Tabet v Gett  HCA 12 (21 April 2010)
On 21 April 2010 the High Court handed down its unanimous decision that damages are not available for the 'loss of chance' of a better medical outcome where the defendant's negligence was merely a possible but less than a probable cause of the plaintiff's damage.
The case concerned the medical treatment given to a six year old female plaintiff who was admitted to hospital on 11 January 1991 suffering from vomiting and headaches after recently recovering from chickenpox. She came under the care of Dr Gett, pediatrician.
On 13 January 1991 the plaintiff was observed to be staring and unresponsive. Dr Gett ordered a lumbar puncture, but not a CT scan.
On 14 January 1991 the plaintiff's condition rapidly deteriorated and she suffered a seizure. A CT scan was performed which revealed a large brain tumour. An operation was performed to remove the tumour and other treatment was also administered, but she was left with severe irreversible brain damage.
At first instance
The brain damage sustained by the plaintiff had a number of causes: the events on 14 January, the tumour (which had been growing for over two years), the operation and the other treatment.
Dr Gett was found negligent for failing to order a CT scan on 13 January, which would have revealed the tumour. If the tumour had been detected before 14 January, there were treatment options available which may have avoided the brain injury referable to the events of 14 January.
However, the trial judge was not persuaded on the balance of probabilities that earlier treatment would have made any difference. The conclusion reached was that Dr Gett's negligence did not cause the deterioration and seizure, but did deprive the plaintiff of the chance of a better medical outcome.
The plaintiff's damages were assessed at $6,092,586. The trial judge found that the plaintiff's decline on 14 January represented a 25% contribution to her ultimate disabilities, which equated to $1,523,146. The trial judge also assessed there to have been a 40% chance of a better medical outcome by avoiding the damage referable to the deterioration on 14 January.
The trial judge awarded the plaintiff $610,000, being 40% of $1,523,146.
Court of Appeal
The NSW Court of Appeal considered the chance that a better medical outcome may have been achieved to be much less than the trial judge's assessment of 40%. The Court of Appeal assessed it to be 15%.
However, the Court of Appeal dismissed the claim because in its opinion to permit the plaintiff to recover damages for this 'loss of chance' would be to depart from conventional common law principles and revolutionise the requirements for proof of causation of injury.
The High Court, comprising six judges who gave separate written reasons, also unanimously dismissed the claim. Acting Chief Justice Gummow and Justices Kiefel, Crennan, Hayne and Bell all agreed with the Court of Appeal that the law of negligence in Australia does not recognise the plaintiff's loss of chance of a better medical outcome as a compensable loss.
Heydon J considered that it was not possible to conclude from the expert evidence that Dr Gett's negligence had caused the plaintiff to lose any measurable (non speculative) chance of avoiding or reducing the brain damage suffered. He therefore did not consider whether, in principle, lost chance damages could be awarded.
Kiefel J (with whom Hayne, Bell and Crennan JJ agreed) reiterated the common law requirement of proof by plaintiffs that negligence has caused their loss or injury. If it is more probable than not that their injury was caused by negligence, the plaintiff recovers in full. On the other hand, if plaintiffs only demonstrate a mere possibility of a causal link, their claim fails entirely. This is known as the 'all or nothing' rule of recovery.
Kiefel J considered that resort to the language of 'lost chance of a better medical outcome' effectively recognises an inability to satisfy the civil standard of proof; that causation is a matter of possibility, not probability. Her Honour said that:
Of interest, Gummow ACJ described the 'all or nothing' rule of recovery as 'rough justice', but regarded this traditional approach in personal injury cases to represent '...the striking by the law of a balance between the competing interests of the parties.'
His Honour held that the court should not modify the common law to '...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.'
The plaintiff's case that she should recover damages for being deprived of a less than even chance that the brain damage she suffered may not have been so severe, which was the novel argument before the High Court, was the plaintiff's last hope.
It was run in the alternative to an argument that the defendant's negligence more probably than not caused her brain damage, which failed at first instance.
The 'all or nothing' rule means that plaintiffs recover damages in full if negligence more probably than not causes their injury and recover nothing if causation is merely a possibility, even a possibility in the order of 40%.
Here, the plaintiff was seeking to recover the proportion of her loss according to the degree of probability that it may have been caused by the defendant, when that degree of probability was less than the general standard on the balance of probabilities.
To allow an entitlement to recover damages on this proportional basis to co exist with the 'all or nothing' rule would be to dramatically modify the law in favour of plaintiffs. Even if an entitlement to recover damages on this proportional basis was to replace the 'all or nothing' rule, it would present its own hazards for plaintiffs, as proportionate recovery would cut both ways.
The 'all or nothing' rule of recovery may be 'rough justice' for those plaintiffs who fall shy of satisfying the necessary proof on the balance of probabilities. However, it is equally 'rough justice' for defendants to pay 100% of a plaintiff's damages for proof of causation on the balance of probabilities (51% or better). However, this is the balance struck long ago in the common law. The High Court considered that radically modifying the common law, which acceptance of the plaintiff's arguments required, was the business of Parliament.
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