued that even if her claim for the costs incurred in raising a child can be described as a claim for pure economic loss, that claim has been made in ‘an action or other proceeding for damages … against the Commonwealth … in respect of a service injury’.

Finally, the Commonwealth said that, on the authorities, the applicant’s claim was not one for pure economic loss. The Commonwealth argued that any economic loss she claimed for the costs of raising her child was consequential.

In its supplementary submissions,[33] the Commonwealth said that, even if the applicant were not to claim any damage for her own personal injuries, any claim for damages in relation to: (a) loss of earnings and earning capacity; and (b) costs of child rearing, could only result from her continued pregnancy and the consequential delivery of her child. It would only be as a result of those injuries that the applicant could bring her action for damages. Those injuries would form an integral aspect of the applicant’s case. The applicant’s action for damages against the Commonwealth would be ‘in respect of’ a service injury or service injuries allegedly sustained by her.
[33]Dated 24 June 2016. The greater part of this submission is addressed to the issue whether the applicant should be given leave to amend her pleading.

The Commonwealth also contended that the ‘injury’ was a ‘service injury’. It referred to Repatriation Commission v Law.[34] The applicant has at all times alleged that the Commonwealth: (a) was obliged to provide the applicant with reasonable medical care and management, including performing particular tests, as an incident of the applicant’s service in the Defence Force; (b) failed to perform those tests; (c) thereby breached its duty of care to the applicant; and (d) thereby caused the birth of her child. The claim that the applicant seeks to advance against the Commonwealth depends on an alleged causal relationship between the Commonwealth’s acts and omissions during her attendances at the Navy’s health care centre and the birth of her child — which was an injury. In short, the Commonwealth contended that the applicant says that those acts and omissions caused the birth of her child. Because there was an expectation that the applicant attend the health care centre, the applicant’s claim depends on the allegation that the birth arose out of or was attributable to the applicant’s service.[35]
[34](1981) 147 CLR 635.
[35]Supplementary Submissions dated 28 October 2016.

Before this Court the Commonwealth ultimately contended that a claim for loss in respect of a pregnancy is necessarily a claim in respect of a personal injury. This is so, the Commonwealth argued, whether the pregnancy was intentional, whether the child was wanted, or whether there was any pain or suffering involved. It cited the authorities referred to in [10] and [11] of the primary judge’s judgment.[36] It contended that pregnancy was an injury because it constitutes a physiological change;[37] it is a deviation or disturbance from the normal physiological state. Each day of pregnancy involves further physiological change and, hence, further injury. The physiological change did not have to be ‘sudden’.[38] It referred to various workers’ compensation enactments in which the statutory definition of ‘injury’ has been held to include physiological change.
[36]See [25] above.
[37]The Commonwealth referred to Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (‘Zickar’) (a case concerning the Workers Compensation Act1987 (NSW)) and Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (a case concerning the Workers Compensation Act 1951 (ACT)). In the latter case, Gleeson CJ and Kirby J referred (at CLR 298–299 [35]) to the points common to all members of the majority in Zickar: ‘These included the reminder that a long line of decisions in Australia had recognised that an “injury”, being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers’ compensation legislation, although the change was internal to the body of the worker. It did not have to be external or necessarily produced by external causes. Moreover, the inclusion in the definition of “injury” in s 6(1) of the Act of “mental injury” makes it plain beyond argument in this case that the injuries for which the Act provides are not confined to those originating externally to the body of the worker’ (citations omitted). The broad sense of injury was not confined to workers’ compensation statutes.
[38]Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, 379 [45]–[47] (French CJ, Kiefel, Nettle and Gordon JJ). In the Safety Rehabilitation and Compensation Act 1988 the term ‘injury’ is defined in s 14 to mean ‘(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment’. In Military Rehabilitation and Compensation Commission v May, French CJ, Kiefel, Nettle and Gordon JJ said (at ALR 379 [45]–[47]):
‘Injury’ in par (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning, if ‘something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word’ (emphasis added).
That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary sense.
However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar and Kennedy Cleaning). But it is the physiological change — the nature and incidents of that change — that remains central. (Citations omitted.)

The Commonwealth contended that ‘injury’ in its primary sense, ‘where it is an element in a claim for damages for negligence, can include, and where the claim is made with respect to pregnancy, will include, pregnancy’.[39] Pregnancy, continued pregnancy, and the act of childbirth or either of them constitute an injury.[40]
[39]It referred to Melchior v Cattanach (2001) 217 ALR 640; Cattanach v Melchior (2003) 215 CLR 1; Waller v James (2015) 90 NSWLR 634.
[40]CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, 72B–F (Kirby A-CJ), 84B–C (Priestley JA).

As mentioned, the effect of s 388 of the Act is to annihilate the cause of action.

The Commonwealth submitted that, once the applicant had shown that she had given birth as a consequence of defective medical treatment provided to her by the Navy, if that birth is properly characterised as an injury, a plaintiff has shown that there was a causal relationship between the defective treatment and the birth, and that immediately characterises it, if it is an injury, as a service injury.[41]
[41]See s 27 of the Act (set out in [49] above.) The Commonwealth contended that it was sufficient to show that the negligence of the Navy was a contributing cause. It referred to Repatriation Commission v Law (1981) 147 CLR 635, 649 (Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed); Roncevich v Repatriation Commission (2005) 222 CLR 115, 126 [27] (McHugh, Gummow, Callinan and Heydon JJ).

In so far as the claim, as further amended, was a claim only for pure economic loss, the Commonwealth contended that the claim had a close connection with the applicant’s continued pregnancy and the delivery of the child and that it was only as a result of those events, which are properly characterised as injury, that the claim for economic loss arises.[42] The Commonwealth also contended that the applicant’s claim cannot be divided up, that the injury claim and the claim for pure economic loss cannot be separated.
[42]Senior counsel said: ‘The claim for damages for economic loss, such as loss of earnings and earning capacity costs of child bearing, has got a close connection with the applicant's continued pregnancy and the delivery of the child. It is only as a result of those events, which we say are properly characterised as injuries, and therefore service injuries, that the claim for economic loss arises. The claim depends upon those events.’

Analysis

The term ‘injury’ is so common that one would not instinctively consult a dictionary for its meaning. The ordinary meaning of ‘injury’ does not include pregnancy or childbirth. The Shorter Oxford English Dictionary defines ‘injury’ as ‘hurt or loss caused to or sustained by a person or thing; harm, detriment, damage’. The Oxford Companion to Medicine describes an ‘injury’ as ‘harm, hurt, damage or impairment; trauma’.[43] Pregnancy may be unwanted and resented; it may involve pain and discomfort. It anticipates the pain and suffering in labour and, to focus on one side of the ledger, the vicissitudes often associated with motherhood. However, being the condition necessary for the existence of each of us, pregnancy or childbirth are not commonly thought of or described as ‘injury’; each is an indispensable part of the human condition. While pregnancy will bring about physiological changes in a woman’s body, in our view those changes are not a ‘deviation’ or ‘disruption’ from the normal physiology of a female body any more than the changes associated with puberty, or with aging, (neither of which is regarded as an injury), are a deviation or disruption from normal physiology. We do not accept that in ordinary language a healthy pregnancy and childbirth are described as injuries.
[43]John Walton, Paul B Beeson and Ronald Bodley Scott (eds), The Oxford Companion to Medicine (Oxford University Press, 1986) 605.

But, in the present case, the question is not whether, in everyday language, pregnancy and childbirth may be described as injuries. It is whether they are understood at law as injuries. More particularly, the question is what did Parliament mean by the words it used in the Act? Parliament is able to stipulate (by its definition of the words and phrases it deploys) the meaning of the terms that it uses in a particular statute in ways that depart from the everyday meaning of those words if it chooses to do so. Even if Parliament has not stipulated the meaning of the terms it has used, it may be the case that, upon its proper construction, a word or phrase has been used in a statute in a way that departs from its ordinary sense.

In the present case, the question is not just whether pregnancy and childbirth are injuries within the meaning of the Act. It is more complicated. It is a question, within s 388, about the character of an ‘action or other proceeding’. As noted, it is about a ‘service injury’ and not just an ’injury’. Further, the relevant inquiry is whether the present action is ‘in respect of … a service injury’. The connective ‘in respect of’ is capable of broadening considerably the class of proceedings to which the definition applies.[44] If, under the Act, pregnancy and childbirth are injuries, the fact that a plaintiff has removed all particulars of pain and suffering from her pleading may not prevent her action from being, none the less, ‘in respect of’ an injury, and barred. Or, to take another example, in bringing a proceeding, the father of a child may find that his proceeding is barred by the Act because his proceeding is characterised as one ‘in respect of’ the mother’s pregnancy.
[44]Doughty v Martino Developments Pty Ltd (2010) 27 VR 499.

Claims relating to pregnancy or childbirth may be claims in respect of an injury. The pregnancy can be occasioned by rape or assault; the childbirth may have been negligently mishandled. Such considerations are irrelevant to the present case.

Further, in claims made as a result of pregnancy and childbirth attributable in law to negligent reproductive advice, particulars of loss and damage commonly include pain and suffering associated with pregnancy and childbirth, as well as anxiety, depression, nervous shock and psychological suffering. But, given the further amendment of the statement of claim to remove all references to any physical or mental injury to the applicant, the question becomes whether an action for the economic cost of raising a child is necessarily a claim in respect of an injury.

The words of the statute are critical. The applicant now says that her claim is solely one for ‘pure economic loss’ and that, ex hypothesi, it is not one ‘in respect of a service injury’. However, it is necessary to be cautious. The first category is ‘juristic’; the second statutory. It is the latter category that is determinative.[45]
[45]In Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529, Gibbs J (at 545) described loss ‘which was purely economic’. In Sutherland Shire Council v Heyman (1985) 157 CLR 424, Deane J (at 502) described ‘mere’ economic loss as ‘economic loss which is not consequential upon ordinary physical injury to one’s person or property.’ ‘Pure economic loss’ is said to be loss that is ‘purely financial, being unaccompanied by any damage to their property’; San Sebastian Pty Ltd v Minister Administering The Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340, 348 (Gibbs CJ, Mason, Wilson and Dawson JJ). The cases dealing with ‘pure economic loss’ have mainly concerned the difficulties in determining whether, in the particular case, the law imposed a duty of the defendant not to cause such loss upon the plaintiff. See eg Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185.

More particularly, the questions before the Court are: (a) the meaning of the statutory phrase ‘an action or other proceeding for damages … in respect of … a service injury sustained’ by a ‘member’ (as defined in the Act) and (b) whether the applicant’s ‘action or other proceeding’ answers that description.

The cases referred to by the parties

During the hearing of the appeal, the parties made numerous references to Veivers v Connolly,[46] CES v Superclinics (Australia) Pty Ltd,[47] Cattanach v Melchior,[48] Caven v Women’s and Children’s Health,[49] and Waller v James.[50] Each of these cases must be examined; but none appears to resolve the present question.
[46][1995] 2 Qd R 326.
[47](1995) 38 NSWLR 47.
[48](2003) 215 CLR 1.
[49](2007) 15 VR 447.
[50](2015) 90 NSWLR 634.

Each of these cases decides that a female plaintiff is entitled to damages in respect of the effect on her of a pregnancy, or a continued pregnancy, which was attributable in law to the negligence of her medical practitioners. In some of these cases, damages were awarded in respect of the pain and discomfort associated with pregnancy and childbirth; in others, damages were also paid in respect of the economic consequences of the legal and moral responsibilities of childhood.

In considering these cases, it is necessary to bear in mind that the issues that were involved are not the same as that involved in the present case. In tort, damage is the gist of the action. So, first, it had to be decided whether (the pains and discomfort associated with) pregnancy and childbirth should be accepted as damage for the purposes of the law of negligence. Later cases considered the question whether the economic costs associated with the raising of an unwanted child should be accepted as damage. Speaking at a high level of generality, that question has involved two separate issues: (a) whether such claims should be treated as cases of ‘pure economic loss’ which involve considerations not present in cases where there is damage to the plaintiff or to his or her property; and (b) whether claims for such economic costs involved in the raising of a child should be admitted as a matter of public policy.

[126]Ibid 462 [50] (emphasis added).

Kaye J then addressed the question whether the claim for the cost and upkeep of a child ‘relate to the personal injury’ of the mother within the terms of s 27B of the Limitation of Actions Act 1958. He continued:

However, the question for me is whether, in terms of s 27B of the [Limitation of Actions Act 1958], the damages claimed by the plaintiffs for the cost of care and upkeep of [the child] are damages ‘that relate to the … personal injury’ of [the mother], namely her continued pregnancy and the childbirth. In this sense, the ordinary English meaning of ‘relate’, is ‘to bring into or establish association, connection, or relation … to have reference to’. The section does not define what type of relationship must exist between the cause of action for damages and the personal injury identified. None the less, 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 childbirth) of [the mother]. [The mother’s] pregnancy, and, more relevantly, her continued pregnancy and childbirth, 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 [the mother’s] pregnancy and the obligation of the plaintiffs to care for [the child] 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 [the mother] 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 [the child] do ‘relate to’ the personal injury of [the mother] for the purposes of s 27B(i) of the [Limitation of Actions Act 1958].[127]
[127]Ibid 463 [50] (citations omitted).

It will be noticed that the premises of the reasoning of Kaye J appear to be:

(a)in the present case, the mother had claimed damages for the pain and suffering associated with her continued pregnancy and the birth of her child and the parents had claimed damages for the anxiety, depression, nervous shock and psychological suffering;
(b)damages awarded in comparable cases comprised ‘compensation for pain and suffering and loss of enjoyment of life, medical expenses, and interruption to employment during the period of the pregnancy’;[128]
(c)such damages bear ‘a striking similarity to damages awarded to an injured plaintiff in a personal injury case’;[129]
(d)there is an ‘essential and intimate relationship between, on the one hand, the pregnancy and childbirth undergone by a female plaintiff, and the costs in respect of which damages are sought’;[130]
(e)the relationship between the mother’s pregnancy and the obligation to care for her child was ‘direct, proximate and substantial’.[131]

All of which led to the conclusion that a claim for the economic costs of raising a child was one that ‘related to‘ the ‘personal injury’ constituted by the continued pregnancy and childbirth.

[128]Ibid 456 [38].

[129]Ibid 456–7 [38].

[130]Ibid 462 [49]. The reference is to a claim for the economic costs of raising a child.

[131]Ibid 463 [50].

With respect, this construction of s 27B of the Limitation of Actions Act 1958 appears to be persuasive. However, there are two matters that prevent the analysis of Kaye J in Caven from being decisive in the present case. First, there are matters proper to the construction of the Act which are irrelevant to the construction of the Limitation of Actions Act 1958. Second, in the present case, (unlike the case before Kaye J) the applicant has expressly eschewed any claim for the physical or psychological pain and suffering associated with her pregnancy and subsequent childbirth.

Waller v James

In Waller v James,[132] the New South Wales Court of Appeal considered negligent genetic counselling as an interference in the plaintiffs’ rights to plan their family rather than the negligent causing of physical injury.
[132](2015) 90 NSWLR 634 (Beazley P, McColl and Ward JJA). This case is to be distinguished from Waller v James (2006) 226 CLR 136 in which a claim on behalf of the child for ‘wrongful life’ was dismissed. The latter case was decided at the same time as Harriton v Stephens (2006) 226 CLR 52 in which a claim for wrongful life brought on behalf of a child born with congenital disabilities was dismissed.

In that case, the appellants gave birth to a child who had suffered a stroke four days after he was born which had left him profoundly disabled. The child was conceived and born following IVF treatment which had been coordinated by the respondent. Before commencing the IVF treatment, the couple raised with the respondent the fact that the father suffered from a genetic condition that they did not want their offspring to inherit. The respondent made a note to refer them to a genetic counsellor. However, he neglected to do so. The IVF treatment was commenced without the couple having had any genetic counselling. When their child was born, he was found to be suffering from the genetic condition.

At trial, the appellants had contended that their child’s genetic condition had caused or materially contributed to the stroke he suffered when he was four days old. That contention was rejected by the trial judge; it was not challenged on appeal. Rather, the appellants contended that the respondent breached his contract and his common law duty of care in failing to inform them, or cause them to be informed, of the hereditary aspects of the father’s genetic condition. They contended that, had they been so informed, they would have deferred undergoing the IVF procedures until the respondent had identified methods to ensure that only embryos not affected by the genetic condition would be transferred to the mother.[133]
[133]The trial judge (Hislop J) described the claim as follows: ‘The plaintiffs in their Fourth Further Amended Statement of Claim particularised the breaches which “caused or materially resulted in the first plaintiff and the second plaintiff suffering injury, loss and harm to date and continuing”. The injury, loss and harm complained of was essentially that if properly informed, the plaintiffs would have deferred undergoing the IVF procedure of October – November 1999 until there were available methods to ensure that only embryos not affected by AT3 mutation would be transferred to the first plaintiff or alternatively would have chosen to use donor sperm. The IVF procedures between March and December 1999 were an expensive waste of time and money and subjected the first and second plaintiff to indignities undergoing those procedures and subjected the first plaintiff to a pregnancy carrying an AT3 affected child. [The child’s] needs will subject the plaintiffs to “great expense” in excess of those expenses that would be incurred in raising and looking after a “normal” person without such a genetic illness and disease [AT3] causing and materially contributing to [the child’s] injuries and disabilities and has caused each of the plaintiffs to experience substantial psychological pain and suffering caused by or resulting from [the child’s] problems’; Waller v James [2013] NSWSC 497 [223]. There does not appear to have been a claim for the pain and discomfort associated with pregnancy and childbirth.

In making their claim, the appellants in Waller v James identified the harm that they had suffered as a ‘deprivation of their: “... right to plan their family or reproductive future in terms of choosing if, whether and when they would undertake the moral and legal responsibility to rear and maintain a child.”’[134] In so formulating their claim, the appellants relied on the analysis, given by McHugh and Gummow JJ in Cattanach v Melchior, of the right that had been infringed by the negligence of the appellant in that case: ‘The interest of the respondents which the law of negligence protected in respect of the negligent 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’.[135]
[134](2015) 90 NSWLR 634, 638 [6].
[135](2003) 215 CLR 1, 31 [66] (citations omitted).

The Court of Appeal accepted that the respondent was under a duty of care to the appellants and that he had breached that duty in failing to explain adequately to them the reasons for referring them to a genetic counsellor. However, the appeal was dismissed on grounds of causation and remoteness. In particular, the harm suffered by the appellants was not a foreseeable consequence of the respondent’s negligence and was, therefore, too remote to be recoverable.

In her judgment, Beazley P (with whom McColl and Ward JJA agreed) analysed the content of duties of care vindicated by the law of negligence. The duties to avoid causing physical injury to a person or to a person’s property are well established and rarely in controversy. The President referred to Modbury Triangle Shopping Centre Pty Ltd v Anzil[136] where, she said, Gleeson CJ and Hayne J
[136](2000) 205 CLR 254.

found it useful, in a case where the existence of the duty of care did not fall into a well-established category of negligence, to begin the consideration of that question by reference to the harm suffered for which the defendant was said to be liable and the particular want of care alleged.[137]
[137](2015) 90 NSWLR 634, 653–654 [99]. The reference is to Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 262–3 [14]–[15] (Gleeson CJ) and 290 [105] (Hayne J).

The President continued:

Harm or damage, in this sense, is different from the damages which flow from it: Cattanach v Melchior at [23] (Gleeson CJ). McHugh and Gummow JJ observed, at [67]:
‘… In the law of negligence, damage is either physical injury to person or property or the suffering of a loss measurable in money terms or the incurring of expenditure as the result of the invasion of an interest recognised by the law.’

In Harriton v Stephens, Crennan J observed, at [225]:
‘… A right of action and a duty of care are inseparable. In a case like this, the existence and extent of a duty of care can usefully be considered by reference to the nature of the damage suffered because a cardinal principle of imposing liability for negligence in novel circumstances is that the party complained of should owe to the party complaining a duty to take care, which the law can recognise as a matter of principle, and that the party complaining should be able to prove that actual loss or damage has been suffered as a consequence of a breach of that duty. Proving that actual loss or damage has been suffered requires proof of interference with a right or interest recognised as capable of protection by law.’ …[138]

[138](2015) 90 NSWLR 634, 654 [100]–[101] citing Harriton v Stephens (2006) 226 CLR 52, 118 [225].

In the event, the President analysed the ‘right or interest recognised as capable of protection by law’ as the appellants’ right to plan their family. It was not necessary, where a claim for economic loss had been made, that the subject of economic loss ‘be derived from proprietary rights or obligations governed by the general law’.[139] She said:

In my opinion, the appellants, in identifying the ‘right to plan their family’, were in fact identifying the interest said to have been infringed … Although they claimed ‘damages’ flowing from the infringement of that right, their claim was for economic loss, namely, the cost of raising [their son]. That is to be distinguished from the amount they claim they should be awarded to compensate them for that loss. They additionally claimed damages for the ‘pain and suffering’ of bearing the child and damages for a range of psychological and physical consequences each has suffered. These include, in the case of the first appellant, back, shoulder, neck and elbow pain and osteoarthritis in both knees, due to the strain of lifting and moving [their son]. I will return to these aspects of the claim later in these reasons.
Having regard to the views of McHugh and Gummow JJ in Cattanach v Melchior and subject to the question of foreseeability as well as to the questions of causation and remoteness of damage, I am prepared to accept that the interest said to be infringed is capable of protection by the law such as to permit a claim for economic loss and that the scope of the respondent’s duty extended to it.[140]

[139](2015) 90 NSWLR 634, 657 [119].

[140]Ibid 658 [129]–[130] (citations omitted).

Conclusion

As the foregoing analysis makes clear, a claim in negligence does not depend for its success on an interference in the physical integrity of the plaintiff or his or her proprietary rights. Rather, the law accepts certain interests as capable of protection and, if they are negligently violated, the plaintiff will be taken to have suffered damage and, provided questions of causation and remoteness of damage are satisfied, to be entitled to compensation (damages).

In the present case, the applicant has removed from her pleading any allegation that, by reason of her continued pregnancy or the birth of her child, she has suffered damage in the form of physical injury. Her claim is solely in respect of the negligent interference in her right to plan her family. She seeks compensation for what was described by McHugh and Gummow JJ in Cattanach v Melchior as ‘the burden of the legal and moral responsibilities which arise by reason of the birth of the child’.[141]
[141](2003) 215 CLR 1, 32 [68].

As indicated above, in our view, pregnancy and childbirth would not generally be understood as injuries. The Act contains its own definition of ‘injury’; but by itself that definition does not resolve the issue whether pregnancy and childbirth are to be taken as injuries for the purposes of the Act.[142]
[142]See [75]–[77] above.

However, it seems that assistance can be gained by considering the context in which that definition is located. The Act deals with the acceptance of liability for ‘service injuries, diseases and death’.[143] The collocation of ‘death’ and ‘disease’ with ‘injuries’ suggests that ‘injuries’ is used in its normal descriptive sense, and would not include pregnancy and childbirth. It is to be noted that, while the definition of ‘injury’ includes ‘any physical or mental injury’, it does not include ‘a disease’. ‘Disease’ is separately defined. A beneficent interpretation of the Act (which is appropriate and which would support a restrictive reading of the prohibition on proceedings for damages at common law) should not allow the distinct concepts of ‘injury’ and ‘disease’ to be conflated.[144]
[143]Heading to ch 2.
[144]See [45] above.

Chapter 3 provides for rehabilitation. Section 38 identifies the aim of rehabilitation. It speaks of restoring a person ‘who has an impairment, or an incapacity for service or work, as a result of a service injury or disease’. Again, one does not naturally think of pregnancy and childbirth as giving rise to an impairment or incapacity requiring ‘rehabilitation’ to the ‘same physical or psychological state’ that the member had before the ‘injury or disease’. Chapter 6 provides for treatment. Section 13(1) contains the definition of ‘treatment’. It is set out above.[145] It would seem that the sense of injury used by the Act is one in which the injury will, all things being equal, be amenable to ‘treatment’. But, the definition of treatment is itself premised upon the injury being in the nature of a trauma or a hurt or a violation to the physical integrity of the member. One does not naturally think of pregnancy and childbirth as requiring restoration to physical or mental health or as a ‘suffering’ for which there is alleviation.
[145]See [54] above.

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’. Accordingly, unless the authorities otherwise dictate, we consider that there are matters within the statutory context which indicate that the applicant’s pregnancy and childbirth do not come within the definition of ‘injury’ as that terms appears in s 388 of the Act.

Finally, do the cases that the parties have placed before the Court mandate the conclusion that pregnancy and childbirth in the circumstances of this case come within the definition of ‘injury’ in the Act?

In our opinion, they do not. They are of no direct relevance to the meaning of the statutory words in the Act. However, they do show that an action in negligence does not have to be understood solely in terms of an injury to the person or his or her property. Damages may be payable where a plaintiff’s economic interests are negligently interfered with. And, as the joint judgment of McHugh and Gummow JJ in Cattanach v Melchior and that of Beazley P in Waller v James point out, an action in negligence will lie, and damages will be payable, in any case where there is a negligent invasion of an interest recognised by law.

The closest any judgment gets to a holding that pregnancy and childbirth are injuries is the judgment of Kaye J in Caven. However, that judgment was not dealing with the Act and the definitions in it; it was dealing with other legislation. It was, moreover, dealing with a case where the applicant for an extension of time was claiming damages for the pain and discomfort of pregnancy and childbirth and associated anxiety, depression, nervous shock and psychological suffering.[146] Finally, different expansive constructional techniques apply to a beneficent legislative provision such as an extension of time provision in a Limitation of Actions Act from those that apply to a provision that bars common law remedies.
[146]The Court was not taken to various cases dealing with the question whether pregnancy after a failed sterilisation operation was an ‘injury’ under the New Zealand statutory compensation schemes. See L v M [1979] 2 NZLR 519 in which Cooke J said (in a dissenting judgment) (at 529): ‘But I do not think that either the conception or the childbirth could be described as a personal injury to the mother’. In that case, the New Zealand Court of Appeal was considering the definitions in the Accident Compensation Act 1972 (NZ). The legislation supporting the scheme for statutory compensation has been amended several times since 1972. In Accident Compensation Corporation v D [2008] NZCA 576, the Court of Appeal (Arnold and Ellen France JJ; William Young P dissenting) took the view that an unwanted pregnancy is not a ‘personal injury’ under the Injury Prevention Rehabilitation and Compensation Act 2001 (NZ) because it is not a ‘physical injury’ as the phrases used in the legislation suggested a need for harm or damage. On the contrary, in Allenby v H [2012] 3 NZLR 425, the Supreme Court of New Zealand held, in respect of the jurisdiction of the Accident Compensation Corporation, that impregnation following a failed sterilisation operation was a ‘personal injury’ and, thus, common law proceedings in respect of it were barred; see Elias CJ at 436 [18]–[19], Blanchard, McGrath and William Young JJ at 448–450 [68]–[74], Tipping J 453 [87]–[88]. In doing so, the Court drew an analogy (at 450 [76]) between becoming pregnant as the result of rape and becoming pregnant as the result of a failed sterilisation operation. The analogy appears to have commended itself to the Supreme Court as a result of the history of various amendments to the relevant legislation, a history described as ‘tortuous’ and legislation described as ‘complex’; [2012] 3 NZLR 425, 448 [68].

’In respect of’

It should also be noted that the barring of claims in s 388(1) is limited to ‘an action or other proceeding for damages … in respect of: (a) a service injury sustained, or a service disease contracted, by another member or a former member’. The limitation is not in respect of all actions or proceedings for damages by a member or former member. It would have been an easy thing to provide for a more general barring provision.

However, there is a further question that must be addressed. As indicated above, s 388 extends to actions or proceedings ‘in respect of’ a service injury. The words ‘in respect of’ is a connecting phrase that extends the reach of the bar. As indicated above, 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 in respect of his wife’s pregnancy, if her pregnancy is a ‘service injury’.

In Unsworth v Commissioner for Railways,[147] Fullagar J considered s 121 of the Railways Act 1914 (Qld) and said:

I would concede that the natural reading of the words ‘action brought to recover damages or compensation in respect of personal injury’ is to read them as referring to personal (i.e. physical) injury to the plaintiff himself or herself. But the prepositional phrase ‘in respect of’ is wider [than] the preposition ‘for’, and the words are capable of referring to cases where the cause of action arises out of personal injury but the plaintiff is someone other than the person injured. And the specific reference to personal injury resulting in death is decisive, in my opinion, to show that the introductory words of the section include actions under Lord Campbell’s Act.[148]

[147](1958) 101 CLR 73.

[148]Ibid 87–8.

In Doughty v Martino Developments Pty Ltd,[149] the question arose whether s 93(1) of the Transport Accident Act 1986 extinguished the right of an employer to recover damages for the loss of services of an employee injured as a result of a traffic accident. Section 93(1) provided: ‘A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.’ Nettle JA (with whom Mandie JA and Emerton AJA agreed) said that ‘the meaning of “in respect of” varies according to context. But, conceptually, it has “the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters”.’[150] He then referred to what Fullagar J had said in Unsworthv Commissioner for Railways and said:

As it appears to me, the position under s 93(1) of the Act is even clearer than the position under s 121 of the Railways Acts 1914–1955 (Qld). The expression ‘damages in any proceeding in respect of the injury or death of a person’ in s 93(1) is wider that the expression ‘damages or compensation in respect of personal injury’ in s 121 of the Railways Act, and wider again than the term ‘damages or compensation for personal injury’. Consequently, s 93(1) is even more ‘capable [than s 121 of the Railways Act] of referring to cases where the cause of action arises out of personal injury but the plaintiff is someone other than the person injured’. The use of the indefinite article before ‘person’ where second appearing in s 93(1) further implies that the section was intended to refer as much to a proceeding in which the plaintiff is not the person injured as to one in which the plaintiff is the person injured. And the express inclusion in s 93(1) of reference to ‘damages in any proceeding in respect of death’ effectively puts beyond doubt that the section extends to proceedings brought by a plaintiff to recover damages in respect of the death of another person killed as result of a transport accident.[151]

[149](2010) 27 VR 499.

[150]Ibid 504 [6] (citations omitted), referring to Trustees Executors and Agency Co Ltd v Reilly [1941] VLR 110, 111 (Mann CJ); Powers v Maher (1959) 103 CLR 478, 485 (Kitto J).

[151](2010) 27 VR 499, 506 [13].

In the light of these authorities, it is plain that s 388 of the Act bars not only claims where the plaintiff has suffered a service injury but also a claim, such as a claim by a dependant or a relative, that takes as its starting point that a member has suffered a service injury. But, that leaves for consideration whether the action or proceeding has, as a condition necessary for its success, a ‘service injury’. In the present case, we are of the view, for the reasons given previously, that it does not. If a normal pregnancy and childbirth do not amount to an ‘injury’ within the meaning of the Act, it is irrelevant how wide a construction is to be attributed to the expression ‘in respect of’ as there is no injury to which some other subject matter can connect. For that reason, the present claim is not a claim ‘in respect of’ an injury within the meaning of s 388(1) of the Act.

‘Service injury’

Having decided that the applicant had suffered an ‘injury’, the primary judge decided the applicant’s injury was a ‘service injury’ in so far as her injury ‘arose out of, or was attributable to, any defence service’ within s 27 of the Act. In reaching that conclusion, the primary judge referred to the facts agreed between the parties and said that ‘[a]lthough it does not appear to have been an agreed fact between the parties that the plaintiff was required by the Navy to attend a medical centre for assessment upon enlistment and on each of the other occasions pleaded by her as relevant to her claim, both counsel treated it as a requirement of her enlistment in the Navy that she do so’.[152] Thereafter, he relied on ‘common knowledge’:

that enlistment in all branches of the Australian Defence Force is followed by a regime of physical training lasting some time. Accordingly, it is in the interests of the Navy as well as in those of the sailor, that her pregnancy status be ascertained and taken into account in the enlistment process and in the training which would normally follow it. Thus, in attending the medical centres referred to for medical examinations, the plaintiff was acting in the interests of the Navy as well as in her own interests. She was engaged in ‘rendering defence service’ just as much as if she were driving a truck, cleaning the deck of a ship, or engaging in some other more obviously Naval activity.[153]

[152]Reasons [14] (emphasis in original).

[153]Ibid [15].

As indicated above, before this Court the parties were in dispute on the question whether, assuming the applicant had suffered an injury, her injury was a ‘service injury’.

In the statement of agreed facts, the parties agreed that: (a) the applicant enlisted on 14 January 2008; (b) on six occasions between 15 January 2008 and 29 April 2008, she attended a Health Care Centre at HMAS Cerberus in the State of Victoria, which Centre was operated on behalf of the Commonwealth, where the applicant underwent vaccinations and Mantoux testing (a screening test for tuberculosis); and (c) on none of those occasions was her pregnancy detected.

The relationship between those facts and the existence of a service injury is not perspicuous from the agreed facts. While we can accept what the primary judge took to be ‘common knowledge’ that a requirement of the applicant’s enlistment in the Navy was that she attend medical examinations for the purpose of assessing her physical condition, and while it may be arguable that the applicant’s pregnancy (and the subsequent birth of her child) was thus ‘attributable’ to her defence service, the agreed facts were not sufficient for the matter to be decided.

Accordingly, had it been necessary for us to decide the point, we would have declined to do so and remitted the matter to the Trial Division for further consideration.

Disposition

In our opinion, the applicant’s action is not one ‘in respect of … a service injury’. Therefore it is not barred by s 388 of the Act.

For the reasons given above,

(a)       the application to further amend the statement of claim should be granted;
(b)      the application for leave to appeal should be granted and the appeal allowed;
(c)the orders made by Bongiorno JA on 28 August 2015 be set aside and in their place it is ordered that, in respect of the questions set down for preliminary determination;
(i)       Question 1.1 is answered: ‘No’.

(ii) Question 1.2 is answered: ‘The Plaintiff’s claim for damages is not barred by s 388(1)(a) of the Military Rehabilitation and Compensation Act 2004 (Cth).’

[2017] VSCA 84

12 April 2017