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Loss of chance
Bill Madden
Specialist Accreditation Conference 2010
2
Tabet v Gett [2010] HCA 12
A challenge…
…one ‘which has divided courts and commentators throughout
the common law world’, that division deriving ‘essentially from
different perceptions of what constitutes injustice in a common
form type of medical negligence case’.
Outline
The litigation
Legal principles
Earlier approaches in Australia
International comparisons
Outcome
Issues
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Tabet v Gett [2010] HCA 12
The litigation
Trial: Tabet v Mansour &
Gett [2007] NSWSC 36
Appeal: Gett v Tabet
(2009) 54 ALR 504; [2009]
NSWCA 76
High Court: Tabet v Gett
[2010] HCA 12
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Tabet v Gett [2010] HCA 12
The facts 1
January 1991
The facts 2
13 January 1991 – First incident
Reema staring, unresponsive
Later drowsy & irritable
Pupils unequal
Right pupil not reactive
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Tabet v Gett [2010] HCA 12
The facts 3
Breach of duty – failure to arrange CT scan
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Tabet v Gett [2010] HCA 12
The facts 4
14 January 1991 - Second incident
The facts 5
14 January 1991
Deterioration – decerebrate posturing
CSF drain inserted 3 10 pm
16 January
Surgery to remove the tumour
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Tabet v Gett [2010] HCA 12
The problem
Multifactorial outcome
Relevantly, brain damage from increased
intracranial pressure on 14 January
Additionally, brain damage from the tumour,
surgery and radiotherapy
25% of overall damage attributed to the
deterioration, by the trial judge
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Tabet v Gett [2010] HCA 12
HOWEVER
Earlier approaches 1
No direct High Court authority
Earlier approaches 2
Gavalas v Singh 2001Victoria
10 week earlier diagnosis of brain tumour may
have led to a better outcome
Earlier approaches 3
Rufo v Hosking 2004 NSW
Recoverability for loss of a less than 50%
chance of avoiding spinal micro-fractures
suffered in course of heavy-dosage treatment
with corticosteroids
Loss of a material chance that but for the
negligence the fractures would not have
occurred, or would not have occurred at the time
or with their severity
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Tabet v Gett [2010] HCA 12
International approaches 1
Gregg v Scott
Cancer case but of the ‘prospective’ type
Rejected with differing reasoning
Basis for distinction?
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Tabet v Gett [2010] HCA 12
International approaches 2
Matsuyama v Birnbaum
The patient died of stomach cancer which had
not been investigated or diagnosed for 4 years.
37.5% chance of survival but for the delayed
treatment
As the plaintiff died, damages were awarded to
his widow and child based on that percentage of
the full value of their claim.
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Tabet v Gett [2010] HCA 12
International approaches 3
USA adoption
Support: 21 jurisdictions
Contrary: 10 jurisdictions
Canada
Negative but differing approaches to proof?
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Tabet v Gett [2010] HCA 12
International approaches 4
Restatement of Torts
Three features
A contract where the raison d’être of the contract is to
take every reasonable measure to optimise outcome;
Reasonably good empirical evidence often available
about the general statistical probability of the lost
opportunity
Frequently the consequence of the physician’s
negligence will deprive the patient of a less than 50%
chance for recovery.
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Tabet v Gett [2010] HCA 12
International approaches 5
Support Limited support Contrary
France USA England
Netherlands Spain Germany, Austria,
Belgium Italy Switzerland,
Ireland Greece, Hungary,
the Czech
Republic,
Slovenia, Estonia,
Denmark,
Sweden, Norway
and Finland
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Tabet v Gett [2010] HCA 12
2
Characterise the loss of chance itself
(proved as arising on the balance of probabilities)
as the ‘damage’
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Tabet v Gett [2010] HCA 12
The argument 1
It is misleading and wrong to regard such a
patient’s interests as comprising only the
probability of being cured or avoiding injury.
The patient’s interest is to have protection or
enhancement of her prospect of alleviation of her
illness or condition
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Tabet v Gett [2010] HCA 12
The argument 2
Her interest in the careful performance by Dr Gett
of his professional work
Intuitively and as a matter of fundamental principle
suggests that she lost something of value
Sounding in common law damages as a result of
that negligence.
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Tabet v Gett [2010] HCA 12
Outcome
Inadequate evidence
Heydon J - the evidence did not permit an
inference to be drawn that the plaintiff had in fact
lost some chance of a better outcome which
ranged between speculative and some effect: [92]
Gummow ACJ: evidence provided a basis for no
more than speculation as to the quantification of
the loss of a chance of a better outcome: [45]
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Tabet v Gett [2010] HCA 12
Primary message
Personal injury (physical and mental harm) is
compensable only if causation of damage on
balance of probabilities.
Kiefel J @ [110]:
The Court of Appeal in this case observed that the common
law has adapted to recognise different kinds of harm. But
nowhere is it suggested that the requirement for damage
itself can be dispensed with. Liability based upon breach of
duty of care without proven loss or harm will not suffice.
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Tabet v Gett [2010] HCA 12
Secondary message
Chance is not of itself a form of damage; even if
(unlike Gregg v Scott) injury has already
crystallised
What remains?
Damages for physical harm and associated losses caused on
the balance of probabilities as a result of delayed diagnosis,
even though other aspects (such as overall prognosis)
cannot be proven to have been avoidable.
Guidance on causation
Kiefel J @ [111]
“…All that is necessary is that, according to the course of
common experience, the more probable inference appearing
from the evidence is that a defendant's negligence caused
the injury or harm. "More probable" means no more than that,
upon a balance of probabilities, such an inference might
reasonably be considered to have some greater degree of
likelihood; it does not require certainty. {Citing Bradshaw v
McEwans Pty Ltd (1951) 217 ALR 1 at 6}…”
CF Sydney South West Area Health Service v Stamoulis
[2009] NSWCA 153
Consider application under Adeels & s 5D CLA.
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Tabet v Gett [2010] HCA 12
Applications 1
Firth v Sutton [2010] NSWCA 90 per Allsop P
[103] This evidence of Mr Govan was important, even
assuming that he should have done more. This is so because
Ms Sutton is not entitled to damages merely because of the
loss of an opportunity to consider what she might have done
had Mr Govan properly fulfilled his duties: Tabet v Gett
[2010] HCA 12. Rather, to succeed, it was necessary for her
to prove that on the balance of probabilities she would have
given instructions to pursue a common law action and to
elect not to proceed under the WC Act.
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Tabet v Gett [2010] HCA 12
Applications 2
Hanna v Uniting Church in Australia Property Trust (NSW)
[2010] NSWSC 293 per Hislop J
[62] Additionally the plaintiff’s argument appears to involve a
claim for loss of the chance that the administration of RICE
and the forbidding of the plaintiff to engage in activities during
the remainder of the camp might have reduced the extent of
the CRPS or prevented it from developing further. This
argument is not available – Tabet v Gett [2010] HCA 12.
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Tabet v Gett [2010] HCA 12