The Case Involving Medical Negligence

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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.
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