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Hotson V E Berkshire Ha Notes

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Hotson v E Berkshire HA [1987] AC 750 House of Lords Facts H fell out a tree, injuring his leg. When he went to hospital, the doctor negligently failed to diagnose the problem correctly, with the result that H had to have his leg amputated. Had H had prompt treatment, he would have had a 25% chance of saving the leg, but still a 75%
chance of losing it. Issue Loss of chance Held Lord Bridge

The failure of the blood supply to the epiphysis which caused the avascular necrosis could itself only have been caused in one of two ways: o either the injury sustained in the fall caused the rupture of such a high proportion o or the blood vessels remaining intact were sufficient to keep the epiphysis alive
? but were subsequently occluded by pressure within the joint caused by haematoma

In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances. o On the evidence there was a clear conflict as to what had caused the avascular necrosis.
? The authority's evidence was that the sole cause was the original traumatic injury to the hip.
? The plaintiff's evidence, at its highest, was that the delay in treatment was a material contributory cause. o This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities.
? Unless the plaintiff proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis he failed on the issue of causation and no question of quantification could arise.
? But the judge's findings of fact are unmistakably to the effect that on a balance of probabilities the injury caused by the plaintiff's fall left insufficient blood vessels intact to keep the epiphysis alive.

This amounts to a finding of fact that the fall was the sole cause of the avascular necrosis.


Would it be ever attractive to award for a loss of chance?
o There is a superficially attractive analogy between the principle applied in such cases as Chaplin v Hicksand the principle of awarding damages for the lost chance of avoiding personal injuryor for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment. o I think there are formidable difficulties in the way of accepting the analogy.

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