Tabet v Gett: the end of loss of chance actions in Australia?

This article critically analyses the recent High Court decision in Tabet v Gett (2010) 84 ALJR 292; [2010] HCA 12 which considered whether a person should be able to obtain compensation on the basis of a loss of a chance of a better medical outcome. The appellant argued that the High Court should regard a plaintiff as entitled to compensation when a breach by a defendant of their duty of care causes the plaintiff to lose a possibility, but not a probability, of a better medical outcome. The High Court held that it was not possible for a person in the position of the appellant to obtain compensation for the loss of a chance of a better medical outcome.     

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?     

Why wrongful birth actions are right

A wrongful birth action is a claim in negligence brought by parents of a child against a doctor who has "wrongfully" caused their child to be born. These claims can be divided into two categories: those where a doctor performs a failed sterilisation procedure that leads to a healthy child being born; and those where a doctor fails to provide sufficient information to allow parents to choose to abort a handicapped child. The recent decision of the High Court of Australia in Cattanach v Melchior (2003) 77 ALJR 1312 falls into the former category. The decision to allow the parents to receive damages for the costs of raising and maintaining their child has generated much public debate. Despite the endorsement of this "wrongful birth" action, there are indications that the legislature will overturn the decision. This article examines whether there is a sound doctrinal basis for recognising wrongful birth actions.     

Factual causation in medical negligence

The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. Even when supplemented by the "material contribution" principle, satisfying the onus of proof of causation can be an insuperable obstacle for plaintiffs, particularly in medical cases. Yet, having found a breach of duty, a court's sympathies may gravitate toward the plaintiff at this point in the case. Accordingly, courts have sometimes accepted a relaxation of strict causation principles. The judicial devices are described: a special principle of causation in particular duties of care; a shifting burden of proof; "bridging the evidentiary gap" by drawing a robust inference of causation; treating a material increase in risk as sufficient proof of causation; and permitting causation to be established on the basis of the loss of a material chance of achieving a better outcome and discounting damages. In Accident Compensation Corp v Ambros [2007] NZCA 304 the New Zealand Court of Appeal recognised the need for a legal device to ameliorate the injustice sometimes caused by the strict rules of causation, and preferred the "inferential reasoning" approach favoured by the Canadian common law for use in the context of the accident compensation scheme. It is hoped that the New Zealand Supreme Court approves Ambros if the opportunity arises.     

Bouvia v. Glenchur

Bouvia, a quadriplegic with cerebral palsy, earlier had failed to win Superior Court injunctions to restrain personnel at Riverside General Hospital from force feeding her if she attempted to starve herself to death while in their care [Bouvia v. County of Riverside, Trial court decision (in Bouvia I), No. 159780, 8 Feb 1984]. In this case, she sought a preliminary injunction restraining the staff of High Desert Hospital from continuing to feed her through a nasogastric tube, and from placing her on a special bed to control bed sores. In denying her request, the Superior Court ruled that, despite her claims to the contrary, Bouvia's refusal of nutrition and medical treatment was motivated by an intention to kill herself using public facilities, and not by a desire to exercise her right of privacy.     

United Kingdom: HIV-positive asylum seeker denied judicial review of removal decision

The High Court of Justice had dismissed an application for a judicial review of a decision by immigration officials not to grant the applicant leave to remain in the UK on the basis of her HIV status. In December 2002, the Court of Appeal denied the applicant permission to appeal the High Court's decision, reasoning that an appeal under section 65 of the Immigration and Asylum Act, already initiated, would be more appropriate and advantageous.     

Attorney General v. X

In this case in which a 14-year-old girl said she had become pregnant after being raped by her friend's father, the Attorney General of Ireland had enjoined the girl and her parents from traveling to England for an abortion. A psychologist had testified that in her present state of mind, the girl was suicidal. The Supreme Court of Ireland held that the right to life supersedes all other rights, including the right to travel. However, if there is a real and substantial risk to the life of the mother which can only be avoided by termination of the pregnancy, then an abortion is permissible. The Court determined that the girl's risk of suicide satisfied this condition, and therefore the girl was allowed to terminate her pregnancy.     

Fatal meningitis and encephalitis due to Bartonella henselae bacteria

Bacterial infection due to Bartonella henselae commonly develops in children and young adults following cat/dog contacts and/or cat/dog scratches. Regional lymphadenopathy is its most common clinical expression. However, encephalitis and Parinaud's syndrome (oculoglandular syndrome) have also been reported as has systemic illness. A review of the international literature in all languages revealed no fatal complications in immunocompetent hosts. A four-year-old white child with no underlying illness began to have seizure-like activity. She was taken to a local hospital and subsequently transferred to a medical center. The child was treated aggressively for seizures and fever of unknown origin. However, her condition rapidly declined and she died without a specific diagnosis. At autopsy there was marked cerebral edema with no gross evidence of acute meningitis. Microscopic exams revealed multiple granulomatous lesions as well as a meningitis and encephalitis. A variety of cultures and stains were negative for acid fast and fungal organisms. Warthin-Starry stains of involved tissue including brain and liver revealed pleomorphic rod shaped bacilli consistent with Barronella henselae. Analysis of brain tissue with polymerase chain reaction (PCR) and Southern blot for the deoxyribonucleic acid (DNA) was definitive for DNA of Bartonella henselae bacteria.     

The "last vestiges of life"

On 4 June 2010, Deputy State Coroner Schapel of the Coroner's Court of South Australia ruled that he had jurisdiction to conduct an inquest into the death of Tate Spencer-Koch, who was declared deceased following complications during her home-birth. Coroner Schapel considered he had jurisdiction on the basis that Tate was a "person in the eyes of the law" under the born alive rule, as she had completely left her mother's body and she could be shown to have been alive after birth, evident from the PEA detected in her heart 10 minutes following her delivery. Close consideration of this ruling, however, reveals issues with the application of the born alive rule in the case.     

Woman wins claim for tax deductability of complementary/alternative medical expenses

On 30 April 2001, the Tax Court of Canada granted judgment in favour of a Victoria woman who claimed that she should be entitled to deduct from her taxable income, as legitimate "medical expenses," her expenses for vitamin supplements and for rehabilitative therapies such as massage and therapeutic touch.     

Wrongful life actions: the legal and ethical hurdles

This article discusses the various legal and ethical issues arising out of the cause of action for wrongful life. This action involves a claim by a child that but for the negligence of the doctor, hospital or other medical institution, his or her mother would have terminated the pregnancy and he or she would not have been born. The courts have generally rejected this cause of action on the basis of legal, ethical and policy considerations. The author proposes that the legal hurdles can be overcome and that the ethical and policy considerations do not outweigh the desirability of upholding wrongful life claims.     

Gillick v West Norfolk and Wisbech Area Health Authority

England's Court of Appeal, Civil Division, ruled that parents had the right to prevent a physician at the local health authority from prescribing contraceptives to girls under the age of 16 without parental consent. Since a girl was legally incapable of giving valid consent in other matters before that age, neither could she give valid consent to contraception or abortion. A doctor who provided contraception or abortion treatment to a girl under 16, except in an emergency or with permission of the court, would infringe on the legal rights of the parents. An appeal was taken to the House of Lords.     

试论行政诉讼级别管辖制度的完善

按照行政诉讼法级别管辖的规定,我国绝大多数的行政案件都由基层人民法院管辖。这种级别管辖制度的设置会导致司法不公正、司法资源的闲置和浪费、公民的诉权得不到保障和行政职权被滥用等问题。解决以上问题的根本方法是提高一审案件的管辖级别,一审案件由中级人民法院管辖,取消基层人民法院对行政案件的管辖权;相应调整高级人民法院和最高人民法院的审理范围;增设巡回审判机关,以解决对当事人造成的不便;建立＂异地交叉审理制度＂,作为对改革后的级别管辖制度的补充。     

Google liability for misleading or deceptive conduct: Australian perspective

On 6 of February 2013, the Australian High Court handed down an important decision in respect of the Google Inc's (Google) appeal against the decision of the Full Federal Court of Australia, holding that Google a search engine operator was not liable under s 52 of the Trade Practices Act (TPA) 1974 (Cth) for misleading or deceptive conduct (in respect of misleading advertisements published using Google's online ‘AdWords program’). The decision of the High Court is of great significance for jurisprudence on misleading and deceptive conduct with its broad implications for search engine providers such as Google, advertisers and trademark owners.     

医师注意义务的概念及其与医疗过失行为的关系--医师的注意义务系列研究(1)

医疗过失问题,是医患纠纷的焦点.医师的过失行为本质是一种客观过失,是对医师注意义务的违反,因为任何医师在自己从事特定的医疗行为时都必须达到相应的医疗水准.医师的注意义务是指医师在医疗行为时依据法律、法规、规章制度和具体操作规程,以及职务和业务上的习惯和常理、接受期约或委托的要求等保持足够的小心谨慎,以预见医疗行为的结果和避免损害结果发生的义务.     

The Uneasy Case for Comparative Negligence

This article questions, and in some contexts disproves, thevalidity of the efficiency justifications for the comparativenegligence rule. One argument in the literature suggests thatcomparative negligence is the superior rule in the presenceof court errors. The analysis here shows the analytical flawin this claim and conducts numerical simulations — a formof synthetic "empirical" tests — that prove the potentialsuperiority of other rules. The second argument in the literaturein favor of the comparative negligence rule is based on itsalleged superior ability to deal with private information. Thisarticle develops a general approach to liability rules as mechanismsthat induce self-selection among actors. It then shows thatself-selection can occur, not only under comparative negligence,but also under every other negligence rule. These conclusionsweaken the efficiency explanation for the growing appeal ofthe "division-of-liability" principle within tort law and beyond.     

Ethnic origin of the victim as an aggravating factor in sentencing sexual offenders

This article examines R v Jamal Muhammed Raheem Ul Nasir, a Court of Appeal case where leave to appeal against a seven-year custodial sentence for sexual offences against children was refused. The appellant argued that his sentence length was excessive because the judge viewed the female victims’ ethnic and religious origin as an aggravating factor. In light of a number of charities’ condemning the judgment, this article evaluates whether the Court of Appeal made the correct decision, particularly in the wider context of sentencing principles. It also considers whether causing shame to a victim and her family can be regarded as an aggravating factor when sentencing sexual offences, and discusses the circumstances where the victim’s ethnic origin should be taken into account.     

Balancing public health and practitioner accountability in cases of medical manslaughter: reconsidering the tests for criminal negligence-related offences in Australia after R v Patel

In 2010 Dr Jayant Patel was convicted of several offences on the basis of criminal negligence. Following the Queensland Court of Appeal's 2011 endorsement of the trial judge's decision, the case provides a timely opportunity to review prosecutions for medical negligence criminal offences throughout Australia and to critically examine the tests in assessing whether the balance has been correctly struck. The author argues that the thresholds required for prosecutions for criminal negligence for medical manslaughter are problematic and unduly onerous, and do not adequately strike the balance between the utilitarian value in health care and patient safety, on the one hand, and practitioner accountability and deterrence, on the other. This article considers reforms to remedy the imbalance, including a reformulation of the Criminal Code (Qld) and common law thresholds, proposals for the enactment of a separate offence of criminally negligent manslaughter and the utilisation of corporate prosecutions for manslaughter liability to broaden accountability in health care and promote patient safety on a systemic level.     

HIV-positive child made ward of court after father refuses treatment with antiretroviral drugs

In 1999, we reported a number of cases in Canada, the US, and the UK in which child-welfare authorities have disputed parents' decisions to refuse HIV testing or treatment for their children. This article reports on new developments in one of those cases. On 10 May 2002, the English High Court heard submissions regarding the future of a three- year-old HIV-positive girl who was made a ward of the court after her father refused to allow her to be treated with antiretroviral drugs.     

Re Edwards (2011) 4 ASTLR 392: who owns a dead man's sperm?

Re Edwards (2011) 4 ASTLR 392; [2011] NSWSC 478 adds to the small line of cases to have considered whether a woman can not only require medical staff to remove sperm from her dead male partner, but whether she is justified in terms of law and international human rights to use it to create children. In this case a Justice of the New South Wales Supreme Court framed the issue as "what right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?" He did so, despite the manifest ambiguity and difficulty in characterising the legislative rights in this case, without referring to substantive human rights obligations under international Conventions to which Australia is a ratifying party (particularly Art 10 of the United Nations International Covenant on Economic, Social and Cultural Rights and Art 23 of the United Nations International Covenant on Civil and Political Rights. Technological advances such as those creating the possibility of capturing a dead person's sperm by electro-ejaculation and creating children by subjecting it to intracytoplasmic sperm injection in connection with in vitro fertilisation have altered the balance of individual and social interests in deciding who should be regarded as owning a dead man's sperm and how that relates to basic common law rights of bodily inviolability without free consent. It is to be regretted that in jurisdictions lacking relevant constitutional human rights, or legislation requiring coherence with international human rights, judges do not avail themselves in cases of statutory ambiguity of interpretative insights to be gained from legally binding human rights treaties to which Australia is a party.