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Gregg v Scott, House of Lords, 27 January 2005

4 February 2005
The issues

Medical Negligence – Loss Of A Chance – Balance Of Probabilities – Whether Claimant Should Be Compensated In Respect Of A Loss Which Is Less Than 50% Likely To Eventuate

The facts

The Claimant sued his doctor for negligence for failing to recognise that he might have had cancer. When shown by the Claimant a lump under his arm the doctor told him it was a collection of fatty tissues. That explanation was the most likely one but it was wrong. The Claimant had cancer of a lymph gland.

The cancer was discovered a year later by another GP. By that time the tumour has spread into his chest. The Claimant suffered a good deal of pain and had to undergo high dose chemotherapy. The treatment temporarily destroyed the tumour but was followed by a re-lapse which left the Claimant with a poor chance of survival. The Claimant alleged that the prospects of obtaining a cure had been reduced to below 50% by the late diagnosis.

The Judge found that the delay had not deprived the Claimant of a prospect of a cure because he would probably not have been cured anyway. He therefore dismissed the actions. This was on the basis that evidence of the delay had reduced the chances for survival for more than 10 years from about 42% to 25%. The Claimant appealed to the Court of Appeal which dismissed the appeal by a majority. The Claimant appealed further to the House of Lords.

The decision

The Claimant relied amongst other arguments on the principal that in quantifying a loss likely to have been caused by the Defendant’s wrongful act, the Court would take into account possibilities, even though those possibilities did not amount to probabilities – see Mallett v McMonagle and Doyle v Wallis. Thus in the case of a Claimant who had been injured by the Defendant, the Claimant would be compensated for the possibility that after injury by the Defendant he might suffer some complications such as arthritis in a damaged joint.

This principle had no application to the present case because it applied only where it was proved that the damage was attributable to the Defendant’s wrongful act. In this case the question was not whether the Claimant was likely to survive more than 10 years but whether his likely premature death would be attributable to the wrongful act of the Defendant.

The second argument that the Claimant relied on was that the reduction in the prospect of a favourable outcome (loss of a chance) should be a recoverable head of damages. There were cases in which it was – see Chaplin v Hicks. Application of this principle to cases of clinical negligence had been rejected by the House of Lords in the cases of Hotson v East Berkshire Area Health Authority and Wilshire v Essex Area Health Authority. In Fairchild a special rule imposing liability for conduct which only increased the chances of the employee contracting the disease had been accepted by the House of Lords but that rule was restrictively defined in terms which made it inapplicable to this case. The law acted on the assumption that the world was in principal bound by laws of causality – everything had a determinate cause even if we did not know what it was. There was no inherent uncertainty about what caused something to happen in the past or about whether something which had happened in the past would cause something to happen in the future.

Everything was determined by causality. What was lacking was knowledge and the law dealt with lack of knowledge by the concept of the burden of proof.

One striking exception to the assumption that everything was determined by impersonal laws of causality were the actions of human beings. This may provide part of the explanation why in some cases damages were awarded for the loss of a chance of gaining an advantage or avoiding a disadvantage which depended upon the independent action of another person – see Allied Maples Group Ltd v Simmons & Simmons. The true basis of these cases was more complicated however. For example, the law distinguished between cases in which the outcome was dependant on what the Claimant himself or someone for whom the Defendant was responsible would have done and cases in which it depended upon what some third party would have done. In the first type of case the Claimant had to prove on a balance of probability that he or the Defendant would have acted so as to produce a favourable outcome. In the latter class he might recover for loss of the chance that the third party would have acted in that way. This arbitrary distinction rested on grounds of policy.

In addition, many of the cases in which there had been recovery for loss of a chance involved financial loss where the chance itself could plausibly be described as an item of property – like a lottery ticket.

It had been argued that in cases of clinical negligence the need to prove causation was too restrictive of liability. In effect, the Claimant had argued that the exceptional rule in Fairchild should be generalised and damages awarded on all cases in which the Defendant may have caused an injury and had increased the likelihood of the injury being suffered.

To adopt such a rule would involve abandoning a good deal of authority. Moreover it would be to dismantle all the qualifications and restrictions which had been erected about the Fairchild exception. There were no new arguments or change of circumstances which could justify such a radical departure from precedent. (Lord Hoffman).

The exercise of assessing the loss of a chance in clinical negligence cases was not an easy one. Deductions could not safely be drawn from statistics without expert evidence. The task of determining the effect of negligence on a balance of probabilities was very much easier and it was always likely to be much easier to resolve issues of causation on balance of probabilities than to identify in terms of percentage the effect that clinical negligence had on the chances of a favourable outcome. This reality was a policy factor weighing against the introduction to this area of a right to compensation for the loss of a chance. (Lord Phillips).

Baroness Hale agreed that the appeal should be dismissed; Lord Nicholls and Lord Hope dissented.

Appeal dismissed.

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