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Last Updated: 6 April 2011
Loss of Chance in Medical Negligence
Harold Luntz[∗]
A medical practitioner negligently fails to diagnose, or to treat appropriately, a patient’s condition, such as cancer. If not for the doctor’s negligence, the patient would have had a chance of a more favourable outcome than the patient now has. Does the patient have the right to sue the doctor for diminution of that chance?
Courts in different common law jurisdictions have given different answers to this question. This paper reviews the decisions of courts in Canada, the UK, the US and, particularly, Australia. It distinguishes between cases where the patient’s chance of a more favourable outcome has been reduced, but the less favourable outcome has not yet occurred, and cases where the patient has actually experienced the less favourable outcome. It also considers whether there is a distinction between cases where the initial chance of a more favourable outcome was more than even (ie, more likely than not) and cases where the patient is unable to establish such likelihood. Another possible distinction is between cases where the chance is dependent on the patient’s own choices and where the chance is due to other factors,
The paper examines the arguments for and against according the patient the right to sue in these different circumstances. In the Australian context consideration is given to these arguments from the point of view of (a) statute, (b) case law, (c) principle, (d) analogy and (e) policy.
Introduction
This topic was touched on in one of the papers emanating from the previous Obligations Conference[1] and dealt with at some length from an English perspective in another.[2] Both these papers contain references to the views of some other theorists. As can be seen from those references, the subject has been a controversial one. I make no claim in this paper to any originality in the theory, either for or against recognising the doctrine. What I set out to do is to outline the case law in the major common law jurisdictions and the less abstract arguments that have swayed the courts one way or another. In Australia, the highest court has recently rejected the doctrine and the matter may be regarded as settled, though, as we shall see, there are some loose ends still to be tied up.
Definition of topic
A more accurate way of defining the topic is to speak of a diminution in the opportunity for a more favourable outcome than that which has occurred. The issue is whether a plaintiff may recover damages for such a diminution in an action against a health professional who is in breach of a duty to exercise reasonable care in diagnosing, treating or advising a patient. The plaintiff may be the patient or, where the patient has died, those who have an action under Lord Campbell’s Act in respect of the death of the patient.[3]
Paradigm scenario
The typical scenario found in the cases is one where a patient consults a doctor about symptoms which a reasonable practitioner would recognise as requiring further testing or referral, but which the defendant fails to recognise or act on.[4] If the defendant had acted in the way a reasonable practitioner would have, a cancer from which the plaintiff is suffering would probably have been revealed and treated.[5] At that stage there was a chance that the treatment would have effected a ‘cure’. In medical circles, a ‘cure’ is usually taken to have been effected when the patient survives for a particular period, say, 5 or 10 years. With most cancers, the chance diminishes the later the cancer is discovered and treated.[6] A recent study in the United Kingdom found that outcomes there are not as good as in other European countries and North America.[7] It also referred to reports by two medical defence organisations that delayed diagnosis led to a high proportion of settlements and that the highest risk was with cancer.[8]
In a hypothetical case, the chance of a cure may be estimated at 40% if the cancer is detected at the stage when it would have been if the practitioner had exercised reasonable care. However, because of the doctor’s failure to exercise reasonable care, the cancer is not discovered until later, when the chance of obtaining a similar cure is only, say, 10%. Some writers and judges take the view that we are not really dealing with chances in this scenario, but merely with ignorance or uncertainty. They argue that when a medical witness testifies that there was a 40% chance of a cure at the earlier stage, it means that of every hundred patients presenting at that stage, 60 would die even with treatment and 40 would survive after treatment, some of whom would survive even without treatment at that stage (the 10% of those who survive when their cancer is discovered at the later stage). The patient in whom the court is interested, on account of his or her particular genetic disposition and lifestyle, had to fall into one of three groups: the 60% who will die despite treatment (call this group A), the 4% (10% of 40%) who will survive without treatment in the intervening period (group B), and 36% who will survive because of the treatment (group C). If we knew enough about the patient and each of the groups, we could allocate the patient to one of the groups. In the case of patients falling into groups A and B, the negligence of the practitioner makes no difference to the outcome:[9] those in group A would have died anyway; those in group B will survive anyway. Only those in group C would be entitled to damages. In their case, the ordinary ‘but for’ test of causation would be satisfied. If it cannot be proved that the particular patient fell into group C, the plaintiff must fail, as with any other plaintiff who is unable to prove that if the defendant had not been negligent the harm would not have occurred: compare Amaca Pty Ltd v Ellis[10] (action by the estate of a worker, who was a smoker and was exposed to asbestos and who developed lung cancer, failed because it was not shown that the exposure to asbestos by any of the defendants contributed to the lung cancer, even though it increased the risk of the disease). See also Adeels Palace Pty Ltd v Moubarak[11] (plaintiff who was shot at licensed premises failed to prove that the presence of security guards would probably have prevented the shooting; proof of an increased risk from their absence was insufficient).
Those who favour allowing damages for loss of the opportunity for a more favourable outcome to plaintiffs in cases of medical negligence must create an exception to the ordinary rules of causation. This may be done in several ways:
• by reversing the onus of proof in such cases, so as to require the defendant to prove that the particular patient did not fall into group C: compare Lord Wilberforce’s solution to the medical uncertainty in McGhee v National Coal Board;[12]
• by defining the circumstances in which the doctor’s negligence will be deemed to have caused the actual injury: compare Compensation Act 2006 (UK) s 3 (where the circumstances laid down in Fairchild v Glenhaven Funeral Services Ltd[13] are present, defendant liable for plaintiff’s mesothelioma); or
• by treating increase in risk itself as damage for the purposes of the tort of negligence: compare Barker v Corus (UK) Ltd,[14] reinterpreting Fairchild.
Another way is to treat the medical practitioner’s breach as a breach of contract, for which the damages are ‘at large’. We are then concerned only with quantification of the damages: see the judgment of Southin JA in De La Giroday v Brough[15] and her Ladyship’s dissent in Oliver (Guardian ad Litem of) v Ellison.[16] Where quantification is at issue, it is well established that chances may be taken into account, as long as they are not completely speculative: Malec v J C Hutton Pty Ltd;[17] Mallett v McMonagle.[18]
At this stage, I am not saying that any of these solutions is acceptable; merely that they are candidates for adoption if on policy grounds one wishes to reach the result that the plaintiff has an enforceable right to substantial damages, notwithstanding an inability (or the impossibility) of proving causation on the balance of probabilities.
‘Open’ and ‘closed’ cases
There are three possible situations that may be found at the time of the trial of a case like the hypothetical one I have outlined:
(1) The condition which could have been avoided by proper diagnosis, treatment or advice has not yet occurred. The evidence can only say that owing to the defendant’s negligence the risk of its occurrence has increased. In our typical scenario, the chance of a cure has diminished from 40% to 10%. Since we do not know all the factors that put patients into groups A, B and C, and whether the plaintiff possesses the ones that lead to different outcomes, we can only say that the risk of the plaintiff succumbing has increased from 60% to 90%. One important case falls into this category: Gregg v Scott.[19] In a chapter of a book published in 2002 — ie, before Gregg — I called these ‘open’ cases.[20] All other cases I call ‘closed’ cases. Although this terminology has not, as far as I am aware, been adopted by anyone else, many writers and some courts do, for reasons of policy, make a similar distinction.
‘Closed’ cases may be divided into two sub-categories:
(2) The condition has occurred, ie the patient has died within the period beyond which he or she would have been regarded as cured, or the cancer has spread to other parts of the body in a way which proper diagnosis, treatment or advice was designed to avoid. This might have happened even without negligence on the part of the practitioner; however, it cannot be proved on the balance of probabilities that it would not have. In our typical scenario, there was a 40% chance of a cure, which means that there was a 60% chance that the adverse outcome would have occurred anyway.
(3) The condition has occurred. On the balance of probabilities, it would not have occurred if not for the negligence. We need to change our hypothetical situation to encompass this sort of case. For example, we could change our typical scenario, so that there was a 60% chance of a cure at the time of the negligence and almost no chance of a cure at the time of the actual diagnosis (or administration of treatment or the giving of advice).
If one accepts that the situation in (2) is actionable, in my view (3) is not different and the assessment of the damages should be conducted in the same way, ie by reducing the damages proportionately to the chance lost, whether it is more or less than 50%. However, some judges think otherwise and would allow the plaintiff full recovery in situation (3), while allowing only proportionate recovery in situation (2). I shall return to this later. First, I shall recount briefly the law, as I understand it, in Canada, the United States and the United Kingdom, before turning to the law in Australia.
Canada
In Laferriére v Lawson, the Supreme Court of Canada held that the doctrine of loss of chance should not be introduced in medical negligence cases in Quebec.[21] La Forest J dissented. The decision was applying the Quebec Civil Code and extensive consideration was devoted to the civil law in France and Belgium. In the recent Australian High Court case of Tabet v Gett,[22] Kiefel J, relying on a number of commentators, in particular Prof Lara Khoury on the French law,[23] ventured into this area, looking also at German and other Continental systems. She prefaced her remarks by observing:
It is not suggested that a review of other legal systems reveals that there is a correct solution. So much may be accepted. Decisions by courts of other countries, including common law countries, concerning cases of this kind are made in the framework of their substantive law, the principles and policies which inhere in it and the requirements for proof of causation and damage which may or may not be adaptable to accommodate such a claim.[24]
Some commentators, including the Chief Justice of the Supreme Court of Canada, suggested that, as a decision on the civil law, Laferriére would not be binding in the rest of Canada, where the common law pertains.[25] In De la Giroday v Brough,[26] Southin JA seemed to take a similar view, but went on to say that ‘[f]or the loss of chance approach to apply in this country in actions of tort would require either a legislative amendment or a decision to that effect of the Supreme Court of Canada’.[27] Meanwhile, the Supreme Court itself appeared to leave the issue open in Athey v Leonati,[28] a case not concerned with medical negligence, but with the consequences of two separate accidents.
However, the Ontario Court or Appeal in Cottrelle v Gerrard,[29] a medical negligence case where there was a less than 50% chance that aggressive treatment might have avoided the plaintiff’s leg becoming gangrenous and needing to be amputated, held that Laferriére was binding in Ontario. Ontario is, of course, a common law province. The Supreme Court of Canada refused leave to appeal in this case.[30] Cottrelle has since been followed in numerous cases.
Earlier, in De la Giroday v Brough,[31] the trial judge had found against the plaintiff both on breach and causation. The British Columbia Court of Appeal ordered a new trial because of errors made in relation to the finding on breach. Southin JA, with the concurrence of Newbury JA, went on to consider whether if there had been a breach the plaintiff could have recovered for loss of a chance. She held that a claim in contract would permit this. Afterwards, in Oliver v Ellison, she conceded that her discussion could be said to have been obiter and that it was still an open question whether under the relevant medical services plan operating in British Columbia the relationship between practitioner and patient was contractual.[32] She held that essentially it was,[33] but the majority of the court refrained from considering the issue because it had not been argued at the trial. She was thus in dissent when, after what she called a ‘foray into history’, she awarded damages for breach of a ‘contractual’ obligation (her quotation marks)[34] to a mother for distress at the birth of a disabled child and loss of earnings in caring for the child. These were not ‘loss of chance’ claims. The majority agreed with her only on an award for pain and suffering during the pregnancy and surgery, seeing that as compensation in tort.
In Tabet v Gett, Gummow ACJ referred to these last two cases, but said that it was unnecessary to consider the approach of Southin JA because no contractual claim had been made.[35] By way of comparison, he cited two Australian High Court cases. In the first of these, Breen v Williams,[36] all the members of the court other than himself treated the relationship between the plaintiff, who was seeking access to her medical records, and the medical practitioner as contractual. Gummow J, however, while acknowledging that this had been the traditional position, suggested that this ‘now may require adjustment to accommodate wholly or partly state operated or financed health schemes, established by statute’.[37] The second case he cited, Wong v The Commonwealth,[38] appears to contain nothing of relevance other than a reference by Kirby J[39] to this dictum of Gummow J and an article on a different topic which does take the view that the relationship is not contractual where the doctor ‘bulk bills’.[40] I do not propose to investigate how far the Australian health insurance arrangements resemble or differ from those in force at the relevant time in British Columbia, since I do not believe that the solution to the problem of loss of chance should vary according to whether an implied contract between doctor and patient can or cannot be discovered.
United Kingdom
Loss of chance as a result of medical negligence was looked at twice by the House of Lords, in Hotson v East Berkshire Area Health Authority[41] and Gregg v Scott.[42] Technically, the decisions do not foreclose the issue, but most commentators take the view that it is no longer open to the courts to apply the doctrine.[43]
In Hotson, a 13-year-old boy fell from a rope on which he had been swinging from a tree. He was taken to a hospital, where his knee, but not the upper part of his leg, was X-rayed. He was given an elastic bandage for his knee and sent home, with an instruction to return in 10 days. He continued to suffer excruciating pain. Five days later he returned to the hospital, his hip was X-rayed and a serious fracture discovered. The following day he underwent surgery. He was left with a permanent disability. The cause of the disability was avascular necrosis, a blockage of the blood supply to the upper femur. The hospital admitted negligence. The trial judge found that there was a high probability, which he put at 75%, that the plaintiff would have suffered the same disability even if he had received proper treatment at the hospital. This was because the avascular necrosis had probably already set in. However, the hospital’s negligence made the disability certain and deprived the plaintiff of the 25% chance that he might have had that it had not already gone that far and could still have been avoided with the appropriate treatment. He awarded the plaintiff damages for the pain and suffering the plaintiff had undergone in the period immediately after he had been sent home by the hospital. In addition, he awarded one-quarter of the damages that he would have awarded if the hospital had been fully liable for the disability. An appeal and cross-appeal were dismissed by the English Court of Appeal.[44] The House of Lords, however, upheld the defendants’ appeal and set aside the damages in respect of the permanent disability.
The decision of the House of Lords depended on treating the existence or otherwise of avascular necrosis at the time when the plaintiff presented at the hospital as a past fact. Since the trial judge had found that there was a 75% probability that it had already occurred, the members of the House of Lords treated it as certain. On this view, there was no chance that proper treatment could have averted the condition. Therefore, the plaintiff had not lost the benefit of any chance at all. As they saw it, their Lordships did not have to deal with a pure case of a lost chance and they left the issue open, though with some discouraging remarks.[45]
The House of Lords also refused to apply the doctrine in Gregg v Scott.[46] This was more like the paradigm case, in that there was a 9-month delay in diagnosing cancer, during which time the plaintiff’s chance of surviving for 10 years diminished from 42% to 25%. However, by the time the case reached the House of Lords the period of 10 years had already elapsed and the plaintiff was still alive, though he had suffered two relapses. It may therefore be considered what I called earlier an ‘open’ case, in that the unfavourable outcome, viz death, had not yet occurred. As Gummow ACJ put it in Tabet, ‘the chronology meant that the chance had not yet run its course. It thus remained unsettled whether Dr Scott’s breach of duty had destroyed the chance of a “cure”’.[47] A narrow majority of the court refused to award damages for the diminution in the chance of survival. The majority comprised Lords Hoffmann and Phillips and Baroness Hale, but only Lord Hoffmann and Baroness Hale rejected the doctrine completely, the latter ‘[w]ith some regret’.[48] I shall refer later to some of their reasons. Lord Phillips, after a close analysis of the medical evidence, held that the plaintiff had not proved that he had indeed lost any chance as a result of the late diagnosis. The two dissentients, Lords Nicholls and Hope, would have allowed the plaintiff damages. Lord Nicholls embraced the concept of loss of chance, but there is some ambiguity in Lord Hope’s reasoning, which led Kiefel J in Tabet to say that only Lord Nicholls considered ‘that the law should not require proof on the balance of probabilities and should recognise a person’s prospects of recovery as real’.[49]
United States
Initially most courts in the United States required ‘certainty’ of proof of damage and rejected the doctrine of loss of chance. The position changed in some courts as the result of an influential article by J H King Jr.[50] The Restatement (Third) of Torts: Liability for Physical Harm gives some recognition to this change in the medical malpractice area as an exception to the usual requirement of proof that satisfies the ‘but for’ test.[51] According to the Supreme Judicial Court of Massachusetts in Matsuyama v Birnbaum,[52] a majority of US courts that have considered the matter now allow loss of chance in some medical cases at least. The court decided unanimously to follow this trend in cases where the less favourable outcome had already occurred. In Renzi v Paredes,[53] a companion case decided on the same day, it held that the doctrine was not limited to cases where the chance of survival without negligence on the part of the defendant was less than 50%, but applies also to cases where the chance of survival was reduced from more than even to less than even and the patient had died.
Kemper v Gordon,[54] a decision given a month earlier than Matsuyama and which seems largely to have escaped attention, shows that the trend in the United States is not thought compelling by the highest court in every state. There, a majority of the Supreme Court of Kentucky preferred the view taken in surrounding states that the doctrine of loss of chance does not apply in medical malpractice cases. The judgment of the court represented the views of only three of the judges. Another two agreed that loss of chance should not be adopted, but not with the reasoning in the principal judgment, while two judges dissented and would have adopted the doctrine.[55]
Matsuyama was considered by Gummow ACJ and Kiefel J in Tabet, but not found persuasive.[56] Kiefel J was critical of the reasoning, which she suggested confused ‘damage’ and ‘damages’ and focussed on the patient’s pre-injury chances of survival without taking account of the fact that he was already suffering from cancer. However, the court in Matsuyama did clearly distinguish between, on the one hand, liability and the requirement that the plaintiff must still prove causation in relation to the injury, now redefined as the diminution in the chance,[57] and, on the other hand, the valuation of the loss.[58] Kiefel J’s criticism was presumably directed to the first of the steps the court directed for valuing the loss:
The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute, ... or, in the case of medical malpractice not resulting in death, the full amount of damages allowable for the injury. This is the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decedent’s death or injury.[59]
But the court had earlier said:
In applying the proportional damages method, the court must first measure the monetary value of the patient’s full life expectancy and, if relevant, work life expectancy as it would in any wrongful death case. But the defendant must then be held liable only for the portion of that value that the defendant’s negligence destroyed.[60]
In any wrongful death case,[61] in Australia at least, the value of ‘the patient’s full life expectancy’ would take account of the fact that he or she was known to be suffering from cancer.[62] The court in Matsuyama was aware that there had been criticism of its method of valuing the loss, but was:
in accord with those courts that have determined that the proportional damages method is the most appropriate way to quantify the value of the loss of chance for a more favorable outcome, because it is an easily applied calculation that fairly ensures that a defendant is not assessed damages for harm that he did not cause.[63]
Australia
I shall deal with the position in Australia under the following headings:
1. Statute
In the period 2001-04 legislatures in every Australian jurisdiction passed Acts designed in varying degrees to limit liability and damages. Although the relevant legislation in New South Wales, the Civil Liability Act 2002 (NSW), did not apply to the facts of Tabet v Gett,[64] presumably because the proceedings were commenced before that Act came into operation, one reason the intermediate Court of Appeal in the case gave for rejecting the doctrine of loss of chance was that ‘it would be inappropriate for the general law to develop a concept of harm which departed from the assumptions underlying a tolerably uniform statutory definition of harm’.[65] It is to be noted that the definition of ‘harm’ is an inclusive one,[66] but the court thought that the substitution of ‘loss of the opportunity of a better outcome’ in the substantive provisions where the word ‘harm’ occurred was ‘at best awkward’.[67] Alternatively, if the doctrine was seen as involving a new concept of causation, it would not be consonant with the principles relating to causation in the Act.[68] This assertion requires closer consideration.
The principles of causation found in the legislation were derived from the Review of the Law of Negligence, known as ‘the Ipp report’.[69] One of the recommendations in that report was that legislation be enacted restating the law of causation so as to provide guidance to the courts, which the committee believed was lacking.[70] Although it discussed ‘evidentiary gaps’,[71] the report did not mention the problem of uncertain causation in the medical negligence context. It is clear that it had in mind the dust diseases cases of Bonnington Castings Ltd v Wardlaw[72] and Fairchild v Glenhaven Funeral Services Ltd.[73] Ironically, most of the statutes subsequently enacted do not apply to dust diseases.[74]
The Ipp committee was also concerned with a view that had gained currency that once the plaintiff had proved negligence and an injury within the area of foreseeable risk, an onus of disproving causation fell on the defendant.[75] In order to counter this view, it recommended that ‘[t]he plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation’.[76] This was given effect to in the legislation.[77] The provision does not prevent the adoption of loss of chance as the relevant harm, since the plaintiff still has to prove all the facts showing that there has indeed been a diminution in the chance of a more favourable outcome. Support for this view comes from Sellars v Adelaide Petroleum NL.[78] This was an action under the Trade Practices Act 1974 (Cth), but the High Court of Australia said that its reasoning applied to contract and tort as well. The judgment of four members of the court stated that:
the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities.
In our paradigm scenario, the plaintiff must show on the balance of probabilities that the defendant’s negligence caused the patient to lose the opportunity of a more favourable outcome. While this is not something of value in the sense of being saleable in the market, one can say that it has more than negligible value in that many people would give money for the chance of avoiding the less favourable outcome and achieving the more favourable one.
The tort law reform legislation also followed the recommendation in the Ipp report that causation should be approached in two stages. The first stage deals with ‘factual causation’ in a way consistent with the traditional ‘but for’ test, but recognises the need for exceptions to apply in some cases. For convenience I set out s 5D of the Civil Liability Act 2002 (NSW):
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The issue in relation to loss of chance requires consideration of s 5D(1)(a) and (2). It can be seen that the section requires the courts ordinarily to apply the ‘but for’ test of causation for the purposes of the first element of causation. But the statute allows this to be departed from in ‘an exceptional case’.[79] It appears that the phrase ‘in accordance with established principles’ governs what is ‘an exceptional case’; the Ipp committee had Fairchild in mind. Since, as already noted, dust diseases are excluded from the NSW Act, and therefore Fairchild cannot be treated as one of the ‘exceptional’ cases (and in any event it certainly does not represent an ‘established principle’ in Australia),[80] it is difficult to know what is such a case. Loss of chance could become ‘an exceptional case’ if its principles became ‘established’. When dealing with such an exceptional case, the court must ‘consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’. One could say that in the medical negligence context, failing to impose liability on the negligent doctor, where the patient’s chances were less than even, leaves the doctor’s duty without any content, in the same way as in Fairchild the employer’s duty not unreasonably to expose the plaintiff to asbestos was, by reason of the unknown aetiology of mesothelioma, empty if liability were not imposed.
Section 5D(3) of the NSW Act confirms the prior Australian position, viz that the test for what the plaintiff would have done is subjective and not objective. This means that one asks whether the plaintiff as an individual would or would not have undergone the surgery or other treatment in response to the warning or advice which the defendant should have given. Unlike in some American and Canadian jurisdictions, one does not answer the question by what ‘the reasonable person’ would have done. However, the distinction between a subjective and an objective test is not large in this context, because the court generally has to rely on the objective features of the plaintiff’s behaviour in determining what he or she would have done.[81] This is all the more so now in New South Wales, where paragraph (b) makes the plaintiff’s own statements inadmissible.[82] As already noted, and as we shall see when dealing with analogous situations where loss of a chance is accepted for the purposes of allowing recovery of damages, the plaintiff must still prove on the balance of probabilities any aspect of causation dependent on what he or she would have done, for example, in response to advice as to treatment or a warning.
Section 5D(4), on the ‘scope of liability’, again requires the court ‘to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’. This allows for consideration of the policy matters to be dealt with later in this paper and again does not preclude the court from holding that the harm is the diminution in the opportunity for a more favourable outcome. Thus there is nothing in s 5D (or s 5E) that stands in the way of extending loss of chance to medical negligence cases.
2. Case law on loss of chance in medical negligence
During the 1990s and early 2000s, several Australian judges at first instance allowed damages on the basis of the chance that there would have been a better outcome if not for the defendant’s negligence. Some of these went on appeal without the issue being specifically dealt with.[83] In some of these cases, the chance of a better outcome was assessed at less than 51%. In others, although it was assessed at more than 50%, a corresponding deduction was made.[84] Three intermediate appellate decisions dealing with medical negligence specifically held that damages for loss of a chance may be awarded.[85] Board of Management of Royal Perth Hospital v Frost upheld a modest award for the failure to give the plaintiff a second ECG, thereby causing him to lose ‘a valuable chance of getting some treatment which may have improved his position’.[86] Neither this case nor any of the first instance decisions was referred to in Tabet, despite Gummow ACJ having a heading ‘The state of authority’. Under this heading, Gummow ACJ referred to the other two intermediate appellate decisions, only to dismiss their relevance with brief remarks. They deserve closer attention.
In Gavalas v Singh[87] the trial judge held that the defendant doctor failed to diagnose a brain tumour as soon as he should have. The case was fought on an all-or-nothing basis. At that time, that was usually so.[88] The judge awarded damages of $30,000. If there had been full liability, the damages would have been several hundred thousand dollars. On appeal, the Victorian Court of Appeal held that the plaintiff was entitled to damages for the headaches etc that would probably have been alleviated during the period of delay in diagnosis[89] and for loss of the chance that the earlier operation would have prevented the permanent consequences from which the plaintiff was now suffering. Since even if the chance was as low as 5% or 10%, the damages were inadequate, the court ordered a new trial. Gummow ACJ in Tabet explained the case by citing Callaway JA as emphasising that the case turned on the assessment of damages.[90] He ignored the fact that Callaway JA also said: ‘No advanced system of law could now deny recovery where late diagnosis, in breach of duty to the patient, appreciably reduces the prospects of success of an operation.’[91] Gummow ACJ also ignored the statement of Smith AJA that:
the law will allow a claim for damages for lost opportunity of a more favourable outcome resulting from the negligence of a doctor but the precise boundaries of such claims await future determination. In those circumstances, and the defendant having chosen not to dispute such an entitlement at trial, the matter can be referred back to the learned trial judge for reassessment of the damages for the lost opportunity of a better outcome should the appellant be successful in challenging the assessment of damages.[92]
In Rufo v Hosking[93] the plaintiff was receiving a dose of corticosteroid for a form of lupus. The trial judge (Studdert J) held that the defendant had been negligent in prescribing a different form of the drug and in failing to prescribe another protective drug. The plaintiff suffered fractured vertebrae from osteoporosis. This was a risk which might have been avoided if not for these two acts of negligence, though more probably than not it would have occurred anyway. The plaintiff therefore failed to discharge the onus of proving that the defendant’s negligence contributed to the occurrence of the harm. The trial judge denied damages for loss of chance. The NSW Court of Appeal ordered a new trial, two of the judges, Hodgson and Santow JJA, clearly favouring the doctrine of loss of chance. Gummow ACJ dismissed this case in Tabet with a reference to the third judge, M W Campbell AJA, having said that ‘the litigation there was conducted on the basis that if the facts supported a claim based on the loss of a chance then the action lay’.[94] Yet, as he noted, the trial judge in the first instance decision in Tabet,[95] once again Studdert J, regarded himself as bound by Rufo and did award damages for loss of the chance of a more favourable outcome.
There was also some further consideration of loss of chance in New South Wales that was, perhaps more justifiably, ignored in Tabet. The trial judge in Halverson v Dobler[96] also regarded Rufo v Hosking as binding, but only if the lost chance was less than 51%. He found on the facts that the plaintiff had proved damage on the balance of probabilities and awarded damages in full. There is authority for the view that, even where loss of chance is accepted, the court must award damages in full if the plaintiff discharges the onus of proving on the balance of probabilities that the negligence caused the actual outcome. In Naxakis v Western General Hospital,[97] Callinan J, in ordering a new trial, said that on the evidence there was room for the jury to find that the doctor’s omissions either contributed to the plaintiff’s condition or deprived him of the chance of a better outcome.[98] He acknowledged that such an approach was ‘not without its difficulties’. In Flinders Medical Centre v Waller,[99] the court held that the trial judge, having correctly found that, in the absence of negligence, the tumour would probably have been discovered and removed, with the likely consequence that the plaintiff’s condition would have been avoided, ‘was right to refuse to characterise the case as one where the award should be limited to damages for a lost chance or lost opportunity’. In any event, Halverson was affirmed on appeal.[100]
In my view, Callinan J was right to perceive difficulties with allowing damages in full where the probability that the defendant’s negligence caused the patient’s unfavourable outcome was 51%, but to award only proportional damages where the probability was 50% or less. Since the issue arises only once negligence is proved, what would have happened if there had not been that negligence is hypothetical. In such circumstances, Malec v J C Hutton Pty Ltd[101] requires the court to allow for the probabilities that the harm would have happened in the absence of negligence. The probability that the harm would have occurred without negligence is the reciprocal of the chance that it would have been avoided. Thus the damages must be reduced by the probability that the harm would have happened without the relevant negligence, whether the chance of avoiding the harm is estimated at, above or below 50%. This is what is done in the cases in which a solicitor’s negligence deprived the plaintiff of successfully litigating a case or some other opportunity. Baroness Hale in Gregg v Scott, referring to the seminal article by King, recognised the logic of this, but rejected it because almost any case could be turned into one for valuing chances.[102]
That is what appears to have happened in New South Wales v Burton.[103] This was a case in which a police officer claimed damages for stress and the breach was a failure by the employer to provide counselling. A majority of the NSW Court of Appeal applied Rufo v Hosking and remitted the case to the trial judge to assess the chance of a better outcome if counselling had been provided. Basten JA, dissenting in part, applied much more orthodox principles to the case.
This brings us to Tabet. The plaintiff was a six-year-old child who was twice admitted to hospital over a short period with a history of headaches and chicken pox. In the end, she was left severely disabled as the result of brain damage. There were many complicating and contributing factors. The trial judge (Studdert J again) found the defendant negligent in delaying a CT scan, which when performed revealed a medulloblastoma. He thought that had this been discovered earlier, particular treatment would have given the chance of a better outcome, in that 25% of the brain damage might have been avoided. He estimated this chance at 40% and, as we have already seen, he held himself bound by Rufo v Hosking to award damages for the loss of this chance. He accordingly awarded 40% of 25% of the damages for the consequences of the brain damage.[104]
The defendant appealed and the NSW Court of Appeal once again upheld the appeal from Studdert J.[105] It refused to follow Rufo v Hosking. Surprisingly, it did this with only three judges sitting; normally a bench of five is convened when an existing decision is under challenge.[106] The three judges delivered a joint judgment in which they held that Rufo v Hosking and Gavalas v Singh were ‘plainly wrong’, being inconsistent with the principle that the plaintiff must prove that the defendant’s negligence caused or materially contributed to the harm. The judges in those cases had, in the opinion of the present court, also failed to consider the practical difficulties of the application of loss of chance. The court stated a number of other reasons why the doctrine should not be adopted. The court thought that it should go ahead with the overruling because there was ‛no evidence that insurance companies or members of the public have adapted their personal or commercial relations in reliance upon these authorities’.[107] However, Australasian Medical Insurance Ltd v CGU Insurance Ltd[108] seems to indicate that settlements of claims were made on the basis of loss of chance in Australia in recent years. The joint judgment in Gett v Tabet also indicated that, if the doctrine did apply, the chance in this case should have been assessed at only 15%.
The plaintiff applied to the High Court of Australia for special leave to appeal. Since the plaintiff wished to contend not only that damages were recoverable for loss of a chance, but also that the chance in this case was worth 40% and not 15% of the 25% of the brain injury which might have been avoided, the High Court was faced with the need to delve deeply into the facts. Normally, it avoids granting leave to appeal in such cases, but did so on this occasion.[109] When the appeal was heard, much of the respondent’s argument was directed towards showing that on the facts the plaintiff had not lost any chance at all.[110] In the end, the appeal was dismissed unanimously by a bench of six. Heydon J did so because, after a close analysis of the evidence, he held that the plaintiff had not proved the loss of any chance. On this view, the issue of law did not arise and he chose not to deal with it. Gummow ACJ similarly concluded that the loss had not been established, but he went on to hold that the law does not permit recovery of damages for the loss of a chance which is not more probable than not. The other main judgment was given by Kiefel J, who, as we have already seen, surveyed the law in both common law and civil law jurisdictions. The division of opinion to be found in these sources led her to accept, as we have also seen, that there is no correct solution. She concluded that the principle that the plaintiff must prove on the balance of probabilities that the defendant’s negligence caused the damage should be maintained and that the damage which is the gist of negligence should not be redefined in terms of chance. In a short joint judgment, Hayne and Bell JJ agreed with Kiefel J’s reasons and also with some statements of Gummow ACJ. Crennan J, in a short judgment which referred to some of the policy arguments, also agreed with Kiefel J.
Despite the clear rejection of loss of chance as a form of damage for the purposes of the tort of negligence, four of the judges did leave open the slight possibility of a claim succeeding in other circumstances. As we have seen, Gummow ACJ referred to the judgments of Southin JA in British Columbia and said it was unnecessary to consider them because this claim had not been pursued in contract.[111] His Honour also stated that the outcome of this case ‘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’.[112] Heydon J decided the case entirely on the facts and declined to express an opinion on the controversial issues of law argued, which had become moot between the parties.[113] The most enigmatic statement is found in the joint judgment of Hayne and Bell JJ. They agreed that loss of a chance was not damage for the purposes of a claim in negligence, which required the plaintiff to prove that he or she was worse off than if there had been no negligence. But they added:
It may be that other cases in which it might be said that, as a result of medical negligence, a patient has lost ‘the chance of a better medical outcome’ (for example, a diminution in life expectancy) differ from the present case in significant respects. ... [T]he language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant’s negligence was more probably than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so.[114]
There is one further decision of the NSW Court of Appeal that is of interest. Sydney South West Area Health Service v Stamoulis[115] was decided after Rufo v Hosking, but before the High Court decided Tabet. It was alleged that the defendant radiologists had negligently failed to interpret a mammogram as showing that the plaintiff was suffering from cancer. There was a risk, estimated at 38%, that the cancer would have metastasised even if the mammogram had been correctly interpreted and the plaintiff treated. At the time when it was detected, the risk had increased to 42%. In fact, that risk eventuated and the cancer had spread, leading to the plaintiff’s death. The defendants sought to rely on loss of chance, contending that the plaintiff had lost a chance of only about 10%. Although it ordered a new trial on whether the defendants had been negligent, the Court of Appeal held that the plaintiff had sufficiently proved causation and damage at the first trial and that these issues should not be retried.[116] The court emphasised that one should not rely too heavily on statistics; it is the effect on the individual which must always be ascertained. If 38% of individuals would have suffered metastasis after detection of the cancer at the earlier stage, 62% would not have. This made it more probable than not that the plaintiff’s cancer would not have metastasised. The fact that it did later metastasise was enough for the court to infer that it was caused by the delay. This reasoning resembles that in Hotson, which was not referred to. It takes as certain a past fact, though whether it is true or not cannot be known. In so far as one can rely on the statistics because there was nothing to differentiate this woman from any of the others, it is more logical to say that of the 42% of persons in whom metastasis occurs after detection at the later stage, 38% were those in whom that would have occurred after detection at the earlier stage. It was therefore much more probable that the plaintiff was one of the original cohort of 38% than one of the extra 4% resulting from the delay and the plaintiff should not have been taken to have proved causation on the balance of probabilities. On the other hand, she did lose a chance of being cured, represented by the difference between 62% and 58%. People might well be prepared to pay money to someone able to give them a 62% chance of being cured as opposed to a 58% chance. The proper way to assess the damages, I suggest, would be to calculate the damages on the basis that the defendants’ negligence did cause the harm, but to reduce them by 38% because of the chance that it would have happened anyway.
3. Principle
One may accept that damage is the gist of the action in negligence.[117] It would be unfortunate if Gummow ACJ’s reference to Southin JA’s ‘foray into history’[118] encouraged claims to be brought in contract in an attempt to circumvent the decision in Tabet. The Ipp report was anxious to prevent any escape from its recommendations relating to personal injury or death resulting from negligence by bringing claims in contract (or for breach of statutory duty or any other cause of action).[119] The legislation that followed complied with this recommendation.[120]
Thus the plaintiff must prove some damage before he or she may succeed in a claim based on negligence. The plaintiff must also prove that such damage was caused by a breach of the defendant’s duty of care. However, this depends on what is regarded as damage.[121] Until Tabet, there was nothing to prevent Australian courts from regarding loss of a chance of avoiding physical harm as sufficient damage for an action in negligence. It depends on policy, not principle. For instance, the courts have said that a transient emotional response — such as grief, sorrow, distress, embarrassment — is insufficient, but a recognisable psychiatric injury is sufficient.[122]
There are two problems that emerge from treating loss of chance as actionable damage. The one is that the limitation period would start to run as soon as the loss occurred (or under some statutes, as soon as the plaintiff could reasonably discover that the loss of chance had occurred). If the plaintiff defers commencing action to see whether the less favourable outcome does in fact occur, time might expire before it does. The plaintiff would then have to rely on the court’s discretion to extend the time where that is available. The other problem is that if action is commenced while the outcome is still uncertain, the plaintiff will inevitably be undercompensated if the unfavourable outcome does occur, or overcompensated if it never does. A possible solution is to award provisional damages for the immediate consequences and allow the plaintiff to return to recover additional damages if the chance of an unfavourable outcome eventuates.[123] However, it would be better to lay down a rule confining the remedy to ‘closed’ cases, ie where the cause of action accrues only when the less favourable outcome has actually occurred.[124]
Critics of the doctrine of loss of chance have made several objections to its adoption in medical negligence cases. Some of these are based on arguments that —
Each of these will be considered briefly.
Determinacy/indeterminacy
When we say that the plaintiff had a 40% chance of survival, we are using statistics that apply to people in general, not to the plaintiff in particular. That is, there is a group of people with particular genes and who behave in a particular way (eg, they do not smoke), who will survive; and there is another group with different genes or who behave differently, who will not survive for 5 or 10 years. 40% of people fall into the first group and 60% fall into the second. We just do not know which group the plaintiff falls into. As Lord Hoffmann said in Gregg v Scott, ‘Everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.’[125] According to Lord Hoffmann in this case, the burden of proof of causation will be relaxed only in cases of true indeterminacy or in narrow exceptions like Fairchild v Glenhaven Funeral Services Ltd.[126] However, in Barker v Corus (UK) Ltd[127] he reinterpreted the Fairchild decision so that it was no longer an exception to proof of causation, but as holding that an increase in the risk was itself damage in that type of case. Similarly, we could reinterpret the situation where we do not know into which category the plaintiff falls by allowing for the chance that the plaintiff would have fallen into one group rather than the other. If the court can redefine the damage in terms of risk when the unknown factor is whose asbestos fibre or fibres caused the plaintiff’s mesothelioma, it could equally redefine the damage in the medical negligence context as loss of the statistical chance of a more favourable outcome. This is what the Supreme Judicial Court of Massachusetts did in Matsuyama. However, it was rejected by Baroness Hale in Gregg v Scott[128] and by the High Court in Tabet.
Departure from principle that onus rests on plaintiff to prove causation on the balance of probabilities
In Matsuyama, the court, having pointed to the inadequacy and unfairness of the all-or-nothing rule,[129] observed that nevertheless the unsettled boundaries of the alternative, the loss of chance doctrine, had left it open to criticisms.[130] It found it convenient to address those criticisms in delineating the proper scope of the solution it was adopting.[131] Among other things, it pointed out that it was not modifying the rule that the plaintiff must prove the damage on a preponderance of the evidence. The plaintiff still has to prove on the balance of probabilities that there was a chance that had been lost. This is only true if the court is prepared to redefine the damage as the lost chance of a more favourable outcome. In general, proving an increased risk is not sufficient to allow the plaintiff to succeed.[132]
Where will it all end?
Nearly every case involving causation could be recast as a chance case. For example, in an everyday motor accident case, it could be said that there was a 10%, 20%, 30% ... 90% chance that the collision would not have occurred if the defendant had applied the brakes more quickly. Or in a medical negligence case where the defendant negligently omitted to warn the plaintiff of a risk, it could be said that there was a 10%, 20%, 30% ... 90% chance that the plaintiff would not have undergone the operation if the defendant had given the appropriate warning. The law is clear that in these cases the plaintiff must prove causation on the balance of probabilities. If the plaintiff does so, damages are awarded in full. In Amaca Pty Ltd v Ellis the court quoted a dictum of Dixon J, which they acknowledged was given in a very different context, part of which read that ‘courts have an advantage over other seekers after truth. For by their judgment they can reduce to legal certainty questions to which no other conclusive answer can be given’.[133] Kiefel J repeated the emphasised part in Tabet.[134] Baroness Hale in Gregg v Scott claimed that ‘[a] “more likely than not” approach to causation suits both sides’.[135]
In Matsuyama the court said it that it was not expressing any views beyond medical negligence and cases where the risk had already occurred. If, as we shall see, we have an exception for solicitors, which the United States apparently does not, why should there not also be an exception for medical practitioners? The answer given by Baroness Hale in Gregg v Scott is that the former deals with economic loss and the latter with physical injury.[136] This does not seem a very satisfactory distinction.
Statistics are vague and uncertain
It is sometimes said that only in a rare case can evidence be confidently given as to the value of the chance that has allegedly been lost. Even in common types of disease, it is often unknown precisely what the survival rate is. Sometimes in cancer cases, for example, the size of the tumour when it should have been diagnosed can only be guessed at.[137] Cases like Tabet deal with uncommon situations, in which the chances are largely speculative. This was certainly so on the facts themselves, where a very detailed analysis of the evidence was required to show that the plaintiff had not lost any chance at all and there were very different estimates between the trial judge (40%) and the NSW Court of Appeal (15%).[138]
In Matsuyama the court justified its decision to confine the doctrine to actions for medical malpractice by maintaining that statistics in the treatment of different cancers at their different stages were much more robust than in other areas. They would certainly be more reliable than the prediction of the outcome of litigation, which as we shall see is regularly performed in actions against solicitors who have negligently allowed the limitation period against their clients to elapse. We shall also see that in Chaplin v Hicks,[139] the original case recognising loss of chance — in a beauty contest — the court allowed it to be answered by the jury in round terms.[140]
In Rufo v Hosking,[141] Hodgson JA warned that the chance ‘must be inherent in the circumstances, not merely an artefact of the way evidence is presented in the case’. He explained:
[I]f it appears to be a plain fact as to whether treatment would or would not have been successful, and the element of uncertainty arises merely from different expert views, then the plaintiff will not be compensated for the chance that one expert might be correct. On the other hand, if it appears that the very best medical science can do is to say that the treatment had a quantifiable chance of success, then in my opinion that can be treated as a valuable chance for the loss of which a plaintiff can be compensated. As with other questions concerning causation, a common sense approach should be taken to the question of whether a valuable chance has been lost, or whether the situation is rather one where one or other alternative would definitely have occurred, and the only uncertainty is due to imperfections in the evidence.
4. Analogy
We have already seen that the loss of a commercial opportunity was treated as damage for the purposes of the Trade Practices Act 1974 (Cth) in Sellars v Adelaide Petroleum NL,[142] and that the court there said the same principle would apply in contract and tort. In Sellars Mason CJ, Dawson, Toohey and Gaudron JJ delivered a single joint judgment, while Brennan J delivered a concurring one, in which he adhered to a narrower view than the rest of the court which he had expressed in a case of solicitors’ negligence, Johnson v Perez.[143] In Tabet Gummow ACJ and Kiefel J mostly referred to the judgment of Brennan J, while largely ignoring what was said by the majority. They distinguished Sellars as a case concerned with the loss of a commercial opportunity, whose value could be readily seen. Gummow ACJ took a similar view of Chaplin v Hicks,[144] the well known contract case where the English Court of Appeal upheld a jury’s award of £100[145] as damages for loss of the chance of winning a beauty contest leading to a theatrical engagement. The plaintiff in Chaplin obviously could not have assigned her right to participate in the beauty contest any more than a patient can assign the right to have a doctor exercise reasonable care in diagnosing, advising and treating the patient. Now, however, that the law of champerty and maintenance has been relaxed, a group of patients whose breast screening mammograms were all misread,[146] could, if accorded a right to damages for loss of a chance, obtain litigation funding in return for payment over of part of the damages.[147] Of course, a breach of contract entitles the innocent party to damages without proof of loss. Ordinarily, however, no more than nominal damages will be awarded for breach of contract unless the plaintiff proves actual loss.
The principle of Chaplin v Hicks has been repeatedly applied in claims against solicitors by their clients, for instance where the solicitors negligently allowed limitation periods for the bringing of the clients’ actions against third parties to expire or have failed to prosecute the litigation diligently. In this context, the High Court in Johnson v Perez said that it did not matter whether the claim was brought against the solicitors in contract or tort.[148] In this case, the plaintiff’s original action was dismissed for want of prosecution. The solicitors were held to have been negligent. The plaintiff was held entitled to damages for loss of the chance of success in the original action. In this type of case, it is not necessary to show that it is more likely than not that the plaintiff would have succeeded in the litigation if the chance had not been lost.
The following are some examples of the assessment of damages in claims against solicitors. In Sweeney v Attwood Marshall (a firm),[149] the chance of the plaintiff succeeding in an action for personal injury was about one-third. If he did succeed, the damages would have been about $250,000. Probably, there would have been a finding of a high level of contributory negligence. Allowing for this and the refund of the Commonwealth benefits the plaintiff had received, the damages would have been about $35,000. It was held that the solicitors were liable for $10,000 for the loss of the chance of recovering this amount.
As was noted in Nikolaou v Papasavas, Phillips & Co,[150] the court in such cases must assess not only the chance of being awarded damages in the original action, but also the likelihood of their being paid. That was said not to be a problem in that case because the original defendant would have been compulsorily insured. It was a problem in the Privy Council case of Phillips & Co v Whatley (Gilbraltar).[151] There the chance of the plaintiff succeeding in an action against the employer was estimated at 70%. But the employer was in liquidation. Although the plaintiff could sue the employer’s insurers directly, the insurers were entitled to rely on the defence that they had not been notified of the claim. The chance that they would not do so was estimated at 40%. Therefore, it was held that the damages against the solicitor should be 28% (40% x 70%) of the full value of his injuries.
I chose the above two cases because the chance was assessed at less than 51%. But in all such cases, the chance has to be valued on the probabilities and possibilities, even where it is greater than 50%. For example, in Heenan v Di Sisto[152] there were two contingencies, valued at 80% and 70%, one of which was dependent on what a third party would have done. When multiplied together, that comes to 56%, which the NSW Court of Appeal rounded to 60%.
Where the claim is dependent on what the plaintiff would have done, the plaintiff must prove on the balance of probabilities what he or she would have done. For example, the plaintiff must show that, if properly advised by the solicitors, he or she would have issued instructions to proceed with the litigation, or entered into the contract, as the case may be.[153] The same distinction was made before Tabet in medical negligence cases that applied loss of chance. This led to a distinction between, on the one hand, failure to warn and, on the other, diagnosis and treatment cases. A plaintiff who relies on non-disclosure must prove on the balance of probabilities what his or her response to the disclosure would have been. But where the plaintiff had no control over the events that would have occurred if the doctor had not been negligent, the pre-Tabet cases allowed the plaintiff to recover for loss of the chance that the event would have been favourable, even if it was less than 51%.[154] The distinction was accepted in Rufo v Hosking[155] before it was overruled by Tabet.
In Gregg v Scott Lord Hoffmann said that the solicitor cases can be explained only on grounds of policy.[156] It is to the policy issues in relation to medical negligence claims that I now turn.
5. Policy
A possible role of the law of negligence (if it has any) is to maintain standards, and provide an incentive to take care. But if loss of chance is not recognised, medical practitioners can be as careless as they like in any case where the chance of a better outcome is less than 51%. Baroness Hale’s answer in Gregg v Scott was that there are other incentives.[157] In Tabet Gummow ACJ noted the remarks of Baroness Hale that shifting the balance between plaintiff and defendant might assist in maintaining standards, but was of the opinion that ‘any such potential benefit to the public weal has to be weighed against, for example, the prospect of “defensive medicine” with emphasis upon costly testing procedures in preference to a sequential deductive approach to diagnosis and treatment’.[158] Kiefel J said that ‘[i]t would require strong policy considerations to alter the present requirement of proof of causation.’ She thought none were evident. She was ‘unpersuaded that denial of recovery in cases of this kind would fail to deter medical negligence or ensure that patients receive an appropriate standard of care’. She clearly had more confidence in the Australian healthcare system than the American one, since she contrasted the evidence of the defendant in Matsuyama that the particular contracts under which he and his associates practised placed pressure on them to keep costs down and prevented them from providing their patients with the best health care.[159] It is questionable that Australian doctors practise without any pressure to keep costs down and always provide optimum health care. The issue is whether the law of torts should reinforce the existing incentives towards the maintenance of standards. In Hill v Van Erp,[160] one of the reasons given by the High Court for holding a solicitor liable to a beneficiary for the negligent supervision of the execution of a will, was the importance of maintaining the standards of the profession.
In Tabet, however, Crennan J perceived policy considerations weighing against altering the present requirement of proof of causation in cases of medical negligence. These included:
the prospect of thereby encouraging defensive medicine, the impact of that on the Medicare system and private medical insurance schemes and the impact of any change to the basis of liability on professional liability insurance of medical practitioners.
So radical a change was the business of parliament, not the courts.[161] In this respect, she was echoing Lord Hoffmann in Gregg v Scott.[162]
A similar issue is whether the courts should be seen as possibly extending liability at a time when legislatures have been cutting back on the recovery of damages. The preamble to the terms of reference of the Ipp committee stated:
The award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another. It is desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death.[163]
The recommendations that emerged from the committee’s report largely fulfilled this objective. Some legislatures went even beyond the recommendations in limiting liability. However, there is a view that they went too far[164] and the ‘reforms’ appear to have stopped for the time being. The Hon David Ipp himself pointed out[165] that the decisions in Tame v New South Wales[166] and Cattanach v Melchior,[167] which respectively expanded the common law in respect of psychiatric injury and damages for the cost of bringing up a child conceived as the result of medical negligence, were given in the midst of the reforms. It is also possible that the adoption of loss of chance would be ‘revenue neutral’ if courts applied it to cases where plaintiffs currently recover full damages because they can satisfy the court that the chance exceeded 50%.
Conclusion
With Tabet v Gett[168] Australia has joined those common law jurisdictions which reject the doctrine of loss of chance in medical negligence cases. The High Court of Australia refused to modify the requirement that the plaintiff in such an action must prove on the balance of probabilities that the defendant’s negligence caused or contributed to the occurrence of the physical harm of which the plaintiff complains. It also refused to recognise that loss of chance in itself could constitute damage for the purposes of the tort of negligence. It distinguished cases where the High Court itself has allowed damages for loss of a commercial opportunity and ignored the analogy of the liability of solicitors.[169] Its policy consideration was extremely limited. It left open a tiny window for cases based on contractual reasoning, and possibly some other unspecified cases, but litigants would be wise not to embark on such a course because of the high cost of failure, which appears almost inevitable. This case confirms the view that the stance of the current members of the High Court is overwhelmingly conservative.[170]
[∗] Professor Emeritus, Law School, The University of Melbourne. This paper was presented at the Obligations V conference held at the University of Oxford, 14-16 July 2010.
[1] S Perry, ‘The Role of Duty of Care in a Rights-Based Theory of Negligence Law’ in A Robertson and T H Wu (eds), The Goals of Private Law, Hart Publishing, Oxford and Portland, Oregon, 2009, p 79 at pp 92˗9.
[2] D Nolan, ‘Causation and the Goals of Tort Law’ in ibid, p 165 at pp 179-90.
[3] There is, however, a problem in seeking to apply the doctrine of loss of chance to a case of wrongful death in Australia (see below n 61).
[4] National Patient Safety Agency, Delayed Diagnosis of Cancer: Thematic Review, National Patient Safety Agency, London, 2010, p 12 ‘Healthcare practitioner or provider delay’ <http://tinyurl.com/23ef3x3> (accessed 26 May 2010).
[5] Delay may occur at this stage, too: see ibid, p 13 ‘System delay’.
[6] This is disputed by T A Weigand, 'Lost Chances, Felt Necessities, and the Tale of Two Cities' (2010) 43 Suffolk U L Rev 327 at 366-70 (‘A substantial and authoritative body of science and research demonstrates that the true state of modern medicine exhibits much controversy and debate about whether early detection results in better outcome for many chronic diseases, including many forms of cancer.’)
[7] National Patient Safety Agency, above n 4, p 6.
[8] Ibid, p 5.
[9] Measured by survival only. The NPSA report also observes that ‘delayed diagnosis can also have a negative effect on quality of life, with the use of more toxic treatments when cancer is diagnosed at an advanced stage and an increase in psychological distress’: ibid, p 6. Plaintiffs should have no difficulty in satisfying the ordinary ‘but for’ test in respect of this harm.
[10] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576.
[11] [2009] HCA 48; (2009) 239 CLR 420; 260 ALR 628.
[12] [1972] UKHL 7; [1972] 3 All ER 1008 (HL).
[13] [2002] UKHL 22; [2003] 1 AC 32 (HL); [2002] 3 All ER 305.
[14] [2006] UKHL 20; [2006] 2 AC 572 (HL); [2006] 3 All ER 785.
[15] (1997) 33 BCLR (3d) 171 (CA).
[16] (2001) 90 BCLR (3d) 101 (CA), leave to appeal refused by the Supreme Court of Canada (20 Dec 2001).
[17] [1990] HCA 20; (1990) 169 CLR 638; 92 ALR 545.
[18] [1970] AC 166 (HL); [1969] 2 All ER 178.
[19] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812.
[20] H Luntz, ‘Loss of Chance’ in I Freckelton and D Mendelson (eds), Causation in Law and Medicine, Ashgate/Dartmouth, Aldershot, 2002, p 152 at pp 174-6.
[21] Laferriére v Lawson [1991] 1 SCR 541. The court indicated that the plaintiff would usually be able to recover damages for the sort of harm referred to in n 9 above.
[22] [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [125]- [131].
[23] L Khoury, Uncertain Causation in Medical Liability, Hart, Oxford, 2006, pp 108-14, 117-40; L Khoury, ‘Causation and Risk in the Highest Courts of Canada, England and France’ (2008) 124 LQR 103.
[24] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [120].
[25] See Hon Justice Beverley M McLachlin, ‘Negligence Law – Proving the Connection’ in N J Mullany and A M Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, Sydney, 1998, p 16 at pp 25-6. See also K Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed, Carswell, Scarborough, Ont, 1996, pp 764-76 (Laferrière would be persuasive, but not conclusive, in common law Canada).
[26] De La Giroday v Brough (1997) 33 BCLR (3d) 171 (CA) at [40].
[27] Ibid, at [42] (emphasis added). As already mentioned, her Ladyship held that the doctrine could be applied in contract: see above nn 15 and 16.
[29] (2003) 67 OR (3d) 737 (CA).
[30] See the Supreme Court Bulletin, 23 April 2004.
[31] (1997) 33 BCLR (3d) 171 (CA).
[32] Oliver v Ellison (2001) 90 BCLR (3d) 101 (CA) at [35].
[33] Ibid, at [67].
[34] Ibid, at [57].
[35] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [20].
[36] (1996) 186 CLR 71; 138 ALR 259.
[37] Ibid, at CLR 123.
[38] (2009) 236 CLR 573; 252 ALR 400.
[39] Ibid, at [125].
[40] D Mendelson, ‘Devaluation of a Constitutional Guarantee: The History of Section 51 (xxiiiA) of the Commonwealth Constitution’ [1999] MelbULawRw 14; (1999) 23 MULR 308.
[41] [1988] UKHL 1; [1987] AC 750 (HL); [1987] 2 All ER 909.
[42] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812.
[43] See, eg, Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [144] per Kiefel J (‘Gregg v Scott confirmed for the United Kingdom that the general standard of proof should be maintained with respect to claims for damages for medical negligence’).
[44] Reported with the decision of the House of Lords at [1988] UKHL 1; [1987] AC 750; and separately at [1987] 1 All ER 210.
[45] See [1988] UKHL 1; [1987] AC 750 at 782 per Lord Bridge, 785-9 per Lord Mackay, 793 per Lord Ackner. Lords Brandon and Goff agreed with all three.
[46] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812.
[47] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [16]. See also Kiefel J at [131].
[48] Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [227].
[49] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [144].
[50] J H King Jr, ‘Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences’ (1981) 90 Yale LJ 1353. See also J H King Jr, ‘“Reduction of Likelihood” Reformulation and Other Retrofitting of the Loss-of-A-Chance Doctrine’ (1998) 28 U Mem L Rev 491 (King, ‘Reformulation’). The differing attitudes in the different jurisdictions in the United States are described in J D Hodson, ‘Medical Malpractice: "Loss of Chance" Causality’ 54 ALR 4th 10 (originally published in 1987 and updated with cumulative supplements). See also Weigand, above n 6, at 351-63 (discussing also legislative responses to some of the decisions).
[51] Restatement (Third) of Torts: Liability for Physical Harm s 26, Comment n, which contains references to some of the literature on the topic. For a behavioural psychological attempt to explain why some courts have recognised loss of chance in medical malpractice, but not in asbestos cases, see B Shnoor, ‘Loss of Chance: A Behavioral Analysis of the Difference between Medical Negligence and Toxic Torts’ (2009) 33 American Journal of Trial Advocacy 71.
[52] 452 Mass 1; 890 NE 2d 819 (Mass, 2008).
[53] 452 Mass 38; 890 NE 2d 806 (Mass, 2008).
[54] 272 SW 3d 146 (Ky, 2008).
[55] For a comparison of Matsuyama and Kemper, see Weigand, above n 6, at 375-81.
[56] See Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [21]- [23] (Gummow ACJ), [132]-[139] (Kiefel J).
[57] Matsuyama v Birnbaum 452 Mass 1; 890 NE 2d 819 at 832 (‘we recognize loss of chance not as a theory of causation, but as a theory of injury ... the plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome’).
[58] 890 NE 2d 819 at 838-9 (‘A ... more challenging issue is how to calculate the monetary value for the lost chance ... The formula aims to ensure that a defendant is liable in damages only for the monetary value of the portion of the decedent’s prospects that the defendant’s negligence destroyed’ (emphasis in the original)).
[59] Ibid, at 840 (emphasis in the original).
[60] Ibid, at 839.
[61] Referring to previous decisions of its own, the Matsuyama court rejected the rule in Baker v Bolton [1808] EWHC KB J92; (1808) 1 Camp 493; 170 ER 1033, and held that wrongful death actions in Massachusetts were now governed by the common law, not statute: see Matsuyama 890 NE 2d 819 at 835-8. An Australian court would not be able to do so (see Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 (CA), holding itself bound by Woolworths Ltd v Crotty [1942] HCA 35; (1942) 66 CLR 603 to continue to apply the rule in Baker v Boltin). The typical Australian wrongful death statute, following Lord Campbell’s Act, requires the death to have been caused by the defendant’s act or neglect.
[62] Eg, Taylor v Scott [1966] 1 NSWR 454 (CA). The same thing was done in England in an unreported part of the well-known case of Smith v Leech Brain & Co Ltd [1962] 2 QB 405, where ‘His Lordship [made] a substantial reduction from the figure taken for the dependency because of the fact that the plaintiff’s husband might have developed cancer even if he had not suffered the burn’ (at 416).
[63] Matsuyama v Birnbaum 452 Mass 1; 890 NE 2d 819 at 840.
[64] [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [1] per Gummow ACJ.
[65] Gett v Tabet (2009) 254 ALR 504 at [388].
[66] Eg, Civil Liability Act 2002 (NSW) s 5.
[67] Gett v Tabet (2009) 254 ALR 504 at [384].
[68] Ibid, at [385].
[69] Commonwealth of Australia, Review of the Law of Negligence: Final Report, Canberra, 2002, <http://tinyurl.com/28tf3zl> (accessed 22 April 2010).
[70] Ibid, paras 7.25-7.49.
[71] Ibid, paras 7.27-7.36.
[72] [1956] UKHL 1; [1956] AC 613 (HL).
[73] [2002] UKHL 22; [2003] 1 AC 32 (HL); [2002] 3 All ER 305
[74] See, eg, Civil Liability Act 2002 (NSW) s 3B(1)(b); Wrongs Act 1958 (Vic) s 45(1)(e).
[75] Commonwealth of Australia, above n 69, paras 7.35-7.36.
[76] Ibid, Recommendation 29(a).
[77] Eg, Civil Liability Act 2002 (NSW) s 5E; Wrongs Act 1958 (Vic) s 52.
[78] (1994) 179 CLR 332; 120 ALR 16.
[79] In the Wrongs Act 1958 (Vic) s 51(2) and the Civil Liability Act 2002 (WA) s 5C(2), the word ‘appropriate’ replaces ‘exceptional’; while the Civil Liability Act 2003 (Qld) s 11(2) and the Civil Liability Act 2002 (Tas) s 13(2) retain ‘exceptional’ (though the Queensland Act spells it out a little more fully). In the Civil Liability Act 1936 (SA) s 34(2) and the Civil Law (Wrongs) Act 2002 (ACT) s 45(2) the conditions for applying Fairchild are stated.
[80] Though the Civil Liability Act 1936 (SA) actually refers to Fairchild in a footnote to its corresponding section, s 34(2).
[81] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434; 178 ALR 577 at [24]- [25] (McHugh J), [87] (Gummow J), [153]-[158] (Kirby J).
[82] For the difficulties this presents, see, eg, Elbourne v Gibbs [2006] NSWCA 127; BC200603589. Similar provisions are found in Queensland, Tasmania and Western Australia, but not in the other jurisdictions.
[83] Eg, Tran v Lam (NSW SC, Badgery-Parker J, 20 June 1997, unreported, BC9705945) (retracting own contrary view in Woods v Lowns, 9 February 1995, in a part of the judgment not reported in (1995) 36 NSWLR 344); McInnes v Ahluwalia [1999] NSWSC 818; BC9904583 (damages halved because only 50% chance of cure); Sturch v Willmott (Qld SC, Thomas J, 13 April 1995, unreported, BC9505737) (appeal by plaintiff successful in having one head of damages increased, Sturch v Willmott [1997] 2 Qd R 310 (CA), but question of loss of chance not dealt with on appeal); Locher v Turner (1994) [1995] Aust Torts Reps 81-336 (Qld SC), appeal dismissed Turner v Locher (Qld CA, McPherson & Pincus JJA & Byrne J, 21 April 1995, unreported, BC9505744); Talbot v Lusby (Qld SC, Fryberg J, 14 July 1995, unreported, BC9506006); Brown v Willington [2001] ACTSC 100; BC200106643, appeal dismissed Mouratidis v Brown [2002] FCAFC 330; BC200206610.
[84] Eg, Veivers v Connolly [1995] 2 Qd R 326 (reduction of 5% for chance that plaintiff would not have had abortion if plaintiff had diagnosed rubella); Wood v Queensland Medical Laboratory (a firm) (Qld SC, Cullinane J, 16 December 1994, unreported, BC9404205) (90% chance that melanoma would have been cured); Talbot v Lusby (Qld SC, Fryberg J, 14 July 1995, unreported, BC9506006) (no discount for finding of past fact as to type of cancer from which plaintiff suffering, but damages assessed on basis of 90% chance of cure); Sturch v Willmott (Qld SC, Thomas J, 13 April 1995, unreported, BC9505737) (refusal to shut eyes to substantial chance that growth already cancerous), appeal upheld on different point, [1997] 2 Qd R 310 (CA).
[85] Board of Management of Royal Perth Hospital v Frost (WA FC, Malcolm CJ, Rowland & Wallwork JJ, 26 February 1997, unreported, BC9700642); Gavalas v Singh [2001] VSCA 23; (2001) 3 VR 404 (CA); Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA).
[86] Board of Management of Royal Perth Hospital v Frost (WA FC, Malcolm CJ, Rowland & Wallwork JJ, 26 February 1997, unreported, BC9700642).
[87] [2001] VSCA 23; (2001) 3 VR 404 (CA).
[88] Compare G Masel, ‘Damages in Tort for Loss of Chance’ (1995) 3 TLJ 43 at 52.
[90] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [13].
[91] Gavalas v Singh [2001] VSCA 23; (2001) 3 VR 404 (CA) at [15].
[92] Ibid, at [43].
[93] [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA).
[94] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [13].
[95] Tabet v Mansour [2007] NSWSC 36; BC200700483.
[96] [2006] NSWSC 1307; BC200609964.
[97] (1999) 197 CLR 269; 162 ALR 540 at [128]-[130].
[98] Compare Renzi v Paredes 452 Mass 38; 890 NE 2d 806 (Mass, 2008).
[99] [2005] SASC 155; (2005) 91 SASR 378 (FC) at [209]–[211].
[100] Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 (CA).
[101] [1990] HCA 20; (1990) 169 CLR 638; 92 ALR 545.
[102] Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [221]- [224].
[103] [2006] NSWCA 12; (2006) Aust Torts Reports 81-826; 3 DDCR 398 (NSW CA).
[104] Tabet v Mansour [2007] NSWSC 36; BC200700483.
[105] Gett v Tabet (2009) 254 ALR 504 (NSW CA).
[106] See, eg, Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 (CA); Blacktown City Council v Hocking [2008] NSWCA 144; (2008) Aust Torts Reports 81-956 (NSW CA).
[107] Gett v Tabet (2009) 254 ALR 504 (NSW CA) at [389].
[108] [2009] QSC 235; BC200907779. See also the appeal, Australasian Medical Insurance Ltd v CGU Insurance Ltd [2010] QCA 189; (2010) 271 ALR 142 at [7], which quotes the judgment of the Chief Justice in the court below (at [2]) as showing that the original claim (in respect of which this claim for contribution arose) was for ‘negligence, on the basis that QML failed properly to interpret the results of a pap smear on 18 February 1993, a failure which resulted in a lost opportunity to prevent the development of the cervical cancer which subsequently afflicted her’ and that damages were paid on that claim. See also the statement of agreed facts, quoted at [28] from the Chief Justice’s judgment (at [23]).
[109] [2009] HCATrans 209 (4 September 2009).
[110] See [2009] HCATrans 303 (12 November 2009) and [2009] HCATrans 304 (13 November 2009).
[111] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [20].
[112] Ibid, at [27].
[113] Ibid, at [97]-[98].
[114] Ibid, at [69].
[115] [2009] NSWCA 153; BC200906518.
[116] The plaintiff was successful in proving negligence at the retrial and was awarded the damages assessed at the first trial ($405,990.15), which had not been remitted by the Court of Appeal. The plaintiff then withdrew an application for special leave to appeal to the High Court, which had been filed pending the outcome in Tabet, except as to costs: see [2010] HCATrans 209 (10 August 2010).
[117] J Stapleton, ‘The Gist of Negligence’ (1988) 104 LQR 213; J Stapleton, ‘The Gist of Negligence: Part II’ (1988) 104 LQR 389.
[118] Oliver v Ellison (2001) 90 BCLR (3d) 101 (CA) at [57].
[119] Commonwealth of Australia, above n 69, Recommendation 2 (headed ‘Overarching recommendation’).
[120] Eg, Civil Liability Act 2002 (NSW) s 5A; Wrongs Act 1958 (Vic) s 44.
[121] See D Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 MLR 59; Nolan, above n 2.
[122] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317; 191 ALR 449.
[123] This is allowed in England under the Civil Procedure Rules 1998 Pt 41. In Australia it is available only in respect of dust diseases under the Dust Diseases Act 2005 (SA); Dust Diseases Tribunal Act 1989 (NSW) s 11A; Dust Diseases Tribunal Rules (NSW) s 5. The Law Reform Commission (NSW), Provisional Damages, Report No 78, NSWLRC, Sydney, 1996, recommended their extension to all personal injury actions, but the recommendation was not implemented.
[124] See King, ‘Reformulation’, above n 50, at 544 (‘operation of the loss-of-a-chance doctrine should be suspended, with respect to the unmaterialized effects, until they actually materialize’), cited in Matsuyama v Birnbaum 452 Mass 1; 890 NE 2d 819 (Mass, 2008) at n 33 in stating that the court was not deciding whether the doctrine adopted by the court applied to future harms.
[125] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [79]. See also A Beever, ‘Gregg v Scott and Loss of a Chance’ [2005] UQLawJl 10; (2005) 24 UQLJ 201.
[126] [2002] UKHL 22; [2003] 1 AC 32 (HL); [2002] 3 All ER 305.
[127] [2006] UKHL 20; [2006] 2 AC 572 (HL); [2006] 3 All ER 785.
[128] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [213]- [214], [221]-[227].
[129] 452 Mass 1; 890 NE 2d 819 (Mass, 2008) at 830-1.
[130] Ibid, at 831.
[131] Ibid, at 831-5.
[132] See, eg, Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 245 ALR 653 (HCA); Amaca Pty Ltd v Ellis; [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576.
[133] [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576 at [6], citing Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 340; [1948] HCA 7 and adding the emphasis.
[134] [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [113].
[135] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [195].
[136] Ibid, at [218]-[220].
[137] See Weigand, above n 6, at 366-7.
[138] See also Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [213]- [215] per Baroness Hale, referring to the facts of the case itself and also to those in Rufo v Hosking.
[140] If abstract probabilities alone came into the matter, the plaintiff would have been entitled to damages of about £161. She had four chances in 50 of an engagement at £5 per week (ie 4/50 of £780), four chances in 46 of an engagement at £4 per week (ie 4/46 of £624) and four chances in 42 of an engagement at £3 per week (ie 4/42 of £468). Allowing for the possibility of employment elsewhere, for other contingencies (eg illness) and for early receipt of some of the money, the amount awarded seems to have been remarkably fair. (J M Keynes, A Treatise on Probability, Collected Writings ed, Macmillan, London, 1973, p 29 n 1, regarded it as too high on the ‘doctrine of averages’ alone.) The jury would also have had the advantage of seeing the plaintiff and would have been entitled to give weight to the plaintiff’s having headed the contestants in her own district in the elimination contest.
[141] [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA) at [10].
[142] (1994) 179 CLR 332; 120 ALR 16.
[143] [1988] HCA 64; (1988) 166 CLR 351; 82 ALR 587.
[145] ‘[A]t the time a not inconsiderable sum’: Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [48] per Gummow ACJ. His Honour also filled in the background of the defendant in the action and referred to the counsel specifically by name.
[146] See, eg, BBC News, 17 September 2009, ‘Cancer cases found after errors’ <http://tinyurl.com/2df7pkm> (accessed 26 May 2010), reporting that 18 women with breast cancer had initially been told that they did not have the disease and ‘it was “not possible” to say if the women's prognosis was affected’.
[147] Mobil Oil Australia Pty Ltd v [State of] Victoria [2002] HCA 27; (2002) 211 CLR 1; 189 ALR 161 (upholding validity of state group action legislation); Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180; BC201001051 (class action for victims of Vioxx); Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; (2006) 229 CLR 386; 229 ALR 58 (litigation funding in return for share of proceeds not abuse of process).
[148] Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351; 82 ALR 587. See also Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394; 82 ALR 617. In Canada, too, solicitors are concurrently liable for negligence in contract and tort: Central Trust Co v Rafuse [1986] 2 SCR 147.
[149] [2002] QSC 276; BC200205498; affirmed Sweeney v Attwood Marshall (a firm) [2003] QCA 348; BC200304537.
[150] [1989] HCA 11; (1989) 166 CLR 394; 82 ALR 617
[151] [2008] Lloyd’s Rep IR 111; [2007] UKPC 28; [2007] PNLR 27 (PC).
[152] (2008) 13 BPR 25 (NSW CA). See also Hammond Worthington v Da Silva [2006] WASCA 180; BC200607262 at [115]-[119].
[153] See Heenan v Di Sisto (2008) 13 BPR 25 (NSW CA) at [32], relying on authorities, including Allied Maples Group Ltd v Simmons & Simmons [1995] EWCA Civ 17; [1995] 4 All ER 907 (CA).
[154] See Tran v Lam (NSW SC, Badgery-Parker J, 20 June 1997, unreported, BC9705945).
[155] [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA).
[156] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [83].
[157] Ibid, at [216]-[217].
[158] [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [59].
[159] Ibid, at [151], referring to Matsuyama v Birnbaum 452 Mass 1; 890 NE 2d 819 (Mass, 2008) at 825 n 13.
[160] (1997) 188 CLR 159; 142 ALR 687
[161] Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227 at [102].
[162] [2005] UKHL 2; [2005] 2 AC 176 (HL); [2005] 4 All ER 812 at [90]. Contrast Lord Nicholls at [52]-[53] (financial burden on NHS matter of speculation and should not be exaggerated).
[163] Commonwealth of Australia, above n 69, p ix.
[164] See J J Spigelman, ‘Tort Law Reform: An Overview’ (2006) 14 Tort L Rev 5 at 14; The Hon Justice D A Ipp AO, ‘The Metamorphosis of Slip and Fall’ (2007) 29 Aust Bar Rev 150.
[165] Justice David Ipp AO, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 612.
[166] [2002] HCA 35; (2002) 211 CLR 317; 191 ALR 449.
[167] [2003] HCA 38; (2003) 215 CLR 1; 199 ALR 131.
[168] [2010] HCA 12; (2010) 240 CLR 537; 265 ALR 227.
[169] The question arises whether Tabet v Gett will influence Australian courts to re-evaluate the cases in which solicitors have been held liable for loss of chance. It has already been cited in such a case for the proposition that the plaintiff was ‘not entitled to damages merely because of the loss of an opportunity to consider what she might have done’: Firth v Sutton [2010] NSWCA 90; BC201002659 at [103]. Of course, this has always been so in solicitors’ cases where what the plaintiff would have done has been at issue.
[170] See, eg, D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; 214 ALR 92 (advocate’s immunity); Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; 226 ALR 391 (wrongful life); Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161; 227 ALR 46 (vicarious liability for independent contractors); Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200; 46 MVR 289 (non-delegable duty); Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215; 254 ALR 432 (police duty of care in prevention of suicide); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390; 260 ALR 606; 54 MVR 346 (publican’s duty of care); Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111; 263 ALR 576 (causation of lung cancer).
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