In 1967 William Kosky’s mother was in a car accident following which she had been hospitalised, required surgery, and was given a blood transfusion using blood of Rh positive grouping when she had Rh negative blood grouping. She had subsequently developed Rh iso-immunization (antibodies to the positive grouping).
In 1973 she married and in 1975 became pregnant to her husband who was Rh positive. As the pregnancy developed the fetus was found to be so severely iso-immunized its birth was induced, after only 32 weeks of gestation, in order to save it.
William Kosky, was born alive but soon became extremely ill and nearly died from a number of complications which were seen to be caused by a combination of his blood condition and premature birth.
Mrs Kosky subsequently applied to the Court for William (her son) to be able to sue the hospital that gave her the transfusion in 1967. The application was because he was in law out of time, and therefore needed Court approval to proceed.
The defendants argued that no duty of care was owed as the act complained of had taken place eight years prior to William’s conception, and therefore that there was no cause of action.
Tadgel J decided that William could proceed to trial.
In doing so, he said that if it were necessary for him in making this decision to determine that there was a duty of care owed by the hospital to William, that he was content that it had been established.