1. Introduction
In the case of Gregg v Scott, The House of Lords confronted the issue of financial recovery for the loss of chance in a case involving medical negligence. By a majority of 3-2, their Lordships refused to recognize loss of chance as leading to a recovery of damages.
This paper will examine the judgments of Lord Nicholls and Lord Hoffmann. Representing the dissenting and majority judgment respectively, they have presented a set of arguments that were most compelling for cases of medical negligence dealing with a loss of chance. This paper will distinguish the judgments of both Lordships and will examine the reasoning behind their arguments while finally touching upon criticisms of their respective positions.
2. The
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In order to have a successful claim for compensation, the claimant had to demonstrate that the defendant was the factual cause of the loss suffered.
Therefore, the claimant had to argue that, on the balance of probabilities, the negligence of the defendant was a result of the injury to establish causation. In this case, the injury is the loss of chance of recovery. The claimant argued inter alia, that even though he was deprived of his recovery and could not recover damages, he ought to recover for the loss of chance of recovery due to the negligence on the part of the defendant.
3. History of Litigation
3.1 Trial Court Judgment
The trail court judge explained that Dr. Scott was negligent for failing to show that the growth might not have been benign. However, the judge ruled that the defendant had breached his duty of care.
On the question of whether the negligence of the defendant was a contributing factor to the claimant being unlikely to survive ten years, the court held that the claimant would have had no chance to survive the ten year period, even with treatment.
The trial judge, Judge Inglis, relied on expert evidence at the time of the misdiagnosis that Mr. Gregg had a 42 per cent chance of survival in a period of 10 years, with 10-year survival being the ‘cure’. However, because of the delay in diagnosis, it had reduced Mr. Gregg’s prospects to a 25 per cent. Mr. Gregg argued a ‘loss of chance’ in court.
With regard to Ms. Green’s claims against O’Brien, it is apparent that Ms. Green was O’Brien’s client, and that O’Brien owed Ms. Green a duty. Should this case proceed to trial we do not anticipate that we would argue to a jury that O’Brien did not neglect this duty. Rather, there are serious questions as to whether “the negligence resulted in and was the proximate cause of loss to the client.” Kendall v. Rogers, 181 Md. 606, 611-12 (1943). Indeed, the estate will have to demonstrate that Ms. Green would have prevailed in proving that one or both health care provider defendants committed medical negligence that caused her to fall into the diabetic coma.
From the beginning of this litigation, Appellant has argued that his Property was damaged by Respondent’s negligence and that he is entitled to compensation for this damage to his Property.
The Tort of Negligence put the claimant in the position to prove that the defendant owed to them a duty of care, the defendant breached that duty and the claimant must have suffered damages as result of that breach (Donoghue v Stevenson [1932] AC562).
This Defendant now seeks summary judgment against the Plaintiff’s negligence claims because (1) this Defendant owed the Plaintiff no duty with regard to the incident made the basis of this suit; and (2) no act or omission on the part of this Defendant was a proximate cause of the subject incident or of the Plaintiff’s resulting injuries.
The majority (Allsop A and Tobias JA) found that there was an error on the trial judge’s part in finding that Mr Stephens owed Mr Harley a duty of care. Hodgson JA, the minority, dissented, claiming that there was in fact no error. The reasoning for this is as
Mrs. Helling filed a lawsuit against her ophthalmologist but during the trial the court ruled in favor of the defendants arguing that in ophthalmology it was not a standard of profession to perform routine glaucoma tests in patients under forty years of age. It is important to note here that the standards of the profession did require performing pressure tests if the patient’s complaints and symptoms indicated that the patient may be suffering from glaucoma. The defendants’ argument was that the test was given thirty days after the patients first complained of visual field problems. The jury decided in favor of the defendants and the court ruled accordingly. The Court of Appeals affirmed the lower court’s decision at which point the plaintiff petitioned for a review of the case. On appeal the Supreme Court of Washington reversed the judgment and ruled for the plaintiff stating that the defendants were negligent in not having administered the test at a time when the disease could have been prevented (LexisNexis, Helling v. Carey). The court’s decision was largely based on the argument that the test was simple and inexpensive and should have been administered considering the severity of the injury that resulted from the failure to give it. As suggested by Meltzer in the New England Law Review, two explanations to the decision in Helling are possible. First, that the court intended to abrogate the privilege of the
(2) In those instances where the plaintiff is not guilty of negligence, he would be forced to bear a portion of the loss should one of the tortfeasors prove financially unable to satisfy his share of the damages.
The plaintiffs, A. V. Blount, Jr., Walter J. Hughes, Norman N. Jones, Girardeau Alexander, E. C. Noel, III, and F. E. Davis, are medical doctors (practitioners) licensed to practice and practicing medicine in the City of Greensboro, North Carolina.
However, Menzies J, in his dissenting judgment, found no issue in differentiating the objective test used to determine negligence in an act against another, and the subjective test employed in contributory negligence, in the plaintiff’s lack of care for themselves. Furthermore, to allow for the subjective standard of age would, in his opinion, precipitate the use of other special standards for other groups of lesser capacity than the ordinary person. He judged that the respondent should have been held to the standard of a reasonable man. But even if the standard is to that of an ordinary child, he held it was still negligent to have thrown a dart in such a fashion in the direction of another person.
Ragnarr, must prove to the court that due to the states negligent actions he will consequently experience economic loss. Causation refers to whether the defendants conduct (or omission), in this case The State Of Victoria, caused the resulting harm or damage. The common law of negligence obliges instigation of causation for the purposefulness of attaching legal accountability. Another element that must be proven is that it is applicable for the scope of the negligent persons liability to extend to the harm so caused (scope of liability ). As it is a case of negligence the onus of proving, on the balance of probabilities, is weighed upon our client, the plaintiff Mr. Ragnarr. Even if the ‘but for’ test is applied to the current situation in the case, the outcome would be that the loss suffered by the plaintiff would have only occurred if the defendant acted negligently, which they did, and therefore if they hadn’t have acted in that way, then our client would not have been publicly humiliated by the State Of Victoria as a result. The court must deliberate whether it is suitable to extend the scope of the defendant negligence to the harm caused to the plaintiff and our client, Mr. Ragnarr. The harm that occurred, or similar harm, must have been foreseeable in order for it to reach within the scope of liability upon the
This case is extremely relevant to what is known as the four D’s of negligence; duty, dereliction, direct cause and damages. Duty is when a doctor and a patient have formed a relationship and said doctor has taken on the responsibility of taking care of the patient. Dereliction or failure to perform a duty, there must be some kind of proof that the doctor somehow neglected the doctor neglected the patient. Direct cause, there must be some kind of proof that what happened to the patient was a direct cause of how the doctor conducted himself or his failure to act which resulted in injury. Damages a patient must prove that harm was incurred by the direct result of the physicians actions.
In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.
To fully understand the impact of Williams v Roffey Bros & Nicholls Ltd [1989] on the doctrine of consideration, its is important to examine the doctrine more closely. Traditionally, modern English law has largely abandoned the benefit/detriment analysis and prefers the definition provided by Sir Federick Pollock that “consideration may be defined as an act of forbearance of one party, or the promise thereof, being the price for which the promise of the others is
This essay will briefly explain negligence and its elements and will further critically analyse the UK compensation culture and discuss whether it exist, or whether it is a perception created by the media. This essay will further discuss whether the UK laws encourage people to blame and claim and what the UK law has done to prevent an increase in the compensation culture.
In order to claim that a doctor or hospital was negligent in a medical malpractice case, there must be specific requirements present. First off a doctor-patient relationship must have existed (Boeschen, 2014). An individual making the claim must show that there was a physician-patient relationship with the doctor being sued. This means the doctor was hired and agreed to be hired for the medical care provided. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Second the plaintiff must show the doctor was negligent. Regardless of if the patient is unhappy with their treatment or results, does not determine the doctor is liable for medical malpractice. The doctor must have been negligent -- not reasonably skillful and careful -- in a diagnosis or treatment (Boeschen, 2014). To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances would not have (Boeschen, 2014). In many cases, the doctor's care is not required to be the best possible, but simply "reasonably skillful and careful” (Boeschen, 2014). Whether or not the doctor was reasonably skillful and careful is often up to the medical malpractice claim.