In our April 2009 edition of the Deacons Insurance
Update we reported on the NSW Court Appeal's decision in
Gett v Tabet.
The Court ruled on the vexed issue of loss of a chance - where a
defendant's negligence lessens a plaintiff's chances of
avoiding greater loss or damage, but falls short of being causative
of such loss or damage under traditional principles of legal
causation. The Court of Appeal found against the plaintiff by
returning to fundamental principles of causation, and overturning
the decision in Rufo v Hosking (2004), previously allowing
the plaintiff an award of damages where the plaintiff was only able
to prove that a negligent act was causative of the loss of a chance
of a better outcome, rather than being causative of actual
On 6 May 2009, the plaintiff filed an application for special
leave to appeal to the High Court. That application is yet to be
Before the decision in Gett v Tabet, there had been a
rise in the incidence of damages awards for loss of a chance, most
commonly in medical negligence cases where misdiagnosis or, more
frequently, delay in diagnosis deprives the patient of an
opportunity to receive treatment which may have resulted in an
The Court of Appeal (comprising Allsop P, Beazley JA and Basten
JA) distilled the nature of loss of a chance cases, noting that
these cases only required the plaintiff to demonstrate that a
failure (or delay) in diagnosis was causative of a loss of a chance
of a better outcome, rather than requiring the plaintiff to
demonstrate that the failure (or delay) was causative of the actual
physical harm suffered by the plaintiff. The Court viewed this as
both a reformulation of the law of tort, departing from
conventional principles of causation, as well as a being contrary
to causation principles in the Civil Liability Act 2002
(NSW) (and similar legislation in other states) requiring the
plaintiff to bare the onus of proving that the negligence of the
defendant was causative of the injury suffered.
The special leave application is due to be heard by the High
Court on 4 September 2009. We will report on same and any resultant
Gett v Tabet  NSWCA 76 application for special
leave to appeal to the High Court.
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guide to the subject matter. Specialist advice should be sought
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