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.