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Gregg V Scott Notes

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Gregg v Scott [2005] 2 AC 176 House of Lords Basic Facts C developed lump under arm which he saw his doctor about. D, his GP said was not anything to worry about. C later was referred by a second GP to hospital, which diagnosed it as a type of Hodgkin's disease. Treatment led to a number of remissions and relapses, and C claimed that his survival rating of 10 years had fallen from 50% to 25% owing to lack of prompt treatments. However, Judge in original hearing was influenced by evidence that person w/ C's condition had 42% survival rate despite prompt treatment. Thus D had been negligent and breached duty of care, but was found not to have caused the loss of chance. Held Lord Nicholls of Birkenhead

Is wrong that C cannot recover for loss of 45% chance of recovery o But can recover for loss of something like 55%
? 45% loss is still substantial to patient just as much as 55% loss

Why should latter patient have a remedy and former not have one?

When assessing past events, courts apply all or nothing o If past event probably happened
? Then it is treated as if it certainly happened o However, with future events, the court has to make an estimate as to what are the chances that a particular thing will happen and reflect those chances,
? whether they are more or less than even,

in the amount of damages it awards

Generally, this works. o However, distinction is at most unsatisfactory when applied to hypothetical facts (i.e. what would have happened had the wrong not been committed)
? All or nothing is justified with past facts is that the past fact either happened or didn't - a finding of actual fact

Whereas this underlying certainty is absent for hypothetical facts o D's wrong precluded them from every occurring. Loss of Chance Cases

Law has adapted principle that where D loses an opportunity to get an outcome o This "loss of chance" rather than loss of outcome is treated as actionable damage
? Thus instead of "But for D's negligence, would C have achieved the desired result"

We ask: "But for D's negligence, would C have had a chance of achieving the desired result?" o And if so "how great was this chance?"(which assesses the damages) What has C actually lost in medical negligence cases?

In medical negligence cases, the question = whether D has lost a desired outcome (which is all or nothing) o Or whether D has merely lost an opportunity of a favourable outcome (which is much easier to prove)

Medical reality is that doctors cannot be certain about outcomes - drugs don't always work predictably, some aren't understandable in their way or working o Thus the outcome is uncertain o Doctors can only give percentages which change over time

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