Nouri v Australian Capital Territory

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

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

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