Gregg v Scott [2005] Case Analysis

Assignment Brief

The outcome in Gregg v Scott [2005] 2 AC 176 can fairly be characterised as a victory for principle and legal consistency over fairness and what is often referred to as the “compensation culture”’ (Lord Neuberger, ‘Loss of a Chance and Causation’ (2008) 24 PN 206 at 212). Critically discuss this statement with reference to case law and academic commentary.

Sample Answer

Gregg v Scott [2005] 2 AC 176 – Loss of a Chance and Causation

Introduction

The decision in Gregg v Scott [2005] 2 AC 176 is a landmark in medical negligence law, particularly on the doctrine of causation and the loss of a chance. The House of Lords rejected the claimant’s argument that a negligent misdiagnosis, which reduced his chance of survival from 42% to 25%, should be compensable even though his original survival prospects were below 50%. The case has since attracted significant academic commentary and judicial debate. Lord Neuberger later reflected that the outcome was a triumph of principle and legal consistency over fairness and concerns about a “compensation culture.” This essay critically discusses this statement, examining the reasoning in Gregg, subsequent case law, and commentary from leading scholars.

The Decision in Gregg v Scott

In Gregg, the claimant alleged that negligent delay in diagnosing his non-Hodgkin’s lymphoma reduced his life expectancy and survival prospects. The majority of the House of Lords (Lord Hoffmann, Lord Phillips, and Lord Hope) held that damages could not be awarded for the mere reduction of survival prospects below 50%, as this would undermine the traditional “but for” test of causation. The claimant was therefore unable to recover compensation.

The ruling followed the principle established in Hotson v East Berkshire AHA [1987] AC 750, where the claimant’s injury (avascular necrosis) was caused by a fall rather than by negligent treatment, and his chances of avoiding disability were only 25% even with competent care. The Lords in Hotson emphasised that damages cannot be based on statistical probabilities when causation is not proved on the balance of probabilities.

Principle and Legal Consistency

The decision in Gregg is often defended as a principled affirmation of the “all or nothing” approach to causation. Lord Hoffmann stressed that recognising claims for the loss of a chance in medical negligence would create inconsistency with existing doctrine and open the door to speculative and indeterminate liability.

Lord Phillips likewise emphasised that extending liability would conflict with the foundational principle of causation, that a claimant must show on the balance of probabilities that the defendant’s negligence caused the harm. To hold otherwise, he argued, would effectively rewrite the law of torts and blur the boundary between actionable injury and pure chance.

This insistence on consistency with Hotson and the traditional causation rule reflects a commitment to legal certainty and predictability. If courts began awarding damages for lost chances, the scope of liability would expand significantly, potentially undermining the fairness of outcomes in cases where causation was inherently uncertain.

Continued...