Gregg v Scott
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD PHILLIPS OF WORTH MATRAVERS,BARONESS HALE OF RICHMOND |
| Judgment Date | 27 January 2005 |
| Neutral Citation | [2005] UKHL 2 |
| Court | House of Lords |
| Date | 27 January 2005 |
[2005] UKHL 2
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Phillips of Worth Matravers
Baroness Hale of Richmond
HOUSE OF LORDS
My Lords,
This appeal raises a question which has divided courts and commentators throughout the common law world. The division derives essentially from different perceptions of what constitutes injustice in a common form type of medical negligence case. Some believe a remedy is essential and that a principled ground for providing an appropriate remedy can be found. Others are not persuaded. I am in the former camp.
This is the type of case under consideration. A patient is suffering from cancer. His prospects are uncertain. He has a 45% chance of recovery. Unfortunately his doctor negligently misdiagnoses his condition as benign. So the necessary treatment is delayed for months. As a result the patient's prospects of recovery become nil or almost nil. Has the patient a claim for damages against the doctor? No, the House was told. The patient could recover damages if his initial prospects of recovery had been more than 50%. But because they were less than 50% he can recover nothing.
This surely cannot be the state of the law today. It would be irrational and indefensible. The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. But, it is said, in one case the patient has a remedy, in the other he does not.
This would make no sort of sense. It would mean that in the 45% case the doctor's duty would be hollow. The duty would be empty of content. For the reasons which follow I reject this suggested distinction. The common law does not compel courts to proceed in such an unreal fashion. I would hold that a patient has a right to a remedy as much where his prospects of recovery were less than 50-50 as where they exceeded 50-50. Perforce the reasoning is lengthy, in parts intricate, because this is a difficult area of the law.
The present case
First I must mention the salient facts of this appeal. These are not quite so straightforward or extreme as in the example just given. At the risk of over-simplification they can be summarised as follows. The defendant Dr Scott negligently diagnosed as innocuous a lump under the left arm of the claimant Mr Malcolm Gregg when in fact it was cancerous (non-Hodgkin's lymphoma). This led to nine months' delay in Mr Gregg receiving treatment. During this period his condition deteriorated by the disease spreading elsewhere. The deterioration in Mr Gregg's condition reduced his prospects of disease-free survival for ten years from 42%, when he first consulted Dr Scott, to 25% at the date of the trial. The judge found that, if treated promptly, Mr Gregg's initial treatment would probably have achieved remission without an immediate need for high dose chemotherapy. Prompt treatment would, at least initially, have prevented the cancer spreading to the left pectoral region.
However, the judge found also that, although Mr Gregg's condition deteriorated and in consequence his prospects were reduced in this way, a better outcome was never a probability. It was not possible to conclude on the balance of probability that, in the absence of the negligence, Mr Gregg's medical condition would have been better or that he would have avoided any particular treatment. Before the negligence Mr Gregg had a less than evens chance (45%) of avoiding the deterioration in his condition which ultimately occurred. The delay did not extinguish this chance but reduced it by roughly half. The judge assessed this reduction at 20%. That was the extent to which the negligence reduced Mr Gregg's prospects of avoiding the deterioration in his condition which ultimately occurred. The facts can be found more fully stated in the judgments of the Court of Appeal [2002] EWCA Civ 1471 and in the speech of my noble and learned friend Lord Phillips of Worth Matravers.
On these findings the trial judge, Judge Inglis, dismissed the claim. He considered he was driven to this conclusion by the reasoning of your Lordships' House in Hotson v East Berkshire Area Health Authority [1987] AC 750. The Court of Appeal by a majority (Simon Brown and Mance LJJ, Latham LJ dissenting) dismissed Mr Gregg's appeal.
Past facts and future prospects
In order to set the question now before the House in its legal perspective I must next say something about the common law approach to proof of actionable damage, that is, damage which the law regards as founding a claim for compensation. It is trite law that in the ordinary way a claimant must prove the facts giving rise to a cause of action against the defendant. Where the claim is based on negligence the facts to be proved include those constituting actionable damage as well as those giving rise to the existence of a duty of care and its breach.
In the normal way proof of the facts constituting actionable damage calls for proof of the claimant's present position and proof of what would have been the claimant's position in the absence of the defendant's wrongful act or omission. As to what constitutes proof, traditionally the common law has drawn a distinction between proof of past facts and proof of future prospects. A happening in the past either occurred or it did not. Whether an event happened in the past is a matter to be established in civil cases on the balance of probability. If an event probably happened no discount is made for the possibility it did not. Proof of future possibilities is approached differently. Whether an event will happen in the future calls for an assessment of the likelihood of that event happening, because no one knows for certain what will happen in the future.
This distinction between past and future is applied also when deciding what would have happened in the past or future but for a past happening such as the defendant's negligent act. What would have happened in the past but for something which happened in the past is, at least generally, a question decided by the courts on the all-or-nothing basis of the balance of probability. On this the authorities are not altogether consistent, but this seems to be the generally accepted practice. In contrast, what would have happened in the future but for something which happened in the past calls for an assessment of likelihood.
Thus the question whether a claimant's hand was damaged in an accident at work is a matter to be decided on the balance of probability. So also is the hypothetical question whether, if the employer had duly provided the necessary protective equipment, the claimant would have worn it: see, for instance, McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295, 306-307, 309, Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, 1610G, per Stuart-Smith LJ, and Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, 439. By way of contrast, whether the claimant's damaged hand will develop osteoarthritis in later life calls for an estimate of the chances of that happening. Whether, hypothetically, his hand would have been likely to develop osteoarthritis in the future even without the accident also calls for such an estimate.
This distinction was summarised in the well known words of Lord Diplock in Mallett v McMonagle [1970] AC 166, 176:
'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages it awards.'
Lord Reid made similar observations in Davies v Taylor [1974] AC 207, 212-213.
This sharp distinction between past events and future possibilities is open to criticism. Whether an event occurred in the past can be every bit as uncertain as whether an event is likely to occur in the future. But by and large this established distinction works well enough. It has a comfortable simplicity which accords with everyday experience of the difference between knowing what happened in the past and forecasting what may happen in the future.
In practice the distinction is least satisfactory when applied to hypothetical events (what would have happened had the wrong not been committed). The theory underpinning the all-or-nothing approach to proof of past facts appears to be that a past fact either happened or it did not and the law should proceed on the same footing. But the underlying certainty, that a past fact happened or it did not, is absent from hypothetical facts. By definition hypothetical events did not happen in the past, nor will they happen in the future. They are based on false assumptions. The defendant's wrong precluded them from ever materialising.
Loss of an opportunity or chance as actionable damage
It is perhaps not surprising therefore that it is principally in the field of hypothetical past events that difficulties have arisen in practice. Sometimes, whether a claimant has...
To continue reading
Request your trial
-
Gemyma Shaunerva Norville Claimant v Attorney General of Saint Lucia Defendant [ECSC]
...not proved on the balance of probabilities that the defendants' negligence had caused the resulting disability. 150 In the later case of Gregg v Scott (2005) WLR 268 the defendant negligently failed to refer the claimant for specialist cancer treatment with the result that his cancer was no......
-
Clarice Louise Wright v Cambridge Medical Group
...I consider that such an argument should probably be treated as foreclosed by the views expressed by the majority of the House of Lords in Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176. It is true that the issue in that case did not turn upon what a third party, to whom the negligent doctor ......
-
The Queen (on the application of John Paul Chidlow) v HM Senior Coroner for Blackpool and Fylde
...cause of the necrosis. 45 The law in this area is not, however, without controversy. In their dissenting speeches in Gregg v. Scott [2005] 2 A.C. 176, Lord Nicholls of Birkenhead and Lord Hope of Craighead echoed the disquiet expressed by Latham LJ (in his own judgment in Gregg v. Scott) an......
-
Joseph Michael Beech (by his Litigation Friend Joanne Mounsey) v Dr A P Timney (1st Defendant) Mr A W Paterson (2nd Defendant)
...of reasonable treatment in March 2003. Accordingly, the case fall squarely within the parameters of the decision of the House of Lords in Gregg v Scott [2005] AC 176. The claimant's case on causation is further weakened by my finding that he was suffering from an AVM rather than being the v......
-
Energy Litigation Update: Measure of Damages for Breach of a Contract to Drill Exploratory Oil or Gas Well: U.S. and English Law.
...have been but for the breach of duty. See, e.g., Hotson v East Berkshire Area Health Authority [1987] A.C. 750 HL; see also Gregg v Scott [2005] UKHL 2. The third approach would be to award so-called “Wrotham Park” or “negotiating” damages, named after the decision in Wrotham Park Estate Co......
-
Business Litigation Report -- May 2014
...have been but for the breach of duty. See, e.g., Hotson v East Berkshire Area Health Authority [1987] A.C. 750 HL; see also Gregg v Scott [2005] UKHL 2. The third approach would be to award so-called “Wrotham Park” or “negotiating” damages, named after the decision in Wrotham Park Estate Co......
-
The Action For Pure Loss Of Opportunity
...Indeed, one of the criticisms of the pure loss of chance in tort is that it shifts the onus of proof to the defendant. Gregg v. Scott [2005] UKHL 2 In Gregg v. Scott, the plaintiff was a patient with a particularly aggressive and difficult to treat cancer. The doctor failed to recognise the......
-
THE PROTECTION OF PERSONAL INTERESTS
...raising the question of how a court can “begin to evaluate non-existence, the undiscovered country from which no traveller returns”. 81[2005] UKHL 2; [2005] 2 WLR 268. The claimant, who suffered from non-Hodgkin's lymphoma, would have had a 42% chance of disease-free survival for ten years ......
-
Lost chances, felt necessities, and the tale of two cities.
...(Wyo. 2003), affd on reh 'g, 88 P.3d 491 (Wyo. 2004). (3.) OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881). (4.) See Gregg v. Scott [2005] 2 A.C. 176, 198 (H.L.) (U.K.) ("[A] wholesale adoption of possible rather than probable causation as the criterion liability would be so radical a c......
-
Table of Cases
...[1915] AC 740, 84 LJPC 194, 113 LT 350, 31 TLR 395, PC 87 Greenhalgh v Arderne Cinemas [1946] 1 All ER 167 128, 134 Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176, [2005] 2 WLR 268, [2005] 4 All ER 812, HL; [2002] EWCA Civ 1471, [2002] All ER (D) 418 (Oct), (2002) The Times , 4 November, CA 3......
-
Litigation
...was permissible to have regard to the photographs in that case). 973 See, eg, Lait v Williams [2006] EWHC 633 (TCC). 974 Gregg v Scott [2005] 2 AC 176 at 181–182 [9], per Lord Nicholls ; Seng Swee Leng v Wong Chong Weng [2011] SGCA 64 at [21]; Evidence Act (Cap 97, 1997 revised edition) (Si......