Very disappointing. I think it is wrong as a matter of principle.

We need to separate sharply between the question of whether the plaintiff

has suffered a wrong at the hands of the defendant from the question of

what loss has been suffered as a result of the wrong.

Negligently causing other people to lose chances is not in itself

wrongful. So, if I negligently release a noxious chemical which 100,000

people inhale, if 25 years later there are 150 cases of lung cancer when

without the release there would have been only 100, all of those who

suffer from the disease can show that I have caused them to lose the

chance of avoiding the disease but none can show that I have

injured/wronged them as on the balance of probabilities each would have

suffered the disease anyway. They all lose. If there were 250 cases

instead of the normal 100, they all win.

If however I wrong you, losses consequent upon the wrong, including lost

chances, should be actionable.

So, if I break a contract with you by denying you the chance to win a

beauty contest, you can recover for the lost chance of winning: Chaplin v

Hicks.

If I negligently injure you so that you lose the chance of winning a clay

pigeon shooting contest, that loss is also recoverable: Girvan v Inverness

Farmers Dairy.

If I breach a statutory duty owed to you so that you lose valuable

commercial opportunities, that is also actionable: Sellars v Adelaide

Petroleum NL [1994] HCA 4.

If I negligently destroy your mechanical dinosaur, the lost chance of

making profits from it should be, and is, recoverable: Glenmont

Investments |Pty v O'Loughjlin (no 2) [2000] SASC 429

Is Gett v Tabet a case where the plaintiff cannot show that she has

suffered a wrong, similar to the chemical leak? I would argue no. The duty

owed by the surgeon is not the standard Donoghue v Stevenson duty, that we

owe to all others who we can reasonably foresee could be injured by our

conduct, to care with respect to them. Rather he owed a duty which he had

voluntarily assumed by accepting the patient that he would take care in

carrying out the treatment. This is (observably) not the same as the

Donoghue duty, as it is not just a duty not to injure. If she had paid she

would have a claim for breach of contract. The breach of this voluntarily

assumed duty should be actionable to the extent that she has suffered

loss: here the lost chance of avoiding brain damage.

Just as where economic loss is recoverable where suffered as a result of

the breach of a voluntarily assumed duty (Hedley Byrne), so should be lost

chances. "Pure" lost chances (ie lost chances which are not consequential

upon the violation of a right) should not be actionable, but this was not

such a case.

I think the US cases allowing for recovery of lost chances in medical

negligence cases are to be preferred, and that the recovery for lost

chances for breach of voluntarily assumed duties which is found elsewhere

(eg contract, solicitors, Spring v Guardian Assurance) should in principle

be generalised.

[As an aside Gregg v Scott was not a lost chance case as the court seems

to think. The plaintiff suffered an increased risk of an adverse outcome.

He hadn't suffered that outcome (death) at the time of trial or appeal. An

increased risk of something occurring in the future is not the same as the

lost chance of avoiding an outcome which has happened.)

Robert

> 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

> fax 02 4921 6931

>

--

Robert Stevens

Professor of Commercial Law

University College London