The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for ten years from 42%, when he first consulted the doctor to 25%. The House asked how should the loss suffered by a patient in this position could be identified.
Held: ‘the appropriate characterisation of a patient’s loss in this type of case must surely be that it comprises the loss of the chance of a favourable outcome, rather than the loss of the outcome itself. Justice so requires, because this matches medical reality. This recognises what in practice a patient had before the doctor’s negligence occurred. It recognises what in practice the patient lost by reason of that negligence. The doctor’s negligence diminished the patient’s prospects of recovery. And this analysis of a patient’s loss accords with the purpose of the legal duty of which the doctor was in breach. In short, the purpose of the duty is to promote the patient’s prospects of recovery by exercising due skill and care in diagnosing and treating the patient’s condition.’ The significant reduction in the prospects of a successful outcome which the negligence caused is a loss for which the appellant is entitled to be compensated. If it is necessary to prove that this loss was caused by a physical injury, the enlargement of the tumour which the negligence caused was such an injury. Lord Hoffmann: ‘[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 fact that proof is rendered difficult or impossible . . 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.’
(Dissenting) A change in the law by 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, and must be left to Parliament.
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Baroness Hale of Richmond
[2005] UKHL 2, Times 28-Jan-2005, [2005] 2 AC 176, [2005] 2 WLR 268
Bailii, House of Lords
England and Wales
Citing:
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Appeal from – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – McWilliams v Sir William Arrol and Co Ltd HL 1962
A steel erector had fallen seventy feet to his death from a steel lattice tower. The employers had not provided a safety harness, but the judge found that he would not have used a security belt even if provided, and that the onus was on the pursuer . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Spring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
Cited – Barnett v Chelsea and Kensington Hospital Management Committee QBD 1968
The widow of a night watchman who died of arsenic poisoning claimed in negligence after he had attended the defendant’s hospital, but was negligently sent home without adequate treatment.
Held: The court was satisfied that even if the . .
Cited – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Mallett v McMonagle HL 1970
The House discussed the role of the court in assessing future losses. Lord Diplock: ‘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 . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – Laferriere v Lawson 1991
(Supreme Court of Canada) 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 she . .
Cited – Smith v National Health Service Litigation 2001
. .
Cited – Doyle (By Her Mother and Next Friend) v Wallace CA 18-Jun-1998
A court awarding personal injury damages could make allowance for a prospective increase in salary which a claimant might have achieved upon completion of qualifications. In this case an increase was allowed at half up from an administrative pay . .
Cited – Commonwealth of Australia v Amann Aviation Pty Ltd 12-Dec-1991
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been.
Held: The law should not, when . .
Cited – Croke v Wiseman CA 1982
The court considered the calculation of damages for loss of future earnings for a young child. . .
Cited – Langford v Hebran and Another CA 15-Mar-2001
The claimant sought damages for the loss of his chances of pursuing his career as a kick-boxer. The judge considered four different courses of varying success which his career might have taken. He accepted that, whether or not those scenarios had . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Kyle v P and J Stormonth Darling WS 1992
Where a loss of opportunity which was the subject of a claim was part of the causal sequence which might or might not have led to the damnum or loss resulting from the injuria, the damnum lay not in the loss of opportunity but in the loss of the eye . .
Cited – Harris v Harris CA 1973
The court considered the award of damages for the loss of the chance of marriage. . .
Cited – Girvan v Inverness Farmers Dairy and Another IHCS 1996
The claimant sought damages. One of the heads of claim that were not in dispute was that the pursuer’s injuries had made it impossible for him to continue as a dedicated clay pigeon shot and had as a result lost the very real prospect of winning . .
Cited – Hughes v McKeown 1985
It was not appropriate to make any reduction in the damages multiplier for future loss of earnings to reflect the possibility that the pursuer might marry and have children. . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Gammell v Wilson; Furness v Massey HL 1982
In each case, the deceased, died as a result of the defendants’ negligence. The parents claimed damages for themselves as dependants under the 1976 Act, and for the estate under the 1934 Act. The claims under the 1976 Act were held to have been . .
Cited by:
Appealed to – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Parabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Damages
Updated: 16 December 2021; Ref: scu.222050