I. INTRODUCTION
The High Court in Tabet v Gett (2010) 204 CLR 537 (‘Tabet’) appropriately held that the appellant
could not be compensated on the basis of a loss of a chance for a better medical outcome. Whilst the
law of torts aims to achieve many purposes, its cardinal function is to determine whether liability
for a harm caused can be assigned to an alleged tortfeasor. In attributing liability, the conduct must
be deemed unreasonable and proven to have, in fact, caused the harm suffered. 1 With the evolution
of negligence law, loss of chance claims in medical negligence have taken on a distinct character.
Loss of chance, in addition to its role in the quantification of damages, has been increasingly
presented as either a cause of action or a specific type of harm suffered. 2 Claims of this nature
attempt to redefine the physical loss suffered by a plaintiff as a chance of obtaining a better physical
outcome or even a chance of avoiding the physical loss entirely, and are aimed at providing greater
equity to plaintiffs in the face of legislative restrictions.3 However, the employment of a head of
damage as a cause of action in medical negligence endangers the underlying and pivotal tortious
principle of causation. By examining the principles of causation and damages in tortious claims and
the effect of the decision in Tabet4 on future claims, the necessity and reasonableness of the decision
in Tabet5 can be better understood.
II. FACTS AND ISSUES
Tabet6 concerned a six year old girl, Reema Tabet, who was admitted on 11 January 1991 to a
hospital with recurring nausea, headaches and vomiting following a resolved diagnosis of chicken
1Thomas Faunce and Alexandra McEwan, ‘The High Court's lost chance in medical negligence: Tabet v Gett (2010)
240 CLR 537’ (2010) 18(2) Journal of Law and Medicine, 275-283.
2 Ibid.
3 Faunce (n 1); Civil Liability Act 2002 (NSW).
4 Tabet v Gett (2010) 204 CLR 537.
5 Ibid.
6 Ibid.
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, pox. Dr Gett made a provisional diagnosis of meningitis, encephalitis or chickenpox.7 On 13
January 1991, the medical team became aware that Tabet had become drowsy and that her pupils
were not reactive and unequal. Gett ordered the performance of a lumbar puncture. Tabet suffered a
seizure on 14 January 1991 after which an EEG and CT scan evidenced a medulloblastoma.8 The
plaintiff received extensive medical treatment involving a combination of radiotherapy and
chemotherapy as well as an operation to remove the medulloblastoma. However, the
medulloblastoma caused irreversible brain damage.9 Tabet claimed that in failing to order a CT scan
on 13 January, Gett had caused part of Tabet’s brain damage. 10
Two causes of actions were asserted, the first of which argued that Gett had breached his duty of
care and had caused her injury, and the second of which argued that Gett’s breach deprived her of
the opportunity to avoid her injury. 11 The first cause of action was appropriately dismissed as it was
not evident that, on the balance of probabilities, had the CT scan been performed on 13 January and
the medulloblastoma was treated on discovery, the brain damage would have been avoided. The
second cause of action was improperly successful on the basis that a CT scan should have been
performed once the clinical signs of the provisional diagnosis became manifest, and that the
intracranial pressure would have been relived immediately had the CT scan been ordered. 12Expert
evidence suggested the availability of two potential treatments involving either an intraventricular
drain or the use of corticosteroids.
7Greg Walsh and Anna Walsh, ‘Tabet v Gett: The end of loss of chance actions in Australia?’ (2010) 18(1) Journal of
Law and Medicine; Tabet v Gett (2010) 204 CLR 537.
8 Walsh (n 6); Tabet v Gett (2010) 204 CLR 537.
9David Hirsch, ‘Gett v Tabet: Does ‘loss of chance’ have a chance’ (2009) 95 Precedent; Tabet v Gett (2010) 204 CLR
537.
10 Walsh (n 6); Tabet v Gett (2010) 204 CLR 537.
11 Faunce (n 1).
12 Faunce (n 1) 277; Tabet v Gett (2010) 204 CLR 537.
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The High Court in Tabet v Gett (2010) 204 CLR 537 (‘Tabet’) appropriately held that the appellant
could not be compensated on the basis of a loss of a chance for a better medical outcome. Whilst the
law of torts aims to achieve many purposes, its cardinal function is to determine whether liability
for a harm caused can be assigned to an alleged tortfeasor. In attributing liability, the conduct must
be deemed unreasonable and proven to have, in fact, caused the harm suffered. 1 With the evolution
of negligence law, loss of chance claims in medical negligence have taken on a distinct character.
Loss of chance, in addition to its role in the quantification of damages, has been increasingly
presented as either a cause of action or a specific type of harm suffered. 2 Claims of this nature
attempt to redefine the physical loss suffered by a plaintiff as a chance of obtaining a better physical
outcome or even a chance of avoiding the physical loss entirely, and are aimed at providing greater
equity to plaintiffs in the face of legislative restrictions.3 However, the employment of a head of
damage as a cause of action in medical negligence endangers the underlying and pivotal tortious
principle of causation. By examining the principles of causation and damages in tortious claims and
the effect of the decision in Tabet4 on future claims, the necessity and reasonableness of the decision
in Tabet5 can be better understood.
II. FACTS AND ISSUES
Tabet6 concerned a six year old girl, Reema Tabet, who was admitted on 11 January 1991 to a
hospital with recurring nausea, headaches and vomiting following a resolved diagnosis of chicken
1Thomas Faunce and Alexandra McEwan, ‘The High Court's lost chance in medical negligence: Tabet v Gett (2010)
240 CLR 537’ (2010) 18(2) Journal of Law and Medicine, 275-283.
2 Ibid.
3 Faunce (n 1); Civil Liability Act 2002 (NSW).
4 Tabet v Gett (2010) 204 CLR 537.
5 Ibid.
6 Ibid.
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, pox. Dr Gett made a provisional diagnosis of meningitis, encephalitis or chickenpox.7 On 13
January 1991, the medical team became aware that Tabet had become drowsy and that her pupils
were not reactive and unequal. Gett ordered the performance of a lumbar puncture. Tabet suffered a
seizure on 14 January 1991 after which an EEG and CT scan evidenced a medulloblastoma.8 The
plaintiff received extensive medical treatment involving a combination of radiotherapy and
chemotherapy as well as an operation to remove the medulloblastoma. However, the
medulloblastoma caused irreversible brain damage.9 Tabet claimed that in failing to order a CT scan
on 13 January, Gett had caused part of Tabet’s brain damage. 10
Two causes of actions were asserted, the first of which argued that Gett had breached his duty of
care and had caused her injury, and the second of which argued that Gett’s breach deprived her of
the opportunity to avoid her injury. 11 The first cause of action was appropriately dismissed as it was
not evident that, on the balance of probabilities, had the CT scan been performed on 13 January and
the medulloblastoma was treated on discovery, the brain damage would have been avoided. The
second cause of action was improperly successful on the basis that a CT scan should have been
performed once the clinical signs of the provisional diagnosis became manifest, and that the
intracranial pressure would have been relived immediately had the CT scan been ordered. 12Expert
evidence suggested the availability of two potential treatments involving either an intraventricular
drain or the use of corticosteroids.
7Greg Walsh and Anna Walsh, ‘Tabet v Gett: The end of loss of chance actions in Australia?’ (2010) 18(1) Journal of
Law and Medicine; Tabet v Gett (2010) 204 CLR 537.
8 Walsh (n 6); Tabet v Gett (2010) 204 CLR 537.
9David Hirsch, ‘Gett v Tabet: Does ‘loss of chance’ have a chance’ (2009) 95 Precedent; Tabet v Gett (2010) 204 CLR
537.
10 Walsh (n 6); Tabet v Gett (2010) 204 CLR 537.
11 Faunce (n 1).
12 Faunce (n 1) 277; Tabet v Gett (2010) 204 CLR 537.
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