Gregg v Scott decision of the House of Lords

The final submission by the claimant was that the Court should revisit the question of whether or not a loss of chance of a better outcome should give rise to a claim.

Hotson v East Berkshire Health Authority

The appeal court rejected Mr Gregg's case and whilst referring to Hotson, which was a case which went all the way to the House of Lords, they distinguished the circumstances of that case, refusing to accept that it was good authority for the proposition that a claimant could never seek compensation for the loss of a less than evens chance of a better outcome in medical malpractice cases. However the court in Hotson did affirm that when assessing past facts, it is right to consider an expected outcome of less than a 50% too uncertain, and anything more than 50% certain. When the case came before the House of Lords they reviewed a number of American cases, noting that in the USA the courts were prepared to award compensation in circumstances where the evidence about exactly what might have happened, in the absence of negligence, was uncertain and very much less than a proven statistical certainty (ie less than 51%).

As far as Gregg v Scott,   is concerned, what is apparent from reading the detailed judgements of the Court of Appeal is that the very particular facts of this case must be considered independently of those which have arisen in other cases to which the Court were referred. In a very thoughtful judgement, Lord Justice Latham made clear that seeking to establish that Hotson had a direct bearing in this case (as the defence sought to) overlooked the fact that the two cases were entirely different on the actual facts considered. The all or nothing nature of the disease in Hotson, and the fact that it was never proved that there were any chances of any different outcome, negligence or no, was in stark contrast to the situation in Gregg v Scott   where the tumour was treatable. Latham LJ also noted that in Hotson their Lordships had expressly reserved the issue of principle indicating that particularly in medical negligence cases, causation may be so shrouded in mystery that the Court can only measure statistical chances and that it would be wrong to lay down a rule that a claimant could never succeed by proving loss of a chance in a medical negligence case.

Ultimately in Gregg v Scott the Court of Appeal decided that the less than evens chance of a different outcome did not sound in damages. There was no proof, they said, that the statistical chance of a better outcome argued for could be taken as more probable, and therefore taken with certainty. They also dismissed the argument, possibly because it had not featured in the court of first instance, that the claimant had suffered a compensatable injury by virtue of the spread of the tumour during the negligent delay.

Clearly aware of the extreme situation where claims for damages for personal injury might arise from those who have suffered no injury, save for the statistical possibility of future harm, Latham LJ thought there should be no policy reasons for declining to extend the scope of the tort of negligence to speculative actions such as those based on the loss of a chance. The scene was set for the case to go to the House of Lords.

The House of Lords Opinion

The judgements of the Law Lords were split. Two in favour of Mr Gregg and the majority of three in favour of the defence. The dissenting Law Lords ( Lord Nichols of Birkenhead and Lord Hope of Craighead) had distinctly different views about the state of the law in this area. Faced with established negligence, a treatable disease that was overlooked, the minority thought it mattered not that the prospects of recovery were only some 45% rather then say 55%. They felt that the loss of the chance of a better outcome, the possibility of a better outcome, was compensatable. Applying such a strict probability test to the facts would they felt, produce an unrealistic assessment of the situation and compel the courts to produce outcomes which were unjust.

But what was it that Mr Gregg had lost. He had so far survived his disease. The cure he sought might still be available to him. The outcome he argued he had suffered (the loss of a better chance of a cure) might prove not to be the case after all.

All the Law Lords agreed that the statistical evidence and detailed facts of the case were complex. Such complexities like those in the present case made it very difficult, for the courts to analyse the matter in loss of chance terms. Deductions cannot safely be drawn without expert assistance, and even then the range of deductions that can be made are varied. Lord Phillips thought it was far better to assess issues of causation on the basis of a balance of probability rather than trying to identify, in terms of percentage, the effect that clinical negligence had on the chance of a successful outcome. He concluded that a robust test (the balance of probability 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.

Lord Hoffman thought that one could look back to the judgement of Lord Nicholls in the Fairchild case [2003] 1AC 32, 68 when he spoke of allowing departures to established principles of law and cited from that judgement as follows:

"To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished form another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law."

Lord Hoffman agreed with this statement, saying that to move the test for causation   from a probable outcome to a possible outcome then this would be such a radical act it would require primary legislation and would have enormous consequences for insurance companies, and the NHS.

Conclusion

The law of Torts is a developing area as all insurers have seen over the years. For the moment assessing loss of a chance in clinical negligence cases will continue to stand in the shadows. In this case the finding of the court was that Mr Gregg had not proved that he had lost the chance of a cure, but only that the cure might be more painfully achieved. As the loss argued for was a loss of life expectancy this case was not, as Lord Phillips said, a suitable vehicle for introducing into the law of clinical negligence the right to recover damages for the loss of a chance of a cure. Awarding damages for the reduction of the prospect of a cure, when the long term result of treatment was still uncertain was not a satisfactory exercise.

The reasoned judgements of the Law Lords are detailed and thoughtful and will provide plenty of opportunity for comment and debate on this subject for the foreseeable future.