The High Court recently dismissed the special leave application brought in this case by Ms Paul, seeking to overturn the New South Wales Court of Appeal’s decision rejecting her claim.

As may be known, the case concerned a delay in diagnosis of an intracranial aneurysm suffered by Ms Paul. She underwent a head CT Scan

As yet further proof that the most humble of circumstances can be made complex by the Law, the High Court recently (7 March 2012) handed down its decision in the “Big W hot chip case” (Strong v Woolworths [2012] HCA 5).

The case concerned a claimant, the aptly named (given the need to litigate

 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

 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

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

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).


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