Case Name: Tabet v Gett
Ratio Decidendi: In Australia, a plaintiff in a medical negligence case must prove on the balance of probabilities that the negligence caused the injury. A mere loss of a chance of a better outcome (unless over 50%) is not sufficient to establish liability.
| Full Case Title & Citation: Tabet v Gett [2010] HCA 12 |
| Court: High Court of Australia |
| Date of Judgment: 21 April 2010 |
| Justices: Gummow ACJ, Hayne, Heydon, Crennan, Kiefel, and Bell JJ |
| Appellant: Reema Tabet (by tutor Ghassan Sheiban) |
| Respondent: Dr Maurice Gett |
| Areas of Law: Tort Law, Medical Negligence, Causation, Personal Injury |
Facts (Tabet v Gett)
Reema Tabet, a six-year-old child, suffered irreversible brain damage after a brain tumor diagnosis was delayed. She sued Dr. Maurice Gett, a pediatrician, for negligence, claiming that earlier diagnosis and treatment (specifically, a CT scan on 13 January 1991) could have improved her outcome.
Appeals and Judgment
The trial judge found that the doctor breached his duty of care by not ordering a CT scan on 13 January. However, it was not proven on the balance of probabilities that this breach caused the brain damage. The court awarded $610,000 for the “loss of a 40% chance” of avoiding some of the damage.
The Court of Appeal overturned the trial decision. It ruled that loss of a chance of a better outcome (less than 50%) is not recognized as compensable damage in Australian tort law. Since causation could not be established on the balance of probabilities, the defendant was not liable.
The High Court of Australia sided with the Court of Appeal. It held that Australian common law does not recognize “loss of a chance” (less than 50%) as compensable damage in personal injury cases. Damage must be proven on the balance of probabilities (i.e., more likely than not). Adopting such a “loss of chance” doctrine would radically change tort law, not just in medical cases but across personal injury law, which is a matter for Parliament, not the courts.
Gummow ACJ said as under:
“The appellant sought to stigmatize the respondent’s case as being that, because the likelihood of this better outcome was less than 50 per cent, it followed (a) that on the balance of probabilities the appellant would still have suffered as much as she did, and therefore (b) the chance, prospect or opportunity had no worth.
However, if the likelihood of a better outcome had been found to be greater than 50 per cent then on the balance of probabilities the appellant would have succeeded, not failed, on the main branch of her case in negligence. The question of principle thus becomes whether the law permits recovery in negligence on proof to the balance of probabilities of the presence of something else, namely a chance, opportunity, or prospect of an outcome the eventuation of which, however, was less than probable.”
References:
- https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2010/12.html
- https://www.hcourt.gov.au/assets/publications/judgment-summaries/2010/hca12-2010-04-21.pdf
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Ruchi is a legal research writer with an academic background in CA, MBA (Finance), and M.Com. She specializes in digesting and summarizing complex judicial decisions into clear and structured case notes for students and legal professionals.