Case Reports

High Court rules on whether loss of chance should be extended to medical negligence claims

In Tabet v Gett [2010] HCA 12 (21 April 2010), the High Court of Australia unanimously held that damages are not recoverable for the loss of chance of a medical outcome unless the plaintiff can prove, on the balance of probabilities, that he or she would have had a better outcome had the defendant not been negligent.  The principal issue before the Court was whether Australian law permitted recovery of damages for "loss of chance" where a defendant's negligence deprives the plaintiff of a less than 50% chance of avoiding certain loss or damage.  The High Court judges (Gummow ACJ and Hayne, Heydon, Crennan, Kiefel and Bell JJ) unanimously dismissed the appeal in five separate judgments.  Notably, Gummow ACJ, Kiefel and Crennan JJ were particularly cautious to distinguish medical liability cases from commercial cases. 

This decision is consistent with the reasoning in Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5 and re-affirms that the relevant standard of proof in negligence actions is the balance of probabilities.  Damages for a loss of a chance or opportunity may only be awarded in very limited circumstances.