AUlTc'ivi I liability

Professional chance of a v Gett

negl igence: damages for better medical outcome in

loss of Tabet

John Pavlakis, Louise Mallon and Chris McMeniman BLAKE DAWSON

The High Court of Australia (Gummow ACl, Hayne, Crennan, Kiefel and Bell ll) in Tabet v Gett (2010) 265 ALR 227; [2010] HCA 12; BC201002304 has upheld the NSW Court of Appeal decision in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; BC200902489, affirming that the common law in Australia should not be altered to allow an award for damages for loss of a chance of a better medical outcome where the defendant's act or omission has deprived the injured party of the possibility (but not the probability) of the better medical outcome.

Heydon J dismissed the appeal on an evidentiary basis and declined to address the issue concerning loss of chance of a better medical outcome.

The respondent, Dr Gett, is a specialist paediatrician.

On 14 January 1991, the appellant, Reema Tabet, was diagnosed with a medulloblastoma, a type of brain tumour, and hydrocephalus secondary to the tumour. She was aged six at the time.

Ms Tabet consulted Dr Mansour on 28 December 1990 with a history of headaches and vomiting for 10 days. She was admitted to the Royal Alexandra Hospital for Children under his care on 29 December 1990. She remained there until 31 December, when she developed a chickenpox rash and was discharged with a diagnosis of chickenpox. All neurological examinations performed during the admission were normal.

She was readmitted to the hospital on 11 January 1991 under the care of Dr Gett. Her chickenpox rash had resolved, but she was still suffering from headaches and vomiting. On admission she underwent two separate neurological examinations, both of which were normal. Dr Gett's provisional diagnosis was post-chickenpox viral encephalitis, and he arranged for testing of this diagnosis by a lumbar puncture. An initial lumbar puncture was attempted that day, but was unsuccessful due to Ms Tabet's distress.

Dr Gett examined Ms Tabet on 12 January and considered that her clinical condition was still consistent with post-chickenpox viral encephalitis. Dr Gett decided to defer a further lumbar puncture for at least 24 hours due to her distressed state. Further neurological examinations on this day were normal.

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Ms Tabet was noted to be staring and unresponsive at approximately 11 am on 13 January 1991. She was reviewed by Dr Gett, who immediately directed that a lumbar puncture be carried out. On 14 January Ms Tabet's condition deteriorated and an urgent CT scan was arranged.

The CT scan revealed that Ms Tabet had a brain tumour with secondary hydrocephalus. An intraventricular drain was inserted to relieve intracranial pressure caused by the hydrocephalus and the tumour was partially removed. Ms Tabet subsequently underwent chemotherapy and radiotherapy. She is now irreversibly brain damaged.

Ms Tabet commenced proceedings against both Dr Mansour and Dr Gett, alleging that they had been negligent in their care of Ms Tabet in failing to diagnose and treat the tumour earlier.

Judgment of Studdert J at trial

The trial Judge, Studdert J, found that Dr Mansour was not negligent in the care he gave to Ms Tabet in December 1990. He did, however, find that Dr Gett breached his duty of care to her by not ordering an urgent CT scan to be carried out on 13 January 199 I. His Honour found that this would have revealed the tumour prior to her deterioration on 14 January 1;991.

His Honour further found that Ms Tabet suffered brain damage as a result of the neurological deterioration on 14 January 1991, and that this brain damage contributed 25% of her overall brain damage. The other 75% of the brain damage was found to have been caused by the surgery to remove the tumour, radiotherapy and chemotherapy.

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On the evidence before the court, Studdert J found that if a CT scan had been ordered on 13 January 1991, treatment to reduce intracranial pressure would have commenced immediately either by the prescription of steroids or, less likely, the insertion of a drain. On this basis, Studdert J concluded that as a result of Dr Gett's breach of duty, Ms Tabet was deprived of the chance of those treatment options and was therefore deprived of the chance ofa better outcome.

In terms of causation, Studdert J was unable to find on the balance of probabilities that Dr Gett's breach of duty caused or contributed to the brain damage suffered by Ms Tabet on 14 January 1991. Considering himself bound by Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391; BC20040n09 (in which the "NSW Court of Appeal had recognised a cause of action for loss of a chance of a better medical outcome), Studdert J found that Ms Tabet had lost a 40% chance of being treated in a way that would have avoided the brain damage she suffered on 14 January 1991. Justice Studdert awarded Ms Tabet 10% of her total claim for damages (40% of 25%) on the basis that, due to Dr Gett's breach of duty, she had lost her chance of a better medical outcome.

NSW Court of Appeal's decision

In Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; BC200902489, Dr Gett appealed to the NSW Court of Appeal seeking leave to argue that the decision of the Court in Rufo should be overturned and the Victorian Court of Appeal decision in Gavalas v Singh (2001) 3 VR 404; [2001] VSCA 23; BC200101238 not be followed.

The NSW Court of Appeal concluded that the approach adopted in the previous intermediate appellate court decisions of Rufo and Gavalas, allowing claims for the loss of a chance of a better medical outcome, was a departure from conventional principles because:

• the loss of chance doctrine does not form part of a recognised line of authority;

• the loss of chance doctrine was inconsistent with Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120ALR 16; [1994] HCA4; BC9404621;

• setting the law of torts on a new path of proof of causation based on creation of risk is a matter of high policy which ought to be left for the High Court;

• neither Rufo or Gavalas considered the difficulties and complexities of the application of the doctrine;

• no clear limitations have been formulated for the application of the new doctrine;

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• the doctrine is inconsistent with conventional authority, now reflected in the Civil Liability Acts, as to the nature of harm required to justify a finding of negligence;

• the causal connection between tortious conduct and the plaintiff's injury on the balance of probability is expressly enacted in the Civil Liability Acts; and

• there is no evidence that insurance companies and members of the public have adapted their commercial relations in reliance on Rufo and Gavalas.

If the assessment of the lost chance had been a legitimate exercise, the Court of Appeal found that the trial judge erred in including in that assessment the possibility that a drain would have been inserted given that it is implicit in his judgment that the probable treatment would have been the administration of steroids. On this basis, the Court of Appeal found that the plaintiff lost, at most, a 15% chance of avoiding the brain damage on 14 January 1992.

The NSW Court of Appeal allowed Dr Gett's appeal and dismissed Ms Tabet's claim.

Judgment of the High Court

Ms Tabet sought and was granted special leave to appeal to the High Court.

The issues for consideration by the High Court were:

• whether to reformulate the law of torts to permit recovery for physical injury not shown to be caused or contributed to by a negligent party, if that negligence has deprived the injured party of the possibility (but not the probability) of a better medical outcome; and

• whether Ms Tabet was deprived of such a chance and, if so, whether the Court of Appeal erred in re-evaluating the value of the "lost chance" at 15%.

Loss of a chance ofa better medical outcome - the principle

Kiefel J

In her leading judgment, Kiefel J reviewed the present state of the law in Australia, the UK, Canada and the US. She acknowledged that the 10,1s of chance doctrine has been rejected in other common law countries such as Canada (Laferriere v Lawson (1991) 78 DLR (4th) 609; [1991] 1 SCR 541) and England (Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176; [2005] 4 All ER 812; [2005] 2 WLR 268) in favour of the conventional approach of causation being required to be proved on the balance of probabilities.

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Her Honour noted that the focus of the appeal was the third element of the cause of action in medical negligence - that is, causation - which involves both the fact of the damage having been suffered and the cause of the damage being the doctor's negligent act or omission.

Kiefel J,l (with whom Gummow ACP agrees) distinguished the decision of the Supreme Judicial Court of Massachusetts in Matsuyama v Birnbaum? The jury in Matsuyama v Birnbaum found that the defendant's negligence was a "substantial contributing factor" to Mr Matsuyama's death and awarded "proportional damages" being a percentage of damages on the statutory wrongful death claim by the executrix of Mr Matsuyama. The appeal court maintained the outcome despite finding that the "but for" test of causation should have been applied.

Kiefel J distinguished the "proportional damages"approach in Matsuyama on the basis that the court in that case did not focus on the entire factual situation which is necessary when addressing the issue of causation. The court only focussed on Mr Matsuyama's former chance of survival without properly considering the relevant fact that he had cancer, which created the probability that he would not survive.

Gummow ACJ and Kiefel J further noted" that the position with respect to assessment of damages in Australia, as set out in Malec v J C Hutton Pty Ltd, is that a court may adjust its award to reflect the degree of probability of a loss eventuating.

Kiefel J5 considered the acceptance of the loss of a chance doctrine in civil law jurisdictions, particularly France and Germany, and distinguished them on the basis that:

• in civil law countries such as France there is a different standard of proof whereby the evidence must approach certainty in proving causation;

• in Germany, proof in negligence cases is dealt with by a reversal of the burden of proof: if it is proved that a doctor was grossly negligent, the doctor must prove that his or her actions were not the cause of the injury;

• the increased risk of harm argument, considered by the Court of Appeal in Cett, was not pressed on appeal to the High Court;

• if loss of chance were a truly independent type of injury, defendants would be forced to compensate the plaintiff even if the lost chance resulted in no actual injury;6 and

• as identified by Lord Philips in Cregg v Scott, a statistical model relied on to provide a conclusion as to the plaintiff's chances of survival may be inadequate where the prospect of them surviving improves with time.

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Her Honour reaffirmed that the standard of proof required by the Australian common law for establishing causation is that a court must be persuaded that the relevant act or event was the probable cause of the harm that the plaintiff suffered. She states at [111]:

All that is necessary is' that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm.

Her Honour rejected Ms Tabet's argument that all that was required was a reformulation of the type of harm that may be recovered in medical negligence cases along the lines of cases in contract. She considered that there was no such analogy, as in medical negligence cases the only value that can be given to a loss of chance is derived from the final, physical damage.

Her Honour emphasised the distinction between the standard of proof of damage and the lesser standard that applies in the assessment of damages.

Kiefel J7 concluded that Ms Tabet could not overcome the need to prove causation by redefining a mere possibility as a loss of a chance. Further, to hold Dr Gett liable for Ms Tabet'sdamage, which he almost certainly did not cause, would require a lowering of the standard of proof and a fundamental change to the law of negligence. She could not find any strong policy considerations to embark on that fundamental change.

Hayne and Bell JJ

Hayne and Bell JJ8 agreed with Kiefel J and added that the language of loss of a chance should not be allowed to obscure the plaintiff's obligation to prove that the defendant's negligence was more probably than not a cause of the plaintiff's damage.

CrennanJ

Crennan J9 separately agreed with the reasons of Kiefel J and noted that to allow recovery for loss of a chance of a better medical outcome at common law would be "radical, not incremental" and is therefore a change better left to the legislature.

GummowACJ

Gummow ACJ,1O in a separate judgment, also concluded that the test of causation should not be altered in personal injury cases because the common law of negligence in Australia does not allow recovery when the damage is characterised as a loss of a chance of a better outcome.

In coming to that conclusion, a number of competing considerations were weighed and assessed by Gummow ACJll including:

• the decision of Gaudron J in Naxakis;

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• the suggestion that the "all or nothing" outcome on the balance of probabilities leads to "rough justice";

• the argument that the traditional approach in personal injury cases represents the striking by the law of a balance between the competing interests of the parties;

• the substitution of the loss of a chance as the actionable damage as perhaps representing a shift in that balance towards claimants;

• the potential view that with medical treatment, the loss of chance analysis assists in the maintenance of standards where there is a less than even chance of a cure; and

• any potential benefit to the public has to be weighed against the prospect of "defensive medicine" which may result in emphasis upon costly testing procedures in preference to a sequential deductive approach to diagnosis and treatment.

He added that it is not appropriate for a plaintiff to have a remedy where they can establish 'only duty of care and a breach of that duty but are not able to prove that the breach of duty caused the plaintiff s damage on the balance of probabilities.

Heydon}

Heydon J decided the matter on different grounds as discussed below.

Value of the plaintiff's lost chance - the evidence

Kiefel J concluded that the evidence did not support a finding that if there was a chance of a better outcome it was as high as 40%.

Gummow ACJ considered that the evidence was such that whether there was the chance of a better outcome was only speculation, whether it was valued at 40% or 15%. He considered that for this reason alone the appeal should be dismissed.

Heydon J stated that there was no evidence to support a finding that the negligence caused the plaintiff to lose a chance of a better outcome. He rejected the appeal on that basis and declined to address the issue of loss of chance as the question was hypothetical in the light of his finding on the evidence.

loss of chance in commercial cases

Both Gummow ACJ and Kiefel rejected J Ms Tabet's argument that recognising loss of chance in medical negligence cases would not be unconventional because the law in Australia already recognises the loss of a commercial opportunity as actionable damage.

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Kiefel JI2 distinguished the commercial cases of Commonwealth v Amann Aviation Pty Ltd13 and Sellars v Adelaide Petroleum NL,14 on the basis that in those cases the commercial advantage or benefit lost was of value itself, whereas a loss of a chance of a better medical outcome cannot be regarded in this way because the only value given to it is derived from the final, physical, damage.

Gummow ACJI5 referred, with approval, to the similar observation made by Gaudron J in Naxakis v Western General Hospital'" that different considerations apply where the risk has eventuated and there has been physical injury.

Gummow ACJ17 further rejected the argument on the basis that:

• the action for breach of contract lies upon the occurrence of breach, whereas in negligence it lies

only if and when damage is sustained; 10 "."

• in a negligence action, unlike an action in contract, the existence and causation of compensable loss cannot be established by reference to breach of a promise to afford an opportunity; 18 and

• in a contract case the plaintiff should be entitled at least to nominal damages for loss of the promised opportunity such as occurred in Chaplin v Hicks [1911-13] All ER Rep 224; [1911] 2 KB 786.

Although the comments of Gummow ACJ and Kiefel J are arguably obiter, they confirm that the High Court does not wish to disturb the principle that loss of a commercial opportunity is actionable damage in cases of contract, tort and under the Trade Practices Act 1974 (Cth).

Discussion

Following the unanimous decision from the NSW Court of Appeal in this case and the dismissal of the appeal by the High Court, it is now clear that the common law of Australia does not recognise an action for recovery of the loss of a possible (but not probable) chance of a better medical outcome.

As Baroness Hale of Richmond stated in Gregg v Scott, "almost any claim for loss of an outcome could be reformulated as a claim for loss of a chance of that outcome" and therefore, any defendant in a personal injury claim could be faced with the primary claim for negligence for personal injury, together with an alternative claim (if the primary claim was unable to be established) for the loss of the possible chance that that injury could have been avoided.

There is no contradiction between the assessment of future damages relying on the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; 92 ALR 545;

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[1990] HCA 20; BC9002926 and the High Court's finding that the loss of an improbable chance does not constitute damage recoverable under the law of negligence. Malec is merely an application of the principle that, once liability (including causation) is established on the balance of probabilities, a court in assessing damages must estimate the value of hypothetical' future damage and adjust its award of damages to reflect the degree of probability.

To have recognised loss of chance as actionable damage in a case such as this would have radically departed from established principle and increased the complexity and cost of litigation with significant implications for the liability of doctors and the health system.

This is not to say that in other claims in negligence where the loss of chance complained of has an independent ascertainable value it will not be entertained by the court (for example contractual cases where the value of the loss of chance can be quantified).

John Pavlakis,

Partner,

Louise Mallon, Senior Associate, and Chris McMeniman, Lawyer,

Blake Dawson.

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Footnotes

1. At [132]-[139].

2. At [22].

3. Matsuyama v Birnbaum (2008) 890' NE 2d 819.

4. See Gummow ACJ at [39] and Kiefel J at [136].

5. See generally [125]-[131].

6. Referring to Khoury, Uncertain Causation in Medical Liability, (2006) and Khoury, "Causation and Risk in the Highest Courts of Canada, England, and France", (2008) 124 Law Quarterly Review 103 at 125-126.

7. At [151].

8. At [68].

9. At [102].

10. At [46].

II. See generally [55]-[62].

12. [122]-[124]; also see Gummow ACJ at [46]-[57].

13. Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; (1991) 104 ALR I; [1991] HCA 54; BC9102617.

14. Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16; [1994] HCA 4; BC9404621.

15. At [55].

16. Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540; [1999] HCA 22; BC9902258 at [29].

17. At [47]-[48].

18. Referring to the principle espoused by Brennan J in Sellars v Adelaide Petroleum NL.

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