#2325 - Loss Of Chance - Tort Law

Loss of Chance

Is loss of chance recognised at all in negligence law?

• Economic Loss Cases

  • Chaplin v Hicks [1911]: D published a letter in a newspaper advertising for models. Ladies were invited to send in applications containing their pictures. D would then print the pictures of ten ladies in each district, whom readers would vote on, leaving a total of 50 whom D would then pick 12 models from. C was in the final 50, but D negligently failed to inform her of the interview in time, thus meaning C was not at the interview where the 12 were selected.

    • Fletcher Moulton LJ

      • Expulsion from a limited class of competitors is an injury and may be a very substantial one

        • Therefore the damages given in respect of it should be equivalent to the loss.

    • Vaughan Williams LJ

      • There were fifty selected competitors, of whom C was one, and twelve prizes, so that the average chance of each competitor was about one in four.

        • I do not agree with the contention that, if certainty is impossible of attainment, the damages are unassessable.

  • Allied Maple Group v Simmonds and Simmonds: C instructed D to act for them in a takeover of assets of a vendor. C failed to negotiate a warranty on accrued assets, meaning a year after completion, C became aware of substantial contingent claims which they would have to pay. They sued D, the judge finding there was a real and not a mere speculative chance that C would have successfully renegotiated with the vendor to obtain proper protection and therefore D were in breach of duty.

    • Smith LJ

      • Normally causation depends on whether the negligence consists of some positive act or misfeasance, or an omission or non-feasance.

        • In the former case, the question of causation is one of historical fact.

          • The court has to determine on the balance of probability whether D’s act, e.g. the careless driving, caused C’s loss consisting of his broken leg.

        • In the latter case, for example to provide proper equipment, given proper instructions or advice,

          • causation depends, not upon a question of historical fact, but on the answer to the hypothetical question,

            • e.g. what would C have done if the equipment had been provided or the instruction or advice given?

      • But In many cases C’s loss depends on the hypothetical action of a third party.

        • In such a case, C does not have to prove on balance of probability that the third party would have acted so as to confer the benefit or avoid the risk to C,

          • C can succeed provided he shows that he had a substantial chance rather than a speculative one,

            • the evaluation of the substantial chance being a question of quantification of damages.

        • Per Spring, he does not have to prove that, but for the negligent reference, Scottish Amicable would have employed him

BUT loss of chance is not recognised in medical negligence cases

• It was rejected in Hotson on the facts...

  • Hotson v East Berkshire AHA [1987]: C fell from a tree, injuring his leg. On going to hospital, D negligently failed to diagnose him. C developed a condition which required his leg to be amputated. This was caused by one of two things, but it was unknown precisely which. There was a 75% chance that the fall had ruptured enough blood vessels so the condition would develop regardless of treatment, but a 25% chance that the condition had been caused by pressure being put on the leg after the misdiagnosis, which if spotted could have been cured through prompt treatment.

    • Lord Bridge:

      • In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances.

        • On the evidence there was a clear conflict as to what had caused the avascular necrosis.

          • But the judge's findings of fact are unmistakably to the effect that on a balance of probabilities

            • the injury caused by C’s fall left insufficient blood vessels intact to save the leg.

      • This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities.

        • Unless C proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis

          • he failed on the issue of causation and no question of quantification could arise.

    • Lord Mackay

      • What was C’s condition on being first presented at the hospital? Did he have intact sufficient blood vessels to keep the affected epiphysis alive?

        • It is not, in my opinion, correct to say that on arrival at the hospital he had a 25% chance of recovery.

          • If insufficient blood vessels were left intact by the fall he had no prospect of avoiding complete avascular necrosis

      • As I have said, the fundamental question of fact to be answered in this case related to a point in time before the negligent failure to treat began. It must, therefore, be a matter of past fact

• But the question was not entirely shut down

  • Hotson v East Berkshire NHS Trust [1987]:

    • Lord Bridge:

      • Would it be ever attractive to award for a loss of chance?

        • There is a superficially attractive analogy between the principle applied in such cases as Chaplin v Hicks

        • and the principle of awarding damages for the lost chance of avoiding personal injury

          • or for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment.

      • I think there are formidable difficulties in the way of accepting the analogy [Me: but he did not elaborate on what these were!].

        • But I do not see this appeal as a suitable occasion for reaching a settled conclusion as to whether the analogy can ever be applied.

    • Lord Mackay:

      • I consider that it would be unwise in the present case to lay it down as a rule that a claimant could never succeed by proving loss of a chance in a medical negligence case.

• However, Gregg appears to have totally shut down the question for now

  • Gregg v Scott [2005]: G presented himself to a doctor, who negligently failed to diagnose his cancer. His chances for 10 year survival owing to the delay fell from 42% chance with prompt treatment to 25%.

    • Lord Hoffmann(maj):

      • The law regards the world as in principle bound by laws of causality. C had to prove that it was an act or omission for which the defendant was responsible

        • The fact that proof is rendered difficult or impossible because no examination was made at the time, as in Hotson,

          • or because medical science cannot provide the answer, as in Wilsher, makes no difference

      • A wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act.

        • Therefore, any such change should be left to Parliament

    • Lord Phillips (maj)

      • Having gone through the evidence, it is clear that reasoning by percentages is exceptionally difficult

        • Indeed, it’s probably 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.

    • Baroness Hale(maj):

      • It is preferable on grounds of policy not to extend the rule in economic cases on loss of chance to cases of medical negligence

      • And it is overall better for causation rules generally that the present rule is maintained.

Why loss of chance should be recognised in medical negligence cases

• The current test for causation applied does not reflect the causal reality

  • Staunch:

    • X is not the “cause” – it is the candidate condition in a sufficient causal set

      • So a lit cigarette tossed aside carelessly into a room is a candidate condition

        • – the derivation from the normal experience of events

      • But the causal set is made up of other background conditions – oxygen, paper in the basket, lack of sprinklers etc

        • It is only when these combine with the candidate condition is something “caused”

  • The problem

    • In medical negligence context things become complicated

      • Normally two candidate conditions –

        • Doctor’s negligence

        • And underlying illness – a derivation from the norm of a healthy person

          • Only in most clear cut cases (Barnett) will this be easy to resolve

      • Medical science is inexact art

        • C + B does not necessarily = E

        • There are ?? (unknown conditions) also in the equation which we don’t know about and can’t determine their effect.

        • This can be clearly observed in the fact that different drugs have different effects on different people.

          • The best we can do is use statistical evidence to show empirical trends.

    • Our rule = 51% = 100%, 49% = 0% - a rule of a burden of proof

      • But what courts are doing is equating this with causation itself – a non-sequitur

        • Since the causal reality is more complicated, this means we should at least consider whether moving to a different system is better.

• C has lost something of value

  • Lord Nicholls in Gregg v Scott [2005]:

    • Wrong to say loss of 45% chance worth nothing whereas loss of 55% chance is worth something – for patient, that 45% loss means something.

      • Medical practise doesn’t work on “all or nothing” outcomes. It only works on the chances of something happening

        • Law should adapt to fit this practise (i.e. look at the loss of chance of an outcome rather than the loss of the outcome)

          • rather than trying to pigeon hole medical negligence claims into something they’re not in reality.

    • Interests of fairness and justice mean that statistical evidence should be taken into account despite difficulties surrounding it.

      • Hoyano: fact that doctor’s negligence destroys this potential evidence should be enough to justify...