#19870 - Gregg V Scott Casenotes - Tort Law

Gregg v Scott Casenotes

Facts:

C had a limp under his arm. Defendant doctor negligently told C it was fatty tissue. In fact, it was cancerous, as C found out later through a different GP. As a result, treatment was delayed 9 months. This meant the chance of C being cancer-free in 10 years was reduced from 42% to 25%. C wanted compensation for the reduction in his prospect of being cured. Trial judge, CA and HL dismissed the claim. Hoffmann, Phillips MR and Hale were in the majority. Nicholls and Hope dissented. We know for a fact from this case:

1. Claimant lost because he could not establish, on the balance of probabilities, he would’ve lived longer had the defendant not been negligent

2. It’s not current law that C who has suffered a bad outcome and medical negligence made this more likely to occur (but not to over 50%) can claim compensation based on the proportion of the amount the claimant would have received if the negligence made the bad outcome over 50% likely to occur.

3. Question of whether law will develop to allow such a claim is still open (Lord Phillips MR)

Bagshaw

Reasons against developing the law as Gregg wanted – primarily it would change the outcome in a wide range of tort cases:

Such changes would not all be beneficial

Already suffered. Lord Phillips thought if it were to be developed, it should only where C has already suffered the bad outcome. So, not willing to support claims for damages based on the increased likelihood of suffering an adverse outcome in the future where C has not already suffered. Where C has suffered, they are often able to recover damages for a risk of their injury getting worse in the future as well as base compensation for the injury. Maybe this can be distinguished on the basis that C has already suffered, which needs to be compensated now. It’s convenient to deal with all matters now rather than waiting for a risk to emerge – if it does C will not have a hard time proving on the balance of probabilities it was because of D’s tort.

Would it be generally beneficial?

All-or-nothing avoids difficulties of proportionate awards – like if you win 60% of the cost enabling a disabled claimant to convert your house so you can get around in it, you cannot convert the house. But all-or-nothing denies compensation to those who can only prove they’ve lost a significant prospect of a better outcome rather than a probability.

It may also reduce the efficiency of tort law. Measuring probabilities is a complex task – more difficult than saying more likely than not or less likely than not. more spent on expert evidence cost of processing increases and mean amount per award decreases. inflate cost to keep tort law running per pound of compensation delivered.

Judicial legislation

A change this big should probably be made by parliament.

Conclusion

Allowing proportionate damages would lead to more injured people being helped by tort law, but some getting less than they would have under the all-or-nothing approach.

Spencer

According to Hotson v East Berkshire Area HA, Gregg was correctly decided. Where C can show chances of recovery if treated early were >50%, he’s proved causation on the balance of probabilities full compensation. If initial chance at recovery was less than 50%, he won’t be able to show this, even if D’s negligence meant he only had a 2% chance of cure.

Nicholls didn’t like the arbitrariness of drawing a line – patient A cannot sue if they initially had a 45% chance but patient B can if he initially had a 55% chance. Nicholls: the courts should be prepared to ‘adapt their process so as to leap an evidentiary gap when overall fairness plainly so requires’.

Hoffmann accepted this was a problem, but felt the pros outweighed this. Clear limits would be difficult to place on a ‘proportionate’ exception.

Phillips MR: ‘A robust test which produces rough justice may be preferable to a test that on occasion will be difficult, if not impossible, to apply with confidence in practice’.

Hale thought it would be unfair to lessen the damages those who would otherwise be able to claim in full. The court would no longer be able to justify giving full damages to someone who’s initial chance was 51%.

Peel

Principal reason for not developing the law was to keep the floodgates closed, either by having liability be too broad or rendering the law too uncertain. Problems outweighed policy benefits of developing the...