#6619 - Gregg V. Scott - Commercial Remedies BCL

Gregg v. Scott

Facts

My Lords, this is an action against a doctor for negligence in failing to recognise that his patient might have cancer. When Mr Gregg showed Dr Scott a lump under his arm, the doctor told him it was a collection of fatty tissues. That was the most likely explanation but unfortunately it was wrong. Mr Gregg had cancer of a lymph gland. This was discovered a year later, when another GP referred him to a hospital for examination. By that time, the tumour had spread into his chest. He suffered a good deal of pain and had to undergo a particularly debilitating course of high-dose chemotherapy. The treatment temporarily destroyed the tumour but was followed by a relapse which left Mr Gregg with a poor prospect of survival.

Mr Gregg alleged in his particulars of claim that Dr Scott ought to have referred him to a hospital for examination. His "particulars of pain and injury" alleged that if he had been diagnosed earlier "there would have been a very high likelihood of cure".

Question

The question which has given rise to this appeal is whether Dr Scott's negligence caused injury to Mr Gregg. As I have said, the injury of which he complained was that the delay had reduced his prospect of a cure to less than 50%.

Holding

The Quantification argument

In the Court of Appeal Mr Gregg's counsel advanced two arguments. The first was that Mr Gregg had proved that the delay had caused him injury because the judge found that if he had been treated earlier, the cancer would probably not have spread as quickly as it did. He was entitled to compensation for this injury and that should include the reduction in his chances of survival. The second argument was that quite apart from any other injury, the reduction in his chances of survival was itself a compensatable head of damage.

Quantification Argument Rejected

The first argument is based upon the well-established principle that in quantifying the loss likely to have been caused by the defendant's wrongful act, the court will take into account possibilities, even though they do not amount to probabilities: Mallett v McMonagle [1970] AC 166, 176. A common example is the possibility that a claimant who has been injured by the defendant will suffer some complication such as arthritis in a damaged joint. This principle applies when the extent of the loss depends upon what will happen after the trial or upon what might hypothetically have happened (either before or after the trial) if the claimant had not been injured: see Doyle v Wallace [1998] PIQR Q146, in which the loss of earnings caused by the injury would have been greater if the claimant had qualified as a drama teacher.

This principle has in my opinion no application to the present case because it applies only to damage which it is proved will be attributable to the defendant's wrongful act. Thus in Doyle v Wallace there was no dispute that if the claimant had qualified as a drama teacher, the loss of the additional earnings would have been attributable to the injury which the defendant had caused her. Likewise, if the injured joint develops arthritis, there is usually no dispute that the arthritis will be attributable to the injury. In the present case, the question was not whether Mr Gregg was likely to survive more than 10 years (the finding was that he was not) but whether his likely premature death would be attributable to the wrongful act of the defendant.

The distinction between the question of whether damage is attributable to the defendant and the quantification of damage proved to be so attributable was succinctly made by a Canadian judge (Master J in Kranz v M'Cutcheon (1920) 18 Ontario WN 395 ) quoted by Lord Guthrie in Kenyon v Bell 1953 SC 125 , 128: "The rule against the recovery of uncertain damages is directed against uncertainty as to cause rather than as to extent or measure."

I respectfully think that this formulation begs more than one question. It is true that the delay caused an early spread of the cancer and that this reduced his percentage chance of survival for more than ten years. But to say that the claimant can therefore obtain damages for the reduction in his chances of survival assumes in his favour that a reduction in the chance of survival is a recoverable head of damage; an issue raised by the claimant's second argument which Latham LJ said, at para 41, that he did not need to decide. On the other hand, if the claim is for actually depriving him of survival for more than ten years, the question is whether the spread of the cancer caused it. The judge's finding was that it did not. It was likely that his life would have been shortened to less than ten years anyway.

Loss of Chance as a recoverable head of damage

The alternative submission was that reduction in the prospect of a favourable outcome ("loss of a chance") should be a recoverable head of damage. There are certainly cases in which it is. Chaplin v Hicks [1911] 2 KB 786 is a well known example. The question is whether the principle of that case can apply to a case of clinical negligence such as this.

What these cases show is that, as Helen Reece points out in an illuminating article "Losses of Chances in the Law" (1996) 59 MLR 188, the law regards the world as in principle bound by laws of causality. Everything has a determinate cause, even if we do not know what it is. The blood-starved hip joint in Hotson's case, the blindness in Wilsher's case, the mesothelioma in Fairchild's case; each had its cause and it was for the plaintiff to prove that it was an act or omission for which the defendant was responsible. The narrow terms of the exception made to this principle in Fairchild's case only serves to emphasise the strength of the rule. The fact that proof is rendered difficult or impossible because no examination was made at the time, as in Hotson's case, or because medical science cannot provide the answer, as in Wilsher's case, makes no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. Everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of...