Causation- loss of chance

What is loss of chance in medical negligence cases?

• When a doctor deprives the patient of the opportunity of recovery
• Before considering the medical negligence cases it is a good idea to see how loss of chance has led to recovery of damages in contract and economic loss cases
• You may wish to compare how this area of law is treated differently and consider whether justice is achieved in medical negligence cases with perhaps suggestions for reform. 
• The area of controversy about damages for loss of chance concerns uncertainty as to hypothetical events or the future. It does not concern uncertainty as to past fact. All uncertainty as to what happened in the past is resolved in civil law by the balance of probabilities all or nothing test. 
• Probability rather than possibility. 

Breach of contract loss of chance- 

Chaplin v Hicks 1908- man has a talent competition to win 12 theatrical jobs. 6000 women apply and 300 are selected. 50 selected from that 300 by the newspaper readers. Hicks is going to select one of the 50. He doesnt tell Chaplin that she is one of the 50 and doesnt interview her for the prize. She loses the chance to win. She sues for loss of opportunity. 

She had a 25% chance of being selected. 

On the balance of probabilities she couldnt claim. The whole point of the contract was to have the chance to win so she has lost that asset. She wins the case. The essence of the contract is the chance. How do you assess damages? They awarded £100, with no mathematical calculations. This would be worth around £5000 today. 

Fletcher Moulton LJ- 'the very object and scope of the contract were to give the plaintiff the chance of being selected as a prize winner. Accordingly the essence of the contract was that she was to be given a chance, that is what she lost as a result of Mr Hick's breach and that is what she should be compensated for.' 

Kitchen v RAF Association (breach of contract and tort)- client is suing her lawyer. Claiming loss of chance to win a case, as he negligently filled a motion too late. She may have lost the case anyway. 

She wins the case despite the difficulty in assessing damages. The CoA assessed the maximum figure she would have recovered and discounted it for uncertainties. 

Chaplin and Kitchen are similar because they were both denied contractual rights. The hard bit is assessing the damages to be awarded. Loss of chance but in a contractual setting. No-one has had a problem with these cases. 

Hotson was decided in 1987 before this case- Allied Maples Group v Simmons and Simmons (breach of contract)- suing negligent solicitors. Purchasing leases and solicitor hadnt advised him about the fact he should obtain an indemnity against the leases. He buys them for a price and realises he has to pay out for issues that need solving with the leases. Could've negotiated a lower price or not brought them. Lawyers had lost him the chance of a good commercial deal. He won his claim even though he couldnt prove that on the balance of probabilties the seller would have lowered his price or given an indemnity. Damages were assessed by reference to the prospect of the seller agreeing to such an indemnity if he had been asked. 

Thi is an indeterminate situation as ability to obtain a good business deal depends on the other person granting the indemnity. Chaplin was indeterminate also. 

He is saying he has lost a discount though, so this may be harder to see as an asset. 

Lord Neuberger writing extra judicially on Allied Maples in 2008 - 'there are also difficulties where the question truns, as it so often does, on what both the claimant and a third party would have done- eg would they have agreed to a reduction in price or settled a case. Deciding what two parties would have agreed is difficult enough: if one has to decide what one party would have agreed on the balance of probabilities, but then assess damages by reference to the chances of what the other party would have agreed, a judge may be placed in an impossible situation.' 

In these types of cases, the difficulty in assessing damages doesnt put the judiciary off. 

Hotson v East Berkshire AHA 1987- Boy falls 12 feet out of a tree. He attends hospital and they fail to diagnose a fracture to the femoral epiphysis. This is negligent. He does get treated by 6 days later. Blood vessels on his hip died. There was a 75% chance that they died when he fell out the tree. The late diagnosis just made the condition certain. Trial judge gave 25%. 

The HoL gave him nothing. On the balance of probabilities he would have got the injury whether there was tortious conduct or not. He couldnt prove that the failure to diagnose led to the later injury. This is an all or nothing approach. 

In a proportionate scheme, only get 100% of damages if over 51% probable. May lead to defendants claiming if 58% loss of chance, they'll only pay 58% of damages when it should be 100%. 

Hotson was decided on policy issues as may have changed all of medical negligence law. 

Difference between Chaplin and Hotson? Loss of chance was 25% in both. In Chaplin the uncertainty hadnt happened yet. In Hotson the activity took place in the past. Hotson's fate was determined when he fell out the tree. 

Does this seem fair when you compare with the contract cases? 

• The HoL unanimously dismissed the claim because on the balance of probabilities, it had not been established that the delay had caused the necrosis, it would have occurred anyway. 
• Lord Bridge in the CoA confirms the trial judge finding of fact that the non tortious cause was on the balance of probability the sole cause of necrosis. Wasn't interested in applying Chaplin or Kitchen to medical negligence claims. 
• Claire McIvor criticises this. 

• Some say Hotson is unfair. Not acknowledging that there was a breach and loss of chance. 
• Almost anyone could have a claim- if not done properly they've lost the chance of better recovery.

Academic analysis- 

Helen Rees 1996- 

• Deterministic- when the past determines the future. Hotson was deterministic as the injury happened already and fate is sealed. 
• She explains this by a coin toss. If the coin has already been tossed, but is covered, the fact that no-one may know the outcome (because the coin is covered) does not prevent there being only one right answer. Because the coin has been tossed the outcome is deterministic. 
• Quasi deterministic- when the future cannot be predicted at any time in the past. In these cases it is not possible to answer the but for question. 
• Indeterminism- the chance of it landing on heads is always 50%. So long as the coin is yet to be tossed, it is impossible to know whether it will land heads or tails, the situation is indeterministic, as there can be no right answer. 

• Rees describes Hotson as a deterministic case which could have been dealt with on the balance of probability- 'so in Hotson, there was an answer- the coin had been tossed- he was either in the 75% or 25% and it was an insufficiency of medical evidence which made it impossible to establish that he fell within the 25% so his claim had to fail. Intellectually the distinction is clear, but whether it should be reflected in the law of damages may be another matter.' 

• My notes on that- Loss of a chance not considered here as on balance of probabilities he wouldnt have got better. 
• There still is negligence, they've lost something even if not everything. Is the Dr's duty hollow? 

Jane Stapleton on Hotson- 

• says Hotson is a threshold case in which the fall from the tree and the late diagnosis were part of a process of physical change culminating in an injury.
• As such she is trying to say that the delay was a material cause of the injury and said damages could be assessed accordingly. However we know with indivisible injury courts do not apportion damages. She is trying to make a link with the other causation cases. 

Maybe could find in the claimants favour but give nominal damages?  

Gregg v Scott 2005- Gregg visited Dr Scott who believed the lump under his patients left arm was a benign lipoma. The original diagnosis was held to be negligent and the subsequent claim for compensation was dominated by the extent to which the delay in treatment affected Gregg's chance of recovery. Tumour got bigger and reduced his chances of recovery. Had he been diagnosed straight away he would have had 42% chance of surviving for 10 years, but because there was a 9 month delay the prognosis was a 25% chance of survival. 

What was he claiming? 

• He claimed that the negligent delay in diagnosis allowed the lymphoma to spread to his chest: the extra pain and suffering from this secondary lymphoma demanded the compensation as did the resulting reduction in life expectancy. 
• The court was invited to reconsider loss of chance of a more favourable outcome as a form of compensatable damages in itself. The recent HoL decision in Fairchild meant that their earlier ruling in Hotson should no longer be seen as excluding loss of chance in medical negligence cases. Gregg asked that the Fairchild exception should be extended so as to enable him to 

because the defendants negligence had increased the likelihood or risk of injury. 

The argument for the injury getting bigger + pain and suffering is the quantification argument.

The loss of chance argument is the second one saying he had lost the opportunity of a favourable outcome. 

Gregg was alive at the time of trial. 

The HoL were split- Phillips, Hale and Hoffmann said they wouldn't recognise either argument. Nicholls and Hope thought he should win. The but for rule was there to stay. 

HoL on extending the Fairchild argument-

• They held that in personal injury cases (unlike claims in contract or tort of economic loss) a claimant cannot sue for the loss of reduction in the chance of a favourable outcome or the increase in risk of an unfavourable outcome. 
• Claimant had to satisfy the 'but for' rule and show that the negligence was the probable cause of the adverse consequences. If Gregg could have shown that, treated promptly..

he would have had a better than evens chance of a cure, and that the delay had brought his chances down across the 50% line, he would have succeeded in full. 

Lord Hoffmann-

• Relied on principles and authority. He suggested that Hotson (and another HoL case, Wilsher) would have to be over ruled if the claimant succeeded. He said 'everything is determined by causality. What we lack is knowledge and the law deals with lack of knowledge by the concept of burden of proof.' 
• He was the most ardent supporter of retaining the traditionally understood balance of probabilities approach and was unwilling to extend Fairchild to these types of cases. 
• Rejected any standard other than probability to apply to loss of survival causation (not chance) and that this standard was to be applied directly to the initial statistical chance of recovery. 
• He further suggested that 'what we lack is knowledge and the law deals with lack of knowledge by the concept of the burden of proof.' 
• He thought allowing this claim would completely change medical negligence in the future. He would be open to Parliament getting involved. He didnt like either argument that was made. 

Lord Hoffmann continued-

• 'a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and the NHS... I think that such a change should be left to Parliament.' (Lady Hale agreed on this point). 
• When parasitic loss is greater than the injury, he doesnt like it. Don't say that youre claiming consequential loss when you're really claiming loss of chance. 

Interestingly Hoffmann was fine with Fairchild, but not here. He was in the minority in Chester v Afshar, demonstrating his caution to relax the but for rule. 

Criticisms of Lord Hoffmann by Sarah McQuillen- 'in permitting knowledge that is available (the 17% reduction in chance) to influence the probability question, a less arbitrary line could have been drawn between 50 and 49%. In other words, if the 50% mark applied to the judges belief in the occurrence of the injury, rather than applying the 50% mark to the statistical chance of survival, the judge may take into account, when deciding on the probability, the fact that there had been a 17% reduction in chance. Instead, the 17% reduction in chance was deemed irrelevant as the initial survival chance was below 50% from the beginning.' 

Belief probability- if the 17% loss was over the 50% line they would have believed it. If you can persuade the judge as to the likely consequence of the breach, the outcome doesnt matter as much. 

Lord Phillips- 

• 'It would normally be much easier to resolve issues of causation on balance of probabilities than to identify in terms of percentage to the effect that clinical negligence has on the chances of favourable outcome.' 
• He also made the interesting point that a claim under the Fatal Accidents Act 1976 could only succeed if the death in question was proved to have been caused by the defendant on the balance of probabilities, which he regarded as a strong argument for saying the same principles should apply. 
• Awarding damages for reduction of the prospect of a cure when the long term result of treatment is still uncertain is not a satisfactory exercise. 
• However on a different set of facts he may have decided otherwise. 

How can we recognise a loss of chance of not dying when he's clearly alive and survived til trial?

Indeterministic- can you say you've lost an asset? 

Chris Miller on Lord Philips-

• Lord Phillips believed that once Mr Gregg had achieved complete remission there was no reason to assume he was any worse off than he would have been given a prompt diagnosis and earlier treatment. It can hardly be doubted that the longer Mr Gregg survives the more favourably his actual condition compares with any alternative. But there is an error concealed in Lord Phillips reasoning: he confuses actual history with a counterfactual error (a future without negligence) which the tort forestalled. 

Lady Hale (majority)- 

• Agree with Lord Hoffmann. She did not think the case was governed by Wilsher and Hotson. Like Lord Phillips she was influenced by practicalities and policy. 
• She indicated an awareness of the need for change in the law, but ultimately decided that the policy difficulties would outweigh the advantages. Her main objection was the difficulty with a system that allowed a plaintiff to claim either for the outcome, or the chance of that outcome. 

• 'Heads you lose everything, tails I win something.' Defendant would always have to be on the back foot and pay out. 
• She suggested Parliamentary reform. 
• Her obiter comments in Gregg on Hotson- 'if a claim such as that in Hotson succeeded, a claimant with a better than evens chance would still only get a proportion of the full value of his claim. This would be a case of two steps forward and three steps back for the great majority of straight forward personal injury cases.' 

Lord Nicholls (dissenting)-

• He essentially relied on policy. 
• In describing the conclusion that no damages could be recovered as 'irrational and indefensible' and pointing out that the loss of a less than 50% prospect of success was as real as a loss of more than 50% chance. 
• He said he derived assistance from the economic loss of chance cases. 
• Would lead to a medical duty 'empty of content.' 
• Injustice, considered Mallet v McMonagle 1970, irrational, indefensible. 

Sarah McQuillen on Nicholls-

• he favoured framing the question as 'the loss of the chance of a favourable outcome.'
• Lord Nicholls placed considerable emphasis on 'the purpose of the legal duty of which the Dr was in breach.' 
• He wanted to permit chances below 50% to be actionable. In other words, it attaches a probability to the possible chance. Probability must be compromised of something other than the statistical chances since, on the majority's interpretation of balance of probabilities, the factual proposition was not satisfied. Judicial belief is applied to the factual propostion and this is the subject of the balance of probabilities.' 
• It is regrettable that Lord Nicholls did not venture to delineate the precise way in which a 'possible' statistical chance was to be assessed for causation. 

Lord Hope (dissenting)- 

• the claimants loss, in his eyes, was a physical injury, the enlargement of the tumour. But for the late diagnosis the tumour with its increased pain consequences would not have increased.

• The distress that his condition had been misdiagnosed should be recognised in damages.
• Damages were being sought for 'reduced prospects of a complete recovery which were a consequence of the physical injury (spread cancer) caused by the delay.'
• Lord Hope advocated the 'quantification argument'
• In Hope's eyes, there was nothing wrong with regarding the physical changes as the 'hook' to hang a claim for loss of chance on.

This may be the easiest argument to understand.

In medical situations, there is sometimes benefit to waiting to see what happens.

Lord Neubergers opinion on Gregg v Scott (he wasnt on this case)-

• 'I venture to suggest that the decision in Gregg may well be a judicial example of the proposition that if you ask a stupid question, you get what is, at least in the view of Lord Nicholls and Hope, a stupid answer.
• 'Why, you may wonder, was ten years chosen, rather than five or fifteen years? Ten years was not plucked out the air

• it was the experts definition of being cured of non Hodgkins lymphoma (avoiding relapse for 10 years.) However it obviously has an element of arbitrariness even if it has, as one would hope, some basis in medical expertise.'
• 'The questions which should have been asked were: what was the claimants life expectancy without treatment, and by how much would that expectancy have been increased if he had the treatment. Your life expectancy is the age you have 50% prospect of reaching: you have a less than 50% chance of living longer and a better than 50% chance of reaching an earlier date. So if the claimants life expectancy was 43, but would have been 47 if he had the treatment, one can say that, on the balance of probabilities, he lost 4 years of life. He would have a 50% chance of living to 47 but as it is, he only has a 50% chance of living to 43.'

Neuberger goes on to guess what the decision would have been if they asked a less stupid question-

• 'if that is how the claimants case had been put in Gregg, it may well be that at least one of the three in the majority, possibly Hoffmann or Hale would have changed sides. However, they may not have done so, and at the moment anyway, we must take the decision as it is.'

• 'The outcome in Gregg can fairly be characterised as a victory for principle and legal consistency over fairness and what is often referred to as compensation culture. In this connection, there is a powerful force in the argument that there is a marked contrast between the philosophy behind the majority view which prevailed in the 3-2 decision in Gregg and that behind the view of the majority in the slightly earlier 3-2 decision of the House in Chester v Afshar. I do not for the moment suggest that the two decisions are inconsistent as a matter of logic or principle, but the contrast in the thinking and approach in the two decisions is marked.'

Claire McIvor on Gregg-

• The consultant haematologist in Gregg 'had no qualifications in medical statistics' and citing Lord Phillips description of the experts model suggests that the expert 'purported to produce epidemiological data but did so without applying sound epidemiological methodologies.'

Mark Cannon- Can we treat loss of chance as a loss of an asset?

• This proceeds on the basis that damages for loss of a chance should only be awarded

• where the loss of a chance can be identified as loss of something that can fairly be called an asset.
• It may be fairly difficult to value, it may be incapable of transfer, but it still has to be fairly characterised as an asset. On this basis, the loss in Hotson was merely an increase in the likelihood of the plaintiff contracting necrosis from 75%-100%.
• Neuberger says 'in relation to the chose in action explanation, Chaplin provides a good example as to the width of the concept of an asset in this context. The loss of opportunity to be launched on an acting career had a value, even though that value could not be precisely identified and even though it could not by its very nature be transferred.'
• Can you apply this to loss of chance of recovery?

Chris Miller-

• Discusses the 'counterfactual future' ie a once possible future which the tortious act forestalled.
• Uncertainty over the future makes quantification of damages for anticipated harm an imprecise exercise, but it must be distinguished from our uncertain knowledge of

• past events which makes causation so problematic- hence the importance of the completed tort.
• Once it is established on the balance of probabilities, that the negligence caused the tumour to spread and that spread necessitated further treatment with all the attendant pain and suffering, the tort is completed. (this seems to be in line with what Hope says.)
• The fact that there is also a chance of death stemming from the original non tortious lymphoma is irrelevant and does not preclude an order for provisional damages (not claiming for the damages now but if they happened if the future) for the chance which follows from the enlarged tumour. The co-existence of the tortious and the non tortious chances is not problematic- these chances relate to different propostions concerning antecedents of an event that may arise in the future.
• Contrast this with the position that would have been obtained had Gregg died before the trial- it is now no longer enough to accept that negligence caused the enlarged tumour which had a chance of bringing about premature death.
• Gregg's counsel should have redoubled his efforts to emphasise the role of the enlarged tumour as the source of future deterioration. It was accepted by the judge that prompt treatment would have prevented the spread of the tumour.

• That spread of the tumour was itself an injury to the appellant as was the pain caused by its invading the left pectoral area. Had Mr Gregg's counsel chosen to pursue this argument alone, it seems more likely that he would have succeeded and his client would have recieved some compensation.
• Had it been decided to award provisional damages, these would have assumed that premature death would not ensue and therefore no immediate increase in damages would have been awarded. Had a conventional award (viz using the 17% as a factor) been sought, citing Molinari as a precedent might have been more productive.

Consequential loss doesnt need to be proven on the balance of probabilities.

Hale didnt accept that but for the negligent treatment the tumour wouldn't have grown.

Chester v Afshar 2002- the defendant performed an operation on the claimant with a very small risk of complication. He failed to warn the patient of this risk but there was no evidence she would have refused to go ahead with the operation had she been so warned. She honestly said she may have sought a second opinion, and still elected to have the operation.

She just wouldn't have had it at that exact time.

Lord Steyn- 'her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from the traditional causation principles. Moreover the decision reflects the reasonable expectation of the public in contemporary society.'

Lord Hope (minority in Gregg, majority in Chester)- preferred to right wrongs, dont penalise a patient who needs time to deliberate.

Lord Bingham- (dissenting in this case) applied the but for rule.

Lord Hoffmann (majority in Gregg, minority in Chester)- clear in wishing to stick to the traditional but for rules.

Neuberger on claimants giving evidence in relation to what they would have done if they had known (he didnt sit on this case)- 'it can be said that the claimant can give evidence upon which a view can be formed, but that is not a good reason. First, even if he does give evidence, his answer may not be clear. Secondly, he cannot give evidence if he is dead or has totally

forgotten about the matter, or he has no idea what he would have done. Thirdly, there is the point made in the last paragraph of Chester by Walker, namely the undesirability of the outcome of a case of this sort relying upon what the claimant says he would have done. Unlike other parties, the claimant has an interest in saying what he would have done, in a way, he is the last person whose evidence should be relevant as a matter of policy.'

Claimant saying if I had been told I would've is not reliable evidence. In America, they use an objective test for this.

Rothwell v Chemical and Insulating Company 2007- HoL- pleural plaques are not compensatable harm. Wanted to claim for anxiety from having the plaques for risk of having asbestos related disease. The crucial question was not whether they amounted to injury but if they amounted to damage. In this case the damage was de minimus. Here the HoL didnt treat risk as damage.

Wright v Cambridge Medical Group 2011- GP was negligent in not sending person to hospital straight away. Negligently looked after when they finally went to hospital. Sued first Dr. He said it was not his fault. The first Dr was liable for the whole amount.

Hint by Neuberger that he was deciding this as loss of chance case. Perhaps a change of direction here?

Philp v Ryan 2004 Irish case- goes to hospital with adominal pain. Had a few tests. One test comes back incredibly high and the hospital were negligent for not doing anything with the test. He is in advanced state of cancer when he goes to the hospital. They dont diagnose cancer. He's suing for anxiety and loss of expectation of life.

They took a very liberal view of this. Looked at old contract cases. Loss of life expectancy equates to physical loss. Looked at possibility, not probability.

Loss of life expectancy was, in essence, equated to physical injury in order to facilitate the award for loss of an opportunity. Loss of life expectancy formed the basis for loss of opportunity on a possibility standard, rather than needing to satisfy the orthodox probability standard. The 'all or nothing' rule of damages was abandoned. In this case, damages were awarded even though the orthodox probabilities rule had not been satisfied and the damages were awarded without specifying whether such reflected any quantified opportunity. The court implied that damages for future injury should be awarded commensurate with the...

degree of possibility that such injury will occur.

This case is only persuasive but gives a new, accepted way of looking at it.

Similarities of Philp and Gregg-

• Both patients had a pre-existing condition
• Both had cancer
• Negligence occurred with delayed diagnosis
• Neither had suffered proven harm at the trial
• Both needed the court to give a new approach to loss of chance issues
• In Gregg, the claimants initial chance of recovery was below 50% (42%). Therefore in applying the balance of probabilities to the 42% this could never have been a probable chance and could not be causally linked to the negligence of the defendant, but for the defendants negligence the claimant probably would not have recovered anyway.
• In Philp, there were two reasons why recognition of belief probability was necessary. The medical evidence was uncertain on whether there was a loss of life expectancy, so it was only 'possible' not factually probable, that the plaintiff had lost life expectancy.

The possible loss of life expectancy was rejected in the HC but accepted in the SC. This led to the possible loss of opportunity.

Far more relaxed approach in Philp.

Sarah McQuillens arguments in favour of acknowledging loss of chance in claimants with less than a 50% chance of recovery but no physical injury-

• The balance of probabilities represents the lost chance, not the patients health outcome as was argued in Gregg.
• Second, it is argued that the balance of probabilities is satisfied when the judge believes in the fact the chance is lost.
• It is argued that the lost chance may be represented by statistics that can be over or under 50%, because it is submitted that the balance of probabilities does not require statistical chance to be above 50% in order for the standard to be satisfied.
• It is argued that a physical injury is not required in order to recognise loss of chance as damnum, based on this articles analysis of the role of statistics within the balance of probability determination.

• The obstacle to overcome is accepting that the chance is something worthy of legal protection. This would not be a causal exception per se. Rather, it would be recognition of an unorthodox injury based on perceptions of justice.

This approach may increase insurance but may only pay a small amount out.

• Adopt the reasoning of Lord Nicholls and the decision in Philp, a lost chance or opportunity of favourable outcome.
• This can be justified on a factual cause reasoning, supported by a sense of justice.
• First, that the balance of probabilities requires a belief in the statistical evidence to prove causation, and that statistical evidence may be below 50%/
• Second, that in some cases, legal cause considerations such as policy concerns may overrule this factual cause finding. Recognition of the chance as actionable injury should not be tied up in that final decision.

If Gregg had died- McQuillen-

• Gregg and Philp both concerned a claim for loss of life expectancy (or chance thereof)

• the nature of that injury requires death of the patient before particularistic evidence like an eventuated injury can be demonstrated. Perhaps on grounds of corrective justice, compensation for that chance is necessary whilst the patient is still alive. If causal mechanisms are not a barrier to this, as it is submitted they are not, this policy consideration may take precedence over floodgate concerns.
• But given their apprehensions of the floodgates opening, with unpredictable consequences for the liability costs of the NHS, the willingness of the House to leave this issue to Parliament is perhaps understandable.
• The use of statistics at trial is a complicated issue, not least due to the desire for particularistic evidence, and the inexperience of expert witnesses in supplying correct statistical evidence borne from epidemiology.
• Treatment of causation is inconsistent.
• Insufficient use of epidemiologists.
• But there are policy concerns.
• She offers a solution.
• Applying the balance of probabilities as suggested herein is not radically different to current non loss of chance case law. If the suggestion in this article were adopted

that judges may use statistics reflecting initial chance of recovery as influential in their overall probability determination, as opposed to determinative of the causation question, the complications surrounding statistics usage may be better accomodated. Most importantly, patients with initial recovery chances below 50% would be protected in law.

Simon Cridland- 2005-

• The attempt to change the law to permit recovery of damages for injuries which would probably have occurred anyway, even though negligence further increased the likelihood of those injuries occuring, has failed. Had it succeeded, the number of clinical negligence claims would have vastly increased, as would their complexity and many more of those negligently treated would have recovered compensation. On the other hand, if a claimant could recover 25% of the full value of a claim if he proved that he was deprived of only a 25% chance of a good outcome, another claimant who can prove that he was deprived of a 75% chance of a good outcome- and thus that on the balance of probability, his injury was caused by negligence- would not recover in full, as such claimants have always done in the past but would only get 75% of a full award. Where justice lies will remain, hotly debated.

Claire McIvors aims are-

• to highlight the benefit of using epidemiological evidence in complex cases raising issues of probablistic causation.
• Addresses the common judicial misconceptions of epidemiology as a scientific discipline
• To distinguish epidemiology from the application of bare statistics.
• To suggest courts are not automatically bound by an epidemological result of +51% to hold that causation has been established.
• To highlight flaws in probablistic causation and the use of clinicians for statistical expert advice.

Should there be a distinction if the case is framed in contract or tort? Neuberger-

• In Hotson, if the plaintiff had been rightly diagnosed, necrosis either would or would not have developed and applying the classic standard of proof to the 75% it would have done.
• In Chaplin, there was no inherent way of establishing whether or not the plaintiff would have been one of the final successful 12 women: it depended on the subjective view of Hicks. Also in Chaplin, what was lost was the very chance that was the subject matter

• of the broken contract so there was not merely a close connection, but an identity between the contract and the loss. That was not so in Hotson.
• So is there a valid ground for distinguishing cases such as Hotson from those such as Chaplin and Allied Maples? Neuberger finds it difficult to accept the argument that the first was a claim in tort and the second in contract, that is not a principled basis. Anyway the claim in Allied Maples could have been framed in tort alone.

Andrew Burrows-

• In respect of damages for loss of chance, pure economic loss claims are being favoured over personal injury claims, which if correct, would appear to constitute a grotesque reversal of values. Again I have heard it said that claimants are missing a trick because if there were a contractual relationship, as there often is, between claimant and defendant, the claim would be better founded in contract than in tort so as to make the loss of chance damages straightforwardly recoverable.

Hague v Dalzell 2016- she goes to Dr's with bleeding, 2 Dr's dont diagnose with cervical cancer, although she shows symptoms of it. She dies because of late diagnosis of a very serious cancer. Did the late diagnosis cause the death? What stage was cancer at when first went to Dr? Did the 7 month delay on balance of probabilities prevent her living more than 5 years?

Judge didnt believe the claimants medical experts. She was likely to die anyway. Doesnt claim under loss of chance. Doesnt show causation. Her family got £15'000 for her anguish, pain and suffering.

This is the latest case on the issue.

Gregg- the years basis is hung on what research has been done on the particular issue rather than the particular claimant. Could use average age like Neuberger said. Statisical evidence alone is not fair.

Lady Hale in Gregg- if think about medical negligence generally, if allowed loss of opportunity to get better, every medical negligence case would be argued under that head. This will not be practical at the end of the day.

McGhee- lost the chance of avoiding dermititus. Failed to provide showers He couldnt prove on the balance of probabilities that it was the defendant. They relaxed the rule to material contribution to risk. Very similar to Gregg.

Dr's dont spend their time worrying out being sued. They just deliver the care.

Gregg- Lord Hope- but for the late diagnosis, the tumour would not have increased, which is an injury.

Loss of expectation to live is not an injury.