By Ben Jullienne
In February 2020, the ACT Court of Appeal handed down its decision in the matter of Nouri v Australian Capital Territory  ACTCA (Nouri) which involved a wrongful birth claim – one of the most controversial areas of tort law. The parents had claimed damages because they alleged that their daughter Saba, who suffered severe congenital disabilities, should never have been born.
Notwithstanding that the common law in this area has been settled for some time,1 cases continue to turn on the application of the legal tests for ‘causation’. At common law, the test for determining what a plaintiff would have done absent negligence, has long been held in Australia to be subjective i.e. it is determined by reference to what the plaintiff would have done, as opposed to the reasonable person.
Before turning to the decision, it is important to note that across Australia as a result of civil liability legislation in each jurisdiction, there are some practical differences for practitioners and Courts to deal with when determining causation. For example, with New South Wales, Tasmanian, Western Australian and Queensland claims, plaintiffs are prohibited from giving evidence after the fact, about what they would have done if the negligent person had not been negligent: see for example section 5D(3)(b) of the Civil Liability Act (NSW)2. With Australian Capital Territory (ACT) claims, there is no such equivalent provision and plaintiffs are able to give such evidence. In fact, a failure to do so may lead to a Jones v Dunkel inference or potentially the lack of evidence to make out a pleaded particular of negligence: see for example Korda v Aldi Foods Pty Ltd  ACTCA 6 at para 29.
Nouri v ACT  ACTSC 275
In Nouri, Saba’s parents claimed that if they had been given relevant information about her disabilities during the pregnancy, she would never have been born. Although Ms Nouri had previously terminated a pregnancy, the claim was complicated by the fact this was a twin pregnancy and because of that, it was established from evidence at trial that no termination was available in Australia after 22 weeks gestation. Saba was born at about 36 weeks.
At first instance, Elkaim J found that although the Hospital had breached its duty of care in failing to give Saba’s parents relevant information from 22 September 2011 (30 weeks gestation), the plaintiffs were unable to prove that they would have proceeded to a termination and therefore, failed to prove ‘factual causation’ as required by section 45(1) of the Civil Law Wrongs Act (ACT)3. Damages were assessed at $1,813,807.00.
The Plaintiffs’ evidence
As this case occurred in the ACT, the plaintiffs gave evidence about what they would have done if given the relevant information. This resulted in evidence that they would have chosen a termination no matter how late the gestational period and would have travelled overseas if necessary. Saba’s father also gave evidence that they would travel to obtain the treatment even if given advice that it was not safe to Saba’s mother, unless there was a probability of harm.4
However, the claim was rejected on the basis that it was unlikely the parents would have travelled overseas and obtained a termination within the potential 6 weeks between the breach of duty and Saba’s birth. Ultimately, it was found that there were too many ‘primary problems’ in proving causation including the uncertainty of Saba’s diagnosis, Ms Nouri facing substantial risks in travelling to America and her unwillingness to travel from Canberra to Sydney at 32 weeks (two weeks after the breach).
Of note, one of the primary problems identified that the plaintiffs’ evidence was looking back with the benefit of hindsight and although they were “now adamant” they would have sought a termination, that evidence was affected by their knowledge of Saba’s severe disabilities.
The Court of appeal
On appeal the ‘primary problems’ were challenged including the finding that the plaintiffs’ evidence had been affected by hindsight bias. On the latter point, the parents claimed the trial judge had not adequately considered the subjective features of the test for causation when determining their response at overcoming the obstacles.
In rejecting that ground, the Court of Appeal stated that:
The circumstances of the case were such as to necessitate careful consideration of whether there was a hindsight bias in the appellants’ evidence that they would have sought out a selective termination in the circumstances that they faced: see the comments of McHugh J in Chappel v Hart  HCA 55; 195 CLR 232 at  n 64.
The court went through the logistical problems faced and ultimately found that there was no error at first instance as the primary judge was “obviously very conscious of those personal circumstances” when considering causation and it ‘was clearly open to take into account the appellants justified anger at the treatment they received and the tragic circumstances that they now face in their lives.’
As it presently stands, Nouri is yet another reminder to practitioners in ACT claims that although plaintiffs will typically give evidence in their favour about what they would have done absent warnings or information, this is not be determinative. This case shows that to establish and defend arguments on factual causation, enquiry into factors which would have surrounded a plaintiff’s hypothetical decision at the time is essential.
Ben wrote this article for the Australian Capital Territory Bar Association June Bulletin 2020.