Gett v Tabet

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.