[130] On the other hand, in other cases, there is a risk, it might be said, that in almost every instance there is a lost chance of some kind, perhaps even a 1 per cent or 5 per cent chance, and on that basis every plaintiff will succeed to some extent. The answer to this must be that the loss of a remote, or very slight chance should not attract an award of damages. The chance lost must be a real one and of some substance, even though less than a 50 per cent chance."
362 Plainly, the above dicta of Callinan J do not lend support to Mr McCulloch's submission. In his judgment in Naxakis Gleeson CJ made mention (at 272 [5]) of there having been reference made in argument to the possibility that the plaintiff's case might be put on an alternative basis, namely relating to the loss of a chance, but the Chief Justice observed that that question had not been addressed at the trial or in the Court of Appeal and it was not fully argued before the High Court. Hence the Chief Justice expressed no opinion about that issue.
363 It is to be noted that each of the members of the Court of Appeal made specific reference to Naxakis in Rufo.
364 The facts in Rufo were as follows: a fourteen year old child was diagnosed as suffering from systemic lupus erythematosus, which is an inflammatory condition with a characteristic rash and which condition is associated with widespread internal pathology. The plaintiff was treated with prednisolone, which is a corticosteroid drug. Later another corticosteroid was substituted. The defendant did not prescribe Imuran or some steroid sparer when it was found at the trial that a steroid sparer should have been introduced directed to the risk of spinal fractures being occasioned by the long term use of corticosteroids. The plaintiff suffered spinal damage but at first instance it was held that the plaintiff had failed to prove damage resulting from the failure to introduce Imuran or the substitution of the second corticosteroid.
365 The plaintiff presented her case in two ways: firstly, that the defendant's negligence was causative of the fractures that occurred; and, secondly, that the defendant's negligence deprived the plaintiff of the loss of a chance of a better outcome from the steroid related osteoporosis and resultant fractures. The plaintiff failed on both grounds. On appeal, it was held that the plaintiff was entitled to recover damages for the loss of a chance of a better outcome had the negligence in treatment not occurred.
366 It is to be observed that in Rufo it was accepted at trial and on the appeal that if the facts supported it, the claim based upon the loss of a chance was available (see the judgment of Campbell AJA at 693 and in particular at [206]). Campbell AJA said (at 693-694):
"[207] Third, there was no challenge to Studdert J's formulation of what the appellant was required to prove to recover damages for loss of the chance of a better outcome. His Honour said (at [246]-[247]):
'In order to recover damages for the loss of a chance of a better outcome, the plaintiff is required to prove on the balance of probabilities that there did exist a chance that the plaintiff would have had a better outcome had the negligence in treatment not occurred: see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 333; Daniels v Anderson (1995) 37 NSWLR 438; and Tran v Lam (Badgery-Parker J, 20 June 1997, unreported).
Has the plaintiff proved on the balance of probabilities that there did exist a chance that the introduction of Imuran on or about 10 June would have resulted in a better outcome, if not by avoiding the occurrence of the fractures then at least by reducing their severity? If so, then 'unless the chance is so low as to be regarded as speculative - say less than one percent' (Malec (at 643)), the plaintiff is entitled to recover an appropriate award of damages referable to the quantification of the loss of the chance'…
[405] Adopting a robust and pragmatic approach to the primary facts of this case (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515, per Mason CJ; Wilsher v Essex Area Health Authority [1988] AC 1074 at 1090, per Lord Bridge; Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 at 364, per Beazley JA) it seems to me that, more probably than not, the excess of corticosteroid consumed after 10 June 1992 in the context of the osteoporotic and vulnerable state of the appellant's spine caused the loss of a chance that the appellant would have suffered less spinal damage than she in fact did.
[406] Also, as a matter of common sense, it seems to me that the chance lost would be more than speculative or remote and, indeed, would be 'of substance', albeit falling short of a fifty one per cent chance."
367 Hodgson JA expressed his substantial agreement with the reasons of Campbell AJA and went on to say (at 679-680):
"[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."
368 His Honour concluded (at 681 [12]) that there was a chance that the adverse result could have been avoided if there had been no negligence and that the chance was compensable.
369 Santow JA also expressed his agreement with the judgment of Campbell AJA and with the judgment of Hodgson JA. His Honour referred to the reasoning on causation and damages in Sellars v Adelaide Petroleum NL (supra at [221]) as being "reconcilable with allowing recovery for loss of a less than even chance in medical negligence cases" (at 687 [39]). His Honour proceeded (at 687-688 [40]):
"Moreover, in medical negligence cases causation must still be demonstrated at greater than 50 per cent probability in two respects. First, the chance must be proven to exist on balance of probabilities. Second, the plaintiff must prove on balance of probabilities that if offered the chance lost, in terms of treatment, the plaintiff would have elected to have that chance. Thus 'where the chance lost was a chance that the plaintiff may have acted in such a way as to receive a benefit or avert a detriment, the plaintiff must prove on the balance of probabilities that there was such a chance and that the plaintiff would have so acted': Tran v Lam (Badgery-Parker J, 20 June 1997, unreported) at 27. That is an important control mechanism. It means that loss of a chance cannot be invoked where there is not a greater than 50 per cent chance that the patient, properly advised, would have undertaken the particular course of treatment or operation. That is so though we are here dealing with a hypothetical event."
370 His Honour later (at 688 [45]) expressed his preference for the percentage approach:
"However, it would be productive of injustice if the plaintiff were to receive 100 per cent of the loss where a chance or prospect exceeds 50 per cent (say 51 per cent) yet receive nothing at all if such loss were, say, 49 per cent. The fairest solution is to base compensation on whatever be the percentage, whether above or below 50 per cent, wherever one is dealing with future events or hypothetical ones."
371 His Honour conducted a review of relevant authorities, including Naxakis (supra), Sellars v Adelaide Petroleum NL (supra) and Malec v J.C. Hutton Pty Limited (supra). His Honour considered the English cases of Gregg v Scott (supra) and Hotson v East Berkshire Area Health Authority (supra), and concluded (at 690-691):
"[52] While intermediate courts of appeal in Australia do not yet have the guidance of a High Court decision adopting as ratio loss of chance in medical negligence, the trend of intermediate appellate and first instance authority in Australia favours that approach. There is much to be said for consistency, whereby a chance above or below 50 per cent obtains no more and no less in compensation than the corresponding percentage, instead of an all or nothing approach. That should not open floodgates to loss of chance claims either in the medical field or more generally. First, the loss of chance must itself be established on the balance of probabilities, as also that the chance if offered would have been taken. Second, it is the very nature of the doctor's duty of reasonable care and skill that directs it to achieving the best chance of a favourable medical outcome, subject to informed patient choice and what is practically available. Duty in other spheres may have varying dimensions.
[53] The present is a case where loss of a chance does afford a proper basis for compensation. It highlights the importance of considering the duty of care not in isolation, but in conjunction with a fair assessment of the difficult task facing a doctor having to choose between various options each with their own risks.
[54] What is said by Professor Luntz in his article on loss of chance remains apposite, at 197:
'where a medical practitioner fails to exercise reasonable care, the aim of the law generally is not to reposition the plaintiff as though no treatment had been given, but as though proper treatment had been given … whether the claim lies in contract or tort. In many instances proper treatment could have done no more than give the plaintiff a chance of cure or alleviation of a pre-existing condition. This is something of value, something for which many people would give money. The law should treat such a chance as worthy of protection.'"
372 In the passage above extracted, Santow JA referred to the trend of intermediate appellate authority. His Honour did not refer specifically to two cases of intermediate appellate courts to which Mr Hall has drawn my attention: Gavalas v Singh (2001) 3 VR 404 and Chang v Australia Meat Holdings Pty Limited [2001] QCA 51. In Gavalas it was held by the Court of Appeal in Victoria that the plaintiff was entitled to be compensated for the loss of the chance of the complete removal of a tumour had it earlier been detected in a timely fashion. In Chang it was held by the Queensland Court of Appeal that damages were recoverable for the loss of a chance to avoid Q fever by appropriate vaccination. It is to be observed however that the latter decision concerned the failure of the defendant employer to advise its employee to consult his GP for advice as to vaccinaton. It was not a medical negligence case.
373 I referred earlier to the decision of the Court of Appeal in State of New South Wales v Burton: 221. In that case the plaintiff was a police marksman who was fired upon, but not hit, during a farm siege and he developed post traumatic stress disorder after this incident. It was held at first instance that the State was negligent in failing to provide counselling after the incident but on appeal it was determined that the PTSD was not caused by the failure to take counselling, but by the shooting itself. It was in this context that the Chief Justice and Hunt AJA said what was set out earlier at 221. However, the matter was remitted to the trial court to assess the relevant harm, which was the loss of the chance of a better outcome had there been due counselling. In the course of his judgment the Chief Justice cited Rufo v Hosking in the following context:
"25 The PTSD was not caused by the failure to have counselling, or take other ameliorative steps. It was caused by the shooting. The relevant loss in this case is the loss of a chance of a better outcome. The focus of attention must be on the extent to which the Respondent's condition would or could have been improved had earlier counselling been provided.
26 Any such reassessment should not extend to the loss of a chance that the Respondent would not have suffered PTSD at all. I do not understand Dr Wright to advance the proposition that that was a significant factor.
27 The onus was throughout on the Respondent, as plaintiff, to establish the existence and extent of the loss of the chance. On the basis of his Honour's findings it appears that there was a loss of such a chance and that, as a matter of causation, the Respondent has suffered some loss or damage. (See e.g. Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355; Olympic Holdings Pty Limited v Lochel [2004] WASC 61 at [122]-[123]; Rufo v Hosking (2004) 61 NSWLR 678 at 680.)"
374 The place of "the loss of a chance" claim in the medical negligence field was very recently considered by McClellan CJ at CL in Halverson & Ors v Dobler [2006] NSWSC 1307. The Chief Judge had before him four related claims. The principal claim was by the patient, and three family members also sought damages for nervous shock suffered by reason of the their relative's medical outcome. The patient suffered a cardiac arrest and hypoxic brain damage allegedly as a result of the negligent treatment afforded to him by the defendant, his general practitioner. The claim advanced was that the defendant should have recognised the cardiac problem before the occurrence of the catastrophic event. One of the ways in which the principal plaintiff advanced his case was for the lost chance of a better outcome. It was claimed that the defendant was negligent in not arranging for an ECG at a particular time. The Chief Judge gave very close attention and consideration to relevant authorities and identified what he perceived to be difficulties associated with the loss of a chance approach in a personal injuries case as contrasted with a claim for a lost commercial opportunity. Nevertheless, his Honour acknowledged he was bound to follow Rufo.
375 His Honour found however that had the timely ECG been administered there was at least a sixty-five percent chance of detection of pathology so as to avoid a cardiac arrest. In these circumstances, his Honour determined that the plaintiff was entitled to full recovery of damages. His Honour said (at 73-74 [248]):
"The Court of Appeal's decision is, of course, binding on me. [The decision referred to was the decision in Rufo.] However, it was concerned with a chance that was assessed to be less than 50%. Santow JA (at 688-690) suggests that the loss of a chance analysis should also apply where the chance is greater than 50%. If this is the correct approach to causation it would displace the presently accepted standard of proof in medical negligence cases. The other judgments in the case are confined to defining a principle where the chance is less than 50%. Hodgson JA expressed (at 681) the view that the loss of a chance analysis should only apply to chances of less than 50%, while in cases where the plaintiff can prove causation on the balance of probabilities (i.e. where the chance is greater than 50%) Malec should continue to apply so that damages are assessed taking into account the percentage chance that the injury would have occurred in any event. Accordingly, insofar as "loss of a chance" presently has a place in personal injury cases on the current state of the law in New South Wales it is in cases where the plaintiff cannot prove causation on the balance of probabilities, and accordingly the lost chance is less than 50%. This is consistent with the view expressed by Callinan J in Naxakis, and with the approach adopted by Spigelman CJ in Burton." [(supra), cited at [221(vii)]].
376 I am bound by the decision in Rufo. Unlike Halverson, the present case is one in which I consider the chance lost was less than a fifty percent chance. Hence, I conclude, notwithstanding Mr McCulloch's submissions to the contrary, that I am required to determine the claim made by the plaintiff for the loss of the chance of a better outcome, applying the principles to be found in Rufo. I have found that the plaintiff did suffer brain damage on 14 January 1991. In order to recover damages for the loss of the chance of a better outcome, the plaintiff has to prove on the balance of probabilities that there did exist a real chance that the plaintiff would have had a better outcome had the negligence in treatment not occurred. It is, of course, also encumbent upon the plaintiff to prove that if offered the opportunity of a CT scan and treatment subsequent to that, that opportunity would have been taken. I have earlier in this judgment expressed findings to such effect (see [300] and [306]).
377 I am satisfied on the probabilities as to the following: