Gett v Tabet - [2009] NSWCA 76

No judgment structure available for this case.

Appeal Outcome: Appeal dismissed with costs by the High Court, 21 April 2010 [2010] HCA 12

New South Wales

Court of Appeal

CITATION: Gett v Tabet [2009] NSWCA 76
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 July 2008, 31 July 2008, 1 August 2008

JUDGMENT DATE:
9 April 2009

JUDGMENT OF: Allsop P at 1; Beazley JA at 1; Basten JA at 1

DECISION: (1) Allow the appeal and set aside orders (2) and (4) made in the Common Law Division on 9 February 2007;
(2) In lieu thereof, order:
(a) judgment for the second defendant, and
(b) the plaintiff to pay the second defendant’s costs of the trial;
(3) Order the respondent to pay the appellant’s costs of the appeal;
(4) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified;
(5) Order the cross-appeal be dismissed;
(6) Order the cross-appellant to pay the cross-respondent’s costs of the cross-appeal.

CATCHWORDS: APPEAL – national integrated legal system – place of intermediate appellate courts within structure of Australian judicial system – departing from existing authority – principle of restraint – certainty in the law – English and Australian authority on doctrine of precedent - APPEAL – precedent – standard of reconsideration – Court of Appeal’s power to depart from previous decisions of Court or co-ordinate courts – nature and quality of error – circumstances in which Court will depart from its earlier decisions – “plainly wrong” – “compelling reasons” – whether Rufo v Hosking should be followed – whether previous decision can be reconciled with principle or with authority – jurisprudential and pragmatic considerations - APPEAL – rehearing – nature of challenge to judgment below – appellate court’s obligation to reach own conclusion – threshold for appellate intervention –limitations on appellate court to comprehend fully evidence and process of trial – resolution of medical experts’ competing views – Supreme Court Act 1970 (NSW), s 75A - TORTS – medical negligence – harm – loss of a chance of better medical outcome – difficulties in identifying harm suffered – whether doctrine consistent with nature of harm in Civil Liability Acts – Civil Liability Act 2002 (NSW), Pt 1A, s 5 - TORTS – negligence – causation – loss of a chance of better medical outcome – whether Rufo v Hosking should be followed – whether Rufo should be followed – distinction between causation of loss and assessment of proven loss – alteration of principle of causation – proof of causation based on creation of risk, not damage on balance or probabilities – whether loss of a chance consistent with causation requirements in Civil Liability Acts – Civil Liability Act 2002 (NSW), Pt 1A, s 5E - TORTS – negligence – distinction between loss of a chance of better medical outcome and deprivation of commercial opportunity - TORTS – negligence – loss of a chance of a better medical outcome – coherence with principles of tort law – expansion and context of negligence law – review of authorities - WORDS AND PHRASES – “common law of Australia” – “compelling reasons” – “harm” – “loss of a chance” – “plainly wrong” – “rehearing”

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s15A
Charter of Justice 1823 (Imp), s 2
Civil Law (Wrongs) Act 2002 (ACT), ss 40, 43, 44, 45, 46
Civil Liability Act 1936 (SA), ss 3, 32, 34, 35
Civil Liability Act 2002 (NSW), Part 1A, ss 5-5I, 5L-5M, 5R, 33
Civil Liability Act 2002 (Tas), ss 9, 11, 12, 13,14
Civil Liability Act 2002 (WA), ss 3, 5B, 5C, 5D
Civil Liability Act 2003 (Qld), ss 9, 10, 11, 12 Commonwealth of Australia Constitution, s 128
Judiciary Act 1903 (Cth), ss 35A(a)(ii), 80
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 75A
Trade Practices Act 1974 (Cth), ss 52, 8
Wrongs Act 1958 (Vic), ss 43, 44, 48, 49, 51, 52

CATEGORY: Principal judgment

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Marshall v Director General, Department of Transport [2001] HCA 37; 205 CLR 603
Matsuyama v Birnbaum 890 NE 2d 819 (Mass 2008)
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New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250
Nguyen v Nguyen [1990] HCA 9; 169 CLR 245
Norwest Refrigeration Services Pty Limited v Bain Dawes (WA) Pty Ltd [1984] HCA 59; 157 CLR 149
Osborne v Rowlett (1880) 13 Ch D 774
Permanente Medical Group, Inc 668 NE 2d 480 (Ohio SC, 1996)
Pidoto v Victoria [1943] HCA 37; 68 CLR 87
Pilcher v HB Brady & Co Pty Limited [2005] WASCA 159 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
Produce Brokers Co (Ltd) v Olympia Oil & Cake Co (Ltd) (1915) 21 Com Cas 320
Public Transport Commission (NSW) v Perry [1977] HCA 32; 137 CLR 107
Purkess v Crittenden [1965] HCA 34; 114 CLR 164
Qantas Airways Ltd v Cameron [1996] FCA 1483; 66 FCR 246
Queensland v Commonwealth [1977] HCA 60; 139 CLR 585
R v Hood [2005] QCA 159; 2 Qd R 54
Re Tyler; Ex parte Foley [1994] HCA 25; 181 CLR 18
Read v Bishop of Lincoln [1892] AC 644
Regina v G [2003] UKHL 50; [2004] 1 AC 1034
RJE v Secretary to the Department of Justice [2008] VSCA 265
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Rufo v Hosking [2004] NSWCA 391; 61 NSWLR 678
Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121
Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332
Seltsam Pty Limited v McGuinnes [2000] NSWCA 29; 49 NSWLR 262
Seltsam v Ghaleb [2005] NSWCA 208
Simpson v Diamond [2001] NSWSC 925
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJR 4
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State of New South Wales v Burton (No 2) [2008] NSWCA 319
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TC by his tutor Sabatino v New South Wales [2000] NSWCA 380
Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595
The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49
The King v Burgess; Ex parte Henry [1936] HCA 52; 55 CLR 608
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PARTIES: Dr Maurice Gett (Appellant/Cross-Respondent)
Reema Tabet by her tutor Ghassan Sheiban (Respondent/Cross-Appellant)

FILE NUMBER(S): CA 40110/07

COUNSEL: S Gageler SC; K Morgan (Appellant/Cross-Respondent)
G K Burton SC; D Hirsch (Respondent/Cross-Appellant)

SOLICITORS: Blake Dawson (Appellant/Cross-Respondent)
Miller Goddard (Respondent/Cross-Appellant)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20239/01

LOWER COURT JUDICIAL OFFICER: Studdert J

LOWER COURT DATE OF DECISION: 9 February 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Tabet v Mansour & Anor [2007] NSWSC 36

CA 40110/07

ALLSOP P
BEAZLEY JA
BASTEN JA
9 April 2009

Maurice Gett v Reema Tabet by her tutor Ghassan Sheiban

Headnote

The respondent was diagnosed with a brain tumour on 14 January 1991. She was then aged six. The diagnosis was made following a seizure, CT scan and EEG and was preceded by a history of chickenpox, as well as headaches, nausea and vomiting. The respondent received treatment, including surgery to remove the tumour and suffered irreversible brain damage as a result of the events on 14 January 1991, the tumour and the treatment received. She brought proceedings against the appellant, a specialist paediatrician, alleging that he had been negligent in his treatment of her. The primary allegation was that the CT scan should have been done earlier, either on 11 January or 13 January, and that if it had, she would have had a better medical outcome.

The trial judge, Studdert J, found that the respondent breached his duty of care by failing to order a CT scan on 13 January 1991. His Honour held that had a CT scan been performed on that date, the respondent’s brain tumour would have been detected. The trial judge concluded that the respondent lost her chance of a better medical outcome because of the respondent’s negligence on 13 January 1991. His Honour also held that the appellant did not perform any negligent acts or omissions prior to 13 January 1991. In assessing damages, his Honour held that the respondent’s decline on 14 January 1991 contributed 25 per cent to her ultimate disabilities and that of that 25 percent, 40 per cent was referrable to her loss of a chance of a better medical outcome.

The appellant appealed and contended that his Honour had erred in three ways: first, by finding that he was negligent in failing both to consider other possible diagnoses and to order a CT scan on 13 January 1991; secondly, by awarding damages to the respondent on the basis of the loss of a chance of a better medical outcome rather than concluding that the found negligence was not causative of the respondent’s loss; and, thirdly, by assuming Rufo v Hosking [2004] NSWCA 391; 61 NSWLR 678 to be correct and applicable in calculating the loss of a chance.

The respondent cross-appealed and submitted that his Honour had erred in three ways: first, by finding that the appellant’s provisional diagnosis of 11 January 1991 illustrated reasonable care on the appellant’s part at that time; secondly, by determining her claim on the basis of a loss of a chance rather than finding that, on the balance of probabilities, the appellant’s negligence caused her brain damage; and, thirdly, by concluding that she was not entitled to damages for the loss of the pecuniary benefits that might have been expected to accrue on marriage.

Held per the Court

The nature of appellate review by way of rehearing:

1. An appeal by way of rehearing under the Supreme Court Act 1970 (NSW), s 75A requires the Court of Appeal to correct errors of law and to assess the evidence, inferences and evaluative judgments made to determine the case. This requirement is subject to limitations on the Court’s ability to comprehend fully the evidence and process of the trial: [14]-[15].

CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1; 80 ALJR 458; Fox v Percy [2003] HCA 22; 214 CLR 118; Costa v The Public Trustee of New South Wales [2008] NSWCA 223; Guest v The Nominal Defendant [2006] NSWCA 77; Biogen Inc v Medeva PLC [1997] RPC 1, applied.

2. To justify intervention the Court has to be satisfied that the trial judge came to the wrong conclusion. Where no error can be identified and the trial judge’s conclusion is not itself implausible, the Court should give weight to the view formed by the trial judge. This approach acknowledges the beneficial position of the trial judge in various respects of the trial: [22].

Reconsidering previous authority of this Court:

3. Intermediate appellate courts are not legally bound by their own earlier decisions, but should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision is “plainly wrong” and, such an error having been identified, there are “compelling reasons” to depart from the earlier decisions: [273], [277]–[278], [281], [286].

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89; John v Federal Commissioner of Taxation [1989] HCA 5; 166 CLR 417; Nguyen v Nguyen [1990] HCA 9; 169 CLR 245; Queensland v Commonwealth [1977] HCA 60; 139 CLR 585; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Rep 81-951; Chamberlain v The Queen [1983] FCA 78; 72 FLR 1; Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553, applied.

4. “Plainly wrong” speaks to the strength of the conviction of the later court that the earlier judgment was erroneous. It is not sufficient for the Court to merely conclude that the earlier approach was open, but is no longer preferred. The nature of the error can be demonstrated by application of the correct legal analysis: [283], [294]–[295].

5. “Compelling reasons” for departure from an authority identified as erroneous encompass both jurisprudential and practical considerations: [301].

RJE v Secretary to the Department of Justice [2008] VSCA 265, applied.

Loss of a change of a better outcome as a basis for a claim in negligence:

and Gavalas v Singh [2001] VSCA 23; 3 VR 404, which have been put forward as Australian authority for awarding damages for loss of a chance of a better medical outcome, should not be followed. This is because they are “plainly wrong”; in particular, awarding damages for loss of a chance of a better medical outcome alters the principle of causation as the plaintiff does not need to prove on the balance of probabilities that the damage was caused by the breach of duty: [330], [366], [375], [377], [389].

7. There were “no compelling reasons” for adopting that change in principle. The reasons for not taking that course, together with an assessment of subsequent events, justify departure from those authorities. In particular:

(a) the doctrine not only departs from conventional principles of tort law but forms no part of recognised streams of authority: [328], [338], [359], [364], [379], [389];

(b) a change to the law of torts with respect to proof of causation based on the creation of risk and fair recompense for loss is a matter of policy for the High Court: [381], [389];

(c) neither case discussed the difficulties and complexities of the application of the doctrine, nor did they place clear limits on the doctrine: [304], [364], [370], [378], [389];
(d) the doctrine can be seen as inconsistent with conventional authority, now reflected in the Civil Liability Acts of the States and Territories, as to the nature of harm required to justify a finding of negligence and the requirement that causation must be established on the balance of probabilities: [384]-[387], [389].

Rufo v Hosking [2004] NSWCA 391; 61 NSWLR 678; Gavalas v Singh [2001] VSCA 23; 3 VR 404, not followed.

Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332, distinguished.
Chappel v Hart [1998] HCA 55; 195 CLR 232; Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47; State of New South Wales v Burton [2006] NSWCA 12; Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572; Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32; Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176, considered.

8. Damages should only be awarded if the Court is satisfied on the balance of probabilities that the breach of duty by the tortfeasor materially contributed to the harm. If the Court is so satisfied, then the tortfeasor will be held liable for the whole of the harm so caused: [321].

9. On the facts of this case, the negligence had not been shown to be causative of any loss. As such, no damages should be awarded: [7].

Claim for loss of benefits accruing on marriage:

10. If the plaintiff was a young child when he or she sustained the disabilities for which compensation is being awarded, the trial judge can choose to reflect loss of marriage benefits in the claim for loss of earning capacity. This approach is preferred to an approach which provides a discrete allowance as a separate head of damage: [392]-[394].

CA 40110/07

ALLSOP P
BEAZLEY JA
BASTEN JA

9 April 2009

Maurice Gett v Reema Tabet by her tutor Ghassan Sheiban

Judgment

1 THE COURT:

Table of Contents

A.	Introduction	[2]
B.	Issues and conclusions	[7]
C.	Nature of the appeal	[10]
D.	Breach of duty	[24]
(1) Legal principles relating to breach of duty	[24]
(2) Initial history and treatment	[27]
(3) Chickenpox and the prodromal period	[37]
(4) History of the respondent’s care under the appellant	[44]
(5) Allegations of negligence against the appellant	[66]
(6) Finding on breach at trial	[67]
(7) Headaches and the timing issue	[77]
(8) The appellant’s provisional diagnosis	[122]
(9) Relevance of the neurological incident on 13 January 1991	[134]
(10) Relevance of papilledema	[151]
(11) Asserted undue reliance on non-paediatric specialists	[170]
(12) Conclusions on breach of duty: 13 January 1991	[176]
(13) Conclusions on breach of duty: 11 January 1991	[194]
E.	Causation: factual questions	[201]
(1) Likely treatment if CT scan on 13 January 1991	[202]
(2) Findings of trial judge on likely treatment	[218]
(3) Lost chance of better outcome	[235]
(4) Respondent’s attack on the causation finding	[246]
(a) possible insertion of drain	[247]
(b) shifting burden of proof	[250]
F.	Departing from earlier authority	[261]
(1) Introduction	[261]
(2) Power to depart: constitutional framework	[263]
(3) Criterion for engagement: nature and quality of error	[274]
(4) Criteria for exercise: discretionary factors	[296]
G.	Loss of a chance: recovery in negligence	[302]
(1) Reformulating harm as a loss of a chance	[302]
(2) Did Rufo proceed on a correct basis?	[320]
(3) Australian authority	[332]
(4) Reconsidering “loss of a chance” as a form of harm	[364]
(5) Gavalas and Rufo not followed	[378]
H.	Claim for loss of benefits accruing on marriage	[390]
I.	Orders	[395]

A. Introduction

2 This appeal concerns the finding by the trial judge (Studdert J) that the appellant, Dr Maurice Gett, a specialist paediatrician, was negligent in his treatment of the respondent, the plaintiff below, Ms Tabet and, liable in damages to the respondent for the deprivation of an opportunity found to be available to the respondent for a better medical outcome: Tabet v Mansour [2007] NSWSC 36.

3 In January 1991, the respondent was six years old. She had recently contracted chickenpox, which had resolved. Both before and after that illness, she suffered from headaches, nausea and vomiting. On 14 January 1991, after suffering a seizure, and after a CT scan and EEG were performed she was diagnosed as suffering from a brain tumour. She received treatment, including an operation to remove the tumour. She suffered irreversible brain damage, partly as a result of events on 14 January 1991, partly from the tumour (which had been growing for over two years), and partly from the operative procedure and other treatment (not said to be in any way negligently performed).

4 The respondent brought proceedings against the appellant in negligence. The central allegation was that the CT scan that was undertaken on 14 January should have been performed earlier, either on 11 or 13 January, and that if it had, she would have had a better medical outcome. The plaintiff also brought proceedings against Dr Mansour, who had treated her in an earlier admission to hospital on 29-31 December 1990. The trial judge held that Dr Mansour was not negligent in his treatment of the respondent and there is no appeal from that decision.

5 The trial judge held, however, that the appellant was negligent in failing to order a CT scan on 13 January 1991. His Honour found no earlier negligent act or omission, thereby concluding that the appellant acted reasonably in making his provisional diagnosis on 11 January that the respondent was suffering from chickenpox or varicella meningitis or encephalitis.

6 Having found that the appellant breached his duty of care, the trial judge did not conclude that this negligence caused or contributed to the seizure and deterioration which occurred on 14 January. Rather, his Honour found that the respondent lost a chance of a better medical outcome had the brain tumour been detected on 13 January 1991, as it would have been if the CT scan had been performed that day. His Honour assessed the respondent’s damages referable to her entire brain damages in a total amount of $6,092,586. His Honour found that it was probable that the respondent’s decline on 14 January contributed to her ultimate disabilities and assessed that contribution to be no greater than 25 per cent, representing an assessment of $1,523,146. An attack by the appellant on this divisible apportionment was abandoned at the appeal. The trial judge assessed that the loss of a chance of a better outcome, that is avoiding the damage referable to the deterioration on 14 January (the 25 per cent), was 40 per cent. The damages to which the respondent was thus entitled for a 40 per cent loss of a chance was $610,000. His Honour thus ordered verdict and judgment for the respondent in that sum.

B. Issues and conclusions

7 The issues raised and our disposal of them are as follows:

(1) First, the respondent challenged the finding that the appellant’s provisional diagnosis made on 11 January demonstrated reasonable care on his part at that time. This challenge fails.

(2) Secondly, the appellant challenged the finding that he was negligent in failing, by 13 January, to consider other possible diagnoses and to order a CT scan on that day. This challenge fails.

(3) Thirdly, the respondent challenged the trial judge’s conclusion that she suffered no more than the loss of a chance of a better outcome. She contended that his Honour should have found that, on the balance of probabilities, the appellant’s negligence caused the whole of the brain injury referable to the seizure and deterioration on 14 January (being 25 per cent of her overall disability). This challenge fails.

(4) Fourthly, the appellant challenged the failure of the trial judge to hold that the negligence was not causative of loss. This issue contained a challenge to his Honour’s conclusion that the respondent was entitled to compensation for the loss of a chance of a better outcome. His Honour applied the decision (in this Court) in Rufo v Hosking [2004] NSWCA 391; 61 NSWLR 678, assumed to be correct and followed without argument in State of New South Wales v Burton [2006] NSWCA 12; (2006) Aust Torts Rep ¶81-826. The appellant sought leave to reargue the correctness of this line of authority, which leave was granted. These challenges succeed. In our view, the question of the causal effects of clinical negligence should be assessed on the balance of probabilities, not on the basis of loss of a chance. Rufo should not be followed. On the facts, the negligence had not been shown to have been causative of any loss.

(5) Fifthly, and related to the question of loss of chance, the appellant challenged the trial judge’s approach to the calculation of the lost chance, assuming Rufo to be correct and applicable. This challenge succeeds. His Honour misapplied the loss of a chance analysis in coming to 40 per cent. On the evidence, the relevant lost chance, if a valid approach, was no greater than 15 per cent.

8 The result of the findings on the issues set out above is that the appellant succeeds because the respondent did not establish on the balance of probabilities that any harm was suffered as a result of the appellant’s breach of duty. On that approach, the issues other than those identified at (3) and (4) above fall away. Nevertheless, this is clearly an appropriate case in which this Court should address each of the major issues identified by the parties: see Kuru v New South Wales [2008] HCA 26; 82 ALJR 1021 at [12]. In doing so, it is convenient to follow the logic of the order in which the issues have been identified above.

9 The issues with respect to lack of reasonable care on the part of the appellant will be addressed first. The resolution of those challenges involves difficult assessment of factual issues, including significant expert evidence. The conclusion that the appellant was negligent on 13 January in not ordering a CT scan does not strike one, upon becoming cognisant of the essential facts, as self-evidently correct. One necessarily pauses to consider whether the events comprised no more than a mistake in professional judgment. This exercise requires identification of the principles to be applied by this Court on an appeal by way of rehearing, in addressing factual questions. In addition, before discussing the correctness of the decision of this Court in Rufo, it is appropriate to identify the circumstances in which the Court can and should depart from its own earlier authority. These matters of legal principle will be dealt with in conjunction with the issues with respect to which they arise.

C. Nature of the appeal

10 An appeal to this Court is by way of rehearing: Supreme Court Act1970 (NSW), s 75A. A rehearing in the statutory sense is an appeal on the basis of the record: see Fox v Percy [2003] HCA 22; 214 CLR 118. This was not a case where there was any further or fresh evidence on the appeal. In Fox v Percy Gleeson CJ, Gummow and Kirby JJ examined the role of this Court on such an appeal and stated, at [25]:

the appellate court is obliged to conduct a real review of the trial

Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect

Warren v Coombes

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’” (Citations omitted; emphasis added)

11 Their Honours observed, at [27] and [29], that appellate intervention was called for if, having made:

“… proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

12 The approach in Fox v Percy was reiterated in unequivocal terms in CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1; 80 ALJR 458, in particular at [13]-[22]; see also the other authorities discussed in Costa v The Public Trustee of New South Wales [2008] NSWCA 223.

13 In order to determine whether appellate intervention is justified in a borderline case, such as the present, it is necessary to identify with some precision the nature of the challenge to the judgment reached at trial. Procedural steps aside, it is conventional to analyse the judicial process by reference to a number of separate exercises undertaken by the trial judge. The first is to identify the nature of the claims and defences and to select the legal principles relevant to determination of those claims and defences. Secondly, having identified the relevant issues, it is necessary to assess the evidence, whether oral or documentary, relevant to each issue. To the extent that there is conflict between the evidence with respect to primary relevant facts, those conflicts must be resolved. Thirdly, in order to satisfy the relevant legal principles, it is usually necessary to draw inferences from the primary facts, or make evaluative judgments or characterisations. (These steps may be variously identified and the order is not assumed to be the same in all cases: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156G.)

14 As made clear in Fox v Percy, on an appeal by way of rehearing, the Court is not restricted to correcting errors of law. Rather, and subject to an important qualification, the Court is required to assess the evidence, inferences and evaluative judgments required to be made to determine the case. So much is treated as its statutory obligation. In some cases, the trial judge is required to exercise a discretion in granting relief. Where a decision may fall within a range, such as the assessment of damages for pain and suffering (or the imposition of a sentence in a criminal matter), the court may decline to intervene unless the trial judge has been shown to have acted erroneously in point of principle. No such question arises on the present appeal.

15 The qualification referred to above involves the limitations on the ability of the appellate court to comprehend fully the evidence and process of the trial. The appellate court suffers from three kinds of limitation in that regard:

(a) not having seen or heard witnesses give evidence and not having seen the whole of the evidence develop and fall out at the trial;

(b) even in respect of documentary evidence and transcripts of oral evidence, not having complete familiarity with the whole of the record often occurring over an extended period of time which the trial judge is likely to have had; and

16 This list is not intended to be exhaustive, but it is useful to bear in mind the points at which an appellate court will need to consider the limitations on its own ability to assess the decision from which the appeal is brought. Those limitations are not restricted to circumstances where findings of credibility have been made. Nor are those limitations restricted to the notion of “an unexpressed and unstated ‘subtle influence of demeanour’”, as described by Kirby J in CSR Ltd v Della Maddalena at [44]. In recent times the limitations of the use of the “subtle influence of demeanour” in the assessment of witnesses giving oral testimony has been pointed out: see Fox v Percy at [28]-[31]; and CSR v Della Maddalena at [180]. The limitations include a degree of wariness about the risks of intuitive judgment which has led to a greater emphasis being placed on objective circumstances, such as consistency with contemporaneous records, by appellate courts.

17 In the present case, the trial judge was required to resolve various conflicts between medical experts, including conflicts as to the proper emphasis which should have been given to the early history of headaches, the significance of imprecise or absent symptoms, the appropriate diagnosis in the circumstances, the appropriate treatment once a proper diagnosis was made and the likely effect of competing forms of treatment. Resolution of these conflicts required an assessment to be made of the persuasiveness of the various medical opinions. In addition, an assessment was required of the appellant himself. He, as the treating practitioner, was required to identify the material upon which he relied and explain his process of diagnosis in relation to events which had occurred some 16 years earlier. With the benefit of hindsight, and repeated reviewing of the circumstances, it becomes easier to identify key events in the medical history. It is far more difficult to put out of one’s mind the knowledge of devastating harm which befell the respondent so as to assess the conduct of the appellant against the events as they had unfolded before him. Even to identify points at which mistakes were made is only a step in the process: it is then necessary to characterise the mistakes as want of reasonable care, rather than error of judgment. The trial judge’s conclusions involved the assimilation and assessment of this large body of evidence.

18 In Guest v The Nominal Defendant [2006] NSWCA 77 at [102], Ipp JA commented that the reason the conclusion of the trial judge commands respect, notwithstanding the appellate obligation to reach its own conclusion, was expressed by Kirby J in Aktiebolaget Hässle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at [97]. Ipp JA said, at [102]:

Aktiebolaget Hassle v Alphapharm Pty Ltd

Biogen Inc v Medeva Plc

19 The comments of Lord Hoffmann in Biogen referred to by Kirby J have been influential, being followed and applied in this Court in Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151 at [52]; Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; Aust Torts Rep ¶81-578 at [137] and in the Full Court of the Federal Court in Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833; 117 FCR 424 at [26]. In Biogen Lord Hoffmann said, at [45]:

Benmax

de novo

20 Embedded within the approach required by all these authorities is the demonstration of error: see the discussion in Costa and Branir.

21 Here, the trial judge’s conclusion did not depend on demeanour or credit. Rather, there were two competing views as to the reasonableness of the appellant’s decision that a lumbar puncture be performed. The competing views, which we will discuss in detail below, depended upon a number of factors including the respondent’s presentation on 11 January 1991, the history of chickenpox, the history of headaches and the occurrence of a neurological event. The resolution of the competing views of honest, skilled witnesses involved a combined assessment of the way in which the experts gave their evidence and the rational force of their views: Guest at [105].

22 To succeed here, the appellant must satisfy this Court that the trial judge came to the wrong conclusion. Where no error can be identified and the conclusion of his Honour is not itself implausible, this Court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment.

23 That said, our task is to review the record in detail in fulfilment of the requirements of the Supreme Court Act, s 75A.

D. Breach of duty

(1) Legal principles relating to breach of duty

24 There was no issue but that the appellant’s care of the respondent should be measured by reference to the standard of care required of a specialist paediatrician: Rogers v Whitaker [1992] HCA 58; 175 CLR 479, especially at 487; F v R (1983) 33 SASR 189 per King CJ at 190-191; Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 441-442 [16].

25 The particular issue in this case is whether the appellant breached his duty of care. This is a question of fact, albeit one involving the application of normative standards: Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; and Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. In particular, the question “did the [alleged tortfeasor] act or fail to act reasonably?” must be resolved prospectively. As Hayne J explained in Vairy, at [105], resolving the factual question whether there was a breach of duty:

“…is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim.”

26 The appellant accepts that the trial judge correctly stated the applicable principles of law, but contends that his Honour gave undue weight to the opinions of other doctors and in particular, to doctors from areas of specialisation different from his own.

(2) Initial history and treatment

27 On 14 January 1991, the respondent was diagnosed as having a brain tumour known as a medulloblastoma. That diagnosis was made as a result of a CT scan carried out on that day. The respondent’s history leading to the diagnosis of medulloblastoma was that she first came under the care of a paediatric specialist, Dr Mansour, on 28 December 1990, at the Royal Alexandra Hospital for Children, after a referral from her uncle, Dr Sheiban, a general practitioner. At that time (28 December), she had a history of persistent headache and vomiting for 10 days, that is, from about 18 December.

28 Dr Mansour treated the respondent on the basis that she had a streptococcal infection. He prescribed penicillin and discharged her the same day. Dr Sheiban referred her back to hospital the next day, 29 December, because the vomiting and headaches had persisted. She was re-admitted to hospital and remained there until 31 December 1990, under the care of Dr Mansour. On admission, there was no evidence of papilledema (that is, swelling of the optic nerve due to pressure). The relevance of the presence or absence of papilledema is discussed below. Various tests were performed whilst she was in hospital, but all returned a negative result and all neurological examinations up to the date of discharge on 31 December were normal. By the date of discharge, she had a chickenpox rash. The respondent’s brother had had chickenpox, his rash, or lesions, first appearing on 16 December 1990. It was accepted that the respondent had contracted chickenpox on about this date from exposure to her brother’s chickenpox.

29 Between the date of her discharge on 31 December 1990 and 11 January 1991, the respondent remained at home, suffering from chickenpox. Her headaches and vomiting persisted and, on 11 January, either her uncle or grandfather, also a general practitioner, referred the respondent to the appellant, who was caring for Dr Mansour’s patients while Dr Mansour was away. The appellant arranged for her re-admission to hospital that day.

30 The appellant provisionally diagnosed the respondent as having post-chickenpox meningitis, and he ordered that a lumbar puncture be performed that day (11 January). That attempt was unsuccessful due to the respondent’s distress in undergoing the procedure. The respondent remained in hospital.

31 At about 11 am on 13 January, the respondent had a neurological episode which we will describe in more detail later. The appellant was notified. He directed that the lumbar puncture be carried out urgently. This was done.

32 On 14 January, the respondent suffered a serious deterioration in her condition, suffering a seizure. A CT scan was performed urgently. This revealed the presence of the medulloblastoma. A right frontal intraventricular drain was inserted by Dr Maixner, a neurological Registrar at the hospital, to relieve intracranial pressure.

33 On 16 January 1991, Mr Johnston, a neurosurgeon, assisted by Dr Maixner, operated to remove the tumour. The removal was only partially successful, leaving an attachment in the floor of the fourth ventricle. Chemotherapy was undertaken between 26 February and 7 May 1991 and radiotherapy from 20 May to 2 July 1991. The respondent is now significantly disabled.

34 The central allegation of negligence against the appellant was that he should have arranged a CT scan when the respondent came under his care on 11 January 1991 and certainly before the need arose for the insertion of the intraventricular drain on 14 January 1991. It was also alleged that the lumbar puncture should not have been ordered and that it was this procedure, undertaken on 13 January 1991, that caused the deterioration in the respondent’s condition on 14 January 1991. It was alleged that had the appellant promptly arranged for a CT scan and not ordered the lumbar puncture, the respondent’s treatment would have been different, both in timing and content from that undertaken, with a better outcome for her.

35 The trial judge found that the respondent was suffering from a medulloblastoma that had been growing for over two years and was increasing in size during the period Dr Mansour was treating her and that Dr Mansour failed to diagnose this. His Honour also found, at [48 (ii)], that had Dr Mansour ordered a CT scan in December, it would probably have established the presence of the tumour. The trial judge found, however, that Dr Mansour was not negligent in his treatment of the respondent. In particular, his Honour held that given the virtually unanimous paediatric and neurological evidence, Dr Mansour was not negligent in failing to order a CT scan in December.

36 Before proceeding to consider the questions raised on appeal, it is important to understand and put into perspective a matter central to an understanding of the claim made against the appellant. That is the symptoms that accompany chickenpox.

(3) Chickenpox and the prodromal period

37 Chickenpox is a viral illness. The accepted medical evidence was that following exposure to chickenpox, the virus develops within the body without symptoms for a period of 14-16 days (with a maximum 10-21 days), and is followed by a period of non-specific symptoms such as headache, typically for 24-48 hours, but up to 1-5 days, prior to the appearance of lesions.

38 There was some confusion during the hearing, as well as on the appeal, in relation to terminology and in particular, as to the meaning of the “prodromal period” and “incubation period” of chickenpox.

39 Dr Allen, a paediatrician, used these terms interchangeably, maintaining that “the incubation period is exactly the same as the prodromal” period. Dr Allen stated in his expert report that the prodromal period of varicella is 14-16 days, although it could range from 10-21 days. Dr Allen explained in examination in chief that the prodromal period is the time from contact with the varicella vesicles (the blister-like lesions) until the beginning of symptoms. He then described a prodromal symptom period, before the appearance of the rash, during which the patient feels unwell, has fever, headache, anorexia, and the signs of a viral infection. Muscle pain and sore eyes might also be a feature. He said that the prodromal symptoms may last for up to a week before the lesions present, but usually only last 3-5 days. The lesions, once they appear, may last up to ten days. Notwithstanding Dr Allen’s initial elision in terminology between the incubation period and the prodromal period, he agreed in cross-examination that headaches and vomiting do not occur during the incubation period.

40 Dr Knight, a paediatric intensive care physician, drew a distinction between the incubation period in the prodromal period, describing the incubation period of varicella as the time from initial exposure to a person whose chickenpox lesions had appeared, to the onset of symptoms. He said that this period is usually 14-16 days after exposure, but could range from 10-21 days. Dr Knight described the “prodrome” as a set of non-specific symptoms that predate the typical features of an illness and the “prodromal period” as the period in which those symptoms appeared. In the case of varicella, the prodromal period was 24-48 hours and the prodromal symptoms typically included fever, malaise and headache. In cross-examination, Dr Knight accepted the prodromal symptom period could extend for up to five days at the most. Beyond that period, he did not consider the respondent’s symptoms could be attributable to the prodrome of chickenpox.

41 The appellant agreed that the prodromal period for chickenpox is usually short, could be variable between patients and could be longer than 24 hours.

42 Dr Mansour’s evidence was that symptoms could occur during the incubation period. This evidence was inconsistent with the other medical evidence and was rejected by the trial judge.

43 We will adopt the terminology, used by Dr Knight, of incubation period and prodromal period, noting that the trial judge also used this terminology. However, the important question in this case, as will be apparent from the section from [77] below entitled “The headaches and the timing issue”, is the period in which symptoms such as headache and malaise were experienced by the respondent.

(4) History of the respondent’s care under the appellant

44 In the period prior to her re-presentation to hospital on 11 January 1991, the respondent had severe chickenpox lesions all over her body and face, as well as on her tongue. She was lethargic and was losing weight, and during this time she vomited on at least two occasions. She complained of stomach pain and headaches, although the significant complaint was of the rash and chickenpox lesions on her body.

45 On 10 January 1991, the respondent woke “screaming from headaches” and became less responsive to her parents. On 11 January, the respondent’s father described her as being “the same or a bit worse than the day before”. She was inactive, pale, tired, complaining of pain. He thought she vomited, but “she was really indicating that she has pain in her head or headache”.

46 The evidence of the respondent’s mother was to the same effect, although she said what she most noticed during this period was that the respondent was getting very pale and losing a lot of weight. She was very tired and not interacting.

47 When the chickenpox rash settled down, the respondent’s parents observed that she was still vomiting and still had headache. The respondent’s mother contacted either her father or brother (both general practitioners), who referred her to the appellant.

48 The appellant saw the respondent in his consulting rooms at the hospital on 11 January 1991. The appellant observed that the respondent was dehydrated, irritable, listless and did not interact well. Although he did not have notes of the consultation, the appellant remembered that the respondent’s parents said that she wasn’t drinking much and that she was complaining of headaches. The appellant conducted a full neurological examination, including examining her cranial nerves, her power, tone and reflexes and the ocular fundi to see if there was any evidence of raised intracranial pressure. In his evidence, the appellant said that the focus of his attention when he first saw the respondent was her deterioration in the preceding few days, that is, “her immediate problems”, including her headaches and general condition.

49 As the respondent had just had chickenpox, the appellant was concerned about the possibility of inflammation of the lining of the brain, that is, of the meninges, and the possible inflammation of the underlying brain itself. The inflammation of the lining of the brain is known as meningitis. Where the lining of the brain is swollen and inflamed, there is often an underlying inflammation of the brain tissue itself. That condition is known as encephalitis. The diagnosis of encephalitis is made by an examination of the spinal fluid, which is achieved by undertaking a lumbar puncture, involving the insertion of a needle into the base of the spine to obtain a sample of the fluid surrounding the brain. The appellant said in his evidence that if infection and inflammation of the brain were suspected, then a lumbar puncture was the first test that should be undertaken.

50 The appellant arranged for the respondent to be admitted to hospital under the care of Dr Kohn. The appellant wrote a note to Dr Kohn in the following terms:

LP

IVI fluids

51 Dr Kohn examined the respondent. Her pupils were found to be normal. He examined various cranial nerves and tested for neck stiffness. There were no signs of neurological abnormality. The respondent was also examined by Dr Blissta on the same date. According to the hospital notes (apparently of Dr Blissta) there were no meningeal signs and the respondent was afebrile, conscious and well-oriented.

52 The hospital notes record that Dr Kohn unsuccessfully attempted a lumbar puncture on 11 January and discussed this result with the appellant. The attempt had been abandoned because of the respondent’s distress. From 3.30 pm until 6.30 am on 12 January, the respondent’s neurological condition was stable, although the nursing night report recorded that the respondent had had an unsettled night and had vomited three times. Panadol had been given at 12.40 am with minimal effect. The respondent’s neurological status remained satisfactory for the rest of that day, although the nursing notes record that the respondent was unsettled and irritable at times. She was afebrile and was not tolerating clear fluids. She vomited twice, probably at about 9.45 am, when it appears that attempts were made to provide her with fluids.

53 The appellant examined the respondent in hospital on 12 January 1991, after first examining Dr Kohn’s notes. The appellant’s notes record that she was still vomiting and was afebrile, and he diagnosed a viral infection. The clinical picture at this time was that the appellant was still listless and irritable. However, there were no focal signs (that is, there was no weakness of one side compared to the other and her pupils were equally reactive). The appellant stated in his evidence that the respondent’s clinical condition was still consistent with meningoencephalitis. The appellant decided to defer a lumbar puncture for at least 24 hours because the respondent was “clearly irritable and crying”.

54 During the course of the evening of 12 January, the respondent complained of headache at about 11 pm and was given Panadol, with good effect. She slept until 4 am, when she woke, feeling nauseous and she vomited a small quantity of yellow-green fluid. She was again given Panadol with good effect. She was afebrile and neurological observations remained within normal limits.

55 On 13 January 1991, at 11 am, the respondent’s father observed that the respondent was lying still and staring into space. He called to the nurse for her attention. The nursing note records that although the father called out to nursing staff because the respondent was “staring and unresponsive”, she was observed to be “responsive but irritable and drowsy and complaining of headache”. However, and importantly, her pupils were noted by the nurse to be unequal and her right pupil was not reactive.

56 Dr Jones, the registrar on duty, was called. His hospital note states “Viral encephalitis” and “Now [increasing] headache, drowsy … pupils equal and [reactive]” (emphasis added). He also noted that the respondent was responsive to commands. Dr Jones discussed the respondent’s condition with the appellant, including the observations of the nurse. The appellant examined the respondent (although he was unable to remember the details) and ordered the lumbar puncture.

57 The appellant said he was still concerned about the respondent’s condition and the reason he ordered the lumbar puncture was that he still did not have a definitive diagnosis. This decision was supported in the evidence by Mr Johnston, Dr Allen and Professor Watson, neurologist.

58 The lumbar puncture was performed at approximately 11.30 am on 13 January. The pathology results of the lumbar puncture were not obtained until 29 January, although the delay was undoubtedly because the events of 14 January overtook all other matters. The nursing notes for the balance of the day record that the respondent’s condition was stable and that her pupils were “equal and reacting”.

59 The respondent’s father said that there was another incident at about 9 pm on 13 January, when the respondent was again staring and he called the nurse. He also said a doctor attended. There are no hospital notes of this incident. The notes do record that the respondent had an unsettled night. She was seen by Dr Lane, a resident medical officer, at 1 am on 14 January, who noted that persisting headaches were not relieved by regular doses of paracetamol and codeine. Dr Lane recorded that the respondent’s neurological signs were stable. He did observe that there was “neck guarding and stiffness”.

60 At midday on 14 January, the respondent had a seizure, preceded by an episode, about 15 minutes earlier, of staring into space. She was unresponsive on examination. Her pupils had deviated to the left side. Nystagmus (rapid, involuntary eye movement) was observed and the respondent’s pupils were of different dimensions. The seizure lasted for approximately 15 minutes. Dr Ouvrier, neurologist, was called and a CT scan was undertaken at 12.40 pm, which detected the medulloblastoma. The CT scan report was of a posterior fossa tumour with obstructive hydrocephalus.

61 Following the scan, the respondent was referred for an EEG. The EEG report, which was signed by Dr Ouvrier, concluded:

severe elevation of intracranial pressure and/or varicella encephalitis

62 The appellant’s condition continued to deteriorate and shortly after 2.15 pm a ventricular drain (CFS drainage) was inserted by Dr Maixner.

63 On 15 January, Dr Maixner observed the respondent had improved with the CFS drainage. She was able to breath spontaneously, her pupils were equal and reactive, her eyes were midline, her corneals were present, although better on the left, her left arm flexed to pain and she crossed her legs spontaneously.

64 On 16 January, Mr Johnston carried out an operative procedure to remove the tumour. Dr Maixner assisted. Dr Maixner recorded that:

“… a large tumour was found arising from the wall of the fourth ventricle on the right side. The tumour had spread in a subpial fashion over the surface of both cerebellar hemispheres and was protruding over the foramen of Magendie. I documented that an incomplete removal of the tumour was achieved.”

65 Following surgery, the respondent had sessions of chemotherapy between February and May 1991. Following that, she had radiotherapy between May and July 1991.

(5) Allegations of negligence against the appellant

66 The trial judge recorded three essential allegations of negligence made against the appellant, as follows:

“(i) The appellant was negligent in not arranging for a CT scan;

(ii) The appellant was negligent in arranging for lumbar puncture when there was a risk of raised intracranial pressure;

(6) Finding on breach at trial

67 The trial judge found, at [122], that there was support in the medical evidence for the reasonableness of the appellant’s provisional diagnosis of post-chickenpox encephalitis made on 11 January. In this regard, it should be noted that the respondent saw two other practitioners at the hospital on 11 January: Dr Kohn and Dr Blissta, both of whom undertook a neurological examination of the respondent. No neurological signs were evident on those examinations. At this stage, the only significant indication which was inconsistent with the provisional diagnosis made by the appellant was that the plaintiff’s headaches and vomiting predated the chickenpox prodromal period and were therefore unlikely to be associated with post-chickenpox meningitis or encephalitis.

68 It is not clear whether the appellant appreciated at the time he decided to proceed with the lumbar puncture on 13 January, that the respondent had a history of headaches going back to 18 December 1990. His Honour found that if the appellant did not in fact know that history, the means of becoming aware of it were available, both from the hospital records relating to the first admission and from the respondent’s parents, one of whom was always at the respondent’s bedside. This finding is of particular significance, as it was made in the context that his Honour found that the reason the appellant had arranged for the respondent’s admission to hospital on 11 January was to explore her history.

69 His Honour returned to this issue at [192], where he made the following finding:

“… the provisional diagnosis upon which the appellant was proceeding on 13 January 1991 did not satisfactorily account for the history of headaches and vomiting from 18 December 1990 onwards. In evidence to which I earlier referred (at [138]) the appellant said that exploring the history of headaches was "a reason for admission", but as at 13 January 1991 there was no satisfactory explanation for their duration, and the episode at about 11.00 am on that date needed to be assessed with this consideration very much in mind.”

70 The appellant specifically challenges the findings in this paragraph. This challenge is central to the appellant’s attack to his Honour’s finding of breach of duty.

71 In finding that the appellant had breached his duty of care, the trial judge accepted the opinions of Dr Knight, Dr Hopkins, Mr Wallace, Mr Klug and Dr Maixner over the evidence of Mr Johnston, Dr Allen and Professor Watson. In particular, his Honour was persuaded by the respondent’s experts that there was an urgent need for a CT scan following the incident at 11 am on 13 January, when the respondent’s pupils were observed to be unequal and the right pupil to be not reactive.

72 The relevance of that incident is that it was the first recording of a neurological incident. His Honour considered that its occurrence introduced an additional element that had to be weighed by the appellant in the exercise of reasonable care. His Honour found that once that incident occurred, the appellant ought to have arranged for an immediate CT scan and ought to have waited on its results, before proceeding to have a lumbar puncture carried out. His Honour further found that had a CT scan been performed on 13 January, the medulloblastoma would have been detected and the lumbar puncture would not have been performed. In making this finding, his Honour stated that he was conscious of the difficulties that the case presented for the appellant, by reason of the concurrence of the severe infection, that is, the chickenpox and the presence of the medulloblastoma.

73 His Honour found no earlier negligent act or omission.

74 The appellant contends that although his Honour correctly stated the legal principles in determining whether there had been a breach of the appellant’s duty of care to the respondent, he arrived at the wrong answer, because he gave undue weight to expert evidence that was given with the benefit of hindsight by persons who were not specialist paediatricians.

75 The appellant also complains that the trial judge gave undue weight to the respondent’s history of headaches. He says that the headaches from which the appellant was suffering on 11 January were consistent with his provisional diagnosis, of post-chickenpox encephalitis. It was that provisional diagnosis that the appellant sought to test by deciding that a lumbar puncture be performed before a CT scan, should a CT scan become necessary at all. The appellant contends that as his Honour found that his provisional diagnosis of post-chickenpox encephalitis was “understandable”, his Honour thereby implicitly found that it was reasonable. Accordingly, the appellant’s decision to test for that provisional diagnosis was also reasonable and that in pursuing that course he did not fail to exercise reasonable care.

76 The appellant further complains that in reaching the conclusion that the appellant was negligent in failing to order a CT scan on 13 January 1991, his Honour gave insufficient weight to two important factors: first, the lack of neurological signs prior to 13 January; and, secondly, the transient nature of the neurological symptoms that occurred at 11 am on that day.

(7) The headaches and the timing issue

77 The consideration that dominated the evidence of those experts whom his Honour accepted, was the history of the respondent’s headaches. If chickenpox-related headaches only occurred during the prodromal phase, it was necessary to determine when that period commenced. Two dates were relevant. The first was 16 December, when the respondent’s brother’s chickenpox lesions appeared. The second was 18 December, which was the date his Honour found the respondent first began experiencing headaches.

78 The timing was important, because, if the headaches could not be explained by chickenpox in the prodromal phase, that would have put the appellant’s provisional diagnosis of chickenpox meningitis or encephalitis into doubt so that when the neurological episode occurred on 13 January, the appellant should have sought to investigate the respondent’s neurological state by arranging for a CT scan, rather than by seeking to confirm or negate meningitis and encephalitis by way of a lumbar puncture.

79 The recorded history relating to headaches commenced relevantly with the consultation with Dr Sheiban and his referral to Dr Mansour. Dr Sheiban’s consultation notes of 26 December contained a history of headaches. Dr Sheiban’s referral note to Dr Mansour of 28 December 1990 was in the following terms:

80 Dr Mansour’s notes taken on 28 December recorded:

81 On the second referral, on 29 December, Dr Sheiban’s note again referred to the history of headaches, in the following terms:

82 On 29 December, the respondent underwent two medical examinations. Dr Durman, who conducted the first examination, recorded “intermittent vomiting, headaches and abdominal pain for ten days”. A neurological examination was normal. Dr Williams conducted the second examination and it was following that examination that the respondent was admitted to hospital. It is not clear from the evidence whether Dr Durman and Dr William’s notes formed part of the hospital records.

83 The nursing notes (which were part of the hospital records) for 29 and 30 December record the following:

“… headache and vomiting and has been unwell for 10 days. Afebrile in no apparent distress. Looks unwell and lethargic.”

84 The discharge notes from the second admission also contained a reference to a history of headaches from 18 December. The respondent relies on those notes as indicating that a full history was always part of the hospital records.

85 The appellant said he thought that, on 11 January 1991, he enquired of the respondent’s parents about changes in the affect of the respondent, that he had examined her for weakness (which he agreed could be a symptom of a neurological problem) and had asked questions about ataxia, noting that she could not walk when asked to. He said that she was in fact weaker and he had to lie her down to examine her properly.

86 The appellant said that he probably learned from the respondent’s parents and Dr Kohn on 12 January of the history of headaches going back to 18 December. His evidence was not as clear in cross-examination when he said that he did not become aware of the history of headaches going back to 18 December until 13 January after the lumbar puncture following her deterioration that day. He was cross-examined extensively on this issue, as we discuss more fully below. He was also recalled and further cross-examined on many of the same issues.

87 On 12 January when the appellant visited the respondent in hospital, he looked at the hospital notes of her current admission and in particular, Dr Kohn’s notes, but did not look at any other records. He said that he was not aware at that stage that the respondent had had an earlier admission. Although Dr Mansour spoke to him in relation to the respondent, the appellant said that Dr Mansour did not inform him of her hospitalisation from 29 to 31 December. He had only informed him of the chickenpox.

88 The appellant was cross-examined as to whether he had ever reviewed hospital records in relation to the respondent’s first admission:

“HALL: Q. You see, doctor, the history you had from Dr Mansour was that this child had Chickenpox?
A. Yes.

Q. And relevant to your consideration of that history was knowing whether it had been contracted and what stage it was at?
A. Yes.

Q. And that entails, I suggest to you, looking at what had been recorded in relation to her past history in relation to that condition?
A. Yes.

Q. And is it the case that now you say you never saw her records relating to her admission in December 1990?
A. Yes .

To put it another way, you certainly never read them?

89 The appellant was pressed on this question and confirmed in response to two further questions that he never looked at the records of the previous admission and never had any relevant history of Dr Mansour’s examination of the respondent. He confirmed both of these matters in later cross-examination.

90 In further cross-examination, the appellant conceded that he did read at some point during the course of treating the respondent that Dr Mansour had seen the respondent on 30 and 31 December. This evidence brought the focus of the cross-examination back to the records and history that were available to the appellant. He said that the records of the earlier admission could have been with the hospital records, but that he had never read them. He was then asked:

91 The trial judge also questioned the appellant as to the respondent’s history of headaches:

“HIS HONOUR: Q. What history did you have, doctor, by 12 January, that's the day following your first consultation … headaches and vomiting, how long had they been experienced by this young girl?
A. The history from Dr Mansour, plus the history from the parents or the carers.

92 There was further cross-examination and his Honour again returned to the history that the appellant had of the respondent’s headaches:

“HIS HONOUR: Q. Doctor, I am still not clear as to what history you had as to when the headaches and the vomiting had started, at the time you referred her for admission and then on the day following when you saw her after she had been admitted --
A. Yeah.

Q. -- can you help with me that?
A. Regarding the headaches?

Q. Headaches and vomiting?
A. Yes. At the time of the acute admission, the emphasis was on the deterioration in the preceding few days from the carers, and I think it was the mother and father and myself. So it was just in that period that I was concerned about the headaches and general condition.

Q. But what history you had, is that only the headaches?
A. Yes.

Q. Or as to the headaches and vomiting?
A. Yes. Yes, and the parents were distressed and so was I. It was the acute phase that was concerning me.

Q. Did you at some stage learn that the headaches began somewhere about 18 December; the headaches and vomiting?
A. It was probably the following day.

Q. When you learnt that on 12 January?
A. Yes.

93 As we have already noted, the appellant said later in cross-examination, that he was not aware that the respondent had suffered from persistent headaches and vomiting at least from 18 December 1990 until after she deteriorated following the lumbar puncture on 13 January 1991. That deterioration was on 14 January. The appellant agreed, however, that prior to the lumbar puncture, he knew the respondent had headaches, but maintained that he was not given a history of headaches “as a major event”. It is perhaps also relevant to note at this point that the appellant accepted that there were references in the hospital records to “significant vomits”.

94 The appellant was cross-examined regarding the inquiries he made at the time of the respondent’s second admission and particularly regarding the enquiries he made of the respondent’s parents regarding her medical history. The appellant agreed that on admission on 11 January 1991, he was told that the respondent had been vomiting and had had headaches. The cross-examination proceeded:

“Q. You would agree with me that a reasonable competent medical practitioner in your specialty being told, first of all, of vomiting would have wanted to know for how long and when?
A. The, at the time of admission it was clear I wanted the child into the ward as soon as possible and there wasn't volunteered to me, nor did I specifically question them at that time, of the duration. All I knew that she was vomiting, but they were focused on the acute phase of that admission.

…

95 In re-examination, the appellant rejected any suggestion that when he first saw the respondent’s parents on 11 January 1991, he failed to take a proper and adequate history from them. He agreed that the parents had informed him of a history of vomiting, headache and stomach ache and dehydration. The appellant agreed that the history of headaches can be of significance to someone in his speciality, and that generally, headaches are caused by intracranial problems. However, he disagreed with the proposition that he failed to elucidate the history of headaches, and added that headaches can have multiple causes. Counsel for the respondent then asked the appellant:

“Q. And will you not agree that as a reasonably competent practitioner in your specialty you needed to explore the history you were given so that you could determine what was the likely cause of those headaches?
A. Well, that was one of the reasons for admission; to, in fact, explore those various options.

…

Q. Well, you see, I suggest to you that if you had adequately explored with the parents what you would have come to was a conclusion that the history of the headaches was inconsistent with any complication of varicella?
A. I disagree.

…

Q. Will you agree with this, if you had been told on specific questions that the headaches dated back to the 18th of December 2000 would you not have concluded that the headaches were not related to any complication of varicella?
A. But these headaches may have been another cause on the 18th and it may be a different cause when I saw the [respondent]. One cannot be sure.

Q. Well, what that means, of course, is that if you had that history you would have had to explore that history even further?

...

WITNESS: Well, that was the problem with the headaches. In fact, one had to explore the nature of the headaches and the specifics for the reason for the admission and that's the reason for admission, to stabilise and to observe and to evaluate the headaches.

354 Gaudron J considered the question in more detail at [28]-[36], stating at [29]-[30]:

“It is well settled that, where breach of contract results in the loss of a promised chance, that is an actual loss for which damages will be awarded ‘by reference to the degree of probabilities, or possibilities, inherent in the plaintiff's succeeding had the plaintiff been given the chance which the contract promised.’ So, too, damages may be recovered for a commercial opportunity that is lost in consequence of a breach of contract. And it was held in Sellars … that the loss of a commercial opportunity is ‘loss or damage’ for the purposes of s 82(1) of the Trade Practices Act 1974 (Cth). Moreover, there is no reason in principle why loss of a chance or commercial opportunity should not constitute damage for the purposes of the law of tort where no other loss is involved. However, different considerations apply where, as here, the risk eventuates and physical injury ensues.

355 Her Honour noted that in a “failure to diagnose or treat” case the contention that the loss suffered is the loss of a chance rather than the injury or physical disability that eventuates “is essentially different from the approach that is traditionally adopted”: at [32]. Her Honour rejected that approach in such a case: at [36]. However, she did so in part upon the view that difficulties in establishing causation in such cases were exaggerated: at [31]. Whether her Honour’s views with respect to causation have been adopted in full may raise an issue in respect of that part of her Honour’s reasoning.

356 McHugh J made no reference to the issue; Kirby J referred to it but expressed no opinion in the circumstances of the case: at [77].

357 Callinan J took a different approach. His Honour stated at [128]:

“On the evidence here the jury were entitled to hold that the failure, the treating doctor's omission either to undertake an angiogram or the failure to give any consideration to the undertaking of it, materially contributed to the appellant's condition. They would also be entitled to take an alternative view that the second respondent's conduct, although it might not be possible to say (on the balance of probabilities) that it definitely materially contributed to the plaintiff's final condition, at least caused him to lose a valuable chance (the value of which it was for them to assess) of avoiding being in the condition that he now finds himself. There is still, in my opinion, room for the operation of the loss of chance rule (particularly in cases involving the practice of what is even today said to be an art rather than a scientific skill), enabling a plaintiff to recover damages to be equated with, and reduced to the value of the chance he or she has lost, rather than the damages which would be appropriate if it has been proved on the balance of probabilities that the plaintiff's condition owes itself to the defendant's acts or omissions.” (Citations omitted)

358 His Honour acknowledged that there were difficulties with such an approach: at [129]. In particular, he expressed the view that it should only work in favour of a plaintiff: that is a plaintiff who had established loss on the balance of probabilities should not have his or her damages reduced, but the plaintiff who established a lower chance, so long as it was real and substantial, should receive a proportionate award: at [130].

359 As subsequent authorities have recognised, conflicting dicta in the High Court provide no guidance to intermediate courts of appeal, let alone trial judges, as to how to approach such an issue. Nevertheless, recognition that such a course would be a departure from the traditional approach and that it involves significant issues of policy should discourage both trial judges and intermediate courts of appeal from adopting such an approach, absent further guidance. More importantly, Callinan J did not reason by way of analogy from the commercial cases, such as Sellars, and Gaudron J, who expressly referred to Sellars, stated that “different considerations apply where … physical injury ensues”: at [29]. With respect, that must be so.

360 The earliest reported Australian case in which damages were expressly awarded for harm identified as a loss of a chance of a better medical outcome appears to have been Gavalas v Singh [2001] VSCA 23; 3 VR 404. That case also involved a failure to diagnose a brain tumour. The negligence, as found by the trial judge, resulted in a delay of some 10 weeks. Damages were awarded by the trial judge on the basis of a prolongation of intractable headaches and left-sided weakness during that period. There was, accordingly, no dispute that the tort was established. The question was whether the trial judge had failed to allow some further amount for the loss of a chance of a more successful removal of the tumour when the diagnosis should have been made. The primary opinion in the Court of Appeal was delivered by Smith AJA (Ormiston and Callaway JJA agreeing). Smith AJA noted debate as to whether damages for a lost opportunity were available in tort, noting “judicial support for the two extreme positions but no binding authority denying the entitlement to compensation for such a loss in all cases”: at [37]. His Honour continued, at [38]:

‘The law of negligence may be seen as directed to several purposes, but purposes of compensating the injured and promoting reasonable conduct are prominent among them.’

Sellars …

‘The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity.’

361 Ormiston JA substantially agreed with Smith AJA and approached the determination of the appeal on the basis that the “loss of a chance” was compensable. Callaway JA stated, at [15], that:

“No advanced system of law could now deny recovery where late diagnosis, in breach of duty to the patient, appreciably reduces the prospects of success of an operation.”

362 The first internal quotation set out by Smith AJA in the passage above was from the judgment of Hayne J in Chappel v Hart at [123]. However, that view did not lead to a conclusion of upholding liability on the facts of Chappel. The second passage quoted by Smith AJA, from Sellars at 355 (set out at [344] above], followed a discussion of the principle that hypothetical questions with respect to the assessment of loss should be assessed by reference to possibilities in hypothetical circumstances and applying Malec as set out. The next passage in the joint judgment, not quoted by Smith AJA, was as follows:

“Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages.”

363 In Gavalas it was not in question that the plaintiff had established liability on the part of the defendant, including the element of actual harm. On one view, the assessment of loss in such circumstances was properly approached on the basis of the principles established in Malec. Sellars did not suggest any departure from conventional principle in this respect.

(4) Reconsidering ‘loss of a chance’ as a form of harm

364 In Rufo there was no need to consider the conceptual basis of such a claim because “there was no challenge to Studdert J’s formulation of what the appellant was required to prove to recover damages for loss of the chance of a better outcome”: at [207] (per M W Campbell AJA). Further, to the extent that his Honour relied upon English case-law in support of the conceded approach, that analysis cannot stand alongside the more recent analysis of that case-law provided in Barker.

365 As appears from the passages set out above, Hodgson JA and Santow JA approached the case on the basis that, as explained by Hodgson JA at [9]:

Malec

Sellars

366 To say that such an approach is consistent with Malec and Sellars is not to justify its adoption. Indeed, it is, with respect, to ignore the distinction between causation of loss and assessment of proven loss, established in Malec and the fact that “different considerations apply” in respect of medical negligence, as compared with the circumstances in Sellars, as noted by Gaudron J in Naxakis at [29]. Further, once one views the harm (and its assessment) by reference to the materialised physical harm or debility, the role of increased risk in the analysis becomes clear.

367 In State of New South Wales v Burton [2006] NSWCA 12 the plaintiff had suffered post-traumatic stress disorder as a result of being fired upon whilst acting as a police marksman at the scene of a siege. He did not sue the offender, but the State, alleging a failure on its part to provide appropriate counselling. Spigelman CJ stated at [25]:

“The PTSD was not caused by the failure to have counselling, or take other ameliorative steps. It was caused by the shooting. The relevant loss in this case is the loss of a chance of a better outcome. The focus of attention must be on the extent to which the Respondent’s condition would or could have been improved had earlier counselling been provided.”

368 As explained by Lord Walker of Gestingthorpe in Barker, “indivisible damage is not always instantly recognisable”: at [111]. The law has long recognised that most forms of harm are capable of being the result of a combination of causal elements. However, the purpose behind a proposed division of the harm into constituent parts may affect the outcome of the exercise. Conventionally, with indivisible harm, the plaintiff can recover the full amount of his or her loss from any contributing tortfeasor. While there may be apportionment between tortfeasors, there is usually no apportionment between tortious and non-tortious causes, although, in assessing damages, the amount may be limited where it can be shown that a pre-existing cause would have achieved the same level of disability after a certain time in any event.

369 Different questions arise where the plaintiff cannot demonstrate that particular negligence would, on the probabilities, have caused any worse outcome for him. Putting to one side the failure to warn cases, such as Chappel v Hart, which does not itself support recovery on the basis of a loss of a chance, the result in a particular case may depend upon how the plaintiff seeks to identify the harm suffered and whether, as a matter of fact, some divisible element of harm attributable to the defendant can be established, as suggested in Burton.

370 To the extent that these authorities suggest that a chance of avoiding or diminishing the severity of a disease or injury is sufficient harm to satisfy the requirements of the tort of negligence, that is a step having potentially far-reaching consequences. For example, in what cases will it apply? Will it limit recovery in cases where the plaintiff establishes a loss to a degree of probability between 50 per cent and, say, 90 per cent? Perhaps because the issues have not previously been fully debated (such a claim was not pleaded in Gavalas, its availability was conceded in Rufo, which was followed without its validity being questioned in Burton) these issues have not been adequately addressed. As the UK courts have all recognised, they involve issues of high policy affecting the scope and operation of the most dominant aspect of tort law. A statement that “[n]o advanced system of law could deny recovery where late diagnosis, in breach of duty to the patient, appreciably reduces the prospects of success of an operation” (Gavalas at [15]) does not provide reasoned support for a major new direction in negligence. The policy involved in this departure from orthodoxy can be seen in the reasons of the Supreme Judicial Court of Massachusetts in Matsuyama v Birnbaum 890 NE 2d 819 (Mass 2008); as to which, see (2009) 122 Harvard Law Review 1247.

371 Similar difficulties have been identified in the literature with respect to French law, which, it has been said, recognises a lost opportunity of avoiding injury or realising a benefit as a form of compensable harm, at least where the risk eventuated: see L Khoury, “Causation and Risks in the Highest Courts of Canada, England, and France” (2008) 124 Law Quarterly Review 103 at 122. However, to define the harm as the loss of a chance of a better outcome will only allow an assessment of loss by taking a proportion of the harm in fact suffered, which casts doubt on whether the risk or loss of opportunity is in truth the harm for which compensation is provided: Khoury at 125-127.

372 Professor Stapleton considers that the loss of a chance cases might be more satisfactorily explained on the basis that the damage was constituted by the immediate economic loss to the market value of the asset that was the focus of the lost chance: J Stapleton, “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 Law Quarterly Review 388 at 406 ff.

373 Importantly for understanding how such an approach does not intrude into traditional causation principles, Professor Stapleton explained, at 410:

“Using the ‘present-damage-to-economic-value’ formulation, we could neatly conceptualise cases where a solicitor’s negligence has resulted in a legal claim of C becoming statute-barred. Before the negligence C had a chose-in-action of a particular worth (which would be determined by the likelihood of success in the action). The tort destroyed this asset. The cause-in-fact stage can then be stripped of unorthodox loss-of-a-chance devices. The cause-in-fact task for C becomes: can C prove, on the balance of probabilities, that the tort destroyed the asset?”

374 The appellant submitted that Sellars was properly described as involving the determination of a “present damage to economic value” in the sense used by Professor Stapleton. Whether or not that is the best way to express the problem perhaps does not matter. What can be said, however, is that such an analysis may have value with respect to the loss of a commercial opportunity, but cases such as Sellars provide no basis to undermine the existing orthodoxy in the law of recovery of damages for personal injury as a result of negligence. To the contrary, the reiteration in Sellars of the statements of general principle as to proof of causation were contradictory to any permission to extend loss of a chance outside the realm of loss of a commercial opportunity.

375 In case of physical harm or injury, the damage can generally be seen to be the physical injury, debility, pain, bodily or mental harm or deterioration and consequences thereof. The court awards damages for that harm and its consequences. This occurs when the breach of duty is proven on the balance of probabilities to have caused the damage. Despite the different expression of the loss of an opportunity or chance, the damages in such a case are still formulated by reference to the harm that has materialised. This can be seen in Rufo itself and the approach of the trial judge in the present case. The damages awarded in the present case were for the physical harm suffered, but calculated, not on the basis of full recovery consequent upon causation having been proved on the balance of probabilities, but rather on a lesser scale commensurate with the increased risk caused by the breach of duty. This was consistent with the part played in the reasons of Hodgson JA in Rufo at [3] of the increase in risk (see [306] above). The “opportunity” that was lost was to have a better outcome without negligence, the value of the lost opportunity being assessed as the percentage risk or chance of the harm that did occur. So, here, 25 per cent of the whole debility was caused by the seizure and deterioration on 14 January. The respondent did not prove on the balance of probabilities that that damage was caused by the breach of duty on 13 January. Rather, it is said that because of the breach of duty on 13 January the respondent lost the opportunity of a better medical outcome (measured by the avoidance of the damage on 14 January) assessed at 40 per cent. This is to say no more than that the assessed likelihood of the damage is 40 per cent, so that the respondent has “lost the opportunity” of a better outcome (the harm not occurring) calculated accordingly. Yet, one thing is plain: the respondent was awarded damages not for the harm of suffering the increased risk, but by reference to the physical harm and debility suffered, which, ex hypothesi, had not been shown to have been caused by the breach of duty.

376 It is to be recalled that causation, in this context, incorporates the notion of material contribution: Bonnington Castings Ltd v Wardlaw [1956] AC 613; and Chappel v Hart at 244 (per McHugh J).

377 Once one appreciates that the so-called loss of an opportunity in this field is in fact the increased risk of harm (short of proof on the balance of probabilities) there is an essential conflict between the concept of damages for loss of a chance and the authorities discussed by Ipp JA in Flounders v Millar, in particular Bendix; and see now Royal at [25] (per Gummow, Hayne and Heydon JJ) and [135]-[144] (per Kiefel J). Though the debate in such cases as Bendix; Wallaby Grip; E M Baldwin v Plane; and Seltsam v McGuinness has generally been discussed (as M W Campbell AJA did in Rufo at [413]-[446]) in the context of causation and material contribution, once one appreciates the true character of loss of a chance in medical negligence cases as damages for increased risk of harm, one needs to confront and depart from cases such as Bendix. No such attempt was made in Gavalas or Rufo. Nor is there any warrant for this course to be taken.

(5)

Gavalas

and

Rufo

not followed

378 Somewhat paradoxically, factors favouring caution generally may favour a departure from existing authority in particular circumstances, one of which arises in this case. Recovery for loss of a chance was accepted in Rufo for the first time in this Court without clear support from High Court authority; although its adoption was by no means inadvertent, it was not opposed by any party to those proceedings. Rufo was followed, but not challenged, in Burton. In neither case were the full ramifications of such a development analysed. Accordingly, it is appropriate to consider whether it was a development which this Court would now take if Rufo and Burton had not preceded this case and, if it would not, whether it should now depart from that authority. At the second stage of that analysis, it is appropriate to ask not merely whether the step taken in Rufo was plainly wrong, but also whether the step having been taken, the authority should properly be followed. The fact of consent may diminish the justification for adhering to a precedent held to be erroneous in principle.

379 There was no licence to be found for the course taken in Rufo in the dicta of single justices of the High Court: Callinan J in Naxakis at [127]-[130] and Kirby J in Chappel v Hart at 272, contra Gaudron J in Naxakis at [20]-[36], and Gleeson CJ in Naxakis at [5] expressing no opinion. Sellars stands as authority for the proposition that deprivation of a commercial opportunity or advantage is compensable harm in contract, tort and under the Trade Practices Act, its value to be assessed on the basis of possibilities as an hypothetical circumstance; but the general standard of proof will govern the issue of causation of loss, properly identified.

380 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.

381 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. It would do so by reference to an assessment of increased risk of harm, verbally reformulated into loss of a chance or opportunity in order to equate it with the recognition in Sellars and like cases of the existence in commerce of a coherent notion of loss of a right or chance of financial benefit. No doubt the limits of the “commercial” or financial opportunity or advantage dealt with in Sellars will be a matter of future debate: see the discussion in Gregg v Scott at 232 (Baroness Hale of Richmond). In our view, its limits (unless expanded by the High Court) must fall short of a proposition which revolutionises the proof of causation of injury or (by redefining what is “harm”) in personal injury cases.

382 Our view is supported by final courts of appeal; in the UK see Wilsher v Essex Area Health Authority [1988] AC 1074; Fairchild; Hotson v East Berskshire Area Health Authority; Gregg v Scott and Barker; and in Canada, see Laferrière v Lawson.

383 A further matter to be considered is that there is now a statutory definition in the Civil Liability Act which implicitly does not include a risk of physical or mental injury. Part 1A of the Civil Liability Act applies to “any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract under statute or otherwise”: s 5A(1). Various terms used in this provision are defined in s 5:

“ 5 Definitions

In this Part:

harm means harm of any kind, including the following:
(a) personal injury or death,
(b) damage to property,
(c) economic loss.

negligence means failure to exercise reasonable care and skill.

personal injury includes:

384 General principles are then stated by reference to “a risk of harm”: ss 5B, 5C, 5F-5I, 5L, 5M and 5R. None of these provisions expressly excludes the identification of harm as loss of an opportunity, but the inclusion of such a concept is at best awkward. For example, to speak in the terms of s 5B(2)(c), of “the burden of taking precautions to avoid the risk of harm”, is readily understandable in the context of harm as physical injury, but is at best obscure and semantically inappropriate, if the phrase “loss of an opportunity of a better outcome” is substituted for the word “harm”.

385 On the alternative approach, if provision of damages for the loss of a chance of a better outcome involves a new concept of causation, that construction would not be consonant with the principles relating to causation set out in ss 5D and 5E of the Civil Liability Act. In particular, s 5E requires that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

386 Any change to the common law of negligence is a change to the common law (or general law) of Australia. Therefore, the form of one statute in one State may not be seen as adequate either for the analogical development of the common law (cf Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; 201 CLR 49 at [18]-[28] Brodie at [132]) or for restriction on any change (cf “paralysis” in Brodie at [132]).

387 The above provisions of the Civil Liability Act are substantially mirrored in a number of States and Territories: Civil Law (Wrongs) Act 2002 (ACT), ss 40, 43, 44, 45 (1) and (3) and 46; Civil Liability Act 2002 (Tas), ss 9, 11, 12, 13 and 14; Wrongs Act 1958 (Vic), ss 43, 44, 48, 49, 51 and 52; Civil Liability Act 2002 (WA), ss 3, 5B, 5C and 5D; Civil Liability Act 2003 (Qld), ss 9, 10, 11 and 12 and dictionary; and Civil Liability Act 1936 (SA), ss 3, 32, 34 (1) and (3) and 35.

388 Though this point was not the subject of argument on the appeal, it might be thought that it would be inappropriate for the general law to develop a concept of harm which departed from the assumptions underlying a tolerably uniform statutory definition of harm.

389 For the above reasons and as summarised below, we consider the approach adopted in Rufo and Gavalas to have involved a departure from conventional principles. There were no compelling reasons to adopt that approach and to do so was, in all the circumstances in our respectful view, plainly wrong, in the sense discussed above. In summary, we would not follow Rufo and Gavalas for the following reasons. First, the doctrine espoused formed part of no recognised stream of authority. Secondly, the doctrine espoused was not consistent with or permitted by Sellars. To the contrary, it fell outside the expression of principle as to commercial advantages and opportunities in Sellars, which otherwise stated orthodoxy of proof of causation. Thirdly, the setting of the law of torts on a new path of proof of causation, whether for medical negligence cases or torts generally, based on creation of risk and policy for fair recompense for loss is (and was in 2001 and 2004) a matter of high policy for the High Court. Fourthly, in neither Gavalas nor Rufo were the difficulties and complexities of the application of the doctrine considered. A discussion of the difficulties and complexities can be seen in the judgments in State of New South Wales v Burton (No 2) [2008] NSWCA 319. See also Halverson v Dobler [2006] NSWSC 1307 at [191]-[246] per McClellan CJ at CL (the question of loss of a chance not being dealt with on appeal: Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151). Other difficulties and complexities arise at the point of assessing the accrual of any cause of action for limitation purposes. Fifthly, no clear limitations have been formulated for the application of the new doctrine. No logical distinction limits its development to personal injury caused by medical negligence. Sixthly, the doctrine can be seen to be inconsistent with conventional authority, now reflected in the Civil Liability Acts, as to the nature of harm required to justify a finding of negligence. Seventhly, the general principle that a causal connection between the tortious conduct and the plaintiff’s injury must be established on the balance of probability is now expressly enacted in the Civil Liability Acts. Eighthly, there is no evidence that insurance companies or members of the public have adapted their personal or commercial relations in reliance upon these authorities.

H. Claim for loss of benefits accruing on marriage

390 As a separate issue, albeit one which does not arise on the approach adopted above, the respondent made a claim for the loss of benefits accruing on marriage. The trial judge rejected this claim, for reasons discussed at [213]-[217]. In particular, his Honour referred to the decision of this Court in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 617. There, Mason P, with whom Meagher JA and Clarke AJA agreed, stated that:

“The proposition that loss of support from a marriage partner may be compensable where the defendant's wrong has deprived a plaintiff of that support is uncontroversial in principle.”

391 Mason P cited Warringah Shire Council v Jamieson (Court of Appeal, 19 December 1980, unreported) per Samuels JA at 35, who said that:

“… [g]enerally, it will be appropriate to assume that a female plaintiff would have sought, and obtained, in marriage financial benefits roughly equal to those which she could have got in commercial or industrial employment.”

392 His Honour also referred to Government Insurance Office (NSW) v Mackie [1990] Aust Torts Reports ¶81-053 at 68,214, noting that case demonstrated that care needed to be taken to avoid double recovery when considering both loss of earnings and loss of support. Studdert J made particular reference to this at [213], when he observed that “care must be taken to avoid any element of ‘doubling up’”. Further, as Clarke AJA pointed out in Government Insurance Office (NSW) v Mackie (also referred to by Studdert J in the context of his reference to Rosniak), different cases needed to be dealt with differently. In that case, Clarke AJA had given, by way of an example, the case of a woman engaged to a wealthy man at the time of accident, in circumstances where there was evidence that the injured plaintiff had not planned to work after marriage. Clarke AJA said in that case, “the destruction of marriage prospects could not simply be swept aside”. His Honour commented that in other cases, the matter might be more appropriately weighed in the scales in determining the extent of any deduction for vicissitudes. This was the approach taken by Whealy J in Simpson v Diamond [2001] NSWSC 925.

393 His Honour distinguished the decision in Hines v The Commonwealth of Australia (1995) Aust Torts Reports 81-338, where Giles J (as his Honour then was) awarded a sum of $400,000 for loss of support on the basis that case involved an adult whose former fiancé was an accountant who had progressed in his profession by the time of trial. This case involved a young child, who was six years of age at the time she sustained her disabilities.

394 In those circumstances, his Honour considered it would not be appropriate to make a discrete allowance as separate head of damages for loss of marriage benefits. Rather, he reflected that loss in the allowance for vicissitudes in relation to the claim for the loss of earning capacity.

395 No error of principle has been demonstrated in the approach his Honour adopted. It accords with the authorities in this Court. It was an available approach to his Honour on the evidence.

I. Orders

For the reasons set out above, the following orders should be made:

(1) Allow the appeal and set aside orders (2) and (4) made in the Common Law Division on 9 February 2007;

(a) judgment for the second defendant, and

(b) the plaintiff to pay the second defendant’s costs of the trial;

(3) Order the respondent to pay the appellant’s costs of the appeal;

(4) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified;

(5) Order the cross-appeal be dismissed;

**********

21/04/2009 - Typo - Paragraph(s) 395

Citations

Gett v Tabet [2009] NSWCA 76

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Rufo v Hosking [2004] NSWCA 391

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CITATION:	Gett v Tabet [2009] NSWCA 76 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 July 2008, 31 July 2008, 1 August 2008
JUDGMENT DATE:	9 April 2009
JUDGMENT OF:	Allsop P at 1; Beazley JA at 1; Basten JA at 1
DECISION:	(1) Allow the appeal and set aside orders (2) and (4) made in the Common Law Division on 9 February 2007; (2) In lieu thereof, order: (a) judgment for the second defendant, and (b) the plaintiff to pay the second defendant’s costs of the trial; (3) Order the respondent to pay the appellant’s costs of the appeal; (4) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified; (5) Order the cross-appeal be dismissed; (6) Order the cross-appellant to pay the cross-respondent’s costs of the cross-appeal.
CATCHWORDS:	APPEAL – national integrated legal system – place of intermediate appellate courts within structure of Australian judicial system – departing from existing authority – principle of restraint – certainty in the law – English and Australian authority on doctrine of precedent - APPEAL – precedent – standard of reconsideration – Court of Appeal’s power to depart from previous decisions of Court or co-ordinate courts – nature and quality of error – circumstances in which Court will depart from its earlier decisions – “plainly wrong” – “compelling reasons” – whether Rufo v Hosking should be followed – whether previous decision can be reconciled with principle or with authority – jurisprudential and pragmatic considerations - APPEAL – rehearing – nature of challenge to judgment below – appellate court’s obligation to reach own conclusion – threshold for appellate intervention –limitations on appellate court to comprehend fully evidence and process of trial – resolution of medical experts’ competing views – Supreme Court Act 1970 (NSW), s 75A - TORTS – medical negligence – harm – loss of a chance of better medical outcome – difficulties in identifying harm suffered – whether doctrine consistent with nature of harm in Civil Liability Acts – Civil Liability Act 2002 (NSW), Pt 1A, s 5 - TORTS – negligence – causation – loss of a chance of better medical outcome – whether Rufo v Hosking should be followed – whether Rufo should be followed – distinction between causation of loss and assessment of proven loss – alteration of principle of causation – proof of causation based on creation of risk, not damage on balance or probabilities – whether loss of a chance consistent with causation requirements in Civil Liability Acts – Civil Liability Act 2002 (NSW), Pt 1A, s 5E - TORTS – negligence – distinction between loss of a chance of better medical outcome and deprivation of commercial opportunity - TORTS – negligence – loss of a chance of a better medical outcome – coherence with principles of tort law – expansion and context of negligence law – review of authorities - WORDS AND PHRASES – “common law of Australia” – “compelling reasons” – “harm” – “loss of a chance” – “plainly wrong” – “rehearing”
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth), s15A Charter of Justice 1823 (Imp), s 2 Civil Law (Wrongs) Act 2002 (ACT), ss 40, 43, 44, 45, 46 Civil Liability Act 1936 (SA), ss 3, 32, 34, 35 Civil Liability Act 2002 (NSW), Part 1A, ss 5-5I, 5L-5M, 5R, 33 Civil Liability Act 2002 (Tas), ss 9, 11, 12, 13,14 Civil Liability Act 2002 (WA), ss 3, 5B, 5C, 5D Civil Liability Act 2003 (Qld), ss 9, 10, 11, 12 Commonwealth of Australia Constitution, s 128 Judiciary Act 1903 (Cth), ss 35A(a)(ii), 80 Suitors’ Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 75A Trade Practices Act 1974 (Cth), ss 52, 8 Wrongs Act 1958 (Vic), ss 43, 44, 48, 49, 51, 52
CATEGORY:	Principal judgment
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117 FCR 424 Bridges v Bridges and Hooper (1945) 45 SR (NSW) 164 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 Cattanach v Melchior [2003] HCA 38; 215 CLR 1 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Chamberlain v The Queen [1983] FCA 78; 72 FLR 1 Chappel v Hart [1998] HCA 55; 195 CLR 232 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Coca-Cola Amatil (NSW) Pty Limited v Pareezer [2006] NSWCA 45 Commonwealth v Amann Aviation Pty Limited [1991] HCA 54; 174 CLR 64 Commonwealth v Mewett [1997] HCA 29; 191 CLR 471 at 524 Costa v The Public Trustee of New South Wales [2008] NSWCA 223 Craig v East Coast Bays City Council [1986] 1 NZLR 99 CSR Ltd v Della Maddalena [2006] HCA 1; 224 ALR 1; 80 ALJR 458 Dobler v Halverson [2007] NSWCA 335; 70 NSWLR 151 Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; Aust Torts Rep 81-578 E M Baldwin & Son Pty Limited v Plane (1998) 17 NSWCCR 434 Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 F v R (1983) 33 SASR 189 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Fink v Fink [1946] HCA 54; 74 CLR 127 Flounders v Millar [2007] NSWCA 238; 49 MVR 53 Fox v Percy [2003] HCA 22; 214 CLR 118 Gates v The City Mutual Life Assurance Society Ltd [1986] HCA 3; 160 CLR 1 Gavalas v Singh [2001] VSCA 23; 3 VR 404 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1973-1974) 129 CLR 576 Government Insurance Office (NSW) v Mackie [1990] Aust Torts Reports 81-053 Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176 Guest v The Nominal Defendant [2006] NSWCA 77 Halverson v Dobler [2006] NSWSC 1307 Hargrave v Goldman [1963] HCA 56; 110 CLR 40Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Rep 81-951 Hines v The Commonwealth of Australia (1995) Aust Torts Reports 81-338 Horton v Sadler [2006] UKHL 27; [2007] 1 AC 307 Hotson v East Berkshire Area Health Authority [1987] AC 750 Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; 116 CLR 200 John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; 203 CLR 503 John v Federal Commissioner of Taxation [1989] HCA 5; 166 CLR 417 Johnson v Perez [1988] HCA 64; 166 CLR 351 Jorgenson v Vener 616 NW 2d 366 (SD SC, 2000) Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 Kitchen v Royal Air Force Association [1958] 1 WLR 563 Kuru v New South Wales [2008] HCA 26; 82 ALJR 1021 Laferrière v Lawson [1991] 1 SCR 541 Roberts v Ohio Lipohar v The Queen [1999] HCA 65; 200 CLR 485 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Mallett v McMonagle [1970] AC 166 Marshall v Director General, Department of Transport [2001] HCA 37; 205 CLR 603 Matsuyama v Birnbaum 890 NE 2d 819 (Mass 2008) McGhee v National Coal Board [1973] 1 WLR 1 Mount Isa Mines Limited v Pusey [1970] HCA 60; 125 CLR 383 Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269 New Zealand v Moloney [2006] FCAFC 143; 154 FCR 250 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Norwest Refrigeration Services Pty Limited v Bain Dawes (WA) Pty Ltd [1984] HCA 59; 157 CLR 149 Osborne v Rowlett (1880) 13 Ch D 774 Permanente Medical Group, Inc 668 NE 2d 480 (Ohio SC, 1996) Pidoto v Victoria [1943] HCA 37; 68 CLR 87 Pilcher v HB Brady & Co Pty Limited [2005] WASCA 159 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 Produce Brokers Co (Ltd) v Olympia Oil & Cake Co (Ltd) (1915) 21 Com Cas 320 Public Transport Commission (NSW) v Perry [1977] HCA 32; 137 CLR 107 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Qantas Airways Ltd v Cameron [1996] FCA 1483; 66 FCR 246 Queensland v Commonwealth [1977] HCA 60; 139 CLR 585 R v Hood [2005] QCA 159; 2 Qd R 54 Re Tyler; Ex parte Foley [1994] HCA 25; 181 CLR 18 Read v Bishop of Lincoln [1892] AC 644 Regina v G [2003] UKHL 50; [2004] 1 AC 1034 RJE v Secretary to the Department of Justice [2008] VSCA 265 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Rufo v Hosking [2004] NSWCA 391; 61 NSWLR 678 Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Seltsam Pty Limited v McGuinnes [2000] NSWCA 29; 49 NSWLR 262 Seltsam v Ghaleb [2005] NSWCA 208 Simpson v Diamond [2001] NSWSC 925 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJR 4 State of New South Wales v Burton [2006] NSWCA 12; (2006) Aust Torts Rep 81-826 State of New South Wales v Burton (No 2) [2008] NSWCA 319 Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 Sykes v Midlank Bank Executor & Trustee Co Ltd [1971] 1 QB 113 Tabet v Mansour [2007] NSWSC 36 Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 TC by his tutor Sabatino v New South Wales [2000] NSWCA 380 Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 The King v Burgess; Ex parte Henry [1936] HCA 52; 55 CLR 608 The London Street Tramways Company Ltd v London County Council [1898] AC 375 The Queen v White [1967] SASR 184 Tillman v Attorney-General (NSW) [2007] NSWCA 327; 70 NSWLR 448 Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 TSL v Secretary to the Department of Justice [2006] VSCA 199; 14 VR 109 Van Den Heuvel v Tucker (2005) 85 SASR 512 Veivers v Connolly (1994) Aust Torts Reports 81-309 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 242 ALR 383 Warringah Shire Council v Jamieson (Court of Appeal, Samuels JA, 19 December 1980, unreported) Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355 Watts v Rake [1960] HCA 58; 108 CLR 158 Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 Wilsher v Essex Area Health Authority [1988] AC 1074 Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718
TEXTS CITED:	“Tort Law – loss of a chance doctrine – Massachusetts Supreme Judicial Court accepts loss of a chance in medical malpractice suits- Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008)” (2009) 122 Harvard Law Review 1247 B Cardozo J, The Nature of the Judicial Process (1921) Yale University Press, New Haven N Duxbury, The Nature and Authority of Precedent (2008) University Press, Cambridge L Khoury, “Causation and Risks in the Highest Courts of Canada, England, and France” (2008) 124 Law Quarterly Review 103 J Landau, “Precedents in the House of Lords” (1951) 63 Juridical Rev 222 H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths, Sydney A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) Butterworths, Sydney W Marshall, “Is a Judicial Tribunal, Either of the Last Resort or Otherwise, Bound by the Principles Laid Down by Itself on Previous Occasions?” (1860) 2 Juridical Soc Papers 331 J Stapleton, “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 Law Quarterly Review 388 A Twomey, The Constitution of New South Wales (2004) The Federation Press, Annandale
PARTIES:	Dr Maurice Gett (Appellant/Cross-Respondent) Reema Tabet by her tutor Ghassan Sheiban (Respondent/Cross-Appellant)
FILE NUMBER(S):	CA 40110/07
COUNSEL:	S Gageler SC; K Morgan (Appellant/Cross-Respondent) G K Burton SC; D Hirsch (Respondent/Cross-Appellant)
SOLICITORS:	Blake Dawson (Appellant/Cross-Respondent) Miller Goddard (Respondent/Cross-Appellant)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20239/01
LOWER COURT JUDICIAL OFFICER:	Studdert J
LOWER COURT DATE OF DECISION:	9 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Tabet v Mansour & Anor [2007] NSWSC 36