Gregg v Scott

Facts

Gregg consulted his general practitioner, Dr Scott, about a lump under his arm. Dr Scott wrongly diagnosed it as a benign lipoma and did not refer him to a specialist. Some nine months later the lump was correctly diagnosed as non-Hodgkin's lymphoma. By then the disease had spread, and the delay meant that his chance of surviving for ten years had fallen from about forty-two per cent to about twenty-five per cent. Before the negligence, therefore, his prospects of a cure were already less than even. He claimed damages for the reduction in his chance of survival and the consequent harm.

History

The claim failed at trial and in the Court of Appeal, and Gregg appealed to the House of Lords.

Issue

Whether a claimant can recover damages in clinical negligence for the loss of a chance of a better outcome where, because the pre-existing chance was less than fifty per cent, he cannot prove on the balance of probabilities that the negligence caused the worse outcome.

Held

Appeal dismissed by a majority of three to two. The claimant could not recover for the lost chance, since he had not proved that the negligence caused a worse outcome on the balance of probabilities.

Ratio

• In a claim for clinical negligence the claimant must prove on the balance of probabilities that the negligence caused the physical damage complained of, and the loss of a chance of a better outcome is not itself recognised as damage for which damages are recoverable.
• Where the claimant's prospects of a good outcome were already less than even before the negligence, he cannot show that the negligence, rather than the underlying disease, caused the poor outcome.

The judgments

Key reasoning

• The orthodox approach to causation treats the claimant as having proved the case if the negligence more probably than not caused the damage, and then awards full compensation, which is incompatible with compensation in proportion to a statistical chance.
• Statistics about groups of patients describe the likelihood of outcomes but do not establish what happened to an individual, and treating them as proof of damage would change the basis on which tort liability operates.
• It would be difficult to confine a loss of chance approach to medical negligence, and its extension to other fields would have wide consequences for litigation and insurance.

Where it fits in the module

On the FHS topic of factual causation, Gregg v Scott is the main authority for the rule that the balance of probabilities governs, and it follows Hotson v East Berkshire Health Authority [1987] AC 750, which also refused to treat a lost chance of recovery as damage. It stands against the exceptions created for material contribution to harm in Bonnington Castings v Wardlaw [1956] AC 613 and for increased risk in Fairchild v Glenhaven Funeral Services [2002] UKHL 22. Loss of chance is recognised in other contexts, for example in negligence causing loss of a commercial opportunity in Allied Maples Group v Simmons and Simmons [1995] 1 WLR 1602, which raises the question of why medical cases are treated differently. The tutorial debate concerns the line between proof of causation and quantification of damage.

Criticisms

• The all-or-nothing rule is arbitrary, because a claimant with a forty per cent chance recovers nothing whereas one with a sixty per cent chance recovers in full for the same negligent act.
• The refusal to compensate a loss of chance gives the negligent doctor a windfall where the patient started with a less than even chance, which removes the deterrent effect of liability in the very cases of serious illness.
• The distinction drawn between medical negligence and commercial loss of chance cases is difficult to justify, since in both the claimant lost an opportunity that depended on uncertain events.
• The majority's reliance on the need for legislative change is not convincing, because the common law has developed causation rules in other fields and the courts could have developed a proportionate approach.