Lawyers representing a sailor who sued the Department of Defence over an unwanted pregnancy are considering appealing a judge’s decision to throw the case out.
Emily Hetherington, now aged 26 from Queanbeyan, NSW, had been seeking damages for pain, suffering and loss of earnings after Navy medical staff failed to detect her pregnancy.
Ms Hetherington claimed that if her pregnancy had been confirmed, she would not have kept her unborn son.
But Supreme Court Justice Bernard Bongiorno dismissed the case, finding Ms Hetherington was not entitled to a damages payout under the Military Rehabilitation and Compensation Act.
Under the Act, Defence staff members were barred from receiving a compensation payout if they suffered a “service injury” caused by another staff member.
“The health status of a newly enlisted sailor would be a matter of some importance to the Navy,” the judge said.
“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.
“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.”
The judge said when Ms Hetherington was attending Navy medical examinations, she 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.”
The judge said, as a result, Ms Hetherington had suffered a ‘service injury” caused by another Defence staff member and was not entitled to compensation under the Act.
Slater and Gordon medical law senior associate Nick Mann told Fairfax Media on Monday that an appeal was being considered.
“We are reviewing the judgment and our client is currently considering her options,” Mr Mann said.
In her statement of claim, Ms Hetherington revealed she enlisted with the Navy on January 14, 2008, at Anglesea barracks in Hobart.
She underwent a medical examination on the day which included a urinary pregnancy test. This pregnancy test was reported as being negative.
A pregnancy test was also never carried out on a blood sample taken from Ms Hetherington.
The next day Ms Hetherington transferred to the HMAS Cerberus training facility in Victoria.
During her time at HMAS Cerberus, she attended the health care centre six times between January 15 and April 29, 2008, where she received a number of vaccinations.
During each visit to the health care centre, she told staff she had not had her period since either November or December 2007. Medical staff did not carry out any pregnancy tests during these visits.
Ms Hetherington said when she went to the health care centre on March 13, 2008, she told staff she was experiencing nausea, fatigue, dizziness, had gained weight and not had a period for about six months. No pregnancy test was undertaken.
Ms Hetherington claimed if she had known she had been six to seven weeks’ pregnant at the time, she would have had an abortion.
She underwent an obstetric ultrasound examination on May 2, 2008, which revealed she was 22 weeks pregnant.
She gave birth to a son on August 24, 2008.