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Cite as: [1988] UKHL 1, [1987] 2 All ER 909, [1987] AC 750

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/247

    Hotson (A.P.) (Respondent)

    v.
    East Berkshire Health Authority (Appellants)

    JUDGMENT

    Die Jovis 30° Julii 1987

    Upon Report from the Appellate Committee to whom was
    referred the Cause Hotson (A.P.) against East Berkshire Health
    authority, That the Committee had heard Counsel on Monday the
    11th, Tuesday the 12th and Wednesday the 13th days of March
    last, upon the Petition and Appeal of the East Berkshire
    Health Authority, of Frances House, 81 Frances Road, Windsor,
    Berkshire, SL4 3AW, praying that the matter of the Order set
    forth in the Schedule thereto, namely an Order of Her
    Majesty's Court of Appeal of 14th November 1986, might be
    reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied
    or altered or that the Petitioners might have such other
    relief in the premises as to Her Majesty the Queen in Her
    Court of Parliament might seem meet; as upon the Case of
    Stephen John Hotson lodged in answer to the said Appeal; and
    due consideration had on Thursday 2nd July 1987 and this day
    of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal (Civil Division) of the 14th day of November 1986
    complained of in the said Appeal be, and the same is hereby,
    Set Aside, save as to costs: and that the Order of Mr.
    Justice Simon Brown of the 15th day of March 1985 be, and the
    same is hereby, Varied to the extent that the sum awarded to
    the Respondent be reduced by £11,500 and the amount of any
    interest on that sum included in the award; And it is further
    Ordered, That the Appellant do pay to the Respondent his costs
    incurred in respect of the said Appeal to this House, and to
    the Law Society their costs incurred in respect of the
    application on 2nd July 1987 and this day, the amount of such
    last-mentioned costs to be certified by the Clerk of the
    Parliaments if not agreed between the parties; And it is also
    further Ordered, That the costs of the Respondent in this
    House be taxed in accordance with Schedule 2 to the Legal Aid
    Act 1974: And it is also further Ordered, That the Cause be,
    and the same is hereby, remitted back to the Queen's Bench
    Division of the High Court of Justice to do therein as shall
    be just and consistent with this Judgment.

    Cler: Parliamentor:

    Judgment: 2.7'.87

    HOUSE OF LORDS

    STEPHEN JOHN HOTSON
    (RESPONDENT)

    v.

    EAST BERKSHIRE HEALTH AUTHORITY

    (APPELLANT)

    Lord Bridge of Harwich
    Lord Brandon of Oakbrook
    Lord MacKay of Clashfern
    Lord Ackner
    Lord Goff of Chieveley

    LORD BRIDGE OF HARWICH

    My Lords,

    The respondent plaintiff is now 23 years of age. On 26
    April 1977, as a schoolboy of 13, whilst playing in the school lunch
    hour he climbed a tree to which a rope was attached, lost his hold
    on the rope and fell some 12 feet to the ground. He sustained an
    acute traumatic fracture of the left femoral epiphysis. Within
    hours he was taken to St. Luke's Hospital, Maidenhead, for which
    the appellant health authority ("the authority") was responsible.
    Member of the hospital staff examined him, but failed to diagnose
    the injury and he was sent home. For five days he was in severe
    pain. On 1 May 1977 he was taken to the hospital once more and
    this time X-rays of his hip yielded the correct diagnosis. He was
    put on immediate traction, treated as an emergency case and
    transferred to the Heatherwood Hospital where, on the following
    day, he was operated on by manipulation and reduction of the
    fracture and pinning of the joint. In the event the plaintiff
    suffered an avascular necrosis of the epiphysis. The femoral
    epiphysis is a layer of cartilage separating the bony head from the
    bony neck of the femur in a growing body. Avascular necrosis
    results from a failure of the blood supply to the epiphysis and
    causes deformity in the maturing head of the femur. This in turn
    involves a greater or lesser degree of disability of the hip joint
    with a virtual certainty that it will in due course be aggravated
    by osteoarthritis developing within the joint.

    The plaintiff sued the authority, who admitted negligence in
    failing to diagnose the injury on 26 April 1977. Simon Brown J.,
    in a judgment delivered on 15 March 1985 [1985] 1 W.L.R. 1036,
    awarded £150 damages for the pain suffered by the plaintiff from
    26 April to 1 May 1977 which he would have been spared by
    prompt diagnosis and treatment. This element of the damages is
    not in dispute. The authority denied liability for any other
    element of damages. The judge expressed his findings of fact as
    follows, at pp. 1040-1041:

    - 1 -

    "(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 per cent. 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 ensued and with all the same
    adverse future prospects. (2) That 75 per cent. risk was
    translated by the health authority's admitted breach of duty
    into an inevitability. Putting it the other way, their delay
    in diagnosis denied the plaintiff the 25 per cent. chance
    that, given immediate treatment, avascular necrosis would
    not have developed. (3) Had avascular necrosis not
    developed, the plaintiff would have made a very nearly full
    recovery. (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 thus block the intact but
    distorted remaining vessels with the result that even had the
    fall left intact sufficient vessels to keep the epiphysis alive
    (which, as finding (1) makes plain, I think possible but
    improbable) such vessels would have become occluded and
    ineffective for this purpose."

    On the basis of these findings he held, as a matter of law,
    that the plaintiff was entitled to damages for the loss of the 25
    per cent. chance that, if the injury had been promptly diagnosed
    and treated, it would not have resulted in avascular necrosis of
    the epiphysis and the plaintiff would have made a very nearly full
    recovery. He proceeded to assess the damages attributable to the
    consequences of the avascular necrosis at £46,000. Discounting
    this by 75 per cent., he awarded the plaintiff £11,500 for the lost
    chance of recovery. The authority's appeal against this element in
    the award of damages was dismissed by the Court of Appeal (Sir
    John Donaldson M.R., Dillon and Croom-Johnson L.JJ.) on 14
    November 1986 [1987] 2 W.L.R. 287. The authority now appeal by
    leave of your Lordships' House.

    I would observe at the outset that the damages referable to
    the plaintiff's pain during the five days by which 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 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 a cause of action in respect of an
    unrelated element of damage.

    Before examining the judge's findings more closely, it is
    necessary to say something of the conflict of expert medical
    evidence which the judge had to resolve. The evidence is highly
    technical and not altogether easy to follow. But at least this
    much is clear, that the failure of the blood supply to the epiphysis
    which caused the avascular necrosis could itself only have been
    caused in one of two ways: either the injury sustained in the fall

    - 2 -

    caused the rupture of such a high proportion of the vessels
    supplying the epiphysis with blood that necrosis was bound to
    develop, or the blood vessels remaining intact were sufficient to
    keep the epiphysis alive but were subsequently occluded by
    pressure within the joint caused by haematoma (bruising) or
    haematosis (bleeding into the joint).

    The plaintiff's expert witness was extremely tentative in his
    view as to the part which the delay in treatment may have played
    in causing avascular necrosis. In his evidence in chief he
    described the risk of the plaintiff suffering avascular necrosis even
    if promptly treated as "very considerable" and "very high." He
    said:

    "Statistically, on reports published, he had a marginally
    better chance of escaping it than having avascular necrosis
    had it been treated expeditiously."

    He was asked:


    "Was there a chance, if the condition had been diagnosed
    and treated promptly, that no avascular necrosis would have
    occurred at all in any part?"

    He replied: "There was a small chance, yes." But he also said
    that the delay in treatment had made the development of total
    avascular necrosis of the epiphysis inevitable. His first three
    answers to questions put to him in cross examination were as
    follows:

    "Q. As I understand it, Mr. Bucknill, you accept that even if
    there had been no delay, it is likely that there would have
    been avascular necrosis of the whole head? A. Yes,
    Indeed. Q. And so the probabilities are that the delay in
    this case made no difference to the eventual outcome of
    this head? A. As I said, I think it made it inevitable that
    avascular necrosis occurred rather than likely. Q. In other
    words, what was always a probability became inevitable? A.
    Yes."

    Later he modified these answers. He said that, given prompt
    treatment, he thought avascular necrosis was "likely but not
    probable." He explained that by "likely" he meant about a 40 per
    cent. chance, by "probable" he meant something over 60 per cent.
    He also explained his view that delay would have made a total
    avascular necrosis inevitable by the occlusion of intact blood
    vessels resulting from haematoma.

    By contrast the authority's expert witness was emphatic,
    even dogmatic, in his evidence. His opinion was that the initial
    traumatic rupture of the blood vessels caused by the fall must
    have been so extensive that avascular necrosis was bound to result.
    He rejected the theory that the failure of the blood supply could
    be attributed to a haematoma, a condition which, in his opinion,
    would not occur in this injury. In this connection he distinguished
    between a haematoma and a haematosis, a condition which could
    occur in this injury but which would not, in his opinion, occlude
    intact blood vessels.

    - 3 -

    The judge indicated his assessment of these two witnesses as
    follows:

    "I regret that I found certain parts of the evidence of both
    experts, highly qualified and experienced although they both
    undoubtedly are, difficult to accept, either as a result of
    internal inconsistency within their evidence or because of
    what seemed to be an intrinsic want of logic in some
    particular expressed view. I recognise that the explanation
    for this may well lie in the deficiencies of my own medical
    understanding, but the forensic process requires only that I
    do my best. In the result I find myself unattracted to, and
    finally unable to accept, either of the competing extreme
    views.

    In analysing the issue of law arising from his findings the
    judge said [1985] 1 W.L.R. 1036, 1043-1044

    "In the end the problem comes down to one of
    classification. Is this on true analysis a case where the
    plaintiff is concerned to establish causative negligence or is
    it rather a case where the real question is the proper
    quantum of damage? Clearly the case hovers near the
    border. Its proper solution in my judgment depends upon
    categorising it correctly between the two. If the issue is
    one of causation then the health authority succeed since the
    plaintiff will have failed to prove his claim on the balance
    of probabilities. He will be lacking an essential ingredient
    of his cause of action. If, however, the issue is one of
    quantification then the plaintiff succeeds because it is trite
    law that the quantum of a recognised head of damage must
    be evaluated according to the chances of the loss
    occurring."

    He reached the conclusion that the question was one of
    quantification and thus arrived at his award to the plaintiff of one
    quarter of the damages appropriate to compensate him for the
    consequences of the avascular necrosis.

    It is here, with respect, that I part company with the judge.
    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 duty of 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 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 material contributory cause. This was a
    conflict, like any other about some relevant past event, which the
    judge could not avoid resolving on a balance of probabilities.
    Unless the plaintiff proved on a 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. But the judge's findings of
    fact, as stated in the numbered paragraphs (1) and (4) which I
    have set out earlier in this opinion, are unmistakably to the effect
    that on a balance of probabilities the injury caused by the

    - 4 -

    plaintiff's fall left Insufficient blood vessels intact to keep the
    epiphysis alive. This amounts to a finding of fact that the fall
    was the sole cause of the avascular necrosis.

    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 defendant's
    breach of duty, he would not have suffered the injury, to award
    him a proportionate faction 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] 2 K.B.
    786 (award of damages for breach of contract assessed by
    reference to the lost chance of securing valuable employment if
    the contract had been performed) and Kitchen v. Royal Air Force
    Association
    [1958] 1 W.L.R. 563 (damages for solicitors' 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.

    As I have said, there was in this case an inescapable issue
    of causation first to be resolved. But if the plaintiff had proved
    on a balance of probabilities that the authority's negligent failure
    to diagnose and treat his injury promptly 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 from the full measure of damage to reflect the chance
    that, even given prompt treatment, avascular necrosis might well
    still have developed. The decisions of this House in Bonnington
    Castings Ltd, v. Wardlaw
    [1956] AC 613 and McGhee v. National
    Coal Board
    [1973] 1 W.L.R. I give no support to such a view.

    I would allow the appeal to the extent of reducing the
    damages awarded to the plaintiff by £11,500 and the amount of
    any interest on that sum which is included in the award.

    LORD BRANDON OF OAKBROOK

    My Lords,

    I have had the advantage of reading in draft the speeches
    prepared by my noble and learned friends Lord Bridge of Harwich,
    Lord Mackay of Clashfern and Lord Ackner. I agree with all

    - 5 -

    three speeches, and for the reasons contained in them I would
    allow the appeal.

    LORD MACKAY OF CLASHFERN

    My Lords,

    I have had the advantage of reading in draft the speeches
    prepared by my noble and learned friends Lord Bridge of Harwich
    and Lord Ackner. I agree with them that this appeal should be
    allowed for the reasons which they have given.

    In their printed case the authority first took the position
    that they were entitled to succeed in this appeal because the
    plaintiff had not proved that any loss or damage (other than five
    days' pain and suffering) had been caused by the authority's breach
    of duty. They also submitted that damages for loss of a chance
    were not recoverable in tort and at the close of the hearing Mr.
    Whitfield, for the authority, invited your Lordships to decide this
    case not only on the ground of fact which he submitted was
    available but also on the more general ground that damages for
    loss of a chance could not be awarded. This latter submission has
    been discussed in the course of the hearing very fully and I wish
    to add some observations, particularly on that aspect of the case.

    When Mr. Williams, who appeared for the plaintiff, was
    invited to say what he meant by a chance he said that in relation
    to the facts of this case as found by the judge what was meant
    by a chance was that if 100 people had suffered the same injury
    as the plaintiff 75 of them would have developed avascular
    necrosis of the whole femoral head and 25 would not. This, he
    said, was an asset possessed by the plaintiff when he arrived at
    the authority's hospital on 26 April 1977. It was this asset which
    Mr. Williams submits the plaintiff lost in consequence of the
    negligent failure of the authority to diagnose his injury properly
    until 1 May 1977.

    The case closest on its facts to the present from the United
    Kingdom, cited at the hearing before your Lordships, is Kenyon v.
    Bell,
    1953 S.C. 125. In that case the lower lid of a child's eye
    was cut as a result of an accident and subsequently the eye had
    to be removed by operation. An action for damages was raised
    against the medical practitioner who had first treated the injury,
    alleging that he had failed to exercise reasonable care and
    ordinary professional skill in carrying out his examination and
    treatment of the injury and that as a result the child had not
    been given certain treatment which "'would have made the saving
    of the eye a certainty or alternatively . . . would have materially
    increased the chance of saving the eye.'" The medical practitioner
    contended that since all that was being offered to be proved was
    the weaker of the two alternative statements the case should not
    be allowed to proceed to proof since the weaker alternative
    alleging that the treatment would materially have increased the
    chance of saving the eye did not justify a claim for damages.
    Lord Guthrie held that the loss of a chance of saving the eye was
    not of itself a matter which would entitle the claim to succeed

    - 6 -

    but founding particularly on the use of the word "material" in the
    pleadings to qualify the chance of saving the eye by proper
    treatment Lord Guthrie held that on the evidence the chance of
    saving the eye by proper treatment might be proved to be so
    material that the natural and reasonable inference to draw from
    the evidence would be that the loss of the eye was due to the
    absence of such treatment. In that event, the claim would
    succeed. Accordingly he allowed it to go to proof. This
    illustrates that where what is at issue is a patient's condition on
    being presented to a medical practitioner the question whether the
    condition was such that proper treatment could effect a particular
    result is to be determined on the balance of probabilities and that
    one way of describing that balance is to say that there was at
    that time a sufficient chance that the particular result could be
    attained to justify holding that the loss of that result was caused
    by the absence of proper treatment. On the other hand, Lord
    Guthrie makes it clear that, in his opinion, while the fault could
    be charged against the doctor as being failure to give the child
    the opportunity of having an eye preserved by proper treatment,
    unless the eye would have been saved by such treatment no loss
    would have been established and no claim for damages justified in
    respect thereof.

    After the proof, Lord Strachan in a decision, which is
    unreported, of 9 April 1954 held that the defender had established
    that the boy's eye was irreparably injured on 15 March 1951 and
    that no treatment could have made any difference because the
    initial injury involved a perforating wound of the sclera with
    consequent haemorrhaging into the interior of the eye.

    In my opinion, it is perfectly correct to apply the same
    approach in the present case: what was the plaintiff's condition on
    being first presented at the hospital? Did he have intact
    sufficient blood vessels to keep the affected epiphysis alive? The
    judge had evidence from the authority's expert which amounted to
    an assertion that the probability was 100 per cent. that the fall
    had not left intact sufficient vessels to keep the epiphysis alive
    while he had evidence from Mr. Bucknill, for the plaintiff, which
    although not entirely consistently suggested that the probability
    was perhaps between 40 and 60 per cent., say 50 per cent., that
    sufficient vessels were left intact to keep the epiphysis alive. The
    concluding sentence in the judge's fourth finding in fact makes it
    plain, in my opinion, that he took the view, weighing that
    testimony along with all the other matters before him, that it was
    more probable than not that insufficient vessels had been left
    intact by the fall to maintain an adequate blood supply to the
    epiphysis and he expressed this balance by saying that it was 75
    per cent. to 25 per cent., a result reached perhaps as Mr. Williams
    suggested by going for a figure midway between the competing
    estimates given by the parties' experts in evidence. Although
    various statistics were given in evidence, I do not read any of
    them as dealing with the particular probability which the judge
    assessed at 75 per cent. to 25 per cent. In the circumstances of
    this case the probable effect of delay in treatment was determined
    by the state of facts existing when the plaintiff was first
    presented to the hospital. It is not, in my opinion, correct to say
    that on arrival at the hospital he had a 25 per cent. chance of
    recovery. If insufficient blood vessels were left intact by the fall
    he had no prospect of avoiding complete avascular necrosis

    - 7 -

    whereas if sufficient blood vessels were left intact on the judge's
    findings no further damage to the blood supply would have resulted
    if he had been given immediate treatment, and he would not have
    suffered the avascular necrosis.

    As I have said, the fundamental question of fact to be
    answered in this case related to a point in time before the
    negligent failure to treat began. It must, therefore, be a matter
    of past fact. It did not raise any question of what might have
    been the situation in a hypothetical state of facts. To this
    problem the words of Lord Diplock in Mallett v. McMonagle [1970]
    A.C. 166, 176 apply:

    "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."

    In this respect this case is the same, in principle, as any
    other in which the state of facts existing before alleged negligence
    came into play has to be determined. For example, if a claimant
    alleges that he sustained a certain fracture in a fall at work and
    there is evidence that he had indeed fallen at work, but that
    shortly before he had fallen at home and sustained the fracture,
    the court would have to determine where the truth lay. If the
    claimant denied the previous fall, there would be evidence, both
    for and against the allegation, that he had so fallen. The issue
    would be resolved on the balance of probabilities. If the court
    held on that balance that the fracture was sustained at home,
    there could be no question of saying that since all that had been
    established was that it was more probable than not that the injury
    was not work-related, there was a possibility that it was work-
    related and that this possibility or chance was a proper subject of
    compensation.

    I should add in this context that where on disputed evidence
    a judge reaches a conclusion on the balance of probabilities it will
    not usually be easy to assess a specific measure of probability for
    the conclusion at which he has arrived. As my noble and learned
    friend Lord Bridge of Harwich observed in the course of the
    hearing, a judge deciding disputed questions of fact will not
    ordinarily do it by use of a calculator.

    On the other hand, 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 loss of a chance in a medical negligence case.
    In McGhee v. National Coal Board [1973] 1 WLR 1 this House
    held that where it was proved that the failure to provide washing
    facilities for the pursuer at the end of his shift had materially
    increased the risk that he would contract dermatitis it was proper
    to hold that the failure to provide such facilities was a cause to a
    material extent of his contracting dermatitis and thus entitled him
    to damages from his employers for their negligent failure measured
    by his loss resulting from dermatitis. Material increase of the risk
    of contraction of dermatitis is equivalent to material decrease in
    the chance of escaping dermatitis. Although no precise figures
    could be given in that case for the purpose of illustration and
    comparison with this case one might, for example, say that it was
    established that of 100 people working under the same conditions
    as the pursuer and without facilities for washing at the end of

    - 8 -

    their shift 70 contracted dermatitis: of 100 people working in the
    same conditions as the pursuer when washing facilities were
    provided for them at the end of the shift 30 contracted

    dermatitis. Assuming nothing more were known about the matter
    than that, the decision of this House may be taken as holding that
    in the circumstances of that case it was reasonable to infer that
    there was a relationship between contraction of dermatitis in these
    conditions and the absence of washing facilities and therefore it
    was reasonable to hold that absence of washing facilities was
    likely to have made a material contribution to the causation of
    the dermatitis. Although neither party in the present appeal
    placed particular reliance on the decision in McGhee since it was
    recognised that McGhee is far removed on its facts from the
    circumstances of the present appeal your Lordships were also
    informed that cases are likely soon to come before the House in
    which the decision in McGhee will be subjected to close analysis.
    Obviously in approaching the matter on the basis adopted in
    McGhee much will depend on what is known of the reasons for the
    differences in the figures which I have used to illustrate the
    position. In these circumstances I think it unwise to do more than
    say that unless and until this House departs from the decision in
    McGhee your Lordships cannot affirm the proposition that in no
    circumstances can evidence of loss of a chance resulting from the
    breach of a duty of care found a successful claim of damages,
    although there was no suggestion that the House regarded such a
    chance as an asset in any sense.

    By agreement of the parties we were supplied with a list of
    American authorities relevant to the questions arising in this
    appeal, although they were not examined in detail. Of the cases
    referred to, the one that I have found most interesting and
    instructive is Herskovits v. Group Health Cooperative of Puget
    Sound
    (1983) 664 P.2d. 474, a decision of the Supreme Court of
    Washington en banc. In this case the claim arose in respect of
    Mr. Herskovits' death. He was seen at Group Health Hospital at a
    time when he was suffering from a tumour but this was not
    diagnosed on first examination. The medical evidence available
    suggested that at that stage, assuming the tumour was a stage 1
    tumour, the chance of survival for more than five years was 39
    per cent. When he was treated later the tumour was a stage 2
    tumour and the chance of surviving more than five years was 25
    per cent. The defendant moved for summary judgment on the
    basis that, taking the most favourable view of the evidence that
    was possible, the case could not succeed. The Superior Court of
    King County granted the motion. This decision was reversed by a
    majority on appeal to the Supreme Court. The first judgment for
    the majority in the Supreme Court was delivered by Dore J.
    Early in his judgment he read from section 323 of the American
    Restatement, Second, Torts, vol. 2 (1965), which is in these terms:

    "One who undertakes, gratuitously or for consideration, to
    render services to another which he should recognise as
    necessary for the protection of the other's person or things,
    is subject to liability to the other for physical harm
    resulting from his failure to exercise reasonable care to
    perform his undertaking, if (a) his failure to exercise such
    care increases the risk of such harm, . . ."

    - 9 -

    After noting that the Supreme Court of Washington had not
    faced the issue of whether, under this paragraph, proof that the
    defendant's conduct had increased the risk of death by decreasing
    the chances of survival was sufficient to take the issue of
    proximate cause to the jury he said, at p. 476:

    "Some courts in other jurisdictions have allowed the
    proximate cause issue to go to the jury on this type of
    proof. . . These courts emphasised the fact that
    defendants' conduct deprived the decedents of a 'significant'
    chance to survive or recover, rather than requiring proof
    that with absolute certainty the defendants' conduct caused
    the physical injury. The underlying reason is that it is not
    for the wrongdoer, who put the possibility of recovery
    beyond realisation, to say afterward that the result was
    inevitable .... Other jurisdictions have rejected this
    approach, generally holding that unless the plaintiff is able
    to show that it was more likely than not that the harm was
    caused by the defendant's negligence, proof of a decreased
    chance of survival is not enough to take the proximate
    cause question to the jury .... These courts have
    concluded that the defendant should not be liable where the
    decedent more than likely would have died anyway."

    To the question whether the plaintiff should be allowed, in
    the case before him, to proceed to a jury he returned an
    affirmative answer; and gave as the reason, at p. 477:

    "To decide otherwise would be a blanket release from
    liability for doctors and hospitals any time there was less
    than a 50 per cent. chance of survival, regardless of how
    flagrant the negligence."

    In support of this reasoning he referred to Hamil v. Bashline
    (1978) 481 Pa. 256; 392 A.2d 1280, a decision of the Pennsylvania
    Supreme Court, and said:

    "The Hamil court distinguished the facts of that case from
    the general tort case in which a plaintiff alleges that a
    defendant's act or omission set in motion a force which
    resulted in harm. In the typical tort case, the 'but for'
    test, requiring proof that damages or death probably would
    not have occurred 'but for' the negligent conduct of the
    defendant, is appropriate. In Hamil and the instant case,
    however, the defendant's act or omission failed in a duty to
    protect against harm from another source. Thus, as the
    Hamil court noted, the fact finder is put in the position of
    having to consider not only what did occur, but also what
    might have occurred."

    He goes on to quote from Hamil, 481 Pa. 256, 271; 392
    A.2d 1280, 1287-1288:

    "such cases by their very nature elude the degree of
    certainty one would prefer and upon which the law normally
    insists before a person may be held liable. Nevertheless, in
    order that an actor is not completely insulated because of
    uncertainties as to the consequence of his negligent conduct,
    section 323(a) [of the Restatement, Second, Torts] tacitly

    - 10 -

    acknowledges this difficulty and permits the issue to go to
    the jury upon a less than normal threshold of proof.'"

    He goes on, at pp. 487-488, to refer to another decision,
    namely Hicks v. United States (1966) 368 F.2d 626, as containing a
    succinct statement of the relevant doctrine, at p. 632, and quotes:

    '"Rarely is it possible to demonstrate to an absolute
    certainty what would have happened in circumstances that
    the wrongdoer 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."'

    He refers also to a general observation in the Supreme
    Court of the United States dealing with a contention similar to
    that argued before him by the doctors and the hospital. In
    Lavender v. Kurn (1946) 327 U.S. 645, 653 the Supreme Court said:

    "It is no answer to say that the jury's verdict involved
    speculation and conjecture. Whenever facts are in dispute
    or the evidence is such that fair-minded men may draw
    different inferences, a measure of speculation and conjecture
    is required on the part of those whose duty it is to settle
    the dispute by choosing what seems to them to be the most
    reasonable inference."

    He therefore concluded, at p. 479 that the evidence
    available which showed at maximum a reduction in the 39 per
    cent. chance of five years' survival to a 25 per cent. chance of
    five years' survival was sufficient to allow the case to go to the
    jury on the basis that the jury would be entitled to infer from
    that evidence that the delay in treatment was a proximate cause
    of the decedent's death. He pointed out, however, that causing
    reduction of the opportunity to recover (also described as a loss of
    chance) by one's negligence did not necessitate a total recovery
    against the negligent party for all damages caused by the victim's
    death. He held that damages should be awarded to the injured
    party and his family based only on damages caused directly by
    premature death, such as lost earnings and additional medical
    expenses and the like.

    The approach of Dore J. bears some resemblance to the
    approach taken by some members of this House in McGhee v.
    National Coal Board
    [1973] 1 WLR 1, and by Lord Guthrie in
    Kenyon v. Bell, 1953 S.C. 125. Brachtenbach J. dissented. He
    warned against the danger of using statistics as a basis on which
    to prove proximate cause and indicated that it was necessary at
    the minimum to produce evidence connecting the statistics to the
    facts of the case. He gave an interesting illustration of a town in
    which there were only two cab companies, one with three blue
    cabs and the other with one yellow cab. If a person was knocked
    down by a cab whose colour had not been observed it would be
    wrong to suggest that there was a 75 per cent. chance that the
    victim was run down by a blue cab and that accordingly it was
    more probable than not that the cab that ran him down was blue
    and therefore that the company running the blue cabs would be
    responsible for negligence in the running down. He pointed out
    that before any inference that it was a blue cab would be

    - 11 -

    appropriate further facts would be required as, for example, that a
    blue cab had been seen in the immediate vicinity at the time of
    the accident or that a blue cab had been found with a large dent
    in the very part of the cab which had struck the victim. He
    concluded that the evidence available was not sufficient to justify
    the case going to the jury and noted, at p. 491:

    "The apparent harshness of this conclusion cannot be
    overlooked. The combination of the loss of a loved one to
    cancer and a doctor's negligence in diagnosis seems to
    compel a finding of liability. Nonetheless, justice must be
    dealt with an even hand. To hold a defendant liable
    without proof that his actions caused plaintiff harm would
    open up untold abuses of the litigation system."

    Pearson J. agreed that the appeal should be allowed but did
    not agree with the reasoning by which that result was supported
    by Dore J. Pearson J., after examining the authorities and an
    academic article, stated that he was persuaded that a middle
    course between the reasoning of Dore J. and Brachtenbach J. was
    correct and concluded, at p. 487:

    "that the best resolution of the issue before us is to
    recognise the loss of a less than even chance as an
    actionable injury."

    He recognised that this also required that the damage payable be
    determined by the application of that chance expressed as a
    percentage to the damages that would be payable on establishing
    full liability.

    I have selected references to the view expressed by the
    judges who took part in this decision to illustrate the variety of
    views open in this difficult area of the law. These confirm me in
    the view that it would not be right in the present case to affirm
    the general proposition for which Mr. Whitfield contended. On the
    other hand, none of the views canvassed in Herskovits' case would
    lead to the plaintiff succeeding in the present case since the
    judge's findings in fact mean that the sole cause of the plaintiff's
    avascular necrosis was the injury he sustained in the original fall,
    and that implies, as I have said, that when he arrived at the
    authority's hospital for the first time he had no chance of avoiding
    it. Accordingly, the subsequent negligence of the authority did not
    cause him the loss of such a chance.

    I have the impression from reading the judgments of the
    Court of Appeal that this aspect of the facts in the present case
    may not have been in the forefront of the discussion there. Much
    of the judgment of the Court of Appeal will remain for
    consideration in the future.

    LORD ACKNER

    My Lords,

    - 12 -

    This appeal, as Mr. Graham Williams Q.C. for the
    respondent (the plaintiff in the action) submitted, raises a short
    point of classification. Adopting, although somewhat adapting, the
    words of Dillon L.J. in his short judgment [1978] 2 W.L.R. 287,
    298, the fundamental question is "What does the law regard as the
    damage which the plaintiff has suffered? Was it the onset of
    avascular necrosis or was it the loss of the chance of avoiding
    that condition?"

    The claim, as pleaded, is a simple one for damages for
    personal injuries suffered as a result of negligent treatment.
    Paragraph 9 of the amended statement of claim alleges:

    "The plaintiff now suffers from a permanent deformity of
    the left hip and a loss of movement therein and wasting of
    the left leg with a resultant limp, none of which injuries
    the plaintiff would have suffered save for the aforesaid
    negligence of the defendants [East Berkshire Health
    Authority] which is hereinafter set out."

    To establish his cause of action, the plaintiff had to prove
    that the defendants (the appellants) were under the duty alleged,
    that they broke that duty and that as a result of that breach of
    duty he suffered the injuries alleged. It is, of course, axiomatic
    that the facts upon which liability is based must be proved on the
    balance of probabilities.

    It is common ground that the defendant, in breach of its
    duty, failed to treat the plaintiff for five days and that as a
    consequence of that breach of duty he suffered pain during that
    period for which he was properly compensated by the award made
    by the trial judge of £150. The permanent deformity of the hip
    and other injuries described in the statement of claim were in an
    entirely separate and unrelated category and were due to the
    avascular necrosis of the left femoral epiphysis.

    The judge [1985] 1 W.L.R. 1036, 1038-1039 explained most
    helpfully the mechanism by which the avascular necrosis with the
    resultant distortion and collapse of the epiphysis can occur:

    "The femoral epiphysis (the epiphysis as I shall refer to it
    henceforth) is the spongy extremity of the upper femur, its
    surface being covered with cartilage, which slots into the
    cavity of the acetabulum to form the hip joint. In a child
    the epiphysis is connected to the neck of the femur by an
    epiphysial plate (sometimes called a growth plate) which is
    essentially a sandwich filling of cartilage between, on the
    upper side, the epiphysis and on the lower side the bony
    femoral neck. The plate exists only in a growing skeleton
    and indeed it enables the bone to grow; in maturity it forms
    bone across the gap. The major threat created by an injury
    such as the plaintiff's is that it will so interfere with the
    blood supply to the epiphysis that avascular necrosis will
    develop. This is a condition whereby through lack of
    sufficient blood the epiphysis becomes de-mineralised,
    weakened and softened and thus denser, distorted and
    deformed. When that occurs, not only does it cause
    misshapenness of the joint with associated pain, restriction
    in mobility and general disability, but it also carries with it

    - 13 -

    the virtual certainty that osteo-arthritis will develop within
    the joint."

    At the trial it was contended on the plaintiff's behalf,
    thereby departing from paragraph 9 of the amended statement of
    claim, to which I have already made reference, that the
    defendants' failure to diagnose and treat the injury immediately
    when he first attended hospital rather than when he returned five
    days later substantially increased the risk that avascular necrosis
    would develop and thus give rise to the long-term disability which
    resulted. The defendants contended, relying upon the expert
    evidence of their surgeon Mr. Bonney, that the initial injury when
    the plaintiff fell and thereby sustained the fracture separation of
    the left femoral epiphysis, was so severe that the avascular
    necrosis of the epiphysis was, thereafter and in any event,
    inevitable. It was thus argued that the delay would not have
    increased the risk of avascular necrosis.

    The vital issue of fact which the judge had to determine
    was whether or not the fall left intact sufficient blood vessels to
    keep the epiphysis alive. If it did not, then the subsequent failure
    to diagnose and treat the injuries for a period of five days could
    not be responsible for the avascular necrosis. The judge, again
    most helpfully, gave a simple and short explanation of the system
    of blood supply to the epiphysis and the likely effect upon that
    supply of the injury sustained by the plaintiff when he fell. He
    said, at p. 1041:

    "There are in a child three sets of blood vessels to the
    epiphysis: those running along the back of the femoral neck,
    those running along the front, and those which run through
    the round ligament. It was common ground between the
    experts (a) that the blood supply along the front of the
    femoral neck (some 20 per cent. of the total supply) would
    have been ruptured by the fall when the femoral shaft
    rotated; and (b) that the supply through the round ligament
    (something less than 30 per cent. of the total) would not
    have been ruptured."

    Thus the essential question to determine was - what was the
    effect of the fall upon the remaining 50 per cent. of the blood
    supply which was to be found in the blood vessels running along
    the back of the femoral neck? Mr. Bonney took the view that
    these blood vessels must have been ruptured by the fall. The
    respondent's surgeon, Mr. Bucknill, disagreed, contending that the
    effect of the fall was to rotate the femur externally so as to
    lessen the tension upon the rear vessels. He could see no good
    reason to conclude that these would have been severed.

    The judge was unable to accept either of the competing
    extreme views. His conclusions were, at pp. 1040-1041:

    "(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 per cent. 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 ensued and with all the same

    - 14 -

    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 thus block the
    intact but distorted remaining vessels with the result that
    even had the fall left intact sufficient vessels to keep the
    epiphysis alive (which, as finding (i) makes plain, I think
    possible but improbable)
    such vessels would have become
    occluded and ineffective for this purpose." (Emphasis
    added.)

    The judge was thus making clear that he accepted Mr.
    Bonney's opinion to this extent, viz. that the blood vessels running
    along the back of the femoral neck containing approximately one-
    half of the total blood supply must have been, on the balance of
    probabilities,
    ruptured by the fall.

    He thus found that immediately after the fall, that is
    before admission to hospital and therefore before the duty was
    imposed upon the defendants properly to diagnose and treat, the
    epiphysis was doomed. Accordingly the judge had determined as a
    matter of fact, on the balance of probabilities, that the
    compression and blocking of the blood vessels had had no effect on
    the respondent's ultimate condition. In determining what happened
    in the past the court decides on the balance of probabilities.
    Anything that is more probable than not is treated as certainty
    (Mallet v. McMonagle [1970] A.C. 166, 176, per Lord Diplock).

    In the result the judge had by his clear findings decided
    that the negligence of the defendants in failing to diagnose and
    treat for a period of five days, had not caused the deformed left
    hip. The judge, in agreement with the submission made to your
    Lordships by counsel for the defendants, said in terms [1985] 1
    W.L.R. 1036, 1043-1044 that in the end the problem came down to
    one of classification.

    "Is this on true analysis a case where the plaintiff is
    concerned to establish causative negligence or is it rather a
    case where the real question is the proper quantum of
    damage?"

    The learned judge thought, at p. 1044, that the case "hovers near
    the border." To my mind, the first issue which the judge had to
    determine was an issue of causation - did the breach of duty
    cause the damage alleged. If it did not, as the judge so held,
    then no question of quantifying damage arises. The debate on the
    loss of a chance cannot arise where there has been a positive
    finding that before the duty arose the damage complained of had
    already been sustained or had become inevitable.

    Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563 has no
    relevance to this appeal. In that case there was an undoubted
    breach of contract which caused the plaintiff to suffer more than
    nominal damages. By reason of the solicitor's negligence, she had
    lost a worthwhile action. What the court there had to do was to
    value that action. It is, of course, obvious that it is not only
    actions that are bound to succeed that have a value. Every action
    with a prospect of success has a value and it is a familiar task
    for the court to assess that value where negligence has prevented

    - 15 -

    such an action being brought. Again, Chaplin v. Hicks [1911] 2
    K.B. 786, strongly relied upon by the plaintiff, provides no
    assistance. In that case a young lady actress-to-be had made a
    contract with the defendant under which she had an opportunity of
    appearing in a competition in which, if successful, she would have
    obtained a remunerative engagement as an actress. In the words
    of Fletcher Moulton L.J., at p. 797:

    "The contract gave the plaintiff a right of considerable
    value, one for which many people would give money;
    therefore to hold that the plaintiff was entitled to no
    damages for being deprived of such a right because the final
    result depended on a contingency or chance would have been

    a misdirection."

    In a sentence, the plaintiff was not entitled to any damages
    in respect of the deformed hip because the judge had decided that
    this was not caused by the admitted breach by the defendants of
    their duty of care but was caused by the separation of the left
    femoral epiphysis when he fell some 12 feet from a rope on which
    he had been swinging.

    On this simple basis I would allow this appeal. I have
    sought to stress that this case was a relatively simple case
    concerned with the proof of causation, upon which the plaintiff
    failed, because he was unable to prove, on the balance of
    probabilities, that his deformed hip was caused by the defendants'
    breach of duty in delaying over a period of five days a proper
    diagnosis and treatment. Where causation is in issue, the judge
    decides that issue on the balance of the probabilities. Unless
    there is some special situation, e.g. joint defendants where the
    apportionment of liability between them is required, there is no
    point or purpose in expressing in percentage terms the certainty or
    near certainty which the plaintiff has achieved in establishing his
    cause of action.

    Once liability is established, on the balance of probabilities,
    the loss which the plaintiff has sustained is payable in full. It is
    not discounted by reducing his claim by the extent to which he
    has failed to prove his case with 100 per cent. certainty. The
    decision by Simon Brown J. in the subsequent case of Bagley v.
    North Herts Health Authority,
    reported only in the (1986) 136
    N.L.J. 1014, in which he discounted an award for a stillbirth,
    because there was a five per cent. risk that the plaintiff would
    have had a stillborn child even if the hospital had not been
    negligent, was clearly wrong. In that case, the plaintiff had
    established on a balance of probabilities, indeed with near
    certainty, that the hospital's negligence had caused the stillbirth.
    Causation was thus fully established. Such a finding does not
    permit any discounting - to do so would be to propound a wholly
    new doctrine which has no support in principle or authority and
    would give rise to many complications in the search for
    mathematical or statistical exactitude.

    Of course, where the cause of action has been established,
    the assessment of that part of the plaintiff's loss where the future
    is uncertain, involves the evaluation of that uncertainty. In
    Bagley, if the child had, by reason of the hospital's breach of
    duty, been born with brain injury, which could lead in later life to

    - 16 -

    epilepsy, then it would have been a classic case for the evaluation,
    inter alia, of the chance of epilepsy occurring and discounting, to
    the extent that the chance of that happening fell below 100 per
    cent., what would have been the sum of damages appropriate if
    epilepsy was a certain consequence.

    I would accordingly allow the appeal by reducing the
    damages awarded to the plaintiff by £11,500, being the amount
    awarded by the trial judge for the "lost chance of recovery,"
    together with the amount of any interest on that sum which is
    included in the award.

    LORD GOFF OF CHIEVELEY

    My Lords,

    I have had the advantage of reading in draft the speeches
    prepared by my noble and learned friends Lord Bridge of Harwich,
    Lord Mackay of Clashfern and Lord Ackner. For the reasons they
    give, I too would allow the appeal.

    - 17 -


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