Tabet Vs Gett Case Study

The basis of the distinction drawn by the court in Tabet v Gett (2010) between medical chances and commercial chances is difficult to accept as logical. For one thing, the measure of damages in commercial cases is no less obtained from the value of the commercial opportunity sought to be gained than the measure of damages for the chance of a better medical outcome is obtained from the physical injury sustained. Furthermore, by suggesting that the chance of a better medical outcome is of less value compared to a commercial opportunity fails to take into consideration the extreme lengths many individuals would go to and the extreme amounts of money they would be willing to pay, in order to gain the chance of a better medical outcome. Consequently,
even if that better medical outcome never materialises, there is no doubt that many would regard the chance itself as valuable. It is essential, therefore, to highlight that the distinction drawn by the court can only be accepted on grounds of policy, not principle . This essay will begin by explaining the doctrine of loss of chance and its history in Australia and the United Kingdom and will then go on to consider the core arguments surrounding the differences between medical and commercial chances in the cases of Tabet v Gett (2010) and Gregg v Scott [2005] . Therefore, it will be argued that the High Court’s analysis in Tabet v Gett (2010) is unconvincing and that the High Court should not have denounced the doctrine of loss of chance for medical cases without fully assessing the consequences of such a dismissal.

To begin with, the doctrine of loss of chance has a multifaceted history in the Australian courts . While the High Court had made statements that both supported and opposed recovery of a loss of chance , it is not until the recent case of Tabet v Gett (2010) that the High Court attempted to consider whether loss of chance in medical cases was actionable. Generally, for a claim in negligence to be successful, the plaintiff must illustrate that the harm suffered was caused by a breach due to a breach of duty of care on the defendant’s behalf . In other words, the plaintiff must show that on the balance of probabilities that they had a chance greater than 50% of obtaining a better outcome in relation to the harm if the defendant had not been negligent . On the contrary, loss of chance involves cases where the plaintiff cannot satisfy the standard of proof, yet still seeks a remedy for loss of chance of a better outcome despite it being less than a 50% chance . Alternatively, less than even chances have been acknowledged in regards to commercial cases, the foundation being that commercial chances are more valuable even if they are less than the purported 50% standard . Moreover, this was an argument outlined in the English case of Gregg v Scott [2005] where the loss of chance doctrine experienced a blow similar to that of the case of Tabet v Gett (2010) in the High Court. For instance, in the case of Gregg v Scott [2005] , the House of Lords rejected by the majority the plaintiff’s claim for the loss of chance of a better outcome due to medical negligence after a failure to diagnose a cancerous tumour. It was argued that an acceptance of the loss of chance doctrine in medical cases was contrary to precedent, let alone the policy implications that would arise as a result . Despite this, it has been argued that the House of Lords applied a less strict interpretation to the loss of chance doctrine than the High Court . Stemmed from this is the fact that there was dissent in the minority of the House of Lords about the injustice resulting from such a dismissal . Moreover, what distinguishes the case of Gregg v Scott [2005] from Tabet v Gett (2010) is that in Gregg v Scott [2005] the plaintiff had sought damages for the increased risk of premature death for circumstances in which the risk had not materialised . As such, for the majority of the House of Lords are that the aforementioned issue made the case of Gregg v Scott [2005] difficult to use to decide broader questions of whether the loss of chance doctrine would apply in medical cases where the risk had actually materialised, in cases similar to that of the case of Tabet v Gett (2010) . As a result, the majority in the House of Lords concluded that this broader question remained unresolved. Therefore, this highlights that there is still some capacity to encompass the loss of chance doctrine in medical cases in the United Kingdom .

While there is still some hope for loss of chance in medical cases in the UK, the same cannot be said for medical cases in Australia, as demonstrated by the case of Tabet v Gett (2010) .
The case concerned an appeal of a medical negligence case regarding a child who was misdiagnosed until a CT scan revealed that she, in fact, had a brain tumour . The treating physician was then subsequently sued on the basis that since the physician had not performed the CT scan when the child had been misdiagnosed . Therefore the child had lost the chance to have the brain tumour treated before the sustaining of permanent brain damage . At first instance, the case succeeded but failed on appeal . Additionally, the High Court also rejected the claim, on the basis that there were no policy reasons that would allow for recovery of damages based on a less than even chance of a better medical outcome . In spite of this, the High Court did not eliminate the possibility that a claim in a future medical case above the purported 50% standard would be allowed . Meanwhile, the case of Tabet v Gett (2010) demonstrates that patients that suffer as a result of medical negligence in Australia will face large injustice issues specifically in cases of late diagnosis. Therefore, it is only fitting to highlight the High Court’s stance on commercial chances where the High Court rejected the appellant’s argument that the fact that Australia already recognises loss of chance in commercial cases means that loss
of chance in medical cases should also be recognised . Indeed, the High Court held that when a commercial opportunity has been lost as in the cases of Commonwealth v Amann Aviation Pty Ltd (1991) and Sellars v Adelaide Petroleum NL (1994) , it would be clearly evident that the lost opportunity was of value as long as there was significant chance of attaining a profit . Yet, a loss of chance in relation to obtaining a better medical outcome was held to only have value in relation to the loss suffered by the plaintiff . Consequently, it is difficult to understand the High Court’s contention that a patient’s hopes for recovery are not valuable. Moreover, to state this would be to undermine the assumption that patients are willing to go to great lengths in order to achieve the chance of a better medical outcome even if that chance is minimal.

In contrast, the dissenting judgment in the case of Gregg v Scott [2005] observed that if remedy is provided for loss of commercial opportunity or chance yet, is refused where medical negligence caused a lost chance of health or life than the law should be open to criticism .
Furthermore, the dissenting judges went on to argue that “justice requires that in the latter case as much as the former the loss of a chance should constitute actionable damage” . Indeed, it highlights that to allow for recovery for loss of chance in commercial cases while rejecting recovery for medical cases is inconsistent and irrational. In fact, one of the dissenting judges in the case of Gregg v Scott [2005] went on to argue that loss of chance in medical cases should be viewed as higher than loss of chance in commercial cases because “there is not much difference between the money one expected to have and the money one expected to have a chance of having: it is all money” . While loss of chance in relation to personal injury would create a difference between “the disease free state one ought to have and the chance of having a disease free state which one ought to have” . Even so, it is still not entirely clear nature of financial loss is relatively different to a loss of a better medical outcome. Anyway, even if it is accepted that such a difference exists, it fails to explain why the loss of chance of avoiding injury should not be considered actionable for the purposes of negligence
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Following a thorough analysis of the decision in Tabet v Gett (2010) and Gregg v Scott [2005] around the differences between medical and commercial chances, it is still unclear what the true distinction between medical chances and commercial chances is. As such, an analysis of the policy considerations will perhaps provide a clear distinction between medical and commercial chances.