Gregg v Scott [2005] 2 AC 176

Oxford First-Class Tort Law Notes

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The House of Lords rejected the concept of recovery for loss of chance in negligence.

D misdiagnosed a lump on C’s left arm as harmless
A delay in treatment of 9 months led the cancer to spread
Judge held that with no delay, the chance of survival would be 45%, hence no causation based on balance of probabilities
C argued that loss of chance recovery is either a consequential loss derived from physical injury from the spread of the cancer or a compensable head of damage itself

Appeal dismissed; the House of Lords decided on a narrow 3-2 majority that loss of chance is not recoverable
Lords Nicholls and Hope dissented

C suggests that the expansion of liability could be held in reasonable bounds by confining it to cases in which the claimant had suffered an injury. In this case, the spread of the cancer before the eventual diagnosis was something which would not have happened if it had been promptly diagnosed
However, confining loss of chance to cases where C had suffered an injury would lead to problems defining the injury
Presumably in Hotson, the internal bleeding could be injury

Confining loss of chance to cases where an inability to prove causation is a result of lack of medical uncertainty rather than evidential uncertainty can lead to unfairness as it can be equally difficult to prove ‘but for’ causation in cases of medical and evidential uncertainty
It is unfair to Hotson since he could not prove whether he had enough bloods vessels due to the hospital’s failure to examine him

Lord Hoffmann stated that 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. It will have enormous consequences of insurance companies and the NHS.

Recovery for loss of chance could potentially lead to proportionate recovery, since one might argue that ‘by compensating the 95% chance as though it were 100%, courts overcompensate the plaintiff.’
Under proportionate recovery, claimants who currently obtain full recovery will only obtain proportionate recovery
Expert evidence who be more complex, trials would be more difficult, recovery would be less predictable for both claimants and their insurers
In this case the outcome (death as a result of the cancer) has not happened and could never happen; damages would be awarded for the risk of something that has yet to materialise
‘The complexities of attempting to introduce liability for the loss of a chance of a more favourable outcome in personal injury claims have driven me, not without regret, to conclude that it should not be done.’

Loss of a 45% chance of recovery is just as much a real loss as loss of 55% chance of recovery
Such an approach accords with the purpose of the duty of care which is to promote the patient’s prospects of recovery by exercising due care and skill in diagnosing and treating the patient

In cases where there is little uncertainty on the outcome should there have been no negligence, loss of chance is non-recoverable, as in Hotson
In cases where the patient’s condition gives rise to a significant extent of uncertainty on the outcome should there be no negligence, such as the present case, a loss of chance could be actionable damage

Both Baroness Hale and Lord Nicholls thought that the Gregg was different from Hotson: one was evidential uncertainty, the other medical uncertainty
Lord Hoffmann on the other hand thought that such a distinction should not be drawn

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