Thursday Law Report: Patient could not be compensated for loss of a chance

3 February 2005 Gregg v Scott ([2005] UKHL 2) House of Lords (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers and Baroness Hale of Richmond) 27 January 2005

A WHOLESALE adoption of possible rather than probable causation as the criterion of liability in clinical negligence cases would be so radical a change in the law as to amount to a legislative act.

The House of Lords (Lord Nicholls and Lord Hope dissenting) dismissed the appeal of Malcolm Gregg against the decision of the Court of Appeal that his claim against Dr Scott had been rightly dismissed.

Dr Scott negligently diagnosed as innocuous a lump under Mr Gregg's left arm, when in fact it was cancerous (non-Hodgkin's lymphoma). That led to nine months' delay in Mr Gregg's receiving treatment. During that period his condition deteriorated by the disease spreading elsewhere. The deterioration in his condition reduced his prospects of disease-free survival for 10 years from 42 per cent, when he had first consulted Dr Scott, to 25 per cent at the date of the trial.

The judge found that, if treated promptly, Mr Gregg's initial treatment would probably have achieved remission without an immediate need for high dose chemotherapy. Prompt treatment would, at least initially, have prevented the cancer spreading to the left pectoral region.

However, the judge also found that, although Mr Gregg's condition had deteriorated and in consequence his prospects had been reduced in that way, a better outcome had never been a probability.

Before the negligence Mr Gregg had had a less than evens chance (45 per cent) of avoiding the deterioration in his condition which had ultimately occurred. The delay had not extinguished that chance, but had reduced it by roughly half. The judge assessed that reduction at 20 per cent. That was the extent to which the negligence reduced Mr Gregg's prospects of avoiding the deterioration in his condition which ultimately occurred. On those findings the judge dismissed the claim.

On appeal to the Court of Appeal, the claimant argued, inter alia, that quite apart from any other injury, the reduction in his chances of survival, or loss of a chance, was itself a compensatable head of damage. The Court of Appeal rejected that argument, and the claimant appealed.

Simeon Maskrey QC and Julian Matthews (Sharpe Pritchard) for the claimant; Philip Havers QC, William Edis and David Mankell (Medical Defence Union) for the defendant.

Lord Hoffmann said that there were certainly cases in which loss of a chance was a recoverable head of damage, of which Chaplin v Hicks [1911] 2 KB 786 was a well-known example. The question was whether the principle of that case could apply to a case of clinical negligence such as the present.

The answer can be derived from three cases in the House of Lords: Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909, Wilsher v Essex Area Health Authority [1988] 1 All ER 871 and Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305.

It should be noted that the rule which Mr Gregg advocated would involve abandoning a good deal of authority. It was the very rule which had been rejected in Wilsher. Yet Wilsher had been expressly approved in Fairchild. Hotson too would have to be overruled. Furthermore, it would mean dismantling all the qualifications and restrictions with which the House of Lords had so recently hedged the exception in Fairchild.

A wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in the law as to amount to a legislative act. Any such changes should be left to Parliament.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Property Negotiator - OTE £20,000+

£16000 - £25000 per annum: Recruitment Genius: This family owned, independent ...

Recruitment Genius: Sales Administrator - Spanish Speaking

£17000 - £21000 per annum: Recruitment Genius: This is a fantastic opportunity...

Recruitment Genius: Sales Administrator - German Speaking

£17000 - £23000 per annum: Recruitment Genius: This is a fantastic opportunity...

Recruitment Genius: Sales Administrator - Japanese Speaking

£17000 - £23000 per annum: Recruitment Genius: If you are fluent in Japanese a...

Day In a Page

The Greek referendum exposes a gaping hole at the heart of the European Union – its distinct lack of any genuine popular legitimacy

Gaping hole at the heart of the European Union

Treatment of Greece has shown up a lack of genuine legitimacy
Number of young homeless in Britain 'more than three times the official figures'

'Everything changed when I went to the hostel'

Number of young homeless people in Britain is 'more than three times the official figures'
Compton Cricket Club

Compton Cricket Club

Portraits of LA cricketers from notorious suburb to be displayed in London
London now the global money-laundering centre for the drug trade, says crime expert

Wlecome to London, drug money-laundering centre for the world

'Mexico is its heart and London is its head'
The Buddhist temple minutes from Centre Court that helps a winner keep on winning

The Buddhist temple minutes from Centre Court

It helps a winner keep on winning
Is this the future of flying: battery-powered planes made of plastic, and without flight decks?

Is this the future of flying?

Battery-powered planes made of plastic, and without flight decks
Isis are barbarians – but the Caliphate is a dream at the heart of all Muslim traditions

Isis are barbarians

but the Caliphate is an ancient Muslim ideal
The Brink's-Mat curse strikes again: three tons of stolen gold that brought only grief

Curse of Brink's Mat strikes again

Death of John 'Goldfinger' Palmer the latest killing related to 1983 heist
Greece debt crisis: 'The ministers talk to us about miracles' – why Greeks are cynical ahead of the bailout referendum

'The ministers talk to us about miracles'

Why Greeks are cynical ahead of the bailout referendum
Call of the wild: How science is learning to decode the way animals communicate

Call of the wild

How science is learning to decode the way animals communicate
Greece debt crisis: What happened to democracy when it’s a case of 'Vote Yes or else'?

'The economic collapse has happened. What is at risk now is democracy...'

If it doesn’t work in Europe, how is it supposed to work in India or the Middle East, asks Robert Fisk
The science of swearing: What lies behind the use of four-letter words?

The science of swearing

What lies behind the use of four-letter words?
The Real Stories of Migrant Britain: Clive fled from Zimbabwe - now it won't have him back

The Real Stories of Migrant Britain

Clive fled from Zimbabwe - now it won’t have him back
Africa on the menu: Three foodie friends want to popularise dishes from the continent

Africa on the menu

Three foodie friends want to popularise dishes from the hot new continent
Donna Karan is stepping down after 30 years - so who will fill the DKNY creator's boots?

Who will fill Donna Karan's boots?

The designer is stepping down as Chief Designer of DKNY after 30 years. Alexander Fury looks back at the career of 'America's Chanel'