Gregg v Scott

Gregg v Scott

1. Dividing question in this case :

   • Remedies are essential and a principled ground for proving an appropriate remedy can be found
     • The claimant sought a remedy for negligence and misdiagnosis of cancer by his doctor. The act of negligence had lead to an delay of treatment and reduced the claimants chances of prospecting recovery from 45% to 20%.
       • In trial and appeal the courts decided the facts following the percedent set out by the Supreme Court in Hoston v East Berkshire Area Health Authority [1987] EWCA Civ 1471
         • The claimant was only than able to recover damages if his initial prospects of recovery where more than 50%

2. The present Case: Salient facts of the appeal

   • The defendant diagnosed a lump under the claimants arm as non cancerous.
     • This caused an delay of 9 Month in treatment allowing the cancer to spread widely and reduced the initial prospects of disease free survival from 42% to 25%
       • The judiciary found that initial treatment would had avoided the need for aggressive chemo therapy treatment and also would prevented the cancer form spreading.
         • The trial judge fund also the prospects of the claimant being disease free would not have in the absence of the defendants act of negligence exceeded the determined 42% probability
           • The judge assessed at the trial, the claimants prospects of being disease free had due to the negligent act reduced by roughly half to 20%

3. Past facts and future prospects

   • Common law approach to proof actionable damages
     • the claimant must prove the facts giving rise to a cause of action on the balance of probability
       • where the claim is based on negligence the facts must be proved on the balance of probability but also a duty of care and its breach must be owned
         • in the normal way proof of facts must include a proof of the claimants present position and proof of the situation the claimant would have been in if the wrongful act or omission did not occurred
           • if an event probably happend ( on the balance of probability) there is no discount to be made for possibility it did not
             • proof of future possibilities is approached different . The likelihood of the event happening in the future requires an assessment of likelihood that the event will happen
               • proof of past and future follows the same principle: in other words when deciding what would have happened in the past or future but the past happening (such as the defendant negligent act)
                 • based on the all or nothing approach of the balance of probability what would have happened in the past but for a past happening
                   • what would have happened in the future but for something happened in the past an assessment of likelihood is required
                     • For example McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295, 306-307, 309
                       • Would the employee had injured his hand if the employer would have provided PPE?
                         • Would the employee had worn the PPE if the employer had provided it ?
                           • Would the employees hand had developed osteoarthitis due to the accident ?
                             • Would the employees hand had developed osteoarthritis in later life in the absence of the accident ?
                     • words of Lord Diplock in Mallett v McMonagle [1970] AC 166, 176: 'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.
                       • words of Lord Diplock in Mallett v McMonagle [1970] AC 166, 176: 'The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.
                         • Conclusion : Events happened in the past must be proven on the balance of probability. Events happening or not in the future require an assessment of likelihood. be mindful of hypothetical future events and hypothetical future facts

4. Loss of opportunity or chance of future prospects

   • Hypothetical past events must be proven on the balance of probability
     • in some cases the defendants` wrong deprived the claimant of a chance to to achieve what is outside his control or uncertain , this wrong would then deprive the claimant of a chance to achieve the desired outcome
       • As the uncertainty of the outcome increases the the lesser the defendants claim has the desired outcome , therefore the loss becomes increasingly unattractive as well as the uncertainty of the outcome
         • this requires the determination of the opportunity lost rather than by desired outcome. this way the claimants` loss accords closely with what the claimant had lost by the defendants negligence
           • this also does not depart from the principle that the claimant must prove actionable damage on the balance of probability .
             • the law does treat loss of opportunity or chance as actionable damage. the claimant must prove this on the balance of probability. the law the court will measure this loss ( if the chance is speculative it must be ignored
               • for example, Spring v Guardian Assurance Plc [1995] 2 AC 296, 327. The employer negligently supplied an inaccurate character reference, the was no need to prove this but for the negligence he had to prove that he would have been given the new job. the employe only hat to prove he lost a reasonable chance of employment

5. Medical Negligence: Primary Question in this case : Should the loss suffered by the patient in Mr Greggs position be identified ?Loss is confined to an outcome which is shown, on balance of probability, to be worse than it would have been in the absence of medical negligence.

   • Mr Greggs must prove that, on balance of probability, his medical condition after the negligence was worse than it would have been in the absence of the negligence.
     • Mr Greggs argues that, His loss includes proved dimunition in the prospects of a favorable outcome. Dr Scotts negligence deprived him of a worthwhile chance that his medical condition would not have deterioated as it it.
       • In practice: A patient with a progressive illness loses when the treatment he needs is delayed because of a negligent diagnosis. The losses depend on the circumstances of the case.
         • In medical opinions : are often opposing : an immediate diagnosis and treatment may not alter the prospects of recovery and the doctors misdiagnosis would not have made significant difference.
           • In contrast: the patient could have lost all his chances, barring unforeseen complications he would have made a complete recovery had h9is condition been diagnosed properly and he had received the recommended treatment,
             • despite constant progress in medical science the outcome of each individuals prognosis depends largely on the individual itself but is inherently uncertain.
               • The uncertainty of the outcome gives rise to a loss of the favorable outcome rather than the outcome itself. In practice this rises a claim of the patience loss by reason of the negligence. The doctors` negligence diminished the patients prospects of recovery
                 • This analysis of the loss accords with the with the duty the doctor was in breach. In short the purpose of the duty is to promote the patients` prospects of recovery by exercising due skill and care in diagnosing and treating the patients` condition
                   • This approach leads to law of tort. The common law imposes duties and seeks to provide appropriate remedies in the event of a breach of duty. If negligence diminishes a patients` prospects of recovery the law must recognise this.
                     • "losing a chance of saving a leg is not the same as losing a leg" Tony Weir, 2007,p 76
                       • It cannot be fair when the law provides a remedy where a professional financial advisers` negligence causes a opportunity or chance to be missed but refuses a remedy to a patient in which the neglecting doctor
                         • Therefor Justice requires that, the loss of chance should constitute actionable damage

6. Loss of prospects and medical statistics

   • In medical negligence a assessment of a patients` loss may be hampered to greater or lesser extent by one crucial fact fact being unknown and unknowable.
     • there are two aids in how to assess how the patient would have responded to proper treatment at the right time. - the patients previous and subsequent history and statistical evidence
       • Statistical evidence record retrospectively what happened to other patients in similar or comparable situations by revealing trends of outcomes. This is very general and will not show whether the claimant patient would have responded or how, which makes statistics an imperfect mean of assessing the outcome.
         • statistical evidence showed that 42% of the patients suffering would have achieved 10 years survival if treated at the early stage. Considering the delay due to the negligence he would had a 25% chance.
           • The question of which category either 42% or 58% Mr Gregg was in remained unknown, the absence of evidence in this case did not enabled anyone to predict whether or not on the balance of probability the former or Mr Greggs response where if treated promptly
             • The difficulty was as the foundation of this was based on an statistical chance without value, the loss does did not attracted an award of compensation
               • This suggested the award of compensation for such loss, determined on percentage chances will lead to injustice.
                 • The injustice would result in an under compensation of those whose outcome was not in fact worsened by the delay and over compensate those which outcome was in fact worsened
                   • This argument can despite the impeccable logic not be accepted.
                     • In reference to Fairchild v Glenhaven the courts are prepared to adapt their process so as to leap an evidentiary gap when overall fairness so requires.
                       • In the present case the use of statistics makes good sense
                         • It is common knowledge that the delay of speedy medical treatment may have adverse effects
                           • Medial experience collected in statistics are often the only basis on which the courts can evaluate the diminution in prospects of recovery in an delayed treatment
                             • depending on the weight and quality of the statistical evidence and if there is no other source of evidence courts should be able to use this evidence
                               • Use of statistics is not new to the courts, it is frequently used to assess claims

7. Identifying a lost chance in medical negligence cases

   • In loss of chance cases the identification of the chance the claimant lost is straight forward. The claimants position can be established through the tort committed hypothetical situations may not have suffient weight to be decicive
     • The claimants actual position at the time of the negligence, proved on the balance of probability if disputed is not determinative of the hypothetical fact: what would have been the claimants position in the absence of the wrong
       • In medical negligence the position is different the patients condition at the time of the negligence is often be determinative of the answer to the crucial important hypothetical question: what would have been the claimants position in the absence of the negligence.
         • Uncertainties in some cases such as sience and medical knowledge may not always permit to answer the factual question
           • Framing a first factual question in the present case would be to identify the nature and the extent of Mr Gregg`s cancer at the time of the mistaken diagnosis
             • The second factual question would be : What what could have been the outcome if teh cancer had been treated promptly
               • these questions give rise to medical uncertainty which not allow to predict an outcome
                 • compared to the opposing principle in hostons case this is where both cases distinguish
                   • a further difficulty arises when applying the dimunition in prospects approach this would involve depatr from the all or nothing on the balance of probability approach to deside the question of past fact
                     • The question of law in the present case is : How how the law should proceed when the patients condition has duly identified on the balance of probability with as much particularrity as is reasonably possible,, medical opinion is unable to determine with a reasonable degree of certainty what the outcome would be if the negligence not had occured
                       • in the event of such breach of duty the law must provide a matching and meaningful remedy
                         • the present state of law is crude and means that a patient with 60 % chance of recovery is due to negligence reduced to 40% can obtain compensation but he can obatin nothing when hgis chances are reduced from 40% to nil.
                           • The common law does need to adapt in respect of medical science and an appropriate remedy must be provided in both these situations
                             • The detailed facts and statistical evidence in the present case are complex. This complexity is irrelevant on the point of fundamental principle discussed above. The difficulties arising from this complexity are not created or increased by the need to make a percentage calculation when assessing damages on the loss of chance basis. The same difficulties would have existed if the judge had found that, given prompt treatment, on balance of probability Mr Gregg's condition would not have deteriorated as it did.