Notes for loss of chance essay

Turton, Gemma. "Loss of a Chance." Evidential Uncertainty in Causation in Negligence.

Oxford:Hart Publishing, 2016. 122–163. Hart Studies in Private Law. Bloomsbury
Collections. Web. 18Apr. 2023. http://dx.doi.org/10.5040/9781474202695.ch-004

PAGE 2
In Hotson v East Berkshire Health Authority and Gregg v Scott, the Court found that the
delay in diagnosing and treating an existing illness could not have been a cause of any
eventual physical damage, but the chance of a cure had been reduced, and this chance was
something of value. This chapter discusses whether a ' chance ' of a better outcome can
constitute actionable damage in negligence, and whether the House of Lords was correct to
reject the claims in Hotson and Gregg . In corrective justice-based interpersonal
responsibility, liability is for ' wrongful loss '. The claimant must persuade the court that the
defendant's negligence was a cause of the damage on the balance of probabilities, and if it is,
the claimant recovers in full.
PAGE 3
The second part of the chapter argues that the opportunity to access treatment before the
patient ' s prospects of recovery declined is something of value to the patient, and is lost when
the patient's statistical chance of cure declines by the time she is properly diagnosed and
given the opportunity for treatment. The patient ' s autonomy interest would be damaged even
if the doctor ' s negligence did not cause physical harm, but the damage would be valued
independently rather than as a proportion of the physical outcome.
Recovery for Physical Harm
This section explains how negligence principles apply to two cases involving misapplication
of the balance of probabilities standard of proof, and argues that proportionate recovery for
the loss of a ' chance ' of avoiding physical harm merely discounts damages to reflect the
degree of doubt over the causal link.
PAGE 4
A boy was taken to hospital with a fracture to his hip, but the medical staff failed to x-ray his
hip and instead sent him home untreated. He returned to hospital with severe pain, and was
eventually diagnosed with avascular necrosis in the epiphysis. The award of damages for the
five-day period of suffering was unproblematic, but the difficulty arose in relation to the
avascular necrosis. The judge effectively treated the case as involving an issue of
quantification of the loss caused by the delay in diagnosis. The Court of Appeal upheld the
claim, but the House of Lords rejected it, holding that there was no 'chance' that had been
lost.
PAGE 5
The judge at first instance found that the delay in diagnosing and treating the injury caused
damage to those blood vessels that had remained, and sealed the claimant's fate by turning his
injury into an inevitability. Lord Mackay suggested that Simon Brown J's conclusion was a
compromise between the views of the two expert witnesses.
Physical injury is a recognised form of damage, but the loss of a chance of avoiding physical
injury is not. The court must consider all losses that flow from the personal injury.
PAGE 6
The loss of a chance argument is not analogous with existing negligence principles because it
involves a prior issue of damage and causation.
Stapleton argued that the lost chance of recovery could be regarded as a question of
quantification, and that the hook argument was overstated. However, Simon Brown J noted
that courts regularly assess the likelihood that the claimant will develop a medical condition
consequent on the injury. A defendant is not required to pay for all future illnesses that a
claimant might suffer, only those illnesses that the claimant might suffer because of the harm
the defendant has negligently caused her.
PAGE 7
The hook idea should continue to be used where actionable injury causes the claimant an
increased risk of future illness, but cannot apply in Hotson.
The vicissitudes principle states that the court should reduce the multiplier used to calculate
loss of earnings to take account of the risk that the claimant's earnings would have been
reduced by other unrelated accidents or illnesses.
PAGE 8
He is right to say that taking the pre-existing chance of injury into account when valuing the
loss caused by the negligence would discriminate in favour of defendants, yet once again he
has overstated the issue. In Smith v Leech Brain , the defendant's negligence caused the
claimant to suffer a burn on his lip that triggered a pre-cancerous condition. The damages
were reduced by 5 per cent to account for this possibility. The discount is made not to reflect
the chance that the triggering had been due to a chance, but to reflect the degree of doubt over
whether the defendant had caused the loss at all.
PAGE 9
The vicissitudes principle relates to valuation of loss once a causal link has been established,
and the loss of chance argument seeks to solve a diffi culty relating to proof of causation. The
House of Lords rejected the loss of chance argument, but failed to resolve the essence of the
claimant's argument.
The claim was again rejected in the medical negligence context in the case of Gregg v Scott .
The claimant argued that the nine-month delay in diagnosis and commencement of treatment
had caused him to lose a chance of being cured.
PAGE 10
The claimant presented a claim that was destined to fail, because he was still alive and could
not be said to have lost his ' chance ' until he died or survived disease-free for 10 years. The
claimant used the loss of a chance argument to try to avoid proving a causal link between the
negligence and the physical harm, but his loss of a chance argument was less readily
acceptable than it might otherwise have been because he had not yet suffered the damage.
The following analysis seeks to clear away any misconceptions surrounding how orthodox
negligence principles would apply to this case.
The claimant was admitted to hospital with acute and intense chest pain after the cancer had
spread to the left pectoral region.
PAGE 11
The claimant underwent chemotherapy, supplemented by radiotherapy, and suffered side
effects. Inglis J found that he would have achieved complete remission with initial CHOP
therapy and without high dose chemotherapy with stem cell harvesting, but Baroness Hale
rejected the claim for loss of a chance.
The spread of the cancer did not affect the final outcome of death/survival, but it did affect
the treatment necessary, which caused greater pain and suffering.
The claimant argued that the defendant's negligence caused him to lose a chance of a cure by
reducing his chance from 42 per cent to 25 per cent. However, the way the claim was
formulated made it easier for the Court to reject his claim. The hook argument is used to
determine the effect of the injury on expectation of life. This argument states that all other
chances are recoverable as a matter of quantifi cation. Mr Gregg was unable to show a causal
link between the spread of the cancer and the final outcome of being cured or failing to
survive for 10 years, but if he had advanced a conventional claim for the physical harm
constituted by the spread of the cancer, it would seem likely that having more extensive
cancer would reduce his life expectancy.
PAGE 13
A doctor's negligent failure to diagnose a cancer, resulting in a delay in diagnosis and
treatment, was awarded damages for the physical damage and the reduction in life expectancy
caused by the delay. Lord Phillips explained that the delay in commencing treatment had
caused Mr Gregg's various adverse events, including the spread of the cancer to the pectoral
region, high dose chemotherapy, and a relapse with additional chemotherapy. Lord Phillips
concluded that a claimant should receive modest compensation for that portion of the loss the
defendant can be proved to have caused, rather than attempt to combine the losses into one
claim for the loss of a chance of a better outcome.
PAGE 14
If courts accepted the loss of chance argument for proportional recovery, this would represent
a significant departure from traditional principles.
The loss of chance argument has been raised by claimants because of the difficulties they
faced proving the causal link between the defendant ' s negligence and their loss. The court
must determine whether the illness alone would have caused the harm even with careful
diagnosis and treatment. The balance of probabilities relates to the degree of belief the judge
must form in the fact of causation, and statistical evidence should be personalised to the
individual as far as possible. The judge must also be persuaded of the reliability of the
evidence. Lord Nicholls was wrong to suggest that the patient could recover damages if his
initial prospects of recovery had been more than 50 per cent, because Mr Gregg had not
suffered the harmful outcome to which this ' chance ' related since he was still alive. The
causation question is not whether the defendant would have suffered actionable damage if he
had acted carefully, but whether the negligent delay in diagnosis was a cause of the damage.
In cases of medical negligence, the court will routinely refer to the statistical likelihood of
recovery when explaining a patient ' s prognosis, but once the patient has suffered the
harmful outcome, the court will decide the case on the balance of probabilities.
PAGE 16
The judge did undertake a detailed qualitative assessment of the confl icting evidence and
awarded proportionate recovery based on his belief that the injury could have been avoided.
The judge found internal inconsistencies in the evidence of the claimant's expert witness and
between the two confl icting experts, and eventually concluded that certain parts of their
evidence were difficult to accept.
PAGE 17
The judge found that it was possible but improbable that the fall had left intact enough blood
vessels to keep the epiphysis alive, and expressed his belief in this proposition numerically to
allow the calculation of damages. The judge quantified the extent of his doubt, because he
was willing to approach it as a loss of a chance case, and calculated a proportionate award of
damages.
Professor Goldstone and Dr Bunch prepared a joint report for the claimant based on evidence
from Professor Goldstone and Dr Bunch, and Professor Goldstone gave oral evidence. The
joint report took account of the Falini paper and a working example of the fate of 100 ALK
negative patients was developed.
PAGE 18
The cancer upstaged from stage 1 (presence in the lymph nodes) to stage 1E (spread to other
tissues outside the lymph nodes) during the period of delay following the negligence, and the
expert evidence was that the patient's prognosis had been reduced to less than 50% of what it
would have been intrinsically at the outset.
Lord Phillips concluded that Professor Goldstone's evidence was inadequate and that it cast
doubt on the overall quality of his evidence. McIvor also identified a number of concerns
regarding Professor Goldstone's evidence which affect the degree of belief that can be placed
in the statistics he presented to the Court. Professor Goldstone's model to predict the likely
fate of 100 ALK negative patients is probably based on his own experience, and a different
expert could have given quite different figures.
PAGE 19
Professor Goldstone had made some attempt to personalise the statistics to Mr Gregg ' s post-
tort chances, but had not correspondingly attempted to personalise the statistics in relation to
his pre-tort chance of survival.
PAGE 20
The Court assumed that Professor Goldstone's working example applied to a cohort of 100
patients whose disease was at the same stage as the claimant's pre-tort disease, and did not
provide a similar working example for 100 patients whose disease was at a more advanced
stage. Mr Gregg's claim was fatally fl awed because he had not suffered actionable damage,
and even if he had, the evidence pertaining to causation was not reliable.
The claimants were unable to prove causation but put forward the loss of chance argument
seeking to recover a proportion of the value of the relevant physical harm. This is inconsistent
with corrective justice where a wrongdoer is required to repair a loss because she caused it
through her wrongdoing. Following the decision in Hotson , Helen Reece sought to reconcile
Hotson with the earlier decision in Chaplin v Hicks , in which the court held that 25 per cent
of the value of the prize that the claimant would have received had she won the competition.
Reece argues that the distinction lies in the causal process itself, which is deterministic in
Hotson but quasi-indeterministic in Chaplin. Reece explains that in an indeterministic
process, probability is an objective concept, whereas in a deterministic process, there is no
objective probability of something occurring. Given sufficient knowledge, it would be
possible to predict with certainty whether or not a pedestrian ' s bones would be broken in any
particular case. However, we lack sufficient knowledge and the residual uncertainty is
managed, in negligence law, through the balance of probabilities standard of proof. Reece
concludes that the balance of probabilities standard of proof does not apply in indeterministic
cases, and rejects the notion of "loss of a chance" as damage.
PAGE 22
The relevant question in Hotson is whether the blood vessels damaged due to the delay were
necessary for the suffi ciency of this set. Once a claimant has suffered physical harm, the
causes of this are fi xed.
PAGE 23
The loss of chance argument cannot be accepted in this case because the causal process was
understood and the medical evidence could only furnish statistical assessments of risk.
Although there is less known about how variables affect a patient ' s progress, there is enough
information to form a belief on the balance of probabilities that the delay in diagnosis was a
necessary element of a sufficient set. Lord Nicholls sought to differentiate between the
degrees of uncertainty in Hotson and Gregg, but it was impracticable and undesirable. In
cases of medical negligence, the loss of chance argument is used to help a claimant overcome
evidentiary difficulties, and is addressed by using the balance of probabilities standard of
proof.
PAGE 24
The loss of a chance of avoiding harm and the increase in risk of suffering harm are often
seen as two ways of expressing the same thing.
PAGE 25
The claimant in Barker suffered mesothelioma caused by asbestos inhalation, but the
evidence did not show that any individual source was a cause of the harm. The House of
Lords held that the Fairchild test should lead to several liability, so that each defendant is
liable for the extent of her contribution to the overall risk of harm. This was a defendant-
focused solution, and awarded partial recovery for the claimant.
In Fairchild/Barker, the problem was that the claimant could not prove a causal link, whereas
in Hotson and Gregg, it was merely diffi cult to prove. If proportionate recovery was allowed
in loss of chance cases, it would effectively achieve the same outcome.
PAGE 26
Loss of a chance is a distinct form of damage that should be taken into account when
determining the extent of a patient's autonomy interest.
Within the doctor-patient relationship, the opportunity to access treatment is something of
value to the patient because it is logically prior to the claimant's right to give informed
consent to any such treatment. The opportunity is damaged when the patient's statistical
chance of cure worsens.
It would be actionable to recover damages for loss of a chance even if the patient suffers the
eventual physical harm she sought to avoid, because it is conceptually distinct from an
increase in risk. The tort of negligence has not traditionally protected the autonomy interest
comprehensively, but the proposal in this chapter involves only a modest expansion of the
protection of autonomy, thus maintaining ' reasonable limits ' on the tort of negligence. Lord
Hoffmann's definition of damage in Rothwell is criticised because not all forms of being
worse off count as damage, and in some cases the claimant may be better off, not worse off,
as a result of the defendant's negligence.
PAGE 27
A patient's reproductive autonomy was protected through an award of damages in negligence,
where the parents were awarded a conventional sum of £ 15,000 for the injury to their ' right
to limit the size of their family '.
PAGE 28
Priaulx argues that loss of autonomy should be recognised as damage within the negligence
inquiry, and that the normative reasons for this recognition arise because of the
considerations of interpersonal justice that are specifi c to the doctor-patient relationship.
Negligent misdiagnosis reduces a patient's epistemological chance of a cure, even if she is
ultimately cured, because the diagnosis is a necessary prerequisite of making informed
decisions about treatment. Autonomy is not the sole principle at stake in the doctor-patient
relationship.
PAGE 29
The recent decision in Montgomery v Lanarkshire recognises the importance of respecting
patient autonomy when giving advice about treatment and its risks. The violation of the
patient's autonomy interest is even clearer in cases of negligent failure to diagnose than in
cases of negligent failure to warn of risk: the patient is effectively unable to make an
informed decision regarding treatment. The failure to warn case concerns the risks of
intervention, whereas the failure to diagnose case concerns the risks of non-intervention. If
the concern was merely to protect informed consent, then this would perhaps be persuasive.
The focus here is on the patient's autonomy interest more broadly conceived, which includes
the ability to determine the shape of his own life. The law on informed consent seeks to
protect the patient's autonomy in making informed decisions. When an epistemological
chance has been lost, the patient has lost the right to make decisions about her treatment with
their original likelihood of success, and may have lost the right to make such decisions at the
particular time. Patients value quality of life over length of life, but both the doctor and
patient regard the outcome of treatment as being uncertain, and both regard the opportunity
for treatment as something of value.
PAGE 31
The idea of being better or worse off turns not on the physical outcome but on the patient ' s
ability to make choices leading to that outcome. If the patient is a child, their physical well-
being is prioritised. If the victim in Chester had been a child, the doctor would have to warn
her parents of the risks involved in the treatment to which they consented, and they may or
may not have consented at a later date having sought a second opinion. Although a child does
not have a right to consent, they do have an interest in autonomy, which is exercised through
the parents. Ost suggests that children do have autonomy rights, but that these rights are
overridden by concerns for the child ' s physical welfare. Hollingsworth distinguishes de
facto autonomy from de jure autonomy, and that children do not have procedural enjoyment
of their rights. Very young children lack de facto autonomy in the sense of lacking
competence, but a doctor's negligent misdiagnosis still deprives them of the ' opportunities
necessary to exercise that right ', so we can still see damage to the child ' s limited autonomy
interest. The focus so far has been on whether the patient is appreciably worse off where
negligent misdiagnosis causes the loss of an episte- mological chance of cure.
PAGE 33
The loss of opportunity as damage is recognised in the relationship between the doctor and
patient, because the doctor shares the patient's prospective uncertainty about the outcome of
treatment, and because the patient weighs up the risks of treatment in order to give consent.
In cases where recovery is allowed for loss of a chance, such as Chaplin v Hicks124 and
Kitchen v RAF , the purpose of the duty is either to protect the claimant from being deprived
of economic opportunity or to provide the claimant with an opportunity to recover losses.
PAGE 34
Referral to a specialist does not necessarily involve treatment by that specialist, but rather to a
range of other doctors for diagnostic tests and eventual treatment. Each doctor involved in
diagnosis provides a patient with the opportunity for treatment. Where autonomy is currently
protected in cases of wrongful conception, it is signifi cant that the pregnancy was unwanted
by the individual in question, because it is the individual ' s autonomy that is at stake, and the
relationship between the parties is important.
PAGE 35
The doctor and patient share an epistemological uncertainty that shapes the exercise of the
right to give informed consent, and the law ought to recognise reduction in the
epistemological chance as damage since it is this epistemological chance that the patient
ultimately is weighing up when she exercises her autonomy.
PAGE 36
In a case such as Hotson, the process is deterministic, but the doctor cannot guarantee that the
treatment will succeed because she does not know whether there are enough blood vessels
remaining intact. In a case such as Gregg, the doctor effectively treats the patient as though
he has a chance of recovering, even though the doctor is unable to say whether Mr Gregg is
one of the 10 - 15 out of 100 who will survive or one of the 85 - 90 who will die.
The McGhee test does not apply to denial of the opportunity for treatment, because it is not
possible to prove on the balance of probabilities that the defendant contributed to the relevant
risk factor in the way that proportionate recovery for the loss of a chance of cure does. The
pure loss-of-a-chance claim in Gregg might indirectly have put pressure on the defendant, but
excessively oxygenated blood would not constitute damage. The second issue in Wilsher is
whether the doctor exposed the baby to a discrete risk, independent of the naturally occurring
risks, so any interference was with the patient ' s physical welfare rather than his autonomy
interest.
PAGE 38
The provision of epistemological chance is an important function of the doctor ' s duty of
care, and the patient relies on the doctor ' s advice.
The claimant must establish that the defendant doctor breached her duty of care, and must
show that the opportunity for treatment with the original chance of success was lost. When
loss of chance is presented as a solution to the difficulty of proving causation, one objection
is that it is not possible to say that the chance has been lost unless it has been reduced to zero.
However, in the approach proposed in this chapter, the chance remains intact. The delay
caused by the negligence reduced Hotson's chance of cure because his physical state had
worsened. In Gregg , the claimant's cancer spread during the nine months ' delay, and this
was responsible for the reduction in the statistical likelihood of cure. However, the lost
opportunity for treatment would not constitute a ' hook ' on which the claimant could seek to
recover damages. The limitation period for medical negligence claims starts when the
claimant acquires knowledge that the injury is signifi cant, but the doctor's negligence may
have played a role in giving the patient false reassurance about her condition.
PAGE 39
If a claimant suffers physical harm and a successful claim is made in respect of that outcome,
she should still be able to recover for the loss of a chance.
PAGE 40
The House of Lords decided to compensate for the physical damage to the patient, but not for
the damage to her autonomy. A woman suffered physical harm after a doctor negligently
failed to warn her of a small risk involved in undergoing an operation. The House of Lords
awarded damages for the physical harm suffered, but should instead have received a modest
sum to compensate the violation of her autonomy.
The law recognises the interference with a patient's autonomy in cases of negligent failure to
warn of risk, but does not provide a basis for compensating the patient for the physical harm
they suffer. Since the damage is to the patient's autonomy, damages should not be awarded as
a proportion of the value of the physical injury, since this would be indistinguishable from the
loss of chance claims advanced in Hotson and Gregg.
PAGE 41
The loss of a chance argument is a way for a claimant to bypass the causation requirement,
and it is illogical to say that a doctor who has contributed a 40 per cent risk to an indivisible
harm should pay 40 per cent of the value of the physical harm.
The value of lost chances should be assessed independently of the physical outcome and
assigned a value within the Judicial College's Guidelines for the Assessment of General
Damages in Personal Injury Cases.
PAGE 42
The final question is whether the loss of opportunity for treatment should be a fi xed,
conventional sum, or whether there should be a scale refl ecting the seriousness of the
physical harm to which the opportunity related. Voyiakis argues that we have an intuitive
notion that some risks are more serious than others, and that the value of a risk can be
represented by a range of values in a tariff, with the judge being able to use the range of
values to reflect the impact the injury had on the individual.
PAGE 43
In recent years, medical paternalism has given way to patient autonomy as a key ethical
principle in healthcare, and the law is now prepared to recognise interference with the
patient's autonomy interest as a form of damage in negligence.
Gregg v Scott [2005] 2 AC 176
PAGE 2
This appeal raises a question that has divided courts and commentators throughout the
common law world. I am in the former camp.
A patient with a 45% chance of recovery from cancer is told that he can recover nothing
because his initial prospects of recovery were less than 50%.
This surely cannot be the state of the law today. In both cases the patient was worse off, but
in one case the patient has a remedy, in the other he does not.
PAGE 3
In the 45% case, the doctor's duty would be hollow, empty of content. The common law does
not compel courts to proceed in such an unreal fashion.
The defendant Dr Scott negligently diagnosed a lump under the left arm of the claimant Mr
Malcolm Gregg as innocuous when it was cancerous. The delay in receiving treatment
reduced Mr Gregg's prospects of disease-free survival for ten years from 42% to 25%.
The judge found that the delay did not extinguish Mr Gregg's chance of avoiding the
deterioration in his condition, but reduced it by roughly half. A better outcome was never a
probability.
PAGE 4
The Court of Appeal dismissed Mr Gregg's appeal on the basis of the reasoning in Hotson v
East Berkshire Area Health Authority.
In order to prove actionable damage, a claimant must prove the facts giving rise to a cause of
action against the defendant, including the facts giving rise to a duty of care and its breach.
Proof of actionable damage is based on the claimant's present position and what would have
been the claimant's position in the absence of the defendant's wrongful act or omission. Proof
of future prospects is based on the likelihood of the event happening.
The distinction between past and future is applied when deciding what would have happened
in the past or future but for a past happening such as the defendant's negligent act.
PAGE 5
The balance of probability determines whether a claimant's hand was damaged in an accident
at work, and whether the hand would have developed osteoarthritis in later life even without
the accident.
Lord Reid made similar observations in Davies v Taylor [1974] AC 207, 212-213. In
assessing damages, the court must make an estimate as to what are the chances that a
particular thing will or would have happened.
This distinction between past events and future possibilities is open to criticism, but it works
well enough to describe everyday experience.
PAGE 6
The distinction between hypothetical events and past facts is least satisfactory when applied
to hypothetical events, because the underlying certainty that a past fact happened or it did not
is absent from hypothetical facts.
In some cases, determining whether a claimant has suffered actionable damage cannot fairly
be decided on an all-or-nothing basis by reference to what, on balance of probability, would
have happened but for the defendant's negligence.
The greater the uncertainty surrounding the desired future outcome, the less attractive it
becomes to define the claimant's loss by whether he would have achieved the desired
outcome but for the defendant's negligence.
In order to achieve a just result in such cases, the law defines actionable damage more
narrowly by reference to the opportunity the claimant lost. This loss is treated as actionable
damage and must be proven on the balance of probability.
PAGE 7
A woman who was wrongly deprived of the chance of winning a beauty competition was
awarded damages for loss of a chance. The court did not attempt to decide on balance of
probability what would have happened if the claimant had been duly notified of her
interview.
In Allied Maples Group Ltd v Simmons & Simmons (1995) the Court of Appeal applied the
'loss of chance' approach and held that a solicitor's negligence deprived the claimant of an
opportunity to negotiate a better bargain.
PAGE 8
The defendant says loss is confined to an outcome that is worse than it otherwise would have
been, but the plaintiff says his loss includes proven diminution in the prospects of a
favourable outcome.
A patient suffering from a progressive illness may lose nothing by the delay in treatment,
because he never had any realistic prospect of recovery, or he may lose everything if his
condition had been diagnosed properly and received appropriate treatment.
There are many cases of serious illness or injury where a patient's existing chances of
recovery fall between these extremes.
The outcome of medical treatment in any particular case remains beyond anyone's control.
The way some drugs work is not fully understood, and the response of patients to treatment is
not uniform, nor is it always predictable.
PAGE 9
Given the uncertainty of outcome, the appropriate characterisation of a patient's loss in this
type of case must surely be that it comprises the loss of the chance of a favourable outcome,
rather than the loss of the outcome itself.
The law of tort seeks to provide appropriate remedies in the event of a breach of duty, and the
loss of a chance of health or even life itself should constitute actionable damage.
Medical negligence cases have a complication that is not always found in negligence claims
brought against lawyers or other professionals. The outcome of illness or injury in an
individual patient may be inherently uncertain.
PAGE 10
A court deciding a professional negligence claim will have regard to a wide range of known
facts peculiar to the particular case, but one crucial fact is unknown: how the particular
patient would have responded to proper treatment at the right time.
Statistics are not a guide to what would have happened in one particular case. They record
retrospectively what happened to other patients in more or less comparable situations, but do
not show how the claimant would have responded.
The statistical evidence showed that 42% of patients suffering from the same disease as Mr
Gregg achieved ten year survival if treated at the stage when, but for the negligence, Mr
Gregg would have been treated, but no one can know whether Mr Gregg was in the former
group or the latter.
PAGE 11
Despite its impeccable logic, the argument cannot be accepted that courts will not adapt their
process to leap an evidentiary gap when overall fairness plainly so requires. The practical
arguments in favour of using statistics in this way are compelling.
Statistical evidence of a diminution in perceived prospects will often be the nearest one can
get to evidence of diminution of actual prospects in a particular case. When there is nothing
better, courts should be able to use these figures and give them such weight as is appropriate.
PAGE 12
Courts use statistics to assess the risk of an outcome when compensating claimants.
The 'chance' the claimant lost in the Chaplin case was the opportunity to attend and be
considered at the interview. This was treated as actionable damage because no one could
know what would have been the outcome of the beauty contest had the claimant appeared.
The position with medical negligence claims is different. The patient's actual condition at the
time of the negligence will often be determinative of the answer to the crucially important
hypothetical question of what would have been the claimant's position in the absence of the
negligence.
PAGE 13
Many cases are not so straightforward. It is not always possible to frame factual questions
about a patient's condition that are susceptible of sure answers.
Mr Gregg's case was a good example of how statistics could be personalised to give a good
answer to what would have been the outcome had he been treated promptly.
Medical negligence cases fall into one of two categories depending on whether there is
significant medical uncertainty about what would have happened if the patient had received
appropriate treatment nine months earlier.
The House left open the legal position in the 'Gregg' type of case, but noted that there are
'formidable difficulties' in accepting the 'superficially attractive analogy' between the
principle applied in cases such as Ch aplin v Hicks and Kitchen v Royal Air Force
Association.
PAGE 14
I respectfully agree that it may be difficult to apply the 'diminution in prospects' approach to
medical negligence cases without 'shattering the conventional approach altogether'.
A patient's condition at the time of the negligence has been identified, but medical opinion is
unable to say with a reasonable degree of certainty what the outcome would have been.
In economic 'loss of chance' cases, the law should recognise that a patient's prospects of
recovery, expressed in percentage terms of likelihood, represent the reality of his position so
far as medical knowledge is concerned, and that a doctor's duty to act in the best interests of
his patient involves maximising the patient's recovery prospects.
PAGE 15
The law should not apply the all-or-nothing balance of probability approach in cases where
medical opinion assesses the patient's recovery prospects in percentage terms, because this
approach assumes certainty where none in truth exists.
If a patient's prospects of recovery are attended with a significant degree of medical
uncertainty, and he suffers a significant diminution of his prospects of recovery by reason of
medical negligence, that diminution constitutes actionable damage.
The common law must remain capable of development to retain its legitimacy. The present
state of the law on this aspect of medical negligence generates continuing instinctive judicial
unease, exemplified in this country post-Hotson by Latham LJ's dissenting judgment and
observations of Andrew Smith J.
PAGE 16
The present state of the law is crude to an extent bordering on arbitrariness, and the approach
set out above meets the perceived need for an appropriate remedy in both situations.
Mance LJ concluded that the considerations in favour of an approach based on probabilities
outweighed the contrary argument, and Simon Brown LJ agreed with his reasoning.
The 'diminution in prospects' approach is to be applied only when the patient's prospects of
recovery are fraught with a significant degree of medical uncertainty.
PAGE 17
50. This objection lacks practical substance, because courts are well able to determine
whether a particular case falls into one category or the other.
The 'diminution in prospects' approach is only applicable in medical negligence cases where
the claimant was already suffering from illness or injury at the time of the negligence.
The respondent put forward increased cost to the national health service as a practical reason
why the 'diminution in prospects' approach should not be adopted as a matter of legal policy.
This submission is not acceptable. Damages awards should reflect diminution in a patient's
prospects only where a reasonable prospect of recovery was eliminated or halved, and courts
should beware of giving percentage chances a spurious degree of precision.
PAGE 18
If a claim is well-founded in law, the courts should recognise it and give effect to it.
The approach set out above will not encourage wasteful defensive practices, nor will it
encourage doctors to conduct tests or make referrals in circumstances where at present they
would not.
Mr Gregg argued that the trial judge's findings of physical injury were sufficient to establish
actionable damage, and that the consequences should be assessed in terms of diminution of
prospects.
This submission is superficially attractive, but it does not provide an answer to the
fundamental issue raised at the start of this speech.
PAGE 19
The detailed facts and statistical evidence in the present case are complex, but this
complexity is irrelevant on the point of fundamental principle discussed above.
A doctor failed to recognise that a patient might have cancer when he told him that a lump
under his arm was a collection of fatty tissues. The patient suffered from pain and had to
undergo high-dose chemotherapy.
Mr Gregg alleged that Dr Scott ought to have referred him to a hospital for examination, and
that the prospects of obtaining a cure had been reduced to below 50%.
PAGE 20
Mr Gregg's injury was that the delay had reduced his prospect of a cure to less than 50%. The
expert witnesses produced statistical evidence about the progress of the disease in other
patients, and the judge summarised the effect of this evidence by finding that someone with
Mr Gregg's condition would either not have responded to treatment or would afterwards have
relapsed.
PAGE 21
Mr Gregg's counsel advanced two arguments in the Court of Appeal, but the majority of the
Court rejected both and dismissed the appeal.
The first argument is based upon the principle that the court will take into account
possibilities, even though they do not amount to probabilities, when quantifying the loss
likely to have been caused by the defendant's wrongful act.
The principle of causation does not apply to the present case because the question is not
whether the victim will survive more than 10 years, but whether his premature death will be
attributable to the defendant's wrongful act.
The distinction between the question of whether damage is attributable to the defendant and
the quantification of damage proved to be so attributable was succinctly made by a Canadian
judge.
PAGE 22
Latham LJ put it this way: "The evidence clearly established that the cancer had spread by
reason of the negligence of the respondent, and that was all that was necessary to find his
claim in negligence."
Latham LJ said that he did not need to decide whether a reduction in the chance of survival is
a recoverable head of damage, because it was likely that his life would have been shortened
to less than 10 years anyway.
The alternative submission was that the loss of a chance of a favourable outcome should be a
recoverable head of damage.
PAGE 23
In Hotson, a boy who fell out of a tree was awarded damages for loss of a 25% chance of a
favourable outcome if the fracture had been diagnosed at the time.
The House of Lords reversed the decision, saying that nothing could have been done to save
the joint, and that the outcome had been decided adversely to the claimant.
A junior doctor in a special care baby unit negligently put a catheter in the wrong place, and a
premature baby suffered rentrolental fibroplasia, a condition of the eyes that resulted in
blindness.
The Court of Appeal awarded damages for the reduction in the chance of a favourable
outcome, but the House of Lords reversed this decision.
PAGE 24
The Court of Appeal held that the cause of mesothelioma was not indeterminate, and that the
claimant had to prove causation on a balance of probabilities. The House of Lords held that
the disease had a determinate cause in one fibre or another.
The law regards the world as in principle bound by laws of causality, and the burden of proof
is on the plaintiff to prove that an act or omission for which the defendant was responsible
caused the injury.
Mr Gregg's disease had a determinate cause, which may have been inherent in his genetic
make-up at the time he saw Mr Scott, or may have been affected by subsequent events and
behaviour for which Dr Scott was not responsible.
PAGE 25
In Laferrière v Lawson (1991) 78 DLR (4th) 609, the Supreme Court of Canada held that a
doctor's negligence could not be attributed to mere chance, and that a patient's cancer was
either something capable of successful treatment or it wasn't.
The law treats human beings as having free will and the ability to choose between different
courses of action, which may explain why damages are awarded for the loss of a chance to
gain an advantage or avoid a disadvantage.
In cases in which the outcome depends on what the claimant himself or someone for whom
the defendant is responsible would have done, the claimant must prove on a balance of
probability that he or the defendant would have acted so as to produce a favourable outcome.
PAGE 26
Academic writers have suggested that in cases of clinical negligence, the need to prove
causation is too restrictive of liability. The appellant in the present case argues that the
exceptional rule in Fairchild should be generalised and damages awarded in all cases in
which the defendant may have caused an injury.
The House is asked to adopt a rule that it rejected in Wilsher's case, yet it was expressly
approved in Fairchild. Furthermore, there are no new arguments or change of circumstances
which could justify such a radical departure from precedent.
PAGE 27
The appellant argues that the expansion of liability should be limited to cases where the
claimant had suffered an injury, but the judge disagreed and held that the injury could be used
as a "hook" to hang a claim for damage it did not actually cause.
The artificial limitation of liability for internal bleeding seems to me to be lacking in
principle, and it would be a fertile source of litigation.
The proposed control mechanism to confine the principle to cases in which inability to prove
causation is a result of lack of medical knowledge of the causal mechanism is not based upon
principle or even expediency.
Lord Nicholls of Birkenhead said that new departures in the law must be rational and
justifiable to avoid the reproach that hard cases make bad law.
PAGE 28
I respectfully agree that the various control mechanisms proposed to confine liability for loss
of a chance within artificial limits do not pass this test. However, a wholesale adoption of
possible rather than probable causation would be too radical.
After many months of deliberation, it has become clear that the majority view is that the
appeal must be dismissed. I have reached a different opinion and would allow the appeal and
remit the case for further consideration and the assessment of damages.
PAGE 29
The appellant sought damages from the respondent doctor for negligence, claiming that he
should have referred him to a hospital or arranged to see him again very soon to see if the
lump had resolved itself. The judge was of the opinion that if the doctor had performed a
biopsy in November 1994, the cancer would have been discovered in April 1995, and
treatment would have started sooner. Instead, the diagnosis was made in January 1996.
The appellant's cancer did not wholly respond to the standard course of CHOP chemotherapy,
and a further course of field radiography was given when that treatment too was thought to be
only partially effective. He was discharged in September 1996, but suffered a relapse in early
1998.
PAGE 30
The judge held that the delay in diagnosis caused the lymphoma to enlarge, invade
neighbouring tissues and cause severe pain, and that the delay in diagnosis therefore entitled
the appellant to an award of damages for the consequences of that injury.
The judge's findings support the submission that the appellant had indeed suffered injury, and
was entitled to general damages for the pain and suffering, the increased risk of relapse and
the adverse effect on prognosis.
The question whether the additional damages may be awarded is controversial, but it seems
clear that the patient has a cause of action for the pain and suffering caused by the injury.
PAGE 31
The judge dismissed the claim because he had not found the causation of loss proved, and
because the claim was for damages for the reduced prospect of a complete recovery, which
was itself something of value for which the appellant was entitled to be compensated.
This approach to the appellant's claim has identified a possible weakness in the current state
of the law, but I cannot help thinking that it has made his case appear unnecessarily
complicated.
A claim of damages for personal injury must be based on the defendant's breach of a duty of
care to the claimant and must result in some element of loss, injury or damage of a kind that
was reasonably foreseeable for which the claimant can sue.
PAGE 32
The doctor owed a duty of care to the patient, but damages can only be awarded if the injury
sustained was within the scope of the duty to take care.
The doctor's duty was to act in the best interests of his patient's health and well-being and not
to expose him to the risk of unnecessary pain and suffering. The doctor should have referred
the appellant to hospital without delay for the carrying out of a biopsy.
The doctor's duty may be defined by his duty to diagnose the condition from which the
appellant was suffering. His negligence deprived the appellant of the benefits that would have
flowed from the diagnosis.
PAGE 33
The judge found that the delay in diagnosis and treatment caused the appellant pain and
suffering, but did not award damages for this pain and suffering. The delay also caused the
spread of the tumour, which was another consequence of the doctor's failure to diagnose.
The judge found that the treatment the appellant received after the tumour was diagnosed
made him feel very ill, that he was short of energy and unable to carry out normal activities,
and that his condition had "upstaged" significantly by the time he was finally seen in the
hospital.
PAGE 34
The judge held that 55% of patients with the appellant's type of cancer would achieve
complete remission with initial CHOP chemotherapy and that 42% would ultimately survive,
but that the appellant's prospects of a disease free survival had fallen to 25%.
The trial judge held that the appellant had not proved that he had suffered an injury as a result
of the delay, and declined to award him any damages for what had been proved, namely that
the negligence caused a reduction in his prospects of a successful recovery.
The judge should have quantified the loss of susceptibility to treatment and the reduced
prospects of a complete recovery as the result of a proven injury, and should have
compensated for this loss.
PAGE 35
The appellant was not able to prove on a balance of probabilities that had it not been for the
enlargement of the tumour he would have made a complete recovery, but his case differs
from those such as Kenyon v Bell 1953 SC 125 and Hotson v East Berkshire Area Health
Authority 1987 AC 750.
In the present case, the judge found that the plaintiff's avascular necrosis was caused by the
original fall and that the subsequent negligence of the authority did not cause him to lose a
chance of avoiding the injury.
The judge in this case fell into error when he said that the time for evaluating what would
have happened in the past is the trial, and that the loss could have been avoided if things had
been done differently.
PAGE 36
The case differs from Herskovits v Group Health Cooperative of Puget Sound (1983) 664
P2d 474 because in this case the appellant is still alive and the enlargement of the tumour
caused by the doctor's negligence still lies in the future.
If a person's expected date of death is earlier than it would have been if he had not sustained
injury due to the defendant's negligence, he must prove this fact and the extent of the
diminution in his prospects on the balance of probabilities. Statistics may act as a guide.
PAGE 37
In the simple case, the comparison is between the date of a person's expected date of death
due to an injury and the date when he would have died if he had not sustained the injury.
The appellant's case depends on a comparison between two assessments - the effects of the
tumour on his life expectancy when the doctor saw him, assuming there was no delay in its
treatment thereafter, and the effects of its enlargement during the period of delay due to the
doctor's negligence. It was not proved that the patient would have survived the effects of his
cancer if the doctor had not been negligent, but the delay in diagnosis caused a significant
reduction in his prospects of a successful outcome.
PAGE 38
The court was not able to base its decision on the assumption that the patient would have
achieved a complete recovery but for the doctor's negligence. Therefore, no damages are due
for the reduced prospects of a favourable outcome.
The question whether the treatment would have been successful if there had been no
negligence had to be treated as a question of past fact, and the claim was not for the loss of
the opportunity that prompt treatment wo uld have given for a different outcome. In Kyle v P
& J Stormonth Darling WS, 1992 SLT 264, 267A-B, Lord Prosser said that the loss of
opportunity was part of the causal sequence, but the damnum lay in the loss of the eye or the
necrosis. This approach does not fit the facts of this case.
PAGE 39
Some forms of cancer are notoriously difficult to treat, but treatment is undertaken
nonetheless in the hope that the patient will survive at the end of it. If the patient's prospects
of survival were significant and not illusory, the law will ignore them.
The key to the decision in this case lies in the way in which the appellant's cause of action is
identified, because that is the approach the pleader has taken to the issue of damages. This
claim is about the loss and damage caused by the enlargement of the tumour due to the delay
in diagnosis. The reduction in the prospects of a successful outcome is one element among
several in the claim for which there is a single cause.
PAGE 40
In this case, the claimant was already suffering from cancer and claims that the doctor's
negligence has reduced his prospects of a successful recovery. I would distinguish this case
from those where the claimant claims to have suffered the damage anyway.
In cases where a person's employment prospects have been adversely affected by a physical
injury, the claimant is not required to prove that he would have been promoted but for the
injury, and the claim is for the loss of prospects assessed as at that date. The approach taken
by Griffiths LJ in Croke v Wiseman [1982] 1 WLR 71, 83 and Doyle v Wallace [1998] PIQR
Q146 is similar to the approach taken in Langford v Hebran [2001] PIQR Q160.
PAGE 41
In Girvan v Inverness Farmers Dairy, 1996 SC 135, 137, the court considered the loss of
prospects of marriage in assessing damages for a physical injury. Lord McCluskey noted that
the pursuer's injuries had made it impossible for him to continue as a dedicated clay pigeon
shot, and that he had as a result lost the very real prospect of winning substantial cash prizes
and other valuable trophies and prizes.
The doctor's negligence reduced the appellant's prospects of a successful outcome, and he is
entitled to be compensated for this loss. The principle on which this loss must be calculated is
the same irrespective of whether the prospects were better or less than 50%.
The judge would have discounted the damages that he would have awarded for the loss of a
certainty of a cure by 80%, because the nature of the cancer from which the appellant was
already suffering when the doctor was negligent.
PAGE 42
The majority view that the appeal must be dismissed has deprived the appellant of the
opportunity to seek an award of general damages for the pain and suffering he suffered due to
the tumour's enlargement and the distress caused by his awareness that his condition had been
misdiagnosed.
The respondent accepted that general damages should not be reduced in consequence of any
loss of a chance argument, and this remains the conventional way of dealing with an award of
general damages.
PAGE 43
This appeal has raised an important issue of policy. I propose to take a different approach to
the facts raised by this case and examine the practical consequences of the change in our law.
Dr Scott's negligence delayed Mr Gregg's treatment for cancer by nine months. It is
impossible to say with certainty what, if any, adverse consequences were caused by the delay,
but the judge believes that counsel and the Court of Appeal have misunderstood the evidence.
Four matters have complicated the evaluation of the evidence in this case: the complexity of
the statistical evidence, the procedural history, the novel approach taken by Mr Gregg, and
his survival.
PAGE 44
Professor Goldstone developed a model showing the expected fate of 100 patients diagnosed
with the type of cancer from which Mr Gregg suffered, although the data on that type of
cancer was sparse.
Mr Gregg's claim was initially advanced as a conventional claim for having been deprived of
an early and complete cure, but the judge held that his alternative claim for loss of a chance
was bad in law.
In the Court of Appeal, the focus was on loss of expectation of life, but the House considered
all heads of damages claimed.
PAGE 45
The claim for lost years is calculated by determining the expectation of life before and after
the injury, and then calculating the expectation of life after the injury. Statistical evidence is
usually used in calculating the claim.
Mr Gregg's claim for lost years has been advanced on the basis of the effect of Dr Scott's
negligence on Mr Gregg's chance of being alive and disease free after 10 years.
Mr Gregg is still alive and the claim for lost years has been advanced on the basis of a
comparison between his statistical chance of being a survivor and his actual chance of being a
survivor. Mr Gregg survived a further three years without relapse, which may have improved
his prospects of being a survivor. The trial judge will have to take this into account when
assessing damages on a loss of a chance basis.
PAGE 46
Mr Gregg developed a lump under his left arm in autumn 1994, which was due to non-
Hodgkin's lymphoma. He went to see Dr Scott for the first time on 22 November 1994.
Dr Scott concluded that the lump was a lipoma, but the trial judge found that he should have
referred the appellant to hospital on a routine basis in November 1994.
In 1995 Mr Gregg moved home and registered with another general practitioner. The new
doctor concluded that the lump was probably a lipoma but referred Mr Gregg to a surgeon for
further investigation and examination.
Mr Gregg was admitted to hospital with acute and intense chest pain after the spread of the
cancer into the left pectoral region.
PAGE 47
Mr Gregg was subject to high dose chemotherapy, which involved the harvesting of stem
cells and the administration of chemotherapy.
Mr Gregg suffered a relapse in early 1998, but was told he could not be cured. He was given
a further course of palliative chemotherapy in April 1998, but there has been no recurrence of
the disease since then.
Mr Gregg suffered severe side effects from the original treatment, and has continued to feel
weak and lacking in energy ever since. He was put on high dose steroids and became obese,
and has been anxious and distressed.
The judge found that the cancer would have been diagnosed and treated 9 months earlier had
Dr Scott referred Mr Gregg to hospital in November 1994, and that the significant spread of
the disease to the left pectoral region occurred in the last months of 1995.
PAGE 48
The experts used a prognostic index to estimate what Mr Gregg's prognosis would have been
had treatment begun in April 1995, before his cancer had spread.
Professor Goldstone developed a model to adjust the prognostic index to account for the less
favourable prognosis of patients with ALK negative lymphoma. The judge accepted this
model as the basis for deciding the questions of causation and damages.
Mr Gregg's experience was very different from the statistics used to predict his progression.
PAGE 49
Of those who have initial treatment by CHOP chemotherapy with or without field
radiotherapy, 55 will achieve complete remission, 45 will not achieve complete remission,
and of those 41 will then die. Four who did not achieve complete remission immediately will
be brought to achieve it by further treatment of various kinds. Mr Gregg's disease and
treatment has not quite taken this course, since he relapsed after stem cell treatment and high
dose chemotherap y. However, he has now survived over three years, and his chances of
survival for five years are less than 50%.
The judge found that the delay in starting Mr Gregg's treatment had reduced his chances of
long-term survival from 42% to 25%. I believe this was fallacious.
PAGE 50
Latham LJ stated that the cohort that made up Professor Goldstone's model "consisted of
patients with the same stage of disease as that from which the appellant suffered at the time
when treatment should have commenced". I question the assumption.
Professor Goldstone's model did not evidence Mr Gregg's statistical chances at the time when
his treatment should have commenced, and the judge did not state that the delay in starting
his treatment had reduced Mr Gregg's chances of being a survivor from 42% to 25%.
The judge's findings support the submission that the appellant had indeed suffered injury, and
was entitled to general damages for the pain and suffering, the increased risk of relapse and
the adverse effect on prognosis.
PAGE 51
If Mr Gregg had received prompt treatment, his chances of surviving without relapse or
further treatment would have been 60% and 75%, respectively.
The claimant is seeking to claim damages for diminution of his life expectancy, but he cannot
show that he was not already going to suffer that loss, independently of the negligence.
The judge did not find this reasoning convincing, as it reflected a reaction against treating Mr
Gregg's chances of achieving initial remission as a certainty.
Latham LJ's approach is flawed, and Professor Goldstone's model gives no indication of the
factors that would determine what would befall an individual member of that cohort. Mance
LJ speculates that the most obvious influencing factors are internal to the claimant at the time
of the negligence.
PAGE 52
The assumption that Mr Gregg would have achieved initial complete remission had he been
treated promptly is not axiomatic, and the possibility exists that some other factor existed
which would have prevented initial complete remission.
Professor Goldstone's model showed that all but four of the 42 destined to be survivors
achieved initial complete remission, and of the 45 who did not achieve initial complete
remission, four at the most were destined to be survivors. Mr Gregg fell into the small sub-
category of four who achieved complete remission after further treatment.
PAGE 53
Professor Goldstone's model demonstrated that Mr Gregg was in a small sub-category of
patients who relapsed after remission, responded to treatment, and then relapsed again. Of
these six patients, only one survived.
The lawyers for Mr Gregg contend that the judge erred in not having regard to the fact that
Mr Gregg had achieved complete remission.
The judge awarded damages on the basis of a 47% loss of the chance of survival, because the
chance of survival had increased by 20%-30% since the date treatment should have been
given.
PAGE 54
Mr Gregg's clinical history after first remission was not in accordance with the statistical
chances of surviving after remission.
Professor Goldstone and the judge did not proceed on the premise that the delay in
commencing Mr Gregg's treatment was the cause of the difference in survival rates.
Professor Goldstone stated that the delay in treating Mr Gregg's cancer had turned his
prospects of survival from 30% to 10%, and that if he had been treated promptly, he would
have been curable by simple treatment, CHOP only, or less therapy.
PAGE 55
The judge dismissed Mr Gregg's claim, holding that it was more probable than not that he
would have relapsed and had a very poor prognosis for survival had he been treated nine
months earlier.
The judge made findings to cater for the possibility that his approach was incorrect and that
Mr Gregg was entitled to advance his claim.
The claimant had a chance of achieving disease free recovery after one course of CHOP
chemotherapy treatment po ssibly with radiation, but the delay diminished his chance of
achieving disease free recovery.
PAGE 56
Professor Goldstone was unable to put a percentage figure on the chance that the delay would
have turned a probability into an improbability. The court did not have to put a figure on the
chance, however. Professor Goldstone said that the delay had massively reduced the
claimant's chances of a good outcome, but his more cautious approach by the time of the trial
resulted from emerging knowledge, particularly about the possible effect of ALK negative
status.
PAGE 57
The judge calculated the loss of chance award by discounting the damages that would have
been awarded for the loss of certainty of cure after one initial six months course of treatment
by 80%.
The claimant's life expectancy now has not been the subject of direct evidence, but the judge
has calculated that he has a 25% chance of surviving five years, and has therefore arrived at
an expectation of life from now of four years.
I have applied the multiplicand I have previously identified to loss of earnings, and the claim
is properly sustainable, since employment would have continued to normal retireme nt age at
65.
PAGE 58
The judge applied himself to this most difficult case and covered an area of particular
difficulty by equating disease free survival after 10 years with survival for the rest of Mr
Gregg's working life.
Mr Gregg suffered a series of adverse events beyond the initial development of his cancer,
including acute pain, high dose chemotherapy, and a relapse.
The judge concluded that the delay in commencing treatment had reduced Mr Gregg's chance
of avoiding all his adverse events by 20%, and thus equated his lost chance of avoiding
premature death with his lost chance of avoiding adverse events.
PAGE 59
It is no longer possible to conclude that the delay in commencing Mr Gregg's treatment has
affected his prospect of being a survivor, but has caused him all the other adverse events. If
he is a survivor, the delay in commencing his treatment has not affected his expectation of
life.
The exercise of assessing the loss of a chance in clinical negligence cases is not an easy one,
and it is always likely to be much easier to resolve issues of causation on a balance of
probabilities than to identify in terms of percentage the effect that clinical negligence had on
the chances of a favourable outcome.
It is hard to justify a test that results in substantial injustice simply on the ground that it is
easier to apply. I am not persuaded that the injustice is as cogent as the authors suggest.
PAGE 60
This House made a change in the law of negligence in the interests of justice, which benefits
a workman who contracts a mesothelioma after being exposed to asbestos fibres by a series
of employers. Lord Nicholls of Birkenhead proposes a different approach in the case of a
doctor.
I propose to consider four different heads of claim that may be brought by a living claimant,
and to use the facts of the present case for illustration.
PAGE 61
If there is a possibility, but not a probability, that the negligence caused the injury, the
claimant will not recover anything in respect of the breach of duty. There is an argument that
justice would be better served if damages were recoverable for the chance that the negligence
may have caused the injury.
Lord Hope of Craighead would hold the normal rule applicable in the present case, and Mr
Gregg is entitled to general damages for this head of damage in full.
Injuries caused by negligence often lead to further injuries, such as arthritis or epilepsy. In
some circumstances, it is more satisfactory to recover damages in respect of the injury
actually sustained and to have the right to claim further damages.
PAGE 62
This case is difficult to analyse because the only claim advanced is for loss of expectation of
life. English law does not recognise a claim for loss of a future prospect that is not
consequent upon an established injury.
The law gives only token compensation for the pleasures of a full life, but not for the earnings
that the claimant will be unable to achieve once he is dead.
If death is caused by any wrongful act, neglect or default, the person who would have been
liable if death had not ensued may be liable to an action for damages.
In Pickett v British Rail Engineering Ltd, the House held that damages could be recovered for
loss of earnings in the claimant's lost years, although it expressed no concluded opinion about
the correctness of that assumption.
PAGE 63
The decision to include lost earnings in damages recovered for a deceased person in a
survival action was soon recognised to give rise to problems where the heirs of the deceased
were not his dependants.
The claimant's right to recover for loss of earnings is a poor substitute for the right of the
claimant's dependants to make full recovery for loss of dependency if and when the claimant
dies prematurely.
So long as death is proven to have resulted from negligence, dependants cannot recover for
loss of chance of achieving earnings.
Pickett v British Rail Engineering establishes that a claimant can recover damages for the
earnings lost in the "lost years" where the injury has shortened his life. The lost years are
calculated by comparing the age at which the claimant would have expected to die without
the injury.
PAGE 64
The claimant has not advanced his claim for lost years in a conventional manner. It should
have been possible to calculate a specific number of lost years by using statistics and
comparing it with Mr Gregg's life expectancy at the date of trial.
Mr Gregg has claimed damages for the reduction in his chance of surviving for ten years,
equated with his chance of surviving to the age of 65, and has not been challenged for this
unconventional approach.
Lord Hope of Craighead has concluded that Dr Scott's negligence caused the spread of Mr
Gregg's cancer and that he can recover for the effect that the spread of his cancer had on his
life expectancy.
PAGE 65
Mr Gregg suffered from a progressive disease that would have resulted in premature death if
not treated. Delay in commencing treatment may have reduced his prospects of a cure, but the
extent of this reduction depends on factors unascertainable by the court. I find it less easy to
see how a claim is established where the adverse outcome is still prospective. I suspect that
my noble and learned friend would answer yes to each question.
In some cases, it is possible to say that the delay in treatment has increased the chances of an
adverse event occurring by the same 20%. In this case, it is almost impossible to say that.
The complications of this case persuaded me that it was not a suitable vehicle for introducing
into the law of clinical negligence the right to recover damage s for the loss of a chance of a
cure.
PAGE 66
The judge concluded that the delay in commencing Mr Gregg's treatment was not likely to
have affected the course of his illness, but may have involved more intrusive treatment, and
more pain, suffering and distress than would have been experienced had treatment
commenced promptly.
The Court of Appeal were divided about this case, as were we. Yet the vast majority of
personal injury cases are not difficult, and eventually the trial judge sorts it all out and makes
findings of fact, as did His Honour Judge Inglis in this conspicuously careful and detailed
judgment.
PAGE 67
The defendant owes a duty to take reasonable care of the claimant and must prove on the
balance of probabilities that the breach of duty caused the claimant's damage.
The judge must be persuaded that the harm would probably have been avoided if the
defendant had not been in breach of duty. The tendency to state the matter in terms of
percentages is to be avoided.
If it is more likely than not that the defendant's carelessness caused me to lose a leg, I do not
want my damages reduced to the extent that it is less than 100% certain that it did.
PAGE 68
The claimant defined the damage flowing from the defendant's negligent failure to refer the
claimant for specialist investigation in an entirely conve ntional way.
PARTICULARS OF PAIN AND INJURY
The Claimant's non-Hodgkin's lymphoma disease spread rapidly, and if he had been
diagnosed and treated in November 1994, his prospects of obtaining a cure were reduced to
below 50%.
The Claimant refers to the provisional schedule of loss and damage served herewith, but we
have never seen it. We can deduce from the judge's assessment of damages that it was a
conventional claim for pain, suffering and loss of amenity, loss of earnings and costs of care.
The definition of cure in this case was disease free survival ten years after the initial
treatment. The law asks what difference the negligence has made to the claimant's life as a
whole.
PAGE 69
The claimant tried to redefine the damage he had been caus ed by the delay in referral, but he
could not prove that without the delay he would probably have been 'cured'.
He said that the delay in diagnosis and treatment had caused physical injury, but that the
losses he had suffered were simply consequential on this physical damage. He argued that the
losses should be evaluated in the same way as increased risk of arthritis or epilepsy.
The claimant accepts that causation still has to be shown on the balance of probabilities, but
the court disagreed and said that consequential loss still had to be caused by the injury that
had been caused by the defendant's negligence.
PAGE 70
The judge did find that the nine month delay in treatment had reduced the claimant's chances
of achieving complete remission and had a poorer prognosis.
The court found that the delay did not cause the upstaging, and that the claimant would have
achieved complete remission with initial CHOP therapy and without high dose chemotherapy
with stem cell harvesting.
Doctors do not cause the presenting disease, and if they negligently fail to diagnose and treat
it, the claimant cannot recover damages for loss of earnings or costs of care before the disease
and the need to treat it became necessary.
PAGE 71
The judge could not find on the balance of probabilities that the claimant's life would not
have been destroyed by the initial delay in treatment, and his outlook now is not shown to be
different from what it would have been had there been no negligence.
The pain, suffering and loss of amenity caused by the need for further treatment are not
consequential on the injury caused by the negligence.
The defendant is liable for extra pain, suffering, loss of amenity, financial loss and loss of
expectation of life that may have resulted from the delay in diagnosis.
PAGE 72
The delay in treatment may have reduced Mr Gregg's life expectancy in the following sense:
had he been treated when he should have been treated, his median life expectancy would have
been x years, whereas given the delay in treatment his median life expectancy is x minus y
years.
The judge didn't explore the claim for a modest reduction in median life expectancy because
he was focused on establishing that the claimant would otherwise have achieved a complete
'cure'.
The second way of redefining damage is in terms of the loss of a chance. This is the
claimant's claim for the reduced chance of achieving an outcome.
The plaintiff attempted to circumvent the traditional form of the causation test by forming the
gist of his action in terms of the lost chance of avoiding the necrosis outcome.
PAGE 73
In 210, the claimant suffered avascular necrosis as a result of falling from a tree. He could not
prove that the negligence caused the outcome, but he might have proved that it reduced his
chance of avoiding it.
The House of Lords treated this case as if the die had already been cast by the time the
claimant got to the hospital, but there must be many cases in which the coin has not yet
fallen.
The appellant argues that the law should be developed as he argues, which would allow
recovery for any reduction in the chance of a better physical outcome, or any increase in the
chance of an adverse physical outcome, even if this cannot be linked to any physiological
changes caused by the defendant.
PAGE 74
The reformulation of the gist of the action to include the loss of chance of saving the leg or
achieving disease free survival is attractive because it retains the conventional approach to
causation.
Although the conventional approach to proof of causation may be retained in theory, in
practice it will be far from straightforward to apply. Once a breach of duty has been shown, it
may be easy to conclude that this has led to a reduction in the patient's prospects of a
favourable outcome.
The excess of corticosteroid consumed after 10 June 1992 caused the appellant to suffer more
spinal damage than she actually did.
The trial judge's conclusion was supported by dense and careful analysis of the evidence, but
common sense suggests that the doctor should have done more to improve the patient's
chances.
PAGE 75
Many would argue that this is a good thing, because it encourages people to take proper care
of their patients, and it allows them to get some sort of compensation if they are injured.
Doctors and other health care professionals are motivated by their natural desire to do their
best for their patients, and by their professional duty to do so. But negligence is not enough to
prove that the defendant has been negligent; actionable damage must be proven.
It can be argued that some kinds of negligence do result in liability for loss of a chance, but
why should my solicitor be liable for negligently depriving me of the chance of winning my
action, even though I never had a better than evens chance of success?
PAGE 76
One counter-argument is that there is a real difference between personal injury and financial
loss. In cases of financial harm, it is enough to show that the defendant probably caused the
claimant to lose a chance of gain.
Many claims for financial loss do not relate to the money one has but to the money one
expected to have - a prospective financial gain. There is a difference between the leg one
ought to have and the chance of keeping a leg which one ought to have.
It can be argued that an all or nothing approach to outcome based losses is unjust, because it
overcompensates the plaintiff. However, a probabilistic approach would promote a more
accurate loss allocation.
PAGE 77
Until now, the gist of the action for personal injuries has been damage to the person. The loss
of a chance approach pays less than full compensation, even though the claimant's chances of
a more favourable outcome were good.
Almost any claim for loss of an outcome could be reformulated as a claim for loss of a
chance of that outcome. If the defendant could also redefine the gist of the action if it fitted
him better, he would almost always get something.
The appellant in this case accepts that the proportionate recovery effect mus t cut both ways,
but does not think that it would apply in cases where the claim is characterised as loss of an
outcome. If the two approaches cannot sensibly live together, the defendant will almost
always be liable for something. There is no reason in principle why the definition of personal
injury should be limited to medical negligence.
PAGE 78
The discussion in the cases and literature has centred round cases where the adverse outcome
has already happened. In this case, the most serious of the adverse outcomes has not yet
happened, and it is to be hoped that it may never happen.
PAGE 79
The claimant would have been entitled to damages for any adverse outcomes caused by the
doctor's negligence, but these possibilities were not canvassed in evidence or argument.

Erika Rackley and Kirsty Horsey, Tort Law (7th edn) (7th edn, Oxford University
Press 2021)

Chapter 9
PAGE 1
The claimant must prove that their injuries were caused by the defendant's actions in both fact
and law. The remoteness test must be satisfied, and any intervening acts must not have
broken the chain of causation.
Problem question
Stefaan gives Gavin a lift home in his car, but swerves to avoid a fox and crashes the car.
Gavin breaks his arm but otherwise only has minor cuts and bruises.
PAGE 2
Gavin's arm was broken after the accident, but the doctor on duty didn't set it in a cast and so
the bones fused together wrongly, resulting in a permanent disability.
9.1 Introduction
Judy had pains in her chest and went to hospital, but was given a cursory examination and
died of a heart attack.
The purpose of establishing causation in a negligence claim is to allocate responsibility for
harm and, to some extent, risks. The first aspect of causation is analysed almost
mathematically, using a balance of probabilities test.
PAGE 3
Although we use causal language in everyday speech, our meaning is not always clear. The
courts have to pin down the 'real' cause from one of a number of factors, and this involves
answering two questions.
In law as in life, it is not always possible to pinpoint the single factual cause of a harm.
Pause for reflection
Adam stole a car, his parents didn't check where he was going, the police failed to catch car
thieves in the area, Ben set the car on fire, and the police didn't notify the Highway Authority
that the car was abandoned.
PAGE 4
Which of these facts is the cause of the harm? Don't worry if you don't know the 'legal'
answer at this stage.
The process of determining factual causation comes down to one of elimination rather than
inclusion, and we are more likely to find a cause in something out of the ordinary or unusual,
positive actions, rather than omissions, and unreasonable actions.
In tort law, the question is whether the defendant's negligence was a "real" cause of the injury
or harm. If it was, then the defendant's act or omission was a "necessary pre-condition" for
the injury or harm to occur.
PAGE 5
9.2 Factual causation—the ‘but for’ test
In determining liability for a breach of duty, we must first decide whether the defendant's
wrong in fact caused the claimant's harm. However, the question of causation is actually
more difficult to answer.
9.2.1 Explaining the test
In fault-based systems like negligence, liability is established by showing that the defendant's
breach of duty caused the harm. The cause in fact question is whether the defendant's
negligent action or omission was a necessary condition for the harm to occur.
Almost all answers to the factual causation question retain an element of uncertainty, because
we can never be entirely sure how events would have turned out if the defendant had
exercised reasonable care. The burden of proof is a lower standard in tort law.
PAGE 6
Barnett v Chelsea and Kensington Hospital Management Committee [1969] QBD
A doctor failed to properly examine a man who presented himself at the hospital's emergency
department. The man subsequently died from arsenic poisoning, and the doctor admitted
negligence, but said that he had not caused the man's death.
In Nyang v G4S Care & Justice Services Ltd and others [2013], a similar issue arose when a
man tried to kill himself by running head first into a concrete wall at speed.
9.2.2 Problems with the test
Establishing or disproving cause in fact is not always as easy as in Barnett. There are two
situations in particular that make dealing with factual causation complicated: situations where
there are multiple potential causes of the harm and situations where the result appears unjust.
There are exceptions to the 'but for' test of factual causation, which can be found in the case
law.
PAGE 7
When there are more than one potential cause of harm, it becomes factually hard to establish
which one is more likely than any other to be the cause of the harm suffered.
Wilsher v Essex Area Health Authority [1988] HL
Martin Wilsher was born prematurely and was given too much oxygen in the blood. This led
to retrolental fibroplasia, an incurable retinal condition, which left him blind in one eye and
with seriously impaired vision in the other.
If there are other possible causes of harm, besides the negligent act, the defendant will escape
liability. The practical problem is always whether enough evidence can be gathered to prove
that the defendant's negligence caused the harm.
In Bonnington Castings Ltd v Wardlaw (1956), a factory employee contracted
pneumoconiosis from the inhalation of silica dust. The House of Lords found that there was a
higher level of dust in the air than there should have been.
PAGE 8
Medical evidence established that the disease was progressive, or cumulative, and was caused
by the build-up of silica dust in the lungs. The House of Lords bypassed the 'but for' test and
found that the defendant's negligence made a material contribution to the condition.
In Holtby v Brigham & Cowan (Hull) Ltd [2000], the Court of Appeal ruled that a claimant
may only recover damages proportionate to the defendant's negligence, where the claimant
was negligently exposed to asbestos by a number of employers over a period of years,
contracting asbestosis as a result.
Pause for reflection
The Court of Appeal treated asbestosis as a divisible injury in Holtby, and looked for the
'fairest' outcome for both the claimant and the defendants. Do you think this was an
appropriate role for the court?
When a claimant cannot locate one of his previous employers, or finds out that one of them
has long ago gone bankrupt, does the decision to award proportionate damages seem as fair
as it does in Bonnington?
PAGE 9
Williams v The Bermuda Hospitals Board (Bermuda) [2016] PC
Mr Williams went to a hospital emergency department with severe abdominal pain, but the
doctor ordered a CT scan that was performed 4 – 5 hours later. He developed sepsis and
needed life support, but he could not prove that the hospital’s failure to provide adequate
diagnosis and treatment had caused his injury.
The hospital board and the NHS Litigation Authority appealed the Court of Appeal's
judgment in Williams, but the Privy Council's judgment suggests that material contribution to
harm can be applied in medical cases.
Pause for reflection
SH Bailey argues that the decision in Williams should be taken at face value as an inference
of fact that but-for causation was established, and that a material contribution exception to
proving but-for causation is needed.
PAGE 10
In McGhee v National Coal Board (1973), the 'material contribution' route around the
problem caused by the rigidity of the 'but for' test was revisited, and it was recognised that
dermatitis was not a cumulative condition - it could be triggered by a single exposure to the
dust.
The House of Lords held that the fact that the claimant's risk of developing dermatitis was
increased by the dust that remained on his body while he cycled home was enough to
establish causation.
In McGhee, the House of Lords reversed the burden of proof and held the defendant liable if
their negligence materially increased the risk of the harm being suffered.
PAGE 11
Pause for reflection
Both cases predate Wilsher, and the House of Lords rejected the McGhee argument in
Wilsher. The Court of Appeal in Bailey v Ministry of Defence [2008] followed the same
reasoning, but gave undue deference to the medical profession.
Fairchild v Glenhaven Funeral Services [2002] is a key development in this area, but it fits
better into another category.
Fairchild v Glenhaven Funeral Services [2002] HL
A group of claims were made by three employees who developed mesothelioma. The Court
of Appeal dismissed the claims because the employees could not show when the causative
exposure occurred, so they could not show which of the employers was the factual cause.
PAGE 12
The law lords held that the 'but for' test produced an unjust result, and resurrected McGhee to
find that a material increase of risk was enough to establish factual causation.
The House of Lords held that each negligent employer was jointly and severally liable for the
death of the claimant in Fairchild. The employers who had been brought before the court
could seek contributions from others who had not.
Pause for reflection
The fact that Wilsher and Fairchild are both good law does not mean that the 'material
increase of risk' test cannot be applied in future cases.
In Ministry of Defence v AB and others (2012), the Court of Appeal found that the Fairchild
exception would not be extended to cases involving diseases other than mesothelioma,
because there was no appetite in the appellate courts for extending the Fairchild exception.
PAGE 13
Barker v Corus UK Ltd [2006] HL
In a number of cases, people who had died from mesothelioma contracted as a result of
exposure to asbestos dust at work were held jointly and severally liable for their injuries. The
defendants in all of the cases appealed the finding of joint and several liability to the House
of Lords.
The House of Lords decided that compensation should be based on the period of time the
claimant was negligently exposed to asbestos by each employer, and that if one of the
employers went bankrupt, compensation would be divided between the remaining three
solvent employers.
PAGE 16
Pause for reflection
In Fairchild, the Court of Appeal held that none of the defendants were liable for the harm
suffered by the claimants.
If we acceded to the claimants' arguments, we would be distorting the law to accommodate
the exigencies of a very hard case.
There is a strong policy argument in favour of compensating victims of grave harm when
their employers owed them a duty to protect them against that very harm and failed to do so.
When a worker is negligently exposed to asbestos dust in the course of their employment and
develops mesothelioma, any or all of the employers are liable for the whole sum of damages,
even if other sources of exposure existed (though damages may still be reduced for the
claimant's own contributory negligence).
PAGE 17
Counterpoint
Section 3 of the Compensation Act 2006 ensures that claimants suffering from asbestosis (as
opposed to mesothelioma) may recover in full if one or more of their previous employers has
become insolvent. This is less claimant-friendly than the Fairchild decision.
Lord Rodger pointed out that the law is settled that a single defendant is liable for the total
sum of a claimant's damages, even if the wrongdoer cannot be proven to have caused the
harm. This is not consistent with the policy-orientated decision made by the House of Lords.
Section 3 of the Compensation Act 2006 removes this risk from claimants who have
contracted or died from mesothelioma. However, section 3 does not legislate what happens
when Fairchild is applied outside a claim for mesothelioma.
PAGE 18
The Court of Appeal in Sienkiewicz asked whether section 3 of the Compensation Act 2006
applied in such cases.
Sienkiewicz v Greif (UK) Ltd [2011] SC
A claim was brought on behalf of Mrs Costello, who died from mesothelioma in 2006. The
judge found that she had been exposed to low levels of asbestos in the general atmosphere
around Ellesmere Port.
The defendants argued that the correct test was the 'but for' test, but the Court of Appeal held
that the correct test was whether the negligent exposure had materially increased the risk. The
court found that section 3 of the Compensation Act 2006 covered the situation in this case.
The defendants appealed to the Supreme Court, but the seven-member court dismissed the
appeal unanimously. Lord Phillips explained that the gaps in our knowledge about how
mesothelioma is triggered justify the special rule of causation.
PAGE 19
In mesothelioma cases, the Fairchild exception applies even if there was a risk of developing
the disease from a non-negligent exposure to asbestos. The Court of Appeal has more
recently determined that Fairchild also applies to lung cancer caused by exposure to asbestos.
PAGE 21
The courts have departed from ordinary 'but for' causation in order to secure just results in
medical negligence cases involving 'informed consent'. In Sidaway v Board of Governors of
the Bethlem Royal Hospital (1985), the House of Lords refused to entertain the transatlantic
informed consent doctrine.
Chester v Afshar [2005] HL
The claimant developed a serious spinal condition following an operation on her spine, which
the defendant had advised to undergo. The Court of Appeal found that the defendant's failure
to warn was responsible for the damage sustained by the claimant.
The House of Lords found that the claimant had not been able to establish sufficient
causation on conventional principles, but modified these principles to find that the
defendant's failure to warn her of the disadvantages of the treatment he proposed was a
breach of this duty and the cause of her injury.
PAGE 22
Counterpoint
Sidaway dealt with medical paternalism, whereas Chester dealt with patient rights, and
Carole Chester's human rights certainly seem to have been championed. However, Chester
did not get rid of the breach question in relation to informed consent.
The law lords viewed Chester as a departure from ordinary 'but for' principles, but the High
Court interpreted the case as a less than straightforward application of the 'but for' test.
In Correia v University Hospital of North Staffordshire NHS Trust [2017], Duce v
Worcestershire Acute Hospitals NHS Trust [2018] and Diamond v Royal Devon & Exeter
NHS Foundation Trust [2019] it was confirmed that the claimant must prove that, if correctly
warned of the risk, they would have declined or deferred the operation.
If mesothelioma is caused by a single fibre of asbestos entering the lung, then each negligent
employer was equally likely to have exposed the claimants to the asbestos that caused the
disease.
PAGE 23
In cases where it was impossible to prove which of two negligent defendants actually caused
the harm, the courts shifted the burden of proof to the defendants, and if neither could do this,
they should be jointly and severally liable.
In Fitzgerald v Lane (1987) a pedestrian was hit by two negligent drivers, rendering him
tetraplegic. It was impossible to establish which impact actually caused the harm, so the
Court of Appeal found each defendant liable.
Pause for reflection
In another US case, Sindell v Abbot Laboratories, the problem of indeterminate causes was
resolved differently. Five pharmaceutical companies were all held liable for supplying a drug
that caused vaginal cancer in women, but the amount each had to pay was based on their
market share.
PAGE 24
Hotson v East Berkshire Health Authority [1987] HL
A boy fell from a tree and injured his hip. He was negligently diagnosed and sent home
without adequate treatment, but five days later he returned to hospital and was correctly
diagnosed, though by this time nothing could be done about it and paralysis was inevitable.
In Hotson, the lower courts accepted an alternative argument that the claimant had 'lost a
chance' and that this harm was definitely caused (on the balance of probabilities) by the
negligence in question. The House of Lords rejected this argument.
While a lost chance claim was not without basis in law, the House of Lords said that Hotson
had no chance of recovery because he was 75 per cent likely to be doomed to fail.
PAGE 25
Pause for reflection
If you can show a 51 per cent likelihood that negligence caused your harm, you will get 100
per cent of your damages, but if you can show only a 49 per cent likelihood, you will get
nothing.
In Hotson, the law lords did not rule out permanently the possibility of 'lost chance' claims in
medical/personal injury cases, but the issue was revisited in Gregg v Scott.
Gregg v Scott [2005] HL
The claimant consulted a doctor complaining about a lump under his arm, but the doctor
failed to accurately diagnose it as cancerous. As a result, the treatment he eventually received
was delayed by nine months, and his chance of survival decreased.
The House of Lords rejected the claim that the doctor's negligence made it more likely than
not that he would die, and the claim that he had lost a 17 per cent chance of survival was also
rejected.
PAGE 26
The lost chance argument in Gregg differs from that in Hotson in an important way, because
in Gregg the claimant's chances of survival were already against him, so the delay in
diagnosis reduced his chance of survival, not eradicated it.
Counterpoint
This appeal raises a question that has divided courts and commentators throughout the
common law world. I am in the former camp.
Lord Nicholls describes the idea that a patient can only recover damages if his original
chance of recovery had been more than 50 per cent as 'irrational and indefensible'.
Baroness Hale commented on the loss of chance argument, pointing out that if it could be
concluded that a doctor's negligence had affected a claimant's chances to some calculable
extent, then we would have a "heads you lose everything, tails I win something" situation,
operating in favour of the claimant.
PAGE 27
The type of calculation used in loss of chance claims is not new to courts, as it is used in
other types of claims.
After Gregg, it seems that it will be extremely difficult to claim lost chance in personal
injury/medical negligence. However, some courts have refused to rule out lost chance claims
in other contexts.
Pause for reflection
Gregg was still alive at the time the House of Lords issued its decision in the case, but Lord
Phillips indicated that he might have ruled differently had Gregg actually died.
When there is a question as to what should have been done, the 'but for' test is problematic
because we cannot be quite sure what would have been done.
PAGE 28
In Bolitho v City and Hackney Health Authority [1998], the House of Lords held that a
hospital consultant's failure to respond promptly to her pager was negligent, and therefore the
2-year-old claimant died.
9.2.3 Multiple sufficient causes
A claim may involve multiple defendants, each of whom passes the 'but for' test, but one of
their actions comes later than that of the other. In this case, the original tortfeasor may remain
liable after the unrelated actions of another party.
Baker v Willoughby [1970] HL
The claimant suffered injury to his leg in a car accident, but the Court of Appeal decided that
the criminals who shot the claimant obliterated the effect of the injury caused by the
negligent driver. The House of Lords disagreed, and awarded damages for the leg injury up
until the later injury.
The House of Lords felt that this might lead to a gap in damages, as the original defendant's
negligence continued to operate even after the additional harm caused by the gunshot.
PAGE 29
Jobling v Associated Dairies Ltd [1982] HL
The claimant injured his back at work, and contracted an unrelated back disease that rendered
him completely incapable of any work. The House of Lords refused to compensate him for
the original injury and loss of earnings associated with it.
Jobling is a case where the later cause of the harm complained of overtakes the original
cause, and the defendant is liable only for damages up until the time of the superseding event.
Jobling did not explicitly overrule Baker, but it is probable that Baker is now 'confined to its
facts' and a similar situation would supersede the first event, even if tortious or criminal.
Murrell v Healy may help to answer this question.
PAGE 30
Pause for reflection
The question of whether something is a supervening cause is very similar to the question of
whether the actions of a later tortfeasor break the chain of causation back to the original
defendant.
9.3 Legal causation
When one or more factors, including the defendant's negligence, are found to be necessary
conditions of the claimant's harm, the 'real' or 'operative' cause in law must still be
determined. This involves two distinct tests.
9.3.1 Remoteness of damage
When a court asks whether a harm was too remote a consequence of the defendant's
negligence, the defendant may argue that the consequences of their action were not
foreseeable by the defendant at the time the action occurred.
PAGE 31
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound) No 1
[1961] PC
The defendants were responsible for a ship that had been loading in Sydney Harbour,
Australia. A crew member's negligence caused some oil to leak into the water, and sparks
from the welding ignited the oil, causing serious damage to the wharf and other nearby ships.
After The Wagon Mound (No 1), a defendant was only liable for direct physical
consequences of their negligent act, and the Privy Council stated that the Re Polemis test was
no longer a good law. The question asked in order to establish whether the claimant's harm is
too remote is: Was the damage reasonably foreseeable?
The remoteness test means that only the type of damage must have been foreseeable, not the
extent. So, even with a small amount of carelessness, a pedestrian can be seriously injured or
even killed.
PAGE 32
If a negligent driver hits another person's vehicle, they are liable for the full cost of whatever
was damaged, regardless of the contents of the vehicle.
In 1964, a factory worker suffered serious burns when an asbestos lid was knocked into a vat
of hot liquid, causing a chemical reaction that made the liquid boil up over the edge. The
court disagreed with the claimant's interpretation.
In Hughes v Lord Advocate (1963), the House of Lords held that it was reasonably
foreseeable that a boy would enter a tent with a lamp and be burnt by a subsequent explosion,
therefore the exact means by which the burns occurred did not matter.
Pause for reflection
The Wagon Mound case was decided two years after the previous case, so perhaps the judges
were struggling to implement the new test.
In the years following the reformulation of the remoteness test in The Wagon Mound (No 1),
numerous inconsistencies were found in attempts to convince a court that physical damage
suffered was too remote to be attributed to the defendant.
PAGE 33
Pause for reflection
The modern trend in personal injury law is to interpret the type of injury in a broad sense, so
the extent of the harm or the exact way in which it was caused poses no problems to
claimants.
The remoteness test is used to determine whether the damage suffered is foreseeable. If it is,
the defendant incurs liability for all damage caused, even where its extent was not
foreseeable.
The egg shell skull rule states that a defendant must take the victim as they find them. The
classic example of a case where a defendant was held liable for all the consequences of their
negligence is Smith v Leech Brain & Co Ltd [1962]. In Reaney v University Hospital of
North Staffordshire NHS Trust [2014], the correct approach was described as objectively
determining whether the needs were qualitatively different.
PAGE 34
9.3.2 Intervening acts
Even if the defendant starts a sequence or chain of events that leads to the accident, a later
event might be held to be the 'real' cause of the eventuating harm, leaving the defendant not
liable for the claimant's harm.
The question remains whether a later act has to be negligent in order to break the chain of
causation. If it is something that is clearly likely to happen as a result of the defendant's
negligence then it is unlikely to break the chain.
In Rouse v Squires, a lorry driver negligently caused his lorry to jack-knife and block part of
a motorway. A second lorry driver stopped to assist, but a third lorry driver was less careful
and skidded into the back of the third lorry, killing its driver.
PAGE 35
Knightley v Johns [1982] CA
A serious traffic accident was caused by the defendant's negligent driving, and police were
sent to the scene. One of the officers was hit by a car while driving against the flow of traffic
to close the tunnel.
The judge found that neither the officer's instruction nor the claimant had been negligent, but
the Court of Appeal found that the inspector's instruction had been negligent, and therefore
no claim could succeed against the defendant.
When more than one party is responsible for causing harm, the court will often find all of
them legally responsible, unless a later negligent act breaks the chain of causation.
In Wright v Lodge [1993], the driver of the Mini was ordered to pay 10 per cent of her
passenger's damages, but the lorry driver was found to have broken the chain of causation
from her negligence and was wholly liable for the injuries to the other claimants.
Can the claimant's own negligence break the chain of causation? It is rare for this to happen,
because generally the defence of contributory negligence can be dealt with.
PAGE 36
In McKew v Holland and Hannen and Cubitts (Scotland) Ltd (1969), the House of Lords
rejected the claim that the defendant should be liable for the claimant's broken ankle because
the claimant had negligently thrown himself down the stairs and broken the chain of
causation.
McKew can be contrasted with Wieland v Cyril Lord Carpets [1969] where the claimant had
to wear a neck brace and fell down some stairs and injured her ankle.
Pause for reflection
The Court of Appeal found that contributory negligence was appropriate to deal with the
sharing of responsibility in McKew v Wincanton Holdings Ltd [2009].
A claimant's own actions in committing suicide while imprisoned or while being held in
police custody have not been found to break the chain of causation back to the defendant.
In Corr v IBC Vehicles Ltd (2008), the House of Lords held that an employer's breach of
duty to keep employees reasonably safe did not cause an employee's suicide, whereas in Gray
v Thames Trains (2009), the House of Lords held that a suicide had broken the chain of
causation.
PAGE 37
9.4 Conclusion
To establish cause in fact, a claimant must show that the defendant's breach caused their
harm. However, there are many flaws with this test, and the courts have devised exceptions to
the rule, which are limited to the type of case in which they were first used.
The second part of causation is cause in law, which has two parts. The first part asks whether
the damage that occurred was foreseeable to the defendant at the time of the negligence, not
its extent.
PAGE 38
Consider again the problem question at the start of this chapter. The question is whether
points similar to those seen in Bolitho arise, as well as potential intervening acts.
PAGE 39
Causation in negligence is often quite difficult to understand, and many articles focus solely
on one or two cases. The articles and case notes listed below focus on a particular case or
cases. Laleng, Per, Lee, James, Miller, Chris, Stapleton, Jane, Steel, Sandy, Voyiakis,
Emmanuel, Wellington, Kate, 'Beyond Single Causative Agents: The Scope of the Fairchild
Exception Post-Sienkiewicz' (2014) The Honourable Society of the Inner Temple Lecture
Series.
Notes
2. The same rule applies to other fault-based torts as it does to negligence, including strict
liability ones.
The cause in fact test is a negative test that excludes things that might have been a cause.
PAGE 40
Peter and Judy would have the same outcome as in the chapter-opening scenario, and the
same would apply to Chubb Fire Ltd v Vicar of Spalding.
The Court of Appeal found that the hospital's negligence made a 'material contribution' to the
harm, despite there being two potential causes of the claimant's cardiac arrest and brain
damage.
The medical evidence said that the guilty dust made a difference, but the case was argued as
'all or nothing', which was incorrect.
The claim failed in Bailey v Ministry of Defence and Garner v Salford County Council
because there was no evidence of excessive exposure.
In cases relating to vibration white finger, chicken pox, hip damage, stress-at-work, and
Rahman v Arearose Ltd, the approach to apportionment in relation to psychiatric harm was
later doubted.
A brain injury suffered in part as a result of a fall may be compensable in the High Court.
PAGE 41
The Court of Appeal found that there could be liability based on 'material contribution' in
Bailey v Ministry of Defence.
Peel & Goudkamp at 7-022, and the Court of Appeal at Equitas Insurance Ltd v Municipal
Mutual Insurance Ltd [2019] say that the Fairchild exception should have been left unaltered
while the state of scientific knowledge was left to develop.
Though they may have recourse to some damages via the Financial Services Compensation
Scheme, as Smith LJ indicated in Novartis Grimsby Ltd v Cookson.
The Fairchild test does not change how the duty is formulated, and the duty and breach
elements of a claim must be established in the ordinary way.
PAGE 42
The Mesothelioma Act 2014 established a compensation fund for those who contract
mesothelioma due to negligent employers, but who have no one to sue.
Heneghan v Manchester Dry Docks Ltd and others [2016]: the Fairchild exception applies to
mesothelioma, but the Barker rule applies.
In some cases, a defendant is liable for damages in both contract and tort.
PAGE 43
The claimant lost a chance to survive because he was one of 42 out of 100 people who would
have survived with immediate treatment, or he was one of 58 who would not.
There is an alternative view that suggests that recognising loss of chance claims would
potentially change the outcome of almost every negligence claim, because it would entail
reductions in claimants' damages to reflect the fact that there was a chance that the harm
would have suffered anyway. The loss of a chance approach involves a shift away from the
all or nothing approach we currently have, and would require overruling cases like Hotson,
Wilsher and Fairchild.
The decision could be justified on the ground that the claimant would not have been shot had
it not been for the first defendant's negligence.
Evidence showed that oil spread thinly on the surface of water could be ignited if a certain
temperature was reached, so the issue was not about foreseeability but whether a reasonable
person would have taken steps to prevent it.
PAGE 44
64. In the context of financial losses, see Rubenstein v HSBC Bank plc (2012).
The chain of causation was broken in Smith v Youth Justice Board for England and Wales
and another (2010).

Chapter 2

PAGE 1
The chapter begins by explaining the historical development of the tort of negligence, before
examining the first instance judgment in X & Y v London Borough of Hounslow.
Keywords: tort law, negligence, duty of care, breach of care
PAGE 2
In each of these examples, someone other than the injured party has been negligent.
However, not all actions which are negligent in the first sense will be negligent in the second
sense, and a person may be liable in the tort of negligence even when their actions cannot
realistically be described as careless.
The tort of negligence is different from other torts in that it is not defined by any single type
of right or interest, but instead focuses on the 'quality' of the defendant's conduct.
PAGE 3
The law does not get involved in awarding damages to a young man whose fiancée deserts
him for his best friend, or a middle-aged woman whose husband runs off with a younger
woman.
Pause for reflection
The UK Supreme Court and Court of Appeal differed on whether the claimants had been
harmed by being negligently exposed to high levels of platinum salts at work. The claimants
lost at trial and in the Court of Appeal.
PAGE 4
Platinum sensitisation is not harmful in itself in any relevant sense, and is not a 'hidden
impairment' that can cause detrimental physical effects in the course of ordinary life.
The claimants have suffered actionable bodily damage, or personal injury, because their
bodily capacity for work has been impaired and they are therefore significantly worse off.
The tort of negligence plays a central role in the law of tort.
The tort of negligence is by far the most important tort in practice, and it forms a substantial
part of tort law modules and textbooks. This chapter explores the origins of the modern law
of negligence and introduces some of the key themes underpinning the tort.
PAGE 5
The tort of negligence is a relatively modern tort, and was only fully articulated in the early
twentieth century.
Academics and legal historians have described the development of the tort of negligence as
being 'thoroughly fragmented', with a duty of care being recognised only in very limited
circumstances and/or in the context of particular relationships.
When circumstances place one person in a position to cause danger to another, that person
has a duty to use ordinary care and skill to avoid such danger.
Private law thinking continued to be dominated by contractual understandings of
responsibilities and obligations between parties, and many people who were injured through
another's carelessness had no claim. A consumer injured by a defective product would have
no claim against the manufacturer, since they had no contract with them. Moreover, if the
injury was suffered by someone other than the person who had bought the product, they
would have no claim against anyone.
PAGE 6
Donoghue v Stevenson [1932] HL
Mrs Donoghue suffered shock and serious gastroenteritis after drinking ginger beer that had
been poured into a glass tumbler with the remains of a decomposed snail. She could not sue
the café owner as she had no contract with him on which to sue.
The case made its way to the House of Lords, but was settled out of court before any findings
of fact could be made.
A manufacturer of products owes a duty to the consumer to take reasonable care in the
preparation and putting up of the product, if the absence of reasonable care will result in
injury to the consumer's life or property.
PAGE 7
Lord Buckmaster, the most senior law lord present on a bench entirely comprised of law lords
who had been appointed within the preceding five years, dissentingly rejected any possibility
of Mrs Donoghue's claim succeeding.
The majority's reasoning in Donoghue established that a manufacturer could be held liable to
the ultimate consumer of their goods, which laid the crucial foundations for subsequent
developments in consumer protection.
PAGE 8
Lord Atkin’s neighbour principle
Lord Atkin was not the first judge to try to formulate a general principle of negligence
liability in tort law. Brett MR (later Lord Esher) had tried to do so in Heaven v Pender and Le
Lievre v Gould.
In law, you must not injure your neighbour. This means that you must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour.
An individual must take reasonable care to avoid injuring those they can reasonably foresee
will be injured if they do not take such care.
Despite the rhetorical flair of Lord Atkin's speech, Lord Macmillan's more measured
approach won the day. However, gradually thinking began to change and, by the 1970s, the
tort of negligence had come to be seen as an ocean of liability for carelessly causing
foreseeable harm.
PAGE 9
In the 1980s and 1990s, the courts retrenchment the tort of negligence by cutting back the
situations in which a duty of care was held to arise, and by imposing liability only where
there were clear precedents to do so.
In the late 1990s, the judicial retrenchment of the 1980s and early 1990s was gradually
relaxed, allowing negligence liability to expand into new situations. However, the Supreme
Court has once more reasserted the importance of the law developing incrementally.
PAGE 10
The historical map described earlier provides a backdrop to the development of the tort of
negligence and suggests that it was not seamless.
Nineteenth-century judges moved 'subconsciously' towards the negligence principle while
scarcely aware of it, directed inexorably and unerringly by the demands of logic and reason.
Because of the values and influences of the society from which this 'new' tort emerged,
negligence triumphed as a principle of liability.
2.3.1 The influence of social and political thinking in an age of principles
PAGE 11
Patrick Atiyah argues that the fault principle is liberal individualism made into law, and that
it is far more attractive than the strict imposition of liability for all injuries caused by one's
actions.
2.3.2 A positive response to victims of workplace injuries
The tort of negligence was developed in response to the victims of industrialisation and the
change in the nature of the relationship between the claimant and the defendant as a result of
the development of railways, roads, factories, mines, quarries and such like.
2.3.3 Supporting infant industries
The opposing view is that the courts restricted liability during the industrial period and
prioritised the fault principle in order to protect and nurture fledging industries.
PAGE 12
This view gained some support from the doctrine of common employment, which prevented
claims by employees against their employers for injuries sustained at work where their injury
was caused by other employees.
Counterpoint
While a fault-based system lowers the protection offered to an individual, a broad principle of
negligence makes this lower standard available to a greater number of people.
2.4 The role of the modern law of negligence
Despite greater state support for accident victims through social security payments and the
NHS, the tort of negligence retains its place as the primary legal mechanism of accident
compensation for personal injuries in the UK.
Despite its loss-shifting credentials, the tort of negligence operates more frequently as a loss-
spreading device, with the loss being spread across all those who have, and shall take out,
policies with the defendant's insurance company.
The goal of negligence is loss shifting on the grounds of fault, but its most commonplace
effect is loss spreading.
PAGE 13
This move away from the fault principle may be a good thing, as it will increase the use of
insurance.
Personally, I would question whether there is a moral case for imposing liability in damages
on the ground of negligence. The only possible justification for the law doing that is its social
utility, but a fault-based system has arbitrary results and incomplete coverage.
PAGE 14
The defendant may be able to raise a defence which will either defeat the claim entirely or
reduce the amount of damages paid. Secondly, each element of a negligence claim is
necessary but not sufficient to establish liability.
In any given claim, there may be more than one defendant, as well as multiple claimants. In
some cases, the defendant may be someone relatively distant from the facts of the case, but
nonetheless is vicariously liable for their actions.
2.5.1 Duty
A defendant can be held liable for their carelessness only if they owed the claimant a legal
duty to take care and their carelessness caused damage.
The courts use the existence of a duty of care as a control mechanism, but in the vast majority
of cases establishing a duty will be straightforward, with the law already making clear,
unequivocal provision for duties of care in such situations.
PAGE 15
The courts have placed significant limitations on the situations in which a duty to take care
will arise, particularly in what might be called 'problematic' duty areas. In these areas, the
courts have typically held either that there is no duty on the part of the defendants or have
severely restricted its scope.
2.5.2 Breach
The defendant owes a duty of care to the claimant and will be liable in the tort of negligence
if they have failed to exercise reasonable care. However, the converse is more problematic, as
the defendant may be left to bear the entirety of their losses without fault.
PAGE 16
Pause for reflection
Though the concept of fault employed in the tort of negligence is a legal, and not necessarily
a moral, standard, it is possible to be liable in the tort of negligence for a single, momentary
lapse of concentration.
2.5.4 Putting it all together
Establishing liability in the tort of negligence breaks down into three questions: is the
defendant at fault? is the defendant's breach of their duty the factual and legal cause of the
injury?
PAGE 17
Counterpoint
The presentation of the tort in this way is theoretically problematic, since it suggests the
elements have clearer boundaries than they actually do, and the courts actually employ
different reasoning when deciding cases.
Lord Denning is overstating things somewhat, but the basic elements of duty, breach and
causation are not simply interchangeable and tell us something different. Moreover, it is
highly doubtful that all claims can be repackaged in the way he suggests.
Insofar as we can meaningfully distinguish the various elements of a negligence claim, not
always all are at issue. For instance, duty may be straightforward in relation to road traffic
accidents, but breach may be more problematic.
PAGE 18
Bolton v Stone [1951] HL
In Bolton v Stone, the claimant was hit on the head by a cricket ball hit by a player from an
adjacent cricket pitch. The key question for the court was whether the defendant cricket club
had fallen below the appropriate standard of care.
PAGE 19
Pause for reflection
The purpose of this very simple diagram is to illustrate the varying importance of each
element of the tort of negligence. It is not intended to be mathematical, and the
uncontroversial aspects of the case will be glossed over relatively quickly.
In order to be successful in a negligence claim, breach and causation must be established. The
decision of Maddison J in X & Y v London Borough of Hounslow [2008] is an excellent
example of this.
PAGE 20
X and Y are claiming damages against the London Borough of Hounslow after being sexually
abused by local youths in November 2000.
The youths confined X and Y to their bedroom, made them perform sexual acts, threw many
of X’s and Y’s possessions over the balcony, forced pepper and fluid into X’s eyes, locked X
in the bathroom for a time, in the dark, and made him drink urine.
The claimants argued that the defendant should have arranged for them to be accommodated
elsewhere because they were in imminent physical danger.
PAGE 21
The defendant strongly contested liability, arguing that they did not owe a duty of care to
protect vulnerable adults from abuse by third parties, and that any failings in this regard are
only justiciable within the forum of public law.
Local authorities are liable in negligence and under the Human Rights Act 1998 and the
European Convention on Human Rights. I have found some helpful authorities, but by no
means all.
I first consider whether or not the Defendant owed the Claimants a duty of care. The courts
are more likely to find a duty of care exists in cases involving injury or damage to person or
property than in those involving only economic loss. I agree with the counsel that the proper
test to apply in this case is the tri-partite test, and I find that a duty of care exists only if the
injury and loss suffered by the Claimants was reasonably foreseeable.
PAGE 22
The Claimants must show that it was reasonably foreseeable that they would suffer an assault
by local youths at their home, but need not show that the Defendant should have envisaged
the precise concatenation of circumstances which led up to the incident or the precise form
the assault would take.
The chronology of events paints a picture of gradually mounting concern about the welfare
and safety of the Claimants and their family, and the repeated concerns expressed by Z and
the Defendant's own Social Services Department about the Claimants' vulnerability, their
ability to keep themselves and their children safe.
In my judgment, the mounting concerns made it reasonably foreseeable from an early stage
that the Claimants and/or the children might in some manner come to some sort of harm.
However, the events that made critical difference began early in September 2000. The events
occurring before September 2000 provide a background against which the events occurring
after September 2000 can be considered.
PAGE 23
The Defendant was the Claimants' landlord and provided social services for them and their
children. The Defendant was aware of the Claimants' disabilities and should have foreseen
the danger of a serious physical attack from local youths in their flat.
The Claimants do not suggest that the Defendant was under a general duty to protect them
from harm. They were living independent lives in the community, and life is not free from
risk and danger.
PAGE 24
The Claimants contend that the Defendant was under a duty to protect them, but all parties
accept that there was nothing else the Defendant could have done.
The Defendant had a duty to move the Claimants out of the flat in response to the unusual but
dangerous situation which had developed towards the end of 2000.
I consider whether the absence of any previous decided case establishing liability in similar
circumstances would be fair, just and reasonable to impose a duty of care.
The law should develop new categories of negligence incrementally, rather than by extending
a prima facie duty of care restrained only by indefinable considerations.
PAGE 25
In certain circumstances, local authorities may owe a duty of care to children. In the present
case, the Defendant knew that the Claimants functioned in many ways like children, and had
allocated a social worker to both their cases.
The Court of Appeal held that no separate duty of care was owed to the adult parents of the
children in the JD case, and the House of Lords reached a similar conclusion in Lawrence v
Pembrokeshire County Council.
The Claimants' injury and loss was caused by third parties over whom the Defendant had no
control. The Defendant is protected by the principle that a high degree of foresight is required
in such cases, and the Human Rights Act 1998 provides further support.
PAGE 26
The next question is whether the Defendant was in breach of its duty of care to the Claimants,
and whether the Defendant should have invoked the emergency transfer system to move the
Claimants out of their flat before the relevant weekend.
The Defendant failed to invoke its emergency procedure to remove the Claimants from their
flat on or very shortly after 20th October, 2000 and failed to give the Claimants' case the
priority it deserved. This breach of duty of care caused the injury and loss in respect of which
this claim is brought.
The Defendant submits that the Claimants do not have a right of action for damages based on
the tort of negligence, because the Claimants are complaining about the failure of the
Defendant to re-house them. This can only be challenged by way of an application for
judicial review.
PAGE 27
The Claimants were tenants of the Defendant and were entitled to be moved from their
accommodation, and not necessarily into further Council accommodation, because the
Defendant had an emergency transfer procedure in place, which it could have used before the
relevant weekend.
The Claimants claim damages under the Human Rights Act, 1998 sections 6 and 7, for breach
of Articles 3 and 8 of the European Convention on Human Rights. However, I do not think
that it is necessary for me to determine the claim under the Human Rights Act, for several
reasons, including the fact that I have already found the Defendant liable in the tort of
negligence. The Human Rights Act 1998 came into force on the 2nd October, 2000, but the
significant deterioration in the Claimants' situation began in September, 2000, so the claim
should have been assessed against the background of what had gone before.
PAGE 30
Annotation 10
Confusion persisted concerning the effect of Caparo until clarification was provided in
Michael [2015] and Robinson. The reasoning of decisions concerning the liabilities of public
authorities in negligence which date from the intervening period should be considered.
Annotation 13
The injury must be of the same general kind as the damage, and third parties must have a
duty of care.
PAGE 31
Annotation 16
The defendants must have known or should have known that the family might suffer a serious
physical assault.
PAGE 34
The defendants failed to move the claimants out of their flat once it became reasonably
foreseeable that they would suffer a serious physical assault.
Annotation 33
This is the final element of the claim, and Maddison J dealt with it quickly, rejecting
arguments made by the defendants in relation to whether the claimants would have agreed to
move or have maintained contact with their eventual abusers.
Annotation 34
The defendants argue that the claimants should not be allowed to claim in the tort of
negligence.
PAGE 35
Annotation 38
Claims under s 7 of the HRA are public law claims against the state for not ensuring that
rights under the HRA are protected.
PAGE 44
2.7 Conclusion
The tort of negligence is a central role in the law of torts because it is brought more often
than any other tort and because it has gained prominence in recent years. The chapter began
by explaining the historical development of the tort of negligence, and then went on to
explore the origins of the modern tort of negligence in the landmark decision of the House of
Lords in Donoghue and Lord Atkin's neighbour principle.
End-of-chapter questions
After reading the chapter carefully, try answering the questions that follow.

Chapter 8
PAGE 1
This chapter focuses on the second requirement necessary to establish a claim in the tort of
negligence - breach of duty. It asks how the defendant ought to have behaved.
(What was the required standard of care?)
Kate and Iris spend the afternoon looking at wedding dresses, but Iris loses control of the car
and crashes into a lamp post. Kate suffers minor cuts and bruises and contracts an infection in
a cut to her right arm.
PAGE 2
8.1 Introduction
There are three vital ingredients to the tort of negligence: duty of care, breach of duty and
damage caused by the breach (factual and legal causation). This chapter focuses on the
second of these requirements - breach of duty - and discusses how the courts set the
acceptable standard of care.
The majority of cases turn on the facts at hand, and the standard of care will be set by the
facts. As such, there is relatively little to say about breach of duty in negligence.
PAGE 3
The law requires us to do certain things to avoid causing harm to others, but the exact details
depend on the particular facts of each case.
Pause for reflection
Some of the most familiar negligence cases involve 'freak accidents' during entertainment
events or school trips. The courts seek to strike a balance between ensuring safety and
curtailing legitimate activities and/or commercial interests.
8.2 A test of reasonableness
The standard of care in negligence is that the defendant must behave reasonably. If the
defendant has done something that a reasonable man would not have done, or has omitted to
do something that a reasonable man would have done, then they are in breach of their duty.
PAGE 4
There is less agreement among feminist legal scholars about whether the qualities of a
reasonable man should be tied to the physical characteristics of a man. Moreover, even if we
adopt the more politically correct 'reasonable person' terminology, questions remain.
Feminist critiques of the reasonable man
Feminists and other legal scholars have argued that the standard of the reasonable man is
gender-specific and holds women to a standard devised without them in mind.
PAGE 5
The notion of the 'reasonable man' is not based on statistical evidence, but is a conception
conjured up by the judges themselves embodying a standard set and considered appropriate
by them.
There is no such individual as the reasonable man, and the reasonable man is a judicial
construct through which the judges seek to determine what was reasonable conduct in the
circumstances of the particular case.
8.3 An objective standard
The standard of care expected of the defendant is objective, and is not dependent on the
personal idiosyncrasies of the defendant. This means that the defendant cannot argue that
they 'did their best' according to their education, experience, health and so on.
PAGE 6
Nettleship v Weston [1971] CA
The claimant gave the defendant driving lessons, but the defendant panicked and hit a lamp
post, breaking the claimant's knee cap. The defendant was convicted of driving without due
care and attention.
The Court of Appeal held that the standard of care for a learner driver should be the same as
for an experienced driver, and that the victim should not be denied compensation because the
learner driver had driven as well as could be expected.
PAGE 7
The reason we make liability in negligence conditional upon the defendant having failed to
exercise reasonable care is because corrective justice requires that we compensate only those
harms we cause through our fault or neglect.
The Court of Appeal's decision in Nettleship is more about compulsory motor insurance than
about corrective justice.
The insurance company bears the financial loss, not the defendant, so the fault principle is
subordinated to the loss-shifting goals of distributive justice.
Nevertheless, the court held that the defendant was not liable for the serious injuries suffered
by the drunk pedestrian.
The defendant could have taken her foot off the accelerator or steered towards the centre of
the road, but the legal test is by reference to reasonable care.
PAGE 8
In Roberts v Ramsbottom, the court held that the objective standard of care, independent of
the characteristics and capacities of the defendant, applied to a driver who had suffered a
stroke and continued to drive, even though he felt increasingly unwell and could not
appreciate the significance of his actions.
In Nettleship and Roberts v Ramsbottom, liability in negligence was imposed even though
the defendant was not genuinely at fault. However, in Mansfield v Weetabix Ltd, the Court of
Appeal held that the defendant was not liable for the damage caused to a shop when his lorry
crashed into it.
Pause for reflection
The Court of Appeal judges in Mansfield v Weetabix refused to find the innocent lorry driver
liable simply to compensate the claimants, arguing that responsibility for any change in the
law lay at the feet of Parliament.
PAGE 9
Orchard v Lee [2009] CA
Two 13-year-old boys were playing tag in the courtyard of their school, when one of them
ran into the lunchtime assistant supervisor. The injury initially seemed insignificant, but later
became quite serious.
PAGE 10
When a person professes to have a special skill or competence, they must show that skill with
the same level of competence as any ordinary member of their profession or calling.
In Phillips v William Whiteley (1938), the court held that a jeweller was not liable for an
infection caused by ear-piercing, and in Wright v Troy Lucas (a firm) and George Rusz
(2019), the court held an unqualified legal advisor liable for clinical negligence.
PAGE 11
8.3.2.1 The Bolam test
In negligence cases, a defendant cannot escape liability by arguing that they followed
common practice. However, in cases where the defendant has a special skill or competence,
the courts will judge them against the ordinary skilled man professing to exercise that skill.
Bolam v Friern Hospital Management Committee [1957] QBD
A patient who had been given electro-convulsive therapy without a relaxant drug and without
the appropriate physical restraints fractured his hip. The court held that the medical
profession had failed to meet the standard of care.
A claim against an advocate must show that the error was one that no reasonably competent
member of the relevant profession would have made.
PAGE 12
Counterpoint
The courts have been reluctant to impose liability on members of the medical profession, but
Sally Sheldon suggests that the need to compensate victims of medical misadventures, the
potential of negligence claims to discourage bad practice and reinforce the accountability of
doctors and the existence of liability insurance are compelling arguments.
A doctor will not have fallen below the standard of care expected of a reasonable doctor, if
they have acted in accordance with a respectable body of the medical profession (even if it is
a minority viewpoint). However, the House of Lords qualified this ruling in Bolitho v City
and Hackney Health Authority.
PAGE 13
In the vast majority of cases, distinguished experts' opinions will demonstrate the
reasonableness of that opinion. However, in rare cases, the opinion may not be reasonable.
The Bolam test is now better understood as a two-stage test: Has the doctor acted in
accordance with a practice accepted as proper by a respectable body of medical opinion?
The court cannot decide the case based on two contrary expert medical opinions.
The assumption that 'doctors know best' has been controversial, but the Supreme Court has
rejected the Bolam test in cases involving the disclosure of risks in a medical context.
The leading case on the duty of doctors to inform their patients of the risks of their treatment
was the 30-year-old decision in Sidaway v Bethlem Royal Hospital [1985]. In Sidaway, the
House of Lords held that the doctor had not breached his duty of care.
PAGE 15
The Supreme Court unanimously found in favour of the claimant, holding that doctors must
ensure that patients are aware of material risks.
Since Sidaway, the paradigm of the doctor-patient relationship has changed, and patients are
now widely regarded as persons holding rights. Doctors are now required to take reasonable
care to ensure that patients are aware of material risks of injury.
An adult person of sound mind is entitled to decide which form of treatment to undergo, and
the doctor must take reasonable care to ensure that the patient is aware of any material risks
involved in any recommended treatment.
The lower courts held that the claimant had not established that she would have elected to
have a caesarean section, had she been properly informed. However, the Supreme Court
concluded that she would have chosen a caesarean section.
PAGE 16
In order to make an informed decision about medical care, it is important to consider all the
pros and cons of each option, including the risks the mother might face in the process of
giving birth.
PAGE 17
Dr McLellan's statement that vaginal delivery is morally preferable to a caesarean section
does not look like a purely medical judgment, and justifies depriving the pregnant woman of
the information needed for her to make a free choice in the matter.
The Bolam test, which considers conduct supported by a responsible body of medical
opinion, becomes inapposite when the argument departs from purely medical considerations
and involves value judgments of this sort. A patient is entitled to take into account her own
values and the medical evaluation of the risks to herself and her baby.
PAGE 18
Counterpoint
The decision in Montgomery could work against the promotion and protection of patient
choice, because it takes a substantial sum out of the collective pot and could lead to an
increase in defensive practices and claims from women claiming they had not been
adequately advised.
An approach to the law that treats patients as adults capable of understanding that medical
treatment is uncertain of success and may involve risks, and accepting responsibility for the
taking of those risks, may be less likely to encourage recriminations and litigation, in the
event of an adverse outcome.
PAGE 19
(1) (2) Whether the patient should have been told about risks associated with an operation is a
matter for the Court to determine.
Some characteristics of a patient are obvious, such as the person's medical condition, but
other characteristics may be less self-evident, such as the person's tolerance for or stoicism
towards pain, or the ability to manage pain.
Since Montgomery, many legal arguments have been made and much judicial and academic
ink30 has been spilt as doctors, lawyers and their clients attempt to work out its impact on
clinical practice. It is clear that Bolam is far from dead, and continues to inform both stages
of the Montgomery test.
PAGE 20
8.4 Setting the standard of care
The courts set a standard of care that is commensurate with the risk, taking into account the
circumstances of the situation in which the accident or injury occurred.
All things being equal, a driver is reasonable to drive at 70 mph on a clear motorway, but not
on residential streets. Similarly, a driver is reasonable to drive more carefully near a school.
In Wooldridge v Sumner (1963), a photographer was injured while photographing at the
National Horse Show, but the Court of Appeal rejected his claim, holding that the horse rider
was free to concentrate on winning the competition.
PAGE 21
Bolton v Stone [1951] HL
A claimant was hit on the head by a cricket ball hit by a player from an adjacent cricket pitch.
The House of Lords rejected both claims, holding that although balls had been hit out of the
ground, it was very rare and thus not negligence.
Lord Oaksey said that ordinarily careful men do not take precautions against every
foreseeable risk, and that it is not actionable negligence not to take precautions to avoid risks
that are habitually treated as negligible.
In Richards v London Borough of Bromley [2012], the Court of Appeal held that an injury
suffered by a school pupil was not reasonably foreseeable, because the earlier incident was
only superficially similar to the accident in question.
In Perry v Harris [2008], the Court of Appeal held that the severity of the foreseeable harm
was what mattered in setting the standard of care.
PAGE 22
A reasonable parent could have foreseen that a child might collide with another child on a
bouncy castle and cause injury, but not as severe as the injury sustained by the claimant.
It is clear from the cases that the conduct of the defendant is assessed at the time of the
alleged breach.
Roe v Ministry of Health [1954] CA
The claimants were paralysed after being injected with contaminated nupercaine. The phenol
had percolated into the ampoules through invisible cracks.
The Court of Appeal held that the hospital was not at fault for storing glass ampoules in the
phenol solution, because the accident occurred in 1947.
In Williams v University of Birmingham (2011), the court held that the state of asbestos
lagging in a tunnel under the science department at the university was not such that people
using the tunnel might be exposed to an unacceptable risk of an asbestos-related injury.
PAGE 23
Pause for reflection
A medical textbook published in 1951 warned medical practitioners not to place local
anaesthetic solution in alcohol or spirit, but the Court of Appeal's decision left the full cost of
this medical advance to the unfortunate men.
8.4.2 Seriousness of the injury
The courts take into account the seriousness of the injury when deciding whether a defendant
has fallen below the required standard of care.
PAGE 24
Paris v Stepney Borough Council [1951] HL
A garage hand suffered serious injury when a metal chip flew into one of his eyes while he
was working. The House of Lords agreed that safety goggles were a reasonable precaution to
ensure the safety of their workforce.
The courts consider the cost to the defendant of taking precautions against the risk. The lower
the cost, the more reasonable it is that someone should take precautions, especially when the
risk of injury is low.
PAGE 25
One might have expected evidence that the ROH regularly reaches high noise levels in public
performances of Wagner operas, that the only way the rehearsals could have been scheduled
is on the basis of six hours rehearsal per day on consecutive days, and so on. The defendant's
alteration of the pit after the accident did not necessarily reduce the artistic standards of the
Wagner opera, but it made it very difficult to prove that all reasonably practicable steps had
already been taken.
The courts are reluctant to interfere with budgetary decisions made by public authorities, and
in Knight v Home Office (1990) the court recognised that prison hospital facilities were
necessarily different from specialist psychiatric hospitals.
8.4.4 Social value of the activity
The greater the social value of an activity, the more likely the courts will find it reasonable to
have dispensed with safety precautions.
While emergency services are not exempt from the law of negligence, the standard of care
will usually be lower where the defendant is acting in an emergency situation.
PAGE 26
Watt v Hertfordshire County Council [1954] CA
Due care requires balancing the risk against the measures necessary to eliminate the risk, and
the end to be achieved.
In sporting events the standard of care is usually lower as participants are concentrating on
winning, and so may pay less attention to what is going on around them.
If the defendant had thrown a stone at the claimant or deliberately aimed the piece of bark at
the claimant's head, then there might have been a breach of the duty of care, but an error of
judgment or lapse of skill is not sufficient to amount to a failure to take reasonable care.
PAGE 27
While the standard of care owed between participants in a sporting event is lower, it is never
eliminated entirely.
The law of tort must not interfere with activities just because they carry some risk, but rather
must be decided on an individual basis.
The added excitement of playing this game in the dark did not justify the increased risk of
injury.
PAGE 28
I have found it hard to reach a confident judgment in this case because the boy was well used
to rough and tumble and played rugby with distinction for his county. Is awarding him
damages for an injury suffered playing the game, 'Objects in the Dark', not an example of an
overprotective nanny state?
8.5 A balancing act
The courts weigh up the likelihood of injury and the seriousness of harm against the cost of
taking precautions and the social value of the activity before deciding what was reasonable in
all the circumstances of the case.
PAGE 29
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wag on Mound) (No 2)
[1967] PC
The defendants transferred furnace oil from a nearby wharf onto a vessel moored in Sydney
Harbour, causing a large quantity of the oil to spill into the harbour. The oil caught fire and
destroyed the wharf and the claimants' vessels.
The Privy Council held that the defendants had fallen below the standard of care required
when they failed to take steps to eliminate the risk of the oil catching fire.
A real risk is one that a reasonable man would not brush aside as far-fetched.
PAGE 30
The learned hand test holds that if the costs of taking precautions are greater than the
probability of injury occurring, it would be unreasonable to expect the defendant to take such
precautions.
Counterpoint
The Learned Hand test is essentially an economic one: if spending £X on avoiding or
minimising the risk of an accident will prevent accident costs of £X + Y, then it is clearly
desirable to spend £X.
8.5.1 The Compensation Act 2006 and the Social Action, Responsibility and Heroism Act
2015
Clarify the existing common law on negligence to remove liability for untoward incidents
that could not be avoided by taking reasonable care.
PAGE 31
1. Deterrent effect of potential liability
A court may consider whether a requirement to take particular steps to meet a standard of
care would discourage persons from undertaking functions in connection with a desirable
activity.
Section 1 of the Act adds little to our understanding of the tort of negligence, and simply
restates what we already know.
In Hopps v Mott MacDonald Ltd, the court held that it was not unreasonable for the claimant
to have been carried around in an unarmoured (civilian) vehicle while working on rebuilding
projects in Iraq following the invasion in 2003.
PAGE 32
8.6 Establishing breach
At times this can be extremely difficult, particularly in relation to litigation arising out of a
defective drug. However, in relation to road traffic accidents, the burden of proof shifts onto
the defendant to show that he was not negligent and that his conduct (although criminal) does
not amount to civil negligence.
The courts may infer negligence from the circumstances in which the accident or injury took
place, and this is usually described by the phrase res ipsa loquitur meaning 'the thing speaks
for itself'. This is not a formal doctrine, and does not shift the burden of proof onto the
defendant.
PAGE 33
When a machine malfunctions, the defendant is liable for negligence if the machine was
under his management or his servants used proper care.
The rule that applies in the case of slips and trips and falls is that if the defendant has control
of the thing that caused the injury, and uses reasonable care to prevent the accident, they will
not be liable for it.
8.7 Conclusion
In this chapter we have considered breach of duty of care, which occurs where a defendant
has fallen below the standard of care demanded by the law. The courts balance issues relating
to the public benefit against individual freedom and responsibility.
PAGE 34
End-of-chapter questions
Do you agree with the outcome of the case? Is it a fair decision?

Chapter 5: psychiatric harm

This chapter explains the meaning of psychiatric harm, the general exclusionary rule, the
distinction between primary and secondary victims, and other circumstances where the law
recognises victims of psychiatric harm as having a claim in negligence.
A spotlight falls onto the stage at a warm-up gig for Blinking Idiot, killing three members.
The lighting rig had been negligently maintained by Rack & Horse Lighting.
PAGE 2
Pete, Madeleine's brother, hears the explosion and rushes to the hospital, but finds
Madeleine's body covered in blood and grime. He develops post-traumatic shock disorder.
Lucy attended every Blinking Idiot gig in the UK and has contributed to their fan magazine.
She was not hurt by the explosion.
Tim, a trainee paramedic, comforted distraught fans for two hours and later suffered from
recurring nightmares and panic attacks.
A woman is diagnosed with cancer and told she has weeks to live. Six months later she finds
out her X-rays were mixed up with another patient's.
PAGE 3
A teenager's boyfriend died after being caught in the crush at a gig. He becomes increasingly
withdrawn and unable to sleep.
The nature of the harm suffered is not physical but mental or psychological. The courts have
been more cautious in recognising claims in respect of psychiatric harms than they have in
relation to physical injuries.
5.2 What is psychiatric harm?
Psychiatric harm is a form of personal injury. The focus of the law has shifted away from the
way the harm is caused to the type of harm suffered.
Before the middle of the twentieth century, courts took a restrictive attitude towards liability
for nervous shock, which twisted round into 'post-traumatic stress disorder'.
Nowadays the courts maintain a clear distinction between physical and psychiatric harm, with
different rules applying to each. However, there remains a general reluctance to let go of the
common-sense perception that mental harm is less significant than physical harm.
PAGE 4
Psychiatric harm is recoverable if it is a recognised psychiatric illness, but it is not possible to
recover for mere grief, anxiety or distress.
The House of Lords rejected a claim for psychiatric harm brought on behalf of Sarah and
Victoria Hicks, holding that the police's negligence had only caused the sisters to suffer
'distress', which was not recoverable.
5.3 The general exclusionary rule
In the early 1990s, the courts developed a number of control mechanisms to restrict recovery
for negligently inflicted psychiatric harm. Some see these mechanisms as necessary to protect
defendants from crushing liability, while others suggest they represent a combination of
invidious distinctions and convoluted rules grounded in shallow theoretical foundations.
PAGE 5
Conaghan & Mansell suggest that the courts have acted without clear policy goals, and that
their reasoning has been motivated both towards and away from allowing recovery according
to the circumstances of particular cases.
The difficulties of drawing a line between acute grief and psychiatric illness, the greater
diagnostic uncertainty in relation to psychiatric claims, the potential disincentive to
rehabilitation, and the danger of an over-proliferation of claims were discussed.
The Law Commission considered arguments for limiting liability for negligently inflicted
psychiatric harm in 1998, and suggested that many apply equally well to claims for physical
injury. Moreover, fraud is just as likely in relation to physical injury as it is in relation to
psychiatric harm.
PAGE 6
5.4 ‘Primary’ and ‘secondary’ victims
When discussing claims in respect of psychiatric harm, a distinction is drawn between
'primary' and 'secondary' victims. The distinction reflects different ways that psychiatric
injuries may be suffered, including being involved in a car accident or witnessing a car
accident involving others.
Alcock was one of a number of cases arising out of the Hillsborough Stadium disaster. The
House of Lords drew a distinction between primary victims and secondary victims, and
articulated a number of limits on the availability of claims.
The primary victim category has been interpreted in differing ways since Alcock, with Lord
Oliver imagining a wide class of claimants falling within it, while Lord Lloyd appeared to
restrict it to those within the range of foreseeable physical danger.
PAGE 7
The lack of precision in defining a primary victim is problematic, and we should be wary of
extending these terms to cases they don't fit.
The House of Lords stated the relevant principles in Alcock and Frost [White] and the courts
should not seek to make any substantial development of these principles.
While it is important to understand the various uses of the 'primary' and 'secondary' victim
classifications, it is more important to be familiar with the substance of these rules rather than
to become too sidetracked by questions of classification.
5.5 Primary victims
The claimant's car was involved in a minor road traffic accident caused by the defendant's
negligence, which triggered the recurrence of his myalgic encephalomyelitis.
PAGE 8
Although initially successful, the claimant lost in the Court of Appeal, but the House of Lords
allowed his appeal. Lord Lloyd held that the claimant could recover for psychiatric harm.
If the plaintiff had been accompanied by his wife, just recovering from a depressive illness,
and she had suffered a cracked rib, followed by an onset of psychiatric illness, she would
have recovered damages, and it would not have been an answer that she had a weak heart.
As long as some form of physical injury was reasonably foreseeable, the claimant can recover
for the psychiatric harm he suffered, even if the psychiatric injury itself was not reasonably
foreseeable.
The decision in Page has been the subject of much criticism, with opinions differing over
whether Lord Lloyd intended to limit the primary victim category to those claimants who
were in physical danger.
PAGE 9
The claimant was exposed to asbestos in the course of his employment and developed pleural
plaques. He became clinically depressed because of the risk of developing a more serious
asbestos-related disease and argued that he was a primary victim.
The claimant's anxiety that he might become seriously ill was not enough to ground his
claim, and his reaction was unforeseeable. Moreover, the category of primary victim should
be confined to persons who suffer psychiatric injury caused by fear of something that might
happen in the future.
Lord Hope's reference to Lord Steyn's opinion in White and his own view that the labels
identified in Page v Smith should not be extended beyond what was in contemplation in that
case may provide an explanation for why he refined Page in this way.
PAGE 10
In clinical settings, the courts are willing to allow claims for psychiatric harm caused by
negligence, such as in Wild v Southend University Hospital NHS Foundation Trust.
It is settled law that a baby is part of its mother until birth, and that the mother is a primary
victim in so far as she suffers personal injury consequent on negligence which occurs before
the baby is born.
The Claimant had a claim for physical injury, but did not have to prove that shock was the
trigger for the psychiatric injury. She could claim for psychiatric injury that had been caused
by more gradual assaults on the nervous system.
PAGE 11
5.6 Secondary victims
A secondary victim suffers psychiatric injury as a result of witnessing someone else being
harmed or endangered. The injury must be reasonably foreseeable in a person of 'ordinary
fortitude' in the same circumstances.
The House of Lords rejected a claim that a pregnant woman suffered serious psychiatric harm
after witnessing a serious motorbike accident, on the grounds that her injuries were not
foreseeable. However, once some psychiatric harm is foreseeable, the defendant will be liable
in full.
The notion of 'ordinary phlegm' or fortitude has been argued to incorporate evaluative
judgements and gender bias, and perpetuate the false assumption that there is a reasonable
response to a tragic event. Do you agree?
PAGE 12
The claimant suffered psychiatric harm after witnessing the immediate aftermath of a serious
car accident, which killed her daughter and injured her husband and three other children.
The House of Lords allowed the claim on the basis that she had come upon 'the immediate
aftermath' of the accident, but was not in full agreement as to why she should be able to
recover.
McLoughlin was viewed as a borderline case, but encapsulated the judicial understanding of
the time. However, the mood within tort law shifted towards a more restrictive approach to
the duty of care after the Hillsborough Stadium disaster.
The tragedy that claimed the lives of 96 Liverpool football fans at the FA Cup semi-final
match against Nottingham Forest took place at approximately 2.30pm. More than 2,000
Liverpool supporters were building up against the turnstiles to the Leppings Lane entrance.
PAGE 13
The crowd had swelled to over 5,000 people by 2.45pm, making entry to turnstiles virtually
impossible. A police officer opened Gate C, but things quickly got out of control and fans
piled into the back of pens 3 and 4, crushing those at the front.
At 2.54pm, fans pushed forward for a better view of the game, unaware that people were
dying in the front. Six minutes into the game, a policeman ordered the referee to stop the
game, and by 4.50pm, the ground was empty.
PAGE 14
Ninety-six people were crushed to death and over 400 people were injured at Hillsborough
Stadium. The court's response was to abandon its aspiration to provide a comprehensive
system of corrective justice.
Alcock was a test case involving friends and families of the victims of the disaster at
Hillsborough Stadium. The claimants argued that they were secondary victims because they
had seen and feared what had happened to their loved one.
The Chief Constable of South Yorkshire Police admitted negligence in respect of those who
were killed or injured at Hillsborough, but argued that he did not owe a duty of care.
Despite limited success at first instance, both the Court of Appeal and House of Lords
rejected the claims, stating that the claimants were not in a relationship of sufficient
proximity to the tortfeasor to give rise to a duty of care.
PAGE 15
The law lords wanted to establish a close tie of love and affection between the claimant and
the accident victim.
The court held that a close relationship between spouses, parents and children will be
presumed, but siblings and other relatives must bring evidence to prove such ties existed.
Thus, Brian Harrison was unable to recover.
At present, claims can be turned on the requirement of 'close ties and affection', which is
guaranteed to produce outrage. In future cases, relatives will have to prove their especial love
for the deceased in order to win money damages.
PAGE 16
The family relationships of the claimants in Alcock are not the only ones which may exhibit
close ties of love and affection. Work colleagues, teacher and student and close friends can
also fall within this category, but this is not always straightforward.
The House of Lords did not rule out the possibility of a mere bystander recovering if the
circumstances were 'particularly horrific', but the Court of Appeal rejected this argument,
stating that it was impossible to establish a hierarchy of horrific events.
PAGE 17
Taylor v A Novo (UK) Ltd [2013] held that proximity was established by proving that the
claimant's mother's death was a relevant event, even though the claimant was not present at
the original accident or its immediate aftermath.
Lord Dyson held that the claimant could not recover damages for psychiatric illness if she
had been in physical proximity to her mother at the time of the accident and had suffered
shock and psychiatric illness as a result of seeing the accident and the injuries sustained by
her mother.
In Galli-Atkinson v Seghal [2003], the court allowed a mother's claim for psychiatric harm
following the death of her daughter in a road traffic accident. However, in Berisha v Stone
Superstore Ltd [2014], the court adopted a more restrictive approach, striking out the
claimant's claim.
PAGE 18
The fact that the next of kin was summoned to hospital and saw an unconscious loved one
and took the decision to withdraw life support have never been found to confer secondary
victim status on the claimant in an accident case.
In Liverpool Women's Hospital NHS Foundation Trust v Ronayne, the Court of Appeal
confirmed that secondary victims must comply with strict control mechanisms.
5.6.3 The means by which the ‘shock’ is caused
A father was unable to recover for psychiatric harm sustained as a result of watching his son
die over a period of 14 days while becoming increasingly aware that the hospital was
negligent in its treatment of him.
The Law Commission criticised the requirement that psychiatric harm must come through the
sight or hearing of the event or its immediate aftermath, but judges have on occasion tried to
eschew its more restrictive effects.
In Wild v Southend Hospital NHS Trust [2014], the judge dismissed the claim because the
witnessing of the consequences of the defendant's negligence did not equate to witnessing a
horrific 'event'.
PAGE 19
The claimant experienced growing and acute anxiety which developed to the point at which
he had a correct realisation that the baby had died. However, the facts in Walters are
materially different and the control mechanisms often have the effect of excluding such cases.
Alcock's control mechanisms create a distinction between different classes of claimant, which
creates an understandable sense of grievance. It also imports a gender bias, as fathers would
never be able to recover in still-birth cases whatever the facts may show.
PAGE 20
Although cases similar to the one before me might never be able to succeed, the subject of
nervous shock cases has already been comprehensively travelled over by the higher courts.
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] CA
The claimant suffered psychiatric injury as a result of seeing his wife connected to various
machines and her rapid deterioration over the course of 36 hours. The Court of Appeal
rejected his claim, holding that there was no 'shock'.
The claimant knew that his wife's post-operative condition was part of a continuum, and that
the story had many weeks and months to run.
PAGE 21
In order to found liability, the appearance of Mrs Ronayne on this occasion must be
exceptional in nature. However, the appearance was not horrifying in the sense in which the
word has been used in the authorities.
The Court of Appeal decided that a person can sue the NHS for negligence if they develop a
psychiatric disorder after witnessing their loved ones in a hospital setting following treatment
for clinical negligence. However, the Supreme Court may decide to remove this requirement.
Following Ronayne, it is particularly difficult for secondary victims to recover in clinical
contexts. However, in RE (A minor by her mother and Litigation Friend LE) and others v
Calderdale & Huddersfield NHS Foundation Trust [2017], a grandmother was able to recover
as a secondary victim.
PAGE 22
She was present throughout the birth and witnessed the aftermath. She has suffered PTSD as
a result of observing the events of RE's birth.
RE is the first case in a number of years where a secondary victim has succeeded in claiming
compensation. However, the judge's characterisation of the birth as a 'shocking event' may
make it harder for pregnant women generally to exercise their autonomy.
One difficulty with this case arises in relation to the finding that the birth was a shocking
event. This characterises childbirth as dangerous and abnormal, and has potentially dangerous
consequences in the way that we view childbirth.
The NHS paid out more than £1.63 billion in damages to claimants in 2017/18. The decision
to allow claims for psychiatric injury of friends and family of the patient may not be a helpful
or reasonable thing to do.
PAGE 23
Mr Paul collapsed and died while on a shopping trip with his two daughters. The claimants
claimed that his death was the first manifestation of the defendant's breach of duty, but the
Master struck out their claims.
The scene of the tort is the scene where the damage first occurred. In this case, the damage
was caused by Mr Paul's collapse from a heart attack.
The event that caused Mr Paul's death was a sudden event, external to the secondary victims,
and it would have been horrifying to any close family member who witnessed it. The
negligence of the primary victim did not preclude liability.
PAGE 24
Chamberlain J dismissed arguments that this decision would open the floodgates to future
claims, and maintained that stringent limits remain in relation to claims by secondary victims.
Although the television pictures gave rise to anxiety and distress, the shocks sustained by
reason of the broadcasts cannot be found a claim.
Lord Ackner left open the possibility that watching a live broadcast could exceptionally
ground a claim if the victims had died.
Alcock remains the single most important English authority on liability for nervous shock,
but it has been the subject of trenchant criticism, with the Law Commission recognizing that
the restrictions have been almost universally criticized as arbitrary and unfair.
Donal Nolan suggests that the Alcock control mechanisms have been used in a way that was
unintended by the House of Lords. Thus, Alcock is a 'misunderstood decision', as well as a
landmark case in tort.
PAGE 25
The traditional distinction between primary and secondary victims is not applicable to
psychiatric injury.
In the context of accidents caused by the defendant's careless acts or omissions, the
distinction between primary and secondary victims was first drawn. However, psychiatric
harms can be suffered in other ways, and in some cases, the claimants fall outside the
classification of primary and secondary victims.
PAGE 26
The primary - secondary victim distinction has proved problematic in relation to rescuers, as
they are not simply witnesses but participants. However, the courts have favoured a narrower
conception of primary victim, as set out by Lord Lloyd in Page.
Traditionally, the courts treated rescuers favourably, and held that defendants owed a duty of
care not just to those they initially endanger by their actions, but also to those who intervene
to rescue them.
In 1967, a widow of a window cleaner was able to recover for the psychiatric harm suffered
by her husband as a result of his particularly harrowing and gruesome experience giving help
and relief to victims of a severe rail crash. However, this simple proposition no longer stands.
PAGE 27
Police officers who had been on duty the day of the Hillsborough Stadium disaster suffered
psychiatric illness as a result of their participation in the events.
The claimants could not satisfy the conditions set out in Alcock or Page, and instead argued
that they were either rescuers or employees and were therefore not secondary victims.
The House of Lords held that rescuers were not placed in any special position in relation to
recovery for psychiatric harm, because they were not in actual physical danger.
The majority held that the claimants could not recover on the basis that the defendant owed
them a duty of care because they were his employees, and that their claims failed because
they were not exposed to any risk of physical harm and could not satisfy the Alcock criteria.
Lord Goff found it inconsistent to make foreseeability of physical injury a necessary
condition of liability for psychiatric harm, and Lord Griffiths rejected the distinction between
physical and psychiatric injury.
PAGE 28
In the Court of Appeal, all but one of the police officers' claims had been successful on the
basis that they were rescuers and/or employees. This decision was highly criticised.
The law in this area was in a 'genuine doctrinal muddle' by the time the police officers' case
reached the House of Lords. The courts' usual inclination to protect rescuers was trumped by
their lordships' inclination to limit recovery for pure psychiatric harm.
There is no logical reason why rescuers should be given special treatment for psychiatric
injury when they were not within the range of foreseeable physical injury. Such an extension
would be unacceptable to the ordinary person.
PAGE 29
The majority considered that the rescuer was in physical danger when he sought to extract the
victims from the wreckage of the train.
Lord Hoffmann frames the decision in White as an either/or choice between the police
officers and the families and friends of Alcock. He abandons corrective justice in favour of
cautious pragmatism.
Lord Goff criticises the majority's opinion in White for its 'constrained' and 'doctrinally
flawed' character, and argues that the requirement of fear of physical injury in such cases is
both capricious and misplaced.
PAGE 30
If there was a terrible train crash, and Mr A Chadwick worked on the front half of the train,
but Mr B Chadwick worked on the rear half, Mr A would recover from PTSD, but Mr B
would not.
The claimant suffered psychiatric illness after his employer's negligence caused a load to fall
into a ship's hold, injuring or killing some of his fellow workmen.
Lord Oliver held that Dooley had been correctly decided in Alcock, but some recent cases
have sidestepped the requirement of physical imperilment, preferring the view that a primary
victim arose out of his role as a 'participant' in the accident. In Monk v PC Harrington Ltd
[2008], the court held that though the primary victim category extended to 'unwilling
participants', there was no reasonable basis for the claimant's belief that he was responsible
for his co-worker's death.
PAGE 31
In Alcock, the House of Lords held that a third party cannot be held liable for psychiatric
injury suffered by a secondary victim who did not witness the accident. However, could the
claimant sue the communicator of the news?
The courts may not recognise a duty of care in such cases, as the public interest in the
dissemination of information might well be taken to preclude liability for the negligent
communication of distressing news.
In Farrell v Avon Health Authority (2001) the court held that a duty of care was owed to a
father who was negligently told that his son had died, even though the teller had intended to
shock or harm the claimant.
PAGE 32
A person should be free to choose to incur personal risks without exposing themselves to
liability to others, and a mother should be able to bring a claim against her son for psychiatric
harm caused by witnessing his imperilment.
A father brought a claim against his son for psychiatric injuries after witnessing the aftermath
of his negligent driving. The claim was denied on the grounds that the injuries were self-
inflicted and it was against public policy to hold him liable.
5.7.5 The ‘assumption of responsibility’ cases
A claimant will be able to establish a duty of care when a defendant assumes responsibility
for the claimant's health and safety. This includes when a defendant places a vulnerable
prisoner in a cell with a suicidal prisoner.
Occupational stress claims involve psychiatric injury arising from unreasonable direct
pressure or stress an employee feels as an employee.
PAGE 33
The law on the extent of an employer's duty of care to protect employee mental health has
developed over time.
The employer was in breach of duty in respect of the second breakdown, even though the first
breakdown was unforeseeable.
The approach in Walker seems at odds with the decision in White, where the police officers'
injuries stemmed from witnessing the death and injury of others.
Paula Case argues that the House of Lords in White drew an 'absurd' distinction between
employees' claims for psychiatric injury caused by 'occupational stress' and those arising out
of a single traumatic incident.
PAGE 34
The Court of Appeal confirmed the duty owed by employers to protect employees from
psychiatric injury caused by stress at work, and the House of Lords approved the guidance set
out by Hale LJ in Hatton v Sutherland.
The foreseeability hurdles in Hatton appear to be set at a level that insulates the employer
from liability in the typical case of stress.
5.8 Conclusion
The law in relation to recovery for negligently inflicted psychiatric injury has been shaped by
prejudice and tragedy, with the introduction of control mechanisms limiting recovery.
Chapter 10: defences to negligence

10.1 Introduction
In all of these scenarios, even if the other elements of a claim in negligence have been met,
the defendant may be able to raise a defence. This may work to defeat the claim entirely or
merely reduce the amount of damages payable.
This chapter considers three key defences in the tort of negligence: voluntarily assuming the
risk, contributory negligence and illegality.
PAGE 3
The defence of volenti requires different types of knowledge depending on whether the
claimant consents to the specific factual harm caused or the risk run, whereas the defence of
consent to exclude liability can be made out even where the claimant has no idea they are in a
dangerous situation.
PAGE 4
The claimant's husband was fatally injured while watching a motor race. The court held that
the first version of the defence could not succeed because the victim did not have full
knowledge of the factual risks he was running.
The court held that the defendants' warnings were sufficient to exclude any duty of care, and
therefore they did not need the shield of the doctrine of volenti.
10.2.1 Establishing the defence
In order for a defence to be established, the defendant must show that the claimant either
agreed to, or voluntarily took the risk of, the harm that materialised.
PAGE 5
Dann v Hamilton [1939] KBD
The claimant was injured in a car accident, and the court held that though she knew the
defendant had been drinking and that this would materially reduce his ability to drive safely,
she had not consented to or absolved him from liability for any negligence on his part that
might cause her harm.
The application of volenti to passengers in road traffic accidents is now excluded by section
149 of the Road Traffic Act 1988. It is less clear what exactly this requires, but some cases
appear to be less demanding.
Morris v Murray [1991] CA
The Court of Appeal held that Morris had voluntarily assumed the risk of injury when he
drove to the airfield and helped prepare the plane for take-off, knowing that Murray was so
drunk that he was very likely to be negligent.
PAGE 6
The courts are increasingly emphasizing self-reliance and personal responsibility, but should
those who are injured when acting irresponsibly without any legal claim? A better response
would be to use the partial defence of contributory negligence.
Morris shares a number of parallels with Dann, in that both cases involved a drunk driver and
a badly injured passenger. In Dann the claim succeeded, while in Morris the defence of
volenti was made out.
Morris brings out the difficulty in identifying what is meant by consent. The claimant knew
that he was taking a great risk, but did willingly engage in a course of conduct which might
lead to injury.
PAGE 7
Counterpoint
In order to establish a defence based on the claimant's voluntary assumption of the risk, the
claimant needs to have done more than simply put themselves in a dangerous situation.
This seems straightforward enough, but it becomes less clear if we compare these examples
with Morris. In Morris, the claimant knowingly and willingly engaged in an inherently
dangerous activity, and was then injured.
The likelihood of the risk eventuating is greater in Morris than in the cases of being run over
crossing the road or being attacked late at night. But should this be enough to defeat the
claim?
A claimant may consent to some harms or risks and not others. If the defendant had a long-
term grudge against the claimant, Morris's consent to the negligent consequences would not
have provided a defence.
Volenti, then, only goes so far. In the context of sporting events, the potential claimant
voluntarily assumes the risks inherent in the relevant sport, but not serious injuries or risks
which are not part and parcel of the game.
PAGE 8
10.3 Illegality
The illegality defence denies recovery to certain claimants injured while committing unlawful
activities. It is typically seen to invoke a special rule of public policy, but the public notions
of fairness can be a tricky thing to predict.
Gray v Thames Trains [2009] HL
The claimant developed PTSD after the Ladbroke Grove rail crash, which killed 31 people
and injured over 500 others. Two years later, he stabbed and killed a pedestrian in a road-rage
incident, and was convicted of manslaughter.
PAGE 9
The tortfeasor benefits from criminality which he himself has contributed to bringing about,
but the claimant cannot ignore this.
Do you agree that ex turpi causa would apply if the claimant had been found to be legally
irresponsible by reason of insanity?
The defence of illegality does not mean that one can never recover in tort for injuries suffered
against a backdrop of criminality. If the illegal act of the claimant is trivial or simply forms
the background to the defendant's tort, then it will not bar the claim.
PAGE 10
The Court of Appeal allowed the claimant's appeal in Delaney v Pickett, where the defendant
negligently lost control of the car he was driving, even though the parties were engaged in an
unlawful enterprise.
The claimant was not injured by the defendant's criminal activity, but by the negligent way in
which he drove his motor car. In those circumstances the illegal acts are incidental, and the
claimant is entitled to recover his loss.
In Hounga v Allen (2014), the Supreme Court held that a claimant's illegality did not defeat a
claim for harassment and discrimination, as there was not a sufficiently close connection
between the illegality and the tort to bar the claim.
To uphold Mrs Allen's defence of illegality runs counter to public policy, which is against
trafficking and in favour of the protection of its victims.
The approach adopted here involves weighing up all the relevant policy arguments and
determining whether allowing the claim would run counter to public policy. Some policies
are stronger than others, and there may be policies which count against applying the illegality
defence.
PAGE 11
Pause for reflection
The range of factors approach adopted in Hounga enables the court to address the various
policy arguments for and against applying the defence, but makes the application of the
defence significantly uncertain. The law rightly strives for certainty, but there are times when
the law can do justice only at the cost of some uncertainty. The best way to avoid uncertainty
is not to break the law in the first place.
Some judges prefer a less flexible and hence more predictable rule, while others prefer a
range of factors approach. The Supreme Court had to settle the correct approach to the
illegality defence once more in Patel v Mirza.
PAGE 12
Patel v Mirza [2016] SC
The claimant paid the defendant money to use inside information to bet on shares, but the
defendant did not obtain the information he needed to put the plan into action and the
claimant sought the return of his money.
A panel of nine Supreme Court Justices heard the appeal. The court rejected the narrow
reliance rule and endorsed a variant of the range of factors approach.
The illegality doctrine requires a court to consider whether it would be contrary to the public
interest to enforce a claim if to do so would be harmful to the integrity of the legal system.
Lord Toulson acknowledged the concerns that this sort of approach could create uncertainty,
but pointed out that the alternative rule-based approach did not provide significantly greater
certainty.
PAGE 13
Pause for reflection
The court in Patel held that the illegality defence should be applied the same way whether the
claimant is looking to enforce a contract, recover compensation for a tort, claim an item of
property or seeking restitution of an unjust enrichment.
Lord Toulson's approach may well end up operating differently in various types of case, but
in McHugh v Okai-Koi [2017] it appeared to be common ground that Patel should apply in a
personal injury tort claim.
The Supreme Court's decision in Patel will likely mark a decisive commitment to the range of
factors approach, ending the back and forth the courts have been engaged in over the correct
approach to adopt.
Though Patel marks a clean break from the disagreements which have plagued the illegality
defence in recent years, the majority of courts did not think that they had been coming to the
wrong decisions.
In 2020, the Supreme Court considered the illegality defence for the second time, in
Henderson v Dorset Healthcare University NHS Trust Foundation. The court unanimously
agreed that Gray remained good law, and that the application of the illegality defence was
justified on two public policy considerations. Lord Hamblen held that the decision in Gray
should be affirmed as being "Patel compliant" and that the public policy based rules set out in
Gray should be applied and followed in comparable cases.
PAGE 14
Pause for reflection
In Les Laboratoires Servier v Apotex Inc [2015], Lord Sumption stated that a criminal act
will engage the defence, but there may be exceptional cases where a criminal act will not
constitute turpitude.
Lord Hamblen was clear that manslaughter by reason of diminished responsibility does not
fall within an exception, but the possibility of such a category exists.
PAGE 15
10.4 Contributory negligence
Contributory negligence is a defence that reduces the amount of damages a defendant must
pay when a claimant has failed to take reasonable steps for their own safety.
In a typical accident case, the victim suffers damage partly as a result of his own fault and
partly as a result of the fault of the defendant.
Law Reform (Contributory Negligence) Act 1945
If a person suffers damage partly because of their own fault and partly because of the fault of
another person, their claim may be reduced.
PAGE 16
Jones v Livox Quarries Ltd [1952] CA
A claimant was riding on the back of a slow-moving tracked vehicle at work when a dumper
truck crashed into it, seriously injuring the claimant.
Pause for reflection
To find a defendant guilty of negligence shifts the loss away from the claimant, while a
finding of contributory negligence leaves part or all of the loss on the claimant.
PAGE 17
A very young child cannot be guilty of contributory negligence, but an older child might be.
A judge should only find a child guilty if blame should be attached to him or her.
In some cases, the claimant has been found to have failed to exercise reasonable care for their
own safety, such as pulling out from a side road in front of a police car or jumping off an
indoor climbing wall.
Even where the claimant's carelessness was a 'but for' cause of their own injuries, the defence
will not be available if the injuries arose from a risk or danger of which they were not aware.
PAGE 18
In St George v Home Office [2008], the claimant who suffered severe brain damage after
falling from a top bunk as a result of an epileptic seizure brought on by drug and alcohol
withdrawal, was not found to be contributorily negligent.
A person's fault for walking into the path of a car while in a drug-induced state of
intoxication is a potent cause of the injury they sustain.
If both parties are equally to blame, the damages will be reduced by 50 per cent; if the
defendant is twice as blameworthy as the claimant, the damages will be reduced by 33 per
cent, and so on.
PAGE 19
Froom v Butcher [1976] CA
The claimant suffered head and chest injuries and a broken finger when his car was
negligently hit by the defendant. He was contributorily negligent and his damages were
reduced by 20 per cent.
The Court of Appeal laid down guidelines in relation to the appropriate reduction in damages
for failing to wear a seat belt.
The Law Reform (Contributory Negligence) Act 1945 permits an approach such as adopted
in Froom v Butcher, which states that the injury would not have been reduced 'to a
considerable extent' by the seat belt.
PAGE 20
Pause for reflection
The Court of Appeal found the claimant contributorily negligent in Froom v Butcher, and
relied on the deterrent effects of tort law to fill the 'legislative gap'. It remains to be seen
whether the High Court's decision in Smith v Finch will have a similar effect in relation to
cycle helmets.
Jackson v Murray [2015] SC
The claimant, a 13-year-old girl, suffered severe, life-changing injuries after being hit by a
car. However, the Lord Ordinary found that she was contributorily negligent and her damages
were reduced by 90 per cent.
PAGE 21
There were two central questions in Jackson: how should responsibility be apportioned? And
what principles should govern the review of an apportionment by an appellate court?
A pedestrian has to look to both sides as well as forwards, and the motorist has to observe
over a wide angle ahead. If the motorist relaxes his observation, the consequences may be
disastrous.
In 1998, a 10-year-old girl was found to be 20 per cent responsible for her injuries after being
hit by a car. The driver was travelling at an appropriate speed but had failed to notice her.
PAGE 22
The defender was driving home in the opposite direction when he saw a school bus on the
other carriageway. He did not slow down and regarded the risk of children running out
unexpectedly as irrelevant. The defender was unaware of her presence until the moment of
impact, because he was not keeping a look-out for the possibility of someone emerging from
behind the bus.
The claimant failed to take reasonable care for her own safety, but she was only 13 at the
time and had to take into account the circumstances of the accident, including the fact that the
defender's car was approaching at speed, in very poor light conditions, with its headlights on.
The Supreme Court found that the claimant was between 90 and 50 per cent responsible for
her injuries. Do you think they reached the right decision?
PAGE 23
A 13-year-old boy suffered catastrophic injuries when he was hit by a car which was being
driven at over twice the 20 mph speed limit.
A reasonable 13 year old with the claimant's experience would have waited for the Ford
Focus to pass before crossing the road, and even if they did set off, they would have kept the
Ford Focus under observation. The court imposed a high burden on the first defendant to
reflect the fact that a car is potentially a dangerous weapon, and the causative potency of all
these factors weigh heavily against the first defendant. The just and equitable reduction in all
the circumstances is 10%.
10.5 Conclusion
Even if all the elements of a claim in negligence have been met, the defendant may still be
able to limit their liability in whole or in part by raising a defence. These defences include
voluntary assumption of risk, illegality and contributory negligence.

Revisiting loss of chance in medical negligence: employing public policy

positively as justification
Chen Meng Lam

PAGE 1
*P.N. 105 Introduction
A patient with cancer that was asymptomatic in the early stages of the disease but presented
later stage symptoms to a doctor for diagnosis, and died, may have a cause of action against
the doctor for diminution of the chance of survival caused by the doctor's negligence.
PAGE 2
The loss of chance doctrine has been intensely debated in the medical negligence context.
This article attempts to fill in the gap by critically analysing the policy arguments relating to
loss of chance.
Section II of this article discusses the background and the development of the loss of chance
doctrine before examining the relevant case law in various jurisdictions including England,
Australia, the United States and Singapore.
Section III discusses the application of policy to the loss of chance doctrine in medical
negligence, and concludes that the decision to recognise the loss of chance doctrine can rest
on policy considerations.
PAGE 3
Overview of the loss of chance doctrine
The loss of chance doctrine comes into play in failure to diagnose and/or treat cases. The
patient can recover damages for the extent to which the doctor's negligence diminished the
patient's chance of survival or obtaining a better medical outcome.
A. Development of the doctrine of loss of chance
In a medical negligence claim, the patient must establish that if not for the doctor's
negligence, he would not have suffered the ultimate physical harm. If the patient's chance of
survival before the doctor's negligence was less than even, the patient recovers nothing.
The loss of chance doctrine allows patients to recover damages for the diminution in their
chance of survival as a result of a doctor's negligence, even if they have a less than even
chance of survival at the time of negligence. The loss of chance doctrine has created
significant challenges for courts, academics, and legal practitioners across jurisdictions. In
England and Australia, courts have largely rejected the loss of chance doctrine, but in the
United States, the majority of jurisdictions now accept and apply the loss of chance doctrine.
PAGE 4
*P.N. 108 (i) England
In Gregg v Scott, the House of Lords rejected loss of chance as a form of actionable damage
in tort, and reasoned that there were insufficient control mechanisms to prevent floodgates.
Two key concerns have emerged from Gregg. First, the reliability of the statistics should have
been considered, and second, the expert witness's expertise was medical rather than statistical
or epidemiological, and hence, the reliability of the statistical evidence was questionable.
PAGE 5
The second concern in Gregg was the lack of personalisation of the evidence. While
Professor Goldstone had attempted to personalise the statistics to the claimant's post-tort
chances, there was no corresponding attempt to personalise the statistics in relation to his pre-
tort chance of survival.
In Gregg, the claimant's personalised post-tort prospects fluctuated significantly as his actual
response to treatment became known, but his subsequent clinical progress was of critical
significance in assessing his personalised prospects. The Lords' decision in 2005 superseded
the 25% estimate of his chance of survival. Lord Phillips rejected the loss of the chance
doctrine in Gregg, but other academic commentators take a different view. The claimant's
condition at the time of the trial should not affect the issue of liability, because what was
harmed was the chance itself.
Although medical understanding of the causes of cancer is incomplete, a range of risk factors
are known, and taking into account the characteristics of the patient may help to raise the
belief probability to a sufficient level for a court to accept that causation is established.
PAGE 6
(ii) Australia
The High Court of Australia rejected the loss of chance doctrine in Tabet v Gett, overruling
the earlier pro-loss of chance decision in Rufo v Hosking. The court argued that the
recognition of lost chances as actionable damage would seem inconsistent with the Civil
Liability Act 2002.
Although Tabet appears to be an outright rejection of the loss of chance doctrine in Australia,
a careful review of the judgment reveals that there remains a possibility that the loss of
chance doctrine might be allowed in some form in future.
PAGE 7
Kiefel J raised the possibility that lost chances can be recognised as actionable damage where
there is an accompanying increased risk of injury.
The loss of chance doctrine may be recognized in medical negligence cases where there is an
increased risk of injury resulting from the doctor's negligence, or where the claimant suffered
a diminution in life expectancy.
(iii) United States
In Oregon, the loss of chance doctrine was applied in a medical negligence claim, and the
court relied on two broad types of factors to support its decision. These factors were the close
doctor-patient relationship and the doctor's greater capacity to prevent harm than patients.
PAGE 8
The Massachusetts Supreme Court in Matsuyama referred to an evidence-based factor, the
scientific evidence available in the medical context, and concluded that medical statistics are
able to provide valuable and reasonably accurate guidance to a court in cases where a claim
pertains largely to the statistical evidence of a diminution of chance of survival.
The Massachusetts Supreme Court in Matsuyama reiterated that the loss of chance doctrine is
not a theory of causation, but a theory of injury, and that the patient still has to prove that the
doctor's negligence caused the loss of chance.
States that have rejected the loss of chance doctrine have failed to take into account that the
doctor-patient relationship is based on giving the patient a chance of a cure.
(iv) Singapore
The Singapore Court of Appeal has yet to reject the loss of chance doctrine, but has left open
the issue of loss of chance in medical negligence cases.
PAGE 9
In Armstrong, Carol Ann v Quest Laboratories Pte Ltd, the Singapore Court of Appeal
overturned the High Court's finding that a pathologist's negligence had caused the deceased to
"lose a fighting chance", and held that the damages should be calculated on the basis of the
deceased's full life expectancy.
The High Court could not decide whether the defendants' negligent diagnosis and consequent
delay in treatment was an effective cause of Mr Traynor's death because of the uncertainty of
medical science.
The High Court held that the defendants' negligence caused Mr Traynor to lose four years of
his life, despite the medical uncertainty in the evidence.
PAGE 10
The Singapore Court of Appeal disagreed with the High Court's approach on causation,
holding that the claimant had proven causation on a balance of probabilities, and that
statistical evidence does not automatically mean that the test for causation is satisfied.
To form a rational belief as to whether the claimant's disease could have been successfully
treated, it is essential to personalise the statistical estimates to the individual as far as
possible. In Armstrong, the Court of Appeal had made some attempt to personalise the
evidence to the claimant's pre-tort chances. The Court of Appeal found that the defendants'
negligence in diagnosis had caused Mr Traynor's melanoma to spread through his
bloodstream from his infected lymph nodes, and that he would have been cured of his
melanoma if the defendants had removed his lymph nodes.
PAGE 11
In Armstrong, the Court of Appeal was cautious of the use of epidemiological studies, and
noted that they are concerned with large groups and populations rather than individuals.
Epidemiological evidence cannot prove causation in an individual case, and is often equated
with statistical evidence.
McIvor has highlighted the need for greater focus in the use of epidemiological evidence in
medical negligence scenarios, and suggested that a pre-trial admissibility test for scientific
evidence would help foster greater confidence in the legal use of epidemiological evidence.
Framework for analysing the application of policy considerations in loss of chance claims
This section critically analyses the policy arguments relating to loss of chance and examines
how these arguments can be used to justify a new independent harm in loss of chance cases.
PAGE 12
The loss of chance approach should only apply in evidentiary gap cases where there is a lack
of understanding of the causal process and the medical evidence can only furnish statistical
assessments of risk. In these cases, the problem will simply be one of proof in the individual
case. Hotson is not a loss of chance case because there was no chance involved at all, and the
injury caused by the delay in treatment still lay in the future.
A loss of chance claim should be recognised if all the following criteria are met: the claim
involves medical negligence, the uncertainty in the outcome was created by the defendant's
negligent conduct, and the likelihood of survival was substantially reduced. The actual state
of the claimant's condition at the time of trial should be taken into account when calculating
the amount of damages, and epidemiological studies should be encouraged in forming a
rational belief as to whether the illness could have been successfully treated.
PAGE 13
As society becomes more complex and laws cannot adapt to the new circumstances, policy
considerations become determinative in determining what is or is not the subject of liability.
Despite judicial statements that policy considerations should not form part of judicial
deliberations in negligence cases, it appears that public policy is widely utilised by judges in
their judicial decision-making. In this sense, policy considerations may be seen as a tool or
device by which the law may keep itself relevant to modern times.
*P.N. 119 B. Role of public policy in judicial decision-making
The reliance on policy considerations in judicial decision-making has been a controversial
topic. Courts should justify their taking into account the effect of policy on their decision-
making processes when adjudicating a dispute between private parties, and this depends on
the legal context of the case before the court.
PAGE 14
The Singapore High Court explained that public policy consists of legal policy and socio-
economic policy. When deciding a case involving judge-made law, the court may rest its
decision on public policy, subject to precedent, established principles, and analogical
reasoning of the common law.
The court should be cautious when resting its decision on public policy, because judges have
no special expertise in socio-economic matters, and the bipolar nature of legal proceedings
may inhibit the effectiveness of the courtroom as a forum for pursuing community interests.
The Singapore Court of Appeal, in ACB v Thomson Medical, was persuaded by policy
arguments to deny upkeep costs and to recognise loss of genetic affinity as an independent
actionable interest in its own right.
PAGE 15
In a medical negligence case, the UKM approach applies, and the court may use public policy
to justify the existence and scope of a claimed right, subject to the constraints of precedent,
established principles, and analogical reasoning of the common law.
UKM is significant in that the Singapore High Court reiterated that factoring in policy
considerations in judicial decision-making is permissible and indeed, imperative, if the court
is to perform well the law-making responsibility with which it has been entrusted.
The author embraces the view that recognizing loss of chance as actionable damage ensures
that the fundamental aims and principles of our tort law remain fully applicable to the modern
world.
Society attaches value to life, and the loss of chance doctrine reflects that value. Setbacks to
fundamental interests in life or bodily integrity can give rise to a cognisable injury.
PAGE 16
Chance has value. When a claimant cannot prove traditional damage, the loss of chance
doctrine should be applied, and the destruction of this chance ought to be regarded as damage
giving rise to an independent cognisable tort. Although the loss of chance of a medical cure is
not something of value that is tradeable or transferable in the market, it can be argued that
individuals attach value to it because many people would give money for the chance of a
better recovery.
The argument that loss of chance has value is strengthened by the notion that doctors
undertake not to guarantee a cure, but to give their patients the chance of a cure. If the
doctor's negligence puts the patient on a different course of action, the loss of chance should
be recognised as an actionable damage.
PAGE 17
Reece and Perry object that the loss of a chance has value in cases where the harm-producing
events involved are deterministic. However, the distinction between deterministic and
potentially indeterministic events does not provide the basis for a useful limiting principle for
the scope of the loss of chance doctrine.
Nils Jansen argues that people value chances to avoid harm regardless of whether the events
are deterministic or indeterministic, and that their destruction is a thing of value that merits
compensation.
(ii) Closeness of doctor-patient relationship
The Massachusetts Supreme Court emphasised the close doctor-patient relationship and the
doctor's duty of care to maximise a patient's chance of a successful outcome. This makes it all
the more important that patients' rights arising out of the close doctor-patient relationship be
protected.
PAGE 18
Patients trust doctors because they are unable to improve their chances of a good medical
outcome. The same may be said of other professionals, such as lawyers, and the close doctor-
patient relationship may mean that it should be extended to other professions.
The Matsuyama court justified its decision to confine the doctrine to actions for medical
malpractice by maintaining that statistics in the treatment of different cancers at different
stages were much more robust than in other areas.
In England, loss of chance claims have been allowed in recovery cases against solicitors, but
not medical negligence cases. This distinction does not seem satisfactory, because it begs the
question why not also be an exception for medical practitioners? Medical negligence victims
should be given a fair treatment in deserving loss of chance claims, because doctors are better
equipped to prevent harm than patients, and the cost of uncertainty in a medical negligence
case should be borne by the negligent doctor rather than the innocent patient.
PAGE 19
The court ruled that a person cannot be denied recovery because they were unable to prove
that they would have achieved a more favourable outcome.
The civil standard of proof does not require absolute certainty, but where the doctor's
negligence has made it impossible for the patient to prove how he would have fared in the
absence of any negligence, the doctor should not be able to avoid liability on the grounds of
uncertainty.
The evidential damage doctrine holds that the party who created the uncertainty should bear
the cost of uncertainty in a medical negligence case. This would promote social utility and
deter prospective wrongdoers from inflicting evidential damage.
PAGE 20
*P.N. 126 (iv) Deterrence
The loss of chance doctrine can be justified on the basis of deterrence. The current "all or
nothing" rule fails to provide the proper incentives to ensure medical negligence. Under the
loss of chance doctrine, a negligent doctor who created a 51% risk of causing claimant's harm
will pay 100% of the patient's damages. This would result in over-deterrence, while under-
deterrence would result in under-development of medical institutions and resources to
prevent medical negligence.
The traditional "all or nothing" rule betrays tort fundamentals by allowing medical
practitioners to be careless in any case where the chance of a better outcome is less than 50%.
This has a potent deterrent effect in the medical context.
Critics have argued that the loss of chance doctrine creates an unfavourable situation where
medical professionals are turned into insurers for patients who do not recover from their
illness. However, a proper boundary must be set for the right to claim a lost chance.
PAGE 21
Courts should adopt an appropriate mode of calculating damages for loss of a chance, one
which emphasises sending out a message of deterrence, rather than extorting doctors.
Quantification of damages may serve as an appropriate control mechanism.
It is proposed to require a substantial reduction in the likelihood of survival relative to the
pre-existing likelihood of survival in a loss of chance claim, and to require a substantial prior
likelihood the patient would have recovered.
To counteract over-deterrence, the loss of chance doctrine should be extended to cases where
the lost chance exceeded 50%. Currently, most courts only apply the loss of chance doctrine
in situations where the patient had less than a 50% chance of recovery or survival absent
negligence. At a 50% chance of survival, damages are evaluated as if the negligence was the
certain cause of death, and the claimant should be awarded compensation for 60% of the
economic loss, and not 100%.
PAGE 22
D. Reconciliation of policy with interpersonal justice and congruence with tort law and
private law
The loss of chance doctrine should be recognized in medical negligence cases, as it would
foster the normal aims of private law in carrying out corrective justice and compensating
patients for wrongdoing committed by doctors.
(i) Promotion of corrective justice and personal responsibility
Tort law is concerned with corrective justice and personal responsibility. The loss of chance
is a real loss, for which recovery loss ought to be permitted, and the "all or nothing" rule fails
to ensure that victims are fairly compensated for the real loss which they have suffered.
The loss of chance doctrine should be recognized in medical negligence cases, and the courts
should look more favourably on the claimant in Gregg, as the doctor had a duty to preserve
any chance of survival or prevent any loss of chance irrespective of cause.
PAGE 23
The legal distinction between the loss of a right to be fully informed of medical risks in
Chester and the loss of a chance in obtaining a better medical outcome in Gregg cannot be
reconciled satisfactorily with each other.
In Sellars v Adelaide Petroleum NL, the Australian High Court held that loss of chance in an
economic case suffices as the gist of a negligence action, but Kiefel J distinguished loss of
chance in medical negligence cases from lost financial chances of the type recognised in
Sellars. Green argues that Allied Maples is a Type 1 case because the solicitors' negligence
affected the claimant's ability to avail itself of a chance, even though the negligence had no
effect on the substance or content of the chance itself.
PAGE 24
In contrast to Hotson and Gregg, where the claimant was unlikely to be worse off, in Type 2
cases the issue is whether the claimant had any right infringed at all. Further introspection is
warranted with respect to the statement that a chance of a cure always involves a more than
50% chance of a cure. However, a less than 50% chance of a cure is a thing of value for
which a person would be willing to pay.
The loss of chance in medical negligence cases could help achieve consistency with other
cases involving an increase in risk of injury, and it could also be argued that cases involving
loss of chance should likely be actionable.
PAGE 25
*P.N. 132 Conclusion
The loss of chance doctrine in medical negligence may be used to strike a balance between
policy considerations and interpersonal justice. If properly defined, the loss of chance
doctrine can promote interpersonal justice as well as be congruent with existing rules in tort
law and private law.