"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."
In those cases where the estimated chance of the financial benefit are less than 50% this statement is not true - there is no "actual proven loss of some sort" (on the balance of probabilities)
unless you decide to characterise the damage/loss as the lost opportunity itself. Once you do that, then you have to prove on the balance of probabilities that the breach of duty caused the plaintiff to lose that opportunity. The
value of that lost opportunity (the damages, as opposed to the damage) is then measured by reference to the percentage chance that has been lost multiplied by the value of the financial benefit that would have accrued if it had been a certainty.
The problem is that once you decide to characterise the
damage as the lost opportunity in cases of financial loss you need some explanation as to why you cannot do this in the case of physical harm. I have not yet seen a convincing explanation for the difference. Baroness Hale adverts to the problem
in Gregg v Scott, but offers no rationale for why she can sue her solicitor for loss of an opportunity to benefit but cannot sue her doctor on the same basis.
Lord
Nicholls made the point in Gregg v Scott [2005] UKHL 2
at [25]: "Of course, losing a chance of
saving a leg is not the same as losing a leg: see Tony Weir, 'Tort Law' (2002), p 76. But that is not a reason for declining to value the chance for whose loss the doctor was directly responsible. The law would rightly be open to reproach were it to provide
a remedy if what is lost by a professional adviser's negligence is a financial opportunity or chance but refuse a remedy where what is lost by a doctor's negligence is the chance of health or even life itself. Justice requires that in the latter case as much
as the former the loss of a chance should constitute actionable damage."
It
seems to me that if you think claims for lost opportunities should not be permitted in medical negligence cases you should also take the view that they should not be permitted in other cases of professional negligence. They stand or fall together.
Michael
--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX
Phone: (0)151 794 2821
Fax: (0)151 794 2829
--------------------------------------
From: Neil Foster [Neil.Foster@newcastle.edu.au]
Sent: 22 April 2010 08:11
To: Tina Cockburn
Cc: Jason Neyers; obligations@uwo.ca
Subject: Re: Loss of chance in medical negligence litigation (Australia): Tabet v Gett: [2010] HCA 12
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