Volume 197 - Issue 8
Legal clarification of “loss of chance of a better outcome” in Australia
Authors: Neera Bhatia and James Tibballs
Med J Aust 2012; 197 (8): 446. || doi: 10.5694/mja12.10579
Published online: 15 October 2012
Published online: 15 October 2012
To the Editor: In deference to Grattan-Smith,1 defendant doctors are clearly advantaged and plaintiff patients disadvantaged by the High Court’s decision in Tabet v Gett,2 because a patient must now prove on the balance of probability (> 50%), not possibility (< 50%) as before, that negligence by the doctor caused harm.
Nonetheless, like us, Grattan-Smith empathises with the harmed plaintiff who receives no compensation and bears all litigation ...
To the Editor: In deference to Grattan-Smith,1 defendant doctors are clearly advantaged and plaintiff patients disadvantaged by the High Court’s decision in Tabet v Gett,2 because a patient must now prove on the balance of probability (> 50%), not possibility (< 50%) as before, that negligence by the doctor caused harm.
Nonetheless, like us, Grattan-Smith empathises with the harmed plaintiff who receives no compensation and bears all litigation costs. In lieu of “loss of chance” as course of action, he suggests that Australia adopt “a universal disability insurance scheme”. In such no-fault insurance systems in New Zealand, the United States and Scandinavia, an entitlement to compensation is not linked to proof that personal injury is the fault of another.3
A no-fault insurance scheme was proposed in the Australian Woodhouse Report under the Whitlam Government.4 Although it was considered less costly than the present partial compensation scheme and would embody community responsibility for inevitable (medical) accidents of modern society, it was not adopted due to legal scare tactics.5 Like Grattan-Smith, we support adoption of a similar scheme, as proposed by the Gillard Government.
Competing interests
No relevant disclosures.
References
- Grattan-Smith PJ. Legal clarification of “loss of chance of a better outcome” in Australia [letter]. Med J Aust 2012; 197: 273. CBBGIJJI
- Tabet v Gett [2010] HCA 12. i1142861
- Drabsch T. No fault compensation. Briefing paper no. 6/05. Sydney: NSW Parliamentary Library Research Service, 2005. http://www.parliament. nsw.gov.au/prod/parlment/publications.nsf/key/NoFaultCompensation (accessed Sep 2012).
- National Rehabilitation and Compensation Scheme Committee of Inquiry. Compensation and rehabilitation in Australia: report of the National Committee of Inquiry. Canberra: AGPS, 1974. CBBEEADD
- Luntz H. Reform of the law of negligence: wrong questions — wrong answers. UNSW Law J 2002; 25: 836. CBBHJEGF