Date: Sun, 22 Feb 2004 15:59:32 +1100

From: Harold Luntz

Subject: Fairchild considered

It seems to me that the Ontario court correctly characterised Cottrelle v Gerrard as a loss of chance case (and I presume that is why David Cheifetz compares it to Gregg v Scott). Why do they cite two SCC decisions from Quebec as foreclosing liability based on this doctrine? McLachlin CJ, who was a party to both of them, has written extra-judicially 'Although recovery for loss of chance has been considered in the context of Quebec civil law, it has not been evaluated under the common law' ('Negligence Law - Proving the Connection' in N J Mullany & A M Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, Sydney, 1998, p16 at pp 25-6).

For what it is worth, a judge in the Court of Appeal of Victoria has said: 'No advanced system of law could now deny recovery where late diagnosis, in breach of duty to the patient, appreciably reduces the prospects of success of an operation' (Gavalas v Singh [2001] VSCA 23; (2001) 3 VR 404 at [15]). A judgment based on loss of chance was upheld without any real consideration of the issue by our Federal Full Court in Mouratidis v Brown [2002] FCAFC 330. It may be that this doctrine will be confined to the medical negligence area, since otherwise its potential is to undermine much causation doctrine, as Fleming himself recognised in the article cited by the Ontario CA. I once argued that McGhee should have been approached as a loss of chance case ('Loss of Chance' in I Freckelton and D Mendelson (eds), Causation in Law and Medicine, Ashgate/Dartmouth, Aldershot, 2002, p 152), but I doubt whether that view will ever be taken up.

Some commentators on Gregg v Scott suggested that it would go to the House of Lords. Does anyone know whether that has happened?

Harold Luntz.

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