Nouri v Australian Capital Territory [2020] ACTCA 1 (13 February 2020)

 

The ACT Court of Appeal has upheld the primary judges’ findings that the appellant parents could not establish, on the balance of probabilities, that the hospitals failure to notify them that their child was to be born with certain medical conditions that may result in a significant disability stopped them from potentially terminating the pregnancy earlier in the process.

 

Background

Saba Nouri was born with severe disabilities (VACTERL Association). She requires 24-hour care and has caused the parents, Ms Nouri and Mr Shaor strain through the responsibilities of raising a severely disabled child in addition to their other children. Saba also has a twin (A), who does not suffer from these conditions.

 

Primary/Trial Judgement

Before the primary judge, the parents argued that Canberra Hospital should have provided them with certain medical information. Had they been provided this information; they would have selectively terminated the pregnancy of twin B and avoided significant costs of raising Saba. The respondent, who runs the Canberra Hospital denied any breach of duty and stated if there was a breach of duty then that breach did not cause the loss claimed.

The judge found that Canberra Hospital did breach its duty of care but that the appellants had failed to establish causation. This resulted in a judgment in favour of Canberra Hospital. Despite this, a contingent assessment of damages to the sum of $1,813,807 was conducted. This did not include any award of general damages on the basis they would be only recoverable until Saba reached 18 years.

 

Appeal Judgement

On Appeal, the parents challenged both liability and damages. For liability, the appellants suggested the date they had been informed of the possibility of a medical condition (trachealoesophageal fistula (TOF)) occurring was earlier than suggested by the primary judge. They contested causation, suggesting they would have been able to arrange Termination of Twin B earlier. For damages, the appellants suggested that general damages should have been awarded and that economic loss should be awarded past Saba’s 18th Birthday.

 

Breach of Duty

It was contested that the trial judge was mistaken for two reasons:

  1. In finding that 22nd of September was the earliest date when a duty to inform the parents of the medical condition TOF arose; and
  2. In rejecting that the cardiac condition did not feature in the breach debate.

In supporting these grounds of appeal the appellant parents suggested two breaches of duty:

  • There was a Breach of duty from the 8th of August arising from failure to disclose to the parents (Appellants) the possibility of an absence of a ductus venosus (a medical condition that can lead to heart failure) which may have prompted selective termination of the child;
  • The date of the breach of duty by the Canberra Hospital for not disclosing TOF should be pushed back from 22nd September (Medical evidence from the primary judgement suggested that based on the medical issues at the time, this was the date that would have necessitated a discussion with the parents) to the 6th of September (after a High Risk Meeting by doctors at the Canberra Hospital not disclosed to the parents) This would have given the parents more time to potentially terminate or selectively terminate the pregnancy.

Regarding the 8th of August, the Appellant judge determined that even if Dr Robertson from Canberra Hospital disclosed the absence of a ductus venosus, the advice would have been to monitor the heart. If they had requested a termination, this would have been strongly discouraged and could not be performed in Australia. The specific dates would have added an additional barrier against termination. Further, the idea that the early disclosure would have primed the appellants is too speculative for a differing conclusion on causation.

Regarding the 5/6th of September argument, expert evidence presented to the primary judge supported the idea that reasonable professional diligence did not require immediate disclosure. Immediate disclosure was an option, while non-disclosure did not amount to a breach of duty.

Therefore, the court rejected the above argument and decided there was no error in adopting 22 September 2011 as the date where reasonable care required the disclosure of the possibility of a TOF.

 

Grounds of Appeal going to Causation

There were several grounds of appeal on the issue of causation. The appellant court determined a single ultimate question, namely:

  • Did the appellants discharge the burden of proof by, showing on the balance of probabilities, that Ms Nouri would have terminated the pregnancy?

Observing there were several grounds of contention, the question cannot be answered favourably towards the parents by demonstrating for each issue that it is more likely than not that they all would have been overcome. Rather, it needs to be shown collectively, it is more likely than not they all would have been overcome.

In conclusion, the appellant judge found no error in the conclusion reached by the primary judge. Further, it was acknowledged that although there were significant obstacles to termination, it was theoretically possible with effort and determination. However, these headwinds meant the balance of probabilities is not in favour of her having achieved that outcome.

 

Ground of Appeal Going to Damages

The court acknowledged the two grounds of appeal raised by the appellants. First, the finding that the plaintiffs were not entitled to an award for general damages and second the primary judge not awarding economic loss including the cost of raising Saba beyond 18.

These grounds for appeal raised two issues with the court. The first is whether the parents of a disabled child are entitled to general damages to compensate them for the burden of raising a child with disabilities. The second being whether the parents raising a disabled child are limited in the damages that may be recovered for negligence to the period up until their child turns 18 or for the continued period where they are likely to be caring for their child.

The judge acknowledge case law that had awarded damages, but stressed in Neville v Lam (No 3) [2014] NSWSC 607 that to make an award would be inconsistent with the majority of judges in Cattanach v Melchior [2003] HCA 38215 CLR 1.

Further, the court acknowledged that awarding of damages past 18 is an open consideration and is determined on basis of policy considerations

Upon acknowledging these grounds, the court acknowledged these issues would not be determinative in the case at hand, and therefore stopped short of a conclusion. This allows room for a future case in which these conclusions will affect the outcome of the case.

 

Orders

Ultimately, the court dismissed the appeal with costs.