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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gregg v Scott [2002] EWCA Civ 1471 (29 October 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1471.html Cite as: [2002] All ER (D) 418, [2002] EWCA Civ 1471 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (Lincoln District Registry)
(His Honour Judge Inglis)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE MANCE
and
LORD JUSTICE LATHAM
____________________
MALCOLM GREGG | Appellant | |
- and - | ||
JAMES ANDREW SCOTT | Respondent |
____________________
(instructed by Messrs Park Woodfine) for the Appellant
William Edis Esq
(instructed by Messrs Tamsin Thomas, The Medical Defence Union) for the Respondent
Hearing dates : 22nd/23rd July 2002
____________________
Crown Copyright ©
Lord Justice Latham:
“There was rapid spread and development of the claimant’s non-Hodgkin’s lymphoma disease at the end of 1995. Had the claimant been referred in about November 1994, the malignancy would have been diagnosed and treatment commenced with the disease having progressed no further than stage 1. The treatment would have been by means of either radiotherapy or CHOP Chemotherapy. There would have been a very high likelihood of cure. The claimant would have been unlikely to have developed any secondary recurrence, and would not have required the further treatment detailed above.
The prospects of obtaining a cure by the time the treatment was in fact commenced were reduced below 50%. There was a high risk of secondary recurrence, as in fact occurred with the need for further treatment.
The claimant’s precise prognosis remains uncertain”
“I think there is a significant possibility that the cumulative delay in the plaintiff’s case has compromised his chance of a cure from over 80% to under 50%”
“We are agreed that the cumulative delay in diagnosis and commencing treatment was associated with the claimant’s clinical stage and performance status and this equates with a poorer prognosis.”
“8. On the evidence in the present case the following “facts” have clearly been established on the evidence, on the balance of probabilities:
i) That Mr Gregg’s disease would not have “up staged”.
ii) That Mr Gregg would have had more limited treatment than he in fact underwent;
iii) That Mr Gregg is likely to have joined the 55% of cohort of patients who obtained complete remission from such limited treatment, instead of being in the cohort of those who do not obtain such a response and thus require the further treatment that he in fact had ie high dose chemotherapy and stem cell transplantation.
9. Thus applying the Hotson test, the claimants have established on the balance of probabilities (ie better then 50% prospect) that the outcome would have been different. This is a simple matter of past fact. The evidence in relation to these matters is agreed. ”
“It is not accepted that the evidence justifies the claim that the claimant has shown that with timeous treatment his prospect of avoiding relapse would have been over 50%. The worked example which was accepted by the claimant’s expert demonstrates that tracing through the (necessarily complex) sequence of events which might have followed earlier referral shows that on the balance of probabilities he would not now even be in a better position than he is. That is the crucial test to be applied. That is equivalent to and not as the claimant says confounded by Hotson. There the court had to decide whether a finding of a 75% chance of a similar result was in fact a finding on causation (of past fact) or one of an estimate of chances. It in fact amounted to a claim that the complainants avascular necrosis was not caused by the delay in treatment. In the present case the finding (which must follow from the evidence) that the claimant would probably have relapsed and that his treatment and progress would have followed the same course is a finding that his tragic history was not caused by any delay but instead by his underlying, very dangerous disease.”
“a. In the 9 month period between the spring of 1995 and January 1996 when treatment began, the claimant’s condition “upstaged” significantly so that he was less likely to achieve complete remission and had a poorer prognosis as a result. Specifically his chances of avoiding radical high dose chemotherapy, his chance of avoiding a relapse and his chances of ultimate survival were all reduced.
b. Taking the claimant as an example of the whole population of anaplastic large cell lymphoma patients but with no adverse prognostic features he would have had a remission chance significantly higher than 55% and the chance of disease free survival of over 50%. For such a patient the addition of the adverse prognostic factors that came to affect him because of the delay, meant his initial chance of remission would have fallen to around 50-55% and his chances of overall survival had moved from over 50% to less than 50%.
c. Those examples do not take into account the ALK negative factor. That is not something that can be ignored; but nor does the “immaturity” of the evidence allow for its extrapolation directly into the claimant’s case. The best evidence that Professor Goldstone could give in the whole population but taking into account as he in his clinical experience thought right the ALK negative factor was the worked example he gave; namely of 100 such patients 55 would achieve complete remission as a result of the initial CHOP treatment; 42 would ultimately survive of whom 35 would not have had to undergo high dose chemotherapy with cell stem treatment.
d. It is not possible to say that without the adverse prognostic factors caused by the delay the claimant who is ALK negative, would more probably than not have become a disease free survivor, or that he would have avoided relapse and relapse after high dose chemotherapy. He may have done but it is not possible to say. It is possible to say on the basis of Professor Goldstone’s model that he would more probably than not have achieved complete remission with initial CHOP therapy and without high dose chemotherapy with stem cell harvesting.
e. His chances of survival now for five years are less than 50%. In fact, twice in his evidence Professor Goldstone said 20-30%, so that in my judgment justifies a finding that he has a 25% chance now of disease free survival for 5 years”
“42. The time for evaluating what would have happened in the past is the trial. That is the time, it seems to me, when the fundamental rule is that what happened, and what would have happened, has to be established on the balance of probability. What is so established is taken as certain, what is not so established is ignored. There seems to me to be no sanction on the authorities for the view that some intermediate event between the breach of duty and the trial can change the basis on which proof of causation can be established. That rule is subject to some exceptions, for example where a worthwhile cause of action that has been lost has to be evaluated by reference to the chances of its success: Kitchen –v- Royal Airforce Association [1958] 1WLR 563; when an opportunity to win a prize is lost: Chaplin –v- Hicks [1911] 2AC; or; as explained by Stuart Smith LJ in Allied Maples Group –v- Simmons & Simmons [1995] 1WLR 1602 at 1611A where the claimant’s loss depends on the hypothetical action of a third party. In all those cases either by pragmatic development of categories (such as the chance of gaining employment or promotion) or by the route of saying that the chance itself is to be regarded as something of value, damages may be awarded for loss of a chance, so that a 30% chance that has been lost is compensated by an award of 30% of the benefit that would have accrued had the chance become a reality. In my judgment the authorities do not support the view that a loss of chance for a more favourable outcome from medical treatment is in a category of cases where compensation will be awarded on that basis. It seems to me that the reasoning in Hotson should drive me to the conclusion expressed above.
43. The starting point is to prove what the claimant’s position was at the time of the breach of duty. That is a question of past fact. In this case Mr Gregg had a lymphoma that was at a particular stage of development. But that is not the only past fact. What would have been the course of the disease but for the defendant’s negligence, is also, up to the date of trial, a past fact. I do not think that it is possible to apply the description “hypothetical” to it so as to put it in the quantification rather than the causation category of the inquiry. I do not think that there is a forensic difference between asking what would have happened had the doctor attended (in Bolitho –v- Hackney Health Authority [1998] AC 232 HL) and what would have been the outcome had the doctor given appropriate treatment. In this case the claimant has failed to prove that it is more probable than not that the outcome for him, looked at as at the date of trial, would have been materially different had he been treated nine months earlier. Since the burden of proof lies on the claimant that means it should be taken as more probable than not, that treated earlier, the claimant would nonetheless have at some stage to undergo high dose chemotherapy with stem cell harvesting, would have relapsed, and would thereafter have a very poor prognosis for survival, albeit one that improves as time goes by. That, it seems to me puts him in the same category as the claimant in Hotson who at the time of the breach of duty had an injury the consequence of which would in any event (on the balance of probabilities, and therefore treated as certain) have meant that the necrosis from which he came to suffer would have been suffered. To give effect to a chance less than 50% that the outcome might have been different would be to give effect also to the 25% chance for the claimant in Hotson that appropriate medical intervention would have avoided necrosis.
44. In my judgment, therefore, the claimant has not proved that he has suffered an injury as a result of the delay, because he has not proved it more probable than not that he has.”
“I would observe at the outset that the damage is referable to the plaintiff’s pain during the five days by which the treatment was delayed in consequence of failure to diagnose the injury correctly, although sufficient to establish the authority’s liability for the tort of negligence, have no relevance to their liability in respect of the avascular necrosis. There was no causal connection between the plaintiff’s physical pain and the development of the necrosis. If the injury had been painless, the plaintiff would have had to establish the necessary causal link between the necrosis and the authority’s breach of duty in order to succeed. It makes no difference that the five days pain gave him the cause of action in respect of an unrelated element of damage.”
“The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions for determining what was. In determining what did happen in the past the court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or what would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that the particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”
“(1) The burden of proof in causation was upon the plaintiff.
(2) Causation is a question of past fact, to be decided on a balance of probabilities: see Mallett –v- McMonagle [1970] AC 166.
(3) If he proves that the negligence was the sole cause or a substantial cause, or that it materially contributed to the damage, he will succeed in full. See Bonnington Castings –v- Wardlaw [1956] AC 613 and McGhee –v- National Coal Board [1973] 1WLR1.
(4) If he fails to cross this threshold then he fails to recover any damages: see Barnett –v- Chelsea and Kensington Hospital Management Committee [1969] 1QB 428.
(5) A plaintiff cannot recover damages for the loss of a chance of a complete or better recovery: see Hotson –v- East Berkshire District Health Authority [1987] AC 750.”
“The plaintiff’s claim was for damages for physical injury and consequential loss alleged to have been caused by the authority’s breach of their care. In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances. But that is not so here. On the evidence there was a clear conflict as to what had caused the avascular necrosis. The authority’s evidence was that the sole cause was the original traumatic injury to the hip. The plaintiff’s evidence, at its highest, was that the delay in treatment was a material contributory cause. But this was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on the balance of probabilities. Unless the plaintiff proved on the balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis he failed on the issue of causation and no question of quantification could arise .....
The upshot is that the appeal must be allowed on the narrow ground that the plaintiff failed to establish a cause of action in respect of the avascular necrosis and its consequences. Your Lordships were invited to approach the appeal more broadly and to decide whether, in a claim for damages for personal injury, it can ever be appropriate, where the cause of the injury is unascertainable and all the plaintiff can show is a statistical chance which is less than even that, but for the defendants breach of duty, he would not have suffered the injury, to award him a proportionate fraction of the full damages appropriate to compensate for the injury as the measure of damages for the lost chance.
There is a superficially attractive analogy between the principle applied in such cases as Chaplin –v- Hicks [1911] 2KB 786 (award of damages for breach of contract assessed by reference to the lost chance of securing valuable employment had the contract been performed) and Kitchen –v- Royal Airforce Association [1958] 1WLR 563 (damages for solicitor’s negligence assessed by reference to the lost chance of prosecuting a successful civil action) and the principle of awarding damages for the lost chance of avoiding personal injury or, in medical negligence cases, for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment. I think there are formidable difficulties in the way of accepting the analogy but I do not see this appeal as a suitable occasion for reaching a settled conclusion as to whether the analogy can ever be applied.”
“.... I consider that it would be unwise in the present case to lay it down as a rule that a plaintiff could never succeed by proving a loss of a chance in a medical negligence case ....”
“Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrong doer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalised and operated on promptly”
“9. Valuing a lost chance: A further way in which, in some circumstances, the difficulties of causation for a plaintiff are alleviated is by treating the plaintiff’s loss as a “loss of a chance”. In cases in which this approach is permissible or it may allow evaluation of the plaintiff’s loss in terms of comparing the chance of suffering harm (given the breach which has occurred) against those that would have existed (if the breach is hypothesised away). In CES –v- Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47at 56 to 57 I indicated my attraction to this approach as a more rational and just way of calculating damages caused by established medical negligence. It is clearly laid down by the authority of this court that, in some circumstances, a plaintiff may recover the value of loss of a chance caused by a wrongdoer’s act or omission. The approach also has some judicial support in the context of medical negligence in England [McGhee –v- National Coal Board [1973] 1 WLR1] Canada [see eg Laforest J dissenting in Lawson –v- Laferriere (1991) 78 DLR 94th 609 at 610] and the United States. A number of commentators favour this approach because of the failure of orthodox reasoning to do justice to some patients’ losses and because it invites more empirical capitulation of loss, with the use of statistics which might offer outcomes which are more accurate and fair to all concerned. On the other hand, the weight of judicial opinion in England [Hotson] and Canada [Lawson –v- Laferriere] and some academic writing appears to be critical of the application of loss of a chance throughout cases of medical negligence. In part this is because where medical negligence is alleged, “destiny ....[has] taken its course”, arguably making an analysis by a reference to chance inappropriate or unnecessary in the view of the critics of this approach. Alternatively, the loss of a chance calculation has been criticised on the ground that it would discard common sense, undermine the plaintiff’s onus of proving the case and submit the law to the “paralysis” as statistical abstractions.”
“The first point to emphasise is that common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened.... one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule.”
“The “common sense” which guides courts in this area of discourse supports Mrs Hart’s recovery. So does the setting of standards which uphold the importance of the legal duty that was breached here.”
“So in all these cases the real question, is what is the damage for which the defendant under consideration should be held responsible the nature of his duty (here the common law duty of care) is relevant: causation, certainly would be relevant – but it will fall to be reviewed and in truth can only be understood, in the light of the answer to the question, from what kind of harm was it the defendant’s duty to guard the claimant?”
Lord Justice Mance:
Introduction
Bonnington, McGhee and Fairchild
Loss of chance
“if the plaintiff had proved as a balance of probabilities that the authority’s negligent failure to diagnose and treat his injury had materially contributed to the development of avascular necrosis, I know of no principle of English law which would have entitled the authority to a discount form the full measure of damage to reflect the chance that, even given prompt treatment, avascular necrosis might well still have developed. The decisions in Bonnington …. and McGhee …. give no support to such a view.”
“But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is evaluate the chance.”
The husband had been killed in a road accident on 14th August 1968, the case had been tried on 16th October 1970 and it came before the House of Lords in 1972. Any reconciliation which would, but for the death, have occurred would presumably have occurred well in advance even of October 1970. Yet the hypothetical question whether it would have occurred was treated as, or as analogous to, one of future fact. A similar distinction to that drawn by Lord Reid had been drawn in the passage which Latham LJ has set out from Lord Diplock’s speech in Mallett v. Monagle [1970] AC 166, 176E-G (again a Fatal Accidents Act case but a passage in general terms) and by Lord Browne-Wilkinson in Bolitho v. City and Hackney H.A. [1998] AC 232, 239G.
“(1) Even had the health authority correctly diagnosed and treated the plaintiff on 26 April there is a high probability, which I assess as a 75% risk, that the plaintiff’s injury would have followed the same course as it in fact has, that is he would have developed avascular necrosis of the whole femoral head with all the same adverse consequences as have already occurred and with all the same adverse future prospects …..
(4) The reason why the delay sealed the plaintiff’s fate was because it allowed the pressure caused by haemarthrosis – the bleeding of ruptured blood vessels into the joint – to compress and block the intact but remaining blood vessels with the result that even had the fall left intact sufficient blood vessels to keep the epiphysis alive (which, as finding (1) makes clear, I think possible but improbable) such blood vessels would have become occluded and ineffective for this purpose.”
The House analysed these passages as a finding that a past state of facts had occurred, prior to any negligence, which made it (in Lord Ackner’s word) inevitable that the epiphysis would die, with all the adverse past and future consequences that the claimant had in fact suffered. If Simon Brown J’s reference to a 75% probability or risk related simply to his confidence in reaching a finding of past fact, then on conventional principles the court was bound to treat that past fact as having occurred, without any diminution of recovery on account of the limited evidential uncertainty about the correctness of the finding. Further, if the future consequences of that past fact were inevitable, with or without the subsequent negligence, there could be no question of assessing the prospects of their occurring on any percentage basis (other than 100%).
“In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances. But that was not so here. On the evidence there was a clear conflict as to what had caused the avascular necrosis. The authority’s evidence was that the sole cause was the original traumatic injury to the hip. The plaintiff’s evidence, at its highest, was that the delay in treatment was a contributory cause. That was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities.”
The (partial) report of Simon Brown J’s judgment at first instance in Hotson indicates that he heard detailed evidence about the likely chain of events involved in the fall and their consequences for the various blood vessels feeding the epiphysis (see in particular [1985] 1 WLR 1036, 1041C-E). His 75% confidence did not derive from statistics, but from detailed evidence particular to the fall and the plaintiff.
The nature of the injury
Conclusion
Lord Justice Simon Brown:
“Time and time again courts evaluate past and future medical risks and award damages based on an assessment of the likelihood (a) of some adverse medical condition, like epilepsy or osteo-arthritis, developing consequent on the injury, or (b) that some pre-existing, perhaps degenerative, condition would in any event have manifested itself so as to cause the same or at any rate some lesser degree of disability as has been occasioned by injury. There is really no significant difference between that exercise and what the court is being invited by the plaintiff to do in the instant case. That is all the clearer when one recognises that on any view of the facts here the plaintiff has established his cause of action by proving damage to the extent of five days’ pain and suffering, a claim which cannot itself be ignored as de minimis. Even, therefore, if it were not permissible to compensate the plaintiff only for the loss of a chance, such head of loss could properly attach to the undisputed claim, immeasurably larger though the former happens to be. But this very point underlines how unsatisfactory it would be to suppose that the case should turn entirely on whether there is any directly provable injury, however slight. That will itself often be a matter of chance. If for instance a doctor negligently failed to diagnose cancer and there is proved to be a 25 per cent chance that had it been earlier diagnosed and treated it would have been cured but now cannot, there would be no clearly demonstrable injury upon which to hang a parasitical claim for the loss of a chance. In my judgment, therefore, it is sufficient to found a good claim in law that the plaintiff should establish that the defendant’s breach of duty has lost him a substantial chance of being better off. I should add that whether a chance significantly less that 25 per cent would be regarded as substantial for this purpose may be doubted: the courts will not wish to encourage professional negligence claims of a speculative nature.”
“Once the plaintiff had identified his loss as loss of a chance and the Court of Appeal had held that it was compensatable as such, the plaintiff was entitled to damages for the value of that lost chance because he could establish on the balance of probabilities that the defendants’ fault had caused that damage. The balance of probability test on the issue of causation of past events is retained but its effects are transformed by the reformulation of the damage which forms the gist of the action.
Unhappily the House of Lords did not resolve the difficult question raised by the plaintiff’s argument - namely whether reformulation of the gist in terms of loss of a chance should now be acceptable. Their Lordships focussed on the traditional (but in this context, irrelevant) question of whether the plaintiff had shown a causal connection on the balance of probabilities to the necrosis, which of course he had and could not. The defendants, therefore, succeeded in their appeal because the plaintiff had failed on the issue of causation as it related to damage formulated in terms of necrosis. Their Lordships regarded this finding as releasing them from having to determine whether loss of a chance could form the gist of a complaint in negligence. The loss of a chance issue was classified as one of valuation/quantification and it was held that unless the plaintiff first succeeded on causation no issue of quantification of the loss could arise. This reasoning unfortunately fails to address the essence of the plaintiff’s argument, which was whether a claim formulated in a different way (ie in terms of loss of a chance) was acceptable. In other words, the loss of a chance issue here is not about the quantification/valuation of the interest destroyed (all judges accepted the trials judge’s valuation of the lost chance as 25%) but whether loss of a chance could constitute the gist to which the causation enquiry could be directed. Consideration of the plaintiff’s argument was, therefore, essential before any issue of causation could be addressed. It cannot be over-emphasised that the formulation of the ‘damage’ forming the gist of the action defines the causation question. Logically one can only deal with causation after one knows what the damage forming the gist of the action is.”