GUMMOW ACJ, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
REEMA TABET (BY HER TUTOR GHASSAN SHEIBAN) APPELLANT
AND
DR MAURICE GETT RESPONDENT
Tabet v Gett [2010] HCA 12 21 April 2010 S259/2009
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
B W Walker SC with J L A Lonergan and J Chambers for the appellant (instructed by Slater & Gordon Lawyers)
N J Young QC with J K Kirk and K C Morgan for the respondent (instructed by Blake Dawson Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tabet v Gett
Negligence – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent's delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.
Negligence – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.
Words and phrases – "balance of probabilities", "damage", "gist of the action", "loss of a chance of a better outcome", "standard of proof".
GUMMOW ACJ. The appellant suffers irreversible brain damage. She was born in 1984 and brought her action in the Supreme Court of New South Wales by her tutor, who is her uncle. The respondent, Dr Gett, was the second defendant in the action and at all material times was a registered medical practitioner practising as a paediatrician and a visiting medical officer at the Royal Alexandra Hospital for Children in Sydney. The events giving rise to the litigation took place when the appellant, then aged six years, was a patient at the hospital. Changes to the common law subsequently made by the Civil Liability Act 2002 (NSW) did not apply directly to this case.
The action was brought in negligence alone and there was no claim in contract. The appellant pleaded her case as one in which breach by the respondent of his duty to manage her with due care and skill caused or contributed to cause her injury, loss and damage, or, in the alternative, led to "the loss of an opportunity to avoid injury, loss and damage". The appellant at trial failed on the first ground but succeeded on the second.
There are two central issues.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Tabet v Gett [2010] HCA 12
Case
[2010] HCA 12
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, who had suffered irreversible brain damage, against the respondent, a medical practitioner. The appellant alleged that the respondent's delay in providing proper treatment breached a duty of care owed to him. The central dispute concerned whether the respondent's breach of duty caused any part of the appellant's brain damage, or at most, caused a loss of a chance of a better outcome, and whether such a loss of chance constituted actionable damage in negligence.
The legal issues before the Court were whether the law of tort recognises, or should recognise, a loss of a chance of a better outcome as damage giving rise to liability in negligence, particularly in the context of medical negligence. The Court also considered the relevance of policy considerations in extending liability in such cases and whether the evidence was sufficient to establish a loss of chance of a better outcome, or if an inference to that effect could properly be drawn.
The Court reasoned that for the purposes of the law of negligence, "damage" refers to a detrimental difference to the plaintiff, which must be proven on the balance of probabilities. The Court held that the appellant had not proven that the respondent's negligence caused any difference in his state of health, meaning it was not demonstrated that the respondent's negligence was probably a cause of any part of the appellant's brain damage. The Court concluded that accepting a loss of a chance of a better medical outcome as actionable damage would shift the balance between claimants and defendants in the law of negligence, and that the language of possibilities should not obscure the need to prove that the defendant's negligence was more probably than not a cause of damage.
The appeal was dismissed with costs, with the Court agreeing with the Court of Appeal that the appellant had not proven that the respondent's negligence was a cause of damage.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Court of Appeal[35], however, held that if, contrary to its view, a loss of chance analysis were "legitimate" it would consider that the appellant lost, at most, a 15 per cent chance, not a 40 per cent chance, of avoiding the overall 25 per cent of the brain damage.[35](2009) 254 ALR 504 at 555.The evidence The trial judge plainly had appreciated the difficulty in deriving from the evidence the conclusions he reached both as to the 25 per cent contribution to the appellant's disabilities and as to the 40 per cent chance of avoiding the deterioration on 14 January. This situation may be contrasted, for example, with that disclosed in Matsuyama[36], where there was before the jury extensive evidence by expert witnesses to support the opinion that the development of gastric cancer was classified into four distinct stages with each carrying a diminished chance of survival, measured by five disease‑free years after treatment. It was the development of medical science to the point that, at least for some conditions, expert evidence could replace speculation that, in the view of the Massachusetts court, made it appropriate to recognise loss of chance as a form of injury[37].[36]890 NE 2d 819 at 824‑828 (2008).[37]890 NE 2d 819 at 834 (2008). No doubt the present case arose in very particular circumstances making it difficult to find the appropriate comparator or counter‑factual. Usually this will require proof of what would have been the plaintiff's position in the absence of the breach of duty by the defendant. The difficulty in the present case arises from the substitution, for which the appellant contends, of loss of the chance of a better outcome for proof of physical injury, as the gist of the cause of action in negligence. The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd[38] of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant. The imprecision allowed in the assessment of damages in such cases does not necessarily or logically apply where a claim for physical injury fails but is said to be saved by transmutation of the damage alleged into the loss of a chance of a better outcome.[38](1990) 169 CLR 638; [1990] HCA 20. With that in mind, something should be said respecting McGhee v National Coal Board[39]. That decision of the House of Lords on appeal from Scotland may be read as deciding, on orthodox grounds, that the negligence of the defendants had materially contributed to the personal injury of the pursuer. That characterisation later was disputed by the House of Lords itself in Fairchild v Glenhaven Funeral Services Ltd[40], but it is unnecessary here to enter upon that debate. What is presently significant is that in the interim, when giving that orthodox reading of McGhee, Lord Bridge of Harwich in Wilsher v Essex Area Health Authority[41] had said of the speeches in McGhee that their conclusion manifested a "robust and pragmatic approach" to the drawing of a legitimate inference from "the undisputed primary facts of the case".[39][1973] 1 WLR 1; [1972] 3 All ER 1008.[40][2003] 1 AC 32.[41][1988] AC 1074 at 1090.
Decision
Reasons for decision
GUMMOW ACJ
(dissent)
HAYNE AND BELL JJ
HEYDON J
Finally, there is the consideration which weighed with Gaudron J in Naxakis[65], Gonthier J in Laferrière[66] and Lord Hoffmann in Gregg v Scott[67]. Where, as in the present case, and unlike in Gregg v Scott itself, the relevant risk of a bad outcome in a pre‑existing but undiagnosed or untreated condition has eventuated before the institution of the litigation, the factors bound up in the earlier chance have played themselves out. What is in issue is past events, preceding in this case disabilities from which the appellant suffers. The cause of the disabilities, on the evidence, may be uncertain. But the difficulty which this presents is not overcome by removing the analysis of the facts and law to the more abstract level for which the appellant contends.[65](1999) 197 CLR 269 at 280‑281 [36].[66][1991] 1 SCR 541 at 605.[67][2005] 2 AC 176 at 196.Conclusions and orders The Court of Appeal reached the correct result on the matters of which the appellant complains in this Court. Further, the Court should not so modify the common law as to produce a different result. The appeal should be dismissed with costs. We agree with Kiefel J that, for the reasons her Honour gives, the appellant did not prove that the respondent's negligence was a cause of damage. We add only the following. For the purposes of the law of negligence, "damage" refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to "difference" is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred[68].[68]Gregg v Scott [2005] 2 AC 176 at 181-182 [9]. In this case, saying that a chance of a better medical outcome was lost presupposes that it was not demonstrated that the respondent's negligence had caused any difference in the appellant's state of health. That is, it was not demonstrated that the respondent's negligence was probably a cause of any part of the appellant's brain damage. As Gummow ACJ explains, to accept that the appellant's loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants. That step should not be taken. The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was. It may be that other cases in which it might be said that, as a result of medical negligence, a patient has lost "the chance of a better medical outcome" (for example, a diminution in life expectancy) differ from the present case in significant respects. These are not matters that need be further examined in this case. It need only be observed that the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant's negligence was more probably than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so.