Hotson v East Berkshire HA [1987] AC 750

Oxford First-Class Tort Law Notes


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Key Point

  • A loss of chance to avoid injury is not compensable in negligence

Facts

  • C fell when climbing a tree and his hips suffered a fracture
  • The hospital failed to diagnose his injury and sent him home
  • The hip fracture resulted in blood vessel damage resulting in avascular necrosis
  • The trial judge had given 25% damages for the 25% chance that treatment would have made a difference

Held (House of Lords)

  • Appeal allowed; the judge was wrong to award damages for loss of chance
  • On a balance of probabilities, the injury was the sole cause

Lord Bridge

  • Should there be compensation for a loss of chance? There are analogies that can be drawn with Chaplin v Hicks (case laid down that loss of chance is recoverable in contract) but it is not a question to be addressed in the current case
  • Conversely, there is no discount of damages for chance that prompt treatment would not have made a difference

Lord Mackay

  • It would be incorrect to say that there was a 25% chance of recovery, either he had enough blood vessel intact or not
  • Citing Lord Diplock in Mallett v McMonagle: ‘In determining what happened in the past a court decides on a balance of probabilities. Anything that is more probable than not it treats as certain’

Lord Ackner

  • Once liability is established on the balance of probabilities, the loss C sustained is payable in full, not discounted by the extent he has failed to prove his case with 100% certainty

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