Sun, 22 Feb 2004 15:59:32 +1100
seems to me that the Ontario court correctly characterised Cottrelle
v Gerrard as a loss of chance case (and I presume that
is why David Cheifetz compares it to Gregg
v Scott). Why do they cite two SCC decisions from Quebec
as foreclosing liability based on this doctrine? McLachlin CJ, who
was a party to both of them, has written extra-judicially 'Although
recovery for loss of chance has been considered in the context of
Quebec civil law, it has not been evaluated under the common law'
('Negligence Law - Proving the Connection' in N J Mullany & A M
Linden (eds), Torts Tomorrow: A Tribute to John Fleming,
LBC Information Services, Sydney, 1998, p16 at pp 25-6).
what it is worth, a judge in the Court of Appeal of Victoria has
said: 'No advanced system of law could now deny recovery where late
diagnosis, in breach of duty to the patient, appreciably reduces
the prospects of success of an operation' (Gavalas
v Singh  VSCA 23; (2001) 3 VR 404 at ). A judgment
based on loss of chance was upheld without any real consideration
of the issue by our Federal Full Court in Mouratidis
v Brown  FCAFC 330. It may be that this doctrine
will be confined to the medical negligence area, since otherwise
its potential is to undermine much causation doctrine, as Fleming
himself recognised in the article cited by the Ontario CA. I once
argued that McGhee should have been approached as a loss
of chance case ('Loss of Chance' in I Freckelton and D Mendelson
(eds), Causation in Law and Medicine, Ashgate/Dartmouth,
Aldershot, 2002, p 152), but I doubt whether that view will ever
be taken up.
commentators on Gregg v Scott suggested that it would go
to the House of Lords. Does anyone know whether that has happened?
Previous Message ~ Index ~ Next