CAUSATION: Could they really have taken a different course if they had known?

29 April 2020

The ACT Court of Appeal finds against plaintiffs who failed to establish that they could have terminated a pregnancy at 30 weeks had they known of the baby’s medical condition.

Decision at first instance – Nouri v Australian Capital Territory [2018] ACTSC 275

The plaintiffs, Ms Nouri and Mr Shaor, are parents of non-identical twins born on 3 November 2011. One of their daughters, Saba Nouri (Saba) was born with severe disabilities categorised as ‘VACTERL association’. This refers to abnormalities in the following areas: vertebral, anorectal, cardiac, tracheaoesophageal, oesophageal, renal and limbs. Saba suffered from a trachea-esophageal fistula (a TOF) which is an abnormal connection between the oesophagus and the trachea. As a result of her severe disabilities, Saba requires 24 hour care.

The plaintiffs brought a claim against The Canberra Hospital and its staff in negligence and claimed damages.

The plaintiffs contended the hospital should have identified Saba’s medical conditions antenatally and advised them, as a result of which they would have terminated the pregnancy and avoided the extensive costs associated with Saba’s upbringing.

The matter was heard by Justice Elkaim in the first instance who examined the following issues:

  • Breach: whether the hospital had breached their duty of care to the plaintiffs by failing to provide information about Saba’s condition; and
  • Causation: whether the plaintiffs would or could have secured a termination at the late stage in the pregnancy when Saba’s condition should have been diagnosed and disclosed.

Justice Elkaim found that Saba’s TOF should have been identified by the hospital by 22 September 2011 and that, even if a TOF was only a possibility, it was a significant enough condition to be brought to the attention of the plaintiffs. The hospital breached their duty of care to the plaintiffs for failing to provide that information.

However, the plaintiffs failed to establish causation as they did not, on the balance of probabilities, prove they could or would have obtained a termination of pregnancy had they known of the condition as at 22 September 2011. At that time, Ms Nouri was 30 weeks and four days into the pregnancy. Justice Elkaim noted that ‘everything would have needed to fall into place‘ for a termination of pregnancy to be considered at that stage. The plaintiffs would have had to travel to the United States for the termination and the medical evidence confirmed there were substantial risks faced by Ms Nouri if she attempted to do so.

Justice Elkaim found in favour of the hospital, but went on to assess damages in the sum of $1,813,807.00, which did not include any award of general damages, on the basis that damages were only recoverable up until Saba reached the age of 18 years.

Appeal – Nouri v Australian Capital Territory [2020] ACTCA 1

The plaintiffs appealed to the Full Court of the ACT Court of Appeal. The appeal was heard by Chief Justice Murrell, Justice Mossop and Justice Rangiah.

The subjects of the appeal were Elkaim J’s findings as to liability and damages.

The Court of Appeal revisited the medical evidence and rejected the plaintiff’s contention that that the relevant breach of duty of care occurred before 22 September 2011.

As to causation, the Court of Appeal concluded there was no error in the conclusion reached by Justice Elkaim. The need to locate and identify a suitable practitioner in the United States, the logistical hurdles that Ms Nouri would need to overcome to get to and from United States, the significant expenses involved and the narrow window of time, all weighed against Ms Nouri establishing that she could have undergone a termination after 22 September 2011.

Given the conclusions reached in relation to liability, the Court of Appeal determined it was inappropriate to make any findings as to quantum.

The appeal was dismissed with costs.

Key takeaway

It can be tempting for parties to overlook the significance of causation and simply accept that ‘but for’ the breach the losses would not have been suffered.

However, in medical negligence claims arising particularly from failure to diagnose, warn or obtain informed consent, causation must be closely investigated and tested.

It is not uncommon for plaintiffs to allege that they would have taken a different path had the breach not occurred and they had been fully informed of the relevant facts. Whilst that evidence is admissible in the ACT, in New South Wales section 5D(3) of the Civil Liability Act 2002 (NSW) was introduced to prevent plaintiffs from tendering evidence to support what they would have done – and only evidence which is contrary to their interests is admissible. The provision was brought about because of the difficulty in counteracting hindsight bias, and that causation should be determined based on the circumstances of the case and not the plaintiff’s own testimony of what he or she would have done.

Irrespective of the jurisdiction, this decision reinforces that plaintiffs will struggle to establish causation where there are tangible and insurmountable hurdles to taking that different course.

This article was written by Sarah McJannett, Partner and Angel Li, Senior Associate.

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