Court: House of Lords
Date: 2005
Citation: [2005] UKHL 2
Gregg v Scott [2005] is a significant English tort law case that addresses the issue of loss of a chance in the context of causation in medical negligence. The House of Lords reaffirmed the principle established in Hotson v East Berkshire Area Health Authority [1987] AC 750, ruling that loss of a chance, particularly where the claimant’s chances of recovery were less than 50%, is not recoverable under English tort law. The case also highlights a divergence of opinion, with Lord Nicholls dissenting and advocating for the actionability of loss of a chance claims in medical negligence.
Facts of Gregg v Scott
The claimant, Mr. Gregg, was diagnosed by his doctor, Dr. Scott, with a benign lump under his arm. Dr. Scott negligently misdiagnosed the lump, identifying it as a non-cancerous fatty tissue mass rather than the malignant cancer (non-Hodgkin Lymphoma) that it actually was. Due to this misdiagnosis, Mr. Gregg’s condition went untreated for nine months, resulting in a significant delay in receiving the appropriate treatment.
By the time Mr. Gregg was properly diagnosed, his chances of surviving had decreased dramatically. Expert medical testimony indicated that, had the cancer been diagnosed earlier, Mr. Gregg would have had a 42% chance of surviving for ten years. However, due to the delay, his chances had fallen to 25%. Furthermore, the delay limited the range of treatment options available to him.
In essence, Mr. Gregg sought to claim for the loss of a chance—specifically, the 17% chance of survival he lost due to the doctor’s negligence. The legal question was whether Mr. Gregg could successfully claim damages for the loss of a chance to recover.
Issues
The primary issue before the House of Lords was whether Mr. Gregg could claim for the loss of a chance, which in this case was the reduced probability of surviving due to the delay in diagnosis. Specifically, the issue was whether a claimant could recover damages for a chance that had been diminished due to the defendant’s negligence, even if the claimant’s original chances of recovery were below 50%.
Gregg v Scott Judgement
Majority Decision (3-2)
The House of Lords, in a narrow split decision of 3-2, upheld the decision in Hotson v East Berkshire Area Health Authority, which ruled that loss of a chance was not a valid basis for a negligence claim in cases where the claimant’s chances of recovery were below 50%.
The majority of the Lords ruled that Mr. Gregg failed to establish that the negligence of Dr. Scott directly caused the loss of a chance. While Mr. Gregg’s survival chances were indeed reduced from 42% to 25% due to the delay in diagnosis, this reduction in likelihood did not meet the necessary standard of proof required to claim damages in tort.
Lord Hoffman, delivering the majority opinion, noted that previous cases (such as Chaplin v Hicks [1911]), had accepted the reduction of the prospect of a favourable outcome. However, the issue in this case was whether loss of a chance could apply in cases involving clinical negligence where the claimant’s original chance of recovery was less than 50%.
Lord Hoffman expressed that imposing liability for the loss of a chance would significantly alter the law of causation in tort, and any such change should be a matter for Parliament to address, rather than the courts. He pointed out that adopting loss of a chance as a legal principle could have enormous consequences for insurance companies and the National Health Service (NHS).
While Lord Hoffman acknowledged the academic criticism of the causation standard, he emphasised that a wholesale shift towards recognising loss of a chance as a form of liability would be too radical a change. The courts, he believed, should not depart from long-standing UK precedents in tort law without careful consideration by Parliament.
Lord Nicholls’ Dissent
In contrast, Lord Nicholls dissented, offering a powerful argument in favour of recognising loss of a chance claims in medical negligence cases. He argued that the loss of a chance should indeed be actionable, particularly where the claimant could show that the defendant’s negligence had reduced the claimant’s chances of recovery.
Lord Nicholls recognised that in this case, Mr. Gregg’s original chance of survival was less than 50%, but he believed that this did not preclude the possibility of a claim for loss of a chance. He argued that the courts should evolve in their understanding of causation and that claims based on loss of a chance could be valid even if the chance of success was less than 50%.
Lord Nicholls suggested that the current approach to causation in medical negligence cases did not adequately reflect the realities of clinical decision-making, where medical professionals often have to make assessments in situations where the outcome is uncertain. He argued that patients who lost a chance of survival due to medical negligence should be entitled to claim compensation, regardless of whether the original chance of recovery was above or below 50%.
In his view, a change in the law was necessary to address this gap, and he suggested that the loss of a chance should be recognised as a separate head of damages in medical negligence claims. His dissent highlighted a broader concern with the traditional tort law framework, which he believed was not sufficiently adaptable to the evolving nature of medical practice and its inherent uncertainties.
Conclusion
In Gregg v Scott [2005], the House of Lords reinforced the existing legal framework regarding causation in medical negligence claims, limiting the ability to claim damages for loss of a chance in situations where the claimant’s original chance of recovery was below 50%. The case underscores the practical and doctrinal complexities of applying the loss of a chance doctrine in medical negligence cases.
