Gett v Tabet [2009] NSWCA 76

Appeal Outcome: Appeal dismissed with costs by the High Court, 21 April 2010 [2010] HCA 12

New South Wales Court of Appeal

CITATION: Gett v Tabet [2009] NSWCA 76 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 July 2008, 31 July 2008, 1 August 2008

JUDGMENT DATE: 9 April 2009

JUDGMENT OF: Allsop P at 1; Beazley JA at 1; Basten JA at 1

(1) Allow the appeal and set aside orders (2) and (4) made in the Common Law Division on 9 February 2007; (2) In lieu thereof, order: (a) judgment for the second defendant, and DECISION: (b) the plaintiff to pay the second defendant's costs of the trial; (3) Order the respondent to pay the appellant's costs of the appeal; (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified; (5) Order the cross-appeal be dismissed; (6) Order the cross-appellant to pay the cross-respondent's costs of the cross-appeal.

CATCHWORDS: APPEAL – national integrated legal system – place of intermediate appellate courts within structure of Australian judicial system – departing from existing authority – principle of restraint – certainty in the law – English and Australian authority on doctrine of precedent - APPEAL – precedent – standard of reconsideration – Court of Appeal's power to depart from previous decisions of Court or co-ordinate courts – nature and quality of error – circumstances in which Court will depart from its earlier decisions – "plainly wrong" – "compelling reasons" – whether Rufo v Hosking should be followed – whether previous decision can be reconciled with principle or with authority – jurisprudential and pragmatic considerations - APPEAL – rehearing – nature of challenge to judgment below – appellate court's obligation to reach own conclusion – threshold for appellate intervention –limitations on appellate court to comprehend fully evidence and process of trial – resolution of medical experts' competing views – Supreme Court Act 1970 (NSW), s 75A - TORTS – medical negligence – harm – loss of a chance of better medical outcome – difficulties in identifying harm suffered – whether doctrine consistent with nature of harm in Civil Liability Acts – Civil Liability Act 2002 (NSW), Pt 1A, s 5 - TORTS – negligence – causation – loss of a chance of better medical outcome – whether Rufo v Hosking should be followed – whether Rufo should be followed – distinction between causation of loss and assessment of proven loss – alteration of principle of causation – proof of causation based on creation of risk, not damage on balance or probabilities – whether loss of a chance consistent with causation requirements in Civil Liability Acts – Civil Liability Act 2002 (NSW), Pt 1A, s 5E - TORTS – negligence – distinction between loss of a chance of better medical outcome and deprivation of commercial opportunity - TORTS – negligence – loss of a chance of a better medical outcome – coherence with principles of tort law – expansion and context of negligence law – review of authorities - WORDS AND PHRASES – "common law of Australia" – "compelling reasons" – "harm" – "loss of a chance" – "plainly wrong" – "rehearing"