Barry Nilsson Insurance & Health special counsel Melinda Drew discusses the decision in Nouri v Australian Capital Territory where the plaintiffs failed in their suit for the wrongful birth of their severely disabled child, even though a breach of duty of care had been found. The plaintiff parents argued they would have terminated the pregnancy if they had known of the disability.
A suit for wrongful birth was brought by the parents of a severely disabled child against the Canberra Hospital. The child, Saba Nouri, was born on 3 November 2011 suffering from trachea-oesophageal fistula (a TOF) which is an abnormal connection between the oesophagus and the trachea. The child’s disabilities are so severe that she requires ongoing 24 hour care. It was alleged by the parents of the child that had her disability been known to them in utero they would have elected to terminate the pregnancy.
The first plaintiff became pregnant on or about 20 February 2011. The pregnancy was unplanned. The first plaintiff and her husband, the second plaintiff, resolved to proceed with the pregnancy, but on their case, only if the child did not suffer from disabilities. On 8 July 2011 the first plaintiff underwent an ultrasound in a private clinic in Canberra, which confirmed that she was pregnant with twins and that in the case of the female twin, some abnormalities were detected in relation to the foetal heart. Over the course of the next few months a number of investigations were undertaken concentrating on the perceived problem with the female foetus’ heart.
A range of ultrasounds and other investigations were carried out over the course of August and September 2011, and at no time was any mention made of the possibility of the female child having a small stomach or a possible TOF.
It was not until the twins were born that the female twin was diagnosed as suffering from TOF. It was not until that time that the ramifications of this disability were explained to the plaintiffs.
Justice Elkaim entered judgment for the defendant with an order for the plaintiffs to pay the defendant’s costs. His Honour’s specific findings were that the defendant had breached its duty of care in failing to provide the relevant information but that the plaintiffs had failed to prove that their alleged losses were caused by this breach. Justice Elkaim went on to notionally assess damages in the case (had the plaintiffs succeeded) at $1,813,807.
The central basis of the decision was that the plaintiffs had failed on the issue of causation. The plaintiffs did not establish on the balance of probabilities that they could have, or would have, obtained a termination when the information was supplied at a late stage of the pregnancy.
In a discussion on the issue of damages, Justice Elkaim found that despite the moral obligation that the plaintiffs may feel to continue to look after their disabled daughter for the remainder of her life, they would not be entitled to damages after the child had turned 18 years of age.
The significance of this decision is that even when breach of duty of care had been found, and the medical evidence taken as a whole was supportive of the plaintiffs’ contention that they had not been adequately informed, the requirement for causation is a rigorous one. As the plaintiffs’ parents were unable to prove on the balance of probabilities that, had they been given an early diagnosis of TOF, they would have elected to proceed to a termination at that time (rather than with the benefit of hindsight), their claim failed.
Read the case here: Nouri v Australian Capital Territory [2018] ACTSC 275
Melinda Drew is a special counsel in the Barry Nilsson Insurance & Health team and is based in the Sydney office. She has over 20 years as an insurance lawyer and specialises in: Medical negligence, Public liability, Property damage, Compulsory third party (CTP). Melinda has particular experience in defending major claims and cases involving catastrophic injury, as well as in negotiating settlements in complex personal injury cases. ‘I think clients enjoy working with me because I’m good at solving problems and arriving at an outcome that best meets their needs and priorities. I like working with insurers because they tend to be pragmatic and focused on achieving a reasonable resolution for both sides. I have good relationships with claims officers because I’m skilled at reaching settlement resolutions without any unnecessary stress or friction. In most of my cases, both parties walk away feeling that they’ve reached a fair agreement.’ Melinda is listed in the 2019 edition of Best Lawyers for Insurance Law. She has a Bachelor of Laws and a Bachelor of Arts (Honours). She is admitted to practice both in New South Wales and Victoria. Contact Melinda at melinda.drew@bnlaw.com.au
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