Pre-Natal Injury


In Australia, a child who suffers harm because of negligence that occurred while it was in its mother’s womb during pregnancy (in utero), or prior to its conception, may upon being born alive and viable, claim compensation from the person whose negligence caused the harm. 1

Note: a child’s legal rights crystalise upon birth. Only then may a claim for any harm or loss it has suffered (by way of a next of kin, guardian etc) be brought. Once a cause of action (Court case) is brought, all of the elements of the law of negligence must be satisfied. That is, the child (or rather the person who brings the Court case on his/her behalf) must show that a duty of care was owed, breach of that duty occurred, and the breach caused the harm suffered. These elements are explained in detail in Health Law Central’s section on medical negligence.

Healthcare practitioners must be aware that when diagnosing, treating or advising women and men prior to or of fertile age, that their negligence may not only impact upon their patients but also upon future children conceived and born to such patients. 2

Parents should be aware that if they think a health practitioner’s actions were negligent and have caused their child harm/loss that they should seek legal advice to further explore the matter.

(Note pre-natal injury may be caused by negligence other than medical negligence too – for example, negligent driving – but on Health Law Central we focus on incidents that may occur in a health context or that have health implications).

Case Law

Kosky v The Trustees of the Sisters of Charity [1982] VR 961

A woman was given the wrong blood during a transfusion in hospital in 1967. She subsequently developed antibodies to Rh positive blood, which affected a pregnancy in 1975. The baby (William) was Rh positive, and had to be delivered early (at 32 weeks) as due to the mother’s condition he would not have otherwise survived. He was extremely ill. Application was made to the Court for William to pursue compensation for the hospital’s negligence. The Defendants argued that there was no duty of care owed to him – as the transfusion had happened 7 years prior to his conception. The Court ordered that William had a cause of action in negligence that enabled him to move to trial, and said that a duty of care was owed to him.

X & Y v Pal (1991)

A woman ‘X’ who had syphilis fell pregnant and the baby was born but died shortly after birth. Her syphilis was not diagnosed. She fell pregnant again, and again her syphilis was not diagnosed. Her second baby ‘Y’, was born ‘dysmorphic and mentally retarded’. A Court case was brought against the doctors for failing to diagnose her syphillis. The Court held that the specialists involved in ‘X’s’ care owed both her and ‘Y’ a duty of care. Clarke JA said ‘if the injured person falls into the class to whom the duty was owed it matters not that he was not identified, or not in existence, at the time when those acts occurred which constituted the breach of the duty to take care’.

Find out more

For more information about a cause of action in negligence see here:


  1. Watt v Rama [1972] VR 353; Lynch v Lynch & Anor (1991) Aust Torts Reports 81-117, 69,091; X & Y (By her tutor X) v Pal & Ors (1991) Aust Torts Reports ¶81-098; 23 NSWLR 26.
  2. Sonia Allan and Meridith Blake, The Patient and Practitioner: Health Law and Ethics in Australia (2014) Lexis Nexis, p 368.