[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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
FJ (a Pseudonym) v Commonwealth [2017] VSCA 84
Case
[2017] VSCA 84
Decision Date
CaseChat Overview and Summary
A woman, identified in the court as FJ, sought compensation from the Commonwealth for the costs associated with raising her child, born while she was serving in the Australian Defence Force. She claimed that her pregnancy and subsequent childbirth constituted an 'injury' under the Military Rehabilitation and Compensation Act 2004 (Cth), which would entitle her to compensation. The court was required to determine whether the statutory definition of 'injury' encompassed the circumstances of her case, and if the act precluded her from pursuing common law damages for the same matter. This decision was significant as it would determine the extent of compensation available to military personnel in similar situations.
The court examined the statutory definition of 'injury' and considered whether the pregnancy and childbirth fell within its scope. It also assessed whether the statutory compensation scheme provided a comprehensive remedy that precluded any common law action. The court found that while the statutory definition was broad, it did not cover the specific circumstances of FJ's case, and therefore, she was not precluded from seeking common law damages. The court's reasoning was grounded in the statutory interpretation principles and the need to provide a just outcome for the applicant.
The court held that the statutory compensation scheme did not comprehensively cover the costs associated with raising a child born under the circumstances described, and thus, FJ was not prohibited from bringing a common law action for damages. The court granted leave to appeal and allowed an amendment to the statement of claim to reflect these findings. The court's decision clarified the scope of the statutory compensation scheme and the potential for common law remedies in cases where the statutory scheme is not exhaustive.