Gregg v. Scott, (2005) 330 N.R. 1 (HL)

• Case Date: January 27, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 330 N.R. 1 (HL)

Gregg v. Scott (2005), 330 N.R. 1 (HL)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. FE.015

Gregg (FC) (appellant) v. Scott (respondent)

([2005] UKHL 2)

Indexed As: Gregg v. Scott

House of Lords

London, England

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Baroness Hale of Richmond

January 27, 2005.

Summary:

The plaintiff showed his doctor a lump under his arm. The doctor told him it was a collection of fatty tissues. Nine months later it was discovered that the plaintiff actually had cancer of a lymph gland, that had spread into his chest. The plaintiff suffered con­siderable pain and had to undergo a debilitat­ing course of high-dose chemotherapy. The treatment temporarily destroyed the tumour, but was followed by a relapse which left the plaintiff with a poor prospect of survival. The plaintiff sued the doctor for damages. The claim was initially advanced as a con­ventional claim for having been deprived of an early and complete cure. However, before trial, it was discovered that the plaintiff had a rare type of cancer with a less favourable prognosis. Therefore, the plaintiff advanced an alternative claim for damages for the re­duction of the chance of a favourable out­come. The trial judge dismissed the action. The judge held that although the doctor was negligent in failing to diagnose the cancer, damages would not be awarded where the plain­tiff failed to prove, on bal­ance of prob­abilities, that the delay in com­mencing his treatment had adversely affected his clinical experience or expectation of life. The judge held that the alternative claim for loss of a chance was bad in law. The plain­tiff ap­pealed, arguing that he had proved that the delay had caused him injury and that he was entitled to com­pensation for this injury, in­cluding the reduc­tion in his chances of sur­vival. The plaintiff argued, secondly, that quite apart from any other injury, the reduc­tion in his chances of survival was itself a compensable head of damage. The first argu­ment was accepted by Latham, L.J., but the majority of the Court of Appeal (Simon Brown and Mance, L.J.J) rejected both argu­ments and dismissed the appeal. The plaintiff appealed again.

The House of Lords, Lord Nichols of Bir­ken­head and Lord Hope of Craighead, dis­senting, dismissed the appeal.

Damage Awards - Topic 634

Torts - Injury to the person - Medical malpractice - Damages for loss of chance of favourable outcome - [See Damages - Topic 206 ].

Damages - Topic 206

Entitlement - Loss of chance - A doctor misdiagnosed a lump under the plaintiff's arm as being a collection of fatty tissues - Nine months later it was discovered that the plaintiff actually had cancer of a lymph gland, that had spread into his chest - The plaintiff underwent treatment, but suffered a relapse which left him with a poor pros­pect of survival - The plaintiff was still alive almost 10 years after the initial mis­diagnosis - The plaintiff sued the doc­tor for damages, claiming a reduction of the chance of a favourable outcome (i.e., a loss of chance) - The trial judge dismissed the action, holding that the claim based on loss of a chance was bad in law - The plain­tiff appealed - The Court of Appeal dismissed the appeal - The plaintiff ap­pealed again - The House of Lords dis­missed the appeal, agreeing with the trial judge that there was no recovery for loss of chance in medical negligence type cases.

Cases Noticed:

Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750; [1987] 2 All E.R. 909 (H.L.), refd to. [paras. 7, 73, 108, 174, 209].

McWilliams v. Arrol (William) & Co., [1962] 1 W.L.R. 295, refd to. [paras. 11, 83].

Allied Maples Group Ltd. v. Simmons & Simmons, [1995] 1 W.L.R. 1602 (C.A.), refd to. [paras. 11, 82].

Barnett v. Chelsea and Kensington Hospi­tal Management Committee, [1969] 1 Q.B. 428, refd to. [para. 11].

Mallett v. McMonagle, [1970] A.C. 166, refd to. [paras. 12, 67, 199].

Davies v. Taylor, [1974] A.C. 207 (H.L.), refd to. [para. 12].

Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), refd to. [paras. 18, 72, 117].

Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563 (C.A.), refd to. [paras. 18, 117, 218].

Spring v. Guardian Assurance plc et al., [1995] 2 A.C. 296; 174 N.R. 164 (H.L.), refd to. [para. 18].

Fairchild v. Glenhaven Funeral Services Ltd. et al., [2003] 1 A.C. 32; 293 N.R. 1 (H.L.), refd to. [paras. 31, 73, 172, 192].

Commonwealth of Australia v. Amann Avia­tion Pty. Ltd. (1991), 66 A.L.J.R. 123, refd to. [para. 143].

Herskovits v. Group Health Cooperative of Puget Sound (1983), 664 P2d 474, refd to. [paras. 43, 108].

Smith v. National Health Service Liti­ga­tion, [2001] Lloyd's Med. Rep. 90, refd to. [para. 45].

Doyle v. Wallace, [1998] P.I.Q.R. Q. 146, refd to. [paras. 67, 119].

Kranz v. M'Cutcheon (1920), 18 Ontario WN 395, refd to. [para. 69].

Kenyon v. Bell, [1953] S.C. 125, refd to. [paras. 69, 108].

Wilsher v. Essex Area Health Authority, [1988] A.C. 1074; 87 N.R. 140 (H.L.), refd to. [paras. 73, 174].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161; 78 D.L.R.(4th) 609, refd to. [para. 81].

Bolitho v. City and Hackney Health Authority, [1998] A.C. 232; 221 N.R. 269 (H.L.), refd to. [para. 83].

Rufo v. Hosking, [2004] N.S.W.C.A. 391, refd to. [paras. 84, 214].

Philp v. Ryan, [2004] 1 IESC 105, refd to. [para. 84].

Sidaway v. Bethlem Royal Hospital and Maudesley Hospital Health Authority et al., [1985] A.C. 871; 61 N.R. 51 (H.L.), refd to. [para. 99].

Kyle v. P & J. Stormonth Darling WS, [1992] S.L.T. 264 [para. 115].

Croke v. Wiseman, [1982] 1 W.L.R. 71 (C.A.), refd to. [para. 119].

Langford v. Hebran, [2001] P.I.Q.R. Q. 160, refd to. [para. 119].

Harris v. Harris, [1973] 1 Lloyd's Rep. 445, refd to. [para. 120].

Hughes v. McKeown, [1985] 1 W.L.R. 963, refd to. [para. 120].

Girvan v. Inverness Farmers Dairy, 1996 SC 135, refd to. [para. 120].

Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774; [1980] A.C. 136 (H.L.), refd to. [paras. 131, 180].

Smith v. National Health Services Liti­ga­tion Authority, [2001] Lloyd's Rep. Med. 174, refd to. [para. 164].

Gammell v. Wilson, [1982] A.C. 27, refd to. [para. 181].

Chester v. Afshar, [2004] 3 W.L.R. 927; 326 N.R. 323 (H.L.), refd to. [para. 192].

Authors and Works Noticed:

King, Joseph H., Causation, Valuation, and Chance in Personal Injury Torts In­volv­ing Preexisting Conditions and Future Consequences (1981), 90 Yale L.J. 1353, generally [para. 213]; p. 1387 [para. 221].

Reece, Helen, Losses of Chances in the Law (1996), 59 Mod. L. Rev. 188, gen­er­ally [paras. 79, 220].

Stapleton, Jane, Cause-in-Fact and the Scope of Liability for Consequences (2003), 119 L.Q.R. 388, pp. 389 [para. 99]; 423 [para. 86].

Stapleton, Jane, The Gist of Negligence (1988), 104 L.Q.R. 389, pp. 391, 392 [para. 209].

Weir, Tony, Tort Law (2002), pp. 74, 75 [para. 193].

Counsel:

[not disclosed]

Agents:

[not disclosed]

This appeal was heard before Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, and Baroness Hale of Rich­mond, of the House of Lords. The deci­sion of the House was given on January 27, 2005, when the following speeches were de­livered:

Lord Nicholls of Birkenhead, dissenting - see paragraphs 1 to 60;

Lord Hoffmann - see paragraphs 61 to 91;

Lord Hope of Craighead, dissenting - see paragraphs 92 to 124;

Lord Phillips of Worth Matravers - see paragraphs 125 to 191;

Baroness Hale of Richmond - see para­graphs 192 to 227.