Imagine your GP’s negligence caused your chances of recovering from cancer to fall from 60% to 40%. Then imagine your GP’s negligence caused your chances to fall from 40% to nil. In the recent decision of Gregg v Scott [2005], the House of Lords confirmed by a majority (Lord Nicholls and Lord Hope dissenting) that you cannot recover damages in the second of these scenarios. In Lord Nicholls’ dissenting view, the decision leaves the law on loss of a chance in a state that is “crude to an extent bordering on arbitrariness”.
In Gregg v Scott, Mr Gregg’s GP negligently misdiagnosed a lump under his arm as benign. Nine months later, the lump was correctly diagnosed as cancerous and the appropriate treatment began. In the agreed statement of facts submitted to their Lord-ships, the parties accepted (although Lord Phillips had serious doubts) that Mr Gregg’s chances of survival – which meant living for 10 years or more – had fallen from 42% when he first visited his doctor to 25% at the date of the trial.
