#2299 - Gregg V Scott - Tort Law

Gregg v Scott [2005] 2 AC 176

House of Lords

Basic Facts

C developed lump under arm which he saw his doctor about. D, his GP said was not anything to worry about. C later was referred by a second GP to hospital, which diagnosed it as a type of Hodgkin’s disease. Treatment led to a number of remissions and relapses, and C claimed that his survival rating of 10 years had fallen from 50% to 25% owing to lack of prompt treatments. However, Judge in original hearing was influenced by evidence that person w/ C’s condition had 42% survival rate despite prompt treatment. Thus D had been negligent and breached duty of care, but was found not to have caused the loss of chance.

Held Lord Nicholls of Birkenhead

• Is wrong that C cannot recover for loss of 45% chance of recovery

  • But can recover for loss of something like 55%

    • 45% loss is still substantial to patient just as much as 55% loss

      • Why should latter patient have a remedy and former not have one?

• When assessing past events, courts apply all or nothing

  • If past event probably happened

    • Then it is treated as if it certainly happened

  • However, with future events, the court has to make an estimate as to what are the chances that a particular thing will happen and reflect those chances,

    • whether they are more or less than even,

      • in the amount of damages it awards

• Generally, this works.

  • However, distinction is at most unsatisfactory when applied to hypothetical facts (i.e. what would have happened had the wrong not been committed)

    • All or nothing is justified with past facts is that the past fact either happened or didn’t – a finding of actual fact

      • Whereas this underlying certainty is absent for hypothetical facts

        • D’s wrong precluded them from every occurring.

Loss of Chance Cases

• Law has adapted principle that where D loses an opportunity to get an outcome

  • This “loss of chance” rather than loss of outcome is treated as actionable damage

    • Thus instead of “But for D’s negligence, would C have achieved the desired result”

      • We ask: “But for D’s negligence, would C have had a chance of achieving the desired result?”

        • And if so “how great was this chance?”(which assesses the damages)

What has C actually lost in medical negligence cases?

• In medical negligence cases, the question = whether D has lost a desired outcome (which is all or nothing)

  • Or whether D has merely lost an opportunity of a favourable outcome (which is much easier to prove)

• Medical reality is that doctors cannot be certain about outcomes – drugs don’t always work predictably, some aren’t understandable in their way or working

  • Thus the outcome is uncertain

  • Doctors can only give percentages which change over time

    • Thus, the most appropriate categorisation of the damage is the loss of prospects of a favourable outcome

      • Such a view recognises what a patient lost – the prospects of recovery

Finding an evidential reference point

• In professional negligence cases

  • the court is able to assess what would have been the claimant's prospects in the time-barred proceedings by having regard to a wide range of known facts peculiar to the particular case:

    • the nature of the issues,

    • the evidence which would have been available, and so forth.

• In cases of medical negligence assessment of a patient's loss may be hampered, to greater or lesser extent, by one crucial fact being unknown and unknowable:

  • how the particular patient would have responded to proper treatment at the right time.

    • Often you just have to refer to medical statistics which are general in nature and are a very imperfect method of deciding the chances of outcomes

  • However, courts have on a number of occasions allowed such evidence, in the interest of fairness, to be employed when not allowing the jump over the evidentiary gap would lead to injustice.

Indentifying that lost chance

• In cases like Chaplin there are two questions to be answered

  • What C’s position was at the time of negligence (the actual position) (i.e. was C in the running to get to the interview stage but for the negligence?)

  • What the outcome would be if there had been no fault (the hypothetical position) which no-one truly knows owing to the alleged fault of D (what chance did C have of getting through the interview stage and gaining the cash prize?)

    • The answer to the actual position does not determine the hypothetical question.

      • However, you can refer to additional evidence to find out the answer.

• However, in medical negligence cases

  • The person’s actual position at the time of negligence will often be determinative of the answer to the hypothetical question of what would have happened but for D’s fault.

  • E.g Hotson

    • The relevant factual question concerning Stephen Hotson's condition immediately prior to the negligence was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive.

      • The answer to this question of actual fact provides answer to hypothetical question: would avascular necrosis have been avoided if Stephen Hotson's leg had been treated promptly?

  • However most cases are not so simple

    • The first question may not be susceptible to an easy answer

      • And it may not be determinative of the second answer

        • Which as we’ve shown, you then have to resort to other evidence in order to give some kind of answer

          • And unlike PEL, this is very often extremely hard to do.

Way Forward?

• Only way to get round this is to kick out “all or nothing” for medical negligence cases, and merely allow loss of chance cases to be determined by alternative method.

  • Burrows: but doing this may then knock out the conventional principle for all cases.

    • But this question will have to be determined another time after we see what happens.

• The way ahead must surely be to recognise that where a patient is suffering from illness or injury and his prospects of recovery are attended with a significant degree of medical uncertainty(irresolvable by medical opinions),

  • and he suffers a significant diminution of his prospects of recovery by reason of medical negligence whether of diagnosis or treatment,

    • that diminution constitutes actionable damage.

• This is so whether the patient's prospects immediately before the negligence exceeded or fell short of 50%.

Held Lord Hoffmann

• Abandoning the law of causation for these cases would

  • Disregard an awful lot of authority and lead to a fundamental change in the law so as to be legislative.

  • Attempting to grant an exception and then control it would not be worthwhile.

Held Lord Phillips

• [after going through all the evidence]

  • Having to reason by percentages is exceptionally difficult

    • Indeed, it’s probs much preferable to use the “rough justice” approach of all or nothing from D’s negligence

      • Rather than subject the whole thing to this painful process.

• And the injustice is not so sufficient that the law needs to be changed

Held Baroness Hale

• If I lose a leg owing to the carelessness of D

  • Then I don’t want my damages reduced to the extent that it is less than 100% that D did so

    • Equally, if it is more than likely than not D’s carelessness did not cause me to lose my leg

      • D does not really want to pay up the 20% or 30% chance that it did so

Loss of Chance Argument

• In Hotson C tried to get round being unable to prove that his outcome was casually linked to D’s negligence

  • By trying to prove that D’s negligence had led to C’s loss of a chance of getting that outcome, a damage in itself.

    ...