Loss of Chance Lord Hope's Dissent in Gregg v Scott [2005] UKHL 2

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CHAPTER 3

LOSS OF CHANCE

Lord Hope’s Dissent in

Gregg v Scott [2005] UKHL 2
Rebecca Gore

3.1 Introduction: loss of chance in the context of negligence 39
3.2 Facts 40
3.3 Loss of chance simpliciter 41
3.3.1 Judicial perspective of Lord Nicholls 41
3.3.2 Judicial perspective of the majority: Lord Hoffmann 45
3.3.3 Judicial perspective of the majority: Baroness Hale 47
3.3.4 Conclusions regarding loss of chance simpliciter 51
3.4 Quantification argument 52
3.4.1 Lord Hope’s dissent 52
3.4.2 Overcoming the majority’s concerns 55
3.5 Conclusion 58

3.1 INTRODUCTION: LOSS OF CHANCE IN THE CONTEXT OF NEGLIGENCE

Whether a loss of a chance of a better medical outcome can ever sound in damages is an area of the law regarding negligence that has sparked fierce academic debate and judicial scrutiny. ‘Tort requires those who have without justification harmed others by their conduct to put the matter right’,¹ and therefore the predominant function of tort law is to right wrongs sustained by the claimant and to put them in the position they would have been had the wrong not been sustained. However, the present case law, in particular Gregg v

¹ Honore, T, ‘The Morality of Tort Law’, in Owen, D (ed), Philosophical Foundations of Tort

Law (Clarendon Press, 1995), p 79.

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Scott² suggests that where the defendant’s breach of duty results in a reduced chance of survival and the claimant cannot prove that his initial chances of survival were on the balance of probabilities better than evens, the courts are unprepared to award damages. As a consequence of this, the claimant is, arguably, left uncompensated for something that could be considered of ‘importance and value’³ and the function of tort law is not being fulfilled. This argument is strengthened by the fact that this is not the case for claims for economic loss. It therefore appears that ‘pure economic loss cases are being favoured over personal injury claims, which, if correct, would appear to constitute a grotesque reversal of values’.⁴ Bodily integrity is of utmost importance in the tort of negligence and, therefore, the fact that claimants who have lost the chance of a better medical outcome are not being compensated if their initial chances of survival were not better than evens, means that the law can be perceived as defective.

3.2 FACTS

The House of Lords, as it was at the time of hearing the case, arguably had the opportunity to remedy this defect in the case of Gregg v Scott.⁵ In this case the claimant, Malcolm Gregg, developed a non-Hodgkin’s lymphoma which manifested itself as a lump under his arm. Mr Gregg went to his GP, Dr Scott, about the lump on 22 November 1994. Dr Scott was held by the courts to have negligently misdiagnosed the lymphoma as a lipoma: a benign collection of fatty tissue. Mr Gregg then visited another GP on 22 August 1995 and complained of the lump, which had enlarged over the previous 9 months. This GP then referred him to a specialist where it was determined that the lump was a non-Hodgkin’s lymphoma. Mr Gregg had to undergo high-dose chemotherapy in order to treat the cancer, as the cancer had ‘upstaged’⁶ during the period of delay. It was concluded at first instance and reaffirmed in both the Court of Appeal⁷ and the House of Lords that the 9-month period of delay between the respondent’s negligent misdiagnosis of the cancer and the eventual diagnosis by the second GP had caused the upstaging. Mr Gregg argued that this was sufficient to establish causation for his reduced chance of survival. However, it was held that due to Gregg’s initial chances of survival being calculated at 45%,

² Gregg v Scott [2005] UKHL 2.

³ Ibid, at [4], per Lord Nicholls.

⁴ Burrows, A, ‘Uncertainty about uncertainty: damages for loss of a chance’, (2008) (1) JPIL 31.

⁵ Above, n 2.

⁶ A stage is a number established by the oncologist to describe the degree of invasion in the body.

Upstaging, therefore, means the increased invasion of the body by the cancer.

⁷ Gregg v Scott [2002] EWCA Civ 1471.

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no causal link could be established as the doctor’s negligence did not alter the probable outcome of the cancer. Therefore, Mr Gregg’s claim failed at first instance and this decision was upheld by majority verdicts in both appellate courts.

Counsel for Mr Gregg, during the appellate process, argued the case on two grounds. First, it was argued that the delay in diagnosis and treatment had caused physical injury, namely, the ‘upstaging’ of the cancer and that the losses that he suffered were consequential to that. Therefore, the loss of a chance of a better medical outcome should be dealt with at the quantification stage rather than the causation stage. This argument is hereafter referred to as the ‘quantification argument’. It is submitted that if this argument were to have been adopted, as was suggested by Lord Hope, then the defect in the law as it stands would arguably have been remedied. The second argument advanced was that the reduction in the chance of survival was, itself, a compensatable head of damage and that damages should be awarded in proportion to the reduction of the Mr Gregg’s chance of survival. This argument is hereafter referred to as the ‘loss of chance simpliciter’ argument. Whilst it is accepted that the underlying reasons for permitting loss of chance simpliciter, as expounded by Lord Nicholls in Gregg, are correct, it is submitted, with the utmost respect, that the practical ramifications of adopting such an argument means that, notwithstanding the correctness of that view, it would not be an acceptable development in the law. This argument is addressed, first, in order to establish why the quantification argument should have been adopted as opposed to permitting the loss of chance simpliciter.

3.3 LOSS OF CHANCE SIMPLICITER

3.3.1 Judicial perspective of Lord Nicholls

In Gregg, it was only Lord Nicholls who whole-heartedly supported the proposition that loss of chance simpliciter should be permissible in medical negligence cases. His Lordship argued that the status of the law as it currently stands is ‘irrational and indefensible’⁸ as the claimant in cases such as Gregg has lost something of ‘importance and value’⁹ which he is not being compensated for. This, therefore, means that the law in this area is not fulfilling its corrective justice function. His Lordship indicated that ‘a patient has a right to a remedy as much where his prospect of recovery were less than 50-50 as

⁸Above, n 2, at [3].

⁹ Above, n 2, at [3].

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where they exceeded 50-50’,¹⁰ and it is this need to vindicate the claimant’s rights which underlies his opinion.

Several reasons were given by Lord Nicholls for allowing loss of chance simpliciter, the first being that without it the duty of care imposed on the doctor would be ‘empty of content’.¹¹ The duty of care in question was ‘a duty to take reasonable care to maximise the prospects of a favourable outcome’,¹² therefore, arguably the doctor is under no incentive to fulfil this duty where the claimant’s initial chances of survival were 50% or less, as there is no possibility of him bringing a successful claim in negligence. The doctor could be flagrantly negligent and the claimant would have no form of redress, as he would be unable to overcome the required balance of probabilities. By allowing loss of chance simpliciter, the doctor would be accountable whenever a patient’s chance of survival had been reduced, thus evading this problem. However, Lord Nicholls’ concern could be said to be unrealistic in practice as a doctor has a professional duty to his patients which implies that negligence, just because a patient’s chance of survival is 50% or less, is unlikely.

Lord Nicholls further explains that in medical negligence cases the courts must determine the answer to a hypothetical question, namely, ‘What would have happened had the defendant not been negligent?’. Such a question involves an answer based upon likelihood and ‘it is principally in the field of hypothetical past events that difficulties have arisen in practice’.¹³ Lord Nicholls argued that applying an all or nothing approach in such cases is often too ‘crude’.¹⁴ In cases such as those of financial loss, where there is inherent uncertainty, ‘the law defines the actionable damage more narrowly by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcome’¹⁵

in order to achieve a just result. His Lordship, therefore, felt that this principle should be applied to medical negligence cases, due to inherent uncertainty surrounding the answer to the hypothetical question which must be asked. A loss of chance approach, rather than loss of outcome approach, mirrors medical reality as the outcome of a particular disease is not guaranteed and no amount of statistical evidence can determine exactly what the course of the disease will be, or would have been.¹⁶

¹⁰ Above, n 2, at [4].

¹¹ Above, n 2, at [4].

¹² Above, n 2, at [101], per Lord Hope.

¹³ Above, n 2, at [15].

¹⁴ Above, n 2, at [15].

¹⁵ Above, n 2, at [17].

¹⁶ Above, n 2, at [23]–[34].

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Lord Nicholls acknowledges that in medical negligence cases it may be difficult ‘to prove in an individual case what the patient lost when he lost the “chance” of a more favourable outcome’.¹⁷ Statistical evidence will, therefore, be used in order to estimate a patient’s chance of survival. Such estimation is based upon general trends in other patients and ‘do not show whether the claimant patient would have conformed to the trend or been an exception from it’.¹⁸

Consequently, awarding damages on the basis of statistical chances that are not specific to the claimant may not achieve fairness, as it may leave the claimant either...