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No loss of chance in Australia

DATE: 24.06.2011


The controversial doctrine of loss of chance has most recently been considered by the Australian High Court. The Court unambiguously ruled out the possibility of future Plaintiffs, in medical negligence litigation, successfully seeking recovery for loss of chance of a better medical outcome(1). There is a possibility that this decision maybe persausive in Ireland.

In 1991 the Plaintiff was admitted to hospital under the care of the Defendant doctor. She had headaches, nausea and vomiting which she experienced both prior to and following an episode of chickenpox.

The Defendant doctor made a provisional diagnosis of chickenpox, meningitis or encephalitis. Three days later, the Plaintiff suffered a seizure and underwent a CT scan after which she was diagnosed with a brain tumour. Following an operation to remove the tumour she suffered irreversible brain damage. This was due in part to the events on the day; the fact that the tumour that had been growing for two years; the operation; and the other treatment received.

The Plaintiff alleged that Defendant doctor’s failure to order a CT scan upon first visit (three days earlier), and before his provisional diagnosis, denied her a better medical outcome and diminished her chances of avoiding such an adverse outcome.

This case reached the High Court which was asked to address whether the New South Wales Court of Appeal had erred in holding that negligence should be assessed on the balance of probabilities alone and not on the basis of loss of a chance.

The High Court found no precedent in Australian law where a Plaintiff was compensated for the loss of chance of a better outcome, where a breach of duty alone had been established. The Court held that to apply the “loss of chance” doctrine in these circumstances would depart from the necessity to establish that the breach of duty was, on the balance of probabilities, the actual cause of the injury.

The Court cautioned against allowing this “balance of possibilities” language to be construed as opening the door for the language of “chance”. The “balance of probabilities” standard required the Plaintiff to establish that the Defendant’s negligence was more probable than not a cause of the relevant harm. The Court found no reason why the Plaintiff should have the benefit, and the Defendant the detriment, of a lesser standard of proof. The Court further concluded, that no public policy considerations justified the lessening of the orthodox standard of proof.

There are arguments that this “all-or-nothing” proposition for Plaintiffs could lead to harshness. However, promoting the “loss of chance” doctrine could lead to an abundance of costly testing procedures and overly “defensive medicine.” The Court acknowledged that a public interest may exist in assisting Plaintiffs who may have had less than an even chance of cure. However, the Court found that this public interest was outweighed by the conflicting interest of avoiding the prospect of overly defensive medicine.




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