In the case of Tabet v Gett (2010) 240 CLR 537, the High Court was forced to rule on the validity of awarding damages for a “loss of a chance” in medical negligence. In the judgement of this case the High Court considered the distinction between a Medical and Commercial “Lost Chance”. Following the English case Gregg v Scott [2005] 2 AC 176, the High Court unanimously rejected the claimants action for damages due to a lost chance at a better medical outcome. Gummow ACJ highlighted the difference between a loss of chance in contract, where the occurrence of a breach can bring the action, and negligence, where the action relies on if and when damage was sustained. Kiefel J contemplated that while lost commercial interests may readily be seen
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This approach meant that causation must have been proved to a likelihood of greater than 50%. The claimant was unable to fulfil the burden by medical standards and thus the action was lost. Compare this case to commercial action in a “lost chance” whereby it is arguably more likely to fulfil the burden of proof of the “chance” of a “better outcome” at court due to a perceivably easier measure of value of the loss in contract law, than the more ‘speculative’ situations that occur in the realm of medical negligence. Prior cases to Tabet v Gett indicated that Australian case law was moving towards awarding damages in medical negligence where a chance at a better outcome was lost,and many academics have noted the conservative standpoint the court took on this contentious issue. This is especial considering the more lenient stance on the doctrine of a ‘lost chance’ in the commercial realm. This begs the question, how does one quantify a chance or opportunity, in monetary value? Especially in awarding damaged for a loss of a chance less than probable. Their honours decided that the very concept of doing so with regards to claims of medical negligence would be contrary to the principles of common law and negligence and the law of causation specifically. In finding this and the reasons to be discussed, one may understand that …show more content…
In Taber, Kiefel J pointed out that Sellars v Adelaide Petroleum NL recognised that a lost opportunity “to obtain a commercial advantage is a loss or damage for the purpose s82(i) of the Trade Practices Act 1971 (Cth), where the cause of action arose under s 52(1) of that Act.” Compare this judgment decision to previous decisions, for example in Chaplin v Hicks, which were only based in contract where the breach of contract to “provide the chance itself gave rise to the loss of that chance”. In Sellars v Adelaide Petroleum NL, Brennan J advised that a lost opportunity “may or may not constitute compensable loss of damage” in tort where damage is the action, and thus must be proved one way or another. The appellant, accepting the loss of a commercial opportunity as an actionable damage, argued that not comparably, the loss of opportunity for a better medical outcome should be actionable as a person has an interest on their medical
This approach meant that causation must have been proved to a likelihood of greater than 50%. The claimant was unable to fulfil the burden by medical standards and thus the action was lost. Compare this case to commercial action in a “lost chance” whereby it is arguably more likely to fulfil the burden of proof of the “chance” of a “better outcome” at court due to a perceivably easier measure of value of the loss in contract law, than the more ‘speculative’ situations that occur in the realm of medical negligence. Prior cases to Tabet v Gett indicated that Australian case law was moving towards awarding damages in medical negligence where a chance at a better outcome was lost,and many academics have noted the conservative standpoint the court took on this contentious issue. This is especial considering the more lenient stance on the doctrine of a ‘lost chance’ in the commercial realm. This begs the question, how does one quantify a chance or opportunity, in monetary value? Especially in awarding damaged for a loss of a chance less than probable. Their honours decided that the very concept of doing so with regards to claims of medical negligence would be contrary to the principles of common law and negligence and the law of causation specifically. In finding this and the reasons to be discussed, one may understand that …show more content…
In Taber, Kiefel J pointed out that Sellars v Adelaide Petroleum NL recognised that a lost opportunity “to obtain a commercial advantage is a loss or damage for the purpose s82(i) of the Trade Practices Act 1971 (Cth), where the cause of action arose under s 52(1) of that Act.” Compare this judgment decision to previous decisions, for example in Chaplin v Hicks, which were only based in contract where the breach of contract to “provide the chance itself gave rise to the loss of that chance”. In Sellars v Adelaide Petroleum NL, Brennan J advised that a lost opportunity “may or may not constitute compensable loss of damage” in tort where damage is the action, and thus must be proved one way or another. The appellant, accepting the loss of a commercial opportunity as an actionable damage, argued that not comparably, the loss of opportunity for a better medical outcome should be actionable as a person has an interest on their medical