ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett  HCA 12 (21 April 2010).
“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”.”
The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.
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ON THIS DAY IN 2004, the NSW Court of Appeal delivered Harvey & 1 Ors v PD  NSWCA 97. A doctor performing STD tests upon a couple has a duty before the tests are performed to obtain the couple’s consent to share the results.
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ON 19 NOVEMBER 1992, the High Court of Australia delivered Rogers v Whitaker  HCA 58; (1992) 175 CLR 479 (19 November 1992).
Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.
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ON 12 NOVEMBER 2014, the High Court of Australia delivered Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon  HCA 44 (12 November 2014)
The High Court held that Hunter and New England Local Health District did not owe a duty of care to the relatives of a man who was killed by a patient who had been discharged from the Taree Hospital into the deceased man’s care. No duty of care was owed by the hospital or the doctor because they were under statutory obligations under the Mental Health Act prohibiting the detention of a mentally ill patient unless the hospital’s medical superintendent was of the opinion that no other less restrictive care was appropriate and reasonably available.
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ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart  HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).
A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient, who suffered an infection, was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.
Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure with the actual care provided.
The court applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.
Per Gaudron J at :
“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”
Per McHugh J at :
“The question of causation is not resolved by philosophical or scientific theories of causation”
The Civil Liability Act 2002 has modified the common law position with regards to the common sense test and subjective approach to causation.
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ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior  HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003).
A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. She told the doctor that she believed that her right fallopian tube had been removed when she was 15. The doctor performed a tubal ligation on the left fallopian tube and made no further investigation regarding the right tube. As it turned out, the right tube had not been removed and the woman later fell pregnant, unintentionally.
The woman and her husband sued the doctor and the State of Queensland (who ran the hospital) seeking damages for negligence on the grounds that the doctor failed to advise the woman of the risks of conceiving without specific investigation of the right fallopian tube.
The woman and her husband were awarded damages for the costs of raising and maintaining the healthy but unintended child, despite those damages being for pure economic loss (ie not arising from any actual injury).
The Civil Liability Acts have since prohibited awards of damages for the costs of rearing or maintaining a child or the parents’ loss of earnings whilst rearing or maintaining a child.
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ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.
The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.
The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.
The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.
The significant features of the Act include:
- Statement of principles for determining negligence.
- Modification of causation test.
- No duty to warn of obvious risk.
- No liability for materialisation of inherent risk.
- No liability for harm suffered from obvious risks of dangerous recreational activities.
- No duty of care for risk warning of dangerous recreational activity.
- Standard of care for professionals.
- Contributory negligence can defeat a claim.
- Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
- Limiting interest.
- Restrictions for persons in custody.
- Restrictions for mental harm.
- Allocation of proportionate liability for concurrent wrongdoers.
- Limiting liability of public authorities.
- Restricting recovery for intoxicated persons.
- Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
- Apologies not to affect liability.
- Limiting damages for birth of a child.
- Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
- Costs restrictions.
The Act does not apply to claims (or parts of claims) regarding:
- Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
- Dust diseases.
- Motor Accidents and public transport accidents.
- Workers, Victims and Sporting Injuries compensation.
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