There has been a tangible shift in judicial decisions of the ACT Supreme Court in recent years, which may be due to a number of NSW judicial officers having been appointed to the bench.
Currently, the court is examining liability and causation more closely, such that defendants and insurers are achieving greater success at hearing.
There have been two recent medical negligence decisions of the ACT Supreme Court which found the plaintiffs failed to discharge the onus of proof – which should serve as some comfort for doctors and insurers in the face of an ever increasing number of medical negligence claims.
Nouri v Australian Capital Territory  ACTSC 275 (‘Nouri‘)
The decision of Nouri was handed down by Justice Elkaim on 28 September 2018.
In Nouri, Justice Elkaim found in favour of defendant, the Canberra hospital (TCH) on the basis that even though he found that TCH had breached its duty of care, he determined that the plaintiff failed to establish that the breach caused the claimed injury, loss and damage.
Ms Einas Nouri (the first plaintiff) fell pregnant with twins and came under the care of the Foetal Medicine Unit of the Canberra Hospital. Ultrasounds in July 2011 suggested a possible abnormality in twin B, about which the first plaintiff and her husband (the second plaintiff) were informed.
The court found the extent of the baby’s health problems could and should have been identified by the Hospital by 22 September 2011, at approximately 30 weeks gestation.
On 3 November 2011, twin B was born with severe disabilities arising from VACTERL association, which is a condition only diagnosable postnatally.
The first plaintiff and her husband gave evidence that they were not fully informed of the foetus’ medical condition and, had they known the foetus suffered from any abnormality, they would have selectively terminated twin B – accepting, if necessary, that twin A might also not survive. They sought the extensive costs associated with raising twin B who suffered from numerous disabilities.
The Hospital conceded that they owed the plaintiffs a duty of care and Justice Elkaim found it had breached it duty to inform the plaintiffs of twin B’s disabilities, or possible disabilities.
The key issue in this case was whether the first plaintiff would and could have obtained a termination in relation to twin B at the time the breach occurred. Evidence was given by specialists regarding termination in both Australia and the United States. His Honour found the plaintiffs failed to establish that a termination could have taken place in either jurisdiction at around 32 weeks gestation. On that basis, the plaintiffs failed to prove that the breach caused the loss.
Justice Elkaim went on to assess damages, being the cost of care until twin B turned 18 as the child was a recipient of the NDIS. Notwithstanding a claim for damages of approximately $9million, Justice Elkaim would have awarded $1,813,807.
Spence v Neilson  ACTSC 273 (‘Spence‘)
In Spence, Justice Mossop of the ACT Supreme Court found that the plaintiff failed to establish that Dr Neilson breached his duty of care in relation to advice he provided before performing elective surgery on the plaintiff.
In April 2014, the plaintiff attended her General Practitioner after a discussion with her friend, who had been hospitalised as a result of a blood clot caused by her varicose veins. The general practitioner referred her to Dr Neilson, a vascular surgeon.
The plaintiff underwent varicose vein stripping surgery in July 2014, performed by Dr Neilson without complications. However, the plaintiff later developed right hip and buttock pain which required treatment, the plaintiff believed that was caused by the varicose vein surgery.
The plaintiff advised the Court that she would not have proceeded with the varicose vein stripping surgery if she had been informed by Dr Neilson that there were no immediate risks to her if she did not proceed.
Justice Mossop found that the plaintiff failed establish any of the particulars of negligence. Significantly, the court found the plaintiff knew the procedure was elective and not urgent.
The most notable aspect of the case is that His Honour accepted Dr Neilson’s evidence over that of the plaintiff in relation to the discussions that occurred during the consultation. Although the plaintiff asserted she had a specific memory of the consultation, and Dr Nielson had no memory, Justice Mossop accepted Dr Nielson’s evidence of his usual practice where the plaintiff’s recollection fell short or seemed improbable. His Honour placed emphasis on the letter sent by Dr Nielson to the referring GP about what was said during the consultation.
His Honour also considered the issue of causation, and observed that there was no evidence of negligence in the way the surgery was performed which would have caused the pain in her right hip and buttock.
Justice Mossop found that the plaintiff would have been entitled to damages of $227,515 if she had proven her case.
Where are we heading?
Historically the ACT is one of the most generous jurisdictions for compensation claims in terms of both legislative entitlements and judicial awards. There are currently no thresholds preventing plaintiffs from accessing unfettered damages for non-economic loss and economic loss.
For the foreseeable future, that will remain the case for medical negligence claims – although plaintiffs are being heavily tested on liability and causation in the courts.
However, the ACT Government will soon pass the Motor Accidents Injuries Bill 2019 (MAI Bill) which was introduced in the Legislative Assembly on 19 March 2019. This Bill proposes to restrict plaintiffs’ access to damages (and legal costs) arising from motor vehicle accidents.
What does that mean for your health practice? Two things. In the short term, plaintiff law firms expanding their medical negligence practices. This will result in more medical negligence claims (irrespective of merit) and an increase in matters running to trial. In the long term, the MAI suggests the start of more sweeping tort reform for ACT personal injuries claims in keeping with most other states and territories – namely the introduction of an impairment threshold for plaintiffs to qualify for certain heads of damages.
The dust should settle around any legislative changes by the end of 2020, by which time we should be able to measure any increase in health law litigation.
This article was written by Sarah McJannett, Partner and Jessica Smith, Solicitor.
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