The loss of chance argument for proportionate recovery was subsequently raised again in the medical negligence context in the case of Gregg v Scott.24 The claim once again failed. The
claimant in Gregg went to the defendant doctor complaining of a lump under his arm which the defendant negligently diagnosed as a benign fatty lump rather than referring the patient for further tests which would have shown that it was cancerous. This resulted in a nine month delay in the diagnosis and commencement of treatment of the claimant’s disease. The claimant argued that the nine month delay due to the defendant’s negligence had caused him to lose a chance of being cured because his chance of cure had been reduced from a statistical 42 percent at the time of negligence to 25 percent at the time of trial.25 The medical definition of cure is ten years
disease-free survival, so the claim was that the negligence had caused him to lose a chance of ten years disease-free survival.26 (Since the details of the facts are relatively dense they will be
presented in more depth in relation to each issue rather than being repeated here.)
It will be argued that he presented a claim that was destined to fail. There are barriers to accepting the loss of a chance argument in itself, but even more so in a case such as this where the ‘chance’ has not been definitively lost. This is not because the claimant’s ‘chance’ was reduced to 20-30 percent,27 but because the claimant was still alive, and until he either died or
24 Gregg v Scott [2002] EWCA Civ 1471, [2003] Lloyd's Rep Med 105; [2005] UKHL 2, [2005] 2 AC 176.
25 The reliability of these statistics will be considered below in addition to asking whether the loss of such a chance
can constitute damage.
26 The start date for measuring the ten year period is unclear. The medical evidence referred to ten years disease free
survival which suggests it is measured from the date that the tumour has been eliminated. Lord Phillips thought that it probably started at the date of commencement of treatment (Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176, [132]). At trial and in the Court of Appeal reference was made to the chance of five years’ disease-free survival but this seems to be because of the number of years that had elapsed between the negligence and the trial, so the medical definition of cure was still premised on ten years’ disease-free survival.
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survived disease-free for ten years it could not be said that this ‘chance’ had run its course. The problem seems to arise because the claimant used the loss of a chance argument to try to avoid the difficulty of proving a causal link between the negligence and the harm. But given that the claimant had not yet suffered the ‘outcome’ to which the chance related i.e. dying before ten years had elapsed, even if the evidence had favoured finding a causal link between the doctor’s negligence and the claimant’s probable death, he would still have been unable to claim for this because he had not yet suffered the loss. Effectively, faced with a case where it was going to be difficult to prove that the defendant’s negligence had caused loss to the claimant, he decided to advance a case based on loss of a chance, yet he made his loss of a chance argument more difficult/less palatable than it might otherwise have been by claiming for the loss of the chance of avoiding a harm that he had not yet, and may never, suffer. However, it seems that the claimant could have advanced a more modest claim based on traditional principles and that such a claim ought to have succeeded. Similarly to the discussion of Hotson in the previous section, the following analysis seeks to clear away any misconceptions surrounding how conventional negligence principles would apply to this case in order to be left with a clearer understanding of what problems remain that might be solved by taking a loss of chance approach to recovery.
2.1 Pain and suffering
During the nine months between the defendant’s negligence and the eventual diagnosis of the claimant’s illness the cancer had ‘gradually enlarged’.28 Following the referral for a biopsy he was
admitted to hospital with ‘acute and intense chest pain which was a result of the lymphoma having spread, in particular to the left pectoral region’.29 The spread of the cancer is a personal
28 Gregg v Scott [2002] EWCA Civ 1471, [2003] Lloyd's Rep Med 105, [1] (Latham LJ). 29 ibid [2].
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injury, and the claimant ought to have been able to recover for this physical injury and the consequential pain and suffering.30
The next issue is the extent of the treatment that the claimant had to undergo. The claimant underwent chemotherapy, supplemented by radiotherapy. The tumour responded but not completely, so the claimant underwent a more aggressive treatment of high dose chemotherapy, with harvesting of stem cells. He suffered side effects from the treatment, and these were severe in the case of the high dose chemotherapy. He had to give up work, felt ill and had felt weak ever since. At first instance, Inglis J found that ‘it is possible to say on the basis of Professor Goldstone’s model that he would more probably than not have achieved complete remission with initial CHOP therapy and without high dose chemotherapy with stem cell harvesting’.31
Baroness Hale, despite rejecting the claim for loss of a chance, still acknowledged that this amounted to a finding that ‘the claimant would have achieved initial remission had he been treated earlier’.32 She ultimately considered that it was probable that the claimant would still have
suffered the same setbacks and that the relapses would have happened anyway, but she did say: Even on conventional principles, this does not necessarily mean that the claimant is not entitled to anything at all. The defendant is liable for any extra pain, suffering, loss of amenity, financial loss and loss of expectation of life which may have resulted from the delay. If, without the delay, the claimant would have achieved a longer gap before more radical treatment became necessary, then he should be entitled to damages to reflect the acceleration in his suffering. If the pain and suffering he would have suffered anyway was made worse by the anguish of knowing that his disease could have been detected earlier, then he should be compensated for that.33
30 Gregg (HL) (n26) Lord Hope, who ultimately would have allowed the claim for loss of a chance, recognised that he
was in the minority and that the claim would therefore fail, but expressed his hope ‘that it was not too late for the pain and suffering which the appellant suffered due to the tumour’s enlargement…to be brought into account by way of an award of general damages’ [123].
31 [38] (Inglis J), cited in Gregg (HL) (n26) [202] (Baroness Hale). 32 Gregg (HL) (n26) [203].
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It is therefore clear that even if she thought that the delay had no effect on the overall prognosis for cure, so the spread of the cancer did not affect the final outcome of death/survival, she did think that the spread of the cancer was physical harm and that this had affected the treatment necessary which caused him greater pain and suffering. Again, he could have recovered for this if he had formulated his claim in terms of the spread of the cancer and the consequences of the spread.
2.2 Loss of life expectancy
The claimant argued that the defendant’s negligence caused him to lose a chance of a cure by reducing this chance from 42% to 25%. Given that the medical definition of cure is ten years’ disease-free survival, the claim for lost years was that the negligence had caused him the loss of a chance of ten years’ disease-free survival. By incorporating the medical definition of cure into the claim for lost years the claimant seems to have made it easier for the court to reject his claim. This is because introducing a cut-off date of ten years adds a binary quality to the inquiry – he either will or will not live for ten years, and the delay in diagnosis either has or has not prevented him for living for ten years. If he had advanced a more modest yet conventional claim for loss of life expectancy, which is open-ended in nature, then it seems likely that he would have been able to establish that the delay in diagnosis did reduce his life expectancy. Admittedly his life expectancy was already quite short at the time of the negligence, but the spread of the cancer due to the delay reduced it even further.
Lord Phillips highlighted this problem which was created by the way the claim for lost years was formulated:
The conventional way of determining the effect of the injury on expectation of life is as follows. The court determines what the claimant’s expectation of life would have been but for the injury. The court then determines what the claimant’s expectation of life is
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having regard to the effect of the injury. The difference between the two constitutes the “lost years”.34
It is important to note that a conventional claim for loss of life expectancy is not the same as the ‘hook’ argument. The hook argument consists of arguing that once a claimant can point to some actionable damage that was caused by the defendant’s negligence, all other chances are recoverable as a matter of quantification. As discussed above in relation to Hotson, a claimant will actually only be compensated where the reduction in the chance of avoiding future illness or of making future gain is as a consequence of the actionable damage i.e. causally related to the actionable damage.35 This is an area where the importance of distinguishing clearly between
issues of damage, causation, and quantification, is very apparent yet often overlooked. Mr Gregg was unable to show that there was a causal link between the spread of the cancer and the final outcome of being cured (or failing to survive for ten years) because on the balance of probabilities he would not have survived ten years even with timely diagnosis. But if he had advanced a conventional claim for the physical harm constituted by the spread of the cancer, the additional pain and suffering caused by the spread, and the more aggressive treatment, then it would seem likely that having more extensive cancer would have reduced his life expectancy somewhat, even if his life expectancy was already short because he was suffering from cancer at the time of the negligence. If a claimant with an identical disease was shot and killed by a defendant, in valuing the lost years the court would assess his life expectancy with cancer at the time he was shot and compensate the lost years. So it is not making an impossible demand on the court to ask them to assess his life expectancy at the time of the negligence and his life expectancy nine months later when the cancer had spread.
Lord Phillips summarised the various ‘adverse events’ that Mr Gregg had suffered ‘beyond the initial development of his cancer’ as: i) the spread of the cancer to the pectoral region accompanied by acute pain; ii) high dose chemotherapy with harvesting of stem cells; iii) relapse
34 Gregg (HL) (n26) [131]. 35 See text to (n13).
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when a tumour developed in the right axilla accompanied by chemotherapy; iv) psychiatric distress on being told that the relapse meant that he would die; v) further suspected relapse with additional chemotherapy.36 He correctly explained that ‘the chance that the delay in commencing
his treatment has caused each of these adverse events is not the same’.37 This highlights the need
for claimants to be careful and specific in how they detail the loss for which they are claiming, and also the need for a claimant to be realistic about what he can prove. Given that corrective justice requires that a defendant only pay for that loss that he caused through his negligence, a claimant will only recover if he can prove the causal link between the negligence and the damage. It is surely preferable for a claimant to receive modest compensation for that portion of the loss the defendant can be proved to have caused, rather than to attempt to combine the losses into one claim for the loss of a chance of a better outcome. Lord Phillips concluded that
On balance of probability I suspect that one is now in a position to conclude that the delay in commencing Mr Gregg’s treatment has not affected his prospect of being a survivor but has caused him all the other adverse events which I have set out above.38
If Mr Gregg had advanced a conventional claim for these limited heads of damage it is therefore likely that he would have been successful.