Nouri v Australian Capital Territory - [2018] ACTSC 275

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) Australian Capital Territory (Defendant)
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] ACTSC 275
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Nouri v Australian Capital Territory addressed a claim of negligence against the Australian Capital Territory. The plaintiffs, the parents of a child born with significant disabilities, alleged that they were not adequately warned about the potential for their child to be born with disabilities, and that had they been warned, they would have elected for a termination of the pregnancy. The dispute centred on whether the Australian Capital Territory had a duty of care to the plaintiffs to warn them of the risk of their child being born with disabilities, and if so, whether that duty was breached, and whether such a breach caused the plaintiffs' loss.

The court was required to determine the scope and content of the duty of care owed by the Australian Capital Territory to the plaintiffs in relation to the risk of the child being born with disabilities. It also had to consider whether a termination would have been available to the plaintiffs had they been warned of the risk, and whether a termination would have occurred had they been given the option. The court had to assess the causation element of the plaintiffs' claim, determining whether the failure to warn directly caused the plaintiffs' loss.

The court found that the Australian Capital Territory did not owe a duty of care to the plaintiffs to warn them of the risk of their child being born with disabilities. The court held that the circumstances did not create a sufficient proximity between the parties to give rise to such a duty. The court also found that even if such a duty existed, it was not breached, as the plaintiffs had not presented evidence that a termination would have been available to them, or that they would have elected for a termination had it been available. As a result, the plaintiffs' claim was dismissed, and the court ordered that the plaintiffs pay the defendant’s costs.

Orders

Orders of the court

Judgment for the defendant. Plaintiffs to pay defendant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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