Just a quick post, appreciating I've been lax of late, to note the High Court handed down its decision today, rejecting the appeal against the NSW Court of Appeal's decision, against the plaintiff in this case. Does this mean the end of 'loss of a chance" damages in Australia?
I will digest the decision and provide my thoughts as soon as I can....
The High Court delivered its much anticipated decision in this case on 3 March 2010. I have to say my impression is a sense of anticlimax...
As I have said in an earlier post, this case was seen amongst some (including me!) as providing an opportunity for the High Court to provide useful guidance as to the appropriate approach for deciding whether negligence or other breach of duty should be found to have caused an adverse outcome, in complex cases. Cases involving 'evidentiary gaps' and were identifying whether or not a poor outcome was a consequence of the lack of care/negligence was difficult, because of the complexity of the science behind such conclusion etc, are some such cases.
The case, as is well known, was an asbestos exposure case. Mr Ellis had been exposed to asbestos dust in the course of his work and by the time of this appeal there was no dispute that Amaca were at fault in allowing such exposure to occur.
The complexity to the case came from the fact that Mr Ellis's medical condition about which the claim arose (and from which he had died by the time of this appeal), was lung cancer.
Apart from exposure to asbestos, on the scientific evidence, it was clear this could have resulted from his heavy tobacco smoking habit (15 to 20/day for 26 years). In fact the unanimous scientific evidence was that such smoking was likely to have contributed to the occurrence of his cancer. The key question was whether his asbestos exposure had also probably contributed.
The medical evidence confirmed (at least on Mr Ellis' case) that it was quite possible that both his smoking and asbestos exposure could have contributed to his cancer, either through a collective effect or as independent (but cumulative) causes.
The critical legal question was whether, in such circumstances Mr Ellis' exposure to asbestos could be said to have made "a material contribution" to the occurrence of his cancer (the accepted legal test).
Surprisingly, Bret Walker SC, the fabulous Counsel appearing on Mr Ellis' behalf, accepted for the purposes of this appeal, that the asbestos exposure should only be accepted as a cause of his lung cancer, if it were accepted on the evidence that it was more likely than not that had such exposure not occurred, his cancer would have been avoided (a lot of negatives in this proposition I know - don't worry, if you say it 20x you'll get the gist!).
This was an acceptance of what is known as the 'but for' test, a traditional, non-exclusive test used by Courts to determine whether negligent conduct causes a particular bad outcome (or 'injury").
On the expert evidence (which was primarily epidemiological), the High Court found that such test was not met. It was not more likely than not that had Mr Ellis not been exposed to the asbestos he was, that his lung cancer would not have occurred. This was therefore the end of his claim (given the concession by Mr Walker SC) and the appeal by Amaca was upheld.
In fact the majority of what was, by contemporary standards, a relatively short decision, dealt with this review/consideration of the complex scientific evidence on this topic. No statements of broad application or modifications to the Law concerning the approach to deciding so called 'causation' questions were made.
The disappointment of all this (for me at least) is that it seems to me there was a question the case raised, which the court could have (but were not asked to) discussed and explained. This was the fact it is clearly accepted that in some circumstances negligent action can be accepted as causing harm even where it cannot be shown that had such negligent not occcurred, the relevant outcome would have been avoided. In other words, where the 'but for' test is not met. The most obvious category of such case is where 2 causes for such injury, each sufficient to cause the injury occur simultaneously. Another is where multiple causes each contribute collectively to the occurrence of harm and the negligence is only one such cause. This latter category is one which is confronted fairly often in medical negligence claims.
In this case, it seems to me that even if Mr Ellis' asbestos exposure could not be shown to have been necessary for the lung cancer to occur, this did not automatically mean it was not sufficient to be found to have in fact contributed to its occurrence, particularly where it was possible such exposure acted in conjunction with Mr Ellis' smoking. It is a pity the Court were not asked and so did not comment on the appropriate approach to considering whether such asbestos exposure should have been found to have been a cause of Mr Ellis cancer, on this basis, if, as they did, they were not satisfied that it could be concluded that it would not have occurred but for such exposure.
It is also a pity the court were not asked to consider and discuss the role policy should play in deciding whether, in Law, negligent conduct should be found to have caused harm. It is well recognised by previous case law that policy has a role to play, one would have thought most commonly in situations where science struggles to provide guidance as to whether an 'injury' is caused by negligence or not. Because of the constraints on the way Mr Ellis' argument on appeal was run (no doubt for good reasons, though I am not privy to them), this issue was also not explored by the Court.
The High Court has now heard argument concerning this important (potentially ground breaking) decision and we are now in the Court's hands, for their decision.
The transcript of argument can be found here. Although reading the transcript is not the same as hearing 1st hand, it seems Bret Walker SC had a torrid time, at least from some members of the Court!
Interestingly, and this is close to a common concern in medical negligence claims, emphasis was placed by him on the capacity of the negligent party to know the information from which firmer conclusions about whether "A caused B" could be drawn. It is often the case in medical negligence claims that when it is difficult to prove whether negligent medical care caused a particular bad outcome, that frustration is felt that the answer to such question would be known with certainty - if only the negligent care hadn't occurred (eg if the negligent failure to diagnose the breast cancer hadn't occur, we would have known whether there was or was not lymph node spread etc).
It seems to me that at least the more outspoken members of the Court during argument, expressed considerable scepticism at the approach of our Court of Appeal, in accepting that the Plaintiff's exposure to asbestos had contributed to his lung cancer, even though at least some evidence suggested it was 100 times more likely his cancer was a consequence of his smoking.
It also looks to me that the Court may be contemplating narrowing the traditional degree of contribution from negligent (or other tortious) conduct to an injury, for liability to arise.
Traditionally, enough was shown if negligent action made a "material" contribution, which has often been accepted as met, when the contribution was more than negligible.
in other words, if the Court accepted there were multiple causes for injury or illness, damages would be awarded if one of such causes was due to negligence (even if it was a minor or secondary cause - and even if it was likely the injury/illness may have occurred even if no such negligence occurred). Further (and this has always been the difficult part to this, for me conceptually!), liability would then be for the entire consequences of the illness. There would often not be a substantial reduction in the damages awarded, for the chances the same outcome would have occurred, even if the negligence had not occurred.
From my reading, several members of the Court were grappling, during argument, as to whether for a contribution to be 'material,' and so liability and damages follow, a greater extent of contribution should be required.
It will be interesting to see how the dynamics of argument translate into the Court's decision.
As a footnote, have to say I liked Justice Gummow's comment, when the submission was put that deciding whether a factor was or was not a cause of disease, was a matter of 'logic,' that:
"Logic itself is a house of many mansions"
Entirely as expected, the High Court on Friday granted special leave for the appeal in the recent NSW Court of Appeal decision in Gett -v- Tabett.
The High Court will now, sometime in 2010, decide whether damages should be recoverable for a loss of a chance of a better outcome from medical treatment, where such lost chance (lost due to negligent medical care) is < 50%.
See my earlier post for more details of the NSW Court of Appeal's decision on this point, which created conflict between NSW and Victorian Law and uncertainty for the rest of the country.
With this issue and the complex causation issues that will be considered by the Court in October in Amaca/Ellis, the High Court will have an opportunity to set the legal position with wide ramifications for those involved in the medical negligence area of litigation across Australia.
I recently gave some thought (amongst other things, I had to, I had agreed to present a paper on the topic...), as to what this recent Court of Appeal decision in New South Wales is going to mean in the medium term for claims in Western Australia. It seems likely the period before the High Court gets its say, will be another 12 - 18 months.
In Gett, in brief, the New South Wales Court of Appeal decided that even when a Dr or hospital is found to have been negligent, damages could not be awarded in that State for loss of a chance of a better outcome from more appropriate medical treatment when the chances of this occurring were less than 50%. In other words, if a Dr is negligent, and this may have worsened the outcome for the patient, damages can only be awarded if this chance of a better outcome (if the Dr or hospital had not been negligent) is > 50%.
In Gett, the chance of an improved outcome was put as 15%. Because of the Court of Appeal's decision, the patient was found entitled to no compensation at all, despite the fact the medical care was accepted as having been negligent (and their resulting disability was very severe).
The decision was based upon a careful and thorough analysis of past case law, from which the Court concluded that such damages should not be awarded, according to established doctrine.
Gett's decision is contrary to the previously accepted position in New South Wales and is contrary to the position in Victoria. It now creates uncertainty as to whether Western Australian (and the other) State Courts should follow the New South Wales or Victorian position.
As stated, this position will ultimately be determined by the High Court of Australia's decision on the topic (it is almost certain that it will now have to look at the issue, given the divergence between the States' Courts).
From a discussion with a senior colleague from the defence side I'm concerned this decision may make resolution on reasonable terms very difficult.
Characterising a claim as a loss of chance claim may become an issue itself - it seems any situation in which there is less than 50% chance of averting an outcome may be considered (wrongly IMHO) such a claim.
Overall I have to say that I find the New South Wales' Court's decision very disappointing. I think it regrettable that some of the brightest Judges in Australia relied on established doctrine, rather than putting forward a proposal (innovative if necessary) as to how our modern system could provide a fair solution to this important category of case. I appreciate this is probably heresy to say so!
As a matter of fairness, I think it is clear that our system should provide for compensation when negligent care causes a loss of a chance of a better medical outcome, even when less than 50%. This is particularly so when the outcome is as serious as in this case.
I do not underestimate the difficulty of creating a sensible and fair approach to assessing such claims (and deciding which should be compensated -v- not), but believe it does no credit for the Law to be in its present uncertainty and believe it grossly unfair to this particular Plaintiff (and others in similar circumstances) if left with no compensation at all despite the lack of appropriate care, 'costing' them a chance of a better outcome (even if this was small {15%}).
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