Judgments - Gregg (FC) (Appellant) v. Scott (Respondent)

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    78.  In Fairchild, the claimant had contracted mesothelioma by exposure to asbestos. The medical evidence was that the condition was probably the result of a cell mutation caused by a single fibre. The claimant had worked with asbestos for more than one employer and could not prove whose fibre had caused his disease. The Court of Appeal said that the cause of the disease was not indeterminate. It had either been caused by the defendant's fibre or it had not. It was for the claimant to prove causation on a balance of probability. The House of Lords accepted that the disease had a determinate cause in one fibre or other but constructed a special rule imposing liability for conduct which only increased the chances of the employee contracting the disease. That rule was restrictively defined in terms which make it inapplicable in this case.

    79.  What these cases show is that, as Helen Reece points out in an illuminating article ("Losses of Chances in the Law" (1996) 59 MLR 188) the law regards the world as in principle bound by laws of causality. Everything has a determinate cause, even if we do not know what it is. The blood-starved hip joint in Hotson, the blindness in Wilsher, the mesothelioma in Fairchild; each had its cause and it was for the plaintiff to prove that it was an act or omission for which the defendant was responsible. The narrow terms of the exception made to this principle in Fairchild only serves to emphasise the strength of the rule. The fact that proof is rendered difficult or impossible because no examination was made at the time, as in Hotson, or because medical science cannot provide the answer, as in Wilsher, makes no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. Everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.

    80.  Similarly in the present case, the progress of Mr Gregg's disease had a determinate cause. It may have been inherent in his genetic make-up at the time when he saw Mr Scott, as Hotson's fate was determined by what happened to his thigh when he fell out of the tree. Or it may, as Mance LJ suggests, have been affected by subsequent events and behaviour for which Dr Scott was not responsible. Medical science does not enable us to say. But the outcome was not random; it was governed by laws of causality and, in the absence of a special rule as in Fairchild , inability to establish that delay in diagnosis caused the reduction in expectation in life cannot be remedied by treating the outcome as having been somehow indeterminate.

    81.  This was the view of the Supreme Court of Canada in Laferrière v Lawson (1991) 78 DLR (4th) 609, a case very like the present. A doctor negligently failed in 1971 to tell a patient that a biopsy had revealed a lump in her breast to be cancerous. She first learned of the cancer in 1975, when the cancer had spread to other parts of the body and died in 1978 at the age of 56. The judge found that earlier treatment would have increased the chances of a favourable outcome but was not satisfied on a balance of probability that it would have prolonged her life. Gonthier J said that although the progress of the cancer was not fully understood, the outcome was determined. It was either something capable of successful treatment or it was not.

    "Even though our understanding of medical matters is often limited, I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery." (p 656)

    82.  One striking exception to the assumption that everything is determined by impersonal laws of causality is the actions of human beings. The law treats human beings as having free will and the ability to choose between different courses of action, however strong may be the reasons for them to choose one course rather than another. This may provide part of the explanation for why in some cases damages are awarded for the loss of a chance of gaining an advantage or avoiding a disadvantage which depends upon the independent action of another person: see Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 and the cases there cited.

    83.  But the true basis of these cases is a good deal more complex. The fact that one cannot prove as a matter of necessary causation that someone would have done something is no reason why one should not prove that he was more likely than not to have done it. So, for example, the law distinguishes between cases in which the outcome depends upon what the claimant himself (McWilliams v Sir William Arrol & Co [1962] 1 WLR 295) or someone for whom the defendant is responsible (Bolitho v City and Hackney Health Authority [1998] AC 232) would have done, and cases in which it depends upon what some third party would have done. In the first class of cases the claimant must prove on a balance of probability that he or the defendant would have acted so as to produce a favourable outcome. In the latter class, he may recover for loss of the chance that the third party would have so acted. This apparently arbitrary distinction obviously rests on grounds of policy. In addition, most of the cases in which there has been recovery for loss of a chance have involved financial loss, where the chance can itself plausibly be characterised as an item of property, like a lottery ticket. It is however unnecessary to discuss these decisions because they obviously do not cover the present case.

    84.  Academic writers have suggested that in cases of clinical negligence, the need to prove causation is too restrictive of liability. This argument has appealed to judges in some jurisdictions; in some, but not all, of the States of the United States and most recently in New South Wales and Ireland: Rufo v Hosking (1 November 2004) [2004] NSWCA 391); Philp v Ryan (17 December 2004) [2004] 1 IESC 105. In the present case it is urged that Mr Gregg has suffered a wrong and ought to have a remedy. Living for more than 10 years is something of great value to him and he should be compensated for the possibility that the delay in diagnosis may have reduced his chances of doing so. In effect, the appellant submits that the exceptional rule in Fairchild should be generalised and damages awarded in all cases in which the defendant may have caused an injury and has increased the likelihood of the injury being suffered. In the present case, it is alleged that Dr Scott may have caused a reduction in Mr Gregg's expectation of life and that he increased the likelihood that his life would be shortened by the disease.

    85.  It should first be noted that adopting such a rule would involve abandoning a good deal of authority. The rule which the House is asked to adopt is the very rule which it rejected in Wilsher's case [1988] AC 1074. Yet Wilsher's case was expressly approved by the House in Fairchild [2003] 1 AC 32. Hotson [1987] AC 750 too would have to be overruled. Furthermore, the House would be dismantling all the qualifications and restrictions with which it so recently hedged the Fairchild exception. There seem to me to be no new arguments or change of circumstances which could justify such a radical departure from precedent.

Control mechanisms

    86.  The appellant suggests that the expansion of liability could be held in reasonable bounds by confining it to cases in which the claimant had suffered an injury. In this case, the spread of the cancer before the eventual diagnosis was something which would not have happened if it had been promptly diagnosed and amounted to an injury caused by the defendant. It is true that this is not the injury for which the claimant is suing. His claim is for loss of the prospect of survival for more than 10 years. And the judge's finding was that he had not established that the spread of the cancer was causally connected with the reduction in his expectation of life. But the appellant submits that his injury can be used as what Professor Jane Stapleton called a "hook" on which to hang a claim for damage which it did not actually cause: see (2003) 119 LQR 388, 423.

    87.  An artificial limitation of this kind seems to me to be lacking in principle. It resembles the "control mechanisms" which disfigure the law of liability for psychiatric injury. And once one treats an "injury" as a condition for imposing liability for some other kind of damage, one is involved in definitional problems about what counts as an injury. Presumably the internal bleeding suffered by the boy Hotson was an injury which would have qualified him to sue for the loss of a chance of saving his hip joint. What about baby Wilsher? The doctor's negligence resulted in his having excessively oxygenated blood, which is potentially toxic: see [1987] QB 730, 764-766. Was this an injury? The boundaries of the concept would be a fertile source of litigation.

    88.  Similar comments may be made about another proposed control mechanism, which is to confine the principle to cases in which inability to prove causation is a result of lack of medical knowledge of the causal mechanism (as in Wilsher) rather than lack of knowledge of the facts (as in Hotson's case). Again, the distinction is not based upon principle or even expediency. Proof of causation was just as difficult for Hotson as it was for Wilsher. It could be said that the need to prove causation was more unfair on Hotson, since the reason why he could not prove whether he had enough blood vessels after the fall was because the hospital had negligently failed to examine him.

    89.  In Fairchild's case [2003] 1 AC 32, 68, Lord Nicholls of Birkenhead said of new departures in the law:

    "To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law."

    90.  I respectfully agree. And in my opinion, the various control mechanisms proposed to confine liability for loss of a chance within artificial limits do not pass this test. But a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and the National Health Service. In company with my noble and learned friends Lord Phillips of Worth Matravers and Baroness Hale of Richmond, I think that any such change should be left to Parliament.

    91.  For these reasons, which are substantially the same as those of Mance LJ, with whose thoughtful judgment I would respectfully concur, I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    92.  This is an anxious and difficult case. It is only after many months of deliberation that it has become clear that the majority view is that the appeal must be dismissed. I have reached a different opinion. In agreement with my noble and learned friend Lord Nicholls of Birkenhead, I would allow the appeal and remit the case for further consideration and the assessment of damages. I have to confess that I would not have written at such length if at the time of writing the result of the appeal had been clear to me. As it is, my views as to how the appeal ought to have been decided are, at best, of academic interest only. But I have decided to keep what I have written as this may help to explain why, for reasons which are very close to those which Lord Nicholls has given, I am unable to agree with the view which has been taken of this case by the majority.

Background

    93.  The appellant seeks a remedy in damages for loss, injury and damage which he sustained as a result of the respondent doctor's professional negligence. The trial judge found that the doctor was negligent. His negligence lay in a failure in his duty of diagnosis. The judge held that the doctor should have realised when he saw the appellant in November 1994 that there was a real possibility that the lump under the appellant's left arm was not benign. He should not have told the appellant that it was a lipoma and that no further investigation was called for. He should have referred him at once to a hospital or arranged to see him again very soon to see if the lump had resolved itself. The judge was of the opinion that either way the appellant would have been referred to a hospital with a view to biopsy in November 1994 or within a few weeks thereafter (para 27). If that had been done, it would have been found that a cancerous lyphoma was developing in his left axilla (para 3) and he would have embarked on treatment for his cancer in about April 1995 (para 28). But that did not happen. It was not until the appellant was admitted to hospital as an emergency with acute chest pain in January 1996 that the diagnosis was made and he commenced treatment. As a result of the doctor's negligence treatment was delayed for about nine months longer than it should have been. This reduced the appellant's prospects of a successful recovery.

    94.  The appellant's cancer did not wholly respond to the standard course of CHOP chemotherapy to which he was initially subjected. It was followed by a course of field radiography. When that treatment too was thought to be only partially effective the decision was taken to administer high dose chemotherapy. He was discharged in September 1996, but in early 1998 he suffered a relapse. The fact that he had relapsed gave rise to a very poor diagnosis. The appellant was told that he could not be cured but that the doctors would keep him well as long as they could. He was given a further course of radiotherapy, but this was intended merely as a palliative. In the spring of 1998, after what was thought to be another relapse, he underwent a further course of palliative chemotherapy. When the appellant gave evidence at the trial, more than three years later, there had been no further relapse but he had no long term expectation of survival. He told the judge that he remained short of energy, was unable to carry out normal activities and was preoccupied with his illness and his possible death.

The issue of damages

    95.  The question which remains is whether the appellant is entitled to damages. At first sight there can only be one answer to this question. A claimant who seeks damages for negligence in a case of personal injury must show on a balance of probabilities that the breach of duty caused or materially contributed to his injury. The judge held that the appellant's condition deteriorated significantly during the period from April 1995 to January 1996. The medical experts were agreed that the lymphoma which had been developing in his left axilla spread into the pectoral muscle of the left side of his chest during this period, and that this is what precipitated the crisis in January 1996 (para 30). As both Latham and Mance LJJ said in the Court of Appeal, the delay in diagnosis caused the tumour to enlarge, invade neighbouring tissues and cause severe pain (paras 21 and 47). As Mance LJ put it, the enlarged tumour was a clear physical consequence of the doctor's negligence (para 86). On the judge's findings a conventional view of the case would be that the delay in diagnosis resulted in a physical injury which entitled the appellant to an award of damages for the consequences of that injury.

    96.  Latham LJ developed this point more fully in para 21 of his dissenting judgment:

    "It was the enlargement of the tumour which reduced the chances of successfully treating it. This aspect of the plaintiff's claim was never addressed by the judge. Nonetheless the judge's findings amply support the submission that the appellant had indeed suffered injury which entitled the appellant to general damages for the pain and suffering which were the physical consequence of the spread of the tumour, an assessment of the extent to which delay resulted in more intensive therefore damaging treatment, an assessment of the increased risk of relapse and the adverse effect on prognosis, involving an assessment of the consequences to the appellant's expectation of life."

The question whether the assessments referred to in the latter part of this quotation may result in an award of additional damages, and if so how those damages are to be quantified, is controversial. But there seems to be no reason to doubt the soundness of the propositions that it was proved on a balance of probabilities that the tumour spread because of the delay in treatment, that this was a physical injury which was caused by the doctor's negligence and that this gave him a cause of action for the pain and suffering that was caused by that injury and all its other adverse consequences.

    97.  The judge said in para 48 of his judgment that, although he had found that there was a breach of duty, he had not found the causation of loss proved. So he dismissed the claim. Your Lordships were told that the reason why the question of general damages for pain and suffering was not addressed by the trial judge is that the appellant did not ask for damages to be awarded under this head. The claim, as presented to judge, was for damages to compensate him for the loss of, or diminution in, his expectation of life due to the doctor's negligence. The appellant's cause of action, as Mr Maskrey QC put it, was for the reduced prospect of a complete recovery - for the loss of a chance, in other words. What he sought to show was that this reduced prospect was a consequence of the physical injury caused by the delay, and that it was itself something of value for which the appellant was entitled to be compensated. All the appellant's eggs were, so to speak, put in this one basket.

    98.  This approach to the appellant's claim has identified a possible weakness in the current state of the law, which does not favour awarding damages for the pure loss of a chance in personal injury cases. This is the issue of general public importance which Lord Nicholls has subjected to close analysis. But I cannot help thinking that isolating the claim for the reduced prospect of a recovery from the other consequences of the physical injury that was caused by the delay in the diagnosis has made the appellant's case appear unnecessarily complicated.

    99.  The basic rules that govern a claim of damages for personal injury are well settled. The questions which every pleader must ask himself at the outset are these: (a) whether the defendant owed a duty of care to the claimant, to prevent him sustaining the type of harm that was a foreseeable consequence of his careless acts or omissions; (b) whether there was an act or omission by the defendant which was in breach of that duty of care; and (c) for what loss, injury and damage, if any, the defendant is liable. These questions are usually approached in their historical order, as the order in which I have stated them indicates. Before the action can begin however the claimant must have suffered an injury resulting in damage which is actionable. Damage is the gist of the action of negligence, as Lord Scarman put in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 883H; see also Professor Jane Stapleton, "Cause-in-Fact and the Scope of Liability for Consequences" (2003) 119 LQR 388, 389. No action lies for a wrong which has not resulted in some element of loss, injury or damage of a kind that was reasonably foreseeable for which the claimant can sue. The defendant is not liable for losses which were not wrongfully caused by him. So the claimant must prove that the defendant caused the loss for which he seeks compensation.

The breach of duty

    100.  There is no doubt that the doctor owed a duty of care in this case. It was his duty to exercise reasonable care in the circumstances. But damages can only be awarded if the injury which the claimant has sustained was within the scope of the duty to take care. And the issue of causation cannot be properly addressed without a clear understanding of the scope of that duty. So it is appropriate, before addressing the difficult issue of causation that has been raised in this case, to consider the scope of the duty that was found to have been breached.

    101.  The doctor's duty can be expressed in this way. It was his duty to act in the best interests of his patient's health and well-being and not to expose him to the risk of unnecessary pain and suffering. It was his duty to examine the lump which the appellant presented to him and to question him carefully about its history. It was his duty to consider the possible causes or explanations for it in the light of his examination and the history. The judge found that the lump did not present classically as a lipoma (para 27). In view of its location and the lack of an obvious cause for it, a doctor of ordinary skill taking reasonable care for his patient would have appreciated that there was a significant risk that the lump was lymphatic in origin. In these circumstances the doctor should have referred the appellant to hospital without delay for the carrying out of a biopsy, or alternatively should have arranged to see the appellant again for a further assessment of the lump's condition within the next few weeks. As Mr Maskrey put it, it was his duty to take reasonable care to maximise the prospects of a favourable outcome. None of this is now in dispute.

    102.  The scope of the doctor's duty may be defined therefore by his duty to diagnose the nature of the condition from which the appellant was suffering. The fact that the tumour was malignant would have been identified sooner and treatment for it commenced earlier if the doctor had not been negligent. His negligence deprived the appellant of the benefits that would have flowed from the diagnosis which he should have made if he had taken proper care. Mr Maskrey said that his duty was to prevent that happening which did happen - a reduction in the appellant's prospects of a successful recovery. That was the essence of the case against the doctor.

Damages - the findings

    103.  What then about the claim for damages? What is the extent of the doctor's liability? The starting point is to consider the respects in which the appellant's health and well-being were different from what they would have been had the doctor not been negligent. The appellant was already ill when the doctor saw him. As the judge put it, the question is what difference embarking on treatment nine months earlier would have made to the course of his illness (para 28). The judge found it proved that the delay which resulted from his negligence caused the delay in the diagnosis of the tumour and the treatment which resulted from it. He also found it proved that the tumour spread during the period of delay. This consequence of the delay undoubtedly caused the appellant pain and suffering during the period of the delay which he would not have experienced otherwise. The judge did not, for the reasons already given, award the appellant damages for this pain and suffering. But it was not the only consequence of the spread of the tumour which was caused by the doctor's failure to diagnose.

    104.  The judge found that the treatment which the appellant received after the tumour was diagnosed, which included high dose chemotherapy with stem cell harvesting when the initial treatment was thought to have been only partially effective, made him feel very ill, that he was short of energy and unable to carry out normal activities and that he was preoccupied with his illness and possible death (para 8). He also found that the enlargement of the tumour due to the delay reduced the chances of treating the cancer successfully. He held that the appellant's condition had "upstaged" significantly by the time when he was eventually seen in the hospital, with the result that he was less likely to achieve complete remission, that he had a poorer prognosis and that the chances of avoiding radical high dose chemotherapy, of avoiding a relapse and of ultimate survival were all reduced (para 38 a). In other words, the appellant had proved that enlargement of the tumour during the nine months delay had an adverse effect on the nature of the treatment that was needed, on the course of his disease and on his prospects of a complete recovery. These consequences were within the scope of the doctor's duty to take reasonable care.

    105.  But the extent of the diminution in the appellant's prospects was the subject of statistical evidence. The judge held that 55% of patients with the appellant's type of cancer (he was ALK negative) would achieve complete remission as a result of initial treatment and that 42% would ultimately survive, of whom 35% would not have had to undergo high dose chemotherapy with stem cell treatment (para 38 c). He held that it was possible to say that the appellant would more probably than not have achieved complete remission with initial CHOP chemotherapy and without high dose chemotherapy with stem cell harvesting. But he also held that it was not possible to say that, without the adverse factors caused by the delay, the appellant would more probably than not have become a disease free survivor or that he would have avoided relapse and a further relapse after high dose chemotherapy (para 38 d). He held that by the date of the trial the appellant's prospects of a disease free survival had fallen to 25% (para 38 e).

    106.  Given these figures, the trial judge held that the appellant had not proved that he had suffered an injury as a result of the delay. This was not because the consequences of the delay were too remote or were not reasonably foreseeable. It was because the appellant had not proved that it was more probable than not that, had there been no delay, he would not have suffered those consequences (para 44). He said that, although he might have suffered them at different times, the appellant would on balance of probabilities have gone through the same sequence of setbacks and treatments, and that his outlook was not shown to be different from what it would have been had there been no negligence (para 48). It is axiomatic that the wrongdoer is not liable for any loss, injury and damage that would have happened anyway. It was not shown that, on a balance of probabilities, the outcome would have been any different if the doctor had not been negligent. So he declined to award him any damages for what had been proved, namely that the negligence caused a reduction in his prospects of a successful recovery. As these were the only damages claimed, the result of his decision is that the appellant has suffered a wrong but has been left without a remedy.

The problem of proof

 
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