The availability of damages for ‘loss of a chance’ in the context of

medical negligence will be considered by the High Court of Australia on

12 & 13 November 2009.

Special leave was granted by the court on 4 September 2009[1] <#_ftn1>,

to appeal the New South Wales Court of Appeal decision /Gett v Tabet/

[2009] NSWCA 76, in which the court took a similar view to the House of

Lords in Gregg v Scott but a different view to that reached by the NSW

Court of Appeal in /Rufo v Hosking/ [2004] NSWCA 391.

The High Court bulletin[2] <#_ftn2> summarises the background facts as

relating to a six year old girl initially admitted to hospital

complaining of headaches and vomiting who was re-admitted two weeks

later and diagnosed with meningitis. Immediate surgery and subsequent

chemotherapy was successful (in the sense that she survived) but left

girl severely disabled. The court will consider whether the causal

effects of clinical negligence should be assessed only on balance of

probabilities alone and not on the basis of loss of chance of a better

outcome. As to the calculation of the potential damage, the court will

consider whether in assessing such a loss of chance one must exclude

those matters which gave the chance or an increased chance of a better

outcome but were not proven on the balance of probabilities as the

likely treatment.

Interestingly the High Court earlier in November 2009, will deal with

/Amaca Pty Ltd v Ellis & Ors; State of South Australia v Ellis & Ors;

Millennium Inorganic Chemicals Ltd v Ellis & Ors*[3]* <#_ftn3>/. Whilst

not addressing the same issues as /Tabet v Gett/, there is some

potential overlap with the Court being called upon to decide whether an

increase in risk of injury can be sufficient to prove causation and

whether test for causation can be modified depending on the nature of

the injury. Similar issues were addressed in England by the House of

Lords in /Fairchild v Glenhaven Funeral Services Ltd/ [2003] 1 AC 32 and

in /Barker v Corus UK Ltd/ [2006] 2 AC 572.

Regards

Bill Madden

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[1] <#_ftnref1> [2009] HCATrans 209.

[2] <#_ftnref2> High Court of Australia Bulletin [2009] HCAB 7 (14

September 2009)

[3] <#_ftnref3> [2009] HCATrans 77