Reported Decision:
61 NSWLR 678
Court of Appeal
CITATION: Rufo v Hosking [2004] NSWCA 391 HEARING DATE(S): 20 May 2004 JUDGMENT DATE:
1 November 2004JUDGMENT OF: Hodgson JA at 1; Santow JA at 14; Campbell AJA at 56 DECISION: Appeal allowed with costs. CATCHWORDS: TORT - Medical negligence - recoverability for loss of a less than 50% chance of avoiding spinal microfractures suffered in course of heavy-dosage treatment with corticosteroids against Lupus - breaches of duty of care by specialist paediatrician in substituting one corticosteroid for another so causing a heavier than the appropriate dosage and in failing to introduce a steroid sparer at the appropriate stage - more probable than not that even without these breaches microfractures would have occurred but appellant still lost a material chance that but for the negligence the fractures would not have occurred, or would not have occurred at the time or with their severity - comparison of all or nothing approach in causation and damages - causation issues - inapplicability to this situation of UK Fairchild approach to causation - relevance of expert evidence - difficulty of quantifying the lost chance - chance must be material and not speculative - relevance of possible pre-existing celiac condition in contributing to susceptibility to fractures and questions of evidentiary onus - observations on permissibility of loss of chance approach in medical negligence cases. CASES CITED: Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bonnington Castings Ltd v Wardlow [1956] AC 613
Chaplin v Hicks [1911] 2 KB 786
Chappel v Hart (1998) 195 CLR 232
Commonwealth v McLean (1996) 41 NSWLR 389
Daniels v. Anderson (1995) 37 NSWLR 438
Diamond v Simpson (No 3) [2003] NSWCA 373
E.M. Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Gavalas v Singh [2001] 3 VR 404
Gregg v Scott [2002] EWCA civ 1471
Hotson v. East Berkshire Area Health Authority [1987] AC 750
Jorgenson v Vener, 616 NW2d 366 (SD SC, 2000)
Laferrière v Lawson [1991] 1 SCR 541
Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR
McGhee v National Coal Board [1973] 1 W.L.R. 1
Millett v McMonagle [1970] AC 166 (HL)
Naxakis v. Western General Hospital (1999) 197 CLR 269
Purkess v Crittenden (1965) 114 CLR 164
Roberts v Ohio Permanente Med Group, Inc, 668 NE 2d 480 (Ohio SC, 1996)
Rogers v Whitaker (1992) 175 CLR 479
Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332
Seltsam Pty. Ltd. v. McGuiness (2000) 49 NSWLR 262
Shorey v PT Ltd (2003) 77 ALJR 1104
Sutherland Shire Council v Heyman (1984-5) 157 CLR 424
TC v The State of New South Wales & Ors [2001] NSWCA 380
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
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- AGLC
- Rufo v Hosking [2004] NSWCA 391
- Case
- [2004] NSWCA 391
- Decision Date
CaseChat Overview and Summary
The case of *Rufo v Hosking* concerned a claim for medical negligence brought by the appellant against a specialist paediatrician. The appellant alleged that the paediatrician's treatment for Lupus, which involved high-dosage corticosteroids, led to spinal microfractures. The dispute centred on whether the paediatrician's actions caused the appellant to lose a chance of avoiding these injuries. The matter was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the paediatrician had breached their duty of care and, if so, whether that breach caused the appellant to suffer a loss of a chance of avoiding the spinal microfractures. Specifically, the court had to consider whether the paediatrician's substitution of one corticosteroid for another, resulting in a heavier dosage, and the failure to introduce a steroid-sparing agent at the appropriate time, constituted negligence. Furthermore, the court had to determine the recoverability of a less than 50% chance of avoiding the injuries, and whether the "all or nothing" approach to causation and damages was appropriate in this context. The court also considered the relevance of expert evidence and the difficulty in quantifying a lost chance, noting that such a chance must be material and not speculative.
The Court of Appeal reasoned that while it was more probable than not that the microfractures would have occurred even without the breaches of duty, the appellant had nevertheless lost a material chance that, but for the negligence, the fractures would not have occurred, or would have occurred at a different time or with less severity. The court found the UK *Fairchild* approach to causation inapplicable to this situation. The court observed on the permissibility of a loss of chance approach in medical negligence cases, provided the chance is material.
The appeal was allowed with costs.
The primary legal issues before the Court of Appeal were whether the paediatrician had breached their duty of care and, if so, whether that breach caused the appellant to suffer a loss of a chance of avoiding the spinal microfractures. Specifically, the court had to consider whether the paediatrician's substitution of one corticosteroid for another, resulting in a heavier dosage, and the failure to introduce a steroid-sparing agent at the appropriate time, constituted negligence. Furthermore, the court had to determine the recoverability of a less than 50% chance of avoiding the injuries, and whether the "all or nothing" approach to causation and damages was appropriate in this context. The court also considered the relevance of expert evidence and the difficulty in quantifying a lost chance, noting that such a chance must be material and not speculative.
The Court of Appeal reasoned that while it was more probable than not that the microfractures would have occurred even without the breaches of duty, the appellant had nevertheless lost a material chance that, but for the negligence, the fractures would not have occurred, or would have occurred at a different time or with less severity. The court found the UK *Fairchild* approach to causation inapplicable to this situation. The court observed on the permissibility of a loss of chance approach in medical negligence cases, provided the chance is material.
The appeal was allowed with costs.
Orders
Orders of the court
Appeal allowed with costs.
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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