Loss of the chance – denial of recovery of damages for possibilities and lost chances – Gett v Tabet [2009] NSWCA 76
On 9 April 2009, the New South Wales Court of Appeal unanimously disallowed recovery for loss of a chance of a better clinical outcome in a medical negligence claim. In doing so, it opted against following the relatively recent case of Rufo v Hosking (2004) 61 NSWLR 678, styling its allowance of recovery on such a basis as being “plainly wrong”. This returns the law in New South Wales to a position where a plaintiff, suing a health care provider, must show on the balance of probabilities that a breach of duty of care either caused, or materially contributed to, harm to them. The Court also confirmed that a plaintiff cannot recover damages on the basis of a health care provider’s breach of duty increasing a risk of harm unless it was probable, not merely possible, that the risk eventuated. At least in New South Wales, this resolves some uncertainty as to when a plaintiff can recover damages in cases where the available evidence falls short of demonstrating a clear causal link between breach and harm.
On 14 January 1991, Reema Tabet was diagnosed with a medulloblastoma (a type of lower brain tumour). The previous month, she had developed persistent headaches and vomiting, leading to hospital admission. After she was initially thought to have a streptococcal infection, she was diagnosed with chickenpox, and subsequently post-chickenpox meningitis. Her neurological state deteriorated, but subsequently stabilised. She later suffered a seizure, following which a CT scan was performed, disclosing the presence of the tumour. Although the tumour was partially removed surgically and she subsequently underwent chemotherapy and radiotherapy, she was left with brain damage and consequential disabilities.
At trial before the New South Wales Supreme Court, one of Ms Tabet’s paediatricians was found to have been negligent for failing to arrange an earlier CT scan, which would have led to diagnosis of the tumour and earlier treatment. The trial judge found the delay in treatment was one of four separate causes of brain damage. Although earlier treatment would not have prevented her brain damage, it would have offered the chance of a better clinical outcome. The trial judge decided the delay in performing a CT scan contributed 25% towards Ms Tabet’s injuries and that there was a 40% chance earlier treatment would have offered an improved outcome. She was awarded 40% of 25% of a full value award of damages.
The paediatrician appealed to the New South Wales Court of Appeal, asserting that both the finding of breach of duty and the loss of a chance calculation were erroneous. The entitlement to recover damages for loss of a chance was also challenged. Ms Tabet cross-appealed the findings of no earlier breach of duty, the decision to award damages for loss of a chance only and not on a ‘full value’ basis (i.e. the whole 25%), and the decision not to award damages for financial benefits associated with marriage. With the exceptions of the appeals on existence of damages for loss of a chance and calculation of that chance, the appeals failed. However, the result was that Ms Tabet’s claim against the paediatrician failed.
In terms of the degree of chance lost, the Court found that, whilst the chance lost was more than speculative, the evidence went no further than that Ms Tabet lost a chance somewhere between one which was speculative and one which was of some effect. The Court thought that the trial judge had erred in taking into account the efficacy of other treatments, which on the balance of probabilities would not have been administered. It thought that the loss chance was no greater than 15%, not 40% as found at trial.
In considering entitlement to recover damages for loss of a chance, the Court referred to its own analysis from previous cases, emphasising that causation cannot be established unless a plaintiff can demonstrate that it was probable, not merely possible, that a risk of harm created by a breach of duty eventuated (consistently with the recent case of Melchior v Sydney Adventist Hospital [2008] NSWSC 1282). It saw the doctrine of loss of a chance as representing an event where it was merely possible, not probable, that a risk of harm created by a breach of duty eventuated. The Court observed that allowing recovery for loss of a chance went beyond conventional tort law and the various state and territory statutory tort law reforms, not arising out of any “recognised streams of authority”. The Court was concerned that the doctrine potentially led to far-reaching consequences, which had not been adequately canvassed in earlier cases, and thought it lacked clear limits, particularly whether it could be applied in non-medical negligence personal injury cases. It found nothing to suggest either insurance companies or the public had adapted their relations in reliance on the doctrine. In the Court’s view, it was for the High Court to determine whether such a ‘reformulation’ was permissible and appropriate. Although the existence of a right to recover for loss of a commercial opportunity was acknowledged (see Sellars v Adelaide Petroleum NL (1994) 179 CLR 332), this was a distinct class which could not be used to support recovery for loss of a chance in medical negligence, or other personal injury, cases.
At least for the time being, plaintiffs in New South Wales medical negligence claims will be unable to recover damages for breaches of duty that only possibly increased a risk of harm, or deprived them of the chance of a better outcome. Whether other states and territories will take this approach is uncertain. The position is likely to be similar in both Queensland and South Australia, where Courts have endorsed similar analyses about increased risks of harm in causation. However, it is conceivable, and perhaps even likely, a different approach will be taken in both Victoria and Western Australia. Recovery of damages for loss of a chance has been accepted at appellate level in both states (Gavalas v Singh [2001] VSCA 23; Board of Management of Royal Perth Hospital v Frost (unreported, February 1997)). The Western Australia Court of Appeal recently found that once a plaintiff demonstrates breach of duty followed by injury within an area of foreseeable risk, there is prima facie causation and it is for a defendant to demonstrate that the breach was of no effect, or the injury inevitable (Amaca Pty Limited v Hannell [2007] WASCA 158). The Victorian Court of Appeal has also recently endorsed a similar approach (Freidin v St Laurent [2007] VSCA 16), with the High Court being unpersuaded that such an approach was wrong, at least in that case.
A High Court consideration of loss of a chance in the near future seems inevitable, at least if not in this case then in another case. Even though the New South Wales Court of Appeal emphasised the need for the High Court to consider loss of a chance, it may be that the High Court sees the matter as one for the legislature, not the courts, particularly if it too sees loss of a chance as being as unconventional as did the New South Wales Court of Appeal. Certainly, the issues surrounding the doctrine are complex and require detailed consideration, either by the High Court or the legislature.
