Facts of the case
In 1994, the Claimant, Malcolm Gregg, visited his GP, the Defendant Dr James Scott, in relation to a lump under his arm. Dr Scott wrongly diagnosed the lump as a benign lipoma and failed to refer the Claimant to a specialist. In 1995 Mr Gregg moved house and consulted another doctor who referred him to a specialist. The specialist arranged for an urgent biopsy, which revealed that the claimant had non-Hodgkins lymphoma (a type of cancer). Mr Gregg commenced treatment and brought an action for negligence for his reduced chance of survival.
The decisions
First instance
HHJ Inglis concluded that, had Dr Scott referred Mr Gregg to a specialist, his treatment would have commenced nine months earlier and statistically Mr Gregg's chances of survival for ten years would have been 42%. However, as a result of the negligence and the subsequent delay in treatment, his chances of survival had been reduced to 25%. The negligence had therefore caused a loss of chance of survival of 17%.
However, relying on authority of the House of Lords in Hotson v East Berkshire Area Health Authority [1987] AC 750[1], although Judge Inglis found that the delay in treatment had caused the tumour to spread, he found for the Defendant. On a balance of probabilities, Mr Gregg had not been able to establish that the negligence had had an effect on his prospects of recovery. It was more probable than not that he would not have survived in any event, even if Dr Scott had referred him to a specialist and assuming that treatment had commenced nine months earlier.
What is established on a balance of probabilities is taken as certain, what is not so established is ignored. Accordingly, damages could not be awarded for the diminution in the chance of survival. Because Mr Gregg's chances of survival had always been less than 50%, regardless of any negligence; the delay had not worsened his position and therefore he had no cause of action.
Court of Appeal
By a majority decision (Latham LJ dissenting), the Court of Appeal upheld the first instance decision and dismissed Mr Gregg's appeal.
Simon Brown LJ held that it was not possible to distinguish Mr Gregg's case from Hotson and accordingly held that the claim was barred. Mance LJ distinguished Hotson but was concerned about opening the floodgates for such claims and held that English law should not allow recovery for what would essentially be speculative actions for loss of life expectancy, based only on statistics. Simon Brown LJ suggested that the loss of a chance argument deserved to be confronted squarely and resolved in a clear and principled fashion; accordingly leave to appeal to the House of Lords was granted.
The House of Lords
Reflecting the importance of the issues and the significance of their decisions, their Lordships' took several months to deliver their opinions.
In the House of Lords, the Claimant argued that the delay in diagnosis had caused injury because the tumour had spread as a result of the delay in diagnosis and therefore the required elements of a claim in negligence (duty owed, duty breached, loss caused by the breach) were satisfied and the compensation should include damages for the reduction in the chances of survival. Secondly, it was argued that, quite apart from the injury caused, reduction in the chances of survival should be a head of damage in its own right for which compensation was payable.
By a 3-2 majority, the House of Lords dismissed Mr Gregg's appeal from the Court of Appeal decision.
The majority view
Lord Hoffmann, Lord Phillips and Baroness Hale upheld the traditional principle that a claimant must have had a more than 50% chance of survival to establish causation in order to satisfy the balance of probabilities test.
Lord Hoffman said that in principle the law regards the world as bound by rules of causality. Everything has a determinate cause, even though we may not know what it is. There is no inherent uncertainty about what caused something to happen in the past or about whether something that happened in the past will cause something to happen in the future. What Lord Hoffmann said we lack, in situations such as these, is knowledge and the law deals with lack of knowledge by the concept of the burden of proof. A Claimant has the burden of proving that causative connection, and if he cannot, his action will fail. Lord Hoffmann said that although the spread of the tumour reduced Mr Gregg's chance of survival, to award damages for the reduction in his chances of survival would assume that a reduction in the chance of survival per se is recoverable. However, if the claim is actually for depriving Mr Gregg of survival for more than ten years, the question is whether, on a balance of probabilities, the spread of the cancer caused by Dr Scott's negligence caused this. The first instance judge's finding was that it did not; because it was more likely than not that his expected survival would have been shortened to less than ten years anyway. He concluded that there was no justification for such a radical departure from established precedent. Lord Hoffman made it clear that he was not in favour of any further exceptions to the ordinary rules of causation, as have been demonstrated by the recent decisions of Chester v Afshar [2004] and Fairchild v Glenhaven Funeral Services Limited [2003].
In Chester, the Claimant was not warned of a small risk that she would sustain neurological damage as a result of surgery. Unfortunately the risk materialised. Although the Claimant admitted that she still would have proceeded with the surgery even if she had been warned of the risk, her position was that she would have had the surgery at a different time. For policy reasons it was held that in this situation the normal "but for" test of causation could be disregarded to allow her to succeed with her claim. In a similar vein, in Fairchild, an employee who contracted asbestosis after exposure to asbestos dust over several periods of employment was able to recover, even though he could not prove on a balance of probabilities that any one particular employer's negligence had caused it. The decision in Gregg has reiterated the narrow application of these cases.
In Gregg, Lord Phillips gave a long and detailed judgment, analysing the facts and evidence. Central to his decision appears to be his finding that the evidence of Mr Gregg's medical expert, Professor Goldstone, was inconsistent and flawed. Lord Phillips considered that there had been a misuse of statistics and also seemed to place reliance on the fact that Mr Gregg was still alive today, some nine years after the negligence of Dr Scott, which Lord Phillips believed rendered even smaller the likelihood that the delay had any bearing on Mr Gregg's expectation of life. Lord Phillips' conclusion was that "a robust test which produces rough justice may be preferable to a test that on occasion will be difficult, if not impossible to apply with confidence in practice"
Baroness Hale argued that the introduction of liability for loss of a chance in medical negligence cases would mean unpredictability and complexity for the law of personal injury and again thought that the denial of a remedy to Mr Gregg was a price worth paying for the certainty and simplicity of the all-or-nothing balance of probabilities approach.
The minority view
Lord Hope and Lord Nicholls vehemently dissented. They thought that a patient should have a remedy when he loses the very thing it is the doctor's duty to protect. Lord Nicholls quoted from Herskovits v Group Health Co-operative of Puget Sound (1983):-
"To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than 50% chance of survival, regardless of how flagrant the negligence".
They did not feel bound by Hotson, which they said left open the legal position on loss of chance cases and argued that a reliance on statistics was not revolutionary as courts habitually use statistics when compensating claimants for a risk of an outcome which may materialise, for example the risk of future epilepsy in a claim for head injury.
They further argued that it was arbitrary to compensate a 60% chance that had been reduced to 40%, but not to compensate for the loss of a 40% chance that had been reduced to nil (or in this case; from 42% to 25%). Their Lordships strongly rebutted the policy concerns and advocated a development in the common law.
Commentary
Did the House of Lords confront the issue squarely and resolve it in a clear and principled fashion, as the Court of Appeal had invited? Their Lordships clarified that in cases of medical negligence the traditional causation principles and test as to balance of probability apply. The all-or -nothing approach should prevail- where causation is decided in favour of the Claimant, even if only by 51%, he recovers in full but where the balance of probabilities are against the Claimant, he will fail. This decision can be seen as a victory for defendants and will leave insurers, doctors and the NHS breathing a sigh of relief. The worry that the floodgates would be opened for difficult loss of a chance claims was unfounded.
It had been hoped that the decision would serve to clarify the treatment of loss of chance claims generally, however the judgment is narrow and appears restricted to claims for a loss of chance in medical negligence only. Having said this, the starkly opposing views of their Lordships and the continuing judicial unease posed by the issue of loss of a chance generally may encourage further scrutiny of the issue of loss of a chance in cases other than medical negligence.
[1] This case involved the delayed diagnosis of a fracture to the plaintiff's left femoral epiphysis where the plaintiff went on to develop a further medical condition as a result of the injury. The court held that the Plaintiff had a 75% chance of developing the condition even had the diagnosis been made promptly and that the loss of the 25% chance of not developing the condition was not compensable.)
