Hetherington v Department of Defence
[2015] VSC 448
•28 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 4440
| EMILY HETHERINGTON | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) | Defendant |
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JUDGE: | BONGIORNO JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 August 2015 |
DATE OF JUDGMENT: | 28 August 2015 |
CASE MAY BE CITED AS: | Hetherington v Department of Defence |
MEDIUM NEUTRAL CITATION: | [2015] VSC 448 |
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WORKERS’ COMPENSATION – Claim for damages for negligence at common law – Failure to diagnose pregnancy – Consequences – Injury consequent on undiagnosed pregnancy – Australian Defence Force – Military Rehabilitation and Compensation Act 2004 (Cth), ss 27, 29, 30, 388, 389, 390
WORDS AND PHRASES – ‘arose out of, or was attributable to, any defence service’
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Curtain QC with Mr M Carey | Slater & Gordon |
| For the Defendant | Mr P Hanks QC with Mr R Knowles | Moray & Agnew |
HIS HONOUR:
On 14 January 2008, when Emily Hetherington enlisted in the Royal Australian Navy at Anglesea Barracks, Hobart, she did not know that she was pregnant. She had just turned 19. Although she was subjected to a medical examination on that day at a Navy medical centre, and five 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, however, when an ultrasound examination was undertaken, it showed that she was then 22 weeks pregnant. She must have become pregnant about the end of November 2007.
Ms Hetherington did not want to be pregnant and would have been prepared to have an abortion, but by the time her pregnancy was diagnosed it had progressed too far for that course to be adopted. In due course, on 24 August 2008, she gave birth to a child who is now, presumably, seven years old.
On 23 August 2011 Ms Hetherington issued a writ in this Court claiming damages from the Commonwealth of Australia[1] 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 Ms Hetherington had elected to pursue a common law action for damages rather than rely on entitlements under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the MRC Act’). This letter appears to have been written in purported compliance with s 390 of the MRC Act. As will appear subsequently, it was, in the circumstances, misconceived.
[1]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 and need not be considered further.
The MRC Act provides:
for compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease …[2]
Except for a very limited exception, confined to non-economic loss, with a damages ceiling of $110,000, s 388 of the MRC Act bars all legal action or proceedings against the Commonwealth for damages in respect of ‘a service injury sustained, or a service disease contracted, by another member …’. The questions with which this Court is now concerned arise as a result of reliance by the Commonwealth on s 388 as a complete bar to the plaintiff’s action.
[2]MRC Act, s 3.
To enable the efficacy of this plea to be determined as a preliminary issue, the parties have expressed by consent two questions for the Court’s determination as follows:
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?
The plaintiff’s claim
The plaintiff’s statement of claim alleges the existence of a duty of care and/or an agreement with the Commonwealth with respect to her health. It goes on to allege the breach by the Commonwealth of that duty of care and/or agreement by its failure to diagnose her pregnancy. This failure, she alleges, resulted in her pregnancy continuing and her giving birth to a child on 24 August 2008. The damages claimed by the plaintiff as a result of these breaches were particularised (as far as they were particularised at all) as follows:
17.The birth of [the child][3] was caused by the negligence and/or breach of agreement of the First Defendant.
[3]The child’s name appears in the statement of claim. It has been removed from this judgment for obvious reasons.
…
18.As a result of [the child’s] birth, the Plaintiff has suffered injury, loss and damage.
PARTICULARS OF INJURIES
(i) Requirement to undergo the pregnancy and labour associated with the birth of [the child];
(ii) Psychological trauma.
PARTICULARS OF SPECIAL DAMAGE
The Plaintiff has been exposed to the cost of supporting and raising (the child), particulars of which will be provided prior to the trial of the action.
PARTICULARS OF LOSS OF EARNING/LOSS OF EARNING CAPACITY
(i) The Plaintiff was born on 7 January 1989.
(ii) By reason of [the child’s] birth, the Plaintiff’s training and career progress with the First Defendant has been delayed and/or adversely impacted.
(iii) As a result of the delay and/or adverse impact upon the Plaintiff’s training and career progress with the First Defendant, the Plaintiff has suffered loss and damage and/or loss, of earning capacity.
(iv) Full details of the Plaintiff’s loss will be provided prior to the trial of the action.
By its amended defence to the plaintiff’s statement of claim, the Commonwealth admitted its duty of care, denied a breach of that duty and denied that the plaintiff’s child was born as a result of its negligence. It denied the plaintiff’s injury, loss and damage. Most importantly for present purposes, it pleaded s 388 of the MRC Act as a bar to the plaintiff’s action against it for damages in this Court.
Has the plaintiff suffered an injury?
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;[4] Melchior v Cattanach;[5] Caven v Women’s and Children’s Health;[6] McFarlane v Tayside Health Board.[7]
[4](1995) 38 NSWLR 47.
[5][2000] QSC 285 (Holmes J). This decision was upheld by a majority of the Queensland Court of Appeal: Melchior v Cattanach (2001) 217 ALR 640. Special leave to the High Court was granted, but only in respect of the question whether a court can require a doctor who is found to have been negligent to bear the cost of raising and maintaining the child: Cattanach v Melchior (2003) 215 CLR 1.
[6](2007) 15 VR 447 (Kaye J).
[7][2000] 2 AC 59, 74 (Lord Flynn), 81, 84 (Lord Steyn), 87, 89 (Lord Hope), 102 (Lord Clyde).
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’;[8] 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’.[9]
[8]Melchior v Cattanach (2001) 217 ALR 640, 670 [141].
[9](2007) 15 VR 447, 456–7.
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.
Clearly, the plaintiff’s pregnancy itself was not causally related to any action of the Commonwealth. She was already about six weeks pregnant when she enlisted in the Navy. However, having regard to the various medical examinations performed upon her when she enlisted, and subsequently, until 2 May 2008 when her pregnancy was ultimately diagnosed, she seeks to hold the Commonwealth responsible for not making that diagnosis earlier so as to enable an abortion to be performed. The plaintiff seeks damages from the Commonwealth for the injuries of an unwanted pregnancy from mid-January 2008 until the birth of her child on 24 August 2008, the labour and associated injuries connected with that birth, psychological trauma, the financial detriment suffered as a result of having to support and raise the child, and her own consequential loss of earnings and earning capacity into the future.
Has the plaintiff suffered a service injury or disease?
The definition section of the MRC Act (s 5(1)) directs attention to ss 27, 29(1), 29(2) and 30 of the Act for the meaning of the term ‘service injury’. Section 27 provides what are referred to as the ‘Main definitions’ of service injury and service disease. It is necessary only to refer to ss 27(a) and (b). Those provisions are in the following terms:
27 Main definitions of service injury and service disease
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 of 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;
…
Although 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. It would be surprising if it were otherwise. The health status of a newly enlisted sailor would be a matter of some importance to the Navy. If the sailor was female her pregnancy status would be particularly important, having regard to the functions she might be required to carry out, whether ashore or on a ship.
It is 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.
In Roncevich v Repatriation Commission[10] the High Court was concerned with the construction of s 70(5) of the Veterans Entitlement Act 1986 (Cth), the relevant part of which was in the following terms:
an injury suffered by such a member shall be taken to be a defence-caused injury … if:
(a)… [it] arose out of, or was attributable to, any defence service … of the member;
[10](2005) 222 CLR 115.
Sergeant Roncevich was a non-commissioned officer in the Australian Army stationed at Holsworthy Army Base. On 27 February 1986 he spent some four and a half hours in the Sergeants Mess at the base drinking, having a meal and socialising with other NCOs, on the occasion of a visit to Holsworthy by the Chief Regimental Sergeant Major of the Australian Army (RSM Army). Sergeant Roncevich drank about six to eight cans of full strength beer whilst at the Sergeant’s Mess before retiring to his room at the barracks to iron his uniform for the following day. Whilst there, he had the need to expectorate. To do so, he stood on a trunk at an open window in his room in an attempt to spit through the window. He overbalanced, fell out the window and injured his left knee.
In the course of giving evidence on his claim against the Repatriation Commission for compensation under the Act referred to, Sergeant Roncevich conceded that he was ‘drunk’ at the time he fell. It was common ground that although there was no compulsion on him to attend the Sergeant’s Mess that evening, or to drink as much as he did, it was expected that senior NCOs who were present at the base would attend the mess when a distinguished visitor was a guest.
Sergeant Roncevich was unsuccessful in his claim for compensation from the Repatriation Commission and on review before the AAT, a single judge of the Federal Court (Mansfield J) and the Full Federal Court (Whitlam and Marshall JJ, Heerey J dissenting). He was unsuccessful in the AAT and at both levels of the Federal Court because each tribunal considered that the injury to his knee was not attributable to ‘defence service’.
In his dissenting judgment in the Full Federal Court Heerey J cited a passage from Henderson v Commissioner of Railways (WA)[11] and made the following observations, which were subsequently adopted by the High Court:
[11](1937) 58 CLR 281.
The Tribunal said that the appellant’s intoxication did not ‘arise out of any task that (he) had to do as a soldier’. However, things a person does in the course of serving as a soldier are not limited to the obeying of lawful commands, directions and orders under disciplinary sanction pursuant to ss 27, 28 or 29 of the Defence Force Discipline Act (1982) (Cth). In Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281, where the High Court was concerned with a workers’ compensation statute which spoke of injury ‘arising out of or in the course of employment’, Dixon J said (at 294, citations omitted):
‘To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. … Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.’[12]
His Honour stated his conclusion in these paragraphs:
In the present case, the expression ‘arose out of, or was attributable to, any defence service’, although made up of ordinary words, is one that conveys a compound legal concept. It is not like the ordinary word ‘business’ which was at issue in Hope or the word ‘insulting’ (Brutus v Cozens [1972] UKHL 6; [1973] AC 854). For upwards of a century in common law jurisdictions courts have construed the meaning of such expressions in workers’ compensation legislation. Accordingly the correct application of the expression to the facts found in the present case raised a question of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), subject to the need to make a further finding on the causation issue, as explained above (at [34]).
The Tribunal erred in law in the application of this statutory criterion. It effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the Army. The primary judge did not correct that error. It might also be said that if injury can only arise out of or be attributable to defence service if it occurs when the claimant is doing something which he or she is ordered to do, it is strange that the Act contemplates injury being compensable even when it arises out of disobedience of an order, as long as there has not been a serious default or wilful act or a serious breach of discipline.[13]
[12]Roncevich v Repatriation Commission [2003] FCAFC 146, [24]. This was adopted by the High Court at Roncevich v Repatriation Commission (2005) 222 CLR 115, 123.
[13]Roncevich v Repatriation Commission [2003] FCAFC 146, [36]–[37].
In overturning the decision of the Full Federal Court, the majority in the High Court (McHugh, Gummow, Callinan and Heydon JJ, Kirby J agreeing as to the conclusion) upheld Heerey J’s dissenting opinion in the Full Federal Court, saying:
The evidence in this case is capable of providing an affirmative answer to the correct question. As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.[14]
The majority referred to Kavanagh v The Commonwealth[15] and Repatriation Commission v Law.[16]
[14]Roncevich v Repatriation Commission (2005) 222 CLR 115, 125.
[15](1960) 103 CLR 547, 558 (Fullagar J).
[16][1981] 147 CLR 635, 647, 649 (Aickin J).
In the plaintiff’s case, she was required, or, at least expected, to undertake the medical examinations which failed to diagnose her pregnancy. In complying with that requirement, or expectation, she was ‘rendering defence service’ within the meaning of s 27 of the MRC Act. Her subsequent injuries, already described, ‘arose out of, or [were] attributable to’ that defence service. The outcome of her medical examinations, which resulted in her pregnancy not being diagnosed, with the consequences already discussed, is no less attributable to her having rendered defence service than would have been the outcome of a positive, but erroneous, diagnosis of cardiac disease which resulted in open heart surgery.
Conclusion
The plaintiff’s claim in this proceeding is a claim for damages by a serving member of the Defence Force against the Commonwealth in respect of a service injury. As such, it is barred by s 388 of the MRC Act unless it is preserved by s 389, to which reference has already been made. However, in the circumstances of this case, s 389 has no application because on no view of the facts of the case can the plaintiff comply with s 389(1)(a). To do so, she would have to be entitled to compensation under ss 68, 71 or 75 of the MRC Act, a situation which could not obtain on any view of the facts of this case.
Each of the two questions for determination by the Court as a preliminary issue in this case is answered in the affirmative. The only consequence of such answers can be judgment for the defendant.
Orders
The orders will be that:
1.there be judgment for the defendant; and
2.the plaintiff pay the defendant’s costs to be taxed.
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CERTIFICATE
I certify that this and the 9 preceding pages are a true copy of the reasons for Judgment of Bongiorno JA of the Supreme Court of Victoria delivered on 28 August 2015.
DATED this twenty-eighth day of August 2015.
Associate
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