Gregg v Scott [2005] 2 WLR 268

Regarding ‘loss of a chance’ claims, where the claimant contends the defendant’s negligence prevented the opportunity of avoiding recovery from injury.

Facts

The claimant, Gregg, noticed an unusual lump under his arm and subsequently sought a medical opinion regarding it. His doctor incorrectly and negligently diagnosed the lump as benign. In fact, the lump was a malignant cancer which was not discovered for a further nine months, resulting in a sizable delay in when the claimant begun receiving the correct treatment for the lump. In this nine months the claimant’s medical condition had significantly worsened and the lump grown considerably. Expert medical testimony suggested that had the lump been correctly diagnosed at the claimant’s original appointment, he would have had an approximately 42% chance of survival; however, by the time at which his lump was actually correctly diagnosed, the likelihood of his survival had decreased to 25%. Moreover, the delay had limited the range of treatment options available to the claimant.

Issues

Could a claimant successfully claim for their ‘loss of a chance’, that is a greater likelihood of having survived treatment.

Decision/Outcome

The House of Lords held (in a notably and controversially split 3 – 2 decision) cited Hotson v East Berkshire Area Health Authority [1987] AC 750 with approval. Thus, whilst the defendant had indeed been negligent in his original assessment, it remained that loss of a chance was not a form of injury for which one could claim damages for tortious negligence in relation to medical problems.

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