Gregg v Scott

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Latham,Lord Justice Mance,Lord Justice Simon Brown
Judgment Date29 Oct 2002
Neutral Citation[2002] EWCA Civ 1471
Docket NumberCase No: B3/2001/1883

[2002] EWCA Civ 1471

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (Lincoln District Registry)

(His Honour Judge Inglis)

Before

Lord Justice Simon Brown

Lord Justice Mance and

Lord Justice Latham

Case No: B3/2001/1883

Between
Malcolm Gregg
Appellant
and
James andrew Scott
Respondent

Simeon Maskrey Esq, QC & Julian Matthews Esq (instructed by Messrs Park Woodfine) for the Appellant

William Edis Esq (instructed by Messrs Tamsin Thomas, The Medical Defence Union) for the Respondent

Lord Justice Latham
1

The appellant, who is 50 years old, developed a non-Hodgkin's lymphoma which manifested itself as a lump under his left arm in the autumn of 1994. He saw the respondent, his general practitioner, on the 22 nd November 1994, who wrongly diagnosed it as a lipoma, that is a benign collection of fatty tissue, and negligently failed, as the judge found, to refer him to a specialist for confirmation or otherwise of his diagnosis. In 1995, the appellant moved with his family to Lincoln. On the 22 nd August 1995 he saw his then general practitioner and complained, again, of the lump. This general practitioner also considered that the lump was probably a lipoma, but referred him on a non urgent basis to the Lincoln County Hospital for an investigation. In his referral letter he described the lump as having gradually enlarged over the past year. The surgeon who examined him on the 2 nd November 1995 suspected a lymphoma and arranged for an urgent biopsy. This confirmed the surgeon's suspicions.

2

There was some delay thereafter as a result of difficulty in identifying the nature of the lymphoma; but a CT scan did not reveal any spreading of the disease elsewhere in the body. However, on the 13 th January 1996 he was admitted to hospital with acute and intense chest pain which was a result of the lymphoma having spread, in particular, into the left pectoral region. Chemotherapy was administered on six occasions and was then supplemented by a course of radiotherapy. Although the tumour responded, it did so incompletely. It was therefore decided that the appellant should be subjected to high dose chemotherapy, involving the harvesting of stem cells to preserve them from destruction, the administration of chemotherapy and the replacement of the stem cells. This treatment took place at Leicester in August 1996. He was discharged in early September 1996.

3

In early 1998 the appellant suffered a relapse when he developed a tumour in the right axilla, which statistically gave rise to a very poor prognosis. The result was that the chemotherapy that he was then given was intended merely as palliative. He was told that he could not be cured. In this context cure means a period of remission of at least ten years since the disease was last evident. In April 1998 there was thought to have been another relapse, although this was never demonstrated histologically. Nonetheless a further course of palliative chemotherapy was prescribed. Happily, there has been no further recurrence of the disease since then.

4

As might be expected, the effects on him and his life have been devastating. He suffered severe side effects from the original treatment, in particular the high dose chemotherapy treatment in August 1996. He had to give up work. He felt very ill and has continued to feel weak and lacking in energy ever since. Since his relapse in early 1998, he quite reasonably believes from what he has been told that he is living on borrowed time. The effects of that on him and his family can be readily imagined.

5

The judge concluded that the failure of the respondent to refer the appellant for a specialist opinion in November 1994 delayed treatment by about nine months, that is from April 1995 to January 1996. He concluded that there would have been no material change in the tumour between November 1994 and April 1995, and that the important escalation occurred in the autumn of 1995. He also accepted that the delay in treatment had significantly reduced the appellant's chances of survival, in the sense of a cure as I have described it, to 25%. Nevertheless, he dismissed the appellant's claim for damages on the grounds that the appellant had not established on the balance of probabilities that the negligence had had a material effect on the outcome of the disease. He did so on the basis that the evidence before him established that for a person with the type of lymphoma from which the appellant suffered, the prospects of a cure were in any event less than 50%, in other words that it was more probable than not that he would have been in his present position even if treatment had commenced in April 1995. He based his reasoning on the decision of the House of Lords in Hotson v East Berkshire Health Authority [1987] AC 750. His conclusion, essentially, was that the medical evidence before him established as a matter of past fact that the lymphoma was of such a nature that as a matter of probability the appellant would not have been cured, in the same way that the probability was that the avascular necrosis from which the appellant suffered in Hotson would probably have occurred even in the absence of the intervening negligence by the doctor.

6

Mr Maskrey QC, on behalf of the appellant, firstly submits that the judge was wrong in his analysis of the medical evidence, and that properly analysed, it established that on the balance of probabilities, had the appellant been treated in April 1995, he would have only required one course of chemotherapy which would have resulted in a cure. He submits, secondly, that even if the judge's assessment of the evidence was right, he failed to appreciate that the exercise on which he was engaged in relation to the statistical chances of survival for the appellant was not one of causation but of quantification. He submits that there can be no doubt that the respondent's negligence caused loss and damage to the appellant. It was accepted by the judge that prompt treatment would have prevented the spread of the tumour. The spread of the tumour was itself an injury to the appellant as was the pain caused by its invading the left pectoral area. The cause of action was therefore complete. The sole question was the assessment of damages flowing from the completed tort. The award of damages involved therefore an assessment of the appropriate sum to compensate for the effects of the enlargement of the tumour. This required an assessment of the appropriate sum to compensate for the pain and damage to the pectoral tissue, an assessment of the extent delay resulted in more intensive, and therefore damaging, treatment, an assessment of the increased risk of relapse and adverse effect on prognosis and finally an assessment of the effect on the appellants expectation of life. All these matters, he submits, are common or garden problems confronted by courts when dealing with the assessment of damages and raise no issues of principle.

7

His third and most fundamental submission is that as an alternative to his second submission, this court should revisit the question of whether or not loss of a chance in the sense of a diminution in a risk of an adverse outcome as a result of medical advice or medical intervention, should itself be recognised as damage giving rise to a claim in negligence. He submits that whatever may have been thought to have been the position after Hotson the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd & Others [2002] 3WLR 89 permits this court to consider as a matter of policy whether or not such a claim can properly succeed.

8

Mr Edis on behalf of the respondent submits that there is no justification for any criticism of the way the judge approached the evidence. As far as the second submission of Mr Maskrey is concerned, he submits that the appellant should not be permitted to pursue his claim on this basis which was no part of the way in which the matter was put before the judge. The case was argued, he submits, at all times on the basis that the medical evidence before the court was directed essentially to the likelihood of the appellant being cured, had the respondent referred him to a specialist as he should have done. As to the third submission, he submits that it is trite law which cannot be reopened before this court, at least in clinical negligence cases such as the present, that the loss of a chance cannot in itself amount to damage. The court has to assess on the balance of probabilities, what would have been the case but for the alleged negligence. If a determination of that issue results in the chance being evaluated at more than 50%, it becomes, for the purposes of the law, a certainty; if less than 50% the chance is treated as if it would not have occurred.

9

In order to understand these submissions and the judge's judgment, it is necessary to consider the course of the proceedings and the evidence before the court in some greater detail.

10

The particulars of claim were dated the 3 rd April 2000. The particulars of pain and injury were pleaded in the following terms:

"There was rapid spread and development of the claimant's non-Hodgkin's lymphoma disease at the end of 1995. Had the claimant been referred in about November 1994, the malignancy would have been diagnosed and treatment commenced with the disease having progressed no further than stage 1. The treatment would have been by means of either radiotherapy or CHOP Chemotherapy. There would have been a very high likelihood of cure. The claimant would have been unlikely to have developed any secondary recurrence, and...

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