Gregg V Scott Notes
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Gregg v Scott House of Lords Facts G was negligently diagnosed as not having cancer, with the result that his chances for 10 year survival fell from 42% to 25%
Held Lord Nicholls • The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. o In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. Distinction between past and future events • Currently, in determining what did happen in the past a court decides on the balance of probabilities. o Anything that is more probable than not it treats as certain. o 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 than even, in the amount of damages it awards Criticism of this • This sharp distinction between past events and future possibilities is open to criticism. o Whether an event occurred in the past can be every bit as uncertain as whether an event is likely to occur in the future. But by and large this established distinction works well enough o In practice the distinction is least satisfactory when applied to hypothetical events (what would have happened had the wrong not been committed). The theory underpinning the all-or-nothing approach to proof of past facts appears to be that a past fact either happened or it did not and the law should proceed on the same footing. But the underlying certainty, that a past fact happened or it did not, is absent from hypothetical facts. • By definition hypothetical events did not happen in the past, nor will they happen in the future. o The defendant's wrong precluded them from ever materialising • In some cases what C lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain o But as the uncertainty of outcome increases, this way of defining C's loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant's negligence o In order to achieve a just result in such cases C's actionable damage is defined more narrowly by reference to the opportunity the claimant lost, In adopting this approach the law does not depart from the principle that C must prove actionable damage on the balance of probability. • The law treats the C's loss of his opportunity or chance as itself actionable damage. C must prove this loss on balance of probability. o The chance is to be ignored if it was merely speculative, but evaluated if it was substantial
• So when an employer negligently supplied an inaccurate character reference, the employee did not need to prove that, but for the negligence, he would probably have been given the new job. o The employee only had to prove he lost a reasonable chance of employment, which the court would evaluate (Spring) o In Allied Maples Group a solicitor's negligence deprived C of an opportunity to negotiate a better bargain. Stuart-Smith LJ regarded the case as one of those where "the plaintiff's loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff ... or independently of it". • It is clear that Stuart-Smith LJ did not intend this to be a precise or exhaustive statement of the circumstances where loss of a chance may constitute actionable damage and his observation should not be so understood Medical negligence
• D says "loss" is confined to an outcome which is shown, on balance of probability, to be worse than it otherwise would have been. o i.e. C must prove that, on balance of probability, his medical condition after the negligence was worse than it would have been in the absence of the negligence. o C says his "loss" includes proved diminution in the prospects of a favourable outcome No doubt in some cases medical opinion will be that, given his pre- existing condition, the patient lost nothing by the delay in treatment because he never had any realistic prospect of recovery. In other cases medical opinion may be that the patient lost everything • But there are also many cases of serious illness or injury where a patient's existing chances of recovery fall between these extremes. o There are occasions where medical opinion will be that, given prompt and appropriate treatment, the outcome was uncertain but the patient's prospects of recovery were appreciable, sometimes exceeding 50%, sometimes not.
• In the medical context Limitations on human knowledge mean that, to greater or lesser extent, the prognosis for a patient is inherently uncertain o Given this uncertainty of outcome, the damage must be the loss of the chance of a favourable outcome, rather than the loss of the outcome itself. This recognises what in practice the patient lost by reason of that negligence. • And this analysis of a patient's loss accords with the purpose of the legal duty of which the doctor was in breach -to promote the patient's prospects of recovery.
• The common law imposes duties and seeks to provide appropriate remedies in the event of a breach of duty.
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