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36 Cards in this Set
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Barnett v Chelsea and Kensington Hospital Management Committee [1969] (QB) |
In this case C’s husband was one of three night watchmen who went to D’s hospital complaining of vomiting after drinking some tea. nurse on duty consulted casualty doctor by telephone and was instructed by him to tell three men to go home to bed and to call their own doctors. Soon afterwards C’s husband died of arsenical poisoning. It was discovered that arsenic had been put into the tea of workmen by persons unknown. There was no dispute that in failing to examine C, doctor was negligent. The issue to be decided was whether doctor’s breach of duty had caused man’s death. claim failed because hospital was able to produce evidence to show that even if deceased had been examined and treated with proper care he would still have died. Since death would have occurred in any event D’s breach of duty was not a factual cause. For this reason, basic rule is often referred to as ‘but for’ test. Its main purpose is to exclude things that have no bearing on damage. It is for C to show that breach of duty was cause of damage, and not for D to show that breach of duty was not cause of damage. |
Arsenic poisoning |
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The Ogopogo [1971] 2 Lloyd’s Rep 410 |
C fell overboard into icy water. D’s rescue effort was inadequate. Would C have perished in the cold water before even a competent rescuer could have saved her? |
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McWilliams v Sir William Arrol [1962] 1 All ER 623 (HL) |
In this case, focus of question was on how deceased steelworker would have behaved. His employer had been negligent in failing to provide a safety harness and he fell to his death. It was clearly established that, had D provided a safety harness, steelworker would not have worn it. But for D’s breach, damage would still have occurred and so there was no liability on part of employer. |
Steelworker not wearing a safety harness |
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Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134 |
surgeon had advised C to undergo surgery but in breach of duty had failed to advise her of risk. C did not show that she would probably never have had operation, but she did show that she would have taken her time and consulted friends and therefore would not have had actual operation on particular day that she did have it. HL accepted that she had therefore established that breach of duty was a cause of her injury. => This case illustrates role of tort in vindicating rights. Lord Steyn thought C’s right of autonomy and dignity ought to be vindicated by a narrow and modest departure from traditional causation principles. => majority decision in favour of C could not be based on conventional causation principles because risk of which she should have been warned was not created or increased by failure to warn! |
surgeon had advised C to undergo surgery but in breach of duty had failed to advise her of risk |
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Correia v University Hospital of North Staffordshire NHS Trust [2017] (CA) => applied Chester v Afshar [2004] (HL) |
clinical negligence claim in this case was based on advice given at C’s consultation with doctor and performance of operation. A further claim in respect of nature of C’s consent to operation was made. She had consented to a three-stage surgical procedure but, in her case, third stage was negligently omitted by surgeon. trial judge found that, although operation had been performed negligently, that negligence had not caused C’s pain or suffering. However, she argued that if she had known of risks associated with third-stage omission, she would not have gone ahead with operation. In rejecting her claim, CA reviewed decision in Chester v Afshar and endorsed its ratio: judge was entitled to find that C had failed to prove that surgeon’s negligence caused or ‘materially contributed’ to her pain and suffering. |
C claimed that she had consented to a three-stage surgical procedure but, in her case, third stage was negligently omitted by surgeon |
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Canadian case of Cook v Lewis [1951] SCR 830 |
Problems in application of ‘but for’ test arise when answer to question leads to an unjust or contradictory result, such as, for example, where damage could have been caused by fault of more than one D. This situation arose in this case when two hunters negligently fired their guns in direction of C. One bullet hit C, but it was not established which gun had fired that bullet. In absence of required proof, it was held that both D should be liable. |
two hunters negligently fired their guns in direction of C. C was hit. |
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Bonnington Castings Ltd v Wardlaw [1956] (HL) |
a steel worker who was exposed to noxious dust over a period of years, as result of his employer’s negligence, contracted a progressive disease. However, some of dust to which he was exposed was from a ‘non-negligent’ source and there was no evidence of proportions of negligent and non-negligent exposure to dust, so ‘but for’ test could not be satisfied. HL held that in these circumstances causation could be established because employer’s act or omission made a ‘material contribution’ to harm which constituted an application of, or an exception to, ‘but for’ test. |
steel worker who was exposed to noxious dust over a period of years |
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McGhee v National Coal Board [1973] (HL) |
In McGhee v National Coal Board [1973] 1 WLR 1, C worked at D’s brick kilns where conditions were hot and dusty. brick dust adhered to his sweaty skin and, because his employer failed to provide washing facilities, C had to cycle home still caked in brick dust. He contracted dermatitis and alleged that if washing facilities had been provided he would not have developed disease. medical evidence was unable to show that had washing facilities been provided C would have escaped disease. However, evidence did show that provision of showers would have materially reduced risk of dermatitis. HL held D liable on ground that it was sufficient for C to show that their breach of duty made risk of injury more probable even though it was uncertain whether it was the actual cause. If C cannot positively prove that D’s breach of duty caused damage, court may ask if D’s negligence has materially increased risk of damage occurring. In such cases it is sufficient for C to show that D’s negligent conduct made injury more probable. |
C had to cycle home still caked in brick dust. He contracted dermatitis. |
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Fairchild v Glenhaven Funeral Services Ltd [2002] (HL) => McGhee was applied |
In this case, approach in McGhee was followed. C had worked for more than one employer over many years. employers, in breach of their duty, exposed C to asbestos fibres which caused asbestos-induced mesothelioma. It was impossible to form any view about whose fibres had triggered cancer. Some of employers had gone out of business and could not now be sued. CA held that none of employers were liable because C could not prove against any of them that their fibres had caused cancer. HL held that they were all liable, so long as evidence remained inconclusive. On balance of probabilities each D’s wrong-doing had materially increased risk of C’s contracting disease and this was to be treated as proof that each D had materially contributed to it. McGhee was applied; ordinary ‘but for’ approach to causation was varied. => These appeals raised conflicting policy considerations but their Lordships found injustice of denying a remedy to employees who had suffered grave harm to outweigh potential unfairness in imposing liability on successive employers who could not be proved to have caused harm. |
asbestos-induced mesothelioma |
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Barker v Corus UK Ltd [2006] (HL) |
This case concerned exposure to asbestos on three separate occasions. One of these exposures was for six weeks with an employer who was insolvent and uninsured and second exposure was for six months with a different employer. negligence for third exposure was that of C himself during short periods when he worked as a self-employed plasterer. facts here differed from those in Fairchild in that one of periods of C’s exposure to asbestos was when he was self-employed. question arose as to whether Fairchild approach to proof of causation could apply in these circumstances and whether D were liable for all damage suffered or only for its contribution to risk that materialised. HL partially reversed ruling in Fairchild to extent that it held that liability was several rather than joint. As a consequence, although a D could still be liable without proof of causation, his liability could only extend to relative proportion to which he could have contributed to chance of outcome. D’s liability was therefore limited to extent that its negligence exposed C to risk of contracting disease. There was a 20% discount on overall amount of damages to reflect C’s contributory negligence. => This decision was seen as a victory for insurers but it met with strong resistance from trade unions and victim support groups. |
exposure to asbestos on three separate occasions |
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Sienkiewicz v Greif (UK) Ltd [2009] (CA) => Interpreting s.3(1) of Compensation Act 2006 |
In this case there was only one employer, but deceased had also been exposed to asbestos dust in environment of town where she lived. Her estate could not, therefore, prove that disease had probably been caused by workplace exposure, because there was another potential cause which did not arise from tort of employer. trial judge said that since there was only one employer C should have to prove causation on normal balance of probabilities test and he found that she failed to discharge this test. However, CA allowed C’s appeal and said that in mesothelioma cases C could establish causation by showing that workplace exposure to asbestos had materially increased risk of employee developing the disease. Interpreting s.3(1) of Compensation Act 2006, CA said intention of Parliament was to reflect common law requirements of causation in mesothelioma cases, which required proof of causation by reference to a material increase in risk. |
deceased had been exposed to asbestos dust at work and in environment of town where she lived |
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Baker v Willoughby [1970] AC 467 (HL) |
Where two independent events cause damage and second D’s breach produces same damage as that caused by first D, should first event be treated as cause? HL has considered this problem in Baker v Willoughby and Jobling v Associated Dairies. Baker’s leg had been permanently damaged in a road accident. He had to change his job and was shot by robbers (who were of course tortfeasors but were never found) and as a result his leg was amputated. D admitted negligence but argued that his responsibility ended when C was shot and therefore all losses from date of shooting flowed from robbery. HL held that damage was not subsumed in new tort, but negligent motorist continued to be answerable for damage to leg (and its continuing economic and other consequences). |
Baker’s leg had been permanently damaged in a road accident. He had to change his job and was shot by robbers. |
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Jobling v Associated Dairies [1982] AC 794 (HL) |
Where two independent events cause damage and second D’s breach produces same damage as that caused by first D, should first event be treated as cause? HL has considered this problem in Baker v Willoughby and Jobling v Associated Dairies Jobling had been injured in an industrial accident and permanently disabled. This led to a 50 per cent reduction in his earning capacity. Some years later, before damages had been assessed, he was found to be suffering from a disabling disease that rendered him unfit for work. HL decided that D was not required to compensate for losses after onset of this disease. HL was critical of, (but did not overrule) earlier decision in Baker. There would be an obvious harshness if Baker were to lose his damages because he was the victim of two torts and not just one, but it is not easy to formulate a principle explaining why Baker’s claim was not extinguished, but Jobling’s was. |
Jobling had been injured in an industrial accident and permanently disabled. This led to a 50 per cent reduction in his earning capacity. He then got a debilitating disease. |
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Gregg v Scott [2005] (HL) Hotson v East Berkshire Health Authority [1987] (HL) |
A majority of HL in Gregg v Scott (2005) reaffirmed general approach in Hotson’s case that liability for loss of chance of a more favourable outcome should not be introduced into personal injury claims. Here, misdiagnosis of appellant’s condition by a medical practitioner had reduced his chances of surviving for more than 10 years from 42% to 25%. judge dismissed his claim because delay had not deprived him of prospect of a cure; at time of his misdiagnosis, appellant had less than a 50% chance of surviving more than 10 years anyway. In Hotson hospital failed correctly to diagnose and treat his injury for some days. In due course he suffered a wasting (necrosis) of hip leading to permanent disability. Lord Bridge in Hotson held that theevidential threshold to be proved by claimants on balance of probabilities must be at least 51%,only then the claimant will be entitled to full amount of the claim. These cases illustrate reluctance of courts to allow ‘loss of a chance’ to substitute for all-or-nothing requirement that causation be proved on a balance of probabilities. |
reduced his chances of surviving for more than 10 years from 42% to 25% |
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Smith v Littlewoods [1987] AC 241 (HL) |
This case is about Intervening criminal conduct. Littlewoods purchased a derelict cinema. Unbeknownst to them, vandals often created fires inside of cinema, one of which spread to C’s property, causing damage. Issue: Could Littlewoods be held liable for not preventing danger? HL held that Littlewoods were not liable. Whilst they did owe a duty of care they were not in breach of duty. They were not required to provide 24 hour surveillance and were unaware of previous incidents. law is unwilling to impose liability for deliberate act of a third party but will do so in appropriate cases (Dorset Yacht v Home Office [1970]). general rule relating to omissions is that no liability arises for a pure omissions but there exist exceptions to this: 1. where there is a special relationship 2. an assumption of responsibility 3. where D is in control of a 3rd party that causes damage 4. where D is in control of land or dangerous thing (like a dog).
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Littlewoods purchased a derelict cinema |
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Al-Kandari v Brown [1988] (QB) |
This case involves Intervening criminal conduct. Ratio: A solicitor had undertaken to look after certain passports, but failed to do so. husband had twice previously kidnapped his children whose custody was an issue before court. Once husband regained passports, he again fled with children. Held: court should be prepared to find a duty of care on part of someone who undertook to act in a particular capacity to C and to court as custodian of C’s children’s passports, notwithstanding that solicitor also owed a conflicting professional duty of care to his client. He had accepted a duty to act as an independent custodian of passport subject to direction of court and joint directions of parties, and in that capacity owed opposing party a duty to take reasonable care to keep passport in his possession (save as opposing party might otherwise agree) and to inform it if for any reason it ceases to be in his possession. |
Man kidnapped his children after getting his passport from consulate |
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Knightley v Johns [1982] 1 WLR 349 |
This case concerns Intervening negligent conduct. There could be many situations in which subsequent carelessness of some third party has caused new injuries. In this case D’s negligent driving caused blocking of a busy road tunnel. A police inspector sent C police constable to drive back against traffic flow to close tunnel entrance. As he was driving back into tunnel C was injured by a car being driven in opposite direction. D was not liable. CA held that while it might be natural, probable and foreseeable that police would come to deal with accident and that there might be risk-taking, there were so many errors before C was sent back into tunnel that police inspector’s negligent behaviour was cause of C’s injuries. Where subsequent event is intervening act of a third party, negligent conduct is more likely to break chain of causation than non-negligent conduct. |
police inspector sent C police constable to drive back against traffic flow to close tunnel entrance |
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McKew v Holland & Hannen & Cubitts [1969] (HL) |
Intervening conduct by the claimant: Examples of where claimant’s subsequent actions are careless In McKew Ds’ negligence caused C to suffer an injury and for a short time afterwards he occasionally lost control of his leg. He went to inspect a flat and, without asking for assistance, he attempted to descend a steep flight of stairs with no handrail. When his leg gave way without warning he fell and sustained further injuries. D were not liable for his additional injury. HL held that C’s own act broke chain of causation: by placing himself in position which might involve such a risk his own conduct had been unreasonable. |
Man fell down stairs without handrail and a bad leg |
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Wieland v Cyril Lord Carpets [1969] 3 All ER 1006 |
Intervening conduct by C: Examples of where C’s subsequent actions are not careless Similar facts arose in Wieland v Cyril Lord Carpets where C had been negligently injured and forced to wear a surgical collar. This restricted her ability to focus her bifocal glasses and as a result she sustained further injuries when she fell down some steps. But here D were found liable because C had not acted unreasonably in attempting to descend steps. |
surgical collar. This restricted her ability to focus her bifocal glasses |
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Spencer v Wincanton Holdings Ltd [2010] PIQR P8 (CA Civ) |
Intervening conduct by C: Examples of where C’s subsequent actions are not careless Employer Liable For Second Accident Of Former Employee Suffered Several Years After First Accident At Work: The Court of Appeal upheld Judge's decision that Appellant employer was liable for injuries sustained by its former employee in a second accident which occurred several years after first accident at work. As a result of first accident Respondent had his leg amputated. After amputation, Respondent tripped and fell at a petrol station when he tried to fill up his car without summoning help or using his stick or prosthesis. Accident caused him to be permanently confined to a wheelchair. Respondent's contributory conduct (in not summoning help or using his stick or prosthesis) in respect of second accident was not such as to break chain of causation between Appellant's negligence and second accident as it fell below the high degree of unreasonableness required by McKew v. Holland & Hannen & Cubitts (Scotland) Ltd (1969). In dismissing employer’s appeal against liability, CA held there was no novus actus interveniens that broke chain of causation. employee’s contributory conduct towards second accident had been below standard of unreasonableness required to break chain of causation: contributory negligence was available to deal with sharing of responsibility. |
C had an amputated leg and tried to fill up how car without summoning help and then got injured further. |
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McKew v Holland & Hannen & Cubitts [1969] (HL) |
Intervening conduct by the claimant: Examples of where claimant’s subsequent actions are careless In McKew Ds’ negligence caused C to suffer an injury and for a short time afterwards he occasionally lost control of his leg. He went to inspect a flat and, without asking for assistance, he attempted to descend a steep flight of stairs with no handrail. When his leg gave way without warning he fell and sustained further injuries. D were not liable for his additional injury. HL held that C’s own act broke chain of causation: by placing himself in position which might involve such a risk his own conduct had been unreasonable. |
Man fell down stairs without handrail and a bad leg |
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Wieland v Cyril Lord Carpets [1969] 3 All ER 1006 |
Intervening conduct by C: Examples of where C’s subsequent actions are not careless Similar facts arose in Wieland v Cyril Lord Carpets where C had been negligently injured and forced to wear a surgical collar. This restricted her ability to focus her bifocal glasses and as a result she sustained further injuries when she fell down some steps. But here D were found liable because C had not acted unreasonably in attempting to descend steps. |
surgical collar. This restricted her ability to focus her bifocal glasses |
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Spencer v Wincanton Holdings Ltd [2010] PIQR P8 (CA Civ) |
Intervening conduct by C: Examples of where C’s subsequent actions are not careless Employer Liable For Second Accident Of Former Employee Suffered Several Years After First Accident At Work: The Court of Appeal upheld Judge's decision that Appellant employer was liable for injuries sustained by its former employee in a second accident which occurred several years after first accident at work. As a result of first accident Respondent had his leg amputated. After amputation, Respondent tripped and fell at a petrol station when he tried to fill up his car without summoning help or using his stick or prosthesis. Accident caused him to be permanently confined to a wheelchair. Respondent's contributory conduct (in not summoning help or using his stick or prosthesis) in respect of second accident was not such as to break chain of causation between Appellant's negligence and second accident as it fell below the high degree of unreasonableness required by McKew v. Holland & Hannen & Cubitts (Scotland) Ltd (1969). In dismissing employer’s appeal against liability, CA held there was no novus actus interveniens that broke chain of causation. employee’s contributory conduct towards second accident had been below standard of unreasonableness required to break chain of causation: contributory negligence was available to deal with sharing of responsibility. |
C had an amputated leg and tried to fill up how car without summoning help and then got injured further. |
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Corr v IBC Vehicles [2008] 2 WLR 499 (HL) |
Claimant’s subsequent deliberate conduct An example of where C’s subsequent actions are deliberate is provided by where HL held that depression as a result of accident was within compensable damage flowing from injury. deceased’s act was not entirely unreasonable in circumstances. chain of causation had not been broken by intentional act of suicide: it was not unreasonable to hold D responsible for consequences of its breach of duty. where D had a duty to protect C against an identified risk (e.g. that C would commit suicide), then risk, if it materialises, cannot be a new and intervening cause. |
C committed suicide due to depression after an accident |
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Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 |
Claimant’s subsequent deliberate conduct In this case it was held that a deliberate and informed act of suicide while of sound mind can amount to a novus actus interveniens, but where D is under a specific legal duty to guard against commission of that very act, suicide does not break chain of causation. where D had a duty to protect C against an identified risk (e.g. that C would commit suicide), then that risk, if it materialises, cannot be a new and intervening cause. |
C was in police custody and committed suicide |
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Re Polemis [1921] 3 KB 560 |
At one time, test of remoteness of damage in tort of negligence was said to be whether damage was direct consequence of breach of duty. If it was merely indirect, particularly if there was something which ‘broke the chain of causation’, then D was not liable. This test was particularly associated with decision of CA in Re Polemis. CA held that a defendant can be deemed liable for all consequences flowing from his negligent conduct regardless of how unforeseeable such consequences are. This case is an example of strict liability, a concept which has generally fallen out of favour with common law courts. This case may no longer be considered good law, having been superseded by The Wagon Mound (No 1). Facts: defendant stevedore's employees were loading cargo into a ship. An employee negligently caused a plank to fall into the ship's hold. plank caused a spark, which ignited some petrol vapour in hold, causing an explosion that resulted in ship becoming a total loss. |
An employee negligently caused a plank to fall into the ship's hold. The plank caused a spark |
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The Wagon Mound (No 1) [1961] AC 388 |
Since 1964, accepted test has been that D is liable for damage only if it was foreseeable consequence of breach of duty. Privy Council so decided in The Wagon Mound (No 1). Furnace oil had been negligently spilled from a ship in Sydney Harbour. oil had been carried to nearby docks where welding operations were in progress. A piece of cotton waste caught fire, temperature was raised sufficiently to ignite oil and resulting fire destroyed docks and ships moored there. New South Wales courts, applying English rule of time, held that (on evidence presented) great fire was not foreseeable, but that it was direct consequence of spillage and therefore D were liable. Privy Council disagreed. D should be liable only for what could reasonably have been foreseen. Privy Council gave two reasons. A test of foreseeability was (1) simpler and (2) more just, because it was unfair to hold a careless defendant liable for more than could have been foreseen when and if he thought about consequences before committing act of negligence. |
Oil spilled from ship in Sydney Harbour which causes docks and ships to catch alight |
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Hughes v Lord Advocate [1963] AC 837 |
significance of new accepted test of remoteness of damage was considered by HL in this case where employees of Post Office negligently left an open manhole unattended in street. It was covered by a canvas tent and surrounded by paraffin warning lamps. Out of curiosity two young boys entered tent and C, a boy aged eight, took one of lamps in with him. lamp was knocked into hole and caused a violent explosion in which C suffered severe burns. D were liable. Even though in the circumstances explosion was unforeseeable, kind of damage which occurred, burns, was of a type which was foreseeable. |
employees of Post Office negligently left an open manhole unattended in street |
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Doughty v Turner Manufacturing Co [1964] QB |
This case illustrates difficulty in drawing line between foreseeable and unforeseeable consequence. Here, an asbestos cover was knocked into a cauldron of molten liquid. A minute or two later, due to a chemical reaction which was unforeseeable at time, liquid erupted and C suffered burns. Hughes was distinguished by CA on ground that a splash causing burns was foreseeable but damage which occurred was of an entirely different kind. |
an asbestos cover was knocked into a cauldron of molten liquid |
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Jolley v Sutton London Borough Council [2000] 1 WLR 1082 |
HL analysed both Wagon Mound (No 1) and Hughes cases in Jolley. This is a case based on Occupiers’ Liability Acts, but common law principles were discussed and applied. These cases show that it is not necessary to foresee precisely what happened. In particular, it is not necessary to foresee either (1) severity of damage or (2) precise manner in which it occurred. It is sufficient if injury is of type that could be foreseen, even it came about in an unexpected way or was much more severe than expected. defendant council had, in breach of duty, failed after several months to remove a derelict cabin cruiser that had been abandoned on its land. issue was whether council could foresee only that small children would be injured by clambering over it, or whether (as actually happened) teenage children would be injured by jacking it up and working underneath it in order to make it seaworthy. This is in the end a matter of judgment. – CA unanimously held that accident was not foreseeable - HL unanimously held that it was |
cabin cruiser had been abandoned on council’s land |
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Robinson v Post Office [1974] |
this case involves both a true causation point and an egg-shell skull point. D was liable for negligent grazing of C’s shin. C had an unforeseeable allergy. hospital administered an anti-tetanus injection without carrying out appropriate tests. C had an allergic reaction to injection and reaction caused brain damage. There were two elements to decision: 1. evidence was that, even if proper tests had been carried out, allergy would not have been detected. Therefore hospital’s negligence was not a cause of brain damage (i.e. ‘but for’ test was not satisfied). 2. Once hospital’s negligence was out of way, allergy was equivalent of an egg-shell skull and, though it was unforeseeable, D was nevertheless liable for it.
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C had an allergic reaction to anti-tetanus injection and reaction caused brain damage |
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Liesbosch Dredger v SS Edison [1933] AC 449 (HL) |
Financial weaknesses The position used to be less clear where C suffers additional damage because of poverty. D’s negligence led to sinking of C’s dredger. C could not afford to buy a new dredger and a replacement dredger was hired at an inflated price to fulfil a contractual obligation. additional costs of hiring dredger were held to result from C’s financial circumstances and therefore were too remote. Many attempts have been made to explain and distinguish this case but HL has now decided that dicta in Liesbosch case should not be followed. |
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Proximity |
Requisite degree of closeness such that D ought to have had C in focus when ‘directing his mind to the acts or omissions which are called in question’ => Donoghue v Stevenson (1932) |
Definition |
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Floodgates of liability definition |
risk of exposing defendants to liability for "indeterminate amount for an indeterminate time to an indeterminate class". (Cardozo) |
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Hotson v East Berkshire Health Authority [1987] (HL) |
In Hotson hospital failed correctly to diagnose and treat his injury for some days. In due course he suffered a wasting (necrosis) of hip leading to permanent disability. Lord Bridge in Hotson held that the evidential threshold to be proved by claimants on balance of probabilities must be at least 51%, only then the claimant will be entitled to full amount of the claim. Hotson togetehr with Gregg v Scott illustrate reluctance of courts to allow ‘loss of a chance’ to substitute for all-or-nothing requirement that causation be proved on a balance of probabilities. |
‘loss of a chance’ to substitute for all-or-nothing requirement that causation be proved on a balance of probabilities. |
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Gregg v Scott [2005] (HL) |
This case affirms the principle of Hotson v East Berkshire Area Health Authority, on a narrow margin of 3 to 2. Lord Nicholls' dissent(together with Lord Hope's) is of particular note, in arguing that loss of a chance should be actionable. A majority of HL in Gregg v Scott (2005) reaffirmed general approach in Hotson’s case that liability for loss of chance of a more favourable outcome should not be introduced into personal injury claims. Here, misdiagnosis of appellant’s malignant cancer, stating it to be benign, by a medical practitioner had reduced his chances of surviving for more than 10 years from 42% to 25%. C could not establish the defendant had prevented him being cured, as his original chance of a cure was below 50%. C argued that he was entitled to recover for the loss of the 17% chance the defendant had deprived him of. HL dismissed his claim, upholding the earlier decision of Hotson, because delay had not deprived him of prospect of a cure; at time of his misdiagnosis, appellant had less than a 50% chance of surviving more than 10 years anyway. Lord Nicholls: 'In such cases, as in the economic 'loss of chance' cases, the law should recognise the manifestly unsatisfactory consequences which would follow from adopting an all-or-nothing balance of probability approach as the answer to this question. The law should recognise that Mr Gregg's prospects of recovery had he been treated promptly, expressed in percentage terms of likelihood, represent the reality of his position so far as medical knowledge is concerned. The law should be exceedingly slow to disregard medical reality in the context of a legal duty whose very aim is to protect medical reality. In these cases a doctor's duty to act in the best interests of his patient involves maximising the patient's recovery prospects, and doing so whether the patient's prospects are good or not so good. In the event of a breach of this duty the law must fashion a matching and meaningful remedy. A patient should have an appropriate remedy when he loses the very thing it was the doctor's duty to protect. To this end the law should recognise the existence and loss of poor and indifferent prospects as well as those more favourable. Application of the all-or-nothing balance of probability approach in the 'Gregg' type of cases would not achieve this object. In such cases the law should therefore put aside this approach when considering what would have happened had there been no negligence. It cannot be right to adopt a procedure having the effect that, in law, a patient's prospects of recovery are treated as non-existent whenever they exist but fall short of 50%. If the law were to proceed in this way it would deserve to be likened to the proverbial ass. Where a patient's condition is attended with such uncertainty that medical opinion assesses the patient's recovery prospects in percentage terms, the law should do likewise. The law should not, by adopting the all-or-nothing balance of probability approach, assume certainty where none in truth exists. The difference between good and poor prospects is a matter going to the amount of compensation fairly payable, not to liability to make payment at all. As Dore J said in Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P 2d 474, 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.' |
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