THE HIGH COURT OF AUSTRALIA BRINGS FINALITY TO 'LOSS OF CHANCE' CLAIMS

Newsletter Article - 25 May 2010

In the June 2009 issue of the Health Business we reviewed the decision of the NSW Court of Appeal in Gett v Tabet [2009] NSWCA 76.  This decision was appealed to the High Court of Australia.  On 21 April 2010 the High Court handed down its judgment in the matter of Tabet v Gett [2010] HCA 12 dismissing the appeal. This decision brings finality to not only the parties to the proceedings but also the legal profession at large in relation to ‘loss of opportunity’ claims in medical negligence proceedings.

In short, the plaintiff suffered a seizure and was diagnosed with a brain tumour for which she was operated upon, yet sustained irreversible brain damage. The trial judge found the defendant had been negligent for failing to order a CT prior to the plaintiff’s seizure. The issue for the Court was whether the plaintiff was entitled to recover any compensation for what she alleged was a ‘lost  opportunity’ to obtain earlier treatment, which may have resulted in a better outcome. On one point of appeal, the Court of Appeal essentially found that the evidence as to the nature of the ‘lost chance’ was insufficient to support a finding that the negligence caused the plaintiff to suffer any specific or identifiable injury, separate to the totality of the plaintiff’s brain injury which was also contributed to by other non-negligent causes (such as the underlying tumour).

Although each case will always turn on its own facts, by confirming that the Court of Appeal achieved the correct result in this case, the High Court of Australia has sent a clear message that the law in Australia does not recognise or permit compensation for plaintiffs in medical negligence proceedings who have lost the ‘possibility’ of a better outcome – compensation will only be awarded when a plaintiff can prove on the balance of probabilities that the negligent act or omission caused their injury.

Leonie Beyers
Solicitor
Phone: 61 2 9228 9227
Leonie_Beyers@tresscox.com.au