Tabet Vs Gett Case Study

The basis of the distinction drawn by the court in Tabet v Gett (2010) between medical chances and commercial chances is difficult to accept as logical. For one thing, the measure of damages in commercial cases is no less obtained from the value of the commercial opportunity sought to be gained than the measure of damages for the chance of a better medical outcome is obtained from the physical injury sustained. Furthermore, by suggesting that the chance of a better medical outcome is of less value compared to a commercial opportunity fails to take into consideration the extreme lengths many individuals would go to and the extreme amounts of money they would be willing to pay, in order to gain the chance of a better medical outcome. Consequently,
The case concerned an appeal of a medical negligence case regarding a child who was misdiagnosed until a CT scan revealed that she, in fact, had a brain tumour . The treating physician was then subsequently sued on the basis that since the physician had not performed the CT scan when the child had been misdiagnosed . Therefore the child had lost the chance to have the brain tumour treated before the sustaining of permanent brain damage . At first instance, the case succeeded but failed on appeal . Additionally, the High Court also rejected the claim, on the basis that there were no policy reasons that would allow for recovery of damages based on a less than even chance of a better medical outcome . In spite of this, the High Court did not eliminate the possibility that a claim in a future medical case above the purported 50% standard would be allowed . Meanwhile, the case of Tabet v Gett (2010) demonstrates that patients that suffer as a result of medical negligence in Australia will face large injustice issues specifically in cases of late diagnosis. Therefore, it is only fitting to highlight the High Court’s stance on commercial chances where the High Court rejected the appellant’s argument that the fact that Australia already recognises loss of chance in commercial cases means that loss
Furthermore, the dissenting judges went on to argue that “justice requires that in the latter case as much as the former the loss of a chance should constitute actionable damage” . Indeed, it highlights that to allow for recovery for loss of chance in commercial cases while rejecting recovery for medical cases is inconsistent and irrational. In fact, one of the dissenting judges in the case of Gregg v Scott [2005] went on to argue that loss of chance in medical cases should be viewed as higher than loss of chance in commercial cases because “there is not much difference between the money one expected to have and the money one expected to have a chance of having: it is all money” . While loss of chance in relation to personal injury would create a difference between “the disease free state one ought to have and the chance of having a disease free state which one ought to have” . Even so, it is still not entirely clear nature of financial loss is relatively different to a loss of a better medical outcome. Anyway, even if it is accepted that such a difference exists, it fails to explain why the loss of chance of avoiding injury should not be considered actionable for the purposes of negligence