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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

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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

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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.

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

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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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