Naxakis v Western General Hospital (1999) 197 CLR 269
Tort; Negligence; harm; lost opportunities.
Facts: Naxakis, a 12-year-old boy, was struck on the head by a fellow schoolboy. He was taken to the Western General Hospital and treated, but no angiogram was performed. An angiogram might have revealed the aneurism that, being undetected, was left untreated and led to later internal bleeding and brain damage. It was argued that failure to perform an angiogram deprived Naxakis of the chance of successful preventative treatment.
Issue: Are damages properly awarded to compensate for loss of an uncertain opportunity or 'chance'?
Decision: Such damages may be awarded.
Reason: Callinan J said (at [128] - [129]):
"There is still, in my opinion, room for the operation of the loss of chance rule (particularly in cases involving the practice of what is even today said to be an art rather than a scientific skill), enabling a plaintiff to recover damages to be equated with, and reduced to the value of the chance he or she has lost, rather than the damages which would be appropriate if it has been proved on the balance of probabilities that the plaintiff's condition owes itself to the defendant's acts or omissions.
"It must be acknowledged that this approach is not without its difficulties. If the chance that has been lost is a 51 per cent or greater chance, why should not the plaintiff be taken to have proved his or her case on the balance of probabilities? I think that in such a situation, the plaintiff has, and should recover his or her damages in full."