Loss of Chance: Lost Cause or Remote Possibility?

Extract

Gregg v. Scott [2002] EWCA Civ 1471 involved a claimant with non-Hodgkin's lymphoma, which was misdiagnosed by the defendant, who negligently failed to refer the claimant to a specialist. The claimant's condition was correctly diagnosed a year later, by which time his chance of survival had been reduced to 25 per cent.; if he had been treated when he had first visited the defendant, his chance of survival would have been 42 per cent. The Court of Appeal, by a 2-1 majority, upheld the trial judge's holding that because the chance of survival at the time of the defendant's negligence was below 50 per cent., following Hotson v. East Berkshire Health Authority [1987] A.C. 750, the defendant could not be held causally responsible. On appeal, two lines of legal argument on loss of chance as actionable damage were advanced, one emphasising remoteness, and the other causation.