1 NOVEMBER 2004
Michelle RUFO v Dr C S HOSKING
Judgment
1 HODGSON JA: I agree with the orders proposed by Campbell AJA, and subject to what I say below, substantially with his reasons.
2 I agree that the primary judge did not err in not being satisfied, on the balance of probabilities, that the breaches of duty by the respondent, which he found to have occurred, caused the fractures suffered by the appellant. Even when one takes into account the principles relied on by Mr. Brereton, it was well open to the primary judge not to be satisfied that, but for the negligence, the fractures would not have occurred; or that the negligence materially contributed to the occurrence of the fractures; or that the fractures were the realisation of a risk created by the negligence.
3 However, I also agree that the evidence strongly supported a conclusion that the negligence materially increased a risk, which was otherwise very substantial, that fractures would occur; and that the occurrence of the fractures was a realisation of this total risk (as distinct from the increment to the risk created by the negligence). This gives rise to the question whether the appellant is entitled to be compensated for the loss of the chance that, but for the negligence, the fractures would not have occurred (or would not have occurred at the time or with the severity of their actual occurrence). If so, then in my opinion it was an error for the primary judge to hold that the increased risk was too speculative to justify an award of damages: so long as such an increase is material, I think the Court is required to do its best to assess it.
4 It is clear that a plaintiff cannot recover damages for negligence unless it is proved, on the balance of probabilities that some actual quantifiable loss occurred as a result of the negligence. However, it is also clear that, at least in some circumstances, the loss of a chance of commercial value is regarded as an actual quantifiable loss: Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332 at 355.
5 There is a real question whether the loss of a chance approach is applicable in medical negligence cases, where an adverse result is suffered, for which there was a substantial probability even without negligence, but negligence has materially increased that probability.
6 The approach was not applied by the House of Lords in Hotson v. East Berkshire Area Health Authority [1987] AC 750; but the approach adopted by the House of Lords in that case, of treating as certainty a 75% chance that the plaintiff would have suffered the disabling disease even without negligence, was considered by Clarke JA and Sheller JA in Daniels v. Anderson (1995) 37 NSWLR 438 at 527 as having been rejected by the High Court in Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 at 642-3.
7 In Naxakis v. Western General Hospital (1999) 197 CLR 269, Gaudron J considered the question at 277-281; and she rejected the view that, in a case such as that one, a plaintiff could recover damages on the basis that what had been lost was the chance of successful treatment. However, Callinan J at 313-4 considered that the loss of a chance that was real and of some substance, even though less than 50%, would attract damages. Gleeson CJ at 272 noted that the question had not been considered by the trial judge or the Court of Appeal, and had not been fully argued; and he expressed no opinion.
8 The question was not considered in Seltsam Pty. Ltd. v. McGuiness (2000) 49 NSWLR 262, where Spigelman CJ discussed the use of statistics given by epidemiological studies.
9 It seems clear that, if avoidance of the loss in question would have depended upon the plaintiff taking a particular course of action, the plaintiff must prove on the balance of probabilities that, but for the negligence, the plaintiff would have taken that course of action. The plaintiff cannot be compensated for the loss of a chance that the plaintiff might have done so: Sellars at 353. However, otherwise I think it is consistent with the principles established in Malec and Sellars to say that it is enough if the plaintiff proves, on the balance of probabilities, that he or she has been deprived of a valuable chance.
10 That chance must be inherent in the circumstances, not merely an artefact of the way evidence is presented in the case. Thus, if it appears to be a plain fact as to whether treatment would or would not have been successful, and the element of uncertainty arises merely from different expert views, then the plaintiff will not be compensated for the chance that one expert might be correct. On the other hand, if 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, or whether the situation is rather one where one or other alternative would definitely have occurred, and the only uncertainty is due to imperfections in the evidence.
11 Gaudron J in Naxakis at 279-80 suggested that this approach would disadvantage plaintiffs in circumstances where the chance of successful treatment is more than 50%. If this was so, it would not in my opinion involve injustice. In any event, I doubt if it is so. Even if the occurrence of the adverse result is treated as being certainly caused by the negligence, a substantial chance that the adverse result could have resulted in any event cannot, on the Malec approach, be ignored, at least if the chance relates to the adverse result occurring at some time different from the time when it actually occurred. Further, it would be curious if the Malec approach were entirely precluded if the substantial chance related to an occurrence of the adverse result at the same time as its actual occurrence, though not precluded if it related to the occurrence of the result at some slightly later time.
12 In my opinion, the evidence in this case strongly supports the view that medical science can do no more than assert that there was a very substantial risk of the adverse result, that this risk was materially increased by the negligence, and that the adverse result was the realisation of the totality of the risk; and provide some basis for quantifying the chance that the adverse result would have been avoided if the negligence had not occurred. Accordingly, in my opinion this is a case that can be approached as one involving a loss of a valuable chance.
13 Consistently with what was said previously, this chance was less than 50%. For my part, I may have been prepared to make an assessment of the chance on the basis of the material before this Court; but both sides are in agreement that this should be undertaken by the trial judge. Accordingly, I agree with the orders proposed by Campbell AJA.
14 SANTOW JA:
INTRODUCTION
I have had the advantage of reading the judgments of Hodgson JA and M W Campbell AJA. I agree with each of them. I would however wish to add some observations concerning whether loss of a chance should be available as a basis for determining liability and damages in a medical negligence case of this kind as that question is an important one.
15 A principal feature of this case is that the trial judge, Studdert J, concluded that, while the respondent doctor breached his duty of care in two respects, because those breaches on balance of probabilities did not cause or materially contribute to the fracture injury to the appellant's spine, the appellant could not succeed. The appellant challenges that result. The appellant submits that she was entitled to be compensated for loss of a chance that, but for the negligence, the microfractures either would not have occurred, or would not have occurred at the time or with the severity of their actual occurrence. This is on the basis that any chance involved, though material, was below 50%.
16 There is no challenge to the first breach of the respondent's duty of care to the appellant, in substituting one corticosteroid for another (dexamethasone for prednisolone). This had the effect of increasing the steroid dosage level, when expressed in equivalent terms. There is however a challenge to the second breach found. That breach was by reason of not introducing the "steroid sparer" Imuran to the appellant's treatment regime at an appropriate stage. I agree with M W Campbell AJA that the Notice of Contention challenging that finding should not succeed and do not need to add to his reasons on that.