Nouri v Australian Capital Territory - [2020] ACTCA 1

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 Jovanovic v The Queen [2015] ACTCA 29 Neville v Lam (No 3) [2014] NSWSC 607; Aust Torts Reports 82-176 Veivers v Connolly [1995] 2 Qd R 326 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACTCA 1
Decision Date: 13 February 2020

CaseChat Overview and Summary

The appeal concerned a claim for medical negligence brought by the appellants, the parents of a child born with a tracheo-oesophageal fistula (TOF), against the Australian Capital Territory, which operated the hospital where the child was born. The central dispute revolved around whether the hospital owed a duty to inform the parents of the possibility of a TOF, and if so, whether the failure to do so caused the child's birth defects. The matter was heard on appeal by Murrell CJ, Mossop and Rangiah JJ.

The primary legal issues before the court were: first, whether the hospital breached its duty of care to the appellants by failing to inform them of the possibility of a TOF; second, the date upon which such a duty, if it existed, arose; and third, whether the primary judge erred in finding that causation had not been established. Specifically, the court had to determine if the appellants had proven that, had they been informed of the possibility of a TOF, the mother would have undergone a selective termination of one twin in the United States of America.

The Court of Appeal affirmed the primary judge's finding that causation had not been established. Their Honours reasoned that the appellants bore the burden of proving, on the balance of probabilities, that the mother would have travelled to the United States for a selective termination had she been properly informed of the risk of TOF. The evidence presented did not satisfy this burden of proof, as it did not demonstrate a sufficiently strong likelihood that such a decision would have been made. Consequently, the appeal was dismissed.

Orders

Orders of the court

See [110]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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