Gregg v Scott [2005] UKHL 2 (27 January 2005)

Mr Gregg's GP negligently failed to diagnose cancer, delaying treatment by nine months. His prospects of disease-free survival fell from 42% to 25%. The House of Lords (3-2) dismissed his appeal, holding that loss of a chance of recovery is not recoverable damage in clinical negligence where the claimant cannot prove on balance of probabilities that negligence caused the adverse outcome.

Facts

In November 1994, Mr Gregg consulted Dr Scott about a lump under his left arm. Dr Scott negligently diagnosed it as a benign lipoma and took no further action. In fact, Mr Gregg had non-Hodgkin’s lymphoma (cancer). The cancer was not diagnosed until January 1996, delaying treatment by approximately nine months. During this period, the cancer spread to Mr Gregg’s pectoral region. He underwent extensive chemotherapy and suffered relapses. Statistical evidence showed that prompt treatment would have given him a 42% chance of disease-free survival for ten years, but by the time of trial this had reduced to 25%.

The Trial

The trial judge found Dr Scott negligent but dismissed the claim. He held that Mr Gregg could not prove on the balance of probabilities that the delay caused his adverse outcomes, as his prospects of complete recovery were never better than 50%. The Court of Appeal (by majority) upheld this decision.

Issues

The principal issue was whether English law should recognise a claim for damages based on the loss of a chance of a more favourable medical outcome, where the claimant cannot prove on the balance of probabilities that the defendant’s negligence caused the adverse outcome.

Judgment

The House of Lords dismissed the appeal by a 3-2 majority (Lord Hoffmann, Lord Phillips of Worth Matravers and Baroness Hale in the majority; Lord Nicholls of Birkenhead and Lord Hope of Craighead dissenting).

Majority Reasoning

Lord Hoffmann held that the law treats causation as deterministic. The claimant must prove on the balance of probabilities that the defendant’s negligence caused the injury. Statistical chances cannot substitute for proof of causation. He distinguished cases involving loss of financial chances from personal injury cases and emphasised that wholesale adoption of possible rather than probable causation would be a legislative act with enormous consequences.

Lord Phillips undertook detailed analysis of the statistical evidence and concluded that the case was not suitable for introducing loss of chance into clinical negligence law. He noted the practical difficulties of applying such an approach and observed that awarding damages for reduction in prospects when long-term results remain uncertain is unsatisfactory.

Baroness Hale held that damage is the gist of negligence and must be proved on the balance of probabilities. She expressed concern that allowing loss of chance claims would fundamentally transform personal injury law, creating inconsistency between outcome-based and chance-based approaches. She noted:

“Almost any claim for loss of an outcome could be reformulated as a claim for loss of a chance of that outcome. The implications of retaining them both as alternatives would be substantial.”

Dissenting Opinions

Lord Nicholls argued strongly that justice required recognition of loss of chance in medical negligence cases. He stated:

“This surely cannot be the state of the law today. It would be irrational and indefensible. 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.”

He distinguished between cases where the patient’s condition at the time of negligence determined the outcome (like Hotson) and cases with inherent medical uncertainty about outcomes.

Lord Hope of Craighead agreed, focussing on the physical injury caused by the tumour’s enlargement during the delay period, which he considered proved on balance of probabilities and from which reduced prospects flowed as consequential damage.

Implications

This decision confirms that in clinical negligence claims, a claimant must prove on the balance of probabilities that the defendant’s negligence caused the adverse outcome. Loss of a statistical chance of recovery is not recognised as actionable damage in English law. The decision maintains consistency with Hotson v East Berkshire Area Health Authority [1987] AC 750 and Wilsher v Essex Area Health Authority [1988] AC 1074. It creates a distinction between personal injury cases and economic loss cases where loss of chance is recoverable. The case demonstrates judicial reluctance to make fundamental changes to causation principles that would have wide-ranging implications across tort law, preferring such changes to be made by Parliament.

Verdict: Appeal dismissed by 3-2 majority. The claimant could not recover damages for loss of a chance of a better medical outcome where he failed to prove on the balance of probabilities that the defendant's negligence caused his adverse condition.

Source: Gregg v Scott [2005] UKHL 2 (27 January 2005)