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Tabet v Gett [2010] HCA 12

Loss of chance
Bill Madden
Specialist Accreditation Conference 2010
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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’.

Lord Nicholls in Gregg v Scott


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Tabet v Gett [2010] HCA 12

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

 Reema aged 6 years, resolving rash, headache &


vomiting for about 1 month
 Dr Gett concerned at meningitis, arranged
admission to hospital
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The facts 2
 13 January 1991 – First incident
 Reema staring, unresponsive
 Later drowsy & irritable
 Pupils unequal
 Right pupil not reactive
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The facts 3
 Breach of duty – failure to arrange CT scan
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The facts 4
 14 January 1991 - Second incident

 Reema staring and unresponsive


 Pupils deviating to the left
 Dr Ouvrier neurologist called and ordered a CT
scan
 Revealed medulloblastoma
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Tabet v Gett [2010] HCA 12

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

The loss of chance


 25% of overall damage attributed to the
deterioration

HOWEVER

 Even if CT done on 13 January, only a 40%


chance of avoiding that damage
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Tabet v Gett [2010] HCA 12

NSW Court of Appeal


 Allsop P, Beazley JA, Basten JA
 A less than even chance of avoiding an adverse
health outcome should not be compensable under
the law
 In any event the calculation was wrong –
 should have been 15% of 25%
 not 40% of 25%.
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Tabet v Gett [2010] HCA 12

Quote from NSWCA


 [321] … In the present case, if the harm suffered by the plaintiff
is identified as her irreversible brain damage, the tortfeasor
either substantially or materially contributed to it, or he did not.
If, on the balance of probabilities, the Court is satisfied that he
did materially contribute, he will be liable for the whole of the
harm suffered. In conventional terms, where a plaintiff suffers
personal injury as a result of the negligence of another, the
injury must constitute physical or mental harm, in the latter case
amounting to a psychological injury or psychiatric illness going
beyond a disturbed mental state: Mount Isa Mines Limited v
Pusey [1970] HCA 60; 125 CLR 383 at 394 (per Windeyer J);
Civil Liability Act 2002 (NSW), s 33. Conventionally, where no
injury had been suffered, no liability will arise.
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Tabet v Gett [2010] HCA 12

Earlier approaches 1
 No direct High Court authority

 Naxakis obiter comment


 Gaudron J – rejected
 Callinan J – supported

 Royal Perth Hospital v Frost 1997 WA


 Thrombolytic therapy may have reduced heart muscle
damage
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Tabet v Gett [2010] HCA 12

Earlier approaches 2
Gavalas v Singh 2001Victoria
 10 week earlier diagnosis of brain tumour may
have led to a better outcome

Brown v Willington 2001 ACT


 Now clear that loss of chance compensable
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Tabet v Gett [2010] HCA 12

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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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

Approaches to the problem


1
Modify the balance of probability rule

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

Duty Breach Causation Damage


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Tabet v Gett [2010] HCA 12

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

 Kiefel J @ [128]; see also [130]


 Professor Khoury suggests that if loss of chance were a truly
independent type of injury, defendants would be forced to
compensate the plaintiff even if the lost chance resulted in no
actual injury ...
 Recall the Review of the Law of Negligence at page 112, fn
12.
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Tabet v Gett [2010] HCA 12

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.

 extra treatment such as an extra cycle of chemotherapy


 mastectomy that would otherwise have been unnecessary
 mental harm as a result of awareness of the breach of duty
itself
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Tabet v Gett [2010] HCA 12

Issues left open?


 The concept as a whole – Gummow ACJ @ [27]

 Life expectancy – Hayne & Bell JJ @ [69]

 Contract claims – Gummow ACJ at [2], [47] – [49]


 “…In a contract case the plaintiff should be
entitled at least to nominal damages for loss of
the promised opportunity…”
 But what of Civil Liability Act 2002 (NSW)?
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Tabet v Gett [2010] HCA 12

What of uncertain damages?


 No impact
 Kiefel J @ [135] – [136]
 “…It is important to bear in mind, in connection with this
aspect of the appellant's argument, the distinction between
the loss or damage necessary to found an action in
negligence, which is the injury itself and its foreseeable
consequences, and damages, which are awarded as
compensation for each item or aspect of the injury[149].
Different standards apply to proof of damage from those
that are involved in the assessment of damages.”
 See also Gummow ACJ @ [39]
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Tabet v Gett [2010] HCA 12

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

Quote from Bradshaw v McEwans


 Unreported?
 Quoted in Luxton v Vines [1952] HCA 19
 “Of course as far as logical consistency goes many hypotheses
may be put which the evidence does not exclude positively. ....
We are concerned with probabilities, not with possibilities. ….
you need only circumstances raising a more probable inference
in favour of what is alleged. In questions of this sort, where
direct proof is not available, it is enough if the circumstances
appearing in evidence give rise to a reasonable and definite
inference: they must do more than give rise to conflicting
inferences of equal degrees of probability so that the choice
between them is mere matter of conjecture:……..”
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Tabet v Gett [2010] HCA 12

What of material cause or


contribution?
?
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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

Outcome – the principle


 Hayne & Bell JJ @ [68]:

 “to accept that the appellant's loss of a chance of a better


medical outcome was a form of actionable damage would
shift the balance hitherto struck in the law of negligence
between the competing interests of claimants and
defendants. That step should not be taken.”
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Tabet v Gett [2010] HCA 12

Outcome – the principle


 Crennan J @ [102]

 “[102] From the present vantage point, the alteration to the


common law urged by the appellant is radical, and not
incremental, and is therefore the kind of change to the
common law which is, generally speaking, the business of
Parliament.’
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