A lost chance for plaintiffs but a save for professional indemnity insurers – the High Court decision in Tabet v Gett  HCA 12
Reema Tabet was six when she suffered from persistent headaches and vomiting in late December 1990. She was first admitted to the Royal Alexandra Hospital for Children in Sydney on 29 December 1990 and discharged on 31 December 1990. Ms Tabet continued to suffer from those symptoms and was readmitted to the hospital under the care of Dr Gett on 11 January 1991. He diagnosed her as suffering from chicken pox and possibly meningitis and ordered a lumbar puncture, which ultimately could not be performed due to Ms Tabet's distress.
On 13 January 1991 Ms Tabet became non-responsive, drowsy and her pupils were not reactive. She suffered a seizure on 14 January 1991, after which a CT scan was ordered. She was subsequently diagnosed with a brain tumour and suffered irreversible brain damage following the surgery to remove the tumour.
Litigation in NSW Supreme Court and Court of Appeal
The evidence at trial indicated that there were four possible causes of Ms Tabet's brain damage.
- The surgery itself;
- Radiotherapy; and
- Dr Gett's delay in diagnosis and treatment.
The trial judge held that it could not be proven, on the balance of probabilities (ie a test requiring the suggested cause of an event to have been more probable than not) that Dr Gett's negligence had caused Ms Tabet's brain damage. The trial judge went on to find that Dr Gett's negligence amounted to a 25% contribution towards the appellant's ultimate brain damage. His Honour then held that the appellant was entitled to damages for the lost chance of a better medical outcome. That chance was assessed as a 40% chance of a better medical outcome if Dr Gett had not been negligent. Ms Tabet was therefore awarded 40% of 25% of her overall damages.
Dr Gett appealed. The NSW Court of Appeal focused on the standard of proof in civil cases being the balance of probabilities and Dr Gett's failure to arrange a CT scan on 13 January 1991. Given that there were four possible causes of Ms Tabet's injuries, the Court held that it could not be said that on the balance of probabilities Dr Gett's breach was causative of her injuries. For his negligence to satisfy the balance of probabilities test it would need to be given a weighting of more than 50% which was not the case here. The Appeal Court then went on to consider the award of damages on the basis of a lost chance of a better medical outcome.
The Court of Appeal ruled against a lost chance of a better medical outcome being compensable at law. It allowed Dr Gett's appeal. It said that even if a loss of chance claim was valid, the trial judge had erred in his calculation of the lost chance. The medical evidence could only establish that the appellant had lost a 15% chance of a better medical outcome.
The primary reason for the Court of Appeal denying recovery was that there was no legal precedent for an award of damages based on a lost chance in a personal injuries/medical malpractice claim. It said that such a significant development in the common law was a matter of policy for the High Court to determine.
The High Court
The High Court dismissed Ms Tabet's appeal, delivering 5 separate judgements. The High Court held that the current law in Australia does not allow recovery for loss of chance in personal injury cases.
Public policy considerations played a significant role throughout the course of this litigation. The requirement that a plaintiff must prove causation on the balance of probabilities aims to strike a balance between the competing interests of plaintiffs and the defendants. Justices Gummow, Hayne and Bell considered that to allow recovery for loss of chance would unnecessarily tip the balance in favour of plaintiffs. Justice Creenan highlighted that such a change in the law would have a significant impact on the public and private healthcare system and on professional liability insurance for medical practitioners.
The decision is an important one for hospitals, health care providers and medical defence insurers. For liability to be based on anything other than the negligence of the doctor or health care practitioner being the probable cause of the loss would create a high level of uncertainty and expense and open the industry up to much more litigation over time. It would also be an extremely difficult process to account for these types of claims on an Incurred But Not Reported basis.
Unless Parliament decides to reformulate the law of negligence, damages are not recoverable for loss of chance in personal injury cases. To date, the Government has not indicated that it intends to take such a step.
The decision does not otherwise reform existing tort law. A plaintiff is only required to prove that on the balance of probabilities his or her loss was sustained as a result of a breach of a duty of care owed to them. There is no requirement to prove with absolute certainty that the breach caused the loss.
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