Dear Colleagues;

An important decision of the NSW Court of Appeal rules against recovery for loss of a chance in medical cases. On behalf of Harold Luntz:

In Gett v Tabet [2009] NSWCA 76 (9 April 2009) the court, in a joint judgment, has rejected the doctrine of loss of chance of a better outcome in medical negligence cases. It refused to follow Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA) and Gavalas v Singh [2001] VSCA 23; (2001) 3 VR 404 (CA). One must have sympathy for the trial judge, Studdert J, who had rejected the doctrine in Rufo at first instance, but been told on appeal that he was wrong. In the present case, he had held himself bound by Rufo (see Tabet v Mansour [2007] NSWSC 36 (9 February 2007)), but has again been reversed (though the CA does say he was indeed bound by Rufo). Even more sympathy must go to the unfortunate plaintiff, a child with extensive brain damage.

NF: The decision is online at http://www.lawlink.nsw.gov.au/scjudgments/2009nswca.nsf/09da2a0a2a27441dca2570e6001e144d/

b8cf9111de9ba837ca2575900008a8ca?OpenDocument . (Sorry about the length of the link- the decision is not on Austlii yet and given the Easter long weekend here may not be for a few days.) Those who have followed this on-off debate for a few years will be able to guess that I personally think the decision is perfectly correct as a matter of law, though I take Harold's point that it leaves the young plaintiff in a very bad way. Among the legal issues there is an interesting discussion on the circumstances in which an intermediate appellate court should depart from one of its own prior decisions.

Regards

Neil Foster

Neil Foster

Senior Lecturer & LLB Program Convenor

School of Law

Faculty of Business & Law

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

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