Nouri v Australian Capital Territory
[2018] ACTSC 275
•28 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nouri v Australian Capital Territory |
Citation: | [2018] ACTSC 275 |
Hearing Dates: | 27 September 2017 – 28 September 2017; 3 October 2017 – 19 October 2017; 23 October 2017 – 24 October 2017; 7 February 2018 – 8 February 2018; 27-31 August 2018 |
DecisionDate: | 28 September 2018 |
Before: | Elkaim J |
Decision: | Judgment for the defendant. Plaintiffs to pay defendant’s costs. |
Catchwords: | TORTS – NEGLIGENCE – where a child was born with significant disabilities – whether the parents of the disabled child had been or ought to have been warned about the prospect of the condition – content and scope of the duty of care – causation – whether a termination would have been available – whether a termination would have occurred |
Legislation Cited: | Civil Liability Act 2002 (NSW) s 5D(1) Civil Law (Wrongs) Act 2002 (ACT) ss 42, 45 and 46 |
Cases Cited: | Australian Taxation Office, ATO Interpretative Decision, 2003/617, 15 July 2003 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 Fox v Percy [2003] HCA 22; 214 CLR 118 Gaynor N v Warrington Health Authority [2003] Lloyds Rep Med 365 Groom v Selby [2002] Lloyds Rep Med 1 Mason v Demasi [2009] NSWCA 227 Meadows v Khan [2017] EWHC 2990 (QB) Neville v Lam (No 3) [2014] NSWSC 607 Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 Parkinson v St James & Seacroft University Hospital NHS Trust [2000] QB 266 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Veivers v Connolly (1995) 2 Qd R 326 Waller v James [2013] NSWSC 497 |
Parties: | Einas Nouri (First Plaintiff) Musab Shaor (Second Plaintiff) |
Representation: | Counsel Mr M Cranitch SC, Mr A Campbell and Ms U Okereke-Fisher (4 and 5 October 2017) (First and Second Plaintiff) Mr D Higgs SC and Ms K Sant (Defendant) |
| Solicitors Gerald Malouf & Partners (First and Second Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 358 of 2013 |
ELKAIM J:
Introduction and summary of findings
There are two plaintiffs in this matter. Although they have different surnames, they are a married couple. They are the parents of Saba Nouri, who was born on 3 November 2011 with severe disabilities. For convenience, I will refer to the first plaintiff as Ms Nouri and the second plaintiff as Mr Shaor. During the antenatal stage, Saba is variously referred to as Twin 2 or Twin B.
The defendant is effectively the Canberra Hospital and its staff.
Saba’s disabilities have been categorised as VACTERL association. This refers to abnormalities in the following areas: vertebral, anorectal, cardiac, tracheao-esophageal, esophageal, renal and limb. In addition, Saba suffers from developmental delay, although this is probably a product of events that occurred after birth.
A trachea-esophageal fistula (a “TOF”) is an abnormal connection between the oesophagus and the trachea. Esophageal atresia is a condition in which the oesophagus ends in a pouch instead of connecting to the stomach.
By way of brief summary the plaintiffs’ case is that the hospital should have provided them with certain information. Had that been done, the pregnancy of Twin B (and if necessary Twin A) would have been terminated and the extensive costs associated with Saba’s upbringing would have been avoided.
The plaintiffs said the failure to provide the information was a breach of the duty of care the defendant owed to the plaintiffs. The defendant denied that there was a breach of the duty owed to the plaintiffs and added that if there was a breach, the breach did not cause the loss claimed.
The central point on breach of duty was whether or not information about Twin B’s condition (or potential condition on birth) was disclosed to the plaintiffs. The central point on causation was whether the plaintiffs would have, or could have, secured a termination at the late stage in the pregnancy when the information should have been supplied.
A significant point on damages was whether the losses should be calculated to the extent of Saba’s agreed life expectancy of a further 31 years, or until she reached the age of 18. Effectively almost every aspect of the damages claim was challenged. The plaintiffs’ assessment of about $9 m was countered with an assessment of about $53,000.
As will be seen below I have found that:
(a)The defendant breached its duty of care.
(b)The plaintiffs failed to prove their damages were caused by the breach.
(c)If the plaintiffs had succeeded, the damages would have been assessed at $1,813,807.
(d)The calculation of damages was based on the loss not extending past Saba’s 18th birthday.
Background
As at the beginning of 2011, the plaintiffs had two children. Ms Nouri became pregnant again on or about 20 February 2011. The pregnancy was unplanned. The plaintiffs resolved to proceed with the pregnancy but, on their case, did not want a child with a disability.
On 8 July 2011, Ms Nouri had an ultrasound at a private clinic in Canberra, National Capital Diagnostic Imaging (NCDI). She was informed that she was pregnant with twins. The plaintiffs were prepared to terminate the pregnancy if either twin was likely to be disabled. This resolution included a termination, if necessary, in respect of both twins.
NCDI was concerned about the condition of one fetus. The plaintiffs were referred to the Fetal Medicine Unit at Canberra Hospital (the FMU) to investigate the health of Twin B.
According to the referral from NCDI dated 8 July 2011 (Exhibit B), the ultrasound disclosed that:
Twin B corresponds to 18 weeks 4 days amenorrhea size.
Head circumference: 15.73 cm 18 weeks 5 days
Abdominal circumference: 13.08 cm 18 weeks 0 daysFemur length: 2.98 cm 19 weeks 0 days
The discrepancy in biometry between the two twins is significant although not significantly different from the gestational age of 19 weeks 5 days from the LMP.
Twin B has a two vessel cord and this is the likely cause of the growth restriction in this twin.
The foetal heart in twin B also appears slightly larger than usual with poor visualisation of the interatrial septum. I feel that this twin needs further expert evaluation and I’ve referred her to the foetal medicine unit for further assessment.
No other definite abnormality is seen.
The first appointment at the FMU was on 15 July 2011. An ultrasound was carried out and the plaintiffs spoke with a Dr Tan, a trainee obstetrician. He recommended an amniocentesis test. The test was performed. Its purpose was to identify chromosomal abnormalities and fetal infections. Down Syndrome is an example of a chromosomal abnormality.
The plaintiffs say that the ultrasound on 15 July 2011 revealed abnormalities in Twin B. There is little dispute about this although the defendant would probably characterise the findings as anomalies rather than abnormalities. The gestation term was then 20 weeks and 5 days.
Following this first consultation, the plaintiffs’ case is that they were never given full and correct information about the condition of Twin B. They said that, had the correct information been given, they would have elected to terminate the pregnancy. Their first choice would have been to only terminate the pregnancy of Twin B. This is called a selective termination.
However, if necessary, they would have terminated the pregnancy of both Twin A and Twin B. A termination is also referred to as feticide. The plaintiffs’ say the failure to inform was a breach of the hospital’s duty of care owed to them.
The plaintiffs say that their personal experiences had made them very alive to the difficulties faced in raising disabled children, such that they would have had no hesitation in undergoing the termination. In addition, they pointed out that the pregnancy was unplanned and that they had a right to choose to plan their family as they desired.
There was no dispute that the hospital owed a duty of care to the plaintiffs. The defendant accepted that whatever the content of the duty, it was owed to both the mother and the father, as parents of Saba, and not only to the mother who was the FMU’s patient.
A fundamental issue is the nature and content of the information provided to the parents and when, if at all, it was provided. This is a credit issue and is dependent on whether I accept the evidence of the plaintiffs or that of the defendant, given through its various witnesses. Mr Cranitch SC, for the plaintiffs, confirmed in the course of the hearing that this was the extent of the contest on breach of duty (T 384 – T 385). Mr Cranitch SC also confirmed that there was no allegation of negligence on the part of the FMU other than the failure to inform (T 384).
If breach of duty was established, causation was strongly contested. A major issue is whether the plaintiffs could have terminated the pregnancy even if they had been provided with the information that would have led them to choose a termination. In general terms, a termination can be carried out, with little risk, up to 20 weeks’ gestation. In Australia, subject to some differences between the States and Territories, any termination in a public hospital, after 20 weeks’ gestation, requires the permission of an ethics committee.
The plaintiffs say that, in the circumstances of this case, they would have obtained the necessary permission. In addition, they say that if the permission had not been forthcoming they would have travelled elsewhere, probably to the United States of America (the USA), where the termination would have been available. They would have been prepared to make the journey and would have been financially able to incur the necessary expenses.
The plaintiffs’ claim for damages was made under the following heads: general damages; past expenses incurred in caring for Saba; the cost of the future care of Saba; and past and future economic loss suffered by the plaintiffs.
The claim for general damages was specifically expressed to not include a claim for nervous shock.
It was accepted that a claim for gratuitous services for past care was not available.
Other than a concession that a duty of care was owed by the hospital to the plaintiffs, the defendant contested the claim at almost every level. The content of the duty was in dispute, causation was in dispute and most elements of the damages claim were challenged. Some parts of the damages claim, like general damages, were disputed both as to entitlement and quantum.
Saba’s life expectancy was initially in issue, but was later agreed at 31 years from the present.
Initially the costs of future care did not seem to be heavily contested because the plaintiffs relied on the report of Ms Moylan, an occupational therapist retained by the defendant. However, following evidence given during the hearing, including the viewing of a short video, the defendant’s position changed so that it effectively withdrew its reliance on its own report.
Ultimately the defendant agreed that Saba required 24-hour care.
The witnesses
The first witness was the second plaintiff, Mr Shaor. He was born in Sudan in 1975. He has five siblings. His parents were well-off and, notably, frequently travelled to Egypt for medical treatment.
My summary of his, and other, oral testimony should not be regarded as being a substitute for the transcript. Rather, it simply highlights portions of the evidence that I think deserve specific mention.
Mr Shaor attended high school and then, in 1995, entered a military college. He hoped to be an officer. He did not finish the course because he took a different political view to the Sudanese Government. In 1997, he completed an accounting degree at a university in Sudan.
In 1997, Mr Shaor was detained for about six months as a result of his political views. During his detention he developed Post-Traumatic Stress Disorder (PTSD). Following his release, he travelled to Egypt for treatment. He also required some treatment for his knee.
Mr Shaor remained in Egypt for about three years. He was supported by his family both emotionally and financially. A contribution was also made towards his treatment by the United Nations High Commissioner for Refugees (UNHCR).
Mr Shaor had a niece with severe disabilities. The child required full-time care until her death in 2014. He noticed the toll it took on the family.
Mr Shaor came to Australia in 2001 with his brother, Luay Shaor. The migration to Australia was arranged through the UNHCR on the basis of Mr Shaor being a refugee. An application had also been made for him to reside in the USA, but this was rejected. Mr Shaor said that it was rejected because he revealed that he was familiar with the use of guns, having received military training.
Mr Shaor and his brother were initially located in Tasmania. His brother moved to Sydney, where he established a construction business. While in Tasmania, Mr Shaor carried out seasonal agricultural jobs. He also continued his treatment for PTSD at the University of Tasmania clinic. He was on antidepressant medication, which he took for about two years. He said that he continues to suffer from PTSD. It is a condition that never ceases.
In 2003, Mr Shaor returned to Sudan where he met his future wife, Ms Einas Nouri. They were married in November 2004 and came to Australia together in early 2005. By this time they had obtained jobs with the Saudi Arabian Cultural Mission. Mr Shaor was employed as an auditor. His wife was employed as an academic advisor. They were based in Canberra.
The plaintiffs had their first child, Al-Mohammed, in January 2006. He was born at Canberra Hospital. While there were no complications with the birth, Ms Nouri suffered from Postnatal Depression. In addition, the plaintiffs were not happy with the subsequent treatment that Ms Nouri received for septicaemia, which had developed after the birth of their son. Ms Nouri also developed severe back problems after this birth.
The family went to Sudan for a short period and returned with Mr Shaor’s mother, who came to Australia to assist with the new child. She remained in Australia for about a year. Ms Nouri became pregnant again in early 2008. The pregnancy was terminated at about seven to nine weeks’ gestation because Ms Nouri was concerned about her back pain. This termination effectively put an end to the defendant’s assertion that, as a Muslim, Ms Nouri would not have undergone a termination of a pregnancy.
In 2009, Mr Shaor returned to Sudan. He volunteered at a children’s cardiac facility. He assisted with the funding of a child to travel to Italy for heart surgery.
Ms Nouri became pregnant again in 2009 and delivered a daughter, Safinaz, on 18 March 2010 at Calvary Hospital. The plaintiffs chose a private hospital because they had engaged a specialist, Dr Tam, and wished to have access to him as required. This was a consequence of their experience of Ms Nouri contracting septicaemia after the first birth. At this stage, the plaintiffs were not insured and paid the costs associated with the birth personally. This included an operation to deal with postpartum bleeding. The total cost incurred was about $18,000. Mr Shaor’s mother again came to Australia to assist.
Mr Shaor travelled to Sudan in June 2010. The political climate had improved and he was invited by the Government to attend an investment conference. After about 10 days, he was informed that his mother was ill. He promptly returned to Australia. When he arrived, his mother was in Canberra Hospital on a saline drip. She had liver problems and was in and out of hospital over the next few months. In December 2010, she lapsed into a coma.
Mr Shaor said that the doctors had informed him that a liver transplant was not available in Australia because of his mother’s visa status. After his mother came out of the coma, Mr Shaor made some enquiries about the possibility of obtaining treatment in Germany. He contacted a clinic that specialised in stem cell transplants.
Mr Shaor made arrangements with XCell-Center. He initially transferred a deposit of €1,000 to the clinic and, subsequently, as part of a visa application, made a further payment of €4,000. The total cost of the treatment was €9,925 (Exhibit P). Mr Shaor travelled to Germany with his mother, wife and two children.
After spending about four days at the clinic, Mr Shaor’s mother, and the family, spent a further 15 days in a hotel in Germany. They then travelled to Khartoum, where Mr Shaor continued his involvement in a business venture concerning the development of some residential buildings.
The purpose of this, and other like evidence, was to demonstrate that the plaintiffs were used to, financially able to, and prepared to, travel abroad for medical treatment.
In January 2011, the plaintiffs informed the Saudi Arabian Cultural Mission that they wished to resign from their employment. This was to enable Mr Shaor to pursue a commercial venture in Sudan. The Cultural Attaché persuaded Mr Shaor not to resign but, rather, to take unpaid leave.
While the family were in Sudan, Ms Nouri told Mr Shaor that she thought that she was pregnant. The plaintiffs returned to Australia with the intention of having the child. They intended to return to Sudan after the pregnancy, as they thought it would be easier to raise a large family with the domestic and family assistance that was available to them in that country.
Mr Shaor enrolled in a Bachelor of Politics and International Relations at the University of Canberra when he returned in 2011. He intended to complete one semester and then, armed with the credits of the subject he had completed, continue the degree in Sudan.
Upon returning to Australia, Ms Nouri consulted her general practitioner, Dr El Sherif. He referred her for an ultrasound at NCDI. The appointment was on Friday 8 July 2011. The length of gestation was then 19 weeks and 5 days. Following the ultrasound, the plaintiffs were informed that Ms Nouri was pregnant with twins. They were pleased with the news. However, Dr Lomas informed them that one of the twins had a single umbilical artery, which might indicate a heart problem. They were referred to the FMU and were informed that they would be contacted. They were also told that one twin was a boy and the other was a girl. The potential problem was with the female twin.
The plaintiffs did not hear from the FMU on 8 July 2011 or in the early half of the following week. Mr Shaor made a number of attempts to contact the FMU to no avail.
The plaintiffs knew of a Sudanese doctor who worked at Canberra Hospital. They contacted this doctor, Dr Latif, and asked him to see if he could get in touch with the FMU about their appointment. Dr Latif suggested that a copy of the NCDI report from 8 July 2011 be faxed to the hospital (Exhibit B). An appointment was then made for the following morning on 15 July 2011.
On 15 July 2011, gestation now being 20 weeks and 5 days, the plaintiffs saw Dr Tan. A further ultrasound was carried out. Dr Tan asked the plaintiffs what they had been told. They related the information that had been provided to them at NCDI. Dr Tan said that a single umbilical artery was associated with a chromosomal abnormality. He suggested an amniocentesis test. The plaintiffs agreed and the test was carried out. They were told that if any abnormality was found, they would be informed.
The next appointment at the FMU was on 25 July 2011, gestation now being 22 weeks and 1 day. The plaintiffs had received no word about the results of the amniocentesis test. On this occasion the plaintiffs saw Dr Robertson, the Director of the FMU.
Dr Robertson confirmed that the amniocentesis test result was negative and another ultrasound was carried out. No suggestion of any abnormality, other than a cardiac abnormality, was raised. No mention was made of Twin B’s abdominal circumference or about the length of her femur, despite appearing as possibly abnormal on the Wellbeing Report, dated 15 June 2011 (Exhibit 1, page 82).
This is a convenient point at which to note that ‘abdominal circumference’ does not relate to the size, or even presence, of a stomach. It is a measurement of waist or ‘belt’ size. The entries in relation to abdominal circumference are not as relevant to the main issues in this case as might have appeared at first sight.
During the ultrasound, Dr Robertson said that she would organise a cardiac test in Sydney. She said that a selective termination was possible if one of the twins was suffering from a heart condition. The conversations with Dr Robertson about termination should be noted here:
MR SHAOR: …She said organised (indistinct) to go to Sydney to see whether there is something wrong with the heart or there isn’t and then I say to her if the heart condition be confirmed in Sydney then (indistinct) the baby is an option available. She looked at me she said will you consider this option? I said yes and she said I agree with you because the heart condition which we suspect carries the risk or actually high risk of cardiac failure for the foetus.
MR CRANITCH SC: Of what?
MR SHAOR: Cardiac failure for the foetus and it is always better to lose one baby than it is both of them.
MR CRANITCH SC: So you discussed with her effectively selective termination?
MR SHAOR: Yes…And she said we talk about it when you come back from Sydney, it has been confirmed.
MR CRANITCH SC: What did you understand from that conversation about the availability of termination of at least one of the babies?
MR SHAOR: It’s available, it was available.
MR CRANITCH SC: Thank you. Did she talk to you on that occasion about anything else that had been disclosed then on the early ultrasound?
MR SHOAR: Not at all.
MR CRANITCH SC: Did she talk to you for example about the abdominal circumference?
MR SHAOR: No.
MR CRANTICH SC: Did she talk to you about the leg length of the femur?
MR SHAOR: No.
MR CRANITCH SC: Nothing?
MR SHAOR: Nothing.
MR CRANITCH SC: Did she show you the results of the ultrasound and explain it to you?
MR SHAOR: No, no, no.
MR CRANITCH SC: The only conversation so far as you can recall was about the cardiac condition and the possibility of terminating one of the twins?
MR SHAOR: Yes.
MR CRANITCH SC: Did this change the discussion that you and your wife had had earlier about terminating both if need be?
MR SHAOR: No…
MR CRANITCH SC: So that was always an option so far as you were concerned?
MR SHAOR: It was always an option.
MR CRANITCH SC: Did you raise that with Dr Robertson?
MR SHAOR: No, no.
MR CRANITCH SC: The only discussion was terminating one of the foetus?
MR SHAOR: Yes.
MR CRANITCH SC: Was it your understanding on that occasion that the only risk about the pregnancy proceeding was this cardiac condition?
MR SHAOR: Yes.
The plaintiffs understood that a termination was available. The plaintiffs had undertaken a previous termination in the Australian Capital Territory and had no reason to believe that the procedure was not available.
It is very important to note here that the discussion about termination arose from the heart condition. It was not ‘generalised’ to include any abnormality. This is to be contrasted with the opening of the case, where it was stated:
What is the thrust of the case is the plaintiffs will say that had there been any abnormality whatsoever they would have had a termination selectively if possible but if inevitably both twins had to be aborted, both twins. (T 2.28)
Now, the plaintiffs will say they had a conversation when this was disclosed to them with Meiri Robertson, a doctor at the hospital, and told her if there was any abnormality they'd wish to abort the child or children if need be. (T 2.41)
I’m not sure what her specialist qualifications in fact were, but your Honour will hear from the plaintiff that he had this conversation with Dr Robertson that if there was any abnormality at all they would seek a termination of the pregnancy and he understood from her reply that she agreed with that as a proposition. (T 12.15)
This was confirmed in the cross-examination of Mr Shaor:
MR HIGGS SC: Can you repeat that, sorry?
MR SHAOR: When we talked about the termination, [Dr Robertson] said “I agree with you and the abnormality which we suspect is a heart – there is a high risk of cardiac failure or heart failure and it is better to lose one baby than lose both of them”
MR HIGGS SC: This is something that she said on 25 July?
MR SHAOR: That is what she said.
MR HIGGS SC: Beforehand?
MR SHAOR: Yes.
MR HIGGS SC: As I understand your evidence, that was in relation to a discussion about termination of pregnancy. That was it. That was the whole of the conversation that you had with her on this occasion?
MR SHAOR: Yes.
MR HIGGS SC: In terms of anything to do with the possibility of terminating both twins or selective termination or anything of that sort to do with termination, this on your evidence is the sum total of what was said in that regard between you and her at the time?
MR SHAOR: Can you repeat the question, please?
MR HIGGS SC: That was the whole of what she said in respect of anything to do with termination at all?
MR SHAOR: Yes.
MR HIGGS SC: For that matter, that specifically was the only conversation that you allege that was ever had with her about the possibility of termination. Is that right?
MR SHAOR: No, we had said on 6 September, when she said because of the heart and then I repeated the question that the heart was cleared by Sydney. She said “I’m not concerned with it here” and then I bent down – I was standing up. I bent down and said “What do you mean?” She said “I’m not agreeing with this from the beginning and I have been planning to send you to Sydney Hospital to see somebody else”. They I say to her “Look, we have made our view clear, Mary”. That’s what I said.
I will return to Ms Nouri’s overall evidence below, but in relation to this important aspect, the relevant passages from her evidence are as follows:
MR CRANITCH SC: Did you say or have any discussion with [Dr Robertson] about what you would do if the baby was abnormal?
MS NOURI: Yes, yes, I said to her it’s really [indistinct] I asked her if the baby is [indistinct] she said yes and she agreed but it would be a very good decision because normally it would be cardiac failure as well.
MR CRANITCH SC: So were you prepared to wait until you got an opinion from Sydney before going ahead with an abortion on that occasion?
MS NOURI: Yes.
MR CRANITCH SC: Was there any discussion about whether you would terminate one twin or both twins with Dr Robertson?
MS NOURI: Yes, she said it’s possible one baby live.
…
MR HIGGS SC: Yes?
MS NOURI: She said although the chromosome test were normal we’re still going to transfer you to Sydney to see the foetal cardiologist and I’m going to do that today, do the call today, then my husband ask her if that suspected heart abnormality has been approved by Sydney doctor will the termination be an option, she said yes and I agree with you because such abnormality could carry cardiac failure and losing one baby better than lose both. We talk about this option when you come back.
MR HIGGS SC: Now I know that given that answer I perceive that you might disagree with what I’m about to suggest to you, but I just have to – I’m duty bound to put this to you and tell us whether you agree or not. What I’m suggesting to you is that on that occasion – neither on that occasion nor on any other occasion was there any discussion with Dr Robertson about the prospect of having a termination; do you agree with that or not?
MS NOURI: No.
The evidence from both plaintiffs never met the description stated in the opening.
On 2 August 2011, the plaintiffs saw Dr Murphy, a paediatric cardiologist, at Sydney Children’s Hospital. Dr Murphy carried out an ultrasound. He said that the only problem with Twin B was a variable abnormality. This was of no significance because the heart was structurally sound. He reassured the plaintiffs and told them to go to the beach (T 100.15). They did so.
On 8 August 2011, the plaintiffs attended the FMU. They saw Dr Robertson. She confirmed what they had been told by Dr Murphy. She carried out another ultrasound.
The plaintiffs returned 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 in her right side. Dr Robertson was informed and, on 5 September 2011, carried out a further ultrasound. Dr Robertson said that there was excess fluid around Twin B (polyhydramnios). She suggested an amnioreduction (removal of the excess fluid).
At this appointment, Dr Robertson also advised the plaintiffs that she had not been content with Dr Murphy’s decision “from the beginning”. When asked to explain this comment, she said that she had been planning another referral, this time to a cardiologist at Westmead Hospital. Mr Shaor told Dr Robertson that he had medical insurance which he could access if that would help to speed up the appointment.
On 12 September 2011, the plaintiffs returned to the FMU. Dr Robertson carried out a further ultrasound and Ms Nouri was given steroid injections.
The plaintiffs returned to the FMU on 15 September 2011. The amnioreduction was carried out by Dr Tan, which helped alleviate the pain in Ms Nouri’s right side. Mr Shaor asked if the appointment in Sydney had been arranged. Dr Robertson said that it was in train.
On 22 September 2011, the plaintiffs returned to the FMU and again saw Dr Robertson. On this occasion, Professor Ellwood, a fetal medicine specialist who was head of the unit, observed the ultrasound.
The plaintiffs again asked Dr Robertson about the Sydney appointment and were informed that it was being arranged. No mention was made of Twin B having a small stomach or a possible TOF. There was also no mention of a referral to a geneticist or any other specialist, or of a High Risk Meeting that had apparently taken place in the FMU on 6 September 2011.
On 5 October 2011, a further ultrasound was performed. Enquiries were made about the appointment in Sydney. Dr Robertson repeated 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 plaintiffs provided the staff with a history of Ms Nouri’s condition as they understood it, referring to Twin B’s condition as being the source of the problem. Ms Nouri was discharged the following day. It was suggested that Ms Nouri return to the FMU at an earlier date than already scheduled.
The admission notes dated 15 October 2011 make no mention of a TOF (Ex 1, from page 149).
Dr Robertson saw the plaintiffs again on 18 October 2011 and another amnioreduction was attempted but this was very painful for Ms Nouri so the procedure was stopped.
Enquiries were again made about the doctor in Sydney. Dr Robertson repeated that an appointment was being arranged. The plaintiffs were “fed up” with this oft 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 plaintiffs that it was her intention to admit Ms Nouri to the hospital and then transfer her to Sydney by ambulance. This never took place.
On 26 October 2011, Dr Robertson said that there was no longer any need for a trip to Sydney. She told the plaintiffs that everything was fine and even made a joke about a dairy product.
On this occasion, Dr Robertson asked if the plaintiffs would like Dr Latif to attend the appointment, because she knew that he also spoke Arabic. They replied in the affirmative and he attended. Professor Ellwood also attended, apparently to discuss delivery. The plaintiffs 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.
Professor Ellwood disagreed and said that a natural birth was appropriate. After further discussion, he agreed to speak to Dr Tam, who had attended to Ms Nouri during her previous delivery. The plaintiffs also asked Dr Latif to discuss a caesarean procedure with Professor Ellwood. When they left the meeting, they understood that he would do so and that it was likely that a caesarean birth would occur. They were also expecting the birth of ‘normal’ twins. Other than the cardiac issue, they were never told of any other possible abnormality.
Mr Shaor described his relationship with Dr Latif. He said that, prior to the birth of the twins, the doctor was simply someone they knew in the Sudanese community. Since the birth of Saba, they had become close friends and carried out some financial transactions together. In addition, Dr Latif has provided, and continues to provide, financial help to the plaintiffs.
Under cross-examination, it emerged that there had been a financial transaction involving Dr Latif when Mr Shaor took his mother to Germany. Mr Shaor had needed about $20,000 worth of Euros and they had been made available through Dr Latif. The money was necessary in case a medical emergency arose on the journey to Germany. Mr Shaor later repaid the loan by providing funds to Dr Latif’s family in Sudan.
The plaintiffs were also receiving financial support from family in Sudan and from two friends in Canberra. The latter were providing funds informally, secured by the equity in the plaintiffs’ home.
Following the meeting with Professor Ellwood and Dr Latif, which occurred on 1 November 2011, an ultrasound was arranged for the next day and an appointment made for delivery on 3 November 2011.
At this stage, Mr Shaor said there were no concerns expressed about the health of Twin B.
Mr Shaor was present for the birth. The male baby was delivered first. After delivery, Saba was taken to the Neonatal Intensive Care Unit (NICU). Mr Shaor was surprised when this occurred. He went to the NICU, where he spoke to Dr Latif. He was told that the baby needed some tests and to return to his wife.
The baby was taken to theatre. Later in the day, Mr Shaor met a Dr Simpson and a Dr Angelica. Dr Simpson told him that Saba had a TOF. He drew a diagram to explain the condition. He asked Mr Shaor if he had been informed that this was likely. Mr Shaor replied that he had not been so informed. Dr Simpson observed to Dr Angelica: “They haven’t been consulted about that abnormality”. Dr Angelica shrugged her shoulders. Dr Simpson said:
We need to get involved to counsel the parents… [a]bout the procedure and the side effects of it… What I’m going to tell you now, the most common side effect is leakage. (T 121.6 – T 121.16)
Dr Simpson then had to return to theatre, where he was operating on another patient.
Mr Shaor later spoke to Dr Latif in his office. He explained VACTERL to Mr Shaor, using a whiteboard to assist.
Mr Shaor told his wife that there were some issues but kept the details to a minimum to avoid distressing her. He said the baby needed a simple procedure.
Since birth, Saba has undergone a number of surgical procedures, usually in Sydney. She requires further surgery in the future.
Mr Shaor related one occasion where he was contacted by the head of NICU, Dr Kecskes, who wanted to talk to him about a mishap that had occurred with ambulance arrangements. During this conversation, Mr Shaor complained about his experiences at Canberra Hospital. The doctor responded that Saba should not be brought to Canberra Hospital and observed: “we didn’t know anything about Saba’s condition until Saba was delivered” (T 125.19 – T 125.20).
Mr Shaor said that he has not worked since Saba’s birth. Most of his day is taken up with the care of Saba or her siblings. It is effectively a full-time job, commencing at 5.00 am, when preparations for the day begin. Little time is left for socialising, although it does occur on rare occasions.
Mr Shaor said that after Saba has been bathed and had her various medical issues attended to, he takes her for a walk in order to generate circulation in her limbs. Hygiene is especially important to avoid infections. She can walk unaided but is supervised because she might fall over. It is necessary for her feedbag to be carried. The feeding machine is permanently connected to her through the day. It is also necessary to monitor her oxygen saturation levels, and take appropriate action when the low level alarm sounds. After the walk, Saba is placed on an exercise bicycle for a short time.
Saba’s medical expenses are currently being covered by the National Disability Insurance Scheme (NDIS), but there is still a shortfall of about $350 per month for medications that are delivered through a Percutaneous Endoscopic Gastrostomy (PEG).
Mr Shaor said that he has had some health problems of his own recently and has needed to engage a carer from the Sudanese community. She was paid $45 per hour. He also said that he took antidepressant medication.
Mr Shaor was questioned about his assertion that he spent almost every day at the hospital following Saba’s birth. He was taken to some hospital notes (Exhibit 3) which suggest a much lower level of attendance. He rejected any such inference arising from the notes, saying that he had looked at the notes from time to time and observed omissions concerning attendance. In this regard, I am mindful of the warnings given by Basten JA in Mason v Demasi [2009] NSWCA 227 and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.
I observe here that the FMU’s notes also display a distinct lack of detail and accuracy.
In 2012, Ms Nouri became pregnant again. The pregnancy was terminated because the plaintiffs did not wish to have another child.
Mr Shaor said that he generally agreed with the recommendations made by Ms Moylan, the occupational therapist retained by the defendant. He added, however, that he believed Ms Moylan had been selective in her approach, preferring matters that favoured the defendant.
Under cross-examination, Mr Shaor was challenged about his activities during the day. It was put to him that he visited the Saudi Arabian Cultural Mission more frequently than he had previously suggested. He said he could not remember any precise dates but did accept that he had been there quite often, especially since August 2017. This was to assist the Sudanese Embassy, which was being set up in Canberra. He wrote some letters and ordered equipment on its behalf. He did not have the appropriate software on his computer at home to do these tasks.
Mr Shaor was shown some video footage of his comings and goings to the Saudi Arabian Cultural Mission (Exhibit 6). He accepted that the footage reflected visits to the embassy but could not be specific on the times and dates. He also said that, from time to time, a driver from the Sudanese Embassy would take him home. The footage was not of particular significance other than to perhaps highlight that Mr Shaor was attending the mission more often than he had recalled earlier in his evidence.
Of more significance is that cross-examination revealed that Mr Shaor owed the Cultural Mission about $130,000, a debt which had accumulated from August 2011. This is money that had been deposited into Mr Shaor’s HSBC account and was equivalent to the wage that he would have earned had he been working. He insisted, however, that he had not been working, raising a distinct issue about his credit and the soundness of his past economic loss claim.
Another area of economic loss that came under scrutiny concerned a claim that had been made, but has since been abandoned, for commissions on property sales. The claim was for about $30,000, which Mr Shaor said was a similar amount to the sum he had earned before Saba was born. It was put to him that his tax returns did not substantiate this claim.
There were other indications that Mr Shaor had been working on a part-time basis. The indications include the contents of a letter of particulars from the plaintiffs’ solicitors to the solicitor for the defendant, dated 13 September 2013, and a hospital note in which it is recorded that Mr Shaor said to a staff member that he could not attend the hospital because he was working. Mr Shaor agreed that he might have said this but said it would have been in relation to assisting the Sudanese Embassy and not in regard to any paid work. Mr Shaor said that he had not been paid for his work for the Sudanese Embassy.
Regarding the $130,000 that is owed to the mission, Mr Shaor said that, some years ago, he assisted the then Cultural Attaché, Dr Ali Albishir, with an internal accounting issue concerning a very large sum of money. When, in 2011, the plaintiffs wished to resign from their employment with the mission, the attaché persuaded Mr Shaor not to resign but to take unpaid leave instead. He agreed. When he returned in 2011, the attaché suggested an arrangement, to be secured against the equity in Mr Shaor’s home, whereby he would receive payments equivalent to his wage. He then received a series of payments on a monthly basis said to be equivalent to the salary he had previously received, and also including salary increases.
I suggested to Mr Shaor that this arrangement might be viewed as “unusual”. He responded that the attaché was a sympathetic man and that the arrangement was consistent with his cultural background.
The arrangement was said to have been confirmed in a letter. The letter is no longer available. A new cultural attaché took over in 2013. He stopped the arrangement and the payments ceased.
Mr Shaor was cross-examined about Saba’s capacity to walk. He said that she could walk alone but needed to be supervised. The short video of events on 6 September 2017 suggested that Saba had a reasonable capacity to walk on her own, although the video is too short to draw any firm conclusions (Exhibit 7). The medical reports are united in setting out the degree of disability that she suffers.
Mr Shaor said that Saba had recently been shown to have a narrowing of her oesophagus, which amounted to “10 steps back”. She was encouraged to eat but would quite often vomit if she took food orally. The same applied to her drinking water. He said that some foods were more suitable, like tomatoes, cucumbers, mashed potatoes and squashed “fries”.
Mr Shaor did not think that the 24-hour PEG feeding system could be discarded. If it was not used for a period of time, feeding would need to be increased at other times.
Mr Shaor was asked about the information he had been given by the hospital about Saba’s injuries antenatally. He was taken to a statement that he and his wife had prepared for a medical opinion from Dr Cole. The document suggests that he was told about the possibility of a blocked oesophagus on the day before the delivery. He denied this and said that the statement had been amended. I note firstly, that this proposition is consistent with Mr Shaor’s version and, secondly, that the defendant’s case is not assisted if the disclosure was only one day before delivery.
In addition, Mr Shaor said that an amended statement had been sent to his solicitors because the original statement contained errors. A number of calls were made for this amended statement but it was not produced. However, when Mr Shaor came to be re-examined, he said he had found the statement. The defendant, quite properly, objected to its tender. It was marked for identification so that the defendant’s lawyers could read it and, if necessary, Mr Shaor could be further cross-examined on its contents. It later came into evidence as Exhibit J. Mr Shaor was later cross-examined about the document. He said it had not been prepared in cooperation with his wife. Her signature only appeared at the end because his solicitor had requested that she sign the document.
Mr Shaor was asked about the passage relating to the consultation with Dr Murphy. It was suggested to him that the questions asked of the doctor went beyond enquiries as to Saba’s heart but extended to her condition and generally. He said that they were concerned only with the baby’s heart. Having regard to Dr Murphy being a cardiologist and the parents having been sent to him in relation to a possible heart condition, I thought that his answer reflected a logical response. I accept his evidence in this regard.
Mr Shaor emphasised that termination had only been discussed with Dr Robertson on 25 November 2011 and on one other separate occasion. He also said that the discussion about polyhydramnios had been restricted to it being connected to Twin B’s cardiac anomaly. The mechanics of how the fluid might have accumulated were never explained.
When asked about what he would have done had an abnormality been disclosed, Mr Shaor said that he and his wife would have chosen a termination no matter how late the gestation period. He would have travelled overseas if necessary. He would have sought medical advice on whether it was safe for Ms Nouri to travel but, had that advice been that it was not safe, he would have rejected that opinion unless the doctor could point to a real probability of a risk to his wife’s health. He said that his wife’s history of postpartum bleeding would not have affected the decision to travel.
Mr Shaor said that he had the funds to make the trip, which would have included remaining in the USA until the other twin was born and well enough to return. This may have involved staying in the USA for up to three months. Mr Shaor said that he would have applied for a visa to America through the “ESTA” online application facility. Mr Shaor said that, as he is an Australian citizen, the visa would have been promptly granted. If the family needed to remain for more than three months (being the extent of a visit allowed under the visa) he would have sought an extension on medical grounds. If a prolonged stay was necessary, the family could have sought support from relatives and friends who lived in Dallas.
Mr Shaor emphasised that a termination would have been chosen for “any abnormality, whether simple or not simple” (T 322.10 – T 322.11).
Mr Shaor said that the family’s present intention was to move to Sydney and therefore be closer to anticipated medical intervention. He also hoped that Saba would be able to attend school in Sydney. Saba attended an early learning Centre at Canberra Grammar School in early 2017. The arrangement proved unpractical and ended after about five weeks. I understood there to have been two main problems: firstly, the school required that a parent be on the premises while Saba was in class; and secondly, difficulties arose with her feeding arrangements. It was necessary to cease feeding during class attendance and then compensate with extra feeding through the rest of the day or night. This led to vomiting.
Mr Shaor was asked about his dealings with the FMU. He agreed that, at the first consultation on 15 July 2011, he and his wife had seen Dr Tan and a technician called Debbie (Ms Debra Paoletti) or Tegan. He agreed that Dr Tan had recommended a further ultrasound take place but he said this was because of the baby’s heart. It was not because the baby was very small. He said the size of the baby was not apparent until her birth.
Mr Shaor agreed that an amniocentesis test was suggested and performed immediately. He said Dr Tan had referred to the need for a cardiac scan and that he would arrange an appointment with a Sydney cardiologist. Mr Shaor was adamant that it was Dr Tan, not Dr Robertson at a later time, who undertook to arrange the appointment.
Mr Shaor agreed that Dr Tan had mentioned the possibility of a cardiac issue, but he did not mention a “hole in the heart”. He said Dr Tan had referred to there being a single umbilical artery and this was the reason for the amniocentesis test. Dr Tan also mentioned that there may have been a chromosomal abnormality. He did not include Down Syndrome as an example.
Mr Shaor said that Dr Tan did not mention a short femur or a small abdominal circumference. I note here that the ultrasound reports in Exhibit 1 consistently suggest the presence of a short femur and a small abdominal circumference.
Mr Shaor was taken through all of the consultations at the FMU. Suffice to say that he disagreed with a lot of the suggestions put to him about the events during these consultations. The disagreement extended to the following:
(e)Whether the consultation was with Dr Tan or Dr Robertson;
(f)Whether a sonographer or a doctor had carried out the ultrasound;
(g)Whether any saved ‘shots’ (as in Exhibit 10) were ever shown to the plaintiffs; and
(h)What advice, if any, was given by the doctors to the plaintiffs.
Mr Shaor was adamant about the following in relation to the consultations:
(a)Dr Robertson specifically spoke about termination at the consultation on 25 July 2011. She agreed with the plaintiffs’ attitude to termination;
(b)Dr Robertson was the only person spoken to about termination. This was because she was the person “in charge”;
(c)Dr Robertson would sometimes sing when conducting an ultrasound and discuss the song, or its writer, with the technician;
(d)The plaintiffs were never made aware of a venous drainage problem. It was never suggested the right atrium was larger than the left atrium. A ductus venosus is a shunt that regulates the amount of blood that travels through the fetal heart;
(e)The plaintiffs were never shown any of the ‘shots’ (Exhibit 10);
(f)Dr Robertson always carried out the ultrasound when she was present;
(g)There was no occasion prior to delivery when Dr Carlisle was consulted during a consultation;
(h)The only explanation about the polyhydramnios was that it was caused by Twin B’s heart condition. The plaintiffs were never told that continued monitoring was to discover the cause for the polyhydramnios;
(i)The need for continual monitoring of the pregnancy was because twins were involved. It was not because of a risk of heart failure on Twin B’s part;
(j)The plaintiffs understood that Twin B’s heart had a variable anomaly, but was structurally in good order. Had there been anything more serious a termination would have been chosen;
(k)Ms Nouri did not request an early delivery.
A portion of the cross-examination concerned Mr Shaor’s knowledge of the risk of lung damage when a baby was born prematurely. The defendant’s case, however, was not that Saba’s difficulties arose from a premature birth. This was also not part of the plaintiffs’ case, which is that the likelihood of disabilities were evident during the pregnancy and that this should have been communicated to the plaintiffs.
Mr Shaor was cross-examined about why he did not consult Google about Twin B’s condition, in the same way that he had researched his mother’s condition. He said he did not think there was a need to do so. As far as the plaintiffs were concerned, Twin B had been cleared by Dr Murphy, who they regarded as the senior specialist. After Dr Robertson said that she disagreed with Dr Murphy and was arranging another appointment, this did not lead to a change in the plaintiffs’ position.
Mr Shaor was asked about his adherence to the Islamic faith. Chapter 5 verse 32 of the Koran was quoted to him. He was also taken to some interpretations of this passage to suggest that an observant Muslim would not have allowed a termination to take place late in the pregnancy. Mr Shaor said that he followed the Koran but not necessarily all interpretations of it. He was of the view that terminations were allowed, as evidenced by his wife having had two terminations.
Mr Shaor was also asked about his love for his wife and whether they would have flown to the USA if there was any threat to her wellbeing. He confirmed his love for his wife but emphasised that he would have only made the decision not to fly if he was factually convinced that the risk to her heath was real. His evidence on this point was a little different to that of his wife. She said that she would have made the journey even if advised not to and in the face of a real risk to her health and that of Twin A.
Had his wife chosen not to have a termination, Mr Shaor said that he would have respected her decision.
Mr Shaor pointed out that his wife’s parents owned a private hospital in Sudan. He said that they could have travelled to Sudan for a termination. However, he also said that the standard of medical treatment in Sudan was not of an acceptable standard. This was why his father was currently receiving medical treatment in Egypt.
Ms Lita Giersch gave evidence. She is a retired real estate agent who had come to know Mr Shaor over a number of years. I gathered that her agency was located near a coffee shop frequented by men, including diplomats, who visited a nearby mosque.
Ms Giersch said that, after the twins were born, Mr Shaor was in financial trouble to the extent that he could have lost his home. After being shown a corroborating letter from a bank, she began to provide him with a series of cheques to assist him. In addition, in about 2012, she loaned him a Mazda 6 motor vehicle. This is the vehicle that can be seen in Exhibit 6.
Ms Giersch estimated that, including the value of the Mazda, she had loaned Mr Shaor about $200,000. She had also paid insurances on the vehicle and its registration until she retired.
The relevance of this evidence was not to form the basis for the loaned money being part of the damages claimed, but rather to explain the plaintiffs’ financial state, including entries in the bank statements. Mr Shaor’s financial position was the subject of detailed scrutiny through his cross-examination.
Ms Nouri then gave evidence. Although an interpreter was present, almost all of her evidence was in English. As a general statement, her evidence was consistent with that of her husband, although there are two important points on which it differed. I will return to these below.
Ms Nouri was born in Sudan in 1978. Her father was in the military and the family moved around as he was posted to different locations. Ms Nouri completed high school and commenced university studies focused on histopathology in 1997. The degree was full-time and took five years.
Ms Nouri was diagnosed with depression and took appropriate medication until she felt better, towards the end of 2000. In 2004, she married Mr Shaor. They came to Australia at the beginning of 2005. She found a job with the Saudi Arabian Cultural Mission as an adviser for scholarship students. She was paid about $5,000 per month.
Ms Nouri recounted that she had a cousin who was disabled due to fluid in the brain. Her cousin required 24-hour care and died when she was 14 or 15 years of age. She was also aware of a child of her sister-in-law who needed considerable care. She had seen the effects the disabled children had on their respective families.
Ms Nouri has a thyroid condition which can result in irregular menstrual periods. She first fell pregnant in 2006. She gave birth to a son in December of that year. Towards the end of the pregnancy, and after the pregnancy, she suffered significant lower back pain. As a result, she terminated a pregnancy in 2008, at about 8 weeks’ gestation.
Ms Nouri fell pregnant again in 2009 and, in order to manage her back pain, saw a Dr Tam at the Calvary Private Hospital. Her daughter was born in March 2010.
After the birth of each of the two children, Ms Nouri returned to work. She was entitled to, and took, two months of maternity leave.
The family went to Germany with Ms Nouri’s mother-in-law in 2011. The intent was to then travel to Sudan to reside there. In May 2011, Ms Nouri thought that she was pregnant. A decision was made to return to Australia for the birth of, as then expected, a baby. The clear intent of the family was that, if the baby was likely to be disabled, Ms Nouri would undergo a termination of the pregnancy.
After returning to Australia, the plaintiffs’ general practitioner was consulted. He referred Ms Nouri to NCDI for an ultrasound scan. This took place on 8 July 2011. Dr Lomas, at NCDI, said there was poor visualisation of Twin B’s heart and there was a single umbilical artery. He referred her to the FMU “urgently”.
The FMU did not contact Ms Nouri as expected, so her husband chased up the matter through Dr Latif. She saw Dr Tan on 15 July 2011. Dr Tan asked the plaintiffs what they had already been told by Dr Lomas. Ms Nouri described the poor visualisation and the single umbilical artery. Dr Tan recommended a chromosome test. He said the test could be done that day and posed a risk of 1% above normal of a miscarriage occurring. The test was carried out.
On 25 July 2011, Ms Nouri was introduced to Dr Robertson by Dr Tan. Dr Robertson said that the first result from the amniocentesis test was negative and she expected a follow-up test to have the same result. Dr Robertson was told about Ms Nouri’s experience with histopathology.
Dr Robertson said that she would arrange an appointment with a paediatric cardiologist in Sydney. The question of an abortion was discussed and Dr Robertson agreed with Ms Nouri and her husband that a termination was an appropriate option if Twin B was “not normal”. Dr Robertson made the observation that it was better to lose one twin than both.
Dr Murphy was seen in Sydney on 2 August 2011. He checked both twins because he said that Canberra Hospital often made mistakes in identifying which twin might need examination. Dr Murphy said that Twin B had a normal heart although the ‘connections’ were slightly different. He said that the artery or vein started where it should and ended where it should.
When asked about the wellbeing of the twin generally, Dr Murphy replied that he was only looking at Twin B’s heart and that any other matter should be discussed with the FMU.
Fortnightly ultrasound appointments then continued. This frequency was due to there being twins. Ms Nouri said that at no stage was she told about a difference in size in the twins, that one had a smaller abdominal circumference or a short femur. She was not told that the continuing appointments were necessary because of Twin B’s heart condition.
She said that, generally, the sonographer did the ultrasound although Dr Robertson did it once. After each ultrasound, the only information that was provided was that there was “no change”. Ms Nouri noticed that Dr Robertson would discuss songs and general topics with the sonographer.
Towards the end of August 2011, Ms Nouri felt short of breath and experienced pain in her right side. She reported this to Dr Robertson on 5 September 2011. After an ultrasound, Dr Robertson told her that there was excess fluid in the placenta due to Twin B’s heart condition. She said she was “shocked” at this news. In addition, she said that Dr Robertson told her that she was not content with Dr Murphy’s opinion and was planning to send Ms Nouri to a different cardiologist at Westmead Hospital. Her husband informed Dr Robertson that private insurance was available, in an attempt to speed up the process.
Under cross-examination, Ms Nouri said that Dr Lomas had told her that Twin B’s heart was slightly larger than normal. He had referred to there being “something wrong” with the heart. It was for this reason that she had been referred to the FMU.
Ms Nouri described, in general terms, the same daily routine as that described by her husband. She was asked a number of questions about Exhibit 7, which is the video taken on her husband’s birthday earlier this year. She said that the home she visited was the home of a good friend of her husband. This is one of the significant differences I refer to above. Her husband had said that the friend was a close friend of his wife. She later said that her husband had not been to the house before because the other family had recently moved. I should say that this evidence disturbed me in that it seemed to be plainly addressing an inconsistency that she was aware of.
Ms Nouri denied that, prior to the birth of the twins, she had never been told that Saba’s oesophagus was blocked or narrow. She was told this after the birth.
She also denied that Dr Tan, on 15 July 2011, had mentioned the possibility of an AVSD or of a “hole in the heart”. It was at this stage of her evidence that Ms Nouri became tearful and stated: “if he said he told us that, he’s lying” (T 456.14). He had never said that any cardiac issue might be related to a chromosomal abnormality. Any such abnormality was related to the single umbilical artery. She agreed that Dr Tan said that the heart could not be seen very well at that stage of the pregnancy. He definitely did not mention a short femur or small abdominal circumference.
Ms Nouri described the meeting with Dr Robertson on 25 July 2011. It started off with a discussion of the results of the amniocentesis test. As far as the heart was concerned, Dr Robertson said that she would arrange an appointment with a cardiologist in Sydney. This was when the discussion about an abortion occurred and Dr Robertson said that further discussion would take place after the cardiologist’s appointment.
Like her husband, Ms Nouri denied ever being shown still images from the ultrasound, either on 25 July 2011 or at any other appointment when ultrasounds were conducted. She agreed that Ms Paoletti was present and said Dr Robertson would sometimes take over the conduct of the ultrasound. She was adamant that Dr Robertson generally chatted with Ms Paoletti during the ultrasounds.
Ms Nouri was asked if she trusted Dr Robertson. She said that she did. She was then challenged as to why this trust existed if Dr Robertson was not giving her proper explanations. She said that, as far as she and her husband were concerned, the only matter that was a concern was Twin B’s heart, and they had been reassured by Dr Murphy, and also by Dr Robertson, that there was no abnormality besides an insignificant variation. She said that she had not sought explanations of the medical terms being used by the doctors because she and her husband would not have understood them. They preferred to ask questions in “simple terms”.
During the cross-examination, Ms Nouri became very upset on occasions. She said that Dr Robertson “played that game with my life and my kid’s life”. She said that she was angry “with the whole system”. At one point, I adjourned to enable Ms Nouri to recover from the distress she was obviously feeling. I have no doubt that her distress was genuine.
The details of the conversations alleged by the defendant as having occurred with the doctors were put to Ms Nouri. She agreed with some suggestions and not others. In summary, she adhered to her evidence in chief and denied that any detail had ever been given to her or her husband. There had certainly been no explanation of any condition other than that relating to Twin B’s heart. The discussion of the fetus’ heart was limited. She and her husband were under the impression that the heart condition was an anomaly; it was not an abnormality likely to result in a disabled child.
The concentration on matters concerning the heart gives some validity to the plaintiffs’ claim, in the sense that their complaint is not that the possibility of a heart condition was not disclosed, rather that all of the other potential risks, like TOF, were not mentioned. Ms Nouri denied that there had ever been mention of a small stomach. She denied she had ever been shown a still picture of an apparently small abdomen and she was certain that no one had told her that a small abdomen might relate to a condition called TOF.
Ms Nouri was cross-examined about her attitude to flying to America, notwithstanding that there might have been a risk to her life. She said that, even with such a risk, she would have made the trip. She had been influenced by the experiences in her and her husband’s family. Her answers in cross-examination were consistent with those she gave in chief (T 418.36 – T 418.39).
Ms Nouri was shown a video of her visiting a supermarket with Saba and, later, visiting a family friend on 6 September 2017 (Exhibit 7). She confirmed that the manner in which Saba is seen is to be walking in the video is the way she normally walks.
In relation to the doing up of Saba’s seatbelt, Ms Nouri said that if it was cold or Saba was wet due to urine leakage, she would generally place her in the vehicle, close the door and then do the seatbelt from the inside. Although the questioning was sustained on this point, I do not see it as being a significant issue. I would not accept that she drove off without doing up her daughter’s seatbelt.
The suggestion that Ms Nouri did not have time to do up Saba’s seatbelt was dispelled by close examination of the footage. Although the seatbelt is not done up before the passenger door is closed, there is nothing to suggest that it could not have been done up from inside the vehicle. The vehicle does not depart so soon as to prevent this conclusion.
Ms Nouri said she was a practising Muslim. She described herself as following a “liberal” interpretation of the Islamic faith. She said that she adhered to the Turkish approach, according to which terminations of pregnancy were available until 25 weeks’ gestation and thereafter if justified.
Ms Nouri was asked about the completion of a form in preparation for admission to Calvary Hospital for the birth of her daughter in 2010. The question about depression has been answered in the negative. She said this was because she was not depressed at the time. She said that the answer in respect of smoking was incorrect. When asked what it was that she smoked she refused to answer, stating that there were cultural reasons for her refusal. The cultural reasons were not explained. On one level, it might be said that her refusal to answer was relevant to her credit. On the other hand, I note that she was at the end of a very long cross-examination, during which she had often become upset or visibly distressed. It may be that this was simply ‘one question too many’. I think the latter is the case.
As will be seen below, I have significant concerns about some of the evidence given by Mr Shaor, especially relating to economic loss and financial matters. Nevertheless, I thought his evidence about the interactions with the FMU was generally sound. I did not have similar reservations in respect of Ms Nouri’s evidence. There is obviously a very large financial incentive in their evidence being tailored to achieve a successful result. However, I did not form the impression that this influenced their evidence. They impressed me as parents who had been overwhelmed by the tragedy both as it affected their daughter and the rest of the family.
I do accept that some of the parents’ evidence may have assumed a subconsciously exaggerated flavour. For example, while Dr Robertson may have on occasion hummed a tune while working, I do not accept that she was constantly singing or discussing social matters with other staff. I also do not accept that Dr Robertson never showed and explained ultrasound images to the plaintiffs. These exaggerations have no doubt been influenced by the tragedy that has befallen this family and the need to attribute blame, in particular to Dr Robertson.
As a general observation, I accept the oral evidence of the parents concerning the information supplied by the defendant. For present purposes the most important aspect of this acceptance relates to whether or not the parents were told, before Saba was born, that she might have a TOF.
It was submitted by the defendant that this conclusion was contradicted by the plaintiffs in their statement (Exhibit 40) where, on page 3, it is stated:
Then we got a phone call for the delivery to take place on the 3/11/2011 and we were being asked to come for the final U/S on the 02/11/2011. Before the U/S we saw Dr Ken and he told us it is going to be caesarean and he is going to do it himself, then we went to the other room for the U/S and after the final U/S they told us that baby no2 has got a very small abdomen. He said this could be due to two reasons one of them could be the oesophagus is blocked somewhere or too narrow.
The defendant’s reliance on this passage to show the plaintiffs were told about the TOF before the birth is misplaced, for these reasons:
(a)The conversation occurred the day before delivery, giving the parents no opportunity to act upon it;
(b)It is contradicted later in the statement, on page 4, where it is explicitly stated that the surgeon gave a detailed description of a TOF and this was the first time the condition had been mentioned.
My reasons for rejecting Dr Robertson’s evidence on the key issue of the provision of information about a TOF are set out below.
Following the evidence given by Ms Nouri, the defendant called the members of the FMU to give oral evidence. The first witness was Ms Paoletti. As her Curriculum Vitae (CV) (Exhibit 13) demonstrates, she is a well-qualified sonographer.
She said that, on average, she would see about 10 new patients and five existing patients a day. She has therefore seen some thousands of patients since 2011.
Ms Paoletti said that she was nervous in the witness box. This was evident in the manner she gave her testimony. Nevertheless, I think she did her best to be honest, although at times I felt she was concerned not to give answers that might adversely affect the credibility of her FMU colleagues.
Ms Paoletti, not surprisingly, had little memory of Ms Nouri. However, she could clearly recall two matters. They both related to the first time she met Ms Nouri, which was on 25 July 2011. She said that she had been briefed to conduct the ultrasound with a view to identifying whether Twin 2 had an AVSD (hole in the heart). On examination, she noticed that the umbilical vein drained directly into the right atrium. This was the first time she had seen this abnormality. That was the reason she remembered it.
The second specific memory concerned a conversation she said occurred between Dr Robertson and Ms Nouri. Dr Robertson was explaining an image of the umbilical vein. Dr Robertson asked Mr Nouri if she understood the explanation. She replied that she did understand because she had been a pathologist “in her own country”. Ms Paoletti was surprised and immediately felt ashamed because she had made an adverse assumption about Ms Nouri’s level of education.
Ms Paoletti said that she was sure that Dr Robertson had shown Ms Nouri image 145 in Exhibit 10. Under cross-examination, I think it became apparent that she had chosen this picture because it was the only one that ‘fitted the bill’ of depicting the heart and being coloured.
Ms Paoletti said that, after the ultrasound had been conducted, Dr Robertson spoke to Ms Nouri in a consulting room. She accepted that she could not recall all of the conversation between the doctor and the patient.
The consultation on 25 July 2011 was the only consultation of which Ms Paoletti had a specific memory. She was taken to other ultrasound reports in Exhibit 1 indicating her presence but she had no specific memory of these occasions. She said the reports, such as at page 81 of Exhibit 1, were computer-generated. The diagnosis was entered either during the consultation or very soon afterwards.
Ms Paoletti said that the charts on the form indicated the bounds of ‘normality’ from the 5th to the 95th percentile. She agreed that results outside the bounds of normality would be brought to the attention of the doctor. My observation of these forms is that they concern the investigation of Twin B’s heart and make little comment (although not none at all) on other abnormalities, such as abdominal circumference and femur length. Ms Paoletti agreed a small abdominal circumference was a “red marker” to be noted and monitored. It was important to look for changes or a lack of changes, as appropriate.
Ms Paoletti agreed that, where there were twins, there was a natural comparison between the twins. She also agreed that, in this circumstance, discordant results could be indicative of an abnormality in one twin.
Ms Paoletti said that during a consultation there would not normally be much discussion with the patient. There might be some minor chatting between the technician and the doctor but this would not take very long.
Dr Robertson was the next witness. Her CV is Exhibit 14. She conducted her initial training in South Africa. She worked for some time in a high risk ultrasound practice in Cape Town (Tygerberg Hospital). She was familiar with requests for terminations. She said the situation in South Africa was similar to that in Australia, namely that a termination beyond 20 weeks’ gestation would need to be put before an Ethics Committee. She said that she would act as the patient’s advocate and it was necessary to produce evidence to justify the termination.
In 2003, Dr Robertson began working in the FMU at Canberra Hospital. She became the Director in 2007. In the course of her work, she developed relationships with two Sydney hospitals: the Royal Women’s Hospital and the Royal Prince Alfred Hospital. Her main contacts at these hospitals were Dr Antonia Shand and Dr Jon Hyett respectively.
Dr Robertson explained that mothers came to the FMU for one of two reasons: either there was a potential problem with the fetus or there was a maternal concern.
Dr Robertson did not recall being introduced to the parents on 25 July 2011 but did recall the ultrasound examination. She also recalled reading Dr Tan’s notes and the results of the Fluorescent In Situ Hybridisation (FISH) test prior to the examination. She was not sure if she had read the NCDI report. She said that her intention on the day was to clarify the condition of the fetal heart.
Dr Robertson thought she came into the consultation room about halfway through Ms Nouri’s examination. She asked the sonographer, Ms Paoletti, to demonstrate the configuration of the blood vessels and the stomach within the fetus’ abdomen. She took over the scanning and collected some images. Dr Robertson said that she always started with images of the abdomen because it gave appropriate clues for the condition of the heart.
Dr Robertson said that she formed a different view to that of Dr Tan. She did not think there was a hole in the heart. She referred to pages 129, 135 and 141 of Exhibit 10 to explain her view. Exhibits 15, 16, 17, 18, 19 and 20 show markings made by Dr Robertson during her evidence.
Dr Robertson said that she spoke to the parents and informed them of the unusual path of the umbilical vein; namely, that it bypassed the ductus venosus and drained directly into the right atrium of the heart. She told them that, because the umbilical vein was not being regulated by the ductus venosus, this meant that there was increased blood flow into the heart. She told the parents that this was not an abnormality, as such, and would not require surgical correction. Dr Robertson said that she informed the parents that the ductus venosus ceases to function after birth.
A ductus venosus is a shunt that regulates blood flow into the heart. If it is bypassed by the umbilical vein there is no control over this blood flow, which can result, as in Twin B, in a larger right atrium.
Dr Robertson also recalled telling the parents that the main risk was that the fetus can go into heart failure. This required continuing management.
Dr Robertson said that she had seen this condition once before, in a patient she saw at the FMU in 2005. This particular fetus was not a twin. The pregnancy required increased surveillance and the baby was delivered at 37 weeks because of the development of polyhydramnios.
Dr Robertson said that she told the parents that an appointment would be made for them to consult a specialist in Sydney. This was done through Dr Shand at the Royal Women’s Hospital. An appointment was later made with Dr Murphy.
Dr Robertson said that, at the end of her explanation, she asked Ms Nouri if she understood what she had been told. Ms Nouri replied: yes, she understands, she was a pathologist where she came from (T 622.39 – 622.40). This is corroborated by the referral letter that appears at page 91 of Exhibit 1.
Although Dr Robertson could not remember having this conversation with the parents, she said that it was her normal practice to say words to this effect:
It is important that I also remind you that the ultrasound is not definitive. Ultrasound alone cannot detect all problems in a baby, and sometimes things become clearer as time goes on. And sometimes certain problems can only be diagnosed once the baby is born. (T 627.13 – T 627.17)
Dr Robertson was adamant that the parents had not mentioned the subject of late termination at the consultation on 25 July 2011.
She then gave some general evidence about terminations. She said that they were carried out at the FMU. They were conducted by Professor Ellwood. Dr Robertson noted that an important distinction was made if the pregnancy was a twin or a “singleton”. In the former case, an important consideration was the welfare of the healthy twin. Statistically, in the second trimester, there is a 20% chance of complications. This includes a 14% chance of a spontaneous birth at a very premature stage.
Dr Robertson said that any late termination – that is, a termination after 20 weeks’ gestation – required the approval of an Ethics Committee. It was necessary to prepare a case to be put to the Committee, which involved the parents consulting persons such as social workers. Dr Robertson said that, if she was asked about a termination, she would set out the important considerations. These included the procedure itself, the requirements of the procedure and the possible complications involved in the procedure.
Dr Robertson said that, in the case of twins, it was preferable to do the procedure during the third trimester (weeks 29 to 40). This was to increase the chances of survival of the healthy twin. Timing would, however, take into account the wishes of the parents.
Dr Robertson said that the chances of a successful application for a termination were greater earlier in the pregnancy. I asked her whether this was inconsistent with her earlier evidence that, in a twin pregnancy, the termination was better carried out in the third trimester. She said that she understood the point but did not concede the inconsistency.
A termination in respect of a twin pregnancy is carried out by the insertion of a needle through the mother’s abdomen into the fetal heart. With a singleton, the procedure was done by way of a forced induction. If a pregnancy was late term, an injection would also be given. Dr Robertson referred to the injection method as feticide.
An inconsistency arose between the evidence of Dr Robertson and Ms Paoletti. Dr Robertson said that she observed and identified the unusual path of the umbilical vein. Ms Paoletti said that she had made the discovery (T 566.5 – T 566.11). Ms Paoletti said that this was one of the reasons that she remembered the consultation.
Whether it was Dr Robertson or Ms Paoletti who identified the condition is not relevant. The importance of this point is that it indicates the possible unreliability of the memories of the two respective witnesses. Both witnesses were giving evidence of events that occurred at least six years ago, about an examination that was one amongst the thousands that have occurred since. The paucity and unreliability of the FMU’s notes do not assist them.
There is an even more important point that arises from the diagnosis made by Dr Robertson when looking at the ultrasound images on 25 July 2011. As already noted, she said the condition was very rare and it was only the second time she had seen it. It prompted her to refer the matter to Dr Shand and Dr Murphy in Sydney.
Dr Murphy’s report is in Exhibit 1 at pages 133 and 134. It was fundamental to Dr Robertson’s diagnosis that the right atrium of Twin B’s heart was larger than the left. This is different to the finding made by Dr Murphy. He does not even mention the unusual path of the umbilical vein identified by Dr Robertson. I asked Dr Robertson if she agreed with Dr Murphy and she said she did not. I also asked her if it concerned her that Dr Murphy had not picked up this very rare presentation. She said it did not because he was the specialist. Nevertheless, she continued to believe that her position was correct.
It is to be recalled that both plaintiffs alleged that Dr Robertson told them on 5 September 2011 that she had not agreed with Dr Murphy and that was why she was sending them to another cardiac specialist at Westmead. It was put to the plaintiffs that Dr Robertson had never stated that she disagreed with Dr Murphy. It is apparent, however, that Dr Robertson did disagree with Dr Murphy, making the plaintiffs’ account of the conversation more credible.
Re-interpretation of the cardiac anomaly together with other sonographic findings in the context of polyhydramnios, a small stomach and possible TOF/OA identified at 30 weeks gestation becomes more nuanced. It is important in counselling prospective parents to know if there are identified factors that directly impact on predicted outcome. It is equally important to communicate the difference between direct evidence of serious pathology and markers of increased risk (biomarkers, sometimes termed “soft markers” in fetal medicine).
I should add at this stage that it is implicit in my finding of a breach of duty that I am satisfied, if it be necessary to so find, that the breach took into account the entitlement of the plaintiffs to certain damages flowing from the negligence of the defendant. This is an area mostly dealt with below under ‘Damages’ but is mentioned here because of the defendant’s submissions concerning breach of duty for purely economic loss.
The defendant referred me to a number of English authorities concerning breach of duty and damages. A case not referred to is Meadows v Khan [2017] EWHC 2990 (QB) (‘Meadows’), a decision of Justice Yip in the High Court of England and Wales. Her Honour conducted a very useful summary of relevant English authorities.
In Meadows a claim was made for the costs of raising a child who had been born with haemophilia and autism. The negligence in the case was the failure of the defendant to inform the plaintiff of the child’s haemophilia. Had she known about the condition she would have undergone a termination of the pregnancy. Although the negligence was admitted her Honour nevertheless examined the authorities concerning the damages that might flow from a breach of duty. It was not contested that damages should be awarded for the costs associated with the haemophilia. It was disputed that there was any entitlement to expenses related to the autism.
One of the issues identified by her Honour, after examining authorities referred to by the defendant in the cases of Parkinson v St James & Seacroft University Hospital NHS Trust [2000] QB 266 and also Groom v Selby [2002] Lloyds Rep Med 1, was whether the autism was a consequence “falling within the responsibility the defendant had assumed”. Her Honour said, from [61]:
The thrust of the defendant's argument (summarised at paragraph 38 of the skeleton argument) was that the additional losses associated with Adejuwon's autism fall outside the scope of the duty owed to the claimant.
I do not accept that is so. As I have already said, the focus of the defendant's duty and the very purpose of the service the claimant sought was to provide her with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia. The birth of Adejuwon resulted from a pregnancy which was afflicted by haemophilia. His autism was bad luck, in the same way that the meningitis in Groom was bad luck. Equally, each condition was the natural consequence of a pregnancy that would not have continued if the doctor's duty had been performed correctly. The scope of the duty in this case extended to preventing the birth of Adejuwon and all the consequences that brought.
For the same reasons, I reject the submission that the losses flowing from Adejuwon's autism fell outside the defendant's assumption of responsibility. It is true that the defendant did not assume any particular responsibility in relation to autism but neither did the doctor in Parkinson assume a particular responsibility for learning difficulties or the doctor in Groom for meningitis. In all cases, the doctor did assume a responsibility which, if properly fulfilled, would have avoided the birth of the child in question.
In my view the defendant had assumed a responsibility to inform the plaintiffs of the possibility that Saba would be born with a TOF “which, if properly fulfilled, would have avoided the birth” of Saba.
I have reached this conclusion notwithstanding that the only conversation concerning termination had concerned the suspected cardiac condition. In my view, any condition which required the parents to be informed about it, also carried the inference that if informed, the mother might seek a termination. This is especially the case with a condition such as TOF where, even without ultrasound confirmation, the possibilities of numerous other conditions or disabilities existed (again see Exhibit Q).
Causation
Causation is governed by s 45 of the Civil Law (Wrongs) Act 2002 (ACT) (‘the CLW’). It states:
45 General Principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
It is clear from the authorities that s 45(1), like s 5D(1) of the Civil Liability Act 2002 (NSW) (‘the CLA’), establishes a ‘but for’ test. It is also plain that the onus in respect of causation is always on the plaintiff. Section 46 of the CLW states:
46 Burden of Proof
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.
I agree with the defendant’s formulation of the primary debate concerning causation. The defendant submitted:
The key issue in relation to causation 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.
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 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.
I do not think the plaintiffs have surmounted the above problems. Ms Nouri was unlikely to have been able to travel absent a second amnioreduction, a procedure she was not able to complete on 18 October 2011. If she would have presented at the airport, obviously very pregnant, and in pain, I could not be satisfied that the relevant airline would have allowed her to board. I am 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.
Further, I am not satisfied that Dr Hern, or any like doctor, would have been prepared to carry out the abortion. The fact that Dr Hern said he carried out similar procedures does not mean he would have performed any procedure on Ms Nouri. The state of the evidence can be taken no further than to say that he might have carried out a procedure. This is not enough to establish causation.
The hindsight point is also important. I have no doubt that the plaintiffs, now living with a severely disabled child and having had their lives and livelihoods severely affected, are convinced they would have found a way to achieve a termination. What is unknown is if counselling, which they say they should have had, would have had an effect on them or if the risks and logistics of travel to America would have either been beyond them, or been viewed as risks they were not prepared to take. All of the doctors agreed that Ms Nouri faced substantial risks in travelling to America.
It follows that the plaintiffs have not established, on a balance of probabilities, that they could or would have obtained a termination had there not been a breach of the duty of care as outlined above. Accordingly, the plaintiffs must fail on liability.
Damages
Because of my decision on liability I intend to deal with damages fairly briefly, but hopefully explaining the sums I would have awarded had I found in favour of the plaintiffs.
Before looking at the individual heads of damages, it is important to remember that Saba’s disabilities are not the product of the alleged negligence. Assuming she was born, she would have had the disabilities. The plaintiff’s case is that she should not have been born at all, so that all of the financial effects flowing from her birth should be met by the defendant.
The plaintiffs say that if she had not been born they would have been able to carry on working (and therefore earned money), they would not have endured the grief and anguish associated with raising a disabled child, they would not have had the expenses of raising Saba (even as a healthy child) and they would certainly not have had the costs associated with all of her extra needs.
The plaintiffs claimed damages into the future for the whole of Saba’s life expectancy of 31 years. The defendant said that whatever damages were awarded could not extend beyond Saba reaching 18 years of age because this was when her parents’ legal obligation to support her came to an end.
Further, the defendant submitted that the plaintiffs could not receive both the costs of commercial care and economic loss. This was because they were going to provide the care for Saba and therefore would not incur any costs of commercial care. If commercial care was awarded it was agreed that the appropriate rate was $43 per hour.
The plaintiffs each claimed $200,000 for general damages. The defendant said there should be no award at all. It was conceded that the plaintiffs had not suffered any psychiatric disorder and they were not entitled to any claim for nervous shock.
In my view, the plaintiffs are not entitled to damages of the type they claim. I can see no basis in authority for awarding general damages. I can see no support in Cattanach v Melchior [2003] HCA 38; 215 CLR 1 (‘Cattanach’) for the claim. A similar claim received some scrutiny by Beech-Jones J in Neville v Lam (No 3) [2014] NSWSC 607. His Honour said this, at [166]:
[166] A discussion at this level of generality cannot be advanced further partly because Cattanach did not directly address it, and partly because it is also conditioned by issues of causation and remoteness. However, at the very least the various judgments in Cattanach suggest that once some part of a claim for non-pecuniary loss is pitched in a manner that necessarily involves or requires an assessment of the relative benefits and detriments of rearing a child, then it cannot be entertained.
The plaintiffs relied on a Queensland Supreme Court decision of de Jersey J in Veivers v Connolly [1995] 2 Qd R 326. In this case, his Honour awarded general damages of $50,000 to compensate the mother of a severely disabled child. The award was for pain and suffering and loss of amenities and in particular for the “anguish she suffered during the pregnancy and because of the birth of a gravely handicapped child, and through her subsequent care of the child, which will continue”. In my view this decision can no longer be supported following Cattanach.
In respect of the claim for both economic loss and commercial care the defendant pointed to the following concession made by Senior Counsel for the plaintiffs on 27 August 2018. He said:
MR CRANITCH: To a degree, your Honour. This is the opening that’s been exercising my mind because at the end of the day there are two people providing the support, one backing the other up and that’s not going to change over the lifetime, particularly from the point of view that this, of course, are damages of Mr Shaor and Ms Nouri, that is not going to change. So really what Ms Moylan says is probably not relevant in the context of their claim for damages because it is an additional matter that they would - we have got no evidence that they would pay for a separate carer out of their own pocket. They just intend to continue to care for their child. So, I mean, once I have put that into the equation, your Honour, I will be able to give your Honour a definitive answer and my learned friend about Ms Moylan.
In final submissions, when the plaintiffs’ Senior Counsel was not present (due to ill health), Junior Counsel said that the case had always been run on the basis of a claim for commercial care and any concession that had been made by his learned leader was withdrawn. I accept that a claim for commercial care had been pursued through the case and take no account of the concession apparently made. However, that does not imply my acceptance of the claim for commercial care, at least in total, because of the effect of the claim for economic loss. It also does not remove the plain fact that the parents are likely to continue to provide at least the majority of care for Saba.
The only basis upon which future economic loss could be claimed is that the plaintiffs would be unable to work because they were providing care for Saba. Accordingly, there would be no commercial care expense. I think there is a caveat to this apparently simple approach.
It was agreed that Saba required 24-hour care. This is 168 hours per week. The NDIS provides 15 hours of care per week. This means that the plaintiffs, if unassisted, would be providing 153 hours of care per week.
If the plaintiffs were working and also caring for their other children their capacity to continue to provide the 153 hours per week would be severely strained. In my view there is a legitimate scope to award the plaintiffs economic loss together with an amount of commercial care. This could be reflected in, for example, having an overnight carer or perhaps a carer on one or two days per week.
In my view, an approach which both compensates the plaintiffs for economic loss and also allows a degree of commercial care is to allow for 14 hours per week of commercial care.
In relation to the general entitlement to economic loss, I am satisfied that the parents do have such an entitlement. This I think is made clear by the High Court in Cattanach.
The next point is whether the economic loss should be allowed beyond Saba’s 18th birthday. Her need for care will certainly not end on her 18th birthday and will continue at the same level, if not an increased level, for the balance of her life expectancy. The child in Cattanach was born healthy and without disabilities. There was no suggestion that any loss should be provided after the child turned 18.
The observations by Gleeson CJ and Heydon J in Cattanach suggest that damages might be extended beyond the age of 18. However, both of these judgments were in the minority and both Judges would not have allowed damages at all.
The authorities are not clear on this matter. There are English authorities, like Gaynor N v Warrington Health Authority [2003] Lloyds Rep Med 365 which suggest the damages could continue as long as the child has a need for the care.
In Waller v James [2013] NSWSC 497, at first instance, Hislop J, if he had awarded damages, would have restricted them until the child reached 18. His Honour conducted a comprehensive review of the authorities. He said from [277]:
[277] It was accepted by the defendant that Keeden will need care for the remainder of his life.
[278] The defendant, however, contended that the scope of the defendant’s liability is to be identified by reference to the nature of the harm for which compensation is being awarded. The relevant harm is the burden of raising a child, in this case a child with disabilities. It is a harm that the plaintiffs will incur because, as parents, they have a legal responsibility to care for and maintain Keeden — Family Law Act 1975 (Cth) ss 60B, 61(C)(1), 66C, Child Support (Assessment) Act 1989 (Cth) s 3 — Luton v Lessels (2002) 210 CLR 333 at [6]. Accordingly, the claim should be limited to the period of time in which the plaintiffs have a legal responsibility to care for Keeden. The legal obligation on the plaintiffs will cease when Keeden attains his majority upon his eighteenth birthday.
[279] In Cattanach McHugh and Gummow JJ at [68] said “..it is the burden of the legal and moral responsibilities which arise by reason of the birth of the child that is in contention.” Kirby J in his judgment also made reference to legal and moral responsibilities. The plaintiffs contended that the reference to “moral” responsibilities in those judgments extended to a responsibility beyond the statutory legal obligation. The plaintiffs submitted they have a moral obligation to care for Keeden for the rest of his life. This may be. However, in context, it is probable that the above comments were referring only to the parents’ responsibility to a child up to the age of 18 years as this is what was in contention in Cattanach.
[280] Reference was also made to the decision of Kirby J in Cattanach where his Honour said the “full damages against the tortfeasor for the cost of rearing the child” must be taken to be the “reasonable costs of rearing an unplanned child to the age when that child might be expected to be economically self-reliant, whether the child is ‘healthy’ or ‘disabled’”. The plaintiffs submitted that Keeden would never be in that position but would, in the eyes of the community, become economically self-reliant when he commenced to receive a full pension.
[281] The defendant contended that the conclusion that liability should cease upon Keeden obtaining his majority would impose intelligible limits on the recoverable damages and would keep the law of negligence within the bounds of common sense and practicality — Cattanach at [32] per Gleeson CJ (dissenting).
[282] There is no binding authority on this issue. It was not decided in Cattanach because the claim there was limited to a claim for care to age 18. The authorities which were referred to were inconsistent. In McDonald v Sydney South West Area Health Service [2005] NSWSC 924 at [88] Harrison AsJ held the responsibility of parents for their children does not always cease at age 18 but may continue during tertiary studies. In G & M v Armellin [2008] ACTSC 68 a claim for the cost of continuing to support the additional child during tertiary education was refused, the court noting that it was “not part of the legal responsibility of a parent to support a child through university and many parents do not do so.”
[283] In the United Kingdom there are a number of first instance decisions. In Rand v East Dorset Health Authority [2000] Lloyds Rep Med 181 the parent of a disabled child was awarded damages reflecting the costs of raising the child until the age of 25. In Hardman v Amin [2001] PNLR 11 the damages extended to the lifespan of the claimant’s parent. See also Gaynor N v Warrington Health Authority [2003] Lloyds Rep Med 365 at [16].
[284] The authorities to which reference has been made provide little guidance beyond age 18. The issue appears to be an open one. Any entitlement beyond 18 years will depend upon policy considerations. At this stage of the development of the law, if I was awarding damages I would limit them to the period up to Keeden’s 18th birthday.
With some reluctance I have come to the view that notwithstanding the moral obligation that will continue to motivate the parents after Saba turns 18, they are not entitled to damages after this time. My decision is reinforced by the fact that after Saba reaches 18 there will be a legal obligation on NDIS to support her. I have no doubt this will not be to the same extent as the obviously excellent care she receives from her parents. Nevertheless, she will be entitled to support from this scheme.
The next point is the quantum of the economic loss that should be awarded. The plaintiffs have claimed the weekly sum they were earning when working at the Saudi Arabian Embassy. Their claim is for the gross figure of their former wages. I have the following difficulties with this claim:
(a)In awarding damages for lost income, the purpose is to place the plaintiffs in the position they would have been but for the defendant’s negligence.
(b)The plaintiffs’ evidence was that, assuming the twins were born without complication or disability, they would have returned to Sudan where Mr Shaor was involved in a commercial development. There is no evidence to suggest what amount he might have earned in this development. Ms Nouri would no doubt have spent some time concerned with the rearing of the twins. I have no idea whether she would have then sought employment in the Sudan.
(c)There is a good deal of reason to doubt Mr Shaor’s evidence about his economic loss, both generally and as to whether or not he has been working since the birth of Saba. I found his explanations about his reasons for going to the embassy and the receipt of an amount equal to his wages, as being a loan and not in respect of work done, very difficult to accept. In fact, I do not accept that evidence. I also note Mr Shaor’s obstructive refusal to provide supporting evidence of his claims. For example, he refused to provide an authority addressed to the Australian Taxation Office (‘ATO’), although did apparently change his mind. He also initially agreed to provide an authority for release of Centrelink documents but later refused to do so. His refusal did not extend to documents relevant to the Carer’s Pension.
(d)Ms Nouri needed to look after the healthy twin in any event. She is unlikely to have returned to full-time employment until he reached school age.
(e)In relation to the claim for gross wages I do not accept that the wages of the plaintiffs were not subject to an assessment for tax. There are ATO interpretive decisions which would suggest to the contrary (for example, Australian Taxation Office, ATO Interpretative Decision, 2003/617, 15 July 2003)
The doubts I have had about the plaintiffs’ claim for economic loss have led me to the conclusion that they have not established an acceptable basis for damages for the past. I am, however, satisfied that they should be awarded damages for the future, until Saba reaches 18, but not in the amounts that they seek. It is very difficult to come to any logical conclusion about the appropriate amount. I have decided to assess their claim on the basis of average weekly earnings on a net basis.
My calculation of net weekly wages for males is currently $1,300 per week and for females is $1,079.
There are 11 years until Saba reaches 18. The 3% multiplier is $490. Because of the relatively short period of time I will apply a deduction for vicissitudes of 10%. The calculation for Mr Shaor is $1,300 x $490 x .9 = $573,300. The calculation for Ms Nouri is $1,079 x $490 x .9 = $475,839.
Although the parties did not address me on the point, I do not see why the plaintiffs should not be entitled to lost superannuation benefits on their economic loss. I will assess the lost benefits at 13%.
As I have said above, I think the plaintiffs do have a joint, but partial claim for care of 14 hours per week. At $43 per hour the calculation is $43 x 14 hours x $490 = $294,980.
It was effectively suggested to Mr Shaor that funds paid by the NDIS into Saba’s account had been inappropriately used by him and his wife. He rejected the assertion saying that the monies were a reimbursement of expenses that he and his wife had paid and therefore they were free to withdraw their equivalent from the account.
The next claim by the plaintiffs is for past out-of-pocket expenses of $186,300. The defendant suggested $20,000. The plaintiffs claim is based on Mr Shaor’s oral evidence that he was paying $3,000 per month until the NDIS started to pay medical expenses in November 2016. Thereafter, the claim is for $300 per month.
It is almost impossible to assess this claim because of the lack of documentary evidence. However, some guidance can be taken from Exhibit 45. Assuming the core support amount of $72,297.80 includes care at $43 per hour for 15 hours per week, the balance of $38,757.80 over 52 weeks equals $745 per week. This is roughly equivalent to the $3,000 per month claimed. I will include this amount in the damages that would have been awarded, together with the $300 per week from November 2016. In other words I accept the plaintiffs’ claim of $186,300.
For the future, I would have continued the claim at $300 per week for the next 11 years. On the 3% tables this is $300 x $490 = $147,000.
The table below is a summary of the damages I would have awarded:
Future economic loss for Ms Nouri $475,839 Lost superannuation benefits for Ms Nouri $61,859 Future economic loss for Mr Shaor $573,300 Lost superannuation benefits for Mr Shaor $74,529 Commercial care for both plaintiffs $294,980 Past out-of-pocket expenses $186,300 Future out-of-pocket expenses $147,000 Total $1,813,807
I make the following orders:
(a)Judgment for the defendant.
(b)The plaintiffs are to pay the defendant’s costs of the proceedings.
I will hear the parties if any other costs order is sought. I note there is an outstanding issue of certain costs being paid personally by the plaintiffs’ solicitor.
| I certify that the preceding four hundred and sixty [460] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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