1. Analysis of Hotson v East Berkshire Health Authority
1.2 Distinguishing damage, causation, and quantification
As argued in Chapter One, it is essential to maintain a clear distinction between the negligence doctrines, notably damage, causation, and quantification. At first instance, Simon Brown J said that ‘[i]n 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’.6 The
conventional approach to negligence is that a claimant must show that he has suffered actionable damage and that the negligence was a cause of this damage. Physical injury is a recognised form of damage, but the loss of a chance of avoiding physical injury was previously not recognised as being capable of forming the gist of a negligence action. Once all the elements of a negligence claim have been established and the court is concerned with valuing the claimant’s loss, the principle of restitutio in integrum means that the claimant should be compensated for all the losses that flow from the personal injury. Certain lost chances are recoverable at this stage. Simon Brown J explained:
Time and time again courts evaluate past and future medical risks and award damages based on an assessment of the likelihood (a) of some adverse medical condition, like epilepsy or osteo-arthritis, developing consequent on the injury, or (b) that some pre-
4 Hotson v East Berkshire HA [1987] AC 750 (HL).
5 Hotson v Fitzgerald and others [1985] 3 All ER 167, 173 (Simon Brown J’s evaluation of the evidence is available in
this report but omitted from that of the Weekly Law Reports).
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existing, perhaps degenerative, condition would in any event have manifested itself so as to cause the same or at any rate some lesser degree of disability as has been occasioned by the injury.7
This is simply an aspect of returning the claimant to his pre-tort position. But the judge then went on to overstate the significance of this, suggesting that:
There is really no significant difference between that exercise and what the court is being invited by the plaintiff to do in the instant case.8
In fact, there is a significant difference between these principles and the loss of a chance argument in that they address issues of quantification whereas the loss of chance argument involves a prior issue of damage and causation. The following sections will therefore distinguish the aspects of damage, causation and quantification in those traditional principles in order to show that the loss of a chance of avoiding avascular necrosis is not analogous with existing negligence principles.
1.2.1 The ‘hook’ argument
Simon Brown J considered that the claimant’s five days pain and suffering constituted actionable damage, and that the lost chance of recovery could simply be regarded as a question of quantification.9 This is referred to by Stapleton as the ‘hook’ argument, the idea being that once
it has been proved that the negligence caused some physical damage, albeit minimal, any lost chance of avoiding further harm can be ‘hooked’ on to this claim as an issue of quantification.10
But he went on to say ‘this very point underlines how unsatisfactory it would be to suppose that the case should turn entirely on whether there is any directly provable injury, however slight.
7 ibid 1045.
8 ibid.
9 Hotson (QBD) (n3) 1045.
10 Jane Stapleton, ‘Cause in fact and the scope of liability for consequences’ (2003) 119 LQR 388; ‘Loss of the
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That will itself often be a matter of chance’.11 However Simon Brown J has overstated the ‘hook’
concept here. In his earlier explanation of conventional principles he had noted that courts regularly assess the likelihood that the claimant will develop a medical condition consequent on the injury.12 It is necessary to show that there is a causal link between the injury that the defendant
has actually caused and the anticipated future illness. The defendant is not required to pay for all future illnesses that the claimant might suffer, he is required to compensate for those illnesses that the claimant might suffer because of the harm the defendant has negligently caused him. In
Hotson the claimant was unable to prove that the delay in treatment had caused the avascular
necrosis, so he would have been equally unable to prove that his five days pain and suffering was causally related to the avascular necrosis. Lord Bridge explained this in the House of Lords:
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.13
By understanding that the hook argument would only succeed where there is a causal relationship between the actionable injury and the risk of future illness it is clear that it is not arbitrary as Simon Brown J suggested. The hook idea should continue to be used where actionable injury causes the claimant an increased risk of future illness, but cannot apply in
11 Hotson (QBD) (n3) 1045-46. 12 See text to (n7) (emphasis added). 13 Hotson (HL) (n4) 780 (Lord Bridge).
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Hotson where there is no causal relationship between the five days pain and suffering and the
increased risk of avascular necrosis.
1.2.2 The vicissitudes principle
As noted above, Simon Brown J also observed that courts regularly take into account the likelihood that some pre-existing condition would have resulted in the same degree of disability when valuing the loss caused by the defendant.14 This is known as the vicissitudes principle.
When calculating loss of earnings the multiplier used by the court is reduced to take account of the ‘vicissitudes of life’ i.e. the risk that the claimant’s earnings would have been reduced by other unrelated accidents or illnesses.15 Simon Brown J said that this amounts to holding that ‘if
the risk, or chance [of avoiding injury], is less than 50 per cent then the plaintiff gets nothing. If, however, it is over 50 per cent then the court should proceed to determine the matter as one of quantum, which involves having regard to the chances and contingencies and making discount accordingly’.16 This, he said, ‘smacks somewhat of heads I win, tails you lose’.17
He is right to say that such a position would discriminate in favour of defendants, yet once again he has overstated the issue. The discount made for the vicissitudes of life is made to reflect as accurately as possible the true value of the loss suffered by the claimant. Damages should return the claimant to the position he would have been in without the negligence so the court must do its best to account for the events that would have befallen him anyway including the likelihood that unrelated illness or accident would have impacted on the claimant’s earning capacity in the future. It is an issue of quantification. The fact that the defendant’s negligence was a cause of the injury actually suffered is not in doubt. In Hotson the claimant did not establish that the defendant’s negligence caused him to suffer avascular necrosis so the subsidiary task, of taking
14 See text to (n7)
15 Lim Poh Choo v Camden & Islington AHA [1980] AC 174 (HL) 16 Hotson (QBD) (n3) 1049.
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the pre-existing chance of injury into account when valuing the loss caused by the negligence, never arises.
The difference is apparent if Hotson is compared with Smith v Leech Brain.18 In that case the
defendant’s negligence caused the claimant to suffer a burn on his lip which triggered a pre- cancerous condition and led to his eventual death. The pre-cancerous condition meant that independently of the negligence there was an increased likelihood that he would have developed cancer in the future, so his damages were reduced by five percent to account for this possibility. Stapleton suggests that this is indistinguishable in effect from the loss of chance-based claim for proportionate recovery:
The “discount” is made not to reflect that chance that the triggering had been due to a cause other than the defendant’s fault (because it was clear that this had not been the case) but to reflect the true value of the loss which the defendant had caused the plaintiff to suffer. In many cases, if not all, this approach will give a result indistinguishable from that produced had the claim been framed in terms of loss of a chance.19
Even though the result might look indistinguishable from a claim for proportionate recovery framed as a claim for the loss of a chance, it does not mean, as Stapleton suggests, that valuing a lost chance as a proportion of the physical harm to which the chance relates is conceptually sound. There was no doubt in Smith that the defendant’s negligence had caused the claimant to suffer the harm at that particular time. Yet when making a discount for the vicissitudes of life at the valuation stage, account was taken of the pre-cancerous condition to personalise the likelihood that the claimant would have died prematurely anyway. In Hotson the doubt surrounded the question of whether the defendant’s negligence had caused him to suffer avascular necrosis at this time. If proportional recovery were allowed in Hotson it would not reflect the chance that the claimant would have suffered the same loss due to an unrelated illness
18 Smith v Leech Brain & Co [1962] 2 QB 405 (QBD).
19 Jane Stapleton, ‘The gist of negligence: Part 2 the relationship between “damage” and causation’ (1988) 104 LQR
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at some stage in the future, it would reflect the degree of doubt over whether the defendant had even caused him any loss.
In the House of Lords, Lord Ackner correctly stated that ‘[o]nce 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’.20 Understanding that the vicissitudes principle relates to valuation of loss once
a causal link has been established makes it clear that it is distinct from the loss of chance argument which seeks to solve a difficulty relating to proof of causation. Simon Brown J suggested that the rejection of the loss of chance argument would be inconsistent with the conventional approach in this respect, yet it has been shown that this is not the case.
Stapleton has criticised the decision of the House of Lords for failing to resolve the essence of the claimant’s argument, ‘namely whether reformulation of the gist in terms of loss of a chance should now be acceptable’.21 It is clear that this is what the claimant was trying to do, and that he
was trying to do this because of his inability to prove a causal link between the negligence and the physical outcome. The above discussion should also have added some clarity to what happens at each stage of a conventional claim in terms of damage, causation and valuation, so that arguments for and against reformulating the gist in terms of loss of a chance are considered against an accurate picture of traditional recovery.