Losses of Chances in the Law

Publication Date01 Mar 1996
AuthorHelen Reece
DOIhttp://doi.org/10.1111/j.1468-2230.1996.tb02074.x
Losses
of
Chances in the Law
Helen
Reece*
Introduction
Let us begin with two well-known principles. The first is that the standard of proof
in civil cases is the balance of probabilities. The second is that in the tort of
negligence the standard of proof is operated by using the ‘but for’ test:’ the
negligence has to be
a
necessary cause of the loss. In most negligence cases, these
principles occasion no controversy. For example, in
Barnett
v
Chelsea and
Kensington Hospital Management Committee,2
a patient who was sent away from
a casualty department without treatment died soon after from arsenic poisoning.
However, ‘but for’ causation was not established because it was found that the
patient would have died even
if
the doctor had treated him. The problems begin
with those cases where it is difficult to decide what would have happened without
the negligence.
In
the famous case of
Chuplin
v
Hicks,3
the Court of Appeal, in
awarding an actress damages for loss of a chance of
25
per cent that
she
would
have won a beauty competition, seems to have responded to this difficulty by
waiving the ‘but for’ test. The problems intensify because the House of Lords has
latterly reaffirmed the need to meet the ‘but for’ test in a case which seems
identical to
Chaplin:
in
Hotson
v
East Berkshire Area Health Authority?
the House
of Lords refused to allow recovery for
a
25
per cent chance that the defendants had
caused the damage to the plaintiffs hip.
A first impression of these cases is that the decisions
are
arbitrary and
inconsistent, and this is reinforced by the paucity of the judicial reas~ning.~
Traditional legal scholarship has further enshrined this view as the last word on
the matter.6 But
a
conclusion that the courts are behaving arbitrarily should be a last
resort, after other explanations have been tried and failed.’
In
this article it
is
argued
that a philosophical analysis enables us to grasp the distinction between the cases.
Specifically, it will be shown that it is possible to explain why and predict when
recovery for loss of
a
chance is permitted by distinguishing between epistemological
and objective expressions of probability. First, a review of the loss of chance cases
will demonstrate the need for
a
new theory, which will then be developed out of
*Lecturer in Law, University of London (University College London).
I
am grateful to Dr Stephen Guest, Professor David Papineau, Dr Gordon Reece and Dr Peter Urbach
for
assistance with this article.
Barnett
v
Chelsea and Kensington Hospital Management Committee
[I9691
I
QB 428.
ibid.
[I9111 2
KB
786.
[I9871 2
All
ER
909.
See
Hotson, ibid,
914
per
Lord Bridge for an illustration
of
this.
eg Jones,
Textbook on Torts
(London: Blackstone Press, 4th
ed,
1993) p
146;
Brazier,
Street on Torts
(London, Dublin, Edinburgh: Butterworths, 9th ed, 1993) pp 251-252; Rogers,
Winjield and Jolowicz
on Tort
(London: Sweet and Maxwell, 14th ed, 1994) pp 150,692; Foster,
‘A
Plea for
a
Lost Chance:
Hotson
Reconsidered’
(1995)
145
NLJ
228. See
also
Phillips, ‘Lost Chances in Delict:
All
or
Nothing? (1995)
5
Juridical Review
401, who argues that the distinction is between legal and medical
situations.
A
particularly good example
is
Jackson,
Jackson
and
Powell on Professional Negligence
(London: Sweet and Maxwell, 3rd ed, 1992) pp402-403.
See Dworkin,
Law’s Empire
(London: Fontana Press, 1986) esp ch7 for
a
criticism of scepticism.
0
The Modern Law Review Limited
1996
(MLR 592. March). Published by Blackwell Publishers,
108
Cowley Road, Oxford OX4 IJF and 238 Main
Street.
Cambridge, MA 02142, USA.
188
March
19961
Losses
of
Chances
in
the
Law
previous attempts to explain the cases. Secondly, the necessary concepts from
philosophy of science will be introduced. Thirdly, a more thorough analysis of the
loss of chance cases will reveal that misrepresentation cases are best viewed as loss
of chance cases, and that viewing misrepresentation cases in this way explains
why
they are treated differently from standard negligence cases in relation to causation.
It
is
apparent that the approach taken to the legal decisions will be to treat them
as the empirical data, but it will not
be
possible to save the legal reasoning. This is
because the judges have only
an
intuitive grasp of the results which they wish to
reach. General accordance between the theory and the judges’ intuitions
is,
however, essential if the theory is to be workable. It will be shown that the judges’
instinct that
Hotson
is on one side of the line and
Chaplin
on the other is indeed
correct. The final conclusion will be that this analysis has normative force as well
as
explanatory power. The courts are correct to distinguish between
epistemological and objective probability when determining whether to allow
recovery for loss of a chance.
What is the difference between
Chaplin
and
Hotson?
In
Chuplin,
the defendant invited women to enter a beauty competition by sending
in photographs of themselves. The winners were selected in several stages. The
first stage was that the defendant published a selection of the photographs in the
newspaper. Readers were then invited to vote on the most beautiful. The defendant
made appointments to see the
50
candidates who had obtained the greatest number
of votes, from whom
he
selected
12
winners. The plaintiff made it to the final
50
but was unable to keep her appointment. She sued the defendant for breach of
contract on the ground that he had not given her a reasonable opportunity of
presenting herself for selection. The Court of Appeal dismissed the argument that
the damages were incapable of assessment and held that since the average chance
of each competitor was about one in four, the plaintiff should
be
awarded
25
per
cent of what
she
would have gained had she been selected.
In
Hotson,
the plaintiff fell from a tree, breaking his left femoral epiphysis. He
was taken to hospital within hours but the hospital staff failed to diagnose the
injury. He was sent home and was in severe pain for the next
five
days, after which
he was taken back to hospital where the injury was correctly diagnosed and treated.
Nevertheless, as a result of failure of the blood supply to the epiphysis, the plaintiff
suffered
an
avascular necrosis. The plaintiff sued the health authority. The trial
judge, whose decisions on the facts were not challenged in the higher courts, found
that
even
if the defendants had correctly diagnosed and treated the plaintiff, there
would still have been
a
75
per cent risk that the plaintiff would have developed
avascular necrosis, and that their negligence translated this risk into
an
inevitability.
The
House of Lords, overturning the decisions of both the trial
judge and the Court of Appeal, held that the plaintiff had failed to establish that the
delay in treatment had caused the necrosis.
Chaplin
is a case in contract and
Hotson
is a case in tort
This
explanation has proved surprisingly popular and indeed represents the
orthodox
view.*
What saves it from being a tautology is that
in
tort it is the loss
8
eg Markesinis and Deakin,
Tort
Law
(Oxford: Clarendon Press, 3rd ed,
1994)
p
173;
Brazier
(ed),
Clerk
and
Lindsell
on
Torts
(London: Sweet and Maxwell,
17th
ed,
1995)
p45;
Howarth,
Textbook
on
189
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