Date: Thu, 15 Feb 2007 16:38:31 +1100

From: Harold Luntz

Subject: Loss of chance

If I may leave the direct discussion of Resurfice Corp. v. Hanke and take up an issue that was raised tangentially. (For what it is worth, my view of Resurfice Corp. v. Hanke coincides with that of Michael Jones.)

While Gregg v Scott was under consideration by the House of Lords, the NSW CA recognised loss of chance in a medical negligence case, Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA), which achieved only passing mention in Lord Hoffmann's speech in Gregg. When Rufo was officially reported, the headnote writer categorised the statements as to loss of chance as obiter and added a footnote reference to Gregg v Scott (to my mind going beyond the function of a reporter). The NSW CA, however, went on fulfil the fears of Baroness Hale and to recognise loss of chance in a non-medical negligence case, New South Wales v Burton [2006] NSWCA 12 (10 February 2006); (2006) Aust Torts Reports 81-826. (Again, for what it is worth, in my opinion the dissenting judgment of Basten JA in this case makes more sense.)

Now two first instance judges in NSW have held in medical negligence cases that Rufo v Hosking is binding on them. In Halverson v Dobler [2006] NSWSC 1307 (1 December 2006), the judge, who clearly didn't agree with Rufo, distinguished it on the basis that it applied only where the chance was 50% or less, a view once taken by Callinan J in the High Court of Australia (which I have described elsewhere as "insupportable"), and awarded full damages on the basis that causation was satisfied on the balance of probabilities. Now. the judge whose decision at first instance in Rufo that proof on the balance of probabilities was required was set aside by the CA, in Tabet v Mansour [2007] NSWSC 36 (9 February 2007) has awarded damages to a plaintiff whose chances of a better outcome he assessed at only 40%.

Regards,
Harold.

Harold Luntz,
Professorial Fellow,
Law School,
The University of Melbourne,
Victoria, 3010,
AUSTRALIA.

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