High Court of Australia

Tabet v Gett (2010) HCA 12

The Findings

The High Court has handed down judgment in the medical negligence case of Tabet v Gett and denied the appellant patient a remedy for loss of the chance for a better medical outcome as a result of a breach of duty by Dr Gett.

The relevant facts are that Dr Gett did not arrange for a CT Scan to be carried out after he examined the appellant on 13 January 1991 and this was found to be a breach of Dr Gett’s duty of care. The appellant failed to prove that this decision caused the neurological event on 14 January 1991, which resulted in brain damage. She sought to argue in the High Court that she should recover damages because the breach of duty by Dr Gett deprived her of the possibility but not the probability of a better outcome.

All six judges dismissed the Appeal from the decision of the NSW Court of Appeal denying a remedy, although Heydon J found as a fact, that Ms Tabet had not lost a chance of a better outcome and declined to determine the question of law as to whether harm of this nature is legally recoverable.

Kiefel J, with whose reasons Justices Hayne, Bell and Crennan agreed, ultimately decided the matter by reference to the standard of proof in common law matters, namely that an act or omission on the part of the defendant probably caused the plaintiff harm.

In addressing the case put by the appellant she said

“Resort to the language of “chance” cannot displace the analysis necessary for the determination of the issue of causation of damage. Properly analysed what is involved in the chance referred to in this case is the possibility to put it at its highest, that no brain damage would occur or that it would not be so severe. They are the “better medical outcomes” involved in the chance. Expressing what is said to be the loss or damage as a “chance” of a better outcome recognises that what are involved are mere possibilities and that the general standard of proof cannot be met. Thus the appellant could only succeed if the standard of proof is lower than the law presently requires.”

Her Honour also notes that when an issue is proved to the general standard of proof a court treats the damage as certain, giving rise to the all or nothing rule of recovery.

She states

“To replace (the all or nothing rule) with a rule which limits damages awarded according to the degree of probability of causation has its own limitations. It would suggest if not require a degree of precision in the assessment of probabilities which is not part of the more liberal, common sense approach presently undertaken.”

Her Honour states that it would require strong policy considerations to alter the present requirement of proof of causation on the balance of probability and finds none.”

Gummow ACJ. came to the same decision, denying the appellant a remedy for loss of the chance of a better outcome, with somewhat similar reasoning. He adopts the view of commentators who argue that it is easier to prove that the defendant created a risk of harm (or a risk of loss of benefit) rather than to prove that the defendant caused the harm itself (or benefit itself).

His Honour then goes on to say

“But why should the law favour the weakening of the requirement for proving causation such that…….. the plaintiff should have the benefit and the defendant the detriment of an easier proof of actionable damage for a negligence action.”

He talks of the all or nothing outcome on the balance of probabilities leading to rough justice, but says that the traditional approach strikes a balance between the competing interests of the parties – to which the substitution of loss of a chance of actionable damage would represent a shift.

Like Kiefel J, Gummow ACJ finds no compelling policy reason to support this shift.

Commentary

It would have to be said that after extensive consideration of previous authorities in Australia and overseas, academic writings and a close look at basic principles, loss of chance damages have been swept away by this High Court decision but there are comments of the judges which make one think of the expression“never say never”.

As Gummow ACJ states, in this matter there was no claim in contract, only in negligence. Cases in contract in which a plaintiff recovered for loss of chance which was attributed a financial value were distinguished from the present. Who knows what an inventive lawyer might do with the contract between doctor and patient.

His Honour also says that the Court of Appeal was correct and the appeal must fail but goes on to say

“However, this outcome will not require acceptance in absolute terms of a general proposition that destruction of the chance of obtaining a benefit or avoiding a harm can never be regarded as supplying that damage which is the gist of an action in negligence.”

Kiefel J refers to a discussion by Professor Khoury in an article written in 2008 as to whether an increase in the risk of injury might be considered as an independent head of damage. The judge goes on to say that this question did not need to be and was not considered in the case before her, while noting that the Court of Appeal below had expressed a view that the “so-called loss of an opportunity” was in reality a claim based upon an increased risk of harm and recovery was not permitted. By repeating that the question did not arise, perhaps the Judge is inferring that an increased risk of injury may in some circumstances be a recoverable head of damages.

For now, a claim for loss of chance damages in medical negligence carers is dead, if not buried for all time.

(Extracted from Sparke Helmore's website, link here: http://www.sparke.com.au/sparke/news/publications/tabet_v_gett.jsp)