From: Sandy Steel <>
To: 'Robert H Stevens' <>
'Neil Foster' <>
Date: 09/04/2009 16:40:08 UTC
Subject: RE: Loss of chance in medical cases

Just a few thoughts on what Prof. Stevens has written.

Does it make sense to distinguish sharply in terms of recovery for loss of a

chance between situations of where some wrong is established, like a breach

of contract, or per Prof. Stevens, a doctor's duty, and the standard

physical injury situation?

I'm not sure, but probably not.

First, this distinction masks what is essentially the same problem for a

claimant in the standard Donoghue duty position and the doctor case: both

can prove negligence; neither can meet the civil standard of proof on

causation: i.e proof of causation on the balance of probabilities. The

crucial problem is one of evidential uncertainty.

What is it about the doctor's duty which allows a claimant to recover for

this evidential uncertainty (based on increased risk, or more accurately,

probability of causation)? Some (e.g Goldberg & Zipurksy (2002, Unrealized

Torts 88 Va. L. Rev)) argue that the doctor's duty is to look out for the

C's chances, it is a duty to maximize chances. But does it not follow from

this that C's damages should be limited to the probability of causation, i.e

if C can only show an 80% probability of causation? Perhaps that is not

problematic, after all damages are reduced for the probability that it would

have happened anyway: Smith v. Leech Brain [1962].

The point, in general terms, is that a loss of a chance represents

essentially an epistemic uncertainty regarding some state of the world. If,

in principle, all the causal laws and states of the world were known and

accurately described then it would be possible to determine whether some D's

conduct was causal or not. (We can ignore indeterminacy at the quantum level

which as Austin said, would have little effect at the level of "medium sized

dry goods"). Thus any justification of allowing recovery for loss of chances

must show why a type of evidential uncertainty is recoverable. As a result a

distinction between wrongs per se and consequential losses won't do the job.

Second, the US position does not give much support to the general form of

the argument. Recovery for lost chances is limited to the medical

malpractice field in the states which recognize it; and has not (as far as I

know) been applied in the contexts in which it has been in England: e.g

solicitors. Indeed, and I'm a little out on a limb here, is it not the

formal position in US contract, in so far as one can generalize, that

consequential damages are recoverable only where "reasonably probable",

interpreted as "likely" to occur?

Third, on Gregg v. Scott.

"Gregg v Scott was not a lost chance case as the court seems to think. The

plaintiff suffered an increased risk of an adverse outcome. He hadn't

suffered that outcome (death) at the time of trial or appeal. An increased

risk of something occurring in the future is not the same as the lost chance

of avoiding an outcome which has happened".

That is true, but misleading. In principle, increasing a risk of harm is the

mirror image of causing a loss of chance of a benefit. (All that would

change had C in Gregg suffered the harm would be the accuracy of the

probability that D had caused it). In so far as the liability is based on an

increased risk, the actual occurrence of the outcome is a contingency. All

that shows is that the liability really isn't based on an increased risk,

even if that measures the damages. Rather, I would argue, it shows (and this

justification is too wide, I admit) that where a C has suffered damage,

certain evidential uncertainties are better distributed proportionately.

In short, I think something more like Porat & Stein's evidential damage

doctrine will be a more explanatory tack than a division between wrongs per

se and consequential damages.

It would be interesting to hear some thoughts on this though, if anyone has

the time.

Best wishes,

Sandy Steel

Phd Student, Cambridge.

-----Original Message-----

From: Robert H Stevens []

Sent: 09 April 2009 16:11

To: Neil Foster


Subject: Re: Loss of chance in medical cases

Very disappointing. I think it is wrong as a matter of principle.

We need to separate sharply between the question of whether the plaintiff

has suffered a wrong at the hands of the defendant from the question of

what loss has been suffered as a result of the wrong.

Negligently causing other people to lose chances is not in itself

wrongful. So, if I negligently release a noxious chemical which 100,000

people inhale, if 25 years later there are 150 cases of lung cancer when

without the release there would have been only 100, all of those who

suffer from the disease can show that I have caused them to lose the

chance of avoiding the disease but none can show that I have

injured/wronged them as on the balance of probabilities each would have

suffered the disease anyway. They all lose. If there were 250 cases

instead of the normal 100, they all win.

If however I wrong you, losses consequent upon the wrong, including lost

chances, should be actionable.

So, if I break a contract with you by denying you the chance to win a

beauty contest, you can recover for the lost chance of winning: Chaplin v


If I negligently injure you so that you lose the chance of winning a clay

pigeon shooting contest, that loss is also recoverable: Girvan v Inverness

Farmers Dairy.

If I breach a statutory duty owed to you so that you lose valuable

commercial opportunities, that is also actionable: Sellars v Adelaide

Petroleum NL [1994] HCA 4.

If I negligently destroy your mechanical dinosaur, the lost chance of

making profits from it should be, and is, recoverable: Glenmont

Investments |Pty v O'Loughjlin (no 2) [2000] SASC 429

Is Gett v Tabet a case where the plaintiff cannot show that she has

suffered a wrong, similar to the chemical leak? I would argue no. The duty

owed by the surgeon is not the standard Donoghue v Stevenson duty, that we

owe to all others who we can reasonably foresee could be injured by our

conduct, to care with respect to them. Rather he owed a duty which he had

voluntarily assumed by accepting the patient that he would take care in

carrying out the treatment. This is (observably) not the same as the

Donoghue duty, as it is not just a duty not to injure. If she had paid she

would have a claim for breach of contract. The breach of this voluntarily

assumed duty should be actionable to the extent that she has suffered

loss: here the lost chance of avoiding brain damage.

Just as where economic loss is recoverable where suffered as a result of

the breach of a voluntarily assumed duty (Hedley Byrne), so should be lost

chances. "Pure" lost chances (ie lost chances which are not consequential

upon the violation of a right) should not be actionable, but this was not

such a case.

I think the US cases allowing for recovery of lost chances in medical

negligence cases are to be preferred, and that the recovery for lost

chances for breach of voluntarily assumed duties which is found elsewhere

(eg contract, solicitors, Spring v Guardian Assurance) should in principle

be generalised.

[As an aside Gregg v Scott was not a lost chance case as the court seems

to think. The plaintiff suffered an increased risk of an adverse outcome.

He hadn't suffered that outcome (death) at the time of trial or appeal. An

increased risk of something occurring in the future is not the same as the

lost chance of avoiding an outcome which has happened.)


> Dear Colleagues;

> An important decision of the NSW Court of Appeal rules against recovery

> for loss of a chance in medical cases. On behalf of Harold Luntz:


> In Gett v Tabet [2009] NSWCA 76 (9 April 2009) the court, in a joint

> judgment, has rejected the doctrine of loss of chance of a better outcome

> in medical negligence cases. It refused to follow Rufo v Hosking [2004]

> NSWCA 391; (2004) 61 NSWLR 678 (CA) and Gavalas v Singh [2001] VSCA 23;

> (2001) 3 VR 404 (CA). One must have sympathy for the trial judge, Studdert

> J, who had rejected the doctrine in Rufo at first instance, but been told

> on appeal that he was wrong. In the present case, he had held himself

> bound by Rufo (see Tabet v Mansour [2007] NSWSC 36 (9 February 2007)), but

> has again been reversed (though the CA does say he was indeed bound by

> Rufo). Even more sympathy must go to the unfortunate plaintiff, a child

> with extensive brain damage.


> NF: The decision is online at



> b8cf9111de9ba837ca2575900008a8ca?OpenDocument . (Sorry about the length of

> the link- the decision is not on Austlii yet and given the Easter long

> weekend here may not be for a few days.) Those who have followed this

> on-off debate for a few years will be able to guess that I personally

> think the decision is perfectly correct as a matter of law, though I take

> Harold's point that it leaves the young plaintiff in a very bad way. Among

> the legal issues there is an interesting discussion on the circumstances

> in which an intermediate appellate court should depart from one of its own

> prior decisions.


> Regards

> Neil Foster


> Neil Foster

> Senior Lecturer & LLB Program Convenor

> School of Law

> Faculty of Business & Law

> University of Newcastle

> Callaghan NSW 2308


> ph 02 4921 7430

> fax 02 4921 6931



Robert Stevens

Professor of Commercial Law

University College London