(2) That they did not become aware of that or those or they ought to have become aware in s 60I(1)(a)(iii) (or the last of those matters to become known to them) earlier than 7 June 1997.
16 The practical effect is to require the plaintiffs to identify specifically what fact or facts they claims not to have known as at 24 June 1995, which lack of knowledge meets the description in one or more of paragraph (iii) of s 60I(1)(a); and to show (by evidence) the date on which they acquired knowledge thereof (being a date later than 24 June 1995); or to show that that fact was or those facts were still unknown to them on that date.
17 The proposed third defendant submitted that the cause of action arose on 21 February 1992 being three years from the last opportunity the plaintiff had to terminate the pregnancy. The third defendant relied on the Court of Appeal's decision in Scarcella v Lettice [2000] NSWCA 289. Scarcella considered when a cause of action in tort was complete. The court had to decide between two dates namely the time when purchase took place or the date when the defect in title was discovered. The Court of Appeal was held that the time ran from the date of completion of the purchase not the date that there was a discovery of the defect in title. The rationale was that the defect in title would have been revealed had the normal conveyancing procedures been followed. The third defendant alleges in the case before me that even though the plaintiffs had no knowledge of the disabilities that their child would suffer upon birth, actual knowledge is not required.
18 A cause of negligence is not complete until the plaintiffs first suffer actual loss and damage. Handley JA at para [14] in Scarcella stated that in order for the plaintiffs' cause of action to be complete, the plaintiffs' actual damage must be "measurable" (Wardley at 531), or, in the words of Lord Reid in a personal injuries case (Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772) the damage must be "beyond what can be regarded as negligible".
19 The first plaintiff suffered from morning sickness, heartburn and gave up work three months before the birth. The third defendant contends that these damages are not negligible and they are not measurable. These items are not claimed in the Part 33 particulars. It is my view that they do not constitute "measurable damages". It is my view that the plaintiffs depression and anxiety did not occur until after Alexander was born. Nor did Alexander's parents incur additional expenses of raising him until after his was born. For these reasons, the date that the cause of action accrues, ie. when damage was suffered is the date that Alexander was born, namely 25 June 1992.
20 Personal injury is defined in s 11 of the Act in inclusive terms: "includes any disease and any impairment of the physical or mental condition of a person". The definition is not exhaustive. A claim for damages for failure to diagnose a condition likely to cause birth of a child suffering from spina bifida or similar conditions has been treated as a claim for damages for person injury - Gilbert v Castagna [2000] NSWSC 461; Harriton v Macquarie Pathology Services (1998) Aust Torts Reports 81-489.
(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission"
21 The proposed third defendant submitted that the plaintiffs did not pass through the s 60I(a)(iii) threshold because in 1994 the first plaintiff had laid some of the blame for what transpired on the person who performed the ultrasound. The plaintiffs submitted that it was not until May 1999 at the earliest that they became aware that they had a cause of action against the proposed third defendant.
22 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions are to be found in the plaintiffs' particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). The acts and omissions which are pleaded in the FFFASC are:
"(a) failing to infer and report the possibility of spina bifida in consequence of the shape of the foetal head;
(b) failing to detect and report the presence of hydrocephalus;
(c) failing to measure and report the measurements of lateral ventricles;
(d) failing to note and report the obvious splaying of the lumbo-sacral spine;
(e) failing to advise the plaintiffs that it was likely that the child suffered from spina bifida and hydrocephalus;
(f) failing to alter the referring doctor to the findings consistent with spina bifida and hydrocephalus;
(g) advising the plaintiffs and the referring practitioners that the examination was normal;
(h) arranging for the examination to be performed at a time when Dr Steve Raymond was unavailable, Dr Raymond being the radiologist who normally prepared the reports in relation to obstetrics ultrasound examinations conducted by or at the premises of the third defendant;
(i) arranging for the examination to be performed at a time when Dr Raymond, to whom the plaintiff had been referred by her general practitioner, was unavailable;
(j) failing to provide to the first defendant, or in the alternative, to the second defendant all films and videotapes generated during the examination;
(k) failing to advise the first defendant and, or in the alternative, the second defendant that a videotape of the examination had been generated;
(l) failing to provide films of sufficiently high quality to enable the first defendant and, or in the alternative, the second defendant easily and accurately to report on the films;
(m) failing to provide the films and videotape generated during the examination to the first defendant, and, or in the alternative, the second defendant within a reasonable time of performing the examination."
23 As previously stated Ms Eadie the ultrasonographer was employed by both the Hunter Valley X-Ray Pty Limited and the Hospital Australia Pty Limited at the relevant time. On 17 January 1992 the plaintiff would not have been privy to any contractual relationship of Ms Eadie with the first defendant or the proposed third defendant. She was never told who employed Ms Eadie. The ultrasound report was on Hunter Valley X-Ray Pty Limited letterhead. The plaintiff signed a Medicare form so she was never provided with an invoice which may have revealed the identity of the service provider. Even though the plaintiff may have thought prior to the expiration period that the person who performed the scans may have been employed by Lingard hospital and may be to blame in some way it was Dr Woodward that the plaintiff held responsible. In any event, a blame or a thought that there may have been some wrongdoing on the part of the person who performed the scan and provided the films falls short of the test laid down in Drayton.
24 In 1994 the plaintiffs did not know the alleged acts or omissions that may constitute negligence. The plaintiffs and their solicitors assumed that the entity who performed the ultrasound was that which appeared on the letterhead. The plaintiffs accepted the advice of their solicitor as to the identity of the defendants (see Morton v Jools (1992) Aust Torts Reports 81-164 and McAndrew v Wyoming Nursing Home (NSWSC Sperling J, unreported 5 December 1997)). I accept that it was not until May 1999 that they became aware that Hospital Corporation carried on the business providing hospital services and may be the entity responsible for performing the ultrasound. It appears that Dr Woodward the radiologist who reported on the ultrasound, was employed by a different entity, namely Hunter Valley X-Rays.