Is a doctor held responsible for failing to diagnose something?

29-November-2010 Family Law General By Simone Green

The case of TABET V GETT [2010] in the High Court of Australia (12 April 2010) investigated this.

Facts behind the case

On 11 January 1991, the appellant was admitted to the Royal Alexandra Hospital for Children with symptoms of headaches, vomiting and nausea after suffering from the chickenpox.  She was examined by the paediatrician respondent and provisionally diagnosed as suffering from chickenpox, meningitis or encephalitis.

On 14 January 1991, the appellant suffered a seizure, and was diagnosed with a brain tumour following a CT scan and EEG.  The appellant suffered irreversible brain damage after undergoing treatment and an operation to remove the tumour.
Nineteen years on and the appellant argued that the respondent breached his duty of care and skill by causing or contributing to her injury. The appellant alternatively argued that the respondent’s breach of duty of care and skill led to “the loss of an opportunity to avoid injury, loss and damage”.  The appellant submitted that if the respondent had performed the CT scan earlier, she would have had a better medical outcome.  

High Court Decison

The High Court unanimously dismissed the appeal.

Legal question about a doctor’s negligence

Does the common law of negligence in Australia recognise a less than even chance of avoiding an adverse health outcome as an interest of value to a patient, the loss of which by reason of a doctor’s negligence, can be compensated as damage suffered by that patient? [Heydon J, para 71]

Threshold test proving medical negligence

The three elements of a cause of action in medical negligence, necessary to be established in order to recover compensation, are:

  1. a duty owed by the medical practitioner to the plaintiff to avoid harm which is reasonably foreseeable,
  2. a breach of that duty, and
  3. damage which results from that breach.  [para 108]

Causation and analysis of loss of opportunity


The majority judgment of HAYNE & BELL JJ set out the law of relating to the ‘loss of chance’ as follows:

  • The Doctor should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was. [para 68]
  • It need only be observed that the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant’s negligence was more probable than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so. [para 69]


Justice KIEFEL J added his further comments that:

  • Properly analysed, what is involved in the chance referred to in this case is the possibility, to put it at its highest, that no brain damage would occur or that it would not be so severe.  They are the “better medical outcomes” involved in the chance.  Expressing what is said to be the loss or damage as a “chance” of a better outcome recognises that what is involved are mere possibilities and that the general standard of proof cannot be met.  Thus the appellant could only succeed if the standard of proof is lower than the law presently requires. [para 143]
  • The requirement of causation is not overcome by redefining the mere possibility, that such damage as did occur might not eventuate, as a chance and then saying that it is lost when the damage actually occurs.  Such a claim could only succeed if the standard of proof were lowered, which would require a fundamental change to the law of negligence. [para 152]
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