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 necrosis of the epiphysis, involving disability of the hip joint with the virtual certainty that osteoarthritis would later develop. Prior to the intervention of the doctor, he had a 75% chance of a similar result. The court found that there was a 25% chance that if the doctor had not been negligent, that the outcome would have been better, and had awarded damages for that ‘loss of a chance’.
Held: Damages could not be awarded for that 25% chance because the effect of the judge’s finding as to the chances of the condition resulting from the fall being 75% was a finding in law that that would actually have been the result. The relevant factual question about the plaintiff’s condition immediately prior to the negligence was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive. The answer to this question of fact answered the hypothetical question: would a vascular necrosis have been avoided if his leg had been treated promptly? The answer to the first question also answered the second question, because the second question is a mirror image of the first. Built into the formulation of the first question was the answer to the second question.
Lord Mackay of Clashfern
[1987] AC 750, [1988] UKHL 1, [1987] 2 All ER 909
Bailii
England and Wales
Citing:
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Cited by:
Cited – 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 – Wardlaw v Dr Farrar CA 27-Nov-2003
The claimant appealed an award of andpound;1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death.
Held: It was vital now that medical . .
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 – Gregg v Scott HL 27-Jan-2005
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 . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
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 – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Damages
Leading Case
Updated: 10 November 2021; Ref: scu.183100
