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Baker, Jodie --- "Causation laws should recognise loss of chance" [2016] PrecedentAULA 25; (2016) 133 Precedent 58

CAUSATION LAWS SHOULD RECOGNISE LOSS OF CHANCE

By Jodie Baker

Under the Civil Liability Act 2002 (NSW), an action in negligence is a two-staged test. The plaintiff must first establish that the defendant breached its duty of care and, secondly, that as a result of the breach the plaintiff suffered damage.[1] The second stage of the test is referred to as ‘causation’ and the standard of proof is the ‘balance of probabilities’.[2]

Both breach of duty of care and causation must be established for a plaintiff to succeed in a negligence action. For example, where a defendant has breached its duty of care, but the breach did not materially cause the damage, the plaintiff’s claim in negligence will fail.[3]

For many years, the courts have adopted a common sense approach to causation which involves a two-pronged test and requires both ‘factual causation’ and the ‘scope of liability’ to be proven.[4] The two-pronged test was later confirmed under s5D of the Civil Liability Act 2002 (NSW).

It is necessary to understand the basic elements of causation before considering whether the laws of causation should recognise loss of chance.

FACTUAL CAUSATION

Factual causation is commonly known as the ‘but for’ test.[5]

The court discussed factual causation in Barnett v Chelsea and Kensington Hospital Management Committee.[6] In that case, the plaintiff was one of three night watchmen who attended at the defendant hospital complaining of feeling ill and vomiting. A nurse telephoned a casualty officer who, without seeing the men, said they should go home and consult their treating doctors. The men left and about five hours later the plaintiff died from arsenic poisoning. The court found that the casualty officer had breached his duty of care by failing to examine the men, but said that the claim failed on causation because the medical evidence indicated that the plaintiff would have died anyway. Therefore, the breach did not materially contribute to the plaintiff’s death.

By way of contrast, in South Eastern Sydney Area Health Service v King[7] the plaintiff was a 13-year-old patient who was receiving experimental and radical treatment. At some point the patient’s treatment was changed to avoid the risk of neurological damage. However, one of the doctors failed to pass on the amendment to the specialist. As a result, the 13 year old became a quadriplegic. The evidence established that had the specialist been notified about the amended treatment plan, he would have treated the patient differently, and she would have avoided quadriplegia. Therefore, factual causation was made out.

In addition to the common law, the plaintiff is also required by statute to establish factual causation under s5B(1)(a) of the Civil Liability Act 2002 (NSW), which states that the negligence must be ‘a necessary condition of the occurrence of the harm’. This was discussed further by the High Court in Strong v Woolworths, where the court said:

‘A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s5D(1)(a). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.’[8]

The court also discussed factual causation in Paul v Cooke, stating that ascertaining factual causation – that is, whether the defendant’s negligence was a necessary condition of the occurrence of harm – is ‘usually dependent upon a comparison of what would have occurred had the defendant not breached the duty of care, with what in fact occurred’.[9]

SCOPE OF LIABILITY

Under the scope of liability, a plaintiff has to establish that ‘it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused’.[10] This is the position both in the common law and under s5D(1)(b) of the Civil Liability Act 2002 (NSW). In addition, s5D(4) also states that ‘the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’.[11]

The court discussed the scope of liability requirement in detail in Paul v Cooke.[12] In that case, the defendant was a radiologist who failed to detect an aneurysm during an angiogram. About two years later, the aneurysm was diagnosed and the plaintiff underwent surgery, during which the aneurysm burst and she suffered a stroke and was left permanently disabled. The plaintiff argued that the defendant was negligent for failing to detect the aneurysm during the angiogram two years before.

Brereton J determined that factual causation was made out on the basis that if the defendant had diagnosed the aneurysm two years earlier, the plaintiff would have sought treatment at that time. His Honour said it was more likely than not that no complications would have arisen. However, his Honour found that the second prong of causation, the scope of liability, did not extend to the defendant in this case.

Brereton J said that under ss5D(1)(b) and 5D(4) of the Civil Liability Act 2002 (NSW) the relevant inquiries should involve a policy judgement as to whether it is appropriate for the defendant’s negligence to extend to the harm in question in the circumstances. His Honour said the court should consider ‘whether or not and why responsibility for the harm should be imposed on the negligent party’.[13] Brereton J also pointed out that both the common law and statutory framework continue to inform the determination of causation.[14]

In this case, the defendant’s job was to diagnose the aneurysm so it could be treated and the plaintiff could avoid the risk of spontaneous rupture. While the defendant failed in his duty of care, the breach did not eventuate in a spontaneous rupture. Instead, the rupture occurred during surgery and was caused by a clipping procedure. His Honour determined that although the risk of intra-procedural rupture was foreseeable, the risk was not caused by the defendant’s failure to diagnose the aneurysm two years earlier. Therefore, the breach did not cause the damage.

LOSS OF CHANCE

As discussed above, the plaintiff is required to prove that, on the balance of probabilities, the defendant’s breach caused or materially contributed to their injury. The balance of probabilities requires more proof than the mere possibility.[15]

Additionally, in the early 21st century, a plaintiff could also claim that the defendant’s breach resulted in a loss of chance for a better outcome. For loss of chance, the standard of proof was not on the balance of probabilities (that is, a 51 per cent chance or more), but was calculated on a ‘possibility’ basis, which may have been less than 50 per cent.[16] The requisite standard of proof has been of much debate in loss of chance cases.

For about a decade, Australian courts did recognise loss of chance claims. In Gavalas v Singh,[17] the plaintiff claimed that he had lost the chance of an earlier and complete excision of a tumour. Smith AJA allowed the claim, stating that he could see no reason why the law should not compensate a plaintiff in appropriate circumstances for a lost opportunity arising from negligence. His Honour said ‘lost opportunity should be recognised by the law as a complete head of damage and compensated because it enables a plaintiff to obtain compensation in circumstances where negligence has deprived that plaintiff of a real chance of opportunity...’[18]

Similarly, the court upheld a loss of chance claim in Rufo v Hoskings.[19] The plaintiff suffered from lupus and one of the side effects of that disease was osteoporosis. The plaintiff was treated with corticosteroids, and subsequently developed osteoporosis and microfractures in her spine. The plaintiff argued that the incorrect steroids and ‘steroid sparers’ were used in her treatment. While she could not prove that this caused the osteoporosis or microfractures (and thereby could not satisfy causation under s5D of the Civil Liability Act 2002 (NSW)), the plaintiff was successful in arguing that her condition had been managed with a less successful treatment regime and she had lost the chance of a better outcome.

The defendant appealed the decision and lost. On appeal, Santow JA stated that the ‘better chance was less than even, but still material. There could be no question but that the better chance was a thing of value, even if its quantification posed considerable difficulty.’[20]

Hodgson JA stated:

‘...[i]f it appears that the very best medical science can do is to say that the treatment had a quantifiable chance of success, then in my opinion that can be treated as a valuable chance for the loss of which a plaintiff can be compensated. As with other questions concerning causation, a common sense approach should be taken to the question of whether a valuable chance has been lost.’[21]

The compensation was calculated by discounting the total amount of the plaintiff’s damages by the percentage of chance of success she had lost.

In Chapel v Hart the court said that a person will be causally liable for a:

‘wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers...’[22]

Chapel v Hart confirmed that unless the risk actually eventuates, then the causation element has not been established on the balance of probabilities.[23] In O’Gorman v Sydney South West Area Health Service,[24] the court found that a delayed diagnosis of breast cancer resulted in an increased chance of the cancer metastasisng by 10 per cent. In this case, the risk actually eventuated, and so the delay was a material cause of the harm and the defendant was responsible for the entire loss. The difference between this case and a loss of chance action was that the risk actually eventuated and the loss was actually suffered.

Critics of the loss of chance cause of action say it gives the plaintiff a ‘second bite of the cherry’ where the plaintiff had failed to establish causation on the balance of probabilities.[25] Other criticisms included that loss of chance claims favoured the plaintiff over the defendant.[26] Within five years of the decision in Rufo v Hoskings, the Court of Appeal backflipped and said that cases previously allowing loss of chance claims were incorrect.[27]

In Tabet v Gett,[28] the six-year-old plaintiff presented with nausea, vomiting and a chicken pox rash. Different diagnoses were made. Two days after her presentation, the plaintiff’s condition significantly deteriorated, and on the third day she had a seizure and suffered catastrophic brain damage. She was subsequently diagnosed with a brain tumour. The plaintiff claimed that had a CT scan been performed earlier, she would have had a better outcome. The loss of a chance for a better outcome was said to be 40 per cent. The trial judge found in favour of the plaintiff and apportioned damages in accordance with the 40 per cent loss of chance.

The defendant appealed. The Court of Appeal set aside the original judgment, but referred the case to the High Court. The High Court unanimously agreed that the claim could not be upheld, for a variety of reasons.

One of the reasons was that the plaintiff failed on causation. It was found that an earlier CT scan would not have resulted in a significant difference to her outcome. The High Court then considered the claim for loss of chance, and found that the expert evidence established nothing more than a speculation as to the loss of chance. In addition, Kiefel J said that the tort of negligence could only be used to claim damages when causation had been proved on the balance of probabilities (and not on possibilities). Gummow ACJ stated that recognising loss of chance in negligence would impermissibly favour the plaintiff. Tabet v Gett represents the current state of the law in Australia.

In contrast to Tabet v Gett is the case of Hirst v Sydney South West Area Health Service.[29] In this case, the plaintiff was born with hydrocephalus. The condition was not diagnosed during pregnancy. The judge found that the failure to diagnose the condition was negligent, and the breach of duty resulted in the child losing the chance to be born earlier and then be treated earlier. The evidence supported a conclusion that the delay had increased the child’s brain damage by 20 per cent. The judge allowed the claim and distinguished it from Tabet v Gett on the basis that the damage was a real injury and not merely a loss of chance.[30]

In the writer’s view, a person should be able to seek damages for a loss of chance of a better outcome. In the words of Santow JA, the loss of chance might be less than even, but it is still a material injury.[31] In the case of Rufo v Hoskings, the plaintiff was successful in establishing that she would have had a better outcome with a different treatment plan, and she had lost that chance. In Australia, we have a high standard of medical care and a patient should be entitled to enjoy the best available treatment, taking resources and expenses into consideration. If the state of medical science can determine that certain treatment has superior outcomes, then a patient should be entitled to rely on the medical practitioner to administer the best treatment plan. Where a medical practitioner negligently administers an inferior treatment plan, and the patient loses the chance for a better outcome, that loss should be recognised.

Since the Ipp reforms in 2002, the legislature has tried to curtail the rights of injured people in response to fears of a flood of litigation from plaintiffs looking for a free handout. The fearmongering around the ‘litigation crisis’ is unsubstantiated.[32] Instead of adopting the position that loss of chance claims impermissibly favour the plaintiff,[33] the judiciary would do better to apply a common sense attitude.

In regard to the criticism that the plaintiff is having ‘another bite of the cherry’, that sort of practice happens in other areas of law. A plaintiff is entitled to plead a main case, and then plead in the alternative. It is common in product liability claims where the plaintiff suffers personal injury. Often, a plaintiff will plead a claim in negligence as well as under consumer law. The damages under consumer law are inferior to a negligence claim, but the liability hurdles are often easier to overcome. If the plaintiff fails on establishing negligence, they can have ‘another bite of the cherry’ under consumer law.

A loss of chance for a better outcome is a material loss that should be recognised. The term ‘real injury’ is subjective and it is disingenuous to say that the loss of a better chance or outcome is not an injury. Where a loss of chance claim satisfies factual causation and the scope of liability save for meeting the balance of probabilities threshold, then it seems unfair to not recognise the injury at all. Instead of rejecting the claim altogether, damages should be apportioned in accordance with the percentage of loss, and that appears to be a fair and practical outcome.

Jodie Baker is studying a Masters of Law specialising in Health Law at the University of Sydney and is a Notifications Officer at the Australian Health Practitioner’s Regulation Agency. PHONE: (07) 3149 4735 EMAIL: jodie.baker@ahpra.gov.au.


[1] Sections 5B and 5D of the Civil Liability Act 2002 (NSW). See also s11 of the Civil Liability Act 2003 (QLD); s34 of the Civil Liability Act 2003 (SA); s13 of the Civil Liability Act 2002 (TAS); s51 of the Wrongs Act 1958 (VIC); s5C of the Civil Liability Act 2002 (WA); and s45 of the Civil Law (Wrongs) Act 2002.

[2] See Chapel v Hart (1998) 195 CLR 232.

[3] Ian Kerridge, Michael Lowe, Cameron Stewart, Ethics and Law for the Health Professions, (The Federation Press, 4th ed, 2013) 212.

[4] Ibid. See, for example, March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627.

[5] Kerridge, Lowe and Stewart, above n3, 212. See Paul v Cooke [2012] NSWSC 840 at [43].

[6] Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068.

[7] South Eastern Sydney Area Health Service v King [2006] NSWCA.

[8] Strong v Woolworths Ltd [2012] HCA 5 at [20].

[9] Paul v Cooke [2012] NSWSC 840 at [43].

[10] Section 5D(1)(b) of the Civil Liability Act 2002 (NSW). See also s11 of the Civil Liability Act 2003 (QLD); s34 of the Civil Liability Act 2003 (SA); s13 of the Civil Liability Act 2002 (TAS); s51 of the Wrongs Act 1958 (VIC); s5C of the Civil Liability Act 2002 (WA); and s45 of the Civil Law (Wrongs) Act 2002.

[11] Section 5D(4) of the Civil Liability Act 2002 (NSW).

[12] Paul v Cooke [2012] NSWSC 840.

[13] Ibid at [57].

[14] Ibid.

[15] Kerridge, Lowe and Stewart, above n3, 216.

[16] Ibid at 214.

[17] Gavalas v Singh [2001] VSCA 23.

[18] Ibid at [38].

[19] Rufo v Hoskings [2004] NSWCA 391; (2004) 61 NSWLR 678.

[20] Ibid at [42].

[21] Ibid at [10].

[22] Chapel v Hart (1998) 195 CLR 232 at [27].

[23] See also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.

[24] O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127.

[25] Kerridge, Lowe and Stewart, above n3, 214.

[26] Tabet v Gett [2010] HCA 12.

[27] Ibid.

[28] Ibid.

[29] Hirst v Sydney South West Area Health Service [2011] NSWSC 664; see O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127.

[30] Hirst v Sydney South West Area Health Service [2011] NSWSC 664; KLS 219.

[31] Rufo v Hoskings [2004] NSWCA 391; (2004) 61 NSWLR 678 at [42].

[32] Kerridge, Lowe and Stewart, above n3, 195-8.

[33] Tabet v Gett [2010] HCA 12.



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