CES and Anr. v. Superclinics and Ors.

(1995) 38 NSWLR 47; (1995) Aust Torts Reports 81-360
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CES (‘the first appellant’) sought damages from Superclinics (‘respondent’) for the loss of an opportunity to terminate her pregnancy.

The first appellant, a 21-year-old woman, visited a doctor at Superclinics after she missed her period. She stated that if she were found to be pregnant, she would like the pregnancy terminated. The doctor did not conduct any examination and told her to return if she had still not menstruated within a week. A week later, the first appellant returned and the doctor conducted a blood test, which showed a negative result for pregnancy. Over the subsequent months, the first appellant returned to Superclinics multiple times, each time clearly indicating her desire to terminate should she be pregnant. Eventually, a second test was conducted, which showed a positive result, but the first appellant was informed that the test was negative. The first appellant then visited her general medical practitioner where, after an ultrasound, she discovered that she was nineteen and a half weeks pregnant. The first appellant’s medical practitioner informed her that at this stage, it was too late to safely terminate the pregnancy. A few months later, the first appellant gave birth to a healthy child.

The first appellant, joined in the suit by the father of the child (the “second appellant”), alleged that the respondents had breached their duty of care by failing to detect and diagnose her pregnancy. This breach of duty resulted in the loss of the opportunity for the first appellant to terminate her pregnancy.

The presiding judge in the Common Law Division of the Supreme Court found that respondents had in fact breached their duty to the first appellant, but held that damages could not be recovered because:

(1)    “Any proposed termination would have been unlawful within the terms of either s 82 or s 83 of the Crimes Act” (Page 54)

(2)    Public policy concerns would prohibit recovery of damages for the birth of a healthy child.

The first and second appellants appealed.

The Court of Appeals found that the lower court judge’s findings on both the illegality of the potential termination (which had been taken as a defense to the claim for damages due to lost opportunity to terminate) and the public policy concerns were incorrect, and damages could in fact be awarded.

Regarding the illegality of the potential termination, the Court found that  Section 83 of the Crimes Act, which discussed the illegality of facilitating a woman’s termination of pregnancy, had been interpreted by courts to make exceptions when continuing a pregnancy would negatively impact a woman’s physical or mental health. Courts had interpreted ‘mental health’ to not just include the initial stages of pregnancy, but also the duration of pregnancy and the time after birth, which was when the mental health effects would likely manifest themselves.  The Court determined that lower court had incorrectly assumed the illegality of the termination instead of asking whether a jury would have concluded beyond a reasonable doubt that a medical practitioner could not have held the honest and reasonable belief that the petitioner’s mental or physical health was gravely affected by her pregnancy. Here, the first appellant’s medical practitioner offered testimony demonstrating that she had an honest and reasonable belief that the first appellant’s mental health would suffer as a result of the pregnancy.

The Court also refuted that lower court’s finding that damages were inappropriate as respondents’ negligence led to the loss of first petitioner’s opportunity to perform an illegal act, and the respondents could have otherwise been considered to be aiding an illegal act. Considering that the first petitioner did not have the mens rea to perform the illegal act, the respondents could not have been guilty of aiding in the commission of a criminal offense.

Regarding the public policy concerns, the Court of Appeal considered two main policy concerns that had been discussed throughout these types of cases: (1) The birth of a healthy child should never be considered an injury or matter of compensation, since human life is fundamentally valuable; and (2) A child may suffer emotional distress when he discovers he was unwanted.

The Court rejected the broad idea that in all circumstances, the birth of a healthy child should preclude any chance of recovery for the economic loss the birth may have caused, noting that traditional notions of the value of motherhood and womanhood no longer reflected contemporary Australian society and the choices women make about their sexual lives and families. Here, the first appellant had already assessed her circumstances and had concluded that the birth of a child would cause mental and economic harm. But for the negligence of the medical practitioners she consulted, the first appellant would not have suffered this harm, and therefore, she should be entitled to recovery.

The Court also rejected the idea that a child might suffer emotional distress when he eventually discovered that he was ‘unwanted’. The Court noted that children would usually discover this news when they were sexually mature and may therefore understand the dilemma their parents faced.

After resolving these two issues of law and finding that damages were allowed in this situation, the Court ordered a re-trial to determine the exact amount of damages to be awarded to the appellants.

One concurring judge argued that considering the difficulty of the trial judge’s determining if an abortion would be legal, the issue of damages for lost opportunity does arise. However considering that the mother could choose not to keep her child after birth it was inappropriate for damages to encompass child-raising expenses. Another dissenting judge disagreed with the majority’s dismissal of the public policy concerns and found that since the parents would likely derive some form of joy from raising their child, damages were not proper.

“Even if…the hypothetical termination of pregnancy performed…would…have been unlawfully performed, to allow recovery for damages for the loss of the opportunity of that operation would not affect the substantive application of the criminal law. The duty of care has been made out. It is directly linked to the cause of the loss of the opportunity which would…have been utilised if it had been offered. The loss of that opportunity as a result of the respondents' negligence has incontrovertibly had an extremely significant effect on the life of the appellants, both financially and emotionally. They should be compensated. To allow compensation in such circumstances is not to deny the unlawfulness of abortions generally, if that unlawfulness be made out in the facts of a particular case, and with all the requirements and safeguards of a criminal trial. It is simply to acknowledge the independent existence of a duty of care which the medical practitioners, consulted by the first appellant, owed to her.” Page 69.

“To assert that the mother suffers no damage on the birth of a healthy child, if her own health is also unthreatened by the birth, is completely to misapprehend the nature of the case argued for the appellants. The respondents, through their negligence, caused the first appellant to lose the opportunity to undergo a lawful termination of pregnancy. The damage incurred is that damage, mental, physical and economic, associated with having to carry a child to term and give it birth when such pregnancy was unexpected and unwanted. It is simply incorrect in fact to state that, if there were no serious impact on the mother's health on the birth, there was no damage at all. That assertion ignores not only the practical realities of childbirth, but also the actual evidence called in this case; some of which I have set out above. “ Page 72

“The appellants brought the action with clear evidence that had the first appellant's pregnancy been promptly and professionally detected…the pregnancy would probably have been terminated. This…was for both economic reasons and also because of an acute emotional inability on her part to deal with the burden or rearing an unplanned child at that stage of her life. Since the birth, she has had to give away her chosen course of study… surrender her personal life…she has suffered from bouts of depression. Her existence has been completely changed. Given that those reasons in particular…formed the basis of the first appellant's desire to terminate her pregnancy, they appear…to be more indicative of injury suffered as a result of the respondents' negligence, which should be compensated in its entirety. I am certainly not suggesting that the appellants — and particularly the first appellant — have derived no joy from their child. But I am saying that any such enjoyment derived is not a factor which should be considered to reduce significantly the damages to which the appellants are entitled.” Page 77.