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%}).