Chapter 9 Pointers to 'pause for reflection' and 'counterpoint' boxes

Causation and remoteness of damage

Page 274

This counterpoint is being used to explore some of the reasoning behind the differing opinions given in the House of Lords in Gregg v Scott [2004]. Lord Nicholls, in the dissenting minority (but who gave the leading opinion) was firmly swayed by the injustice of denying recovery to the claimant. He said that the 'loss of chance' claim should succeed, as '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. 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 (at [3])'. Adhering to the 'but for' rule, in many cases, is a way of ruling out negligent actions that, in all probability, did not cause the harm alleged. But in 'lost chance' cases the whole idea is different – the harm is the significant loss of a chance itself, as Lord Nicholls outlines, and it certainly can be said that 'but for' the defendant's negligence the claimant would not have suffered it. Lost chance claims are recoverable elsewhere in the law of negligence – in relation to economic losses (or failure to make gains – see e.g. AlliedMaples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602). It is at least arguable that the idea is at least as viable in the medical context as it is in financial ones. That said, on one interpretation of Gregg, the door to lost chance in medical negligence is not necessarily closed – and certainly not bolted – and the fact that some more recent claims seem to be manifestations of the lost chance idea seems to support this (see e.g. Wright (A Child) v Cambridge Medical Group [2011]).

While Gregg is touted as a case that split the House of Lords 3:2 (which still makes it a close decision), reading Lord Phillips' opinion actually makes it seem an even closer decision than this. He came down on the side of the defendant, but was in fact swayed by the fact that the claimant was still alive nearly ten years down the line, leading to a reinterpretation of the statistical probabilities. He concluded his speech (at [191]) by saying: 'The data have now changed and Mr Gregg's prospects of survival, despite the delay in commencing his treatment, seem good. The delay may well, however, have meant that his path to what seems a likely cure has involved more intrusive treatment, and more pain, suffering and distress than would have been experienced had treatment commenced promptly. Those acting for Mr Gregg have, however, not sought to re-open the facts but have relied on the facts as found by the judge. On those facts I agree with Lord Hoffmann and Baroness Hale that this appeal must be dismissed.'

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