Tabet (by her tutor Ghassan Sheiban) v Gett

[2009] HCATrans 303

[2009] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S259 of 2009

B e t w e e n -

REEMA TABET (BY HER TUTOR GHASSAN SHEIBAN)

Appellant

and

DR MAURICE GETT

Respondent

GUMMOW ACJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 2009, AT 10.18 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MS J.L.A. LONERGAN and MS J. CHAMBERS, for the
appellant.  (instructed by Slater & Gordon Lawyers)

MR N.J. YOUNG, QC:   May it please the Court, I appear with my learned friends, MR J.K. KIRK and MS K.C. MORGAN.  (instructed by Blake Dawson Lawyers)

GUMMOW ACJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the reasoning in the Court of Appeal overturning not merely the judgment in favour of my client at trial but also declining to follow an earlier decision of the Court of Appeal itself and the reasoning in the submissions against us can be boiled down, we submit, in the following way.  How – it is asked rhetorically – is it proper, given the basal and enduring principles of tort law, the law of negligence in particular, can it be right to hold a party liable to compensate the other, the plaintiff, when no difference can be shown to the detriment of the plaintiff in the position the plaintiff is now in compared with the position she would have been in but for that negligence?

It has to be said at the outset of our argument to vindicate the trial judgment and the authority in Rufo v Hosking which was overturned by the Court of Appeal in this case that there is, at first sight, immense force in that rhetorical question.

GUMMOW ACJ:   Mr Walker, can we at the outset try and crystallise some basic questions.  Can you look at paragraph 27 of your written submissions.  This may help pinpoint things, I think, in particular the third sentence there, your paragraph 27:

The damage being the gist of the action is the lost chance –

Just stopping there for a minute, we are in the tort of negligence, so we have duty, breach and damage.  There is a question, I think, as to whether this “prejudice”, to use that word, is to be recognised within the legal concept of damage for the tort of negligence.  That may involve some expansion or it may not, but if it does involve some expansion, Lord Nicholls and Lord Hope in Gregg v Scott said “so be it”.

MR WALKER:   Yes, and I want to qualify slightly what your Honour has just said about Lord Nicholls, but, yes.

GUMMOW ACJ:   In a way, what Lord Nicholls and Lord Hope said, on a reading of the vast materials, is perhaps the best position for you.

MR WALKER:   Yes.

GUMMOW ACJ:   On the other side of the coin is perhaps the best position against you, maybe the matters adverted to by Justice Gaudron in Naxakis.  The question as to what the law recognises as damage has some wrinkles to it, I suppose, and it is then said, well, this would skew causation and you are taking that up then in your paragraph 27.

MR WALKER:   Quite.

GUMMOW ACJ:   You speak of the plaintiff’s interest and one then asks, what is that interest?  Is there some attempt to translate from the contract cases ideas of bargaining interests and loss in contract into this particular area, on the one hand, and on the other hand, to keep a measure of damages which has been built up with physical injury and translate that across to this newly expanded or newly qualified notion of damage?  Are they not the areas in which we are placed?

MR WALKER:   Yes.  It covers at least two or three - I might call them discrete topics, but they are all, with great respect, linked to each other and in particular ‑ ‑ ‑

GUMMOW ACJ:   The basic point has to be is this damage.

MR WALKER:   Is this damage, or another word that is capable of being used in the same fundamental question is, has loss been shown, the loss being by suffering damage.  Yes, we accept that those are the important and comprehensive questions that are raised.

GUMMOW ACJ:   There may be others, but it includes those, I think.

MR WALKER:   I was about to say it would be odd to describe what the Acting Chief Justice has described as narrowing the issues in any way, bearing in mind the self‑evident breadth of those matters.  There are other matters in the appeal but on the point that is critical for our success or failure those do describe the area that I wish to address.  I commenced by accepting that there are great difficulties faced by our argument, were it to take on the task of saying the plaintiff does not have to prove on the balance of probabilities – a phrase that is very important – that she suffered a loss; that is suffered damage.

GUMMOW ACJ:   Or suffered what the law recognises as damage.

MR WALKER:   Quite so.  The shorthand “loss or damage” ‑ ‑ ‑

GUMMOW ACJ:   Undoubtedly in a popular sense one can see some cause for disquiet.

MR WALKER:   Grievance.

CRENNAN J:   The question really is whether it is actionable damage.

MR WALKER:   Quite so, actionable damage meaning damage or loss that the law recognises for the purposes of – I stress for the purposes of – the tort of negligence.  Now, a lot of ink, very little of it judicial in fact, has been spilt on the question of the so‑called purpose of the tort of negligence and epithets such as corrective and restorative or allocative are used from time to time.  In our submission, we mean by the purpose of the law of tort of negligence ‑ ‑ ‑

HAYNE J:   The purpose?

MR WALKER:   I am so sorry.  It had better be a good one if it is singular, yes, your Honour.  The purpose upon which we rely among the no doubt multifarious purposes, depending upon the inquirer or the inquiree, of the tort of negligence is as follows, namely, that where the circumstances of the relation between the parties give rise to a duty of care and there has been a breach of the standard prescribed by reference to reasonableness of that duty, then it is in the interests of society regulated by the existence of that tort that the wrongdoer, the tortfeasor, pay compensation to reflect and to reflect only the loss or damage suffered as a result of that wrongdoing.

HAYNE J:   If there is some.

MR WALKER:   That is why I said “and only”.

GUMMOW ACJ:   I notice in Smith v Jenkins Justice Windeyer in 119 CLR 418 said that, after all, public policy is the bedrock foundation on which the common law tort stands.

MR WALKER:   Yes, and part of the policy of the law, to use the expression preferred in Cattanach to public policy, is, in our submission, that once the stage has been reached in the action of there being a wrongdoer, that is, a negligent defendant, then the purpose of ensuring compensation – I do not mean come what may and I do not mean for myths or phantoms –is the motivating force that gives rise to the existence of the tort.  If a person has been wronged in breach of a pre‑existing legal standard – in this case the common law duty of care – then that person should not take the risk of the loss or damage which he or she or it has suffered, but the wrongdoer must compensate for it.  There are, of course, qualifications to that, not least those which come with the insolvency of a defendant.

HAYNE J:   But that is an approach which appears on its face to depend upon the order in which you approach the tripartite inquiry duty, breach and damage.  It seems to be an approach which attributes importance to the observation that there is duty and breach.

MR WALKER:   Yes, it does.  Whether it depends on sequence of asking the questions is perhaps another thing, though I suspect, with respect, that I would not be able to depict it otherwise.  But I do start, as a case would start, a paradigm case in the District Court would start, with allegation and proof of duty and breach and ‑ ‑ ‑

HAYNE J:   It reflects the way in which lawyers are taught about the subject of negligence.

MR WALKER:   Also the way in which a social expectation of the rightness of a defendant being made to pay anything proceeds; first show that I have done something which is in the relevant legal sense wrong.

HAYNE J:   But the point to be made surely is that the outcome of this case cannot depend upon the order in which the three questions presented by a case of negligence are posed and answered?

MR WALKER:   In a sense that must be right because many a case could proceed for the purposes or the sake of argument on assumptions contrary to a defendant on duty and breach with a knockout blow on causation or loss.  We accept that, but in the usual course there needs to be an order in which one articulates the various stages between the commencement of a claim and the entry of a judgment against a defendant and those stages do include, obviously, duty and breach.  One normally asserts duty, explores content and scope in order to understand whether there is a breach.

The same is true, in our submission, that having identified the breach it becomes possible to understand allegations and to weigh them to and fro in relation to causation.  This is a case where, as has been put to me by the Bench already, there is particular focus not to the exclusion of the consideration of the other steps, far from it, but there is a particular focus on the nature or character, as the common law would recognise it, of what we put forward, successfully at first instance, in relation to that which constituted the damage, that which constituted our loss.

GUMMOW ACJ:   I suppose it is unfashionable to talk about legal history, but this is an action on the case and as Justice Crennan was putting to you the gist of an action on the case is actionable damage.

MR WALKER:   Yes, unquestionably and this is all about what will the common law recognise.  Now, I mentioned earlier that there was a slight qualification we would express concerning the way Justice Gummow referred to, by a paraphrase, the approach to be seen in a speech of Lord Nicholls in dissent in Gregg v Scott.  In our submission, properly understood – and I will, if I may, later take your Honours to aspects of that speech – in our submission, his Lordship did not see himself as taking any further step or, if there was a further step, it was of an unremarkably incremental kind showing no radical or basal difference between the kind of loss or damage for which he would have found it possible to find liability, compared to his Lordship’s colleagues.

We will be saying that in overturning Rufo v Hosking, in our submission, the Court of Appeal was acting against, rather than in accordance with, common law reasoning of a kind one finds, I suppose strictly obiter, in Sellars.  Now, I say “I suppose strictly obiter” because, of course, Sellars relevantly was a statutory case concerning the legislative nexus between misleading and deceptive conduct and damages, which ‑ ‑ ‑

GUMMOW ACJ:   In trade or commerce.

MR WALKER:   ‑ ‑ ‑ in trade or commerce which is stipulated in section 82.

HAYNE J:   And thus Sellars emerges in the context of market considerations.

MR WALKER:   And your Honour, with respect, anticipates a part of my argument to which I hope to come relatively soon which both uses in our favour the existence actually, not notionally, of what I will call a market or markets, but also seeks to get the best of both worlds, as it were, to say that that in any event is not a requisite touchstone of recovery for matters which can be called chances not better than even of the desired outcome.

HAYNE J:   But the language of loss of chance which we encounter is language which, at least in part, does no more than reflect a particular aspect of market behaviour as between vendor and purchaser of some article of commerce. 

MR WALKER:   It does more than that, but it is, I accept that in what I will call the cases which relate only to the operation of the market, that is what they are doing.  They are observing, as a matter of fact, what the response of market participants is to certain circumstances.

HAYNE J:   What the language of loss of chance is doing in this case is radically different from the market behaviour reflection, which one sees in other cases of which Sellars might be seen as an example, is it not?

MR WALKER:   I am going to try and dissuade your Honour from that, no doubt, tentative view.  I am, in particular, going to try and persuade your Honours that there is not an oil and water difference between cases where, for example, it is so market orientated that you call people in the market, valuers and the like, to provide not merely evidence of the existence of a loss but also the essential quantification of it.  I am going to try and persuade your Honours that though they are particularly palpable examples of how the law will regard as a loss or damage an outcome found to be less likely – sorry, the chance of an outcome found to be less than likely, nonetheless that does not exhaust the circumstances in which the law already has and, we would submit until this Court of Appeal decision, the law would have or did recognise the loss of what I will call a medical or health chance. 

Now, if I may elaborate slightly the proposition with which I started.  Chance, of course, is not alien to the basic question whether a plaintiff has proved what needs to be proved to the requisite standard because the balance of probabilities is often rhetorically and mostly usefully thought in numerical terms of the fifty plus one tipping of the scale, the tipping point at fifty plus one where fifty minus one loses, fifty plus one wins.  If one considers the jury or fact finding judge’s task in relation to the evidence marshalled, say, on the question of causation or the existence of something of value that has been lost, then one can think in terms of the balance of probabilities inquiry, the onus of proof and the standard of proof parts of the case itself turning on an assessment of chances.  So when the jury in answer to the judicial direction or the judge in a bench trial finds that on the balance of probabilities X did happen or X did follow as a consequence, then that has been as a result of the assessment of chances of that being so in light of all the evidence and the admissible experience of mankind taken into account by the fact finder. 

Now, it would, however, be a fallacy, and we say it is a fallacy inherent in the argument against us and the holding against us in the Court of Appeal, to remark from that use of chance that that is the last time in which assessment of chances arises in the question whether or not there has been liability shown in the defendant by reason of a loss being suffered, that is, the last appearance of that until, if I may be forgiven a sequential approach to this, the final question, namely, loss having been shown, how does one quantify damages for the damage, because on any view of the case, appellant and respondent and in the Court of Appeal below, on any view of the matter, I should say, chances less than 50 per cent do play a part in the assessment.

GUMMOW ACJ:   The measure of damages is a later consideration to the discovery of actionable damage.

MR WALKER:   Quite so.  So sequentially everyone accepts that chances no better than even, or less than even, come back into play – see Malec – when ones comes to the assessment of damages the chances of a not particularly bright person’s promotion at work; the chances of somebody with deeply flawed health of surviving to a particular age, et cetera, et cetera, all of those, whether they are under the heading generally of vicissitudes or the subject of particular evidence in a case, no one says that those possibilities are to be ignored either for or against the plaintiff by reason of the particular outcome of interest having a “no better than even” prospect of being realised.

KIEFEL J:   But that is chance simply taking into account matters in the future in the evaluation of loss.

MR WALKER:   Your Honour anticipates me.

KIEFEL J:   But what you are positing here in relation to damage, as I understand it, is loss of chance as some intermediate damage before you get to the evaluation.

MR WALKER:   Yes.  That is why we can now put to one side as not informative of the debate here the undoubted role of chance, including of outcomes with a “no better than even” chance at that last stage, if you will forgive the sequential approach, in the inquiry.  That does not obviously help me, any more than it hurts the other side.  One way to note a distinction of course is that the assessment of the future, which not even a statistician will undertake to predict, except in terms of chances, means that future hypotheticals and also future actuals, if I can call those things that one is trying to predict as to whether they will happen or not, require a different approach from what this Court called in Malec past hypothetical events – what would have happened but for the liability creating position, namely the negligence in this case of the defendant.

Now, your Honours, in our submission, the principal fallacy in the argument against us is to say that in a relationship of a patient in dire straits – my client would have died without medical intervention – presenting to a person whose metier and whose assumed responsibility is to use his or her skills to assist to the reasonable extent possible in those dire straits is to regard the prospect or chance of a better outcome than actually resulted as worthless if it was not at the tipping point of 50 plus one; if it was no better than even as a chance.

We accept, of course, that if it be shown that that which was, we submit, the interest of the plaintiff at stake in the dealing between her and the doctor, if it be shown that it was in the eyes of the law, the common law of negligence relevantly, worthless, of no value, then it ought at the stage of determining whether there was loss or damage be held that there was none; we should fail at that stage.  We read the written submissions against us as embracing that position, which we are going to try and persuade your Honours is too extreme to be correct, of this case.

GUMMOW ACJ:   I am sorry, Mr Walker, could you say that again?  How do you characterise the case against you?

MR WALKER:   The case against us is that as soon as you have a chance or prospect of a patient being in a better position than she eventually was, being less than 50 plus one, that is no better than even, then it is on that account worthless that it, the chance or prospect, is on that account worthless or of no value, and we submit that that is a fallacy.

HAYNE J:   Well, worthless or of no value ‑ ‑ ‑

MR WALKER:   In the eyes of the law.  I have to add that.

HAYNE J:   Well, that then just becomes an assertion, we win, they lose ‑ ‑ ‑

MR WALKER:   I hope not, though ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ because the real work in the proposition is done by the expression “worthless or of no value”, understood as not being legally recognised.

MR WALKER:   Yes.  Now, our response to that is, well, yes, of course, the phrase “in the eyes of the law” or the expression “actionable” in a sense begs the question at hand.  I do not think any part of our argument assumes its own conclusion in that regard.  It may be that the other side’s does, but my present point is that their argument does involve saying that because it is no better than even – and there is no other reason shown in their argument – because it is no better than even that chance or prospect is to be regarded as one which on the balance of probabilities would not have happened – and that is why it is so important to understand that this is a past hypothetical event in question – would not have happened, and something that would not have happened can have no value.

The last step in particular is one that, in our submission, does permit proper resort to the reasoning of this Court in Sellars, notwithstanding that is (a) commercial and (b) statutory, because the explicit form and substance of the reasoning of the plurality in Sellars explicitly transcends the setting being commerce or the action being statutory.  If your Honours will bear with me I will not come immediately to Sellars, but I need to, as it were, stake our claim there.

HAYNE J:   Could I just understand these propositions better than I presently do.  Is the premise for your argument that there is no demonstrated harm to the plaintiff’s person caused by the negligence?

MR WALKER:   That is the premise of the respondent’s argument.

HAYNE J:   And it must be the premise for your argument, must it not?  That is the area within which this debate must occur?

MR WALKER:   My premise is that that which was lost, which is prospect or chance, had worth or value demonstrated in several different ways of kinds which are not novel in common law thinking, by which I mean holdings, and that the fallacy of the argument against us is to treat the inquiry as one that is determined finally by saying, because the prospect is no better than even, you cannot say that more likely than not it would have happened.  If it is less than even the Court can say more likely than not it would not have happened and that the common law’s approach to historical events, including, so the respondent says, those hypothetical ones to test the position the plaintiff would have been in, is constructed or reconstructed only on the balance of probabilities, treating as fact that which is more likely than not and not fact that which is not more likely than not.

HAYNE J:   Forgive me, I just want to understand this.  Leaving aside whether this prospect or chance has worth or value, leaving aside how one would determine it, what is the subject matter, that is, what is the prospect or chance which you say is something of value which the law should allow?  What is the subject matter?

MR WALKER:   The subject matter is the prospect or chance that this little girl would have suffered less disability than she does suffer had the diagnosis not been negligent and the immediately consequential events therefore been different in the way reconstructed by the trial judge.

HAYNE J:   So the prospect or chance of the avoidance of bodily harm?

MR WALKER:   Well, yes.  I have to put it in comparative terms because your Honours appreciate that this little girl was very sick before there was ever any duty of care imposed on the defendant and she was going to suffer in any event.  Furthermore, steps of a reasonable and entirely proper kind to save her life would have and did, so was found, themselves bring about disability.  So the surgery and the radiation themselves do some hurt in order to provide some help.

KIEFEL J:   That is pain and suffering but you are talking ‑ ‑ ‑

MR WALKER:   No, I am talking about disability, I am not talking about pain and suffering.

KIEFEL J:   Permanent disability.

MR WALKER:   Permanent disability in this case was produced by the tumour and associated hydrocephalus, by the delay in therapy brought about by the negligent diagnosis, by the later surgery which would happen in any event upon proper treatment, and which did happen, and the later radiotherapy which also was the indicated course of action which did happen.  So those four – I will call them medical facts, the first nature; the second the defendant’s negligence; the third the proper response to her position, which I stress is lethal, to her position which did happen; and the fourth which is also a proper response to her position which did happen, all of them are held to have contributed which is why it was only 25 per cent of the permanent disability which is in question in this case.

KIEFEL J:   I just want to be clear about this.  You are not saying that the chance in question is of her not suffering the neurological episode.

MR WALKER:   Goodness no, no.

KIEFEL J:   You said that she would suffer less disability.

MR WALKER:   That is right.  It is the chance in this case – that is why when Justice Hayne talked to me about the avoidance of injury, that is of course, with great respect, correct and it is the concept that is at the heart of our argument.  But the injury in question and the avoidance in question is the lessening of the gravity of the final result, the permanent result of a natural pathological process which, among other things, it became the defendant’s duty to seek to arrest or alleviate.  No question of cure in this case, unless you define “cure” in the very pessimistic sense that you are not dead. 

So the tumour and the hydrocephalus were going in nature to cause disability.  The requisite surgery was going to cause disability, further disability.  The requisite radiotherapy was going to cause further disability.  So that nature starts it and is going to cause disability and as his Honour Justice Studdert put it, the three other contributors are additive to it.  It is the second of the four contributors I stress, there is the tumour and hydrocephalus, there is the negligently delayed diagnosis, there is the proper surgery and then there is the proper radiotherapy. 

The third and fourth have no connection with the negligence, that is their occurrence and what they caused is not to be to put to the account of the defendant.  That is why all that was at stake in this case, and this is not one of the issues still open in this Court, was liability for 25 per cent of the disabled state, that is that position of damage, if I can put it that way, which is constituted by the fraction or component of her overall disability which can be traced to – medically traced to the delayed diagnosis.  That is, but for delayed diagnosis, she would have been better off, though still gravely hurt.

The injury in question is that incremental or attributable part of her disability owing to the negligence as opposed to the tumour itself – that is what was going to happen come what may with the tumour – I stress come what may without intervention she would have died – it is clear the tumour and hydrocephalus had already caused disability even with the best of care thereafter.  It is clear that the best of care would have included surgery which itself had side effects of disability.  It is clear the best of care would have included follow up radiotherapy which itself has side effects of disability. 

However, the best of care did not include the delayed diagnosis which was negligent which did on the probabilities – and I stress the probabilities – bring in its train delays in the application of two forms of therapy that your Honours have read about, steroids and a drain, so pharmaceutical therapy and surgical therapy.  Taking for the moment, leaving our ground 2 aside for the moment and it goes only to a question of figures, prospects, the point in this case is whether or not that disability, that extra piece of disability, can be said to have been loss caused by the negligence when the trial judge assessed that the prospect without negligence of that not having occurred, of that injury having been avoided, was ‑ ‑ ‑

KIEFEL J:   The damage, as you describe it, you would say is truly proportionate to the defendant’s omission?

MR WALKER:   Yes.  There is no all or nothing here, no.

KIEFEL J:   No, but this is what you would say a classic case of proportionate recovery?

MR WALKER:   Yes, that is, the definition of the loss and the assessment of damages for that loss, as Justice Studdert’s very careful reasons in that regard show, are concerned centrally with proportioning the recovery to the defendant’s contribution, yes.  If I may come back.  The loss in question is the loss of the chance or prospect of avoiding that 25 per cent which was attributable to the late diagnosis, if it caused it at all, and we have findings on the balance of probabilities there.  But because she was in such dire straits, because there is no medical silver bullet for people in such a position – and your Honours have read the almost minute by minute element of crisis involved in her presentation and treatment, certainly hour by hour – it was a medical fact, not a question of unknown science, just a question of the position that human beings get into and that other human beings are able to help them to a degree in, that her avoidance of the amount of disability brought about by the actual timing of the therapy being when it was rather than when it would have been was assessed at 40 per cent, that is, no better than even, less than 50 per cent.

It is that figure being less than 50 plus one, being no better than even, which leads the respondent’s argument to what we submit is the essential proposition of that argument that that chance or prospect held by my client until it was lost by reason of the negligence was a chance or prospect of no value or worth in the eyes of the law, thus not capable of constituting loss or damage let alone of attracting any quantification of damages.  The last comment may now be – I will put that to one side – an unnecessary part of the argument but it is why judgment should have been entered against us, so says the respondent.

This case is focusing on the question whether it has the character of loss or damage because of the reasoning that says being no better than even you cannot show that more likely than not the prospect would have been realised, the chance would have been realised, and the chance or prospect in question is one that has to be realised in order to have any worth or value.  Now, that is another way of pointing out the fallacy.

KIEFEL J:   You say that the probability approach of 50 per cent plus is too crude, but taking it down to the other ‑ ‑ ‑

MR WALKER:   I do not think I would use that word, but it is found in the speeches, yes.

KIEFEL J:   If you take it down to the other level, though, you say that this is true proportionate recovery.  As a control mechanism, if that is the way to look at it, where do you say the loss of a chance becomes so insignificant or less than significant as to warrant recovery on a proportionate basis?  Where do you draw the line on this approach?

MR WALKER:   I am going to give your Honours a word from this Court’s plurality reasoning in Sellars.  The word is “negligible”.  Or from Malec the word is “speculative”.  I fear when I give those words, particularly the first of them, I am really only reframing your Honour’s question to me.

KIEFEL J:   Yes, I think you are.

MR WALKER:   It is a bit like Sir Anthony Mason’s famous extra curial test for an interlocutory injunction, it should be granted when it should be granted.  I think the word “negligible” is simply a Latinate way of saying that the law does not care about that which it should not care about.  That is what the authorities say, your Honour.

KIEFEL J:   I suppose the unqualified question is, does this proportionate approach that you are really seeking to have applied say that any chance lost at any percentage should be recoverable?  That is a loss expressed as a chance.

MR WALKER:   The difficulty I have in answering your Honour’s question, the difficulty for my case in answering your Honour’s question so as to advance my case, comes because of the figuring that one sees in this Court’s reasons in Malec, quoted in Sellars, where – I say this with the greatest of respect – perhaps for rhetorical impact their Honours used 99 per cent and one per cent as the edges of the spectrum, which of course involves the rather extreme prospect that you would bother about trying to put a discount in if you were 99 per cent sure of a successful outcome or that you would give any recovery if you had assessed it as only a one per cent prospect.  I know of no cases which have, as it were, toiled in the vineyard of distinguishing between 100 per cent and 99 or zero per cent and one.

KIEFEL J:   Perhaps you should approach it as a matter of principle, because if you say that the first approach is the purpose of the law of torts to compensate, would it not follow from what you have said that you ought to compensate for any percentage where you have a connection between the defendant’s act or omission and what you would characterise as damage, namely, the loss of chance?

MR WALKER:   So long as the chance attracts as a matter of judicial description or jury acceptance upon direction that it was a real chance and that, I think, that the word “real” particularly before the word “chance” or “possibility” is a time‑honoured usage in the law.  I confess it is not precise, but it is plainly not intended to be precise.

There are matters of impression involved in such a qualitative assessment and real and speculative have been often used to contrast between that about which the law should be concerned and that about which it should not be concerned.  The difficulty, of course, with the word “speculative” is that it is precisely the term that describes commercial opportunities that are valued and very closely valued by overt reasoning in markets, and I am going to come back to that problem.

So we would prefer not to use the ambiguous expression “speculative”, but rather use its obverse, that the chance has to be real, but that the tipping point for whether or not things happened, that is the finding of fact in a common law trial of 50 plus one has nothing to do with the worth or value of something that has been unquestionably lost.

Now, when I say something that has been unquestionably lost that is because neither in this case on the facts and findings, nor in any case of which this case would stand as a paradigm can there be any doubt that that for which the patient presented, namely help in dire straits, involved assistance to avoid the worst outcome, notwithstanding or even because the odds were against the patient of avoiding that bad outcome.  In other words the need for medical assistance, the vulnerability of the person needing it is, if anything, more obvious and greater calling out for more when the position of the plaintiff is worse.  There may be a limit reached here in relation to true end‑of‑life decisions that one does not have to consider in this case.

KIEFEL J:   Can I just ask you though about the notion of “unquestionably lost” when you are talking about something as potentially a little abstract as the loss of a chance?  If a surgeon or physician’s act or omission was taken on medical expert evidence to have involved a 40 per cent loss of the chance of a complete cure you would say that that should be compensable to the extent?

MR WALKER:   Yes, one goes to the doctor and he or she, applying reasonable care on a hypothetical case, fails – sorry, not applying reasonable care – fails to say that if we operate within 24 hours your sight will be saved.  If we wait longer than 24 hours your sight will not be saved that is the chance or opportunity – when I say will not be saved – there is a chance that your sight will be saved if we operate within 24 hours.  There is no chance of your sight being saved if we do not operate within 24 hours.  That is something that has been lost.

KIEFEL J:   But because we are in the realms of medical and scientific calculations here what if, by the time the matter comes to trial, the patient has recovered?  This is the difficulty thrown up by being some sort of intermediate damage before physical damage has actually come about.

MR WALKER:   With respect, I accept that entirely and it is one way to differentiate Gregg v Scott from this case.  He had not died and yet the subject matter of the chance or prospect was of dying sooner than he otherwise would have, but we are ‑ ‑ ‑

KIEFEL J:   The proposition I am putting to you is different from Gregg v Scott.  It is the position where there has been the sort of assessment of chance of cure on medical evidence, but then something changes.  What I am saying is that throws up the lack of finality in the physical expression of loss or damage which the law usually looks for and this hypothetical statistical analysis which is the basis of your argument, as I understand it.

MR WALKER:   No, not at all.  I hope I am going to persuade your Honour on that.  Ours is not a hypothetical or merely statistical question.  It depends upon statistics in the way that everything in medicine depends upon statistics because it is all about observation and inductive generalisation.  That is how we know about anatomy, it is how we know about pharmacology or surgery, does it work, and we do that by ultimately counting whether anecdotally, that is crudely, or very sophisticated clinical trials and the like.  It is not merely statistical the fact that my client has disability to a certain permanent degree.  That is an observable, physical fact not in question.  I repeat, by contrast with Mr Gregg who had not died at a particular time – the injured plaintiff.

KIEFEL J:   I am sorry to interrupt you, but perhaps I can shorten it.  Are you saying that there could be a control mechanism by limiting cases of loss of chance to where there has been observable physical injury?

MR WALKER:   That is what this case is about.

KIEFEL J:   I am looking to the question of principle and where you put the controls on it.

MR WALKER:   I know.  My next answer is, we have no ambitions to go further and, in particular, we have no ambition to put a proposition that one can recover when the loss of the chance is itself a completely uncertain event.

KIEFEL J:   I know that you are talking about this case but you are asking this Court to pronounce upon something which might take the law in a particular direction.  That is why I am interested to know what you say are some control mechanisms on what could otherwise be a rather open‑ended problematical question for the courts.

MR WALKER:   The first thing is, we would, with great respect, prefer not to use the expression “control mechanism” because it gives the notion that what I am putting is some unruly or dangerous beast, but it is an accepted form of judicial reasoning, I entirely accept, of a consequentialist kind and what we offer under that heading is as follows.  The chance or prospect has to be shown to have been lost and, that is, on the balance of probabilities.  You have to show that you have lost it, not that it still exists.  If the chance or prospect still exists, which might be thought to be the Gregg v Scott position, then, with great respect, it is not obvious that it is truly a loss of a chance case at all, that is, that you have shown that you have suffered any loss.

In our submission, that is at the heart of the reasons why there are no calls for concern that upholding the appeal in this case in relation to the facts and findings of this case opens the floodgate to cases which see people getting damages, true, proportioned, but nonetheless damages for things that at the time of trial were still open to happen or not.  That is the point I am trying to get at.  We are not asking for damages or putting forward as damage a prospect or possibility that remained open at trial as to whether it might happen or not.  We are not saying, I now wear an actuarial black mark, give me money for my actuarial black mark as to the future.  We are saying, I have suffered the worst outcome relevantly, apart from death.  I have suffered an outcome which the evidence shows was 25 per cent, additively that is, composed of what followed by reason of the delayed diagnosis and consequentially delayed forms of therapy.

I have suffered that.  My chance of avoiding that 25 per cent existed on these days, the 13th and 14th.  It no longer exists.  The negligence has deprived me of that chance or loss or prospect.  It does not remain open at trial.  It did not remain open after those very few days.  For those reasons there is no territory of open-ended possibilities yet to be actually observed in practice because the future still holds the possibility of a desirable outcome, portended by upholding this appeal.

KIEFEL J:    It is coming very close to saying that she did in fact suffer the increase in severity of the disease or injury.

MR WALKER:   That is the finding.  The question is whether that could have been avoided by reason of – it could have been avoided but for the negligence.  The answer to that is there was a 40 per cent prospect or chance of avoiding that and that is the chance that has gone because of the negligence.  Had the doctor diagnosed earlier with the consequential earlier therapy, then, said the evidence, not more likely than not you would have avoided this 25 per cent disability, but 40 per cent likely you would have avoided that disability.

KIEFEL J:   Just taking up the use of the word “avoid”, would it be correct to say that the respondent’s omission or delay increased the risk of her suffering a degree of severity of the injury?  You would say that risk eventuated, would you?

MR WALKER:   It is the last that matters to my case. 

KIEFEL J:   Yes, it does.

MR WALKER:   Yes, it does.

KIEFEL J:   But do you say the risk has come to pass, that is really what I infer you saying when you are talking about avoidance of the risk and the loss of – the avoidance of the harm and the loss of it.

MR WALKER:   The way we would put the question of risk is as follows.  At the stage of imposing a duty, which of course is elementary in this case, if one were laboriously to articulate it explicitly, the risks threatening patients if one does not diagnose carefully and prescribe therapy carefully, are that they will be worse off, and sometimes fatally or grievously so, than if you were careful.  So that is a very laborious way of saying why should there be a duty of care.

KIEFEL J:   That is probably one step down the track to – I think that the finding here talks about avoiding or diminishing the severity of the disease.  There might be a correlation between the disease or injury and the after‑effects but that is what you are seeking to avoid or not have the risks increased.

MR WALKER:   This dreadful disease can cause terrible things including death and terrible disability.  The findings were that by reason of the timing, I will not use the loaded word “delay” at the moment, the diagnosis and therapy as it actually happened compared with what - and now I put the loaded word in - would have been the more timely diagnosis had there not been negligence there was 25 per cent more disability as a result of this natural pathology than there would otherwise have been.

Now, that is not contested, that 25 per cent is there.  Then comes the question, what about what at trial was 40 per cent and on appeal was, for reasons we contest, reduced to 15 per cent, namely, the chance of that 25 per cent extra disability not having occurred – that is what I mean by being avoided – had there not been negligence?  The answer is it was 40 per cent; that is, even if it had been careful, still there was this balance of probabilities that she would have still suffered as much.  As I say, the respondent’s case has to be that because it is no better than even, that possibility – which after all was why people diagnose and prescribe therapy, you do not do it uselessly – chance or prospect had no worth or value in the eyes of the law, thus no damage.

Now, in our submission, when I said earlier that something was certainly lost, I mean by that in ordinary terms of human interaction what was lost was the possibility shown by the science and the accepted evidence that earlier diagnosis leading to earlier forms of therapy would have left her not so badly off in terms of her disability, not so much brain damage.  Bearing in mind that, as your Honours notice, they were at this stage operating quickly, this is a progressive matter of pressure on the brain from tumour and the associated hydrocephalus, it makes lay as well as expert sense that time is of the essence, and so the expert said.

CRENNAN J:   Chance always means – when you say “loss of a chance” in this context, loss of the possibility of a better outcome.

MR WALKER:   Yes, “opportunity” is an equally good word, with respect, and perhaps is a better word colloquially to – the difficulty with “chance”, of course, is that it comes now ‑ ‑ ‑

CRENNAN J:   The difficulty with “possibility” is that it is often contradistinguished from probability.

MR WALKER:   Yes, and “chance” often comes surrounded with helpful or unhelpful references to statistics and the like.  It was the opportunity that medical science provided, and good medical practice provided, of leaving her less badly off, which was available and then by the negligence lost, and that is the key to our case.  We never presented in court with what I will call an open chance or prospect, or open possibility, or as yet unexhausted opportunity.  It had gone and forever.  That part of our life was never going to be available, as it were, to be revisited, unlike the cancer sufferer who may well not die at the earlier date he now fears.  That is still an open chance in the cancer case, when the plaintiff is live.

CRENNAN J:   One problem is it is always an opportunity affected by the progress of the disease.

MR WALKER:   With respect, we would not characterise that as a problem, though it is something that factually has to be grappled with in cases like this, but not only in cases like this, in commercial cases matters of market extraneous to the either contractual, tortious or statutory wrongdoer very often come into questions of whether you have suffered a loss on account of the wrongdoing, and untangling those matters is a routine thing which in some cases can be very difficult, in many cases is not so hard, but it is not so much a problem as simply a task of making sure that a wrongdoer pays no more than he, she or it caused.

HAYNE J:   Does the language of loss of chance, in particular in this case the identification of the chance that is lost as being 40 per cent, mean that the evidence so far as it went meant that it was more probable than not, that is to say 60 per cent, that earlier treatment would have made no difference?

MR WALKER:   Yes, I hope that is crystal clear from the way I started the case.  The respondent’s case is that because it is no better than even you cannot say more likely than not you would have been better off but for negligence, and, indeed, because it is not 50, but less than 50, the court can say more likely than not you would not have been better off but for negligence.  That is what I said.  At first sight is an imposing proposition because of the basal expectations that a defendant not pay for something which, notwithstanding negligence, is no difference in the plaintiff’s position.  It treats the tipping point of 50‑plus as that which determines, among other things, whether what arose in the relation of the parties – and that is for negligence, obviously in contract it will be different though query whether it makes any difference for present inquiries, but for negligence, whether in the relation of the parties the interest of the plaintiff at stake, that is vulnerable to infringement, was such that it has no worth or value as soon as it can be said it has to do with – by that is it involves or looks to a desirable outcome which is not more likely than not to occur, the no better than even prospect of a desirable outcome.

HAYNE J:   In Gregg v Scott, to come back to where the Acting Chief Justice began this morning, in determining whether this is actionable damage there would appear to be at least four considerations in play in favour of your side of this debate.  First, that balance of probabilities is all or nothing, crude, arbitrary, et cetera – see paragraphs 43 and 46; two, the comparison with or the extrapolation from the market cases; three, the notion of maintenance of standards – standards of care, that is; and, four, that causation, on balance of probabilities, is too restrictive of liability - see paragraph 84.  Now, before your argument concludes I would be much assisted to know whether those four considerations are urged.  I think they are by your side, but if there are more considerations urged than that, what are they?  As I say by the end of your argument, I would be assisted.

MR WALKER:   Yes, thank you, your Honour.  Your Honours, the next step in our argument is to point out that it cannot be said, drawing from both negligence and other areas of law, that this would be the first time that the law recognises value in chances no better than even of the desirable outcome.  I am going to come, but not yet, to Sellars.  That is an obvious example.  Amann is another one.  Sellars is statutory, Amann is contractual.  In any case involving negligent valuation of land, a negligence case, the responses of Spencer’s Case market participants to prospects no better than even, indeed very often much less than even, are palpably very often the substance of the loss in question. 

The failure to understand what town planners, for example, may have in mind as a slight but real possibility can and does sound in market value in a way that results in courts in negligence actions and not only in resumption of compensation cases awarding money.  Obviously enough in any case involving the assessment of the value of shares in the various different ways in which that arise, very often in negligence, the court routinely and without any difficulty takes into account the response of market participants to information of prospects certainly not better than even and very very often much less than even.

One might imagine a case in which a person interested in a low price for securities or a business in dealings with the person interested in a higher price for those same securities or business might represent that the company has no prospect of good geological results.  Imagine if it emerged that the evidence to support that representation was that the best geologists had shown that there was only a 30 per cent prospect of a good result.  Your Honours will appreciate, particularly in this country, that to say only 30 per cent is risible in relation to the possible value of that business or those securities. 

A court, in our submission, would have no difficulty in a negligent misstatement case – one does not have to posit fraud or misleading and deceptive conduct, just a negligent misstatement case – of saying that there is the world of difference of worth and value cognisable by the law both at the point of wrongdoing, that is, breach of duty, as well as demonstration of a loss in somebody saying zero simply because it is below the tipping point of 50 plus one as to whether there will be the desirable outcome of good geology.

In our submission, though perhaps for special reasons, perhaps for reasons that it shares with things like securities, it is not necessary in order to show loss or damage to demonstrate in the professional negligence court that the lost litigation would have succeeded. 

GUMMOW ACJ:   But this postulates a breach of contract, does it not?

MR WALKER:   Well, it may arise also without a contract.  It will also arise in a negligence action.

GUMMOW ACJ:   In more modern times there has been a rather slippage in doctrine, in my view.

MR WALKER:   With respect, your Honour is correct, and particularly with professional negligence, notwithstanding some degree of informality, normally there is a contract, but not always.

GUMMOW ACJ:   Therefore, these questions are arising at the stage of measure, are they not?

MR WALKER:   Well, they certainly do arise at stage of measure but before ‑ ‑ ‑

GUMMOW ACJ:   Is that not true of the resumption cases also, the Spencer’s Case situation?

MR WALKER:   Not necessarily.  That is, as to whether there has been loss or damage ‑ ‑ ‑

GUMMOW ACJ:   I mean, there has been the loss or damage; there has been the resumption by force of statute which immunises something otherwise wrongful.

MR WALKER:   I do not put a resumption compensation case as any analogy with what we are faced with here.  I use it simply to say that there is nothing alien in the law in seeing a “no better than even” prospect of a desirable outcome as something which has worth or value both out of court - that is the market cases that I was asked about at the outset - and also for reasons I have already touched on - in court, that is, they are weighed then in court and measured. 

It is not only at the point of quantification of damage, it is also as to whether you have lost anything, because the argument was attempted that by my negligence I missed the limitation period, there is no possibility of an extension, you cannot sue.  But by reason of X, Y and Z, more likely than not you would not have succeeded, therefore you have lost nothing, therefore there is no loss, therefore there is no cause of action in negligence. 

Now, it must be said that the authorities in this Court by no means put paid to those arguments, and it must be said that in a professional negligence action where, for example, a plain point of law barring the hoped for litigation emerges, one would be surprised if one laboriously went through the chances, as it were, of the hypothetical court getting it wrong as being something that would sound in value. 

But leaving aside those problems that may have to do with the peculiarity of one court assessing what another hypothetical court would have done, the chose in action, which after all is a right to litigate and involves before it is fructified in judgment or compromise merely a chance or prospect of obtaining the judgment sought, that in our submission is something which also shows, of course not exactly analogically, that there is nothing alien to the common law in seeing value or worth of a cognisable kind rendering something loss or damage, notwithstanding the desirable outcome in question has a prospect no better than even.

In paragraphs 37 and 38 of the respondent’s written submissions there is a distinction attempted which, in our submission, lacks relevance or reality for the present case, though, of course, on its face it is manifestly correct in at least one sense.  We do not argue, of course, that what is described as the “chance to avoid or interrupt a natural pathology”, in paragraph 38, is or, if it matters, is the same as economic loss.  Of course it is not, but for the tort of negligence loss or damage certainly does not, of course, have to be economic.  That is a development, not a start, in the law. 

In our submission, it assumes a conclusion to say that by characterising something as not economic loss, one has added anything to the question whether there is or is not cognisable or actionable loss or damage in a case such as the present case.  The matters to which I have already referred in the last 10 minutes show that in any event chances no better than even, and putting that abstractly, of many different kinds have in many different areas of the law, including negligence, been regarded as having worth or value.

Taking the inquiry raised by those parts of the submission in its own terms for a start for the sake of argument and considering the question of economic loss or, as it particularly arises for this case, Sellars and the holding of this Court in relation to the loss of commercial chances.  I am raising this argument because there is no doubt and the respondent’s argument does not to any degree challenge that the law in this country is that a commercial chance no better than even has worth or value which can render it loss for the purposes of the statutory cause of action.  I am going to come back to see whether I can take it beyond that application.  In our submission, I can.

The question in this case is whether what I will call a medical chance that is no better than even nonetheless has no value.  If so, one would ask, is that because of an incapacity of the law or novelty attempted for the first time in this case in the law of assigning monetary or financial value to matters of medical outcome.  In our submission, that is palpably incorrect.  Among the considerations that render it so one can start, again taking the defendant’s approach which posits economic loss as the appropriate standard against which the chance to avoid or interrupt a natural pathology fails to be actionable when it is lost, we can start with market itself.  There is no question, as I say, that in terms of property or commerce chances no better than even are compensable and are weighable or seen as having value or worth in the eyes of the law.

There is also, in our submission, quite plainly outside court a market – if one can put it that way without offending medical practitioners – a place where there are monetary exchanges routinely accomplished in reality for the chance or prospect of a desirable, that is, better than feared, medical outcome.  Leaving aside what I might call the ordinary non‑fraught dealing between patient and doctor or patient and laboratory or patient and hospital or patient and other therapist, there are, of course, the cases known to everyone of the fees and expenses for special or experimental treatments, for example when cancer has been diagnosed as terminal, as they say.

The ordinary English expression “heroic surgery” or “heroic procedures” is used precisely because the skills in question are being deployed in situations where the odds are greatly against the patient.  Manifestly patients are willing to pay and you do not need to have a contract to pay, of course, and of course professionals, hospitals, laboratories and other therapists are able by that demand, which accords financial value to this chance or prospect, to seek in many cases very considerable remuneration or return.

GUMMOW ACJ:   That brings us to this perhaps, Mr Walker.  You are looking at this comparative material.  To what extent do we need to know about or have an awareness of the medical and health treatment systems in various jurisdictions?  One suspects it is quite different in various states in the United States, for example.  It is different in the United Kingdom.  The insurance system may be different in countries as well and so on and so forth.  We are not really in an uncontrolled market.  You invite us to get into a market but it is a very strange market.

MR WALKER:   It does not mean it is not a market, and yes it is a very strange market.  It is probably a number of very strange markets.

GUMMOW ACJ:   It has a lot of public money into it.

MR WALKER:   There is a huge amount of public money in it.  In Matsuyama, to which I will be coming, in the Massachusetts Supreme Judicial Court decision, your Honours will have seen the quotation from a Wyoming decision that their Honours found useful in which there is a comment, which I think I could have put from the Bar table in any event, namely, that very large – one is tempted to say huge – amounts of public money, and one can add to that private money by the means of insurance, are paid out in relation to medical care applied where there is close to no hope – one of the things that President Obama is accused of is wanting to triage people by saying, “Your aunt is too old and too sick to get any money”.

That brings me to this comment which is important, in our submission, in relation to the policy of the law in this area.  We, by which I intend to convey something in the nature of a social consensus, do not triage people in relation to medical treatment in the same way as the battlefield requires or required.  We do not say, “More likely than not you are going to die or be damaged by what our learned friends call the natural pathology, that is, human intervention is not going to make a difference”, which is their point here – the negligence made no difference.  We do not say at that point it is valueless or worthless that you enjoy the 40 per cent or 15 per cent prospect of that not being so – the 40 per cent or 15 per cent prospect that human intervention will leave you better off or will perhaps save your life.

In our submission, we do not do that manifestly, which is why so much money is spent in the closing phases of people’s lives in the medical system, and it is why acute or intensive care are facilities which civilised societies require as absolutely rudimentary for any organised or even perhaps not so organised health system.  Acute or intensive care, of course, classically deals with people who are in danger, usually a high danger, of dying without medical intervention.

Trauma units are for people who may for all intents and purposes be dead when they come in, but we do not say that the low prospect of curing them is a reason not to do so.  In our submission, that is because in the eyes, I submit, of the law there is an understanding that there is worth or value that people pay money for by way of fees and the like, that States support by way of institutions, charitable or otherwise, and certainly directly in their medical systems, rendering it worthwhile or appropriate or reasonable to spend vast sums of money on the possibility that these “no better than even” chances, in many cases “much less than even” chances, may be realised in favour of individual patients.

CRENNAN J:   What about a completely different aspect of our public health system which is notorious, which is that there are often waiting lists and appreciable delays in relation to treatment?  Not necessarily in the acute context, I am not talking about that, but it just raises the spectre that many people would be losing chances of optimal moments of treatment by reason of the fact that there are these what seem to be inevitable waiting lists?

MR WALKER:   Your Honour, it is only in the case of wrongdoing – it is only in the case of negligence that such claims can be made.  Those things which are not the result of negligence cannot be sued on to get damages for negligence.  In circumstances such as your Honour ‑ ‑ ‑

CRENNAN J:   It is not hard to imagine that negligence may be invoked in that context.

MR WALKER:   If it is properly invoked, then so be it.  It will not be properly invoked simply by saying the taxpayers have not provided enough money.  Now, in our submission, the danger in that form of reasoning is that it would provide a quite unnecessary immunity from an ordinary expected level of care in relation to delays.  There is no reason in times of life or death decisions for timeliness to be somehow left out of the considerations which a common law court would have as to the content or scope of the duty and whether or not it has been breached.  That timeliness may be departed from for many reasons having nothing to do with any individual’s negligence or any organisation’s negligence.  That is simply because nothing is perfect and a political fact is no government can ever spend enough money on health. 

CRENNAN J:   Another problem that is quite discrete in relation to the argument that might be raised is that if there is a shift of focus away from outcome and on to loss of a chance in terms of actionable damage, that would inevitably encourage defensive medicine, that is to say, running a battery of tests instantly or immediately rather than going through what you described as the deductive processes of hazarding a guess about a diagnosis and testing and then maybe having to discard that trial ‑ ‑ ‑

MR WALKER:   Trial of treatment and empirical approach, yes.

CRENNAN J:   Yes, exactly, sequential deductive approach to treatment.

MR WALKER:   Can I come back to answer Justice Crennan’s question.  I have not yet answered Justice Gummow’s question.  The answer is a proper understanding of what I will call comparative law, though that is too charitable an expression for it, would, in our submission, require an understanding not only of the legal roots of the particular decision, that is, the tradition in which they are a stage, but also would require perhaps a sociologically informed understanding of the expectations or social values to be seen in or between the lines of the judicial reasoning.  That itself is difficult because the forms of judicial reasoning and what is required of it differs from system to system.

In paragraph 23 of our written submissions we have come fairly close to crying stinking fish about the comparative material we have placed before the Court.  The reasons for that do not, in paragraph 23, include what the Acting Chief Justice has raised with me, but that should be added to those reasons.  We do not say, we could not say, it would not be right in this Court to say that you should not look at reasoning at certain levels of generality in other jurisdictions, particularly those that are or are related to common law traditions, in order to consider where you have, as it were, a free choice as to a direction for the common law of this country to take, whether a step should or should not be taken and if so, what form it should take.

I think the parties unite in this observation to you, it is not possible to look at this material, much of which is available through the plethora of scholarly writings on this very topic, and say that there is anything even vaguely approaching a consensus, but even if there were, that would raise methodological problems too great for me to tackle, namely, why should this Court fall in with what lots of other people have done.

KIEFEL J:   But you can look at other systems and seek to understand where, say, loss of chance is applied, why it is done, in what legal context it is done.

MR WALKER:   Yes.  Reasoning at a certain level of generality or abstraction.

KIEFEL J:   Yes, and necessarily have to rely on commentators, respected commentators quite a lot to understand particular systems’ methods of expressing their reasoning.

MR WALKER:   Yes.  That is why we have drawn it to attention as we have.  It is why we unashamedly select examples of reasoning which we submit is persuasive and cogent in favour of the outcome for which we contend and why the other side does the opposite.

KIEFEL J:   I was not quite sure what you were in fact making of the comparative material, particularly your reliance upon the application in French law which is perhaps one of the earliest and most clearest and followed, I would have thought, by the Netherlands and Belgium.

MR WALKER:   Yes.

KIEFEL J:   I mean, in countries which do apply it are you saying that there is something valuable to be gained and if so what is it?  What are you saying that we should deduce from the material about those systems?

MR WALKER:   That the law sees value or worth in the possible rather than probable protection of physical or bodily integrity in terms of health or lack of disability of a kind which can be compensable.

KIEFEL J:   That is to say you rely upon it because it applies it and therefore that supports that your argument but you have to go a bit further, do you not?  If you are going to rely upon it you have to go a little bit further into the areas you have just mentioned to look, for instance, at what the insurance compensation system in France is.  You have to look to the fact that the system of contract in France is not dependent upon consideration and that their medical negligence cases are determined, usually, under contractual principles and they do not deal with damage the same way that other systems do.  Those sorts of things.

MR WALKER:   Yes.  Those are differences, in our submission, which do not detract from the proposition that we do seek to obtain from the material.

KIEFEL J:   That it is capable of applying?

MR WALKER:   No, they are capable ‑ ‑ ‑

KIEFEL J:   That some systems do apply it.

MR WALKER:   Capable of being seen as having value or worth.  I do not take it any further.

KIEFEL J:   Is that it?  Is that the only proposition you are drawing from those systems?

MR WALKER:   No.  In particular, we have called in aid the recent Massachusetts decision to which I will be going.  In our submission, that has this usefulness.  It is, of course, adding to the disparate voices in the various common law jurisdictions in the United States.  It is not settling anything and there is no monolithic position, as we have drawn to attention in the material scheduled to our submissions but what it does show, in our submission, is an approach to a number of different factors, some of which are objections of a kind that I want to deal with in answer to Justice Crennan, in a way that at least in part we are going to adopt and urge and, of course, there is an element of appeal to authority in that and that is, in our submission, this Court would pay regard to what emerges from the Massachusetts Supreme Court of Justice.  You do not follow it.  Of course you do not follow it, but it is a common law tribunal of great standing to which regard would be had.  Now, the difficulty with that argument, I freely confess, is that much of the same can be said for propositions against me, and in particular the House of Lords.

GUMMOW ACJ:   You were going to deal with Justice Crennan’s question.

MR WALKER:   That was my answer to Justice Gummow and to Justice Kiefel arising out of that.  Back to the question that Justice Crennan asked me.  It is true – and Matsuyama, in fact, records this and deals with it – that both in and out of court an objection to what some people have seen as a step to be taken in favour of recovery in cases like the present is that it would encourage what is called derogatorily by implication defensive, presumably meaning over defensive, medicine.  As a possible patient I wish all the medicine to be practised on my body to be defensive but I can understand why people who may have to share the cost would not wish it to be over defensive. 

Your Honours, one thing about that objection is that it is rarely if ever accompanied by anything in the nature of even the most exiguous empirical demonstration from behaviour in systems benighted by such forms of recovery that can be regarded as (a) over defensive and (b) due to doctors’ perceptions or medical administrators’ perceptions of that form of recovery.  That is the first thing.  The second thing is, this is not an area where it is safe to proceed by way of intuition, that is, judicial intuition. 

Third, one of the reasons why intuition would be unsafe is that it involves attributing to a body of practitioners as if they were, as it were, a social movement capable of being influenced by legal doctrine, a response in relation to their discharge of professional duty would somehow over privileges or over weights the financial consequences not only for them but in many cases for their insurers as a result of what they may regard as an increased scope for liability.  There is – I return to my first point – no evidence of that having occurred and it would be an unfair intuitive response to attribute that to the medical and related professions. 

The third thing is this.  When we talk about defensive medicine being either encouraged or exacerbated by permitting recovery for the loss of the opportunity no better than even of escaping the feared outcome, we are talking about impliedly inappropriately excessive techniques being applied to find out perhaps more quickly and perhaps in more detail than would be necessary or reasonably necessary things about the patient and perhaps also the over defensive derogatory term is directed at therapies of the same kind, thus, for example, excessive antibiotics too early, et cetera.

Inherent in that argument, the argument about this objection, is that there will be or there is in the nature of things something to be feared as to the development of that undesirable form of conduct by these professionals to a degree which we can detect beyond what is caused by their response intended by some views of the purpose of tort, the disincentive view, to the unquestioned fact, that is, unquestioned by the respondent, that if the opportunity lost is better than even, there will be recovery. 

The notion that there is a sufficiently appreciable body of doctors in a sufficiently appreciable number of circumstances who would distinguish in relation to their diagnostic techniques or their therapeutic decisions between cases where the law says, well, this is an appropriate response with a 60 per cent chance of escaping blindness, but is an inappropriate response with a 40 per cent chance of escaping blindness is, in our submission, bordering on the fantastic and it certainly has no empirical or substantive support.  There is nothing to substantiate that.

In our submission, it is in the nature of a bogeyman, that is, it applies a label in order to conclude the argument, to describe the supposed responses of a profession to the circumstances being declared by this Court of when the common law liability may impose as being defensive, meaning over defensive, when it is a rational response so far as the doctors are concerned, “You hold me liable if I do not do a CT scan as soon as I form the view that there is a real possibility of a tumour, therefore, I will”.  That, with respect, is a response that seems both reasonable medically and seems to be an entirely rational response to the legal conclusion.

If it happens, as may occur from time to time, that there is a disparity between the binding legal force of findings of negligence, which we know are just factual findings, but in fact do provide patterns that inform insurers and professional education, if there is a disparity between, as it were, the medical acumen of the judges and the medical acumen of the clinicians, then there can arise grievances and disquiet no doubt expressed socially and including by the medical profession, but that cannot deter this Court from doing the best it can, case by case, to determine the matter. 

If the ramifications to a reader of a decision in this Court or the Court of Appeal or any of the Supreme Courts is to the effect that it is careless not to, as I say, seek a CT scan in such circumstances or you had better have a pretty good reason not available in the particular case before the Court if you were going to repeat that form of diagnostic technique, then that is both rational and, by definition, the Court could scarcely say that would be improper or inappropriate.

In other words, worries about over‑defensive reactions ought to be built into the question of the reasonableness informing the finding of breach in the case in question, is this negligent or not.  It is for those reasons, in our submission, that the oft resorted to fear of over‑defensive medicine by reason of permitting recovery for lost opportunities no better than even of avoiding the feared outcome should be rejected as, in essence, lacking any weight.

Your Honours, there is another and more positive way of putting our position in relation to that kind of argumentation on this topic.  One might as well somewhat cynically speculate that to find that there is, as we put it, no content in the duty of care in cases where all the patient ever had was a chance no better than even of avoiding the feared outcome would appear – I stress, if one were cynical – to put pressure on doctors in their own interests, and why we should suppose they would only act in that way is problematic – put pressure on them to estimate the prospects of all their patients as less than even.  There was a time when some counsel in Sydney adopted the witchdoctor’s approach – “You are in real, real trouble”.  It means that if that turns out to be correct, your advice was right, and if it turns out to be a success for counsel, then you have all the kudos of a witchdoctor.

Now, with respect, doctors should not be supposed to proceed quite so cynically as those hypothetical or mythical counsel might have proceeded, but in our submission that is an argument of exactly the same order of cogency as the one that says, well, doctors will be induced by this to do things which we as an organised society do not want them to do.  In our submission, that really is a matter for hospital administrations, departments of health, other relevant commissions, and perhaps even Parliament, if it is decided that the rational response to findings in negligence are costing taxpayers too much or are clogging up the corridors of our laboratories or hospitals too much.  That is certainly not the kind of judgment or response which is appropriate to be carried out in this Court.

GUMMOW ACJ:   Mr Walker, whilst looking at these general considerations, if I can use that term, do you want to say anything about the treatment by the Court of Appeal of the Civil Liability Act at pages 387 and following?

MR WALKER:   Yes.

GUMMOW ACJ:   In other words, we know these events happened in 1991, we are being asked to develop the tort law, I think, and we are being asked to develop it against the background of a body of legislation in this country which is said to be relatively uniform in paragraph 387 on page 388, and to assume the contrary of what you are putting, namely, these notions of risk and loss of opportunity would not fit within the hypothesis on which the legislation has been introduced.

MR WALKER:   The first thing to be said is that this arises from the definition of “harm”, principally, in section 5.  The second is that the common law question has hitherto been framed in terms of damage or loss.  At the very outset one can say, if harm be understood to at least comprehend anything that the law has recognised as loss or damage then there is no anomaly or difficulty of the kind seen by the Court of Appeal; that is the first thing.

The second thing is, if, however, harm is different from or lesser than the class of matters which might be lost or damaged at common law, then so be it and that will determine a case which fits within loss or damage at common law but not within harm under the Civil Liability Act when that case arises.

The third proposition is that it would be a mistake in understanding the scope of loss or damage at common law to anticipate without concrete facts enabling the possibility of a difference or an incongruence of those concepts to be explored presenting itself to the court.  There is nothing in the word “harm”, particularly bearing in mind the inclusive extension (a), (b), (c) which suggest that it is a word that lends itself to a narrower interpretation than loss or damage at common law.

HAYNE J:   But implicit in those propositions is the proposition that the harm of which you complain here is none of (a), (b) or (c) as defined.

MR WALKER:   To which we say that does not matter at all.

HAYNE J:   I know you say then, so what, but that is the ‑ ‑ ‑

MR WALKER:   Quite.  That does not matter at all.  That is because the driving words of the definition are not (a), (b) and (c).  Far from it.  The driving words of the definition is this phrase, “of any kind, including the following”.

HAYNE J:   That simply brings us back to where we came in, does it not, Mr Walker, about whether this is a legally recognised power?

MR WALKER:   Yes, and that is why I answered the Acting Chief Justice’s question that way.  What is involved when a common law court – this Court now, not the Court of Appeal – looks to a statute like the Civil Liability Act in order to make decisions about the outcome of a common law case, it needs to be identified in terms of the legitimate recourse that may be made to the statutory words.  A number of matters can be raised as potentially applicable in this case but possibly of lesser or no importance.  The first would be in a very problematic area.  I obviously stand here to say ours is not.

It might be observed that Parliaments, even disparately at State or Territory level in the one common law district Australia, but if Parliaments have been active or shown themselves to have made choices, including negative choices, in relation to certain matters that might be informed by what would otherwise be called the policy of the law or public policy, then that is a legitimate reason for a common law court to consider staying its hand.  We submit that that is not something that applies in this case.

Another possible way to proceed is to observe that with the change of generations and perceptions a change in the common law would be appropriate except that Parliament has already, in effect, accomplished it in a way that comprises a legitimate policy choice.  So the obverse of what I first put, common law would change but it does not have to, and contributory negligence perhaps, consideration as to whether that should have been a complete defence as it is at common law, may be an example of something like that.  It does not have to be revisited at common law, at least at the moment.

HEYDON J:   These new statutory formulations derive from the Ipp Report, I presume.

MR WALKER:   Yes.

HEYDON J:   One does not usually associate the Ipp Report with extensions of plaintiffs’ rights.

MR WALKER:   No.

HEYDON J:   Can I raise for your consideration, are you not putting too much work on including and suggesting that there is quite a lot that is not in (a), (b) or (c)?

MR WALKER:   No doubt there is, but (a), (b) and (c) cover a very large part of the field of what is recoverable in negligence actions.

HEYDON J:   Yes, but we are not talking about (b) or (c) and we cannot be talking about (a), can we, so we must be talking about what is not in (a), (b) or (c)?

MR WALKER:   That is correct.

HEYDON J:   It may be something more, but your submission depends on it being rather a lot more.

MR WALKER:   No.  We say it is not rather a lot more for the reasons we have put in writing and I have tried to elaborate in address, that the loss of an opportunity is not a novel proposition in this area of the law.  It was in fact the law pronounced by the Court of Appeal of New South Wales until this decision only in the sense that that is what Rufo v Hosking said.  In declaratory terms of course that was wrong.  The question today is whether it can be restored.  In our submission, harm of any kind including (a), (b) or (c) - before one goes to the content of (a), (b) and (c), is a form of words that gives no support for the proposition that (a), (b) and (c) supply a genus that is of any help in a case of the present.

GUMMOW ACJ:   Is there anything in the provisions about professional negligence?  I know they are inserted later – section 5O and 5P?

MR WALKER:   In section 5O(1) it refers to not incurring a liability in negligence.  We know that elsewhere that means liability to compensate for harm caused by negligence – see, for example, just at a glance 5L.  It does not in terms say anything about harm.  However, for what it is worth, in our submission, the reference to what was debated at the time of the Ipp Committee as the so‑called Bolam test, a peer professional opinion notion, et cetera, that in our submission very strongly supports the notion that in a case such as the present Parliament at least sees that what happened by reason of the doctor’s negligence is a falling short of a standard that should not have been fallen short of, that is it was by reference to expert evidence about what his professional peers would have done that the doctor here has been held negligent.

In our submission it would be odd that such an important finding against a person is made on account of something that does not matter.  In other words, if it did not matter to deprive somebody of an opportunity of either 40 or 15 per cent of avoiding the worst outcome, it is very difficult to see why any sensible profession would be concerned to regulate the way in which people approach the question of that opportunity or whether that opportunity should be taken.  That, in our submission, would be committing cardinal errors about the nature of medicine, which is that they do not triage people or duage people into 50 plus one or 50 and below.  None of us, with respect, could see that as a form of medical duty and standard of care which would be tolerable for a moment.

Now, 5O we do not think adds anything.  5P is the result of what I might call an interesting policy decision.  In effect, that said, well, it will be for the judges not the doctors – see Rogers v Whitaker – in relation to warnings.  Now, bearing in mind – see the facts in Rogers v Whitaker – that when it comes to warnings, even very slight chances much, much, much less than even of undesirable outcomes, can be appropriate to be warned of, that is hardly suggestive of the notion that either Parliament or a common law court taking a cue as to the policy of the law from the Parliament would regard these as things of lacking worth or value or not being worth worrying about in the law. 

If we go back, however, to the section 5 question, in paragraph 384 at page 388 of the appeal book, having quoted the Civil Liability Act, there is reference to the inclusion of the concept of loss of opportunity as harm as being “at best awkward”, see line 10 on the page.  In our submission, even the example which is come to, as it were, in alphabetical order, namely, section 5B(2)(c) that is in the next sentence of those reasons by no means carries its own demonstration.  We put to the contrary.  It is by no means obscure and semantically inappropriate to talk about taking precautions to avoid the loss of an opportunity for better outcome. 

The best precautions include, make sure you ask for an appropriate history, have you drunk arsenic recently?  Make sure you take appropriate steps, examine their eyeballs or whatever it is.  If you have taken arsenic, you may well be, odds on, going to die, but, in our submission, there is nothing awkward, nothing obscure, nothing semantically inappropriate about what is conveyed in paragraph 384 concerning that example and, in our submission, the same is true of the others not spelled out in that paragraph.

GUMMOW ACJ:   All right.  Then the other question I wanted to ask you before we ‑ ‑ ‑

MR WALKER:   I am so sorry, your Honour.  Paragraph 386, however, comes to the point I was trying to make.  The Court of Appeal does not actually explain what is being done, why they are using the Civil Liability Act provisions in this manner.  Paragraphs 386 and 387 and 388 certainly do not explain it and paragraph 388 may give a clue.  It is not enough, in our submission, to say, well, this is a negligence case, the Civil Liability Act affects negligence cases, therefore, and then, in our submission, the second shoe does not drop.  Should the common law accord with one State or other’s version of the Civil Liability Act?  What happens when a State, as a result of a campaign and an election, changes it Civil Liability Act?  Should the common law reflect that?  With respect, these are matters that ‑ ‑ ‑

HEYDON J:   But do you say that question arises in this case?  The Court of Appeal say they are substantially mirrored.  We can read them all for ourselves and work out whether that is correct.  If they are then the point you have just made does not arise in this case.

MR WALKER:   No, the possibility, however, of disparate amendment and repeal certainly is there constantly.

HEYDON J:   Yes.

MR WALKER:   That is my only point.

HEYDON J:   Yes, but that is the future.

MR WALKER:   That is in the future and, in our submission, however, the common law should be proceeding by things which do not depend on the outcome of parliamentary votes following election campaigns.  The common law should proceed at a – I was about to say “glacial”.  I do not know think we still use that metaphor nowadays ‑ ‑ ‑

HEYDON J:   I do not think the Court is at odds with you on that.

MR WALKER:   With respect, your Honour, what one cannot say, in my submission, given the approach in Esso by this Court is that there is some substantive push or influence appropriate to be seen as to the form of the common law by reference to legislation.  You may have the position that one says common law does not have to do anything – Parliament can – or common law should not because it is more a legislative choice but, in our submission, looking at the Civil Liability Act and saying the common law should either be different or should conform is not something that shows itself to be true by stating it.

GUMMOW ACJ:   The other question I wanted to ask you is about paragraph 33 of Justice Gaudron’s reasons in Naxakis 197 CLR 269 where she said:

the lost chance approach is not one that necessarily works to the benefit of the individual plaintiff.

MR WALKER:   No.  May I link that up with – I was going to deal with that in relation to Sellars as well.  May I link that up with the passage that one will see in Sellars 179 CLR 332 at 355, point 9. That is the other side of the coin but it is making the same point:

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 –

I emphasise “over” –

to an applicant who has been deprived of a commercial opportunity.

GUMMOW ACJ:   I am sorry, where are you reading from?

MR WALKER:   From 355, your Honour, at the very foot of the page.  In the second‑last line you see the reference to “over‑compensation” as well.  Justice Gaudron in Naxakis of course is more directly in point for this case.  Now, I think the short answer is yes.  It is not a matter, of course, at stake in this case.

GUMMOW ACJ:   No, I know, but as Justice Kiefel was urging you, we have to look a little beyond that.

MR WALKER:   Yes, without qualification, yes.  I was about to say it is not a matter at stake in this case but I cannot avoid, bearing in mind the way in which we have presented the appropriateness of treating the loss of an opportunity no better than even as something of worth or value, we cannot avoid a pretty obvious consequence for not merely, obviously, the reality as loss or damage of the loss of opportunities better than even but also the consequential step being the same in those cases in relation to quantification of damages as they would be in a case such as the present leading to the proportioning that Justice Kiefel raised with me.  I do not have anything to say against that as a consequence.  It seems to follow.

GUMMOW ACJ:   How are we going, Mr Walker, in terms of presentation?  I am just anxious to know if you will finish this afternoon comfortably?

MR WALKER:   I will certainly finish this afternoon comfortably and I hope that I will finish rather shortly.  I will certainly not take most of the afternoon session.

KIEFEL J:   While you are looking to move to your next topic, might I interrupt you with this inquiry.  If one of the reasons for adopting the approach to damage as being a chance lost is problems with proof of causation that apparently, I think, in some of the material you have given is the principal reason the French courts allow the doctrine or the concept to apply, because they recognise the interest of a plaintiff in these types of cases.  Other systems deny the concept operation because of problems that they see with its effect upon causation, but approach the problem in another way.  Germany, in particular, appears in medical negligence cases to shift the burden of proof which would require doctors, at least in cases of gross negligence, which seems to be technically provable negligence, to show how the outcome would not have been different.  I am just interested to know if the law, if you are asking that the law shift in some way, would not such an approach be at least more consistent with the maintenance of concepts of causation and rules of evidence and damage, as we understand it?

MR WALKER:   Can I take first what a danger of oversimplification I will call the French idea?

FRENCH CJ:   Yes.

MR WALKER:   It is not only in France that – it is also in certain American jurisdictions – the position is taken thus.  Though the opportunity by reason of the expert evidence is usually finally expressed in numerical terms, it is subject to considerable degrees of uncertainty.  In particular, there remains, however precise and accurate estimates are, the uncertainty inherent in all questions of chance as to whether the individual would fall in one group or the other.  That which has been denied the plaintiff patient in a lost opportunity case – and I mean lost, the past participle, we are saying it has gone and there is no existing chance – is, in effect, the means of knowing what would have happened as between patient and innocent, if you like, and victim and doctor, wrongdoer, the choice of the law is to favour the former.  That is the way it has been put.

That is probably the rationale that ought to be seen as being the French approach.  The nature of the opportunity lost and particularly whether the plaintiff would have benefited from it is so uncertain that it is not for the defendant to turn that to effect, bearing in mind that that is a situation that has come about completely, that is, the loss, has come about completely by reason of the defendant’s conduct.

Your Honours, we would not put that forward as an entirely satisfactory common law response in this country, except to the extent that at what I might call the evidentiary level and the level of reasoning from such evidence as there is, there may be room for consideration of the capacity of the parties to adduce the evidence, the responsibility of one party for the absence of particular forms of evidence, and something in the nature of the approach taken in Watts v Rake and Purkess v Crittenden to which we have referred.  We do not suggest it should go further than those already deployed techniques where there is a lack of complete information by reason of the wrongdoing in question.  In relation to what I will call the German approach ‑ ‑ ‑

KIEFEL J:   I should say, I think Professor Luntz refers to this in the article that appears in your material.

MR WALKER:   Yes.  In relation to the German approach, in our submission, the matters Justice Kiefel has raised with me concerning common law principles in relation to causation in particular would not be advanced – or if I can put it this way, with great respect – could not be advanced by this Court deciding to invent a category of gross negligence.  Now, there are two submissions there and they are quite different.  As to the should not be, in our submission, that is to add to an area where there are sufficiently fraught decisions, namely, is this an error of judgment or is it negligence?

KIEFEL J:   I think the term might be misunderstood.  I suspect it may mean only that it is readily provable negligence.  Putting that aside, you say that there might be problems in determining the threshold that the German system has, but what do you say about notion ‑ ‑ ‑

MR WALKER:   Yes, that may be, it occurs to me – as your Honour puts that to me – that may really be similar to a Briginshaw approach.  It is still probabilities, but ‑ ‑ ‑

KIEFEL J:   No, I think it creates a presumption and says to the doctors, you show that things would not have been a better outcome.

MR WALKER:   I appreciate that.  I will come to that; that is the second point.  The first part I wanted to address in relation to the German approach is that if the requirement was for a falling short of the standard greater than merely enough to be negligent – and I confess lacking German I have only used the word “gross” in coming up with that argument – then it adds to what is already sufficiently fraught in relation to professional negligence cases in a way that the common law should not.

Next, in our submission, there is nothing in preceding common law – bearing in mind that we are not talking about trespass or battery here – to support the notion that there can simultaneously be something which is merely negligent and something which is grossly negligent and actionability differs as between whether one or the other.  In our submission, there is no analogy or precursor of any such distinction with, in particular, unintentional torts.

As to the second element in the German approach, namely, a presumption which amounts to what we would call a reversal of onus, in our submission, apart from what must be pretty rare cases of anything under the label res ipsa loquitur in medical negligence, but apart from them, where something of the same kind would follow, again there is no particular need or, for that matter, there is no control mechanism instituted by our law formally passing an onus to the doctor.

There may be and would often be in such cases a ready shift and probably to and fro of the evidentiary burden when, as it were, a plaintiff presents with a less common and bad outcome and the body of medical evidence suggests that procedure X is adopted precisely because it carries some prospect of avoiding that outcome, albeit no better than even.  Procedure X was not applied in this case and the reasons for the doctor not applying it do not withstand scrutiny.  In a case like that there will be an evidentiary shift and, in our submission, the common law does not need to develop so as to anticipate that shift beyond such a case.  That case, of course, is a completely orthodox and unremarkable matter and, I stress, is only the shift of an evidentiary burden.

GUMMOW ACJ:   Mr Walker, it might be useful before lunch if you are going to take us to Matsuyama, the Supreme Judicial Court of Massachusetts decision, to do so.

MR WALKER:   Could I do that now then?

GUMMOW ACJ:   It is at page 376 of volume 1 of the materials.  I think it is fair to say that in the United States this is regarded as a strong court.

MR WALKER:   Yes, very much so.  Can I go to the evocatively named Chief Justice Marshall then at page 380 of our bundle.

GUMMOW ACJ:   Her Honour is also quite a prominent figure in the United States judiciary.

MR WALKER:   For the record, it is 890 NE 2d 819 (Mass 2008) at 823, the commencement of the reasons.  In the first paragraph – unfortunately they are not numbered except very sporadically – on that page there is a use of English which purely coincidentally, of course, we call in aid to the section 5 Civil Liability Act point.  In other words, it was a natural use of English for the judges reaching the conclusion they had reached in that case to say at about line 32 on the print, “the physician has harmed the patient and is liable for damages”.  So it is not an unnatural or semantically awkward way of using “harm” at all, we would submit.  Certainly those judges just use language naturally that way.  Now, what is it that constituted that harm?  It is a “physician’s negligence” having reduced or eliminated “the patient’s prospects for achieving a more favourable medical outcome”.  That is a phrase which, in our submission, aptly and completely fits the present case.

HAYNE J:   Well, does it?  In the facts of Matsuyama the negligence of the doctor resulted in the patient moving from one class of cancer with a particular five‑year survival rate to another class of survival rate.  Is that right?

MR WALKER:   Yes.

HAYNE J:   That is to say the consequences of the negligence were established on the balance of probabilities.  See that captured at holding (2) at page 377.  I know it is the headnote, but it is simply a convenient point.  But amplified at pages 833, 834 of the report 390, 391 of the bundle of documents, which reveal, do they not, that if through a doctor’s negligence a patient’s diagnosis of cancer is delayed and whereas had it been diagnosed carefully at the appropriate time that patient would have had a 45 per cent chance of surviving more than five years.  Because diagnosis is delayed the patient now has only a 20 per cent chance, but that conclusion has to be established on balance of probabilities, does it not?

MR WALKER:   Yes, page 389 of the bundle – I will use the American Report references – page 832, right-hand column, middle of the page, section [2] of the reasons says exactly, with great respect, what Justice Hayne has put to me.  My task, I think, is to persuade your Honours that that is not against me at all.  We comfortably satisfy that on the findings.

HAYNE J:   But is not the finding below in this case that more probably than not the negligence did not affect outcome?

MR WALKER:   No.  That is because there has been an elision of the difference between the less than 50 per cent chance which was that which the physician could have given, or of which there was – but he does not give the chance – of which there was the opportunity, had there been no negligence and which the negligence deprived the patient of having, with the balance of probabilities of the existence of that chance which was found in this case.  On the balance of probabilities, you had an opportunity measurable to the extent of 40 per cent of favourable outcome, and on the balance of probabilities you lost that and the passage that I have drawn to attention – right-hand column at 832 – emphasises that two inches down in the test: 

Recognizing loss of chance as a theory of injury is consistent with our law of causation, which requires that plaintiffs establish causation by a preponderance of the evidence.

HAYNE J:   Now, is not this set of propositions that you are advancing involving a slide? 

MR WALKER:   I hope not.

HAYNE J:   Are you not sliding from loss of chance to what the probable outcome was?  The probable outcome in Matsuyama was identified.  You had one form of cancer, still have that form of cancer but your prospects are much reduced.

MR WALKER:   Your Honour, if there were a slide, particularly of the kind your Honour has identified, then it is a fallacy in our argument.

HAYNE J:   I suspect what I am putting to you, Mr Walker, for your comment.

MR WALKER:   Quite so.  So I am not going to be concerned to contest the fallacious nature of such a slide.  I do contest that we make that slide at all and very vigorously I hope.  The similarity, the relevant parallel between Matsuyama and this case is in fact shown at the stage where we have a finding, by the preponderance of the evidence in America, on the balance of probabilities here the same thing, that there was an opportunity lost by reason of the negligence. 

In other words, the 40 or 15 per cent chance of avoiding that 25 per cent additional disability itself is proved in our case on the balance of probabilities.  What is not proved on the balance of probabilities is that we would have avoided that less favourable outcome.  That must be so because the opportunity we lost itself would have given us only a 40 per cent chance of avoiding it.  That is why this is a case about loss of a chance no better than even and is it of anything of worth.

In our submission, the slide, if there be one, or the allision of the two quite distinct questions of possibilities or probabilities is made in the respondent’s argument because, having accepted, at least for the purposes of argument, that there was an opportunity, they seize on its character, namely, it is an opportunity which gives only a 40 per cent chance of avoiding the feared outcome, therefore the feared outcome more likely than not would have followed even with the negligence, therefore no loss.  That is the simplicity and, I have to confess at first sight, the cogency of the other side’s argument. 

What, in our submission, it fails to do is to appreciate that for patients in trouble there never was any question of avoiding entirely the unfavourable outcome in the sense that that was ever more likely than not.  The question in this case is whether, though one solemnly finds duty of care and, even more gravely, finds breach of it so that someone is branded negligent, there can never be in the case of doctors practising in areas where everybody is in dire straits and more likely than not are going to end up in the worst position, dead very often in trauma or acute care, there will be no content.  You can say that at the outset, you do not have to wait.

You can say that at the outset.  While they are applying the care you can say, well, this is a case where no amount of negligence will produce compensation for the plaintiff notwithstanding there is a parade of experts to say it is mandated that you must do X, Y and Z and why it is mandated is that for these people in real trouble, mortal danger, this has been shown by study of trial of treatment and by evidence‑based approach to medicine to improve chances.  This has been shown to give you a chance and medicine, so the professors would tell the Court, does not discard treatments which only succeed in 30 per cent of the case time rather than succeed in 50 plus one per cent of the case.

In our submission, that doctors would look at askance at that would regard it as an entirely philistine and barbarous approach to take to the practice of medicine because it is regarded as being something of worth, the real value to have that 30 per cent chance.

Now, there, with respect, is the slide and it is a slide which is based upon an insistence that all one need ever ask is would you have avoided the feared outcome, and saying that that which was at stake when the relationship which imposed a duty on the doctor, came about between patient and doctor.  The expression we have used in our written submission about the interest of the plaintiff, and the notion of that being the interest requiring identification in relation to its potential infringement, if there be a breach of the duty, is one which in cases where people’s prospects are as poor as my clients were, in cases like that, there never was an interest truly of, more likely than not, avoiding the outcome.  The facts were - the odds were already loaded against the patient.

KIEFEL J:   Returning to the question of causation and Matsuyama, do I understand you to say that causation can be properly applied in any loss of chance case, both in Matsuyama and in the present case?

MR WALKER:   Yes, and if it is not, then ‑ ‑ ‑

KIEFEL J:   And the answer to the next question, yes it does apply, but only if you alter the notion of damage to the loss of a chance.

MR WALKER:   Your Honour will appreciate I prefer to say “properly identified”, but yes.

KIEFEL J:   But that is how it operates.

MR WALKER:   Yes.

KIEFEL J:   Yes, thank you.

GUMMOW ACJ:   Is that a convenient moment, Mr Walker.

MR WALKER:   It is, may it please the Court.

GUMMOW ACJ:   Very well.  We will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GUMMOW ACJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in Matsuyama the facts were of a cancer first observable in a gastric tract and at various other stages a mole, et cetera.  So that bundle 383, North Eastern Reporter at page 826 right‑hand column the expert evidence for the plaintiff accepted by the jury was to the effect that:

As a result of Birnbaum’s failure to make a timely diagnosis . . . the cancer metastasised to an advanced, inoperable phase –

“Metastasised” meaning, of course, spread to different sites.  That had an effect upon the kind of therapy which was available or necessary, as well as upon his chance of survival as in this case, but unlike in Gregg v Scott the unfortunate Mr Matsuyama did die, having lost the opportunity to live longer he did, in fact, die sooner. 

Justice Hayne referred to the notion of a different cancer.  That was a notion advanced, obviously unsuccessfully factually by Dr Peppercorn, the gastroenterologist who testified for the defence; see North Eastern Reporter page 827, left‑hand column:

“a different biology, a different characteristic from garden variety, if you want to use that poor term, cancer” –

and that is, if I may say, the expert talking down to the jury.  That, in our submission, plays no part in any of the reasoning in the Supreme Judicial Court.

HAYNE J:   But what does is the observation that you go from a particular survival rate to a lesser survival rate.

MR WALKER:   Exactly.  That is why we use it and how we use it.  What mattered in Matsuyama’s Case, as it matters in our case, is that there had been a window of opportunity, a time literally, when things diagnostic and therapeutic could have been done, the opportunity for which had been lost by reason of the negligence.  The expert evidence showed and the inferences were available that had that opportunity not only been available but been taken, Mr Matsuyama would have been better off in the sense that he probably – I withdraw that – he certainly had better chances of surviving.  Cancer survival, I should say, is a conventional metric, as they call it.  It does not actually mean living for as long as anybody else.

Going back then to the way in which the reasoning came about is justified by their Honours.  Could I take you to North Eastern page 829, the left‑hand column.  Their Honours start by referring to the origins of the doctrine as part of their explanation as to why it is needed in Massachusetts and they refer particularly to influential writings of Professor King to which, I think, both parties before your Honours have given references and which may be said to focus on perceived deficiencies in the just outcomes from the application of the all or nothing rule.  On page 830 one sees in the left‑hand column that being pursued and, in particular, one sees a reference at about line 38:

The all or nothing rule “fails to deter” medical negligence because it immunizes “whole areas of medical practice from liability.”

A striking but, with respect, accurate way of describing what happens if a lost opportunity which itself is no better than even of avoiding the feared outcome is the kind of loss not recognised by the law as capable of being compensated when a doctor has been negligent.  The reference I made earlier this morning with respect to the social valuing, that is, the social worth put on spending notwithstanding the odds are against recovery, et cetera, may be seen at page 387, right‑hand column from the Wyoming Court.

GUMMOW ACJ:   What has been said in the Massachusetts court seems to reflect point 1 that Justice Hayne put to you as coming out of the minority in the House of Lords.

MR WALKER:   Yes.

GUMMOW ACJ:   That is to say probability notion is too crude.  Point 3 Justice Hayne put to you was maintenance of standards.

MR WALKER:   Yes.

GUMMOW ACJ:   Point 4 was a too restrictive view of causation.  Point 2 that he put to you was the market analogy.  You seem to have made out a fifth when you were talking before lunch about heroic interventions, the value of heroic interventions.  Is that right?

MR WALKER:   Yes.  I am not sure that that is much different in reality from the preservation of standards.

GUMMOW ACJ:   Right.  Thank you.

MR WALKER:   It really perhaps is simply an extreme form of what we expect from good doctors, that is in appropriate cases they will do things that may have only slim prospects of success.

CRENNAN J:   Whilst speaking of the minority in Gregg v Scott, you said earlier today that you had, I think, a reservation in relation to what Lord Nicholls had to say.

MR WALKER:   About whether he saw a fresh step, a new step as being necessary to be taken, as opposed to an application of orthodox cause or reasoning.  That is not much of a qualification for my purposes.

GUMMOW ACJ:   Where does he say that?

MR WALKER:   I am going to submit that his Lordship does not see himself as covering new territory.  I have to say there are comments that are equivocal in that regard and I will come to them very soon.  In Matsuyama, page 832, right‑hand column, halfway down is where the critical passage commences in their Honours’ expression of conclusions.  We stress in particular that which follows the citations of Johnson and Woronka, namely:

a plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s likelihood of achieving a more favourable outcome to be diminished.

There is nothing in our argument that entrenches to the slightest degree upon that proposition.  That is why their Honours conclude, page 833, left‑hand column, about line 15 that there is:

no amendment or exception to the burdens of proof applicable in all negligence claims –

by reason of their delineation of the loss of chance doctrine.  In relation to what is probably the first of Lord Nicholls’ points or perhaps I should call them the first of the points Justice Hayne asked me to consider, I draw to attention as a near parallel page 833, foot of the left‑hand column, top of the right‑hand column.  In relation to what I might call an argument from expediency, we think it is assayed against us in this case, namely, to do with difficulties of quantification, we call in aid and respectfully adopt what appears in the right‑hand column on page 833. 

In our submission, there are probably in this area by reason of what their Honours called the key being the reliability of the evidence in the very next passage on that page probably less reason to be alarmed at problems of proof in the area of the assessment of the size of a chance of a more favourable outcome in medical negligence than there is in many a commercial field which will not have been studied and will not have had the same richness of data from which to extrapolate trends and the like.

HAYNE J:   The content of what their Honours are saying there is identified in note 15, page 826 of the report and it does not go beyond note 15, I would have thought.

MR WALKER:   I am sorry, your Honour is talking about – note 15 refers to the survival rate figures.

HAYNE J:   Just so.  See 834, line 19, and that is all they are saying.

MR WALKER:   No.  They are talking about the reliability of evidence about those survival rates thus measured.  In other words, there are lots of cases from which they have been able to calculate survival rates.  They are saying we have lots of cases of people dying or not dying or dying at particular intervals and so the experts can say these are your chances of survival at particular times.  Yes, the reliability of the evidence in question is about the particular, as they call it, cancer metric, that is survival rate at particular intervals from first diagnosis but that, with respect, is after all what was at stake in the dealings between patient and doctor.

Perhaps, with some irony, bearing in mind what has happened in this country, that is, the existence of Sellars and now the argument of this case, at page 391 in the right‑hand column their Honours are unmoved, as they say, by the ramifications being immense, presumably north‑eastern seaboard of the United States that has something to do with the financial sector and other investment arenas, and their Honours say the:

decision today is limited to loss of chance in medical malpractice actions.

For reasons that I will try to support by a reading of Sellars, that, while it is a correct confinement of the decision to facts ought not to be understood in this country as justifying any particularly atomised approach to loss of a chance.

At the top of page 835, left‑hand column is, in our submission, a rationale which is derived from the restatement, a rationale which is echoed by our argument concerning identification of the interest of the patient.  Here it is called “the expectation at the heart of the doctor‑patient relationship”.  The optimal outcome there, of course, does not mean the best of all possible worlds.  It means the best possible in the patient’s world which may, of course, be a very poor prospect of actual recovery or avoidance of the worst, but it is optimal for that patient.  Down between lines 20 to 30 in that same left‑hand column there is reasoning that is echoed by our argument and which we respectfully adopt.

Now, their Honours have observed a distinction which, though observed in Sellars is not as separated in Sellars, namely between the existence or characterisation of something, an outcome as loss or damage, which is actionable on the one hand and on the other hand the subsequent inquiry, how do I measure damages for that?  In Matsuyama you see them turn to that separately at page 838, foot of the left‑hand column, the heading at the top of the right‑hand column.

I do not need to take you to any of what emerges there, except bearing in mind what Justice Kiefel was asking about in relation to the German position as translated into English, I should draw to attention, of course, that in Massachusetts something called “Gross negligence”, one can see the subject introduced at page 846, left‑hand column, if found by a jury entitles punitive damages to be awarded and fits what pre‑statute was the position at common law in relation to exemplary damages in negligence in our jurisdiction.  It has, we think, nothing else in common with the German concepts that I addressed before the adjournment.

Your Honours, may I now very briefly go to one other North American decision which has been referred to, namely that which, as we understand it, is seen by the parties at the Bar table as being the Canadian decision against us.  In the print that we have given you in our bundle, that is Laferrière v Lawson [1991] 1 SCR 541 at page 286. It is an electronic version, it is not bilingual, and you have the English ‑ ‑ ‑

GUMMOW ACJ:   We should start forbidding electronic versions, I am afraid.

MR WALKER:   This, I think, is almost certainly written in French.

HEYDON J:   That is a serious observation of the Acting Chief Justice.  There is an article by Professor Stapleton in here which is very hard to read.  It comes from the Law Quarterly Review.  If the Law Quarterly Review had been photocopied it would be very much easier and more advantageous to the party that wants to rely on it because her points would come through more clearly.

MR WALKER:   With great respect, yes, I accept the stricture and I apologise.  If I may say so, I think almost certainly this was written in French, although on my investigation of the French there is no point that I would wish to make about the difference.  At page 366, on page 80 of this print, there is this passage and this of course – these are reasons against what I will call “loss of chance” recovery:

If one moves then to a procedure which is recommended –

that is a medical procedure which is recommended –

despite a mere twenty-five percent chance of success according to expert evidence, it is –

there is a double negative coming –

still not a foregone conclusion that the doctor’s fault in not using this procedure must be said to have had no causal role in the patient’s death or sickness.

I think it might be a triple negative.

If the experts are examined properly, a judge might well find that he or she is justified in concluding that the omission of that procedure did not cause the death or sickness, but that it caused other lesser but clearly negative results (e.g. slightly shorter life, greater pain).  The doctor’s fault could then be judged causal to the extent of the aggravation of what was otherwise an inevitably terminal or morbid condition.

Then there is a reference to presumptions in the next paragraph, I am picking it up at about line 28 on page 367: 

In some cases, where a fault presents clear danger for the health and security of the patient and where such a danger materializes, it may be reasonable for a judge to presume the causal link between the fault and such damage, “unless there is a demonstration or a strong indication to the contrary” . . . If, after all has been considered, the judge is not satisfied that the fault has, on his or her assessment of the balance of probabilities, caused any actual damage to the patient, recovery should be denied.  To do otherwise would be to subject doctors to an exceptional regime of civil responsibility.

Then there is a reference to the common law having been perceived differently in the Court of Appeal. 

GUMMOW ACJ:   No, not the common law.  This is an appeal from Quebec.

MR WALKER:   No, there is a reference to the common law having been in a particular way.  It is used comparatively because that immediately follows the reference to the choice not to adopt the position from France and Belgium.  In the Supreme Court they were looking for some comparative purposes to the common law as they were looking to the civil law, primarily.  The choice that was made in that case, in our submission, is for reasons which really do not address directly, if at all, the matters that we have raised. 

That is why I drew that passage to attention.  It is an authority, the outcome of which is against us but the reasoning of which, in our submission, does not hurt us, not least because we do not contest one iota the proposition that we have to prove on the balance of probabilities that there was an opportunity which was lost.  May I now come to ‑ ‑ ‑

GUMMOW ACJ:   There is a later decision in the Supreme Court of Canada, is there not, from English Canada which translates this case across?

MR WALKER:   Yes.  I think it is Snell that your Honour is referring to.

GUMMOW ACJ:   Is it?

MR WALKER:   Snell v Farrell.  You find that at 427 of the bundle.  I was not going to take your Honours any further to it.  It is from New Brunswick.  It is very much about inference of causation.  Unless your Honours wish me to deal with a particular passage, recognising it is there, having given it to your Honours, we do not have anything further to say about it.

I was going to take your Honours then to Gregg v Scott simply to complete what I wanted to say about that, having said, I think, a deal already.  Your Honours have the book, no doubt, but it is also in the bundle at page 180.  Your Honours, an appropriate characterisation of the kind of case, such as the present, in which Lord Nicholls was considering the loss of opportunity or chance as actionable damage can be seen by his Lordship’s introductory formulations at paragraph 15, page 183 of [2005] 2 AC and between letters D and E there is this sentence:

In some cases what the claimant lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain.

We would gloss that only by saying a desired result can also equate in a case such as this as avoiding a fear that results, a worse result.  I can deal quite rapidly, I hope, with the passages.  Your Honours are familiar with it all.  Justice Hayne’s question to me has, with great respect, focused what I want to say further about this authority.  We do adopt what is said in paragraphs 42 to 46 by Lord Nicholls at pages 189 and 190 of the report. 

We draw to attention that there is reference to an Australian contract case, namely, Amman Aviation, or at least a comment in it, on something which we submit does transcend the categories contract, tort or statutory cause of action just as it transcends the category commercial loss or loss of opportunity of medical outcome by the reference, as I say, to Amman below letter H on page 189.  What is being referred to is something which does transcend those categories or the differences between litigation in those categories, namely, cases where it is true or not true that certainty can or cannot exist.

It is not necessary, with great respect, it is not appropriate for me in my position to adopt the strong language that one finds just above letter H on page 194, the law as “the proverbial ass”, or for that matter “crude to an extent bordering on arbitrariness” at paragraph 46.  With great respect, the argument is against us and perhaps we should not characterise them in those terms.

However, the strength of that language, in our submission, does impress a reader of this law, these reasons, with the possible, obviously not universal, but the possible, credible and respectable response to the position that his Lordship is considering which includes a degree of what I might call revulsion or distaste.

When we put that together with the position which pre‑exists the imposition of the duty and indeed is one of the pre‑existing conditions which imposes the duty of care, namely, that somebody is already so badly off that they really do need expert intervention, then in our submission there is much to be said for the force of feeling behind the reasons expressed in those pages.

There is a comment at page 191, paragraph 53, letter H which we also urge as being appropriate.  In our written submission we have talked about what I more or less arbitrarily called the zone between 40 and 60 per cent.  I might as well have chosen 45 and 55 per cents, but where there is this zone and I suppose a tipping point in the middle, then real attention has to be paid to the nature of the precision called here by his Lordship, having “a spurious degree” derived from these percentages which themselves are calculated by references to past experience which always by definition excludes the particular case before the court.  The typicality is the assumption that bases the reasoning by which all these figures are produced.

That comment picks up what Justices Brennan and Dawson said in their concurring remarks in Malec 169 CLR 638 at 639 to 640 where there is a deprecation by their Honours of resort to percentages, indeed resort to the word “probability” used by the plurality reasons to describe possibilities that may be minimal.

Now, this is not a plea that numbers depart from expert evidence or factual findings in this area on our part but rather that the numbers be understood with their inherent nature, namely, that they should not be understood as being precise in some exact reflection of the natural world but they are always predictive, they have to do with extrapolation and they involve some assumptions about what I will call typicality.  Rather, it is to point out that for those reasons to have a tipping point at 50 – between that and 50 plus 1 is something that does attract the disquiet that Lord Nicholls evinces.

In relation to an argument from effect upon medical professional conduct which, in our submission, is devoid of all empirical support, seen in no material in the different jurisdictions that have different regimes so far as the judicial consideration is concerned, could we draw to attention the comment in paragraph 55 at page 192 of [2005] 2 AC and again respectfully adopt it without reading it.  Lord Hoffmann in the course of his reasons differing and diametrically from Lord Nicholls enunciates a form of the position against which ultimately his Lordship makes a choice.  In our submission, there are some elements in that statement of the opposite position by Lord Hoffmann – that is the position we in effect favour – which, as it were, load the dice against that.

GUMMOW ACJ:   It talks about the impersonal laws of causality ‑ ‑ ‑

MR WALKER:   Yes.  I was not going to, your Honour

GUMMOW ACJ:   ‑ ‑ ‑ as binding the world in principle.  He does not seem to have the same starting point as Lord Nicholls, namely, is this actionable damage?

MR WALKER:   Yes.  We say that is the starting point.  That is the object of this case.

GUMMOW ACJ:   Is that approach by Lord Hoffmann repeated by Lord Phillips and Baroness Hale?  I suspect not.

MR WALKER:   The matter is put slightly differently, but it has to be said that there is a united majority in the core principle that where the opportunity is no better than even, that means that on the balance of probabilities that which you feared would have happened or that which you hoped would not happen.  We identify that as that which is erroneous.  Lord Hoffmann characterises the case which he was rejecting in paragraph 84 on page 197.  We do not characterise our case that way.  There Rufo v Hosking is cited, as you will see.  At about letter F there is a reference – and this is in the voice of those arguing for what I am arguing for – his Lordship says:

Living for more than ten years is something of great value to him and he should be compensated for ‑

and then comes an important word –

the possibility that the delay in diagnosis may have ‑

So there is “possibility” and “may have” –

reduced his chances of doing so.

We rather say no.  Our case is the probability, virtually the certainty, that the opportunity lost reduced your chances.  It reduced your chances, true, from something which was already less than even, but it still reduced your chances and most certainly so.

GUMMOW ACJ:   I think the cases his Lordship is referring to in paragraph 85 are cases about material contributions to physical injury, are they not?

MR WALKER:   Yes, they are, both with and without the complication of either alternative causes, one of which is innocent, or multiple defendants.  Yes, that is exactly what Wilsher and Fairchild signify.  Going back to the way in which what might be called the straw man is being constructed in paragraph 84, we have not only got those two expressions I have already referred to, there is then a general proposition that what the appellant is submitting that the exceptional rule in Fairchild’s Case should be generalised.  We respectfully submit that really is not the way Lord Nicholls or Lord Hope saw it and, with respect, their Lordships’ view of the project in hand does not involve that characterisation.

GUMMOW ACJ:   The actual damage in Fairchild is the injury?

MR WALKER:   Yes, quite.

GUMMOW ACJ:   How it came about and how it was caused is treated in a special way.

MR WALKER:   Yes.  Then one sees in the last sentence of 84 his Lordship is talking about the present case before him as being one where:

Dr Scott may have caused a reduction Mr Gregg’s expectation of life –

If reduction in expectation of life means reducing prospects or chances, then he had done that.  The question remained, of course, that the chance was still open.  Unlike our chance, Mr Gregg’s chance was still open.  He had not died.  A reduction in chance is not the same as the lost opportunity where there remains no further chance or prospect of obtaining that which the opportunity would have given you a no better than even chance of getting.

Lord Hope’s speech, with respect, is also one.  I will not go to it at all, however, in our submission, the whole of it, including what I might call the cri de Coeur, in its first paragraph is a powerful demonstration again of what does matter in a case like this, namely, whether there is an instinctive reaction against the claimed correctness of the outcome as between the different posited cases turning on the tipping point of 50 plus one per cent and, in our submission ‑ ‑ ‑

GUMMOW ACJ:   He said he was very close to Lord Nicholls, but what is the difference?

MR WALKER:   There is no difference for matters that affect us.  I was about to say there is this commonality, namely, that it is the identification of the fact that in such cases what has been produced is a reduction in chances or prospect and that that is something about which manifestly people care in dealings with their medical practitioners and about which medical practitioners care.  On that point, in our submission, that is not special to this kind of case any more than it is special compared with the prospect if it be more than 50 plus one per cent.  The respondent after all says that where the prospect is more than 50.1 per cent there should be recovery.  Left, no doubt, for another case but certainly involved in today’s argument is the question whether you get 100 per cent of your damages at that point.  That is a different issue.  But they accept recovery, that is, they accept that there is actionable loss or damage.

That means that it is conceded that a prospect that may be proved convincingly by a plaintiff by evidence that is considerably less than 100 per cent but is above 50 per cent is accepted by the respondent as being something of worth or value.  It is difficult to see how that worth or value should disappear at 50 per cent as it declines.  In our submission, the lack of novelty in what we are putting can be seen by broader recourse to the way in which, without the need for a market demonstration – and we submit for the reasons I put before lunch that we do have one – we already know from the monetisation of pain and suffering, the monetisation of loss of amenity, including reference to disabilities preventing one from enjoying life, those are matters that the common law monetises, notwithstanding the extraordinary alchemy by which one converts those bodily and mental phenomena into money.  For those reasons there is no great step being taken, if any step at all, in what we seek in relation to this lost opportunity.  When one looks to the future ‑ ‑ ‑

GUMMOW ACJ:   Paragraph 17 at 117 of Lord Hope is important, I think:

loss and damage caused by the enlargement of the tumour due to the delay in diagnosis.

MR WALKER:   Could I draw particular attention to letter E on that page: 

So too has the fact that, in addition to pain and suffering, it caused a reduction in the prospects of a successful outcome.

Then just above letter F:

I see the reduction in the prospects of a successful outcome as one element among several –

In this case, if one needed an analogy for the enlargement of the tumour in that case, there was the dominant feature of the lost hours in this little girl’s progress or regress, namely the increasing intracranial pressure, the continued intracranial pressure.  New tissues, further tissues suffered lesion causing new and different brain damage. 

HAYNE J:   Now, the significance to be attributed to paragraph 117 may have to be assessed against the way in which the parties joined issue.

MR WALKER:   Very much so.

HAYNE J:   See 183 of the book, 178 of the report.

MR WALKER:   Yes.

HAYNE J:   Between lines 41 and 52 or 53, where counsel for the appellant plaintiff goes first from the proposition:

The court has a duty to restore the claimant to the position he would have been in but for the defendant’s wrongful act –

That is proposition 1.  There are some intervening propositions.

MR WALKER:   Finding the kind of harm is one of them. 

HAYNE J:   But the critical step seems to be at line 48:

Past hypothetical events are to be determined not on a balance of probabilities but by balancing risks and chances –

Now, when his Lordship, Lord Hope, observes that the delay led to physical consequences in the patient’s body, the attribution of legal significance to that factual observation depends in part, does it not, upon how one is assessing the first of the propositions put by the plaintiff, the claimant to be put in the position he would have been in but for wrongful act.  Now, does that invoke as the plaintiff in this case, Gregg v Scott, said, notion of well, let us assess the chances, or does it invoke, as the respondent in Gregg v Scott had it and I suspect your opponent does here, that is a choice that is made on balance of probabilities?

MR WALKER:   Your Honour, of course, knows my answer to the question. 

HAYNE J:   Yes.

MR WALKER:   But in terms of Lord Hope’s discussion of those matters, the paragraphs in particular are 111, 113, 114 and then of course 117.  Along the way his Lordship makes much of the way in which the argument and the case was framed in the claim for damages and the allegation of damage in that case. 

HAYNE J:   But does Lord Hope or does Lord Nicholls deal expressly with the consequence of the observation that the loss of chance analysis proceeds from the premise that the defendant’s negligence probably, more probably than not, caused no loss?

MR WALKER:   Well, interestingly, there is a statement almost to that effect in paragraph 114 and it is why I started my address as I did, letter C:

It was not proved that prompt diagnosis and treatment would have made any difference to his life expectancy. 

That is because of the balance of probabilities that comes from, in my case, 40 per cent or 15 per cent.

So, yes, their Lordships, and Lord Nicholls certainly, that is why he says there is an issue presented because it is a less than even chance.  My insistence is that, as their Lordships point out, as the Massachusetts decision points out, none of that entrenches to any degree upon proving the loss or damage which is actionable on the balance of probabilities.

Your Honours, could I then go quickly to Sellars 179 CLR 332. I opened on this in relation to it being a statutory claim and therefore my reliance on it being arguably or strictly on obiter. In our submission, this Court would regard the way in which the reasons are expressed as intended, and very explicitly intended, to pronounce matters of principle derived from matters of proof which transcended distinctions between categories such as contract or the categories of contract, tort and the statutory misleading and deceptive claim.

GUMMOW J:   I think I would bear a measure of responsibility for this.  Footnote (38) is saying in an elliptical form this is a statutory form of action on the case in which action or damage is the heart of the complaint.  It is upon that basis that the court then launches itself in Sellars.  Which I think probably helps you in saying that Sellars is ejusdem generis with a negligence case in that sense of actionable damage.

MR WALKER:   Yes, I can go even further because in that which is a contrast from that grouping, namely, contract, questions of proof are called in aid which are, their Honours are saying, not to be distinguished.  That can be shown.  Can I set the scene in this fashion and go to the foot of 346 and the top of 347.  As your Honours are aware, there is the finding on the balance of probabilities that the Pagini agreement would have been entered into.  That is the one that was lost because they listened to the blandishments of Poseidon.  Then there was a discounting of the chance of getting anything from that, that one sees just over an inch down on 347:

to 40 per cent to allow for –

what is called by their Honours –

the probability that the agreement would not have proceeded –

et cetera.  So a probability it would have been entered into but a probability, that is, more than likely not, it would not have yielded benefits, a 40 per cent chance of that.  Section 82 is referred to on page 348, so that actual loss or damage has to be incurred.  When their Honours say “as under the common law”, that must be a reference to negligence.  At page 349 there is an immediate move by way of discussion which supplies reasoning for the outcome “In the realm of contract law”, and all of that is called in aid.  They point out it is not just lotteries, it is also martial reconciliation, though why that would not be called a lottery, I do not know.  At the foot of that page:

Damages for breach of contract were assessed by reference to the probabilities or possibilities –

meaning more than 50 or below –

of what would have happened. 

Then immediately their Honours sweep – I do not mean indifferently, that is, observing the distinction in category but regarding it all as contributing to their reasoning – to damages in tort, an important reference to and quotation from Malec.  Now, of course, Malec is about assessment of damages.  There are general statements in Malec, I will not take you to that given the time, but in the passage before the quotation that one finds on 350 of Sellars, in that passage from Malec you will find references which would serve my purpose wonderfully if you but ignored the first sentence of their Honours reasons in Malec which, of course, puts all of it in the setting of the assessment of damages.

What Sellars does, however, to these considerations is to take it out of that circumscribed context and to say, calling grist for the mill, as it were, from tort, from contract and from assessment of damages a matter that they have already said they understand is different from the existence of loss but they are going to, for much of their reasons, deal with it together.  One sees that at page 340 point 2.  They have drawn all of that for the propositions that one then sees at page 350 at point 7, “Neither in logic nor in the nature of things”.  I will not read the passage, but it is one upon which we rely strongly. 

At page 351, just above halfway, the important emphasis in a case where you cannot show you lost an opportunity, well, you lose, and that is something that we cling to.  That is the reference to the Sykes decision in a sentence commencing “Because”, then the whole discussion of the Norwest Case which is reconciled.  Page 353 in particular is perhaps a complication by referring at point 5 to the fact that they may “turn primarily on the issue of causation”.  A reference to Hotson with which your Honours are familiar and Johnson v Perez.  The distinction drawn between so‑called matters of causation at page 353 point 8, including:

what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical.

Equally, decisions and obiter concerning the position with dubious pieces of litigation being lost by negligence considered on page 354.  In the middle of the page their Honours obviously make it plain they are breaches of contract but none the worse obviously for use in the course of this reasoning.  That is my point that it transcends these categories.  Page 355 draws it together following important references to two New Zealand decisions.  In relation to section 52, which has already been described in the fashion their Honours have and drawing on all this jurisprudence including contract, there is the ascertainment of:

whether the deprivation –

that is the alleged loss –

occurred by reason of breach of contract, tort or contravention of s 52(1) –

so it is all put together –

should be ascertained by reference to the court’s assessment of the prospects of success of that opportunity had it been pursued.  The principle recognized in Malec –

and, of course, their Honours are aware that is an assessment case –

was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts.

That, of course, is a matter which applies as well in other areas, not only in assessment, and that is why their Honours make the next holding –

Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.

The principle is one that they have pronounced in terms of contract, tort or section 52.  Then on what they call the issue of causation, the general standard of proof continues on the issue whether the applicant has sustained loss or damage.  He has to prove some – I emphasise some.  In a case such as the one before the court there it showed some loss or damage by demonstrating that the conduct caused the loss of a commercial opportunity which had some value not being negligible, that being the source of my answer to one of Justice Kiefel’s questions this morning.

The value being ascertained by reference to the degree of probabilities – there are possibilities of course – conjures up what their Honours have obviously approved from the discussion in the plurality reasons in Malec, where your Honours will recall the hair‑raising figures of 99.9 per cent and I think 0.1 per cent moderated in the next sentence to above one and below 99.

GUMMOW ACJ:   Should we not look at Justice Brennan at page 359.

MR WALKER:   Yes, your Honour.

GUMMOW ACJ:   The first complete paragraph and only complete paragraph on page 359.

MR WALKER:   The statement an inch from the bottom:

the existence and causation of a compensable loss ‑

In contract, that is:

cannot be proved by reference to ‑ ‑ ‑ 

GUMMOW ACJ:   Above that: 

But in cases arising under s.82(1) of the Act, as in cases of tort where damage is the gist of the action, a lost opportunity may or may not constitute compensable loss or damage.  In such cases –

et cetera.

MR WALKER:   I regret to say “may or may not” does not help either side except insofar as it admits the possibility, in which case it helps me.  I do not want to go into it in detail but page 364 refers to in the commercial field and we would submit the analogy is with the inherent uncertainty of medical chances when you are in dire straits.  Just above halfway there is a reference to: 

Provided an opportunity offers a substantial, and not merely speculative, prospect ‑ ‑ ‑ 

GUMMOW ACJ:   That is his Honour’s answer to the question may or may not he posed at page 359. 

MR WALKER:   Yes. 

GUMMOW ACJ:   He answers it for this case at 364. 

MR WALKER:   We think so.  Yes, with respect.  At the top of page 365, three‑quarters of an inch down, there is some advice on evidence, as it were, which certainly supports that reading of his Honour’s reasons, namely that you should give evidence of objectives and contingencies in the way of their achievement.  Then on page 368, the first full sentence:

Where a loss is alleged to be a lost opportunity . . . discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought ‑ ‑ ‑

The question of whether “substantial prospect” means more than 50 per cent is not answered in that sentence but it is, with respect in the next paragraph.  The distinction his Honour draws between “the issue of a loss caused” being “established on the balance of probabilities” and then what follows in that paragraph shows that his Honour is in accordance with the majority, as of course his concurrence in the outcome supports although, of course, in somewhat significantly differently expressed reasons.

Your Honours, that leads me simply in relation to ground 2 of our notice of appeal very quickly to remind you of the passages in the appeal book, the reasons at first instance and in the Court of Appeal, which in our submission show for the reasons we have put in paragraphs 16 and 17 of our written submissions that there was an error in shifting from 40 per cent to 15 per cent in relation to the prospects at stake.

Could I ask your Honours in the appeal book to go to page 206 first?  In paragraph 378 which continues to the bottom of page 207 there are reasons, by way of summary I should say and conclusion, of the very detailed findings that precede this given by Justice Studdert for measuring the loss of a chance at 40 per cent.  I will not dwell on them in detail although, with respect, they a compelling conspectus of our case, factually, and the basis of the case upon which legally we should succeed.

Could I draw to attention in particular at 207 in item (d) the reference to the possibility of a drain proving necessary, that is, medical opinion thinking one should go to a drain after observing the effect of steroids.    This shows that this was not an either/or choice between steroid or drains, they were each available and they could both be used, particularly the drain if the steroids were not working quickly enough.  That is the germ of the error, not to understand that, with respect, in the Court of Appeal to which I will be coming.

One sees that that combination of elimination of delay and thus the combination of the possibility of steroids and possibly the drain having the effect is seen in item (e) at about line 45, all of that “would have increased the chance of a better outcome”.  At page 208 you see in paragraph 382 to the top of page 209 the four contributors that I was referring to in earlier references this morning.  At page 225, paragraph 431, line 40, the trial judge had no doubt that what he had done was to have assessed:

the loss of the chance of avoiding the brain damage that did occur on 14 January 1991.

There is no doubt that the loss of opportunity meant that something occurred or, I should say, the lapse of time meant that something occurred.  There was an opportunity to have avoided that valued by his Honour at 40 per cent.  In the Court of Appeal, page 330 of the book, paragraph 232, in our submission, their Honours do not give full weight to those findings

clearly on the balance of probabilities by Justice Studdert to which I have just gone when they use just below the line 40 the word “possibility”. 

Equally, there is an error in understanding choices as if they were alternative, that is mutually exclusive, seen between lines 50 and 55, “two choices”, steroids more likely treating “more probably [than] not, it would have been the treatment administered”.  Well, that is not what the evidence showed.  Yes, steroids at first, but the drain would be, as it were, hovering in the background to be used imminently and on very short notice and his Honour held the combination of those possibilities was what produced the 40 per cent prospect.  For those reasons, in our submission, there was an inadequate demonstration of any call to interfere with an extremely carefully calibrated and explained assessment of that prospect by Justice Studdert and ground 2 is also made out.  May it please the Court.

GUMMOW ACJ:   Thank you, Mr Walker.  Yes, Mr Young.

MR YOUNG:   May we commence by returning to the observations made by the Acting Chief Justice this morning.  We agree that the issue identified by his Honour is the basic issue in the case – namely, what qualifies as damage for the purposes of an action in medical negligence and does damage extend to an unlikely chance of a better medical outcome?  We also agree that one of the best and most perceptive observations about this area is to be found in the judgment of Justice Gaudron in Naxakis.

Could I ask the members of the Bench to go to Naxakis 197 CLR 269. The Acting Chief Justice referred to one passage. We wanted to refer briefly at the outset to several other passages surrounding paragraph 30 to which the Acting Chief Justice referred. Her Honour referred at the end of paragraph 29, in the last sentence, to the fact that:

different considerations apply where, as here, the risk eventuates and physical injury ensues.

I pass over paragraph 30 that was mentioned this morning.  Her Honour then makes some observations to the effect that shifting the analysis to a different claim to form of damage, loss of a chance, does not necessarily alleviate the issues of causation and the problems associated with them and indeed it may give rise to other problems that she goes on to identify.  Her Honour refers, in paragraph 32, at the end of it, to the fact that:

if damages were to be awarded for the loss of a chance, the difficulties associated with proof of causation would simply reappear as difficulties in establishing the value of the chance in question.

We would interpolate that such difficulties will not be confined to the establishment of the value of the chance but they will infect the definition of the chance.  Her Honour alludes to further difficulties at paragraphs 34 and 35, including matters to which we would draw attention here.  Those observations reflect observations which have been made in some of the majority judgments in Gregg v Scott, majority speeches.

Without going to them, we refer to Baroness Hale at paragraph 215 and Lord Phillips at paragraph 170.  Observations to like effect were also made in Lawson.  Again, I will just give the references.  In volume 1 of the additional materials in Laferrière v Lawson at page 347 in the first complete paragraph, Justice Gonthier introduces a point he goes on to develop. The point is that, in his view:

loss of chance analysis adds unnecessary confusion to such a case, notably by the manner in which it diverts attention from the full and proper connection between fault and damage.

His Honour goes on to develop that point at page 348, in the first paragraph, and subsequently at pages 361, the second half of the page, and 363 to 364, commencing with the last paragraph on the page.

Some of the discussion this morning between my learned friend and the Bench exposed, in our submission, the necessity in this area of argument and policy debate to be quite precise about the way in which the injury is identified, the chance is to be defined if it is to be substituted for personal injury and then the way in which the chance is to be measured and by reference to what kind of proofs.  A review of those matters assists, in our submission, to expose the policy implications and some of the difficulties of the change in law – the basic change in law – that is advocated by the appellant in this case.

It will also help to illuminate some of the wider ramifications that this case might have for other cases along the lines exposed by questions from Justice Kiefel and Justice Crennan.  For that reason, we wanted to start with a reference to the trial judge’s findings as to the damage, the personal injury, in fact suffered by the appellant in this case and then to move to the findings by the trial judge concerning the nature and extent of the personal injury suffered on 14 January.

I will start, for the sake of completeness, with the four contributors to the injuries suffered by the appellant.  That appears in the appeal book at page 208, paragraph 382.  I appreciate Mr Walker has just been there.  The second of them is what I am focusing on at the moment, namely, the second contributor to the totality of the brain damage being the damage that occurred on 14 January.  His Honour, Justice Studdert, addresses that matter a little further at page 224 in paragraph 429.  In paragraph 429 his Honour makes a finding concerning the damage suffered on 14 January.

In that paragraph his Honour refers to the relevant matter as “the event of 14 January” having made some contribution to the plaintiff’s ultimate disabilities and it is that paragraph where his Honour assesses that contribution at 25 per cent of the total disability.  Throughout that paragraph his Honour refers to “the event”.  It seems his Honour is using the damage on 14 January and “the event of 14 January” interchangeably in his reasons.  As to the precise nature of “the event of 14 January” we need to look elsewhere in the judgment.

Can I ask that the Bench goes to page 187, paragraph 333.  That is the finding that follows some reasoning I will go back to in a moment.  In paragraph 333 his Honour says that the brain damage that occurred on 14 January was explained in the way he goes on to describe.  His Honour refers to a movement that:

was probably associated with increased intracranial pressure which may have been avoided or reduced had some reasonable attempt been taken to relieve that pressure before the deterioration occurred.

It becomes important in the evaluation of this case to understand when the deterioration occurred and what it comprised.  The evidence is somewhat scattered – can I explain why.  There were two causes of action litigated at trial as to negligent actions or omissions that caused injury.  The first concerned a lumbar puncture performed in the middle of the day on 13 January; the second concerned the failure to undertake the CT scan and the consequences of that.  Much of the evidence about the nature of the injury was explored by his Honour in the context of the first of those two allegations concerning the lumbar puncture.

His Honour rejected the lumbar puncture as a cause of the deterioration on 14 January.  He did so at page 164 at paragraph 271.  In that passage his Honour rejects the contention that the lumbar puncture caused the deterioration.  He concludes that it was:

probable that the deterioration was caused by the tumour and the hydrocephalus in combination.

The reference to a movement being associated with intracranial pressure is then something that needs to be explained because it is not really explained by that ultimate finding of his Honour at paragraph 333.  For that evidence we need to go back into the evidence that is largely associated in the trial judgment with the discussion of the lumbar puncture and its consequences.  Can I very briefly direct the Court to the evidence.  The evidence concerns a movement that is described by the lay description “coning” in some of the evidence.

Can I ask that the members of the Bench go to page 151.  The trial judge refers to the evidence concerning that term at the top of page 151 and he accepts Mr Johnston’s definition.  Mr Johnston was the treating neurosurgeon who ultimately did the operation to remove the tumour.  The definition is:

“Any movement of tissue, displacement of tissue through any part of the cranial cavity . . . into an area where it should not normally be.”

Mr Johnston’s evidence in his report concerning what he found when he conducted the operation appears on the next page, page 152 in paragraph 240.  It is important evidence to understand what the event was, what the damage was on 14 January.  I refer in particular, without reading the whole passage, to what follows after the word “Secondly”, midway through the passage.  The nub of it was that the tumour on the operation on 16 January was found to have grown to such an extent and to have spread in such a way through the subarachnoid space that it was completely blocking the flow of CSF, cerebral spinal fluid, through the brain in the normal way.  That was the cause of the increased pressure within the brain. 

There is other evidence elaborating slightly on that that I will mention.  At page 155, paragraph 245, there is a reference to Professor Watson’s evidence.  The most relevant part for present purposes is at the top of 156, in the answer at the top of the page.  Dr Maixner, who was the neurological registrar, took notes that are relevant to what happened on the 14th when the event occurred.  They are set out at page 108 and this encapsulates the event on the 14th.  The Court will see in paragraph 113 firstly the nursing notes concerning the event at 11.45 am.  The following paragraph 114 concerns events that happened about an hour later when Dr Maixner observed the appellant in the EEG department:

the plaintiff was having episodes of decerebrate posturing with extension of her limbs.

It was at that point or immediately after that that Dr Maixner proceeded to insert the ventricular drain.  But the event to which his Honour refers that caused the brain damage appears to have occurred between 11.45 am, continuing through to the episode of decerebrate posturing a little bit later in the middle of the day.

The other evidence is to like effect.  Mr Klug was not the treating doctor but he gave evidence and the Court of Appeal refers to his evidence.  At 160 to 162 in the appeal book his evidence is referred to, particularly at the top of 162.  Mr Wallace, another specialist, his evidence is referred to at paragraph 267 at 162 and it is that review of the evidence that led the trial judge to make the finding he does at paragraph 271 that I went to earlier.

The case about the lumbar puncture was in essence this, if I can briefly describe it.  The case was that when the needle entered the spine to try and extract spinal fluid it caused a change in pressure within the brain sucking a part of the brain down towards the spinal stem, and the argument was that the lumbar puncture which ought not to have been performed was the cause of the coning event, as such.  The Court will see the nature of the issue at page 162 in the extract from Mr Wallace’s evidence in paragraph 266.  This is describing a coning event in the context of a lumbar puncture.

I should finally refer to the Court of Appeal’s findings about the nature of the event on 14 January.  They appear at paragraph 60, page 270.  The event is described there as a seizure.  It does not appear to strictly accord with the evidence because that label suggests more in the nature of some kind of epileptic fit, but the full evidence is that which I have taken the Court to.  The evidence, in short, accepted by the trial judge was that the intracranial pressure caused some movement affecting the brain, in about the middle of 14 January, that caused brain damage.  That was not due to the lumbar puncture which had occurred 24 hours earlier.  It was due to the build‑up of the intracranial pressure.  That was the event and that was the damage on the 14th.

There is some additional evidence and findings concerning the size of the tumour which I should briefly mention.  At pages 108 to 109, paragraph 115, the nature and size of the tumour is described in that passage of evidence that the trial judge records.  At page 182, there is some elaboration of the evidence in paragraphs 316 and 317.  In addition, in the evidence of Dr Kellie again there is some elaboration in the middle of the passage at page 183 within paragraph 319.  Dr Johnston’s evidence about the matter is elaborated at page 181, paragraph 312.  The reference to “foramen” are references to three cavities within the cranium – cavities of magnum, Magendie and Luschka, the latter two being 18th century physiologists.

I have referred to that material because the nature of the damage suffered on 14 January is ultimately quite important in understanding the issues concerning causation, the identification of the chance and the way in which the trial judge then proceeded to assess the factors that bore upon his evaluation of the chance at 40 per cent.  So too are issues of timing, because it would appear that the event of deterioration could not have been affected – and certainly there is no evidence to say it would have been affected or altered by anything that occurred after 11.45 am or shortly thereafter on 14 January.  If there is to be any alleviating intervention it needed to occur before the event of deterioration occurred that caused this amount of brain damage suffered on 14 January.  Can I ask that we next turn to the trial judge’s judgment at page 175.  At page 175 the trial judge posed three questions in paragraph 299:

how soon a CT scan could and would have been arranged in this case, and what measures thereafter would have been put in place –

and we, of course, underscore the “would”, and lastly when those measures would have been in place –

for the relief of raised intracranial pressure.

It might be thought that another question was needed.  What was the likely efficacy of those measures that would have been put in place to take effect prior to the deterioration in the middle of 14 January?  Not all those questions were specifically addressed either by the trial judge or by the evidence and that is one of the difficulties when one shifts from a balance of probabilities assessment to a loss of chance analysis.

The Court of Appeal referred to the same questions at paragraph 218 of their judgment at page 237.  What I propose to do is to take the Court as briefly as I can to the evidence relating to those questions.  The first question was, how soon could a CT scan have been undertaken on the 13th after the first sign of neurological disturbance?  The events of the 13th are referred to by the trial judge summarising an exhibit at the top of page 106 in paragraphs 103 to 105.  The judge found that in those circumstances “Dr Gett should have arranged a CT scan”.  That finding is at paragraph 193 of page 133 at about line 42 and again in the last sentence on the page continuing across the page.  Turning to when the CT scan would have been undertaken, there are some brief references in the evidence.  The first is at page 175 and this is to his Honour’s finding about the CT scan.

KIEFEL J:    I am sorry, what was that reference?

MR YOUNG:   Page 175, your Honour, paragraph 300, in the middle of paragraph 300, about line 41, “such scan would have been carried out that same day”.  As to when on that day there is some additional evidence.  The general anaesthetic would have been required first, and I will not go to that, that is at paragraph 275 at page 165.  His Honour’s ultimate finding, accepting the evidence of Dr Williams, was that it would have taken five to six hours after the neurological disturbance on the 13th.  That appears at page 168, paragraph 283.  The Court of Appeal referred to and adopted that time period of five to six hours at paragraph 203 of the Court of Appeal’s judgment at page 322. 

The significance of the delay in taking the CAT scan on those findings is that any form of treatment has a fairly limited period in which to operate before the events that commenced at 11.45 am on the 14th, roughly 17, 18 hours or thereabouts.  That is not a figure his Honour specifically refers to but he makes the findings as to the sequence.  As to the forms of treatment, which was the second of Justice Studdert’s questions, the evidence was that there were two possible courses of treatment and his Honour found that one was the more likely, namely, the prescription of steroids.

Can I ask the Court to go to page 176.  His Honour juxtaposes the two options at paragraphs 301 and 302, page 176.  Dr Maixner suggested the urgent insertion of a drain.  There is additional evidence relating to that doctor at paragraph 289, page 172, without going back to it.  Dr Johnston’s evidence about the course he would have taken, which was to prescribe steroids and then to list an operation, a third ventriculostomy on the following Wednesday, his evidence appears at paragraph 278, but they were the two options.

What his Honour does at paragraph 304, in describing Mr Johnston’s evidence, is to say that Mr Johnston’s views would have represented those of the neurological staff at the hospital.  That is at the top of page 177.  His Honour also concluded that Dr Maixner would have deferred to the views of Mr Johnston which was to prefer the administration of steroids.  Mr Johnston’s evidence as to the potential effectiveness of a course of treatment by steroids appears, in addition to the places I have already been, at pages 167 to 168 – if we could go back there for a moment - in paragraph 281 in the judgment.  That passage makes perhaps two points.  The first was that steroids would have worked on the tumour and its size, that is to say may have reduced:

tumour‑related swelling, not the hydrocephalus, so the issue of improvement was somewhat speculative.

He elaborates in the passages that are quoted.  The Court of Appeal summarises that evidence accurately at paragraphs 208 and 209 at pages 323 to 324 of the appeal book.  The relevant passages also being ones that are summarised are in the appeal book – these are pages of transcript from Mr Johnston’s evidence – at pages 49 to 51 and pages 55 to 56.

The Court of Appeal also summarised Dr Maixner’s evidence accurately at page 325, paragraph 211.  Without going back to it, the corresponding passages in the trial judgment are at paragraphs 287 and 289, between pages 169 and 172.  The Court of Appeal referred to one additional medical witness that the trial judge did not mention in this regard, concerning the effectiveness of steroids.  That was Dr Klug.  The Court of Appeal summarises his evidence at page 325, paragraph 213.

KIEFEL J:   Could I just interrupt you to ask ‑ ‑ ‑

MR YOUNG:   Yes, your Honour.

KIEFEL J:   The Court of Appeal at paragraph 208 referred to the speculation as to whether steroids would have avoided or minimised the acute decline.  Where is the evidence as to it minimising the acute decline?

MR YOUNG:   There is not any.

KIEFEL J:   So it is an all or nothing, it either avoids or it does not.

MR YOUNG:   No, my answer was there is not any evidence distinguishing between the potential for steroids to avoid ‑ ‑ ‑

KIEFEL J:   Or lessening its impact.

MR YOUNG:   Or lessening its impact.  The part of the difficulty is, I think, this.  The case was conducted at two levels.  One was the traditional case on the balance of probabilities, that the brain damage on the 14th would have been avoided altogether, and at a secondary level to that, there was the argument, there was a chance of avoiding the brain damage on the 14th, and his Honour in some of his findings speaks of avoidance and it is only when his Honour comes to the assessment of the size of the chance that his Honour introduces the notion of minimising.

KIEFEL J:   So he is not talking about minimising the effects, he is talking about the chances of avoidance?

MR YOUNG:   He is in his primary findings about that, but subsequently the focus is extended to include minimisation, and this does raise the question of how the chance is being defined, and is there a scope for the definition of the chance and the way in which it ultimately gets defined, given the limitations of the evidence.  But I will come to that if I may, your Honour.

I wanted to refer to Dr Klug’s evidence, for this reason.  The Court of Appeal ultimately referred to Dr Klug’s evidence in the context of recognising a chance in the order of 15 per cent.  Aside from Dr Klug’s evidence, the only witness who gave evidence about the potential effectiveness of the steroids was Mr Johnston, and Mr Johnston’s views are set out on the opposite page, at the top of page 324, and that was to the effect that it was speculative, and fairly “problematic”.  There was no evidence addressing the likely effectiveness of steroids within that period of time of say, 18 hours, between the likely carrying out of the CT scan, and the neurological event commencing at about 11.45 am on the 14th.

Dr Klug was fairly close to Mr Johnston when saying that unless the child presented in extremis on the 13th he would have prescribed steroids and in the ordinary case he would have expected improvement – substantial improvement within 24 hours.  He was giving evidence generally.

CRENNAN J:   I think he said “Invariably”.

MR YOUNG:   Yes, he did, “Invariably, within 24 hours”.  Of course, that is an assessment of general experience by Dr Klug.  Mr Johnston had the benefit of being the treating neurosurgeon and having seen the size and dimensions of the tumour when he operated on the 16th.  Be that as it may, that was the only evidence about the effectiveness of the steroids within the time margin that was very short.

The trial judge appears to have accepted that steroids were the likely form of treatment in the light of the evidence I have reviewed.  That appears from the trial judgment at pages 176 to 178.  I have referred to most of that.  At 178, though, one comes to the finding as to causation on the balance of probabilities.  Paragraph 306 is an important paragraph.  The first part of it is concerned with the traditional causation test.  His Honour concludes that he was:

not persuaded on the balance of probabilities that if Dr Gett had called for a CT scan at 11.00 am on 13 January, as I have found he should have done, the discovery of the tumour through that procedure would have led to the plaintiff being treated in such a way as would have avoided such brain damage as occurred on 14 January 1991.

That was the decisive finding and the way in which the case was put at the first level, traditional negligence causation principles.  His Honour expresses that finding in terms of the plaintiff not being treated following the CT scan “in such a way as would have avoided such brain damage as occurred on 14 January 1991”.  There is no reference in that finding to any minimisation or lessening of the brain damage.  That appears to be because the case was put in terms of avoidance and only avoidance.  That is the way it was pleaded.  That appears to have been the way it was put.

His Honour then goes on to turn more or less by way of foreshadowing the necessity to deal with the alternative case based on loss of chance.  This paragraph presages the findings that follow.  His Honour goes on to say that he is satisfied on the balance of probabilities that had a scan been called for, it would have been performed.  So his Honour applies a balance of probabilities assessment to the first step in the counterfactual.

As to the second step, what treatment would have then commenced on 13 January immediately after the CT scan, his Honour refers to two matters; treatment either by drainage or prescription steroids.  Before I go on to see what his Honour says about each mode of treatment, it is implicit in the finding as to the balance of probabilities that neither form of treatment, that is to say, neither drainage nor prescription of steroids, would have avoided such brain damage as occurred on 14 January 1991.  We do not think that is disputed, having regard to what Mr Walker said this morning.

KIEFEL J:   So his Honour is talking about the chance that is being taken away as the either form of treatment.

MR YOUNG:   He is there, but ultimately his Honour does not apply a probability assessment to which form of treatment would have been adopted.  His Honour dissects the chance, as it were, and then looks at the dimensions within the chance and applies percentage possibilities to them.  That is something I will come to.

His Honour then indicates that as between those two forms of treatment, neither of which would have avoided the brain damage, the use of a drain would have given a chance of a better outcome, but then his Honour quickly adds that he “must heed the superior role of Mr Johnston” which is a reference to the fact that Mr Johnston and, indeed, the whole neurological staff would have chosen steroids as the preferred treatment.  Then his Honour says:

Whichever of the two forms of treatment would have been undertaken, the plaintiff was deprived of the chance of having it by the second defendant’s breach of duty –

That sits slightly oddly beside a finding on the evidence that the likely form of treatment was steroids.  The last factor mentioned is one that Mr Walker referred to, and this is again looking ahead to the percentage assessment of the dimensions within the chance, but his Honour there refers to another factor being that time was lost on the 14th in carrying out the EEG post the neurological event and the time occupied in performing that CT scan.  Ultimately what his Honour observes is that a couple of hours were lost in performing an EEG and a CT scan on the 14th following the neurological event and those hours would have not have been lost and a drain might have been inserted several hours earlier had those tests been done on the 13th.  But all of that follows the neurological event, so its significance is being factored into an assessment of a percentage chance is, in our submission, questionable.

Can I then next turn to the next stage of the trial judge’s analysis which is where he defines the chance.  When his Honour defines the chance he does so in language that is broader and looser than the way in which he made his finding on the balance of probabilities applying ordinary causation principles.  At page 205 I would ask the Court to go to paragraph 376.  It commences with a reference to Rufo.  At line 40 his Honour says that:

In order to recover damages for the loss of the chance of a better outcome, the plaintiff has to prove on the balance of probabilities that there did exist a real chance that the plaintiff would have had a better outcome had the negligence in treatment not occurred. 

GUMMOW ACJ:   There was no difficulty with the next step introduced by the words “also encumbent”, is there?

MR YOUNG:   Yes, of course, your Honour.  Your Honour is right, but I have already referred to that finding in the evidence, that had the opportunity of a CT scan been offered, it would have been taken up.  That finding was expressed as a balance of probabilities finding.  That is back in paragraph ‑ ‑ ‑

GUMMOW ACJ:   We are in the real world, are we not?  This child is very ill in hospital and the parents are there.

MR YOUNG:   Of course. 

BELL J:   Looking at (i) in paragraph 377, page 205 going over to 206, his Honour finds:

that the failure to relieve the plaintiff’s intracranial pressure during the twenty-four hour period prior to the plaintiff’s decline on 14 January 1991 was causative of brain damage occurring at and following the time of the observed decline on 14 January;

So the incident at around 11.00 am on 14 January does not seem to be the cut‑off point in terms of his Honour’s finding at this point.

MR YOUNG:   Yes, your Honour, it is certainly true that the event continued for a period of time.

BELL J:   So I am just trying to understand the significance of your earlier submission about identifying the event as I understood it at 11 o’clock, or thereabouts on 14 January?

MR YOUNG:   I was not trying to fix it exactly at 11 o’clock - in fact, it is 11.45.

BELL J:   You understand what I am raising with you?  So that his Honour’s finding concerning the significance of the delay caused by obtaining the CT scan after the event at 11.45 on 14 January continues to have some significance, does it not?

MR YOUNG:   It may, your Honour, yes. 

BELL J:   Well, on this finding it would, would it not, because there is also the evidence of Mr Johnston to the effect that every minute or thereabouts counts in these instances.  I do not suggest I am putting it precisely.

MR YOUNG:   No, that evidence is at page 207.  Your Honour is basically right, but that is not really our point.  The point was to try and identify the way in which the chance is defined ‑ ‑ ‑

BELL J:   I understand that, but I am just wanting to clarify ‑ ‑ ‑

MR YOUNG:   ‑ ‑ ‑ and then the way in which the factors or the different dimensions of the chance are evaluated.  Your Honour might be perfectly right that the reference to performing the operation to insert the drain on the afternoon of 14 January, if done several hours earlier, might – might have had some effect in avoiding ongoing brain damage, if it was continuing at the time of that operation, but there is no evidence addressing those matters.  The evidence never got so specific as to whether the carrying out of an operation to insert the ventricular drain on the 14th would have made a medical difference to the brain damage, if conducted several hours earlier.  The relevant doctors were not asked that question.

So yes, his Honour has referred to it and we understand where it fits, but the point we wanted to make by reference to this is that the complexities of causation are not being avoided by substituting a different definition of “damage”, namely loss of chance.  What that does is to throw up other difficulties ‑ ‑ ‑

CRENNAN J:   Justice Gaudron’s point, a return to Justice Gaudron’s point.

MR YOUNG:   Yes, and really I am going through the facts so that against these precise facts, one can test the issue of substituting a “loss of chance” analysis in these facts for the traditional causation analysis.

CRENNAN J:   Yes.

HEYDON J:   Is your purpose also to support the notice of contention?

MR YOUNG:   Yes, your Honour.  But the first purpose is, as I said, to her Honour.

GUMMOW ACJ:   How are you progressing?

MR YOUNG:   I am progressing pretty well, your Honour.  I had almost completed what I wanted to say about the facts.  As a last step, we did prepare a glossary of medical terms.  The evidence in the appeal book does not extract some of the definitions that are found on a wider transcript, so we have collected those because we thought it may be of assistance to the Court, and there are some additional ‑ ‑ ‑

GUMMOW ACJ:   That can be handed up after we adjourn.

MR YOUNG:   Yes, if your Honour please.

GUMMOW ACJ:   All right, so you will finish comfortably by lunchtime tomorrow, roughly?

MR YOUNG:   Yes, your Honour.

GUMMOW ACJ:   We will adjourn until 10.00 am tomorrow.

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 13 NOVEMBER 2009