Date: Thu, 27 Jan 2005 12:51:24

From: Robert Stevens

Subject: Gregg v Scott

At long last the House of Lords has delivered Gregg v Scott. By a majority of 3:2 (Lord Hoffmann, Lord Phillips and Baroness Hale; Lord Nicholls and Lord Hope dissenting) the claim is rejected.

Lord Hoffmann would treat chances turning upon a human decision differently from chances turning upon physical facts[82]. I had always thought that "the state of a man's mind is as much a question of fact as the state of his digestion" (Bowen L.J.)

Baroness Hale spots that a loss of an economic chance is simply a form of economic loss, while the loss of avoiding physical injury or death is not a form of physical injury or death [220]. However, she fails to explain why the loss of a financial chance should be more deserving of protection than the loss of the chance of avoiding personal injury or death.

In any event, I wonder whether this was an appropriate case for allowing loss of a chance recovery. Allowing recovery for the loss of a chance of avoiding an injury or disease which has occurred is one thing. Allowing recovery for the loss of a chance of avoiding injury or disease in the future, quite another (see Lord Phillips at [188]-[190]). Consequently this case has not finally resolved whether damages may be re-characterised as the "lost chance of avoiding harm" in medical negligence cases.

Robert Stevens
Barrister
Oxford University

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