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Avoid the Hustle

damages for lost chances

Category: Book Report

Speaking of “lost chances”, Kiefel J in Tabet v Gett (2010) 240 CLR 537 at 581; [2010] HCA 12 at [124] said: “What cases in contract, such as The Commonwealth v Amann Aviation Pty Ltd and Sellars v Adelaide Petroleum NL, have in common is that the commercial interest lost may readily be seen to be of value itself. The same cannot be said of a chance of a better medical outcome or a person’s interest in it”. Referring to Tabet (which was a unanimous decision) and to the 3:2 decision of the House of Lords in Gregg v Scott [2005] 2 AC 176, Birch comments that “a consideration of the reasoning provided in those two cases demonstrates that the strength of the arguments for the [loss of chance] doctrine was not adequately discussed, while fallacious or unpersuasive arguments against the doctrine were given decisive weight: David Birch, “Tabet v Gett: The High Court’s own lost chance of a better outcome” (2011) 19 Tort L Rev 76 at 85.

Is Kiefel J’s distinction between “commercial” and “medical” chances convincing? Why or why not?