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 2009JUDGMENT 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…
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- AGLC
- Gett v Tabet [2009] NSWCA 76
- Case
- [2009] NSWCA 76
- Decision Date
CaseChat Overview and Summary
In *Gett v Tabet*, the Court of Appeal of New South Wales considered an appeal concerning a medical negligence claim. The plaintiff, Mr. Gett, alleged that the defendant, Dr. Tabet, was negligent in his treatment, leading to a loss of a chance for a better medical outcome. The core of the dispute revolved around whether the common law doctrine of "loss of a chance" was still applicable in light of the *Civil Liability Act 2002* (NSW) and whether the Court of Appeal should depart from its own previous decisions.
The legal issues before the court included whether the *Civil Liability Act 2002* (NSW), particularly Part 1A and section 5, had abrogated the common law doctrine of "loss of a chance" as a compensable harm in medical negligence cases. The court was also required to determine the circumstances under which an appellate court, specifically the Court of Appeal, may depart from its own prior decisions or those of co-ordinate courts, considering principles of precedent, certainty in the law, and the threshold for intervention, such as whether a previous decision was "plainly wrong" or if there were "compelling reasons" to depart. Furthermore, the court had to consider the nature of an appeal as a rehearing and the appellate court's obligation to reach its own conclusion, balanced against the limitations of comprehending evidence and trial processes.
The Court of Appeal engaged in a detailed review of English and Australian authorities on the doctrine of precedent and the concept of "loss of a chance." The court distinguished between the causation of loss and the assessment of proven loss, and considered whether the existing common law principles of causation, as modified by the *Civil Liability Act 2002* (NSW) (specifically section 5E), were compatible with the "loss of a chance" doctrine. The court also examined jurisprudential and pragmatic considerations, including the coherence of the doctrine with broader principles of tort law and the specific context of negligence law. The court ultimately determined that the "loss of a chance" doctrine, as it applied to medical negligence, was not inconsistent with the *Civil Liability Act 2002* (NSW) and that the previous decision in *Rufo v Hosking* should be followed.
The appeal was allowed, and the orders made in the Common Law Division were set aside. Judgment was entered for the second defendant (Dr. Tabet), and the plaintiff was ordered to pay the second defendant's costs of the trial. The respondent was ordered to pay the appellant's costs of the appeal, and the cross-appeal was dismissed with the cross-appellant ordered to pay the cross-respondent's costs.
The legal issues before the court included whether the *Civil Liability Act 2002* (NSW), particularly Part 1A and section 5, had abrogated the common law doctrine of "loss of a chance" as a compensable harm in medical negligence cases. The court was also required to determine the circumstances under which an appellate court, specifically the Court of Appeal, may depart from its own prior decisions or those of co-ordinate courts, considering principles of precedent, certainty in the law, and the threshold for intervention, such as whether a previous decision was "plainly wrong" or if there were "compelling reasons" to depart. Furthermore, the court had to consider the nature of an appeal as a rehearing and the appellate court's obligation to reach its own conclusion, balanced against the limitations of comprehending evidence and trial processes.
The Court of Appeal engaged in a detailed review of English and Australian authorities on the doctrine of precedent and the concept of "loss of a chance." The court distinguished between the causation of loss and the assessment of proven loss, and considered whether the existing common law principles of causation, as modified by the *Civil Liability Act 2002* (NSW) (specifically section 5E), were compatible with the "loss of a chance" doctrine. The court also examined jurisprudential and pragmatic considerations, including the coherence of the doctrine with broader principles of tort law and the specific context of negligence law. The court ultimately determined that the "loss of a chance" doctrine, as it applied to medical negligence, was not inconsistent with the *Civil Liability Act 2002* (NSW) and that the previous decision in *Rufo v Hosking* should be followed.
The appeal was allowed, and the orders made in the Common Law Division were set aside. Judgment was entered for the second defendant (Dr. Tabet), and the plaintiff was ordered to pay the second defendant's costs of the trial. The respondent was ordered to pay the appellant's costs of the appeal, and the cross-appeal was dismissed with the cross-appellant ordered to pay the cross-respondent's costs.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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