‘Loss of a Chance’ Revisited: Gregg v Scott

AuthorEdwin Peel
Publication Date01 Jul 2003
‘Loss of a Chance’ Revisited: Gregg vScott
Edwin Peel
In Gregg vScott
the Court of Appeal has returned to the vexed question of
whether to allow damages for the ‘loss of a chance’ of avoiding death or injury in
cases of medical negligence. In doing so, it was not only required to deal with a
‘new’ submission on behalf of the claimant, but also to consider directly the
original submissions in favour of such a claim which had been side-stepped by the
House of Lords in Hotson vEast Berkshire Health Authority.
The facts and decision at first instance
The claimant developed a lump under his left arm. On 22 November 1994, he
visited the defendant who diagnosed it as a benign lipoma. The negligence of the
defendant, as found by the trial judge and unchallenged on appeal, lay in his
failure to refer the claimant to a specialist. Such referral did not take place until
the claimant visited another general practitioner on 22 August 1995. The surgeon
who examined the claimant on 2 November 1995 ordered an urgent biopsy which
established that he had a form of cancer known as non-Hodgkin’s lymphoma. The
effect of the defendant’s negligence was to have delayed by nine months the
treatment necessary to ‘cure’ the claimant. In this context, a ‘cure’ means a period
of remission of at least ten years since the disease was last evident.
The crucial finding of fact made by the judge was that the delay caused by the
defendant’s negligence had reduced the claimant’s expectation of a cure, in the sense
described above, from 42 per cent to 25 per cent. On the basis of earlier authority,
and, in particular, the decision in Hotson,
the judge found that the claimant failed
in his claim. Since, at best, his prospect of a cure was 42 per cent, he was unable to
discharge the burden of proving that it was more probable than not that the outcome
would have been materially different had he been treated nine months earlier. The
claimant’s attempt to challenge the evidential basis for the finding of fact upon which
this decision was reached was rejected unanimously by the Court of Appeal.
It was
upon this finding, therefore, that the Court of Appeal considered the further
submissions of the claimant. It is with those submissions that this note is concerned.
Submissions made on behalf of the claimant
In order to understand the two further submissions made by the claimant, it is
necessary to start with a reminder of the decision which was reached by the House
Keble College, Oxford. While we may agree to differ in many respects, I am very grateful to Jane
Stapleton for comments made on earlier draft of this note.
1 [2002] EWCA Civ 1471, [2002] All ER (D) 418, 29 October 2002.
4 For reasons which are given in the judgment of Latham LJ: para 20.
rThe Modern Law Review Limited 2003 (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 623

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