On 31 May 2019, the Supreme Court of Queensland granted a couple an extension of time in which to commence court proceedings. The couple brought an action for wrongful birth and personal injuries sustained after their daughter was born with Down syndrome. The couple claim that they chose to continue with the pregnancy on the basis of advice received following an ultrasound that there was a low risk of the child being born with Down syndrome.

Background Facts

In 2014 Mrs Stephens fell pregnant with her first child. Mr and Mrs Stephens were both students and were concerned about having a child at that stage in their lives. However, they worried that if they delayed too long, there was a higher chance that their child would be born with a genetic abnormality such as Down syndrome. Mrs Stephens attended upon the first respondent for an ultrasound that would determine any chromosomal abnormalities. The sonographer told Mr and Mrs Stephens that ‘the nuchal translucency is a bit raised’ but that it was not a worry, as the 'final risk number' was in the low range. Mr Stephens, a medical student, asked the sonographer whether they should do a maternal chromosomal blood test to double check for Down syndrome. The sonographer replied that there was a new blood test available, which would cost $500, but said that it was not needed as they were ‘in the low risk range’.

The ultrasound images were sent to the second respondent who reported that there was an overall low risk of chromosomal abnormality. On this basis, Mr and Mrs Stephens were confident that they had made the right decision to keep the baby and avoid the greater risk of abnormality, if they delayed having a child for some years.

Lily Stephens was born on 5 February 2015 with Downs syndrome. Mr and Mrs Stephens brought an action for wrongful birth and Mrs Stephen brought an action for personal injury sustained by her in respect of Lily’s birth. The claim was brought outside of the three year limitation under s 11 of the Limitation of Actions Act (the Act). In this application, Mr and Mrs Stephens argued that their claims are not subject to the three year limitation and, alternatively, they were entitled to an order pursuant to s 31 of the Act extending the time for the commencement of proceedings.

Decision

The applicants applied to seek a declaration that s11 of the Act, which applies to actions in respect of personal injury, does not apply in respect of the claim for the costs of raising the child. If s 11 is not engaged, then the applicable limitation period is six years. His Honour noted that the question of whether a wrongful birth claim is classified as a personal injury or economic loss claim is somewhat controversial. However, his Honour went on to note that the legislation uses a wide phrase to capture all actions which are 'in respect of' personal injury. The essence of the claim is that, but for the negligent act, the mother would not have given birth and the parents would not have to bear the moral and financial burden of child-rearing. Whilst 'it is plain that the damages are not “for” personal injury to any person it is highly artificial to conclude the damages are not “in respect of” personal injury to any person.'

The applicants based arguments on authorities which suggest that causes of action for the costs of child rearing are properly classified as actions for pure economic loss. However, the cases relied upon could be differentiated from the current case which is pleaded as a personal injury claim and a 'chronologically later and closely related economic loss claim for the costs of rearing and maintaining Lily'.

Crow J concluded that the claims of Mr and Mrs Stephens are claims that include damages in respect of personal injury to any person and, accordingly, are subject to the three year limitation in s 11 of the Act. As such, the applicants' required a time extension under s 31 of the Act.

In making the application for the time extension, the applicants were able to satisfy four of the five requirements without controversy. An expert opinion they had received from an ultrasound specialist which supported a claim for negligence was accepted to be a material fact of a decisive character which provided evidence to establish a right of action. There was no suggestion of prejudice. The controversy lay in whether this material fact was within the means of knowledge of the applicants prior to 24 September 2017 (being one year preceding the filing of the claim).

His Honour noted that the requisite consideration is whether the applicant took reasonable steps to find out the fact, which is usually determined by reference to the inquiries the person could, and should, have made. Mr and Mrs Stephens had sought assistance from two successive law firms which did not give them confidence that a successful claim could be brought. They then sought assistance from a third firm, and were advised of the limitation period. The couple were again advised that there was little chance of a claim. Mr Stephens then showed the radiology images to an acquaintance, who was a professor and a specialist. That professor advised Mr Stephens that he had a suspicion that they had a case. This did not, of itself, constitute a material fact of a decisive nature.

On the professor’s advice, the couple then sought assistance from a fourth firm of lawyers, who advised them that it was necessary to obtain a new expert opinion. This resulted in the report the subject of this application. Relevantly, the expert concluded that, based on the results showing from certain images, CVS or amniocentesis should have been offered. The radiology report and nuchal translucency measurements were unacceptable for risk assessment of chromosomal disorders. Reasonable practice would have been to recognise and report the high-risk result. Following this, Mrs Stephens would have been given the option of a diagnostic test and, if taken, would then have been counselled about her options, including a termination of pregnancy. In his Honour’s review, the oral evidence provided by the expert was a sufficiently clear opinion enhancing prospects of success.

In the course of events, the were two periods during which little occurred by way of progressing the claims. In relation to the first, his Honour concluded that the couple had, reasonably, been committed to the care of their infant while Mr Stephens was working towards completion of his medical degree. During the second period, the couple had been informed by their then lawyers that work was continuing on their file. In any event, they had sound legal advice, based on the medical evidence then at hand, that they had no claim.

The expert opinion they finally obtained put them 'over the borderline' and into a position where they had, for the first time, reasonable prospects of successfully bringing a claim. It cannot be concluded that they failed to make an inquiry of the expert ‘in an appropriate fashion’. The material fact of a decisive character was not within the means of their knowledge until the date of receipt of the oral advice.

Orders

His Honour ordered that the time for commencing proceedings be extended.