Australia: Loss Of Chance & The End Of “Rufo v Hosking”

Gett v Tabet [2009] NSWCA 76 has ended the legal uncertainty on the issue of loss of chance that arose after the 2004 New South Wales Court of Appeal decision in Rufo v Hosking [2004] NSWCA 391. In a unanimous decision, the Court held that damages are not available for the loss of a chance of a better medical outcome unless the plaintiff can prove, on the balance of probabilities, that they would have had a better outcome had the defendant not been negligent.

Key Points:

• The causal effects of clinical negligence must be assessed on the balance of probabilities, not on the basis of loss of a chance.
• A plaintiff must prove that it was more probable than not that the defendant's negligence substantially or materially contributed to any actual damage to be awarded damages for loss of a chance of a better medical outcome.

Background

The case concerned the medical treatment of a six year old girl named Reema Tabet. Reema was admitted to hospital in 1991 after recovering from chickenpox. She was suffering headaches and nausea, and was vomiting. She came under the care of Maurice Gett, a paediatrician. Dr Gett made a provisional diagnosis of post-chickenpox viral encephalitis.

Unfortunately, Reema later suffered a rapid deterioration in her neurological condition and had a seizure. A CT scan revealed a brain tumour. Reema underwent surgery to remove part of the tumour. She was subsequently diagnosed as having suffered irreversible brain damage. The damage had a number of causes. It was partly sustained when her condition had deteriorated, was partly caused by the tumour itself (which had been growing for over two years), and partly a result of her operation and other treatment she received to control the tumour.

The expert evidence that Reema adduced at trial supported a finding that Dr Gett should have arranged for her to have a CT scan before her condition had deteriorated. The evidence also supported a finding that, if Reema had had the CT scan (and the tumour been revealed), treatment options were available to her that may have avoided the deterioration in her condition. These treatment options included the administration of steroids to reduce the inflammation, or the insertion of an intracranial drain to reduce her intracranial pressure. However, the trial judge did not think Reema had proved on the balance of probabilities that she would not have suffered the brain damage if she had undergone one or more of these treatments. Despite this finding, he considered he was bound by the decision in Rufo v Hosking, which supported an award of damages in such a situation. He therefore held that Reema had lost a 40% chance of a better outcome, and awarded her 40% of the damages that had been assessed as having been caused by the brain damage she suffered when her condition had deteriorated before she had her CT scan.

Appeal

Dr Gett appealed to the Court of Appeal. He argued that Reema had not proved on the balance of probabilities that she had suffered any brain damage as a result of not having had an earlier CT scan and then having had the treatment she alleged she would have received.

After reviewing the expert evidence, the Court held that Reema's loss of a chance of a better outcome ranged between 'speculative' and 'some'. The Court ultimately settled on a finding that Reema had lost only a 15% chance of avoiding the brain damage she complained of. This being the case, the Court concluded that Reema had not proved on the balance of probabilities that she had suffered any brain damage as a result of Dr Gett's breach of duty to her.

Damages

The Court then went on to consider whether Reema was entitled to damages.

The Court's prior decision in Rufo v Hosking supported an award of damages. However, after analysing other authority in Australia and the United Kingdom on the availability of damages for loss of chance, the Court of Appeal in Gett held that Rufo had misapplied prior case law, was 'plainly wrong' and overruled it. The Court held that the question of the causal effects of clinical negligence must be assessed on the balance of probabilities, not on the basis of loss of a chance. It drew a necessary distinction between a plaintiff's burden of proof on the issue of causation, and the assessment of a plaintiff's damages for losing a probable (ie proven) chance of a better outcome. The Court considered Rufo had confused the issues, the result in that case being the anomalous outcome of allowing the recovery of damages despite the fact the plaintiff had not proved that it was more probable than not that the defendant's negligence had substantially or materially contributed to any actual damage.

The Court stated:

• 'The arguments in favour of permitting damages for loss of a chance cannot, in circumstances where the approach conflicts with conventional authority, be justified on the basis that there is no express superior court authority inconsistent with the proposed approach. Nor can the approach be preferred on the basis that it avoids the potential injustice which may flow from a bright line drawn in accordance with the balance of probabilities. Such a rationalisation would have operation well beyond the scope of the proposed new principle.'
• 'It is for the High Court, and only the High Court, to reformulate the law of torts to permit recovery for physical injury not shown to be caused or contributed to by a negligent party, but which negligence has deprived the victim of the possibility (but not the probability) of a better outcome. Such an approach would not readily be limited to medical negligence cases, but would potentially revolutionise the law of recovery for personal injury.'

At first blush, this comment might be considered as a suggestion that the High Court may opt to allow recovery in these circumstances in the future. However, the Court noted that the statutory definitions of 'harm' in tort reform legislation across Australia implicitly do not include a risk of physical or mental injury. For example, section 5 of the Civil Liability Act 2002 (NSW) (Act) states:

The Court said it would be awkward to construe 'harm' as loss of an opportunity when considering the general provisions of the Act. For example, the part of the Act referring to 'the burden of taking precautions to avoid the risk of harm', which was readily understandable in the context of harm as physical injury, would be 'at best obscure and semantically inappropriate' if the phrase 'loss of an opportunity of a better outcome' was substituted for the word 'harm'.

Although the point was not the subject of argument on the appeal, the Court observed that it would be inappropriate for the common law to develop a concept of harm that departed from the assumptions underlying a nearly uniform statutory definition of that term. It may well be fair to think the High Court will take a similar view, and leave it to the legislature to consider whether to expand the law to permit recovery in this controversial area. There is no indication at present that the States or Territories have any intention to do so.

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