The relevant facts were as follows:
- The appellant was six years old when she was readmitted to hospital on 11 January 1991 with symptoms of vomiting and headaches. She had recently suffered from chickenpox. The respondent diagnosed the appellant as having post chickenpox meningitis. The respondent ordered a lumbar puncture be performed that day to confirm/negative that diagnosis but this could not be done due to the girl’s distress concerning the procedure.
- On 13 January 1991, the appellant had a neurological episode in that her pupils were observed to be unequal and her right pupil was not reactive. The respondent ordered a lumbar puncture be performed urgently and it was done so.
- On 14 January 1991, the appellant’s condition deteriorated. She suffered a seizure. A CT scan was performed urgently revealing a brain tumour, known as a medulloblastoma. A right frontal intraventricular drain was inserted by Dr Maixner to relieve intracranial pressure.
- At trial, it was held that the respondent was negligent in not having ordered a CT scan on 13 January 1991 after the neurological episode became evident. This finding was not the subject of this appeal.
- On 16 January 1991, Mr Johnston and Dr Maixner removed the brain tumour. The removal was only partially successful.
- At trial, the trial judge did not find on the balance of probabilities that if the respondent had ordered a CT scan on 13 January 1991 and the appellant was treated upon the discovery of the tumour, the brain damage that occurred would have been avoided. However, the appellant argued that she had been deprived of the chance of a better medical outcome by reason of the delay in the treatment that she could have received and was entitled to compensation for that loss. The earlier detection of the tumour would have allowed for treatment to reduce the intracranial pressure which would have had some beneficial effect. The trial judge had made an award for this so called loss of chance of a better medical outcome, whilst the Court of Appeal had refused such an award.
The High Court has now explicitly determined that the loss of a chance of a better medical outcome in circumstances where the physical injury suffered is not shown to have been caused or contributed to by a negligent party, cannot be the subject of compensable damages. As noted by Crennan J, any change to the current position would need to be the subject of legislative amendment.