In our April 2009 edition of the Deacons Insurance Update we reported on the NSW Court Appeal’s decision in Gett v Tabet.

The Court ruled on the vexed issue of loss of a chance - where a defendant’s negligence lessens a plaintiff’s chances of avoiding greater loss or damage, but falls short of being causative of such loss or damage under traditional principles of legal causation. The Court of Appeal found against the plaintiff by returning to fundamental principles of causation, and overturning the decision in Rufo v Hosking (2004), previously allowing the plaintiff an award of damages where the plaintiff was only able to prove that a negligent act was causative of the loss of a chance of a better outcome, rather than being causative of actual loss.

On 6 May 2009, the plaintiff filed an application for special leave to appeal to the High Court. That application is yet to be heard.

Before the decision in Gett v Tabet, there had been a rise in the incidence of damages awards for loss of a chance, most commonly in medical negligence cases where misdiagnosis or, more frequently, delay in diagnosis deprives the patient of an opportunity to receive treatment which may have resulted in an improved outcome.

The Court of Appeal (comprising Allsop P, Beazley JA and Basten JA) distilled the nature of loss of a chance cases, noting that these cases only required the plaintiff to demonstrate that a failure (or delay) in diagnosis was causative of a loss of a chance of a better outcome, rather than requiring the plaintiff to demonstrate that the failure (or delay) was causative of the actual physical harm suffered by the plaintiff. The Court viewed this as both a reformulation of the law of tort, departing from conventional principles of causation, as well as a being contrary to causation principles in the Civil Liability Act 2002 (NSW) (and similar legislation in other states) requiring the plaintiff to bare the onus of proving that the negligence of the defendant was causative of the injury suffered.

The special leave application is due to be heard by the High Court on 4 September 2009. We will report on same and any resultant appeal.

Gett v Tabet [2009] NSWCA 76 application for special leave to appeal to the High Court.