Nouri & Anor v Australian Capital Territory

[2020] HCATrans 167

[2020] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C5 of 2020

B e t w e e n -

EINAS NOURI

First Applicant

MUSAB SHAOR

Second Applicant

and

AUSTRALIAN CAPITAL TERRITORY

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 10.29 AM

Copyright in the High Court of Australia

BELL J:   Mr Cranitch, we seem to have a problem.  Are you on your mute button?

MR CRANITCH:   I am sorry, your Honour, yes, I was.  It is very hard for an old fellow to adjust to these new conditions, I am afraid.

BELL J:   Fully understood.

MR M.J. CRANITCH, SC:   I appear with MR A.D. CAMPBELL, my learned junior, for the applicants.  (instructed by Gerard Malouf & Partners Solicitors)

MR D.J. HIGGS, SC:   If the Court please, I appear with MS K. SANT, for the respondent.  (instructed by the ACT Government Solicitor)

MR CRANITCH:   Your Honours, this application for special leave arises out of a case that was run by the applicants in the Supreme Court of the Australian Capital Territory and your Honours will be aware it was decided by Justice Elkaim on 28 September initially at first instance, in 2018.  The matter went to the Court of Appeal in the Australian Capital Territory, which affirmed Justice Elkaim’s reasons on 13 February of this year. 

A brief background I think is required, your Honours, and if your Honours will bear with me for a moment while I do that.  The applicants were from Sudan and were under the care of the respondent, which operated the Fetal Maternal Unit at the Canberra Hospital.  The first applicant was pregnant with twins and the case revolved around Twin B, a female foetus who was diagnosed initially with a possible cardiac abnormality.  More serious abnormalities became evident later in the pregnancy, in particular, the strong possibility of a tracheoesophageal fistula, otherwise known as a TOF, and other findings which may have pointed to a far more serious issue such as VACTERL, which is a complicated way of saying it involved multisystems in the body.

The case was posited upon the basis that the applicants were not prepared to have a disabled child, for reasons which are clear on their uncontradicted evidence in this regard, and the case revolved around the failure by the operators of the Fetal Maternity Unit to warn them of the possible serious abnormalities involved in Twin B.  These were in fact not uncovered until the birth of the child on 3 November 2011. 

There was a period of time when the undoubted facts were made apparent to the respondent and there are various periods of time which were adopted by the Court of Appeal and Justice Elkaim.  At the very latest, at a point of time on 22 September of that year of birth, when the pregnancy was at 30 weeks and four days was the latest period of time at which it was held that the duty of care was breached in that the respondent failed to inform them at a time then, or shortly thereafter, of the difficulties that they faced with this disabled, or possibly disabled foetus. 

The issue then became whether or not there was a remedy which would have avoided the harm which had already been occasioned as a result of the failure to warn.  Because no warning was given at all until the birth, the issue was never capable of being exercised - that is, the remedy was never capable of being exercised as an option because the parents were not told, at any stage, until that time.  The applicants led evidence about the course of conduct that could have been taken had they been advised even as late as 22 September, when the pregnancy was some 10 weeks out of completion. 

Now, the ACT at the Court of Appeal did not disturb any of the findings of Justice Elkaim on the basis there was no error in the conclusion reached by him.  Indeed, when it went to the Court of Appeal – as is set out in page 109 of the application book – they did not, in fact, deal with one ground of appeal at all. 

The contention of the applicants is that the case, looked at properly, is a case based upon the right of the applicants to plan a family and the type of family that they wanted.  This right was infringed by the failure to disclose, at an appropriate time, factors which would have resulted in the termination of the pregnancy on the case being mounted by the applicants.  The evidence of the applicants – and accepted – was that they would have terminated both of the twins, if necessary, if there was any significant abnormality of the type we are talking about here.

The case was brought in tort and, as such, it was subject to the provisions of the Civil Law (Wrongs) Act (ACT). Reference is made in our submissions to the provisions of section 46 of that legislation which is duplicated throughout the various State jurisdictions which says that:

In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

So, it has never been the subject of an appellate consideration and is of some significance in this case for the reasons which will become apparent shortly, I hope.  In particular – and one of the factors that appears to have infected this case is that there is a misconception that a determinative causation was the applicants’ perceived inability to claim the loss of a chance of a better outcome, as enunciated in Tabet v Gett.

This assumes, of course, that the failure to provide appropriate information on which an informed decision could be made would only have resulted in the loss of a chance of a better outcome.  However, apart from the considerations of whether or not the applicants bore the onus of proof of possibilities, as opposed to actual facts, viewed as an infringement of the right to plan a family, where they were not burdened with a disabled child, then the right which is affected is that essentially as a claim for pure economic loss.  It should be conceded there was an additional claim for general damages dealt with by the trial judge in this case, which arose out of a treatment of a Queensland case – it was Veivers v State of Queensland, I think.

However, the applicants contend that to impose a burden on them which could never rise above the hypothetical, and require it to be proven on the balance of probabilities, was to place upon them a burden which was never assured of being satisfied.  This was more so in this case, because there were numerous pathways which the applicants could have chosen, but in evidence illustrated that such pathways were available as a matter of providing evidence to the court on which the court might rely.

BELL J:   Mr Cranitch, can I just ask this?  If one goes to Justice Elkaim’s reasons at page 65 of the book, in paragraph 422 his Honour expressed his agreement with the respondent’s formulation of the issue on causation in terms that:

The key issue . . . is whether the first plaintiff would have obtained a termination of pregnancy in relation to twin 2 at something different being done by TCH, which should have been done.

That was the way his Honour identified the issue upon acceptance of the respondent’s submission.  Was there controversy in that regard - how was the trial run?  You say it was run as a claim for economic loss arising out of the inability to plan a family, or the compromise of the ability to plan a family.  Is that the way the matter was put before Justice Elkaim?

MR CRANITCH:   It is the underlying foundation of it, your Honour.  The reality is that the question of whether or not a termination took place or not is posited upon the basis that it was the wish of the applicants that they not have a family where they had a disabled child.  That was the fundamental underlying principle.

That is consistent, we say, of course, with Tabet v Gett, and that line of country because whilst the practical effect of it, the implementation of it, is to have a termination as one – as the option not to have that child, the reality is that the foundational issue, as has been said on numerous occasions, is that there is a fundamental right which is being dealt with here, and it is the fashion in which that right is being dealt with, in other words the right to plan a family.

In other cases, for example, the cases of failed sterilisation, the ultimate foundation of those cases was always the right to plan a family and there is no difference between that and this, we say, the only difference being that as opposed to those cases here was a case where we are not dealing with a normal child, we are dealing with a child who is known to be damaged and was known at the time to have serious issues, which the undoubted aspiration of the first and, indeed, the second applicant was that it should not take place in their family.  They did not want, for reasons which are apparent in the judgment of Justice Elkaim, to have a disabled child for very personal reasons and from past and personal experience. 

But the foundational reason is the same, whether it is a sterilisation case or whether it is a case where a child is born with a genetic condition and whatever that reason is, if it is within the scope of the defendant respondents to deal with it and to adequately advise, then that – once they have failed to do so they have breached that fundamental right.  I hope I have addressed your Honour adequately.

BELL J:   It is just still a little unclear to me, Mr Cranitch, whether the matter was fought below on the basis that you now contend. 

MR CRANITCH:   Well, your Honour, implicitly it was, but I mean in practical terms when you are dealing with these sort of situations what you are trying to do is to say, so far as you can assist the Court, what might have taken place had they been adequately advised in time.  Here there was – uniquely, I suppose, they had no chance to do anything about it, and the failure to advise puts them in a position where the outcome they did not want inevitably had to happen.  If it was, for example, a case such as, without this section 46 - if it was like a case of Chappel v Hart where the onus was held to have shifted once the breach was established then the plaintiff would not have been placed in this situation. 

BELL J:   Accepting for present purposes that you are right in your contention, as I understand it, that the burden imposed by section 46 is the legal burden that does not affect that there may be a shift in the evidential burden. 

MR CRANITCH:   Indeed.  That is one of the primary submissions.  The secondary one is that section 46, properly understood, only relates to facts that are established.  The applicant here was placed in the position where all they could put up were hypotheticals.  None of them were facts.  They were all on the assumption that we had been told this may have happened, but they do not, we say, rise to the elevation of facts in the way in which the court seems to have accepted.  It is always going to be a hypothetical and, therefore, the burden in fact did not lie with the plaintiff.

We could have relied upon Chappel v Hart and probably done nothing, I suppose, on one view of it, once the breach was firmly established because the reference to “facts” in section 46 is quite clear, but if they are dealing with hypotheticals we are not dealing with facts.  So your Honour, if it were to be interpreted in this fashion, that is, section 46, we say it would have resulted in anomalies which are unacceptable. 

For example, it would thus benefit a tortfeasor not to disclose relevant information and to allow a child to be born at term as this one was, and as a result they could not be liable in damages because it could never properly be capable of being established that a course of action they might have undertaken is proven on a balance of probabilities.

There are submissions made in this case in relation to proof on the balance of probabilities, and from inferences and matters of that nature, but viewed properly that should not have to take place.  In other words, once the respondent knew that the choice for the applicants had been denied them, the damages in fact fell in. 

It is not like a case of failed sterilisation and the like.  The damages occur immediately that information is withheld to their detriment.  The only matter which then followed was the question of whether or not there was an arithmetical and not a medical calculation or an evaluative judgment, as is the case with just about every other medical negligence case.

It is not a case for personal injuries.  I do not think there is any dispute between the parties about that.  It is a case for economic loss.  Thus we say if the applicants have satisfied the evidentiary burden as opposed to producing a factual matrix, it is quite clear that the onus shifted to the respondent tortfeasor.  The implications for the applicants are such that the burden of the complicated series of events which led it to fall into place would not have been placed upon them. 

Further, if it is viewed in this fashion, it does not matter whether the acknowledged duty to provide information arose at the earlier point of time referred to in the judgment or, indeed, at the latest.  If the case, in essence, is one for pure economic loss, the loss of a chance does not come into it at all and that is the thing that infected the whole atmosphere in the court, as it were, because once the loss of a chance is put to one side – and this not being a personal injuries case strictly so‑called – that should have been the case.

The only obligation on the applicants would be to point out how, in the theoretical case, the possibility of avoiding damage in the form of a birth of a disabled child could have been averted.  Therefore, damages, we say, could have been awarded which took into account the possibility that the objectives sought by the applicants might not have been achieved by time‑honoured discounting factors such as vicissitudes. 

In other words, there is nothing novel about this approach – that just simply saying that if you take that as the true foundation of this case, that a judge might have looked at this in a proper fashion and should have looked at this in a proper fashion and dealt with it with any doubts as to whether or not any part of the steps might have been unachievable or possibly achieved with great difficulty by discounting for the vicissitudes in a time‑honoured fashion.

To place a burden on the applicants in this fashion, where it was always going to be uncertain as to whether they could or could not prove on the balance of probabilities the nature of the remedy, we say created a danger really that it puts the medical practitioners – as Justice Kirby said in Cattanach at paragraph 149 – in a zone of legal immunity. 

The case we seek to make is that this is unprincipled and inconsistent with legal doctrine in the manner described by Justice Kirby.  In other words, it would benefit the tortfeasor almost invariably in a case of this nature.  They are not common cases.  All the other cases, with one exception, dealt with an injury to - a personal injuries case.  This is not that case.  That is why the distinctions that are made – or sought to be made – by the respondent in relation to an assessment of probabilities – and the most recent case, of course, being the Western Australian case to which your attention was drawn yesterday – is of inapplication to this case.  This case should have been dealt with, and could have been dealt with, we say, by discounting in the time‑honoured fashion for vicissitudes. 

That leaves of course the question of damages that might have been sustained and the other issue that would have to be decided by this Court or on referral to another and that is whether or not, assuming that the plaintiff established a successful causation case, in the case of a child who was disabled and has a moral obligation to support beyond the age of 18 years, whether those damages should extend beyond the age of 18 years, as was acknowledged by the former Chief Justice.  There is no logical reason why that should be the case – why there should be a limitation of 18 years.  That also will have to be decided.

BELL J:   That is not raised on this application.

MR CRANITCH:   It is indirectly.  At the tail end of our submissions it is raised as a submission, saying, well, in any event, if this case is to be dealt with by the High Court, then it is either going to be appropriate for the High Court to deal with that issue or, alternatively ‑ ‑ ‑

BELL J:   Well, this Court could hardly deal with that issue, Mr Cranitch, could it?

MR CRANITCH:   Well, your Honour, it could because it is only a matter of principle as to whether or not – and it has been canvassed on a number of occasions but never determined because the Court of Appeal below in this case did not feel the need to determine it because it did not get to it.  But it seems a bit of a waste of the Court’s time, if I can put it in that sense. 

If the Court is dealing with this issue, why would it not deal with the consequential issue of damages?  Your Honour, I do not need to press that.  I am simply saying that that is a matter that may raise its ugly head were the leave to be granted, and then there would be a process whereby that would have to be achieved, obviously.  If your Honour pleases, those are my submissions.

BELL J:   Thank you, Mr Cranitch.  Mr Higgs.

MR HIGGS:   Your Honours, first up, can I just remind your Honours of the applicants’ grounds of appeal in the Court of Appeal, which are found in the application book starting at page 75.  Our submission, contrary to what my learned friend says, is that the way in which that appeal was run was along traditional lines, namely, if one goes to page 76, a whole lot of errors that were asserted with regard to his Honour’s reasoning on the basis that he had proceeded that:

on the balance of probabilities, that they could or would have obtained a termination –

It then lists a whole litany of references to evidence that say, well, there was evidence to the contrary and proper weight was not given to something or something was not cross‑examined upon – that type of thing.

This argument that is now advanced was not the way in which the appeal was run, and it was not the way it was run at first instance.  It was never suggested that the appropriate, or one of the ways in which his Honour was to determine the issues of causation and damage is, as it is now posited, namely, that if one goes to page 105 of the application book - it was never posited at any court below that the way in which this issue should have been approached was on the basis that, first – and I am just reading out ground 1, that once they established a failure to warn them of a material risk depriving them of a choice of conduct to avoid the risk of harm that is, prima facie, causation.  Then what was the putative course?  The error was that they were required to prove steps 1 and 2 on the balance of probabilities.

So as we understand the current application, what they now assert is that once they were deprived of the choice of pursuing the chance of getting a termination, on this case it was fairly clear it had to be outside of Australia, that in some way that was prima facie evidence of causation just simply because breach was established and that they, contrary to section 46 of the ACT legislation, there was no burden on them to do anything other than establish that for causation to have been - for them to be successful on that basis, unless we would call evidence to the contrary.

Now, that is not the way the case was run before.  There was never any suggestion that insofar as this was possibly a case just purely about economic loss, about which there is some debate amongst the Justices that determined Cattanach v Melchior, particularly in circumstances here where there was a claim for personal injury, that the damages arise from personal injuries as well, that one could proceed on the basis of a calculation of damages by just upping the ante with respect to vicissitudes to reflect the degree to which there was a chance that they might not have obtained the result that they say that they would have wanted, namely a termination overseas.

But as your Honour Justice Bell took my learned friend, Mr Cranitch, to, our formulation of the issue of causation about could or would damage have been avoided, the issue of causation was one that his Honour accepted.  It was one that the applicants never challenged, either in the court below, and moreover, as I have just, I hope, demonstrated, in the grounds of appeal that they advanced before the Court of Appeal. 

They proceeded on the basis that, as with Strong v Woolworths, that being factually a different case here, but nonetheless it was a case where there was a breach by way of omission, what needed to be done in order to establish causation, there had to be evidence led that persuaded a court that on the probabilities that had the negligence or the breach not occurred in this particular case the applicants could and would have obtained a termination somewhere and that was multifactorial.

The suggestion that simply because this test that applies in relation to breaches by way of omission in some way is different and that the normal course of assessing the evidence is not undertaken as occurred is somewhat startling because at the very start the assertion by the applicants that they could and would have done something, that is that they – is of itself hypothetical.  It has to be hypothetical because once you have a breach by way of omission you are dealing in respect of the issue of causation with matters that need to be dealt with upon the basis that what would have occurred had the breach not occurred and the proper advice had been given. 

There are a whole lot of primary facts that were addressed both at first instance and in the Court of Appeal that were quite powerful about it would not automatically follow that simply because the breach occurred the termination would have been obtained.  It is not an issue really, and there is no challenge to the primary judge’s findings as were affirmed in the Court of Appeal, but there was, from a practical point of view on the balance of probabilities, no possibility of them at this late stage obtaining a termination in Australia. 

There is no issue that there might have been overseas an availability of a termination being obtained possibly, but the way in which that was being pursued was totally within the applicant’s knowledge as to what would have occurred. 

For example, they could have said we could have gone back to the in-laws’ hospital in the Sudan and sought a termination there, but they deliberately led a case as, we would suggest, with respect, something that they needed to do forensically – one can understand why they would have done it – upon the basis that they were not prepared to go to a third world country to have a termination undertaken. 

They wanted to go to a top‑tier country with regards to the health services that were being provided, just as they did when they came back from the Sudan and came to Australia to give birth to these children, and just as they posited would have occurred had the termination not been available in Australia, and that they would have gone to America, and they specifically would have gone to Dr Hern, for the reason that his name was a person in the US that on the ACT website it was possible to locate because of the links that we provided. 

Now, it was on that basis that this case was run and the strands in the cable type of approach that is available when you are looking at questions of causation, his Honour took into account everything and in the normal way that occurs on an appeal, all of the matters that needed to be examined in detail as to whether or not his Honour erred were dealt with in the normal way. 

There was evidence led, some evidence was stronger than others, that Dr Hern – him not proceeding was important, and also there was the fact that these parents were amenable to advice.  They followed advice.  The example was given in the judgments to, even though there was a difference that was known to them between Dr Murphy, the foetal cardiologist, and Dr Robertson about the heart condition, that they preferred Dr Murphy, the specialist’s advice.  They were educated.  They knew that, and they would follow advice.

Now, the advice clearly, here, in these proceedings had there been no breach on 22 September, and about which there is no issue at this time, would have sought to persuade them and directed them against going overseas and seeking a termination for a litany of reasons, none of which really can be shaken, that the flying to America was dangerous for this lady and yes, to a degree, that could be ameliorated, but that would be part of the advice that would have been given. 

It would have had to have been done, all of this, in an extraordinarily short period of time after counselling, that would certainly, ultimately, want to accommodate the wishes of the parents, that would be directive, so that first they did not expose themselves to putting the mother’s life at risk in circumstances where a TOF, the disconnect in the oesophagus was still only a possibility, but nonetheless, after 22 September became more likely and there was a real risk of that that was normally surgically correctable.

There was the other consideration of the danger to the healthy twin, whose life they wanted to preserve in the event of proceeding with a selective termination.  It was a multifactorial problem that needed to be advised upon and in respect of which these parents needed to make a decision, one would have thought, normally after taking into account medical evidence that would provide, was to be provided to them, would seek to reassure them and dissuade them.

Also, of course, there is the final problem of hindsight bias here, and not only is there the presumed hindsight bias that would have impacted upon the ability of these parents to be mistaken now at what they would have done, but on top of that there were actual findings of that bias impacting adversely upon the accuracy of their evidence.

I will just remind your Honours, page 26 of the application book at paragraph 171 of his Honour’s judgment, reference was made to that anger that they had towards the parents being one that meant that the assertions that there was a degree of disrespect in the way in which they were treated because Dr Robertson sang and talked about social matters and she never showed them or explained ultrasound images to them – they were exaggerations and evidence that his Honour rejected for the reasons that he sets out there. 

Your Honours, in our respectful submission, the applicants had agitated all of the matters that they had wanted to put before the Court of Appeal in the traditional way the evidence was reviewed by an

appellate court so as to ensure that there was no appealable error.  It was a considered judgment on the part of the Court of Appeal, as was his Honour’s Justice Elkaim’s judgment. 

Approached in the traditional way, there is nothing to stand in the way of Justice Elkaim on the evidence, some of which were primary facts that had been dealt with in detail in the judgments, and the inferences that he was prepared to draw and not draw.  There is nothing that has been pointed to specifically that amounts to a special leave point that was agitated before the Court of Appeal and was consistent with the way in which the case was run below.  In our respectful submission, the application should be dismissed.  They are our submissions.

BELL J:   Yes, thank you, Mr Higgs.  Yes, Mr Cranitch.

MR CRANITCH:   Your Honours, if I may ‑ ‑ ‑

BELL J:   Mr Cranitch, may I just raise with you the point that Mr Higgs first made, taking us to the grounds of appeal before the Court of Appeal.

MR CRANITCH:   Yes, your Honour. 

BELL J:   The argument presented today is hard to divine from those grounds of appeal.

MR CRANITCH:   It is foundational to those grounds of appeal, with respect, your Honour.

BELL J:   It might have helped if it was spelt out with a little more clarity.

MR CRANITCH:   I endeavoured to do so.  Perhaps ‑ ‑ ‑

BELL J:   I am sorry, Mr Cranitch, that was no criticism of you.

MR CRANITCH:   No, no, I accept, your Honour, that it is not clear.  I accept that.  Your Honour Justice Bell is quite right in pointing that out.  It is something over which I had no control.  However, on the principal issue of whether or not this case was to be decided as a denial of a right – which is foundational to this whole argument – your Honours do not have the benefit of it but it was, in fact, raised in addresses by my learned junior to Justice Elkaim.  He raised with him the underlying rationale in Wallace v Kam, for example, and the policy that lies behind this sort of case – that is, while the practicalities may be the seeking of an abortion, the reality is that the applicants are driven to that by virtue of the breach of a duty to inform them so that were able to plan the family they wanted to have.

So, I accept, your Honour, that it is not done with great clarity and that the traditional measures were largely adumbrated in the court below.  But that still does not get behind the reason, we say, this deserves special leave because this matter has to be considered in the context and particularly with section 46, which is a matter which needs urgent consideration. 

Indeed, the whole area needs urgent consideration because there is the problem that continually arises that a case which is clearly a case where economic loss is the foundation of it – that is, that the tortious liability gives rise to a claim for economic loss as opposed to a personal injuries case – is a matter that has, in fact, raised itself on a number of occasions and always been decided on the basis of inability to exercise options by way of a lost chance of a better outcome which is based upon the personal injury side rather than the claim for economic loss. 

It is not disputed, with respect, that this is a claim – apart from the claim for general damages, the bulk of this claim is a claim for economic loss – pure and simple.  Those are my submissions, your Honours.

BELL J:   Thank you.

In light of the conduct of the proceedings below, the application is not a suitable vehicle to consider the questions of principle that the applicant has raised on the hearing of the application.  The application is dismissed with costs.

MR CRANITCH:   If the Court pleases.

MR HIGGS:   If your Honour pleases.

BELL J:   Adjourn the Court.

AT 11.10 AM THE MATTER WAS CONCLUDED