Gett v Tabet [2009] NSWCA

Facts Tabet, 6yo child, was admitted to hospital on 11 January due to vomiting, headaches and having recently had chicken pox. On 14 January, she had a seizure. Investigations concluded that she had a large brain tumour which was subsequently removed. The operation, brain tumour and seizure combined caused substantial disability. Her family alleged that the doctor should have ordered a scan earlier, that may have detected the brain tumour and prevented the seizure, as they could have begun treatment. There was evidence that Tabet’s pupils were dilated and as such, it was negligent that the doctor did not explore further. At trial, it was estimated that there was a 40% chance that an earlier scan would have improved Tabet’s outcome (although not prevented the disability in entirety).

Issue: Could Tabet sue for the “loss of chance” of a better outcome, as a result of the doctor’s negligence?

Held: The majority held that Tabet could not recover for the “loss of chance” of a better outcome. Kiefel J (with others agreeing) explained that showing ‘mere negligence’ is not enough, you must show causation. Here, it was difficult to prove that negligence actually caused the damage. It was actually more probable than not that the actions of the doctor made no difference. The chain of causation was broken. Therefore, it would be a different approach to negligence, and particularly the standard of proof, if the loss of chance doctrine was accepted.