Tabet v Gett [2010] HCA 12

HIGH COURT OF AUSTRALIA

GUMMOW ACJ,

HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

REEMA TABET (BY HER TUTOR GHASSAN SHEIBAN) APPELLANT

AND

DR MAURICE GETT RESPONDENT

Tabet v Gett [2010] HCA 12

21 April 2010

S259/2009

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with J L A Lonergan and J Chambers for the appellant (instructed by Slater & Gordon Lawyers)

N J Young QC with J K Kirk and K C Morgan for the respondent (instructed by Blake Dawson Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Tabet v Gett

Negligence – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent's delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

Negligence – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

Words and phrases – "balance of probabilities", "damage", "gist of the action", "loss of a chance of a better outcome", "standard of proof".

1. GUMMOW ACJ. The appellant suffers irreversible brain damage. She was born in 1984 and brought her action in the Supreme Court of New South Wales by her tutor, who is her uncle. The respondent, Dr Gett, was the second defendant in the action and at all material times was a registered medical practitioner practising as a paediatrician and a visiting medical officer at the Royal Alexandra Hospital for Children in Sydney. The events giving rise to the litigation took place when the appellant, then aged six years, was a patient at the hospital. Changes to the common law subsequently made by the Civil Liability Act 2002 (NSW) did not apply directly to this case. 2. The action was brought in negligence alone and there was no claim in contract. The appellant pleaded her case as one in which breach by the respondent of his duty to manage her with due care and skill caused or contributed to cause her injury, loss and damage, or, in the alternative, led to "the loss of an opportunity to avoid injury, loss and damage". The appellant at trial failed on the first ground but succeeded on the second. 3. There are two central issues. The first is whether in a claim arising from personal injury the law of negligence permits the bifurcation in this way of the nature of the actionable damage attributable to the same breach of duty, so that failure of the case on the first branch may be overcome by success on the second. In substance, the respondent contends that these are not true alternatives and that the law of negligence does not recognise as compensable damage the loss of opportunity in question here. The second issue is whether, in any event, the evidence sufficiently supported the favourable finding at trial on the claim for loss of opportunity.