The High Court's Lost Chance in Medical Negligence

Journal of Law & Medicine, Vol. 18, No. 2, pp. 275-283, 2010

ANU College of Law Research Paper No. 11-08

10 Pages Posted: 19 Dec 2010 Last revised: 9 Apr 2011

See all articles by Thomas Alured Faunce

Thomas Alured Faunce

Australian National University

Alexandra McEwan

affiliation not provided to SSRN

Date Written: December 18, 2010


In 2010 the High Court of Australia in Tabet v. Gett (2010) 240 CLR 537 [PDF] determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. A CT scan performed at that point showed a brain tumour. As Australia does not have a no-fault system providing compensation to cover the long-term care required for such a condition, the girl (through her parents and lawyers) sued her treating physician. She alleged that, because a cerebral CT scan was not performed when clinically indicated after the diagnosis of meningitis or encephalitis and before the lumbar puncture, she had "lost the chance" to have her brain tumour treated before she sustained permanent brain damage. She succeeded at first instance, but lost on appeal. The High Court also rejected her claim, holding unanimously that there were no policy reasons to allow recovery of damages based on possible (less than 50%) "loss of a chance" of a better medical outcome. The court held that the law of torts in Australia required "all or nothing" proof that physical injury was caused or contributed to by a negligent party. The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v. Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.

Keywords: Loss of a Chance, Medical Negligence, Causation, Late Diagnosis, No-Fault Compensation

JEL Classification: D63, D81

Suggested Citation

Faunce, Thomas Alured and McEwan, Alexandra, The High Court's Lost Chance in Medical Negligence (December 18, 2010). Journal of Law & Medicine, Vol. 18, No. 2, pp. 275-283, 2010; ANU College of Law Research Paper No. 11-08. Available at SSRN:

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
61 2 61253563 (Phone)

Alexandra McEwan

affiliation not provided to SSRN

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