Nouri v Australian Capital Territory
[2020] ACTCA 1
•13 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Nouri v Australian Capital Territory |
Citation: | [2020] ACTCA 1 |
Hearing Dates: | 7, 8 November 2019 |
DecisionDate: | 13 February 2020 |
Before: | Murrell CJ, Mossop and Rangiah JJ |
Decision: | See [110] |
Catchwords: | APPEAL – NEGLIGENCE – Medical negligence – causation – child with birth defects – duty of hospital to inform parents of possibility of trachealoesophageal fistula (TOF) – date upon which duty arose – whether primary judge erred in finding that causation not established – whether appellants had proved that if informed of possibility of TOF mother would have undergone a selective termination of one twin in United States of America – burden of proof not discharged |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 45, 46 Court Procedures Rules 2006 (ACT), r 5606 Supreme Court Act 1933 (ACT), s 37N |
Cases Cited: | Cattanach v Melchior [2003] HCA 38; 215 CLR 1 Chappel v Hart [1998] HCA 55; 195 CLR 232 Waller v James [2013] NSWSC 497; Aust Torts Reports 82-130 |
Parties: | Einas Nouri (First Appellant) Musab Shaor (Second Appellant) Australian Capital Territory (Respondent) |
Representation: | Counsel B Walker SC, A Campbell and U Okereke-Fisher (Appellant) D Higgs SC and K Sant (Respondent) |
| Solicitors Gerard Malouf and Partners (Appellants) ACT Government Solicitor (Respondent) | |
File Number: | AC 60 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 28 September 2018 Case Title: Nouri v Australian Capital Territory Citation: [2018] ACTSC 275 |
THE COURT:
Introduction
Saba Nouri was born on 3 November 2011 with severe disabilities. Her disabilities are categorised as “VACTERL association”. This refers to abnormalities in the following areas: vertebral anomalies, anal atresia, cardiac defects, tracheoesophageal fistula (or oesophageal atresia), renal abnormalities and limb defects. She suffers from developmental delay. She requires 24 hour care. She was one of non-identical twins. The other twin did not suffer from these conditions. Saba was referred to during the course of proceedings as Twin B.
Her parents, the appellants, are Ms Nouri and Mr Shaor. Apart from Saba, they have three other children and their lives have been irreparably changed due to the additional obligations that come with raising a severely disabled child.
Before the primary judge the appellants contended that the Canberra Hospital should have provided them with certain information. Had that been done then the appellants contended that the pregnancy of Twin B would have been terminated and the extensive costs associated with Saba’s upbringing would have been avoided. The respondent, which runs the Canberra Hospital, denied that there was any breach of duty and said that if there was a breach of duty that breach did not cause the loss claimed.
Before the primary judge the central point on breach of duty was whether or not the information about Twin B’s condition was disclosed to the plaintiffs. On causation the central issue was whether the appellants would have or could have secured a termination at the late stage in the pregnancy when information about Twin B’s condition should have been supplied.
The primary judge found that the defendant did breach its duty of care but that the appellants had failed to establish causation. As a result, he gave judgment in favour of the defendant: see Nouri v Australian Capital Territory [2018] ACTSC 275. He did, however, conduct a contingent assessment of damages which assessed damages in the sum of $1,813,807. This assessment did not include any award of general damages and was performed on the basis that damages were only recoverable up until Saba reached the age of 18 years.
On appeal, the appellants challenged the findings going to liability as well as to damages. So far as liability is concerned, the appellants contended that the date upon which the appellants should have been informed of the possibility that Twin B suffered from a trachealoesophageal fistula (TOF) was earlier than that identified by the primary judge. They also contested the finding on causation, which turned upon whether or not the appellants would have been able to arrange a termination of Twin B. In relation to the assessment of damages, the appellants contended that the primary judge erred in failing to award them general damages and failing to award them economic loss beyond Saba’s 18th birthday.
Grounds of appeal going to breach
The grounds of appeal challenging the primary judge’s findings concerning breach of duty are as follows:
1.His Honour’s finding at [427] that the plaintiffs had not established, on the balance of probabilities, that they could or would have obtained a termination had there not been a breach of the duty of care was vitiated by error for the following reasons:
(a)His Honour erred in finding at [412] that 22 September 2011 was the earliest date when a duty to inform may have arisen whereas the plaintiff’s contention was that it was the latest date.
(b) His Honour erred at [413] in rejecting the submission that the cardiac condition did not feature in the breach debate. The submission was that the cardiac condition and the defendant’s failure to properly inform the plaintiffs of it, together with other abnormalities, was relevant to the issue of causation.
In order to understand these grounds of appeal it is necessary to recount the factual background relevant to breach based upon the findings made by the primary judge.
As at 2011 the appellants had two children. On about 20 February 2011 Ms Nouri became pregnant again. The pregnancy was unplanned.
On 8 July 2011 Ms Nouri had an ultrasound performed by National Capital Diagnostic Imaging (NCDI). This was performed at a gestational age of 19 weeks and five days. She was informed that she was pregnant with twins. She was informed by Dr Lomas that one of the twins had a single umbilical artery which might indicate a heart problem.
Ms Nouri was referred by NCDI on 8 July 2011 to the Fetal Medicine Unit (FMU) at the Canberra Hospital. The referral document identified that Twin B had a two-vessel cord and that Twin B’s heart was “slightly larger than usual with poor visualisation of the interatrial septum”.
Despite making a number of attempts to contact the FMU the appellants were unable to get a response. It was only as a result of receiving some advice from Dr Latif, a Sudanese doctor they knew at the Canberra Hospital, that they were able to get an appointment. That appointment at the FMU was on 15 July 2011. An ultrasound was carried out. The appellants spoke to Dr Tan, a trainee obstetrician. Dr Tan said that a single umbilical artery was associated with a chromosomal abnormality. He recommended an amniocentesis test to identify chromosomal abnormalities and fetal infections. The ultrasound revealed anomalies or abnormalities in the fetus. At this point the gestation term was 20 weeks and five days.
The next appointment at the FMU was on 25 July 2011, the gestational age now being 22 weeks and one day. The appellants had not been told about the results of the amniocentesis test. They saw Dr Robertson, the director of the FMU. She confirmed that the test was negative. Another ultrasound was carried out. There was no suggestion of any abnormality other than a cardiac abnormality.
Dr Robertson said that she would organise a cardiac test in Sydney. In response to a remark by Mr Shaor, she told the appellants that a selective termination was possible if one of the twins was suffering from a heart condition. She said that it would be discussed when they came back from Sydney. This was a discussion of termination in the context of a heart abnormality rather than the possibility of any abnormality.
On 2 August 2011 the appellants saw Dr Murphy, a paediatric cardiologist at Sydney Children’s Hospital. He carried out an ultrasound. He said that the only problem with Twin B was a “variable normality” which was of no significance because the heart was structurally sound. He reassured the appellants. (The evidence of Mr Shaor was initially that Dr Murphy had referred to a “variable abnormality”. Later he corrected his evidence to a “variable normality” consistent with it being of no significance.)
On 8 August 2011 the appellants attended the FMU. They saw Dr Robertson. She confirmed what they had been told by Dr Murphy. She did not explain to the appellants any difference of opinion between herself, Dr Murphy and Dr Tan about the condition of Twin B’s heart. She carried out another ultrasound.
The appellants attended the FMU again on 22 August 2011. A technician carried out a further ultrasound and told them that there was no change and that all was well.
Before the next appointment Ms Nouri suffered pain on her right side. Dr Robertson was informed. On 5 September 2011 Dr Robertson carried out a further ultrasound. She identified that there was excess fluid around Twin B. This is a condition known as polyhydramnios. She suggested the removal of excess fluid through a procedure known as amnioreduction. At this appointment Dr Robertson told the plaintiffs that she was not content with Dr Murphy’s decision. She said that she had been planning another referral to a cardiologist at Westmead Hospital. Mr Shaor indicated that he had insurance that he could access if that would help speed up the appointment.
On 6 September 2011 there was a High‑Risk Meeting at the FMU. At the meeting the background of the case was discussed, in particular having regard to the increase in amniotic fluid. The possibility of a TOF was raised. It was not clear whether Dr Robertson attended this meeting although she probably did. It was also unclear whether Prof Elwood, a fetal medicine specialist and head of the FMU attended the meeting, although he attended most meetings. Dr Tan attended about 90% of the meetings but could not recall whether he attended this one. The notes of the discussion of the case were recorded by Linda Warwick, a genetic counsellor. At this point the gestational age was 28 weeks and two days. Dr Robertson did not discuss the meeting with the appellants.
On 12 September 2011 the appellants returned to the FMU. Dr Robertson carried out an ultrasound. Ms Nouri was given steroid injections.
The appellants returned to the FMU on 15 September 2011. The amnioreduction was carried out by Dr Tan. This helped to alleviate the pain in Ms Nouri’s right side. Mr Shaor enquired about the appointment in Sydney. Dr Robertson said that it was in train.
On 22 September 2011 the appellants returned to the FMU and saw Dr Robertson. As at this date the gestational age was 30 weeks and four days. Prof Elwood observed the ultrasound. The appellants asked again about the Sydney appointment and were informed that it was being arranged. There was no mention made of Twin B having a small stomach or possible TOF. There was also no mention of a referral to a geneticist or any other specialist or of the High-Risk Meeting that had taken place in the FMU on 6 September 2011.
On 5 October 2011, a further ultrasound was performed. The appellants enquired about the appointment in Sydney. Dr Robertson said that she was still organising it.
On 15 October 2011, Ms Nouri was again suffering from pain in her right side. She was admitted to the maternity ward at Canberra Hospital. The admission notes made no reference to a TOF. She was discharged the following day.
Dr Robertson saw the appellants again on 18 October 2011. Another amnioreduction was attempted but this was very painful for Ms Nouri and the procedure was stopped.
Enquiries were again made by the appellants about the doctor in Sydney. Dr Robertson repeated that an appointment was being arranged. The appellants were fed up with this often repeated explanation. They attended Calvary John James Hospital in Deakin and enquired if a cardiologist was available. They were informed that one was not. When Dr Robertson was again asked about a cardiologist, she told the appellants that it was her intention to admit Ms Nouri to the hospital and then transfer to her to Sydney by ambulance. This never took place.
On 26 October 2011 Dr Robertson said there was no longer any need for a trip to Sydney. She told the appellants that everything was fine. Dr Robertson arranged for Dr Latif to attend the appointment. Prof Elwood also attended. The appellants said that they would like a caesarean delivery because of Ms Nouri’s bad back, her previous experience with postpartum bleeding and because of the excessive fluid surrounding Twin B. Prof Elwood disagreed and said that a natural birth was appropriate. He subsequently agreed to speak to Dr Tam who had attended to Ms Nouri during her previous delivery. The appellants also asked Dr Latif to discuss a caesarean with Prof Elwood. When they left the meeting, they understood that it was likely that a caesarean birth would occur. They were expecting the birth of normal twins. They had not been told of any possible abnormality other than the cardiac issue.
Prof Elwood did not ultimately consult with Dr Tam as he came to the conclusion that a caesarean section was appropriate.
An ultrasound occurred on 2 November 2011. Dr Tan delivered the twins by caesarean section on 3 November 2011. The male baby (Twin A) was delivered first. Saba (Twin B) was taken to the Neonatal Intensive Care Unit. From there she was taken to an operating theatre. Later that day Mr Shaor was told by a Dr Simpson that Saba had a TOF. Dr Simpson enquired whether Mr Shaor had been informed that this was likely. Mr Shaor said that he had not been so informed.
Mr Shaor later spoke to Dr Latif in his office. Dr Latif explained what VACTERL association was.
The primary judge’s conclusions based upon the expert medical evidence about what should have happened were set out at [392]-[393] as follows:
392. I think that the medical evidence, taken as a whole, unquestionably supports the plaintiffs’ contention that they should have been informed not only of the suspicion of a TOF but also of its possible ramifications for the newborn child. As has been observed above, there was an identified heart anomaly, there was an issue between the doctors about the nature of the heart condition or at least its effects, there was evidence of a shortened femur, there was a history of a small stomach and there was a return of the polyhydramnios. As at 22 September 2011, there were enough issues to necessitate a discussion with the parents outlining the meaning of a TOF, the manner in which it could be addressed, and the relevance of Twin B’s fetal state to her likely condition after birth.
393.I also draw the following conclusions from the medical evidence, including the reports and the oral evidence of the doctors:
(a)The note taking and record keeping in the FMU was well below an acceptable standard.
(b)An ethics committee in any State or Territory in Australia would not have approved a selective or total termination after 22 weeks’ gestation.
(c)A termination would not have been available in Australia outside of the public health system.
(d)Assuming the parents were informed of the TOF on 22 September 2011, it makes no difference that they were not informed after the High-Risk Meeting on 6 September 2011.
(e)VACTERL Association could not have been conclusively diagnosed before Saba’s birth but a suspicion of its presence was available.
(f)Even without a diagnosis of VACTERL Association there were indications, if not high probabilities, that Saba would be born with disabilities, in particular a TOF which might have a significant effect on her future life and would probably require corrective surgery.
The two essential contentions advanced on behalf of the appellants in support of their grounds of appeal are:
(a)There was a breach of duty arising from failure to disclose to the appellants at the consultation on 8 August 2011 the [possibility] of the absence of a ductus venosus and that such a disclosure would have prompted earlier consideration of termination or selective termination;
(b)The date of the breach of duty arising from a failure to disclose the possibility of TOF should be pushed back from 22 September 2011 to 6 September 2011. This would have given a longer period of time during which the appellants might have considered their position and put in place the arrangements necessary to achieve a selective or complete termination of the pregnancy.
Because each of these arguments would, if successful, have set in train earlier consideration of termination or selective termination, these contentions feed into those grounds of appeal relating to causation.
The 8 August argument
At trial, the primary focus of the appellants was upon the failure to disclose the possibility of a TOF on 22 September 2011. However, the appellants also identified the failure by Dr Robertson to disclose a condition which she considered existed, namely the absence of a ductus venosus, as involving a breach of duty.
The ductus venosus is a shunt which regulates blood flow to the fetal heart. The effect of the absence of a ductus venosus is that the umbilical vein discharges into the right atrium rather than being regulated by the ductus venosus which would shunt a portion of the blood elsewhere. Increased blood flow into the heart may enlarge the size of the right atrium. This is something which may lead to heart failure. This is a functional rather than structural issue. It is one which resolves at birth because at that point the ductus venosus would cease to function in any event.
On appeal, the failure by Dr Robertson to disclose her opinion as to the absence of a ductus venosus was argued to be significant because had it been disclosed then the parents would have given further consideration to the question of termination and hence, at the later point when TOF was disclosed, would have been more advanced in their thinking and more likely to proceed with a termination. This was a case which was not squarely run at trial and hence the appellants did not specifically adduce evidence addressed to how the causal chain would have been different if that additional information had been given.
The reason for the referral to Dr Murphy was the identification by Dr Robertson of an anomaly in the heart of Twin B. This was the absence of a ductus venosus and an enlarged right atrium. Dr Murphy saw the appellants on 2 August 2011. Dr Murphy’s report excluded any structural abnormalities of the heart. Notwithstanding Dr Murphy’s report, Dr Robertson appeared to consider that the absence of the ductus venosus was a matter of significance. She had encountered a similar rare condition in 2005 which required the early delivery of the child. It was for this reason that she indicated her intention to get an alternative opinion. However, she did not do so prior to 26 October 2011 when she told the plaintiffs that “everything was fine”. Although Dr Robertson said that she discussed the details of the condition with the appellants, the primary judge accepted the evidence of the appellants concerning their consultations with Dr Robertson. That evidence was to the effect that she did not agree with Dr Murphy and was planning another referral. She did not explain in any detail to the appellants what her view of the condition was.
The effect of the evidence was that this was a matter which might have been reasonable to raise with the appellants. There was no expert evidence that it was unreasonable not to have raised it. Prof Elwood said: “There is always possibility of cardiac failure when dealing with an unusual venous drainage. I don’t recall personally having that discussion with them. It would not have been an unreasonable thing to have said - cardiac failure is a possibility. The only other case like this that we’d seen in our unit there was evidence of cardiac failure towards the end of the pregnancy.” This was a reference to the case which Dr Robertson recalled from 2005.
During the course of the concurrent evidence involving Dr Cole (a fetal medicine specialist engaged by the appellants) and Dr Schmidt (an obstetrician and gynaecologist engaged by the appellants), Dr Challis (a fetal medicine specialist engaged by the respondent) was asked about what the discussion would be following receipt of Dr Murphy’s report in circumstances where there remained a diagnosis of a venous drainage abnormality and the parents had previously expressed an interest in termination. He said:
I mean, what I usually say to parents is that 3 per cent of babies are born with a birth defect, most of which we can’t detect ante-natally, and no baby comes with a warranty. You know, so there are some birth defects that have a higher burden than others, clearly. I guess what I would have said to this couple is that, “Look, I was a bit worried. I was concerned that there was a cardiac abnormality. You’ve come back from Dr Murphy and he’s given the heart structurally all clear. Your baby is still small. It has a couple of variations, the two-vessel cord and the venous drainage abnormality but we think it’s quite likely that the baby has a good prognosis. If they still insisted on a discussion of termination - request for termination then I guess you would take it forward if that was their request. But I would have been reassuring.
He was asked what he would do if he thought that the right atrium was big because of the venous drainage abnormality and said:
I would follow it and I would counsel the parents that there is still concern about the functional status of this baby. Would it change (indistinct) counselling around termination of pregnancy? I don’t know. We would have already expressed a view to this - to these parents that we have concerns about the baby but, you know, the concerns are still, you know, vague and poorly defined and the best we can do is to continue to follow.
Dr Cole said:
I think if the patients had raised the issue before the fetal echocardiogram as to termination if the heart was abnormal, then when I met with them next after having received that report that the heart was normal, I would explain that to them, that the heart now is normal and did they therefore feel that their request for termination of pregnancy was no longer relevant or was there still an issue of concern for them and then explore that. I think though at that point in time as has been mentioned several times, both by myself and Dr Challis, that the abnormal findings on ultrasound that we had at that point in time were quite non-specific and it would be very - it would be an extremely complex counselling conversation to tease out the issues around termination of pregnancy at that point.
Those issue[s] would include the potential that this was the termination of a normal baby, they would include the potential or discussion around the fact that the significance of the abnormalities for the baby if they were in fact significant is still very hard to define at this point in time and they would also include discussions around the emotional impact of termination and the potential impact of loss of the apparently healthy co-twin as a complication or consequence of the termination and that conversation would usually evolve often over several discussions as we tried to work through those issues. I think given that they’d raised that issue prior to the [echocardiogram] I think it would be important to come back after the [echocardiogram] even though the results were normal and clarify with them were their feelings now changed in the light of the normal fetal [echocardiogram].
He was then asked to add an assumption that the view of the fetal medicine specialist differed from the cardiologist. In those circumstances he considered that the first step would be to ring the cardiologist and have a discussion about those concerns. He would then arrange a second opinion or repeat the echocardiogram with the same cardiologist a few weeks down the track.
Dr Schmidt agreed that if there was a difference of opinion with the cardiologist then that would be something that should be followed up.
Dr Challis added that any selective termination could not be ethically undertaken if there were non-specific findings. Selective termination would only take place in circumstances where there was diagnostic certainty that the outcome for the affected twin was incredibly severe, such as a severe brain abnormality.
Each of Drs Cole, Challis and Schmidt agreed with the proposition that the venous drainage anomaly would self-correct at birth and would not have any long-term sequelae related to it.
Had the particular problem identified by Dr Robertson been disclosed to the appellants then the advice would have been to simply monitor the functioning of the heart. Had they requested a termination because of that condition, then it is clear that this was a course which would have been strongly discouraged and would not have been performed within the public or private hospital system in Australia. Any counselling received by the appellants would have been to educate them about the nature of the condition, its resolution at birth and the capacity to effectively monitor it.
Even if there was to be a termination, it would have been a selective termination of only one of the twins. In those circumstances, Dr Hern’s evidence was that it would have preferably been performed at between 32 and 34 weeks’ gestation, so as to minimise the risks to the healthy twin by ensuring sufficient lung maturation. Because any selective termination would only occur at this date in any event, it tends very strongly against any termination at all. That is because if cardiac failure had not manifested itself by this time the affected twin would be viable in any event and the nature of the cardiac condition was that it would have resolved itself at birth.
The possibility that the appellants might have received such counselling from Dr Robertson, another member of the FMU staff or some other person within the hospital system is not a matter which has been demonstrated to have any effect upon the course that would have been adopted if, subsequently, proper disclosure of the possibility of a TOF occurred. The earlier discussion of a particular defect and the reassurance of the appellants would not significantly alter the factual background for the subsequent disclosure of the possible TOF. That is because, upon the findings made by his Honour, the appellants had been told in general terms of Dr Robertson’s non‑acceptance of the completeness of Dr Murphy’s report. The difference between that scenario and the scenario in which the specific condition had been disclosed and explained is, at best, marginal. The possibility that this early disclosure would have “primed” the appellants for action once they were told of the possibility of a TOF is, on the evidence, too speculative to provide a basis for any alternative conclusion on the issue of causation.
The 5/6 September argument
The alternative contention of the appellants was that the relevant date upon which disclosure of a possible TOF should have been made was 5 or 6 September 2011 rather than 22 September 2011 (gestational age 28 weeks and one or two days versus 30 weeks and four days). 5 September is the date upon which polyhydramnios was identified. 6 September was the date of the High-Risk Meeting at the FMU. The appellants’ contention was that as soon as the condition was suspected, disclosure of the possibility of that condition should have been made to the appellants.
This is not the way in which the case was put at trial. That was for the very good reason that the expert evidence did not support the proposition that reasonable professional diligence required immediate disclosure of that possibility. While such disclosure was an option, nondisclosure was not shown to amount to a breach of duty. It is for that reason that the contention cannot now succeed on appeal.
The relevant witnesses and their relevant evidence were as follows.
In the report of Dr Maclean, a paediatrician and clinical geneticist engaged by the appellants, he said:
The key conclusion is that with the overall clinical picture that was emerging as of 28 weeks and further confirmed at 30 weeks, there was sufficient information to consider TOF as a relevant and indeed, increasingly likely diagnosis; to arrange for various specialist/multidisciplinary inputs (neonatology, surgical and clinical genetics in the subsequent weeks) and, to allow the family time to process this information and based on their reflections, to develop an approach that offered care for the family, the pregnancy and the child following delivery depending on the couple’s approach, requests and individual decisions.
During questioning by the primary judge he was asked about the difference between 28 weeks and two days and 30 weeks. He said:
I think it’s getting - for the fetal medicine specialist, it’s - for the families, they’re looking for categorical certainty. For the fetal medicine specialist, they’re findings that might be strongly suggestive and the opportunity to, say, rescan within one or two weeks to confirm those findings, to seek opinions from somebody else within the group, rather than acting on information where they haven’t had the opportunity to revisit that. In this stage of a pregnancy it’s - put another way: is there enough to trigger a whole series of referrals or is it more reasonable to come back, review the information, increase the level of certainty at least in the fetal medicine specialist’s own mind and opinion, to then be able to look at additional referrals. And the order in which I’ve put them, I would have thought neonatology would be the first, because that then gives the parents a very non-direct approach to what’s going to happen if this is the case, how do they go about it? And as I say, clinical genetics in - as part of that.
There was then reference back to his report in which he had said:
There were sufficient features at 28 weeks for the [fetal medicine] specialist to have raised diagnosis of [TOF] in the High-Risk Meeting. It was one of two differential diagnoses for polyhydramnios in Fetus 2. There were grounds to have established [TOF] as a provisional working diagnosis. It may have been reasonable to await review following the next ultrasound at 30 weeks before raising the possibility of [TOF] - as well as the difficulties in establishing a definitive diagnosis - with the parents.
In oral evidence he then added:
I was going to say, it may even be a reasonable thing to say to the parents, “Look, there’s some suspicions of this, but I’d like the opportunity to come back and re----
To think about it?---To think about it.
Okay?---And that might be quite a sound---
The finding by the primary judge at [357] somewhat overstates this evidence, characterising the doctor as saying that “the parents should have been told at the earlier time but with the caveat that the matter would be reviewed”. Rather, the evidence was to the effect that it might have been reasonable to disclose a suspicion of TOF but it was also reasonable to await the next ultrasound at 30 weeks’ gestation.
This issue was raised during the concurrent evidence of Drs Cole, Challis and Schmidt. Dr Challis said in relation to the annotations from the High-Risk Meeting:
And my understanding from the annotations from the meeting is that somebody - as you always would I guess in the case of polyhydramnios, has raised the possibility, as any fetal medicine doctor would know, of oesophageal atresia being a cause and the plan is then made to bring the patient back for another scan to look more closely about two weeks’ time, which to me would seem a reasonable interval of time given she’s just been scanned and the stomach was seen.
(That the stomach had been seen was of some diagnostic significance because the inability to see the stomach on ultrasound would be a strong indicator of TOF.)
Dr Cole accepted those comments. Dr Schmidt was not asked whether he agreed with those comments but did not express any contrary view.
Dr Farrow’s reports, summarised by the primary judge (at [312] - [323]), focused on the ultrasound performed on 22 September 2011 and expressed the opinion that at that point, a referral to a genetic counsellor was appropriate.
The high point of this evidence is the evidence of Dr Maclean that following the High‑Risk Meeting “it may even be a reasonable thing” to disclose a suspicion of TOF earlier than 30 weeks, but with the intention of returning to the issue later: [55] above. The evidence of Drs Challis and Cole (from which Dr Schmidt appears not to have dissented) was that it was reasonable to bring the patient back for another scan about two weeks later, namely around 22 September 2011. However, the possible reasonableness of the disclosure on 6 September 2011 does not establish the unreasonableness of failing to adopt such a course and, instead, awaiting a subsequent scan before disclosing that possibility. As a result, there was no error on the primary judge’s part in adopting 22 September 2011 as the date where reasonable care required the disclosure of the possibility of a TOF.
Conclusion on ground of appeal going to breach
The rejection of the appellants’ arguments that 8 August 2011 or 5/6 September 2011 involved causally relevant breaches of duty means that the grounds of appeal going to the issue of causation must be determined on the basis that 22 September 2011 is the relevant date.
Grounds of appeal going to causation
The grounds of appeal going to the issue of causation are grounds 1 (c), (d), (e) and (f). They are as follows:
1.His Honour’s finding at [427] that the plaintiffs had not established, on the balance of probabilities, that they could or would have obtained a termination had there not been a breach of the duty of care was vitiated by error for the following reasons:
…
(c) The reasons at [425] misstate the evidence of Dr Hern. His evidence was clearly to the effect that if his usual conditions appropriate to a case such as the present were satisfied, that he would conduct a termination. It was not just a case of a “possibility”.
(d) His Honour erred in finding at [423 (c), (d) and (f)] that the plaintiffs failed to prove they could surmount problems in accessing a termination if they chose to when:
(i) The medical evidence from Dr Schmidt and Dr Cole established that any medical issues in respect to travel could be overcome.
(ii) The evidence did not support a finding that the mother might be unable to travel due to visa restrictions and the judge erred in making such a finding.
(iii)The medical evidence of Dr Schmidt and Dr Cole did not go as far as finding that a second aminoreduction could not have been successfully carried out.
(iv) His Honour erred in taking into account a statement made by the second plaintiff that his wife was not in a position to travel on 18 October 2011. The relevant decision would have been made on 22 September 2011 at the latest which was three weeks and five days earlier and before the re-accumulation of amniotic fluid.
(v) The evidence from the travel agent experts clearly established that flying whilst pregnant was permissible.
(vi)The only evidence with respect to the plaintiffs’ ability to meet the costs of the procedure and associated accommodation if required supported the plaintiffs’ case.
(e) In circumstances where even with postnatal treatment Saba was always going to be left with life-long disabilities and the mother gave evidence she would have accepted any travel risks. His Honour erred in finding at [423 (b)] that counselling would have affected the plaintiff’s mother’s predetermined ideas of termination.
(f) His Honour erred at [423 (k)] in finding that the plaintiffs’ evidence on causation was affected by hindsight bias when in fact their evidence was that they discussed the issue of termination with Dr Robertson earlier on in the pregnancy in respect of the only abnormality about which they were informed.
The issue of causation was to be determined in accordance with ss 45 and 46 of the Civil Law (Wrongs) Act 2002 (ACT), which the primary judge set out. In order to establish causation it was necessary for the appellants to prove on the balance of probabilities that, had proper disclosure been made to them on 22 September 2011 (gestational age 30 weeks and four days) then Twin B would have been terminated. In the circumstances this meant establishing that Ms Nouri would have undergone a selective termination in the United States of America.
The primary judge identified at [423] the array of problems facing the appellants’ case on causation as follows:
The following are the primary problems faced by the plaintiff on causation:
(a)It is important to remember here, as a starting point, that the plaintiffs’ case is that the information about a possible TOF should have been given to them on 22 September 2011, but not before that date. This is 30 weeks and four days into the pregnancy. If a termination was to be considered, counselling provided and travel arrangements made, then time would have been short and, in effect, ‘everything would have needed to fall into place’.
(b)The plaintiffs say that the duty of care owed to them included the obligation to refer them for counselling. It cannot be said what the effect of counselling would have been. Their pre-determined idea of a termination could well have been affected by considerations explained to them during counselling, for example about the likely effect on Twin A, the dangers to the mother associated both with a termination and with travel and the possibility that, to the extent that Saba’s likely condition was then known, that it might have been influenced by post-natal treatment.
(c)The likelihood of travel occurring at all. It does seem likely that one airline or another may have issued tickets to the plaintiffs, but they may nevertheless not even have boarded the plane, in particular if a medical clearance had been required.
(d)Dr Cole (at T 902.28) said about a week of preparation would be necessary before travel. This included the possibility of a second amnioreduction being required and then counselling occurring (but not affecting the parents’ intentions). The logistics of travel would need to be factored in. Notably, in their joint statement (Exhibit 40, page 2) the plaintiffs say:
When my wife was roughly 32 weeks they asked us to go to Sydney which we said we are happy to go back to Sydney to see the cardiologist but my wife is not in a position to travel neither by a car nor a normal passenger plane.
(e)If the plaintiffs thought that Ms Nouri was not well enough to fly from Canberra to Sydney at about 32 weeks’ gestation, one wonders how she could have been well enough to fly to America at about the same time or even a week or two earlier. Notably, on 18 October 2011 the [sic] Ms Nouri was in so much pain she could not undergo an amnioreduction.
(f)While the parents said that they would have been able to fund the exercise, the evidence about costs and practical accommodation requirements is limited. I also do not know if any immigration difficulties may have arisen. Mr Shaor said he would have made an online application for a visa (known as an ESTA) but there is no evidence from any American immigration authority on this point. I note that Mr Shaor was refused entry to the USA as a refugee because of his military history. I do, however, note that the plaintiffs are Australian citizens and this may have negated any history that Mr Shaor had in relation to American border authorities.
(g)Perhaps most importantly, the probability that a termination would have been conducted in America at all. It is very clear from Dr Hern’s evidence that he would not have performed a selective, or any, termination simply because it was requested. He would have had to satisfy himself that it was an appropriate procedure to take place especially having regard to his assessment of the mother’s condition and her history. I do not think the evidence is such that I can make a finding on a balance of probabilities that Dr Hern, or any other ‘abortionist’, would have been prepared to carry out the termination.
(h)Dr Hern also said he would have wanted to see a definite diagnosis of a serious condition before he proceeded. He did qualify this evidence by suggesting he would have at least needed to see all the relevant documentation. The point however remains, that I cannot be satisfied on a balance of probabilities that Dr Hern would have carried out the procedure. Yet further, it is impossible to know the condition Ms Nouri would have been in on her arrival in America.
(i)The plaintiffs’ evidence never rose to the point (as described in the opening) of either plaintiff telling Dr Robertson that a termination would be chosen if they had been told of Twin B having any disability. The evidence went no further than the possibility of a termination being related to a cardiac condition.
(j)I have stated above the limitations that attach to Dr Sella’s report.
(k)While I accept that the plaintiffs are now adamant that they would have sought a termination it is important to remember that they are looking back with the benefit of hindsight and in the knowledge of the disabilities that have affected Saba.
At [424]-[426] his Honour reasoned as follows:
(a)Ms Nouri was unlikely to have been able to travel without a second amnioreduction, a procedure which she had not been able to complete on 18 October 2011.
(b)If she presented to the airport obviously pregnant and in pain he was not satisfied that an airline would have allowed her to board.
(c)He was not satisfied that any doctor would have provided her with supporting documentation if she had not had the second amnioreduction and was not in a fit state to fly.
(d)He was not satisfied that Dr Hern or any like doctor would have been prepared to carry out the abortion. The state of the evidence could be taken no further than to say that he might have carried out a procedure.
(e)The effect of counselling upon them was unknown, particularly in relation to the risks and logistics of travel to the United States.
The discrete grounds of appeal set out above and addressed below attack different components of the primary judge’s reasoning. Notwithstanding that his Honour identified a range of different obstacles to a finding in favour of the appellants on causation, the ultimate question was a single one: did the appellants discharge their burden of proof by showing, on the balance of probabilities, that Ms Nouri would have terminated the pregnancy? This question cannot be answered favourably to the appellants by demonstrating in relation to each issue identified by the primary judge that it is more likely than not that it would have been overcome. Rather, what needs to be shown is that taken collectively, it is more likely than not they all would have been overcome. That is a more difficult task. Because there is a single question to be answered, while the evidence relevant to each of the grounds of appeal will be discussed below, the ultimate question of causation will be considered separately.
Ground 1(c) - Evidence of Dr Hern
This ground of appeal challenges the primary judge’s conclusions about the effect of Dr Hern’s evidence. The appellants submit that the effect of the doctor’s evidence was that he would have been prepared to carry out the procedure if there were serious abnormalities, the parents had documentation from the treating obstetrician and there were provisions made to deliver the healthy twin. The appellants submitted that each of these conditions would have been fulfilled and hence the primary judge was in error in failing to make such a finding.
The evidence of Dr Hern was contained in his report dated 2 April 2017 and in his relatively brief oral evidence.
He indicated that he would perform a selective termination between 32 and 34 menstrual weeks’ gestation. This corresponded to the period 2 October 2011 to 16 October 2011. He indicated that he recommended that Ms Nouri return immediately to the care of her local attending physician in case of emergency. He identified that if returning to Australia she would be at risk of precipitate labour and deep vein thrombosis and that “preventing a major complication or death during this interval would require close coordination with her own physicians and medical resources at points of travel”. An alternative was to have “an established relationship” with medical professionals in the United States where she could await delivery of the healthy twin. He said he would require reassurance and direct contact with the consulting or attending physicians involved in the immediate post‑operative phase.
In oral evidence he confirmed that appropriate after-care was a necessary requirement. He agreed that he would need a definitive diagnosis of a serious condition of the twin for which selective termination was sought. The basis on which he had given his opinion was that:
… there were many abnormalities of which abnormal vessels in the heart and other things and problems with the digestive tract which were observed over a period of time, with the last observation given to me at 30 weeks on 22 September 2011 and so that it was really a constellation of problems that caused the concern for the future viability of function of this fetus.
Later in his evidence he elaborated on the assumption that he was asked to make:
Well in the - in the letter I had it talks about abnormal blood vessels in the heart, small stomach (indistinct) and abdominal discrepancies, abnormal (indistinct) excessive amniotic fluid and tracheoesophageal fistula and other things that were considered to be very serious and my basic view is that if the woman and her doctors feel that these are (indistinct) problems and they want to have a selective termination because of that, that the probability is that I would do that unless there is some issue with the patient’s general health or lack of availability of an obstetrician to help her afterwards.
The issue of precisely what condition would be required before the doctor would be prepared to perform a selective termination was further explored by counsel for the respondent and the primary judge as follows:
That they were of the opinion that there was not a definitive diagnosis of a serious nature, then do I understand your evidence to be that you would not have proceeded with the termination? --- No, I don’t agree with that statement. The information that was given to me indicated that there were some serious problems with the vessels of the heart and that there was a tracheoesophageal fistula and other abnormalities and polyhydramnios which is often associated with other very serious problems and the question was simply put to me whether I’d be willing to perform a selective termination with a condition with a fetus with numerous abnormalities. I did not specify anything about an ASVD or – or choose which diagnosis of which abnormality would cause me to go ahead or not.
Doctor, if the treating physician – it still remains doesn’t it, consistent with what you’ve already told us, you would want to have a definitive diagnosis of a serious nature confirmed by speaking with the treating physicians that were managing this lady, is that right? --- I’d certainly want to have as much communication with the patient’s physician as possible. The evidence that was given to me on the basis that formed this letter was that there were various issues with this fetus and that the couple wanted to – the woman and her partner wanted to know whether I would have performed a selective termination because of these abnormalities and my answer was yes.
…
His Honour: Can I just ask a question? Doctor, it’s the judge here. Can I ask you this question, if you had not have been able to talk to the patient’s treating doctors for whatever reason, would you have proceeded with a selective termination? --- Only if I had a written document from the doctors saying that they were in agreement with this patient’s decision that they were going to help her following this operation and that they were (indistinct) to verify that there were serious abnormalities.
After these questions there was no re-examination.
This evidence left the position somewhat uncertain as to precisely what was required by Dr Hern. The effect of the evidence appears to be that he would need to be satisfied by either discussions with the patient’s doctors or by a written document from those doctors that there were serious abnormalities. It appears that he would (at the very least) also be influenced by the attitude of the treating doctors (“the woman and her doctors feel…”; “saying that they were in agreement with this patient’s decision”).
The state of the evidence meant that there was potentially a significant obstacle and, at least, very significant uncertainty about Dr Hern’s preparedness to undertake the procedure. The hypothesis upon which the appellants’ case proceeded was that they had disclosed to them the possibility of a TOF and that, not only would the ethics committee have refused to permit a selective termination in those circumstances, but also that no other doctor in Australia would have been prepared to perform a selective termination. Dr Challis gave evidence that he could not stop the appellants seeking a termination overseas and that he would give them “whatever medical records they felt they needed to take”. Dr Cole said that he would proceed in a manner similar to Dr Challis, providing a letter of introduction and providing copies of ultrasound reports.
That evidence is not sufficient to establish that the doctors would tell Dr Hern that there were serious abnormalities or that they were in agreement with the option of selective termination. Based upon Dr Hern’s evidence, the mere provision of medical records would not appear to be sufficient to satisfy his requirements. While the content of a letter of introduction was not explored in evidence it may well have identified the uncertainty about the diagnosis of TOF and the fact that the doctor and the ethics committee had reached the conclusion that a termination was not appropriate in the circumstances.
The effect of Dr Hern’s evidence was not that he would simply provide a selective termination on request. Having regard to the qualifications that he put on his preparedness to carry out such a procedure, there would be significant uncertainty about his willingness to perform it in the hypothetical circumstances of a request following 22 September 2011.
There was also evidence from Dr Sella, another doctor offering terminations in the United States. While that doctor’s evidence came closer to her providing a termination upon request, she did not offer terminations after 28 weeks’ gestation and hence, her evidence was not relevant to the hypothetical circumstances that might have existed in the period after 30 weeks.
Ground 1(d) – Travel
This ground of appeal relates to the findings by his Honour that the difficulties associated with travel meant that the appellants had failed to establish causation. These issues relate to: the ability of Ms Nouri to fly, visa restrictions and financial capacity.
The evidence of two travel agents was to the effect that airlines would allow a ticket to be purchased and that at least some of them would not require further medical evidence to permit a person in the circumstances of Ms Nouri to board the plane.
There was evidence that an amnioreduction could be carried out and that blood thinning medication could be administered so as to reduce the risk of deep vein thrombosis. There was the potential for some difficulties with the amnioreduction process as exemplified by the pain experienced by Ms Nouri when that procedure was carried out on 18 October 2011. Dr Cole said that medical preparation for travel would have taken about one week.
So far as money was concerned, the evidence given by Mr Shaor was that he had in the past travelled from Australia to Germany with his mother for the purposes of medical treatment. He gave evidence that he had the funds to have travelled to United States. This was amount of approximately $86,000 available to him through a particular named company. In cross‑examination he gave evidence that the medical costs involved in the birth of the healthy twin would have been about US$25,000 and that he had no problem sourcing money at the time in order to permit an increase in costs if the healthy twin needed neonatal intensive care treatment. The appellants correctly point out that it was never clearly put to the appellants that they could not afford the procedure.
The primary judge identified that the evidence given about the capacity of the appellants to fund the procedure was limited. That was an accurate statement. The evidence of Mr Shaor was that there was a sum of money which was available to him for those purposes.
The state of the evidence was such that although a sum of money apparently sufficient to cover both the cost of travel, medical treatment and contingencies was available to the appellants, it was not a case in which money was not a consideration. At the very least, the likely costs of the exercise were a factor which would have been a significant consideration for the appellants in deciding whether to proceed down the path of late‑term international travel to achieve a selective termination.
For the purposes of the appeal, the appellants sought to have admitted some further evidence. This was material that had been relied upon at an interlocutory stage of the proceedings, at a time when leave was sought to amend the Statement of Claim so as to plead the availability of termination services in the United States. In support of that application some evidence was put on concerning the financial capacity of the appellants to have afforded the travel and treatment costs involved. This evidence was referred to at times during the trial and it is clear that the parties and the primary judge were aware of it. However, at no point was it put into evidence.
The affidavit of the appellants’ solicitor in support of the application to admit the further evidence does not indicate that the failure to put it into evidence was a mistake or an oversight.
The admission of the additional evidence was opposed on the grounds that the relevant parts of the evidence included hearsay material and material upon which Mr Shaor would have been cross‑examined.
Although the material the subject of the application is some 62 pages, the relevant parts are much more confined. The relevant evidence is that which goes to the financial circumstances of the appellants at the relevant time. It identifies that Mr Shaor had “USD 86,350 in a transfer company which [he] could draw down from”. Included was a letter from a company in the United Arab Emirates indicating that he had a credit the equivalent of that sum which he could have drawn upon. Also included was a statement from the HSBC bank that at the relevant time the appellants had between $8800 and $9400 in their joint bank account. It included a statement by Ms Nouri that she and her husband would have been able to afford whatever course was required to obtain a termination of pregnancy. Finally, one of the affidavits of Mr Shaor included in the material recorded the outcome of his enquiries of the cost of treatment in the United States and the next a document described as “a printout of estimated hospital costs in Colorado” the providence of which is not identified. That provided the basis for Mr Shaor’s two estimates of the total costs of hospital admission for the purposes of delivery of Twin A, accommodation, Dr Hern’s fees and flights and incidental expenses at US$40,000 or AU$38,000.
It is open to admit further evidence on appeal: Supreme Court Act 1933 (ACT), s 37N; Court Procedures Rules 2006 (ACT), r 5606. The approach to the admission of further evidence is articulated in Jovanovic v The Queen [2015] ACTCA 29 at [22]-[23].
In the present case we refuse to admit the further evidence for the following reasons. First, the material was clearly available at the trial and there is no proper explanation as to the reason it was not led at trial. The solicitor’s affidavit does not identify that it was a mistake, oversight or misunderstanding. Second, insofar as the evidence goes to the money available from the company in the United Arab Emirates, that evidence was given orally by Mr Shaor and was not challenged. The documentary evidence supporting it does not take the matter much further. The evidence of the amount available in the appellants’ joint account would add to the available evidence but only in a very minor way. Third, insofar as the estimate of expenses is based upon the unidentified hospital costs document, that document is, on the present state of the evidence, not admissible as a business record. Fourth, the estimate of the overall costs of travel to the United States made by Mr Shaor is based on hearsay material and even if accepted would not alter the primary judge’s conclusion that “the evidence about costs and practical accommodation requirements is limited”. Fifth, if this last category of material was admitted it is a matter about which the respondent would wish to cross‑examine Mr Shaor. These factors collectively mean that it is not appropriate to admit the further material on appeal and the application to do so will be dismissed.
So far as the capacity to obtain a visa is concerned, the evidence was limited to Mr Shoar’s statement that he would have applied for visas using the ESTA (Electronic System for Travel Authorisation) online application facility and that, because he was an Australian citizen, a visa would have been granted. If a more prolonged stay was required then he would have sought an extension on medical grounds and would have been able to seek support from relatives and friends who lived in Dallas, Texas. Although the appellants assert that there was no requirement to adduce further evidence on this point given that the evidence was not challenged, this does not demonstrate that the primary judge erred in adopting the approach that he did. His Honour’s reasons simply indicate the potential for difficulties to arise in relation to immigration having regard to the limited nature of the evidence given and the absence of evidence from any immigration authority on the point. Having regard to the circumstances of the appellants and the limitations on the evidence, the recognition of some uncertainty was appropriate.
Ground 1(e) - Effect of counselling
This ground of appeal challenges the primary judge’s conclusion that the effect of counselling was unknown and may have had an effect on the appellants’ attitude towards termination.
His Honour, once again, simply recognised that there remained uncertainty about the effect of counselling: “It cannot be said what the effect of counselling would have been”; “What is unknown is if counselling, which they say they should have had, would have had an effect on them…”. These uncertainties were matters which his Honour took into account in reaching his conclusion that the appellants had failed to establish on the balance of probabilities that they would have obtained a termination had it not been for the breach of duty.
The point at which the counselling would have occurred would be from 22 September 2011 when the appellants should have been informed of the possibility of a TOF. The evidence of the appellants was that there had been a discussion with Dr Robertson about the possibility of selective termination in the context of a possible heart condition. The appellants were clearly well‑educated and intelligent people. Mr Shaor had experience of a niece with severe disabilities. Ms Nouri had experience of a disabled cousin. Prior to the pregnancy they had intended to return to live in Sudan.
The submissions of the appellants pointed to the evidence of Dr Farrow, a general and paediatric surgeon engaged by the appellants, who expressed the opinion that: “… I believe it is likely that the parents, if provided with full information, may have chosen a selective twin termination.”
The weight to be given to this statement is affected by its ambiguous terms (“may”) and the uncertainty as to precisely the factual scenario upon which Dr Farrow was giving his evidence. The evidence of Dr Challis and Dr Cole as to the advice that they would have given indicates that it would essentially be reassuring in light of the uncertainties of diagnosis.
The circumstances in which any counselling would have occurred would have been that there was a possibility of a TOF. That possibility was described by Dr Cole as “nothing more than a question mark at that point in time”. It would have been identified that if there was a TOF the prognosis was generally good. The counselling would have recognised that there was (according to the evidence of Associate Professor Nicholas Evans, a neonatal specialist) a 10% chance that if there was a TOF it was associated with the more serious condition of the VACTERL association. The counselling would also have identified that any selective termination would not be supported by the doctors at the hospital or the ethics committee at the hospital and in those circumstances, unlikely to be available anywhere in Australia. If the appellants were driven enough to identify a practitioner such as Dr Hern who may perform a termination in those circumstances, then the counselling would have explored the risks for Ms Nouri in undertaking such long distance air travel at that stage of her pregnancy and any processes required to make that possible.
How this process would have worked out is uncertain. If the appellants were extremely driven and determined to achieve a selective termination because of their aversion to the risk of disability, then it may have been that no explanation of the range of considerations involved would have affected that determination. However, given the uncertainty of the diagnosis, the late stage of the pregnancy and the content of the advice that they would have been given, there is a real prospect that they would not have pursued in a determined manner a course different to that suggested by their treating doctors. They were not immune to the advice of experts. They had accepted the advice of Dr Murphy, the paediatric cardiologist that what was seen on the ultrasound was a case of “variable normality” of the heart. They accepted his advice that there was “no golden guarantee in life”. Ms Nouri gave evidence that at the time she trusted Dr Robertson, Dr Tan and Prof Ellwood. The appellants were sophisticated enough to recognise the different expertise of the specialists and hence were reassured by the expertise of Dr Murphy even though Dr Robertson expressed doubts about his opinion. This illustrates that there was at least a significant prospect that notwithstanding the possibility of a TOF they would not have embarked upon the complex, difficult and risky logistical exercise of arranging and then implementing a selective termination in the United States of America.
Ground 1(f) - Hindsight bias
This ground of appeal attacks the finding (at [423(k)] and [426] of the primary judge’s reasons) that the evidence of the appellants that they would have sought a termination is affected by hindsight and the knowledge of the disabilities that have affected Saba.
The appellants contended that the subjective features of the appellants referred to in the primary judge’s judgment were not adequately considered by his Honour when considering the response of the appellants to counselling and the likelihood that they would have overcome the obstacles to a termination.
It is clear that his Honour had regard to the personal circumstances of the appellants. He made clear reference to them in his reasons. He was obviously very conscious of those personal circumstances when considering the critical issue of causation. The primary judge had the benefit of seeing both appellants give evidence and could form some impression of them. The ground of appeal invites this court to reach a different conclusion about the weight that should be attributed to those personal circumstances in determining whether the appellants had established causation.
The primary judge did not err in adopting the approach that he did. The circumstances of the case were such as to necessitate careful consideration of whether there was a hindsight bias in the appellants’ evidence that they would have sought out a selective termination in the circumstances that they faced: see the comments of McHugh J in Chappel v Hart [1998] HCA 55; 195 CLR 232 at [32] n 64. There were clearly objective factors which weighed in their favour: their education and intelligence, Ms Nouri’s medical‑related qualifications, the particular personal experience of Mr Shaor with his disabled niece and of Ms Nouri with her disabled cousin, Mr Shaor’s past experience in travelling outside Australia in order to obtain medical treatment for his mother and the couple’s preparedness to spend $18,000 for private hospital care associated with the birth of an earlier child. These were objective matters which supported the statements in the appellants’ evidence about their desire to avoid a child with disabilities and their preparedness and capacity to seek a selective termination overseas. However, in assessing those statements as to their likely decision in a hypothetical situation that, due to the negligence of the defendant, didn’t arise, it was clearly open to take into account the appellants justified anger at the treatment they received and the tragic circumstances that they now face in their lives. His Honour made specific reference to his impression that they were parents “who had been overwhelmed by the tragedy both as it affected their daughter and the rest of the family”. He referred to his observations of the distress suffered by Ms Nouri during the course of her evidence. The transcript of that part of Ms Nouri’s evidence makes it clear that she was upset at the manner in which she had been treated by the defendant’s employees and the failure by the respondent or it’s employees to admit the mistake. His Honour was clearly taking into account and giving weight to the effect of hindsight upon the evidence of the appellants that they would have decided to proceed with a selective termination and, notwithstanding the difficulties and risks associated with that course, would have found a way to achieve a termination.
Conclusion on causation grounds of appeal
Notwithstanding the matters put forward by the appellants, there is no error in the conclusion ultimately reached by the primary judge. It is certainly theoretically possible that a person in Ms Nouri’s position, with an extraordinary degree of determination, effort and organisation, could have achieved the outcome of a selective termination. However, the absence of a firm diagnosis, the lack of encouragement that she would have received from her treating medical specialists, the need to locate and decide to be treated by a suitable practitioner in the United States, the risks of travel to the United States to both herself and the healthy twin, the logistical hurdles that would need to be overcome in getting to and from the United States, the significant expense that would be involved in such an exercise and the shortness of the time available mean that the balance of probabilities is not in favour of her having achieved that outcome.
For these reasons there was no error on the part of the primary judge in reaching the conclusion that he did. That was that, notwithstanding the negligence of the respondent on 22 September 2011, the appellants had not proved on the balance of probabilities that had proper advice been given they would have terminated Twin B and hence avoided the loss and damage that they have now suffered. That conclusion is fatal to the appeal.
Grounds of appeal going to damages
The relevant grounds of appeal were as follows:
2.His Honour’s findings in respect to damages were vitiated by error for the following reasons:
(a) His Honour erred at [434] in finding the plaintiffs were not entitled to an award for general damages.
(b) His Honour erred at [449] in failing to award economic loss including the cost of raising Saba beyond Saba’s 18th birthday.
These grounds of appeal raise two issues.
The first is whether or not the parents of a disabled child are entitled to general damages to compensate them for the burden of raising a child with disabilities. An award of damages was made by de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. In Neville v Lam(No 3) [2014] NSWSC 607; Aust Torts Reports 82-176 Beech-Jones J, in obiter dicta, considered that to make such an award would be inconsistent with the decision of a majority of the judges in Cattanach v Melchior [2003] HCA 38; 215 CLR 1.
The second is whether or not parents of a disabled child are limited in the damages that may be recovered for negligence to the period up until their child becomes an adult at the age of 18 or whether they may recover damages for the whole of the period during which the evidence establishes they are likely to be caring for their child. In Waller v James [2013] NSWSC 497; Aust Torts Reports 82-130 at [277]-[284] Hislop J, in obiter dicta, referred to a number of authorities concerning the scope of such damages. His Honour considered the issue to be an open one to be determined on the basis of policy considerations. He indicated that he would not have awarded any damages beyond the age of 18 years. The primary judge followed that approach, setting out the relevant part of Hislop J’s reasons. The appellants contended that there should be no such limitation on recovery in the circumstances of this case.
In light of the conclusion that we have reached in relation to liability, these issues will not be determinative. Each raises fundamental issues about the scope of damages in negligence cases relating to the birth of a child with disabilities. In our view it is not appropriate to express by way of obiter dicta conclusions in relation to these two issues. They should be determined in a case in which the conclusions reached will affect the outcome of the case.
Orders
Having regard to the conclusion reached as to the admissibility of further evidence (see [90] above) and the outcome of the appeal (see [104] above) the orders of the Court are:
1. The Application in Proceeding dated 28 October 2019 is dismissed with costs.
2. The appeal is dismissed with costs.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Rangiah. Associate: Date: 13 February 2020 |
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