Gregg v Scott [2005] 2 AC 176

House of Lords

Basic Facts:
C discovered a lump under his arm and consulted his GP (D), who negligently assured him it was not serious. C was later diagnosed with Hodgkin's disease, leading to a significant reduction in his chances of survival. Despite the GP’s negligence, the original judge found that C could not recover damages for the loss of a chance of recovery because his survival rate was already low.

Held: Appeal dismissed; the House of Lords decided on a narrow 3-2 majority that loss of chance is not recoverable

Lord Nicholls of Birkenhead:

  • It is unjust that C cannot recover for a significant loss of a chance (e.g., 45%) of recovery, even though such a loss is substantial.

  • The "all or nothing" approach applied to past events does not work well for hypothetical scenarios.

  • In loss of chance cases, the focus should be on whether D’s negligence deprived C of a chance of recovery, and the courts should assess the value of that chance accordingly.

  • The law should recognize the loss of a chance in medical negligence as actionable damage, especially when prospects of recovery are uncertain and diminish due to negligence.

Lord Hoffmann:

  • Changing the law of causation for these cases would require a fundamental shift that should be left to legislation, not judicial decision.

Lord Phillips:

  • The "all or nothing" approach, while imperfect, provides "rough justice" and is preferable to a complex percentage-based assessment.

Baroness Hale:

  • There is a significant difference between losing a leg due to D’s negligence and merely losing a chance of keeping it. The law must weigh the fairness of such claims carefully.

Loss of Chance Argument:

  • The "loss of chance" doctrine should only be applied in specific cases where it is evident that D's negligence deprived C of a significant opportunity, not where the outcome was determined by factors beyond D's control.

  • Expanding this doctrine could lead to broader changes in personal injury law, complicating trials and making outcomes less predictable.

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Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22