Loss of Chance

So far the High Court of Australia has not been faced with a clear-cut case of loss of chance in a medical negligence appeal. Special leave to appeal was refused in the case from which the above extract is taken, mainly because the issue had not been litigated below and the necessary findings of fact had not been made. Cases will seldom be litigated on the basis of loss of a chance, because both plaintiff and defendant are hopeful of complete victory .2 Nevertheless, experience in other jurisdictions suggests that Kirby J is right in saying that one day the court will have an opportunity to consider the issue.