The court was asked to decide whether the applicants, in a claim for the costs of raising their child with Down Syndrome, were subject to a 3 or 6 year limitation period, and if the three year limitation period applied, whether an order to extend that limitation period ought to be granted.
In Issue
- Whether a claim in Queensland for the cost of raising a child is a claim for pure economic loss, or a claim in respect of personal injury - If the latter, does the 3 year limitation period under s11 of the Limitation of Actions Act 1974 (Qld) (the Act) apply?
- Whether a material fact of a decisive nature (a medical report evidencing breach) was within the applicant’s means of knowledge prior to one year before the claim was filed.
The Background
In 2014 Mr and Mrs Stephens (the applicants) conceived a child. At the time, Mr Stephens was studying medicine and Mrs Stephens a Masters of Speech Pathology. On 20 August 2014, Mrs Stephens had an ultrasound to 'determine whether the embryo was affected by chromosomal abnormalities.' The applicants were advised that “[t]he nuchal translucency is a bit raised” but “[n]ot to worry, the final risk number is in the low range”. Mr Stephens enquired whether maternal chromosomal blood testing should be carried out to double check for Down Syndrome, but was advised there was no need in the circumstances.
The child was born on 5 February 2015 with Down Syndrome. The applicants made numerous attempts to pursue legal remedy, with their case being rejected by Shine Lawyers and another firm in 2015. McInnes Wilson Lawyers were subsequently engaged to act, but on 10 May 2017 the applicants were advised that the expert opinion of Dr Siles obtained by McInnes Wilson “was not supportive of any claim for negligence”.1 Mr Stephens immediately contacted his associate, Professor Ellwood, who upon reviewing the radiological images stated these might enable the applicants to say the reporting was negligent. The applicants were then referred to Carroll & O’Dea Lawyers, who obtained medical evidence from Dr Nicole Woodrow, supporting an allegation of breach in late 2017.
The claim for wrongful birth was filed on 24 September 2018, outside the 3 year limitation period for personal injury under s11 of the Limitation of Actions Act 1974 (Qld) (the Act). The applicants contended the claim for the cost of raising the child was not subject to the 3 year limitation period set out in s11, as it was a claim for pure economic loss. Alternatively, they contended that if s11 was engaged, they were entitled to an order pursuant to s31 of the Act extending the time for the commencement of proceedings.
The Decision at Trial
The court affirmed the Victorian decision of Caven2 (which dealt with ambiguity raised in Cattanach v Melchior3 about the classification of a wrongful birth claim as one for pure economic loss as opposed to personal injury), and affirmed that pregnancy and childbirth constitute ‘personal injury’ at law; with the costs of raising a child arising out of that injury.4 Section 11 of the Act, which specifically uses the wide prepositional phrase 'in respect of' personal injuries, as opposed to the more restrictive 'for', was held to apply to claims for the cost of raising a child. His Honour stated, “the essence of a wrongful birth claim is that, absent the negligent act, the mother would not have given birth to the child and the parents of the child would not be subject to the moral and financial burden of past and future child-rearing and maintenance costs.”5 The court held that the 3 year limitation period for personal injury under s11 of the Act applied.
The next question was whether the limitation period ought to be extended, pursuant to s31(2) of the Act.
In that regard, the only controversial question was whether a material fact of a decisive character was within the means of knowledge of the applicants prior to 24 September 2017 (one year before the claim was filed). The verbal advice of Professor Ellwood that they might have a claim could not constitute a material fact of a decisive nature. Despite earnest attempts, it really was not until October 2017 that the relevant material fact came within the applicants’ means of knowledge. The court concluded that an appropriately advised reasonable person could not have considered that he or she had a worthwhile case until the receipt of Dr Woodrow’s oral advice on 9 October 2017.
The application under s31 of the Act was therefore granted, and the limitation period extended accordingly.
Implications for you
We now have Queensland authority confirming that the 3 year statutory limitation period for personal injury (as opposed to the 6 year period for pure economic loss claims) will apply in respect of claims for the costs of raising a child.
Stephens & Anor v Paradise Ultrasound Specialists Pty Ltd & Anor [2019] QSC 134
1 Stephens & Anor v Paradise Ultrasound Specialists Pty Ltd & Anor [2019] QSC 134, at [63]
2 Caven and Another v Women’s and Children’s Health (2007) 15 VR 447
3 [2003] HCA 38
4 Stephens & Anor v Paradise Ultrasound Specialists Pty Ltd & Anor [2019] QSC 134, at [27], re Limitation of Actions Act 1958 (Vic)
5 Stephens & Anor v Paradise Ultrasound Specialists Pty Ltd & Anor [2019] QSC 134, at [19]
