Hotson v East Berkshire Area Health Authority
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 14 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1114-3 |
| Docket Number | 86/1174 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 1986 |
[1986] EWCA Civ J1114-3
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Dillon
and
Lord Justice Croom-Johnson
86/1174
1979 H. No. 1032
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE SIMON BROWN)
Royal Courts of Justice.
MR. GRAEME WILLIAMS, Q.C. and MR. DAVID ASHTON (instructed by Messrs. Lloyd Howorth & Partners of Maidenhead) appeared on behalf of the (Plaintiff) Respondent.
MR. ADRIAN WHITFIELD, Q.C., MR. KIERAN COONAN and MR. ANDREW GRUBB (instructed by Messrs. Hempsons) appeared on behalf of the Defendant) Appellant.
This appeal appears to raise a novel point on damages in the law of tort. More specifically, "Can a plaintiff recover damages in negligence for the loss of a chance or loss of opportunity?" In this case the problem arises in the context of medical negligence, but it could arise in many other contexts.
The facts can be briefly stated. Stephen Hotson, then aged 13, was at school on the 26th April, 1977. He fell from a rope on which he had been swinging. He dropped some 12 feet on to muddy ground, landing on his seat. Despite the softness of the ground, the shock was sufficient to cause him to suffer an acute traumatic fracture separation of the left femoral epiphysis. This is a very serious injury in a child of this age, as the learned judge (Mr. Justice Simon Brown) explained:
"The femoral epiphysis (the epiphysis as I shall refer to it henceforth) is the spongy extremity of the upper femur, its surface being covered with cartilage, which slots into the cavity of the acetabuIum to form the hip joint. In a child the epiphysis is connected to the neck of the femur by an epiphysial plate (sometimes called a growth plate) which is essentially a sandwich filling of cartilage between, on the upper side, the epiphysis and on the lower side the bony femoral neck. The plate exists only in a growing skeleton and indeed it enables the bone to grow; in maturity it forms bone across the gap. The major threat created by an injury such as the plaintiff's is that it will so interfere with the blood supply to the epiphysis that avascular necrosis will develop. This is a condition whereby through lack of sufficient blood the epiphysis becomes de-mineralized, weakened and softened and thus denser, distorted and deformed. When that occurs, not only does it cause misshapenness of the joint with associated pain, restriction in mobility and general disability, but it also carries with it the virtual certainty that osteo-arthritis will develop within the joint."
The unfortunate plaintiff has indeed suffered avascular necrosis of the epiphysis with consequential serious disabilities which will become more serious over the years. In money terms the learned judge has assessed these disabilities as £46,000. Since this figure is not now in dispute, I need not detail the disabilities or how the sum is made up.
I now come to the admitted negligence of the East Berkshire Health Authority. Shortly after the accident the plaintiff was taken to St. Luke's Hospital, Maidenhead, and examined. His left knee was X-rayed and showed no injury. For some unexplained reason, there was no X-ray examination of his femur or hip. He was given an elastic knee bandage and told to return in ten days, if necessary. I draw a veil over the next five days, during which the plaintiff suffered excruciating pain and received scant sympathy and no real treatment from his general practitioner. That doctor and his partners were additional defendants, but that aspect of the matter was settled. Happily, on the 1st May, 1977 the plaintiff was taken back to St. Luke's, where he was re-examined and his hip X-rayed. This revealed the true nature and extent of the injury and led to emergency treatment by traction and by manipulation under general anaesthetic, coupled with the reduction and pinning of the fracture.
It was common ground that the neglect to diagnose and treat the plaintiff's injury caused him avoidable pain and suffering for the five days between the 26th April and the 1st May. For this the judge awarded the very modest sum of £150, in respect of which there is no appeal. What is in dispute is whether he is entitled to any further damages. This turns upon the long term effects of the delay in diagnosis and treatment. On this there was a conflict of medical evidence which reflects the fact that, whilst all or most surgeons would regard immediate treatment as essential, if only to relieve pain, there is no certainty that immediate treatment will avoid avascular necrosis with consequential disability.
The learned judge made four findings of fact, which are accepted by the defendant health authority. They are as follows:
"1. Even had the defendants correctly diagnosed and treated the plaintiff on 26th April there is a high probability, which I assess as a 75% risk, that the plaintiff's injury would have followed the same course as it in fact has, i.e. he would have developed avascular necrosis of the whole femoral head with all the same adverse consequences as have already ensued and with all the same adverse future prospects.
2. That 75% risk was translated by the defendants' admitted breach of duty into an inevitability. Putting it the other way, the defendants' delay in diagnosis denied the plaintiff the 25% chance that, given immediate treatment, avascular necrosis would not have developed.
3. Had avascular necrosis not developed, the plaintiff would have made a very nearly full recovery.
4. The reason why the delay sealed the plaintiff's fate was because it allowed the pressure caused by haemarthrosis—the bleeding of ruptured blood vessels into the joint—to compress and thus block the intact but distorted remaining vessels with the result that even had the fall left intact sufficient vessels to keep the epiphysis alive (which, as finding No. 1 makes plain, I think possible but improbable) such vessels would have become occluded and ineffective for this purpose."
Having reviewed the authorities, the learned judge reached four conclusions of law:
"1) If the plaintiff proves both medical negligence and that he has thereby (a) lost a substantial chance of achieving a better medical result, alternatively, (b) incurred a substantial risk of an adverse medical result developing, he is entitled to damages.
2) If the extent of that proved loss of chance or risk is clearly unascertainable, then the plaintiff is entitled to recover damages in full.
3) The extent of the loss of chance or risk should, however, be ascertained if possible and the plaintiff's damages be calculated and discounted accordingly.
4) Generally speaking the plaintiff will be required to establish a higher degree of substantiality in order to succeed on basis (2) than on basis (3); even on basis (3) the court will look for a higher degree of substantiality when the claim is not attached to a directly provable period of suffering or disability, particularly a serious one, than when it is."
These conclusions are not accepted.
Combining fact and law, Mr. Justice Simon Brown awarded the plaintiff £11,650, being the £150 for pain and suffering together with £11, 500 or 25 per cent of the full liability figure of £46,000. The defendant health authority now appeals.
The essence of the appellants' argument is that the standard of proof in civil proceedings is the balance of probabilities. In percentage terms, where it is alleged that an event, act or omission has occurred, he who alleges it must satisfy the court that it is more than 50 per cent likely that it occurred. In the instant case the plaintiff only proved that it was 25 per cent likely that the delay in diagnosing and treating his injury permitted the avascular necrosis to occur. Accordingly he cannot establish that any loss flowed from the delay and cannot recover damages based upon it. As a subsidiary argument, the appellants contend that even though, as is the case, it is possible to sue in contract for the loss of a chance, no such claim in tort has ever been recognised.
The principal argument has a superficial attraction. This attraction stems from its simplicity and the fact that it is undoubtedly based upon well settled principles of law. So far as past happenings are concerned, the court does indeed approach the matter on the basis that if it is 50 per cent or less likely to have happened, it did not happen and that if it is more than 50 per cent likely, it did. In general it is only in relation to future happenings, its view of which must inevitably be more or less speculative, that it translates likelihood into what might be described as partial or discounted findings of fact.
If authority for these principles were needed, it is to be found in the speech of Lord Diplock in Mallett v. McMonagle [1970] A.C. 166 at page 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...
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