Dear Tina, Bill and colleagues;
I think this is the right outcome in tort law but in practice demonstrates again the problems created by a lack of a comprehensive social security system for the disabled in Australia.
I agree with the overall reasoning of the court, and Kiefel J in particular gives a pretty comprehensive review of decisions in the Commonwealth and around the European system, referring to Lara Khoury's work pretty extensively.
My only concern is that there are one or two comments that leave open some issues which I think could have been closed off. At [27] Gummow ACJ says, while supporting the majority view that mere loss of a chance will not suffice as proof of damage:
"this outcome will not
require acceptance in absolute terms of a general proposition that destruction
of the chance of obtaining a benefit or avoiding a harm can never be regarded
as supplying that damage which is the gist of an action in negligence."
While one can appreciate the desire not to unduly cut off other areas of development of the law, this does unfortunately leave some uncertainty. Similarly the comment of Crennan J at [102] :
"The present requirement of
proof of causation in personal injury cases results in boundaries being drawn
which differ from those which are relevant to liability for pure economic
loss."
With respect to her Honour, I disagree. The cases holding that courts will award damages by estimating lost financial opportunities do so in cases where there has been an actual proven loss of some sort- often best expressed as a lost opportunity for adjudication or a lost opportunity in the marketplace. It seems to muddy the waters to leave open the suggestion that in general "economic loss" claims there can be a claim based on no more than the loss of a generic chance of some sort. The considerations that justifiably lead to the rule in medical cases, seem to me to support the rule being applied in other cases.
Perhaps the point will become clearer when the Court finally gets a case where it can give proper consideration to McGhee and Fairchild.
Regards
Neil F
On 21/04/2010, at 1:41 PM, Tina Cockburn wrote:
Posted on behalf of Bill Madden:
Dear All
Today the High Court of Australia delivered judgment in Tabet v Gett, which considered the availability of compensation for loss of a chance in medical negligence litigation.
The six members of the court who sat for the hearing wrote five judgments. None supported the concept.
The facts of the matter were somewhat different from those considered by the House of Lords in Gregg v Scott as the patient Ms Tabet had already suffered damage (however had a less than even chance of avoiding it).
The judgment is available online here:
http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html
Regards
Bill Madden
Slater & Gordon Lawyers / University of Western Sydney
Neil Foster
Senior Lecturer, LLB Program Convenor,
Newcastle Law School Faculty of Business & Law
MC158, McMullin Building
University of Newcastle Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430 fax 02 4921 6931