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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