The High Court of Australia has refused an application for special leave to appeal from the decision of the ACT Supreme Court Court of Appeal in Nouri v Australian Capital Territory  ACTCA signalling an end of the road in this wrongful birth case.
On 26 November 2018, Justice Elkaim found against the plaintiffs on the basis that although they had established negligence on the part of the defendants, the plaintiffs failed to establish causation. Crucially, they failed to prove that they could have terminated the pregnancy at 30 weeks had they known of the foetus’ medical condition.
This decision was appealed, and on 13 February 2020, a full bench of the ACT Court of Appeal comprising of Chief Justice Murrell, Justice Mossop and Justice Rangiah, concluded that Justice Elkaim did not err in his conclusion and affirmed his Honour’s decision.
Special leave application
The applicants (plaintiffs at first instance) appeared before Their Honours Justice Bell and Justice Gageler on 19 October 2020.
Unusually, the applicants attempted to run a completely different case in the High Court from what had been judicially determined in the courts below. The applicants submitted that the trial before Justice Elkaim was not a claim for personal injury but, rather, a claim for pure economic loss as a result of the applicants’ loss of a chance of a better outcome.
Counsel for the applicants argued that they had lost the right to plan the type of family that they wanted, i.e. one that was not burdened by a disabled child. In their view, that right was infringed by the hospital’s failure to disclose, at an appropriate time, factors which would have resulted in the termination of the pregnancy. By extension, it was submitted, the applicants had the loss of a chance of a better outcome.
Counsel for the respondent argued that the case head by Justice Elkaim was never a case of pure economic loss and the central issue had always been causation, which is whether, on the balance of probabilities, the applicants could and would have obtained a termination had the negligence or breach not occurred.
The High Court accepted the respondent’s argument and found that the application was not a suitable vehicle to consider the questions of principle that the applicant raised on the hearing of the application, and the application was dismissed with costs.
The lesson learnt from this case is not gleaned from the submissions made in the special leave application. That transcript merely highlights that a party cannot run a new cause of action in an appellate jurisdiction.
Readers need simply to heed the Court of Appeal decision as clear authority for the principle that plaintiffs in personal injury negligence claims must establish that the negligence caused their loss on the balance of probabilities.
The claim for loss of chance may have been agitated in the special leave application because the standard the plaintiff needed to establish was not the balance of probabilities. The doctrine of loss of chance has been long recognised in contract law, and allows recovery of damages where a plaintiff cannot establish breach on the balance of probabilities, but can establish that the defendant’s action or omission has deprived him or her of the chance of a better outcome. This was first considered by the High Court in the context of medical negligence claims in the failure to warn case of Chappel v Hart, and the formulation was rejected by Justices McHugh, Gummow and Hayne.
The High Court went on to arguably eliminate loss of chance in medical negligence claims in the notable decision of Tabet v Gett – although commentators often suggest that the door remains ajar.
If there is still potential for plaintiffs to pursue claims for loss of chance, as the applicants in Nouri espoused, then it must be pleaded and advanced at first instance.
This article was written by Sarah McJannett, Partner, Angel Li, Senior Associate and Emily Bowler, Associate.