Tabet v Gett

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.