Gregg v. Scott

Mr. Gregg consulted Dr. Scott, his general practitioner about a lump under his arm. Dr. Scott diagnosed the lump wrongfully as being benign. However, it was later discovered that the tumor was cancerous and had spread to various other parts of Mr. Gregg’s body. As a consequence of the Dr. Scott’s misdiagnosis, treatment for Mr. Gregg did not begin until nine months after the initial check-up. Because of this delay, his chances of recovering enough for ten further years of disease-free survival were effectively reduced from 42% to 25%.

Mr. Gregg brought an action for damages against Dr. Scott for medical negligence. The trial judge held that damages would not be recoverable, as Mr. Gregg had not been deprived of the prospect of a cure because his prospects of survival past ten years were less than 50 percent even if he had been treated immediately. At common law, damages would only have been recoverable if Mr. Gregg would otherwise have recovered on the balance of probabilities. At the Court of Appeal, Mr. Gregg argued that a reduction in his chances of survival or a loss of a chance by itself warranted the recovery of damages. This contention was rejected too, and the claimant appealed to the House of Lords.

The Court held that damages were not recoverable for the reduced chances of a favourable outcome and there was no justification for the introduction of such a liability. Under existing precedents, the common law took an all-or-nothing approach to causation and damages, not a proportionate one. It would award damages for Mr. Gregg’s actual likely loss of life expectancy, not for a change in the odds of his survival. Altering these fundamental principles would amount to a legislative rather than a judicial act, and the Court did not consider that there was a satisfactory way of distinguishing Mr. Gregg’s case from the general rule.

As such, it needed to be proved on the balance of probabilities that had the negligence not occurred, Mr. Gregg would have survived longer than ten years. Only in such a case could Mr. Gregg be proved to have suffered an injury attributable to the defendant’s negligence. In this case, it could not be established that delay in diagnosis had caused a reduction in Mr. Gregg's life expectancy. The appeal was dismissed.

“I respectfully think that this formulation begs more than one question. It is true that the delay caused an early spread of the cancer and that this reduced his percentage chance of survival for more than 10 years. But to say that the claimant can therefore obtain damages for the reduction in his chances of survival assumes in his favour that a reduction in the chance of survival is a recoverable head of damage; an issue raised by the claimant's second argument which Latham LJ said (at paragraph 41) that he did not need to decide. On the other hand, if the claim is for actually depriving him of survival for more than 10 years, the question is whether the spread of the cancer caused it. The judge's finding was that it did not. It was likely that his life would have been shortened to less than 10 years anyway.” Para. 71.

“If it is more likely than not that the defendant's carelessness caused me to lose a leg, I do not want my damages reduced to the extent that it is less than 100% certain that it did so. On the other hand, if it is more likely than not that the defendant's carelessness did not cause me to lose the leg, then the defendant does not want to have to pay damages for the 20% or 30% chance that it did. A 'more likely than not' approach to causation suits both sides.” Para. 195.

“Almost any claim for loss of an outcome could be reformulated as a claim for loss of a chance of that outcome. The implications of retaining them both as alternatives would be substantial. That is, the claimant still has the prospect of 100% recovery if he can show that it is more likely than not that the doctor's negligence caused the adverse outcome. But if he cannot show that, he also has the prospect of lesser recovery for loss of a chance. If (for the reasons given earlier) it would in practice always be tempting to conclude that the doctor's negligence had affected his chances to some extent, the claimant would almost always get something. It would be a 'heads you lose everything, tails I win something' situation. But why should the defendant not also be able to redefine the gist of the action if it suits him better?” Para. 224