2005 English tort law case
Gregg v Scott [2005] UKHL 2 is an English tort law case, on the issue of loss of a chance, in causation. It affirms the principle of "Hotson v East Berkshire Area Health Authority", on a narrow margin of 3 to 2. Lord Nicholls' dissent is of particular note, in arguing that loss of a chance should be actionable.
Facts.
The defendant, Dr Scott, negligently misdiagnosed the plaintiff's malignant cancer, (non-Hodgkin Lymphoma) stating it to be a benign collection of fatty tissue and thus no further treatment was needed. This had the effect of delaying Mr Gregg's treatment by nine months, reducing his chances of surviving ten years from 42% to 25%.
Under the earlier decision of "Hotson v East Berkshire Area Health Authority", the view taken at first instance, and by the Court of Appeal, the claimant could not establish the defendant had prevented him being cured, as his original chance of a cure was below 50%. The plaintiff argued that he was entitled to recover for the loss of the 17% chance the defendant had deprived him of. The issue was whether the claimant could claim for their 'loss of a chance'.
Judgment.
The Majority.
On appeal to the Lords, the majority upheld the earlier decision of "Hotson." Damages were not recoverable because Mr Gregg failed to prove on the balance of probabilities that Dr Scott's negligence resulted in the loss of a chance of recovery. Had the doctor properly diagnosed Mr Gregg at the time, he would still have had a less than 50% chance of surviving (42%).
Lord Hoffman notes in his judgment that 'reduction in the prospect of a favourable outcome' had been accepted in previous cases (Chaplin v Hicks [1911]), what was in doubt was whether loss of a chance can be applicable in cases involving clinical negligence. 
The majority judges also shared the view that imposing liability on the defendants in this case would result in a significant change in the law, hence, should be left to Parliament to decide whether or not changes should be made. Although Lord Hoffman noted cases in other jurisdictions that gave effect to loss of a chance claims where the plaintiff was unable to meet the factual causation standards of liability, such as in the Irish case of "Philp v Ryan", he concluded that these were contrary to overriding UK authorities that would be inappropriate to 'abandon:'
 ;templatestyles src="Template:Blockquote/styles.css" / ;I respectfully agree. And in my opinion, the various control mechanisms proposed to confine liability for loss of a chance within artificial limits do not pass this test. But 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 National Health Service. In company with my noble and learned friends Lord Phillips of Worth Matravers and Baroness Hale of Richmond, I think that any such change should be left to Parliament.Further, while Lord Hoffman also recognises academic criticism of applying causation in this manner, expanding the exception in Fairchild would be too 'radical:'
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84. Academic writers have suggested that in cases of clinical negligence, the need to prove causation is too restrictive of liability. This argument has appealed to judges in some jurisdictions; in some, but not all, of the States of the United States and most recently in New South Wales and Ireland: Rufo v Hosking (1 November 2004) [2004] NSWCA 391); Philp v Ryan (17 December 2004) [2004] 1 IESC 105. In the present case it is urged that Mr Gregg has suffered a wrong and ought to have a remedy. Living for more than 10 years is something of great value to him and he should be compensated for the possibility that the delay in diagnosis may have reduced his chances of doing so. In effect, the appellant submits that the exceptional rule in Fairchild should be generalised and damages awarded in all cases in which the defendant may have caused an injury and has increased the likelihood of the injury being suffered. In the present case, it is alleged that Dr Scott may have caused a reduction in Mr Gregg's expectation of life and that he increased the likelihood that his life would be shortened by the disease.
 85. It should first be noted that adopting such a rule would involve abandoning a good deal of authority. The rule which the House is asked to adopt is the very rule which it rejected in Wilsher's case [1988] AC 1074. Yet Wilsher's case was expressly approved by the House in Fairchild [2003] 1 AC 32. Hotson [1987] AC 750 too would have to be overruled. Furthermore, the House would be dismantling all the qualifications and restrictions with which it so recently hedged the Fairchild exception. There seem to me to be no new arguments or change of circumstances which could justify such a radical departure from precedent.
Lord Hoffman, [URL]
Dissenting.
However, Lord Nicholls (joined by Lord Hope) dissented in arguing that loss of a chance should be actionable:
Notes.
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