Hotson v East Berkshire Area Health Authority [1988] UKHL 1 (02 July 1988)

Hotson (A.P.) (Respondent)

v.
East Berkshire Health Authority (Appellants)

JUDGMENT

Die Jovis 30° Julii 1987

Upon Report from the Appellate Committee to whom was
referred the Cause Hotson (A.P.) against East Berkshire Health
authority, That the Committee had heard Counsel on Monday the
11th, Tuesday the 12th and Wednesday the 13th days of March
last, upon the Petition and Appeal of the East Berkshire
Health Authority, of Frances House, 81 Frances Road, Windsor,
Berkshire, SL4 3AW, praying that the matter of the Order set
forth in the Schedule thereto, namely an Order of Her
Majesty’s Court of Appeal of 14th November 1986, might be
reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet; as upon the Case of
Stephen John Hotson lodged in answer to the said Appeal; and
due consideration had on Thursday 2nd July 1987 and this day
of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 14th day of November 1986
complained of in the said Appeal be, and the same is hereby,
Set Aside, save as to costs: and that the Order of Mr.
Justice Simon Brown of the 15th day of March 1985 be, and the
same is hereby, Varied to the extent that the sum awarded to
the Respondent be reduced by £11,500 and the amount of any
interest on that sum included in the award; And it is further
Ordered, That the Appellant do pay to the Respondent his costs
incurred in respect of the said Appeal to this House, and to
the Law Society their costs incurred in respect of the
application on 2nd July 1987 and this day, the amount of such
last-mentioned costs to be certified by the Clerk of the
Parliaments if not agreed between the parties; And it is also
further Ordered, That the costs of the Respondent in this
House be taxed in accordance with Schedule 2 to the Legal Aid
Act 1974: And it is also further Ordered, That the Cause be,
and the same is hereby, remitted back to the Queen’s Bench
Division of the High Court of Justice to do therein as shall
be just and consistent with this Judgment.

Cler: Parliamentor:

Judgment: 2.7′.87

HOUSE OF LORDS

STEPHEN JOHN HOTSON
(RESPONDENT)

v.

EAST BERKSHIRE HEALTH AUTHORITY

(APPELLANT)

Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord MacKay of Clashfern
Lord Ackner
Lord Goff of Chieveley

LORD BRIDGE OF HARWICH

My Lords,

The respondent plaintiff is now 23 years of age. On 26
April 1977, as a schoolboy of 13, whilst playing in the school lunch
hour he climbed a tree to which a rope was attached, lost his hold
on the rope and fell some 12 feet to the ground. He sustained an
acute traumatic fracture of the left femoral epiphysis. Within
hours he was taken to St. Luke’s Hospital, Maidenhead, for which
the appellant health authority (“the authority”) was responsible.
Member of the hospital staff examined him, but failed to diagnose
the injury and he was sent home. For five days he was in severe
pain. On 1 May 1977 he was taken to the hospital once more and
this time X-rays of his hip yielded the correct diagnosis. He was
put on immediate traction, treated as an emergency case and
transferred to the Heatherwood Hospital where, on the following
day, he was operated on by manipulation and reduction of the
fracture and pinning of the joint. In the event the plaintiff
suffered an avascular necrosis of the epiphysis. The femoral
epiphysis is a layer of cartilage separating the bony head from the
bony neck of the femur in a growing body. Avascular necrosis
results from a failure of the blood supply to the epiphysis and
causes deformity in the maturing head of the femur. This in turn
involves a greater or lesser degree of disability of the hip joint
with a virtual certainty that it will in due course be aggravated
by osteoarthritis developing within the joint.

The plaintiff sued the authority, who admitted negligence in
failing to diagnose the injury on 26 April 1977. Simon Brown J.,
in a judgment delivered on 15 March 1985 [1985] 1 W.L.R. 1036,
awarded £150 damages for the pain suffered by the plaintiff from
26 April to 1 May 1977 which he would have been spared by
prompt diagnosis and treatment. This element of the damages is
not in dispute. The authority denied liability for any other
element of damages. The judge expressed his findings of fact as
follows, at pp. 1040-1041:

– 1 –

“(1) Even had the health authority correctly diagnosed and
treated the plaintiff on 26 April there is a high probability,
which I assess as a 75 per cent. risk, that the plaintiff’s
injury would have followed the same course as it in fact
has, that is he would have developed avascular necrosis of
the whole femoral head with all the same adverse
consequences as have already ensued and with all the same
adverse future prospects. (2) That 75 per cent. risk was
translated by the health authority’s admitted breach of duty
into an inevitability. Putting it the other way, their delay
in diagnosis denied the plaintiff the 25 per cent. chance
that, given immediate treatment, avascular necrosis would
not have developed. (3) Had avascular necrosis not
developed, the plaintiff would have made a very nearly full
recovery. (4) The reason why the delay sealed the
plaintiff’s fate was because it allowed the pressure caused
by haemarthrosis – the bleeding of ruptured blood vessels
into the joint – to compress and thus block the intact but
distorted remaining vessels with the result that even had the
fall left intact sufficient vessels to keep the epiphysis alive
(which, as finding (1) makes plain, I think possible but
improbable) such vessels would have become occluded and
ineffective for this purpose.”

On the basis of these findings he held, as a matter of law,
that the plaintiff was entitled to damages for the loss of the 25
per cent. chance that, if the injury had been promptly diagnosed
and treated, it would not have resulted in avascular necrosis of
the epiphysis and the plaintiff would have made a very nearly full
recovery. He proceeded to assess the damages attributable to the
consequences of the avascular necrosis at £46,000. Discounting
this by 75 per cent., he awarded the plaintiff £11,500 for the lost
chance of recovery. The authority’s appeal against this element in
the award of damages was dismissed by the Court of Appeal (Sir
John Donaldson M.R., Dillon and Croom-Johnson L.JJ.) on 14
November 1986 [1987] 2 W.L.R. 287. The authority now appeal by
leave of your Lordships’ House.

I would observe at the outset that the damages referable to
the plaintiff’s pain during the five days by which treatment was
delayed in consequence of failure to diagnose the injury correctly,
although sufficient to establish the authority’s liability for the tort
of negligence, have no relevance to their liability in respect of the
avascular necrosis. There was no causal connection between the
plaintiff’s physical pain and the development of the necrosis. If
the injury had been painless, the plaintiff would have to establish
the necessary causal link between the necrosis and the authority’s
breach of duty in order to succeed. It makes no difference that
the five days’ pain gave him a cause of action in respect of an
unrelated element of damage.

Before examining the judge’s findings more closely, it is
necessary to say something of the conflict of expert medical
evidence which the judge had to resolve. The evidence is highly
technical and not altogether easy to follow. But at least this
much is clear, that the failure of the blood supply to the epiphysis
which caused the avascular necrosis could itself only have been
caused in one of two ways: either the injury sustained in the fall

– 2 –

caused the rupture of such a high proportion of the vessels
supplying the epiphysis with blood that necrosis was bound to
develop, or the blood vessels remaining intact were sufficient to
keep the epiphysis alive but were subsequently occluded by
pressure within the joint caused by haematoma (bruising) or
haematosis (bleeding into the joint).

The plaintiff’s expert witness was extremely tentative in his
view as to the part which the delay in treatment may have played
in causing avascular necrosis. In his evidence in chief he
described the risk of the plaintiff suffering avascular necrosis even
if promptly treated as “very considerable” and “very high.” He
said:

“Statistically, on reports published, he had a marginally
better chance of escaping it than having avascular necrosis
had it been treated expeditiously.”

He was asked:

“Was there a chance, if the condition had been diagnosed
and treated promptly, that no avascular necrosis would have
occurred at all in any part?”

He replied: “There was a small chance, yes.” But he also said
that the delay in treatment had made the development of total
avascular necrosis of the epiphysis inevitable. His first three
answers to questions put to him in cross examination were as
follows:

“Q. As I understand it, Mr. Bucknill, you accept that even if
there had been no delay, it is likely that there would have
been avascular necrosis of the whole head? A. Yes,
Indeed. Q. And so the probabilities are that the delay in
this case made no difference to the eventual outcome of
this head? A. As I said, I think it made it inevitable that
avascular necrosis occurred rather than likely. Q. In other
words, what was always a probability became inevitable? A.
Yes.”

Later he modified these answers. He said that, given prompt
treatment, he thought avascular necrosis was “likely but not
probable.” He explained that by “likely” he meant about a 40 per
cent. chance, by “probable” he meant something over 60 per cent.
He also explained his view that delay would have made a total
avascular necrosis inevitable by the occlusion of intact blood
vessels resulting from haematoma.

By contrast the authority’s expert witness was emphatic,
even dogmatic, in his evidence. His opinion was that the initial
traumatic rupture of the blood vessels caused by the fall must
have been so extensive that avascular necrosis was bound to result.
He rejected the theory that the failure of the blood supply could
be attributed to a haematoma, a condition which, in his opinion,
would not occur in this injury. In this connection he distinguished
between a haematoma and a haematosis, a condition which could
occur in this injury but which would not, in his opinion, occlude
intact blood vessels.

– 3 –

The judge indicated his assessment of these two witnesses as
follows:

“I regret that I found certain parts of the evidence of both
experts, highly qualified and experienced although they both
undoubtedly are, difficult to accept, either as a result of
internal inconsistency within their evidence or because of
what seemed to be an intrinsic want of logic in some
particular expressed view. I recognise that the explanation
for this may well lie in the deficiencies of my own medical
understanding, but the forensic process requires only that I
do my best. In the result I find myself unattracted to, and
finally unable to accept, either of the competing extreme
views.

In analysing the issue of law arising from his findings the
judge said [1985] 1 W.L.R. 1036, 1043-1044

“In the end the problem comes down to one of
classification. Is this on true analysis a case where the
plaintiff is concerned to establish causative negligence or is
it rather a case where the real question is the proper
quantum of damage? Clearly the case hovers near the
border. Its proper solution in my judgment depends upon
categorising it correctly between the two. If the issue is
one of causation then the health authority succeed since the
plaintiff will have failed to prove his claim on the balance
of probabilities. He will be lacking an essential ingredient
of his cause of action. If, however, the issue is one of
quantification then the plaintiff succeeds because it is trite
law that the quantum of a recognised head of damage must
be evaluated according to the chances of the loss
occurring.”

He reached the conclusion that the question was one of
quantification and thus arrived at his award to the plaintiff of one
quarter of the damages appropriate to compensate him for the
consequences of the avascular necrosis.

It is here, with respect, that I part company with the judge.
The plaintiff’s claim was for damages for physical injury and
consequential loss alleged to have been caused by the authority’s
breach of their duty of care. In some cases, perhaps particularly
medical negligence cases, causation may be so shrouded in mystery
that the court can only measure statistical chances. But that was
not so here. On the evidence there was a clear conflict as to
what had caused the avascular necrosis. The authority’s evidence
was that the sole cause was the original traumatic injury to
the hip. The plaintiff’s evidence, at its highest, was that the
delay in treatment was a material contributory cause. This was a
conflict, like any other about some relevant past event, which the
judge could not avoid resolving on a balance of probabilities.
Unless the plaintiff proved on a balance of probabilities that the
delayed treatment was at least a material contributory cause of
the avascular necrosis he failed on the issue of causation and no
question of quantification could arise. But the judge’s findings of
fact, as stated in the numbered paragraphs (1) and (4) which I
have set out earlier in this opinion, are unmistakably to the effect
that on a balance of probabilities the injury caused by the

– 4 –

plaintiff’s fall left Insufficient blood vessels intact to keep the
epiphysis alive. This amounts to a finding of fact that the fall
was the sole cause of the avascular necrosis.

The upshot is that the appeal must be allowed on the
narrow ground that the plaintiff failed to establish a cause of
action in respect of the avascular necrosis and its consequences.
Your Lordships were invited to approach the appeal more broadly
and to decide whether, in a claim for damages for personal injury,
it can ever be appropriate, where the cause of the injury is
unascertainable and all the plaintiff can show is a statistical
chance which is less than even that, but for the defendant’s
breach of duty, he would not have suffered the injury, to award
him a proportionate faction of the full damages appropriate to
compensate for the injury as the measure of damages for the lost
chance.

There is a superficially attractive analogy between the
principle applied in such cases as Chaplin v. Hicks [1911] 2 K.B.
786 (award of damages for breach of contract assessed by
reference to the lost chance of securing valuable employment if
the contract had been performed) and Kitchen v. Royal Air Force
Association
 [1958] 1 W.L.R. 563 (damages for solicitors’ negligence
assessed by reference to the lost chance of prosecuting a
successful civil action) and the principle of awarding damages for
the lost chance of avoiding personal injury or, in medical
negligence cases, for the lost chance of a better medical result
which might have been achieved by prompt diagnosis and correct
treatment. I think there are formidable difficulties in the way of
accepting the analogy. But I do not see this appeal as a suitable
occasion for reaching a settled conclusion as to whether the
analogy can ever be applied.

As I have said, there was in this case an inescapable issue
of causation first to be resolved. But if the plaintiff had proved
on a balance of probabilities that the authority’s negligent failure
to diagnose and treat his injury promptly had materially
contributed to the development of avascular necrosis, I know of no
principle of English law which would have entitled the authority to
a discount from the full measure of damage to reflect the chance
that, even given prompt treatment, avascular necrosis might well
still have developed. The decisions of this House in Bonnington
Castings Ltd, v. Wardlaw
 [1956] AC 613 and McGhee v. National
Coal Board
 [1973] 1 W.L.R. I give no support to such a view.

I would allow the appeal to the extent of reducing the
damages awarded to the plaintiff by £11,500 and the amount of
any interest on that sum which is included in the award.

LORD BRANDON OF OAKBROOK

My Lords,

I have had the advantage of reading in draft the speeches
prepared by my noble and learned friends Lord Bridge of Harwich,
Lord Mackay of Clashfern and Lord Ackner. I agree with all

– 5 –

three speeches, and for the reasons contained in them I would
allow the appeal.

LORD MACKAY OF CLASHFERN

My Lords,

I have had the advantage of reading in draft the speeches
prepared by my noble and learned friends Lord Bridge of Harwich
and Lord Ackner. I agree with them that this appeal should be
allowed for the reasons which they have given.

In their printed case the authority first took the position
that they were entitled to succeed in this appeal because the
plaintiff had not proved that any loss or damage (other than five
days’ pain and suffering) had been caused by the authority’s breach
of duty. They also submitted that damages for loss of a chance
were not recoverable in tort and at the close of the hearing Mr.
Whitfield, for the authority, invited your Lordships to decide this
case not only on the ground of fact which he submitted was
available but also on the more general ground that damages for
loss of a chance could not be awarded. This latter submission has
been discussed in the course of the hearing very fully and I wish
to add some observations, particularly on that aspect of the case.

When Mr. Williams, who appeared for the plaintiff, was
invited to say what he meant by a chance he said that in relation
to the facts of this case as found by the judge what was meant
by a chance was that if 100 people had suffered the same injury
as the plaintiff 75 of them would have developed avascular
necrosis of the whole femoral head and 25 would not. This, he
said, was an asset possessed by the plaintiff when he arrived at
the authority’s hospital on 26 April 1977. It was this asset which
Mr. Williams submits the plaintiff lost in consequence of the
negligent failure of the authority to diagnose his injury properly
until 1 May 1977.

The case closest on its facts to the present from the United
Kingdom, cited at the hearing before your Lordships, is Kenyon v.
Bell,
 1953 S.C. 125. In that case the lower lid of a child’s eye
was cut as a result of an accident and subsequently the eye had
to be removed by operation. An action for damages was raised
against the medical practitioner who had first treated the injury,
alleging that he had failed to exercise reasonable care and
ordinary professional skill in carrying out his examination and
treatment of the injury and that as a result the child had not
been given certain treatment which “‘would have made the saving
of the eye a certainty or alternatively . . . would have materially
increased the chance of saving the eye.'” The medical practitioner
contended that since all that was being offered to be proved was
the weaker of the two alternative statements the case should not
be allowed to proceed to proof since the weaker alternative
alleging that the treatment would materially have increased the
chance of saving the eye did not justify a claim for damages.
Lord Guthrie held that the loss of a chance of saving the eye was
not of itself a matter which would entitle the claim to succeed

– 6 –

but founding particularly on the use of the word “material” in the
pleadings to qualify the chance of saving the eye by proper
treatment Lord Guthrie held that on the evidence the chance of
saving the eye by proper treatment might be proved to be so
material that the natural and reasonable inference to draw from
the evidence would be that the loss of the eye was due to the
absence of such treatment. In that event, the claim would
succeed. Accordingly he allowed it to go to proof. This
illustrates that where what is at issue is a patient’s condition on
being presented to a medical practitioner the question whether the
condition was such that proper treatment could effect a particular
result is to be determined on the balance of probabilities and that
one way of describing that balance is to say that there was at
that time a sufficient chance that the particular result could be
attained to justify holding that the loss of that result was caused
by the absence of proper treatment. On the other hand, Lord
Guthrie makes it clear that, in his opinion, while the fault could
be charged against the doctor as being failure to give the child
the opportunity of having an eye preserved by proper treatment,
unless the eye would have been saved by such treatment no loss
would have been established and no claim for damages justified in
respect thereof.

After the proof, Lord Strachan in a decision, which is
unreported, of 9 April 1954 held that the defender had established
that the boy’s eye was irreparably injured on 15 March 1951 and
that no treatment could have made any difference because the
initial injury involved a perforating wound of the sclera with
consequent haemorrhaging into the interior of the eye.

In my opinion, it is perfectly correct to apply the same
approach in the present case: what was the plaintiff’s condition on
being first presented at the hospital? Did he have intact
sufficient blood vessels to keep the affected epiphysis alive? The
judge had evidence from the authority’s expert which amounted to
an assertion that the probability was 100 per cent. that the fall
had not left intact sufficient vessels to keep the epiphysis alive
while he had evidence from Mr. Bucknill, for the plaintiff, which
although not entirely consistently suggested that the probability
was perhaps between 40 and 60 per cent., say 50 per cent., that
sufficient vessels were left intact to keep the epiphysis alive. The
concluding sentence in the judge’s fourth finding in fact makes it
plain, in my opinion, that he took the view, weighing that
testimony along with all the other matters before him, that it was
more probable than not that insufficient vessels had been left
intact by the fall to maintain an adequate blood supply to the
epiphysis and he expressed this balance by saying that it was 75
per cent. to 25 per cent., a result reached perhaps as Mr. Williams
suggested by going for a figure midway between the competing
estimates given by the parties’ experts in evidence. Although
various statistics were given in evidence, I do not read any of
them as dealing with the particular probability which the judge
assessed at 75 per cent. to 25 per cent. In the circumstances of
this case the probable effect of delay in treatment was determined
by the state of facts existing when the plaintiff was first
presented to the hospital. It is not, in my opinion, correct to say
that on arrival at the hospital he had a 25 per cent. chance of
recovery. If insufficient blood vessels were left intact by the fall
he had no prospect of avoiding complete avascular necrosis

– 7 –

whereas if sufficient blood vessels were left intact on the judge’s
findings no further damage to the blood supply would have resulted
if he had been given immediate treatment, and he would not have
suffered the avascular necrosis.

As I have said, the fundamental question of fact to be
answered in this case related to a point in time before the
negligent failure to treat began. It must, therefore, be a matter
of past fact. It did not raise any question of what might have
been the situation in a hypothetical state of facts. To this
problem the words of Lord Diplock in Mallett v. McMonagle [1970]
A.C. 166, 176 apply:

“In determining what did happen in the past the court
decides on the balance of probabilities. Anything that is
more probable than not it treats as certain.”

In this respect this case is the same, in principle, as any
other in which the state of facts existing before alleged negligence
came into play has to be determined. For example, if a claimant
alleges that he sustained a certain fracture in a fall at work and
there is evidence that he had indeed fallen at work, but that
shortly before he had fallen at home and sustained the fracture,
the court would have to determine where the truth lay. If the
claimant denied the previous fall, there would be evidence, both
for and against the allegation, that he had so fallen. The issue
would be resolved on the balance of probabilities. If the court
held on that balance that the fracture was sustained at home,
there could be no question of saying that since all that had been
established was that it was more probable than not that the injury
was not work-related, there was a possibility that it was work-
related and that this possibility or chance was a proper subject of
compensation.

I should add in this context that where on disputed evidence
a judge reaches a conclusion on the balance of probabilities it will
not usually be easy to assess a specific measure of probability for
the conclusion at which he has arrived. As my noble and learned
friend Lord Bridge of Harwich observed in the course of the
hearing, a judge deciding disputed questions of fact will not
ordinarily do it by use of a calculator.

On the other hand, I consider that it would be unwise in the
present case to lay it down as a rule that a plaintiff could never
succeed by proving loss of a chance in a medical negligence case.
In McGhee v. National Coal Board [1973] 1 WLR 1 this House
held that where it was proved that the failure to provide washing
facilities for the pursuer at the end of his shift had materially
increased the risk that he would contract dermatitis it was proper
to hold that the failure to provide such facilities was a cause to a
material extent of his contracting dermatitis and thus entitled him
to damages from his employers for their negligent failure measured
by his loss resulting from dermatitis. Material increase of the risk
of contraction of dermatitis is equivalent to material decrease in
the chance of escaping dermatitis. Although no precise figures
could be given in that case for the purpose of illustration and
comparison with this case one might, for example, say that it was
established that of 100 people working under the same conditions
as the pursuer and without facilities for washing at the end of

– 8 –

their shift 70 contracted dermatitis: of 100 people working in the
same conditions as the pursuer when washing facilities were
provided for them at the end of the shift 30 contracted

dermatitis. Assuming nothing more were known about the matter
than that, the decision of this House may be taken as holding that
in the circumstances of that case it was reasonable to infer that
there was a relationship between contraction of dermatitis in these
conditions and the absence of washing facilities and therefore it
was reasonable to hold that absence of washing facilities was
likely to have made a material contribution to the causation of
the dermatitis. Although neither party in the present appeal
placed particular reliance on the decision in McGhee since it was
recognised that McGhee is far removed on its facts from the
circumstances of the present appeal your Lordships were also
informed that cases are likely soon to come before the House in
which the decision in McGhee will be subjected to close analysis.
Obviously in approaching the matter on the basis adopted in
McGhee much will depend on what is known of the reasons for the
differences in the figures which I have used to illustrate the
position. In these circumstances I think it unwise to do more than
say that unless and until this House departs from the decision in
McGhee your Lordships cannot affirm the proposition that in no
circumstances can evidence of loss of a chance resulting from the
breach of a duty of care found a successful claim of damages,
although there was no suggestion that the House regarded such a
chance as an asset in any sense.

By agreement of the parties we were supplied with a list of
American authorities relevant to the questions arising in this
appeal, although they were not examined in detail. Of the cases
referred to, the one that I have found most interesting and
instructive is Herskovits v. Group Health Cooperative of Puget
Sound
 (1983) 664 P.2d. 474, a decision of the Supreme Court of
Washington en banc. In this case the claim arose in respect of
Mr. Herskovits’ death. He was seen at Group Health Hospital at a
time when he was suffering from a tumour but this was not
diagnosed on first examination. The medical evidence available
suggested that at that stage, assuming the tumour was a stage 1
tumour, the chance of survival for more than five years was 39
per cent. When he was treated later the tumour was a stage 2
tumour and the chance of surviving more than five years was 25
per cent. The defendant moved for summary judgment on the
basis that, taking the most favourable view of the evidence that
was possible, the case could not succeed. The Superior Court of
King County granted the motion. This decision was reversed by a
majority on appeal to the Supreme Court. The first judgment for
the majority in the Supreme Court was delivered by Dore J.
Early in his judgment he read from section 323 of the American
Restatement, Second, Torts, vol. 2 (1965), which is in these terms:

“One who undertakes, gratuitously or for consideration, to
render services to another which he should recognise as
necessary for the protection of the other’s person or things,
is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to
perform his undertaking, if (a) his failure to exercise such
care increases the risk of such harm, . . .”

– 9 –

After noting that the Supreme Court of Washington had not
faced the issue of whether, under this paragraph, proof that the
defendant’s conduct had increased the risk of death by decreasing
the chances of survival was sufficient to take the issue of
proximate cause to the jury he said, at p. 476:

“Some courts in other jurisdictions have allowed the
proximate cause issue to go to the jury on this type of
proof. . . These courts emphasised the fact that
defendants’ conduct deprived the decedents of a ‘significant’
chance to survive or recover, rather than requiring proof
that with absolute certainty the defendants’ conduct caused
the physical injury. The underlying reason is that it is not
for the wrongdoer, who put the possibility of recovery
beyond realisation, to say afterward that the result was
inevitable …. Other jurisdictions have rejected this
approach, generally holding that unless the plaintiff is able
to show that it was more likely than not that the harm was
caused by the defendant’s negligence, proof of a decreased
chance of survival is not enough to take the proximate
cause question to the jury …. These courts have
concluded that the defendant should not be liable where the
decedent more than likely would have died anyway.”

To the question whether the plaintiff should be allowed, in
the case before him, to proceed to a jury he returned an
affirmative answer; and gave as the reason, at p. 477:

“To decide otherwise would be a blanket release from
liability for doctors and hospitals any time there was less
than a 50 per cent. chance of survival, regardless of how
flagrant the negligence.”

In support of this reasoning he referred to Hamil v. Bashline
(1978) 481 Pa. 256; 392 A.2d 1280, a decision of the Pennsylvania
Supreme Court, and said:

“The Hamil court distinguished the facts of that case from
the general tort case in which a plaintiff alleges that a
defendant’s act or omission set in motion a force which
resulted in harm. In the typical tort case, the ‘but for’
test, requiring proof that damages or death probably would
not have occurred ‘but for’ the negligent conduct of the
defendant, is appropriate. In Hamil and the instant case,
however, the defendant’s act or omission failed in a duty to
protect against harm from another source. Thus, as the
Hamil court noted, the fact finder is put in the position of
having to consider not only what did occur, but also what
might have occurred.”

He goes on to quote from Hamil, 481 Pa. 256, 271; 392
A.2d 1280, 1287-1288:

“such cases by their very nature elude the degree of
certainty one would prefer and upon which the law normally
insists before a person may be held liable. Nevertheless, in
order that an actor is not completely insulated because of
uncertainties as to the consequence of his negligent conduct,
section 323(a) [of the Restatement, Second, Torts] tacitly

– 10 –

acknowledges this difficulty and permits the issue to go to
the jury upon a less than normal threshold of proof.'”

He goes on, at pp. 487-488, to refer to another decision,
namely Hicks v. United States (1966) 368 F.2d 626, as containing a
succinct statement of the relevant doctrine, at p. 632, and quotes:

‘”Rarely is it possible to demonstrate to an absolute
certainty what would have happened in circumstances that
the wrongdoer did not allow to come to pass. The law does
not in the existing circumstances require the plaintiff to
show to a certainty that the patient would have lived had
she been hospitalised and operated on promptly.”‘

He refers also to a general observation in the Supreme
Court of the United States dealing with a contention similar to
that argued before him by the doctors and the hospital. In
Lavender v. Kurn (1946) 327 U.S. 645, 653 the Supreme Court said:

“It is no answer to say that the jury’s verdict involved
speculation and conjecture. Whenever facts are in dispute
or the evidence is such that fair-minded men may draw
different inferences, a measure of speculation and conjecture
is required on the part of those whose duty it is to settle
the dispute by choosing what seems to them to be the most
reasonable inference.”

He therefore concluded, at p. 479 that the evidence
available which showed at maximum a reduction in the 39 per
cent. chance of five years’ survival to a 25 per cent. chance of
five years’ survival was sufficient to allow the case to go to the
jury on the basis that the jury would be entitled to infer from
that evidence that the delay in treatment was a proximate cause
of the decedent’s death. He pointed out, however, that causing
reduction of the opportunity to recover (also described as a loss of
chance) by one’s negligence did not necessitate a total recovery
against the negligent party for all damages caused by the victim’s
death. He held that damages should be awarded to the injured
party and his family based only on damages caused directly by
premature death, such as lost earnings and additional medical
expenses and the like.

The approach of Dore Jbears some resemblance to the
approach taken by some members of this House in McGhee v.
National Coal Board
 [1973] 1 WLR 1, and by Lord Guthrie in
Kenyon v. Bell, 1953 S.C. 125. Brachtenbach J. dissented. He
warned against the danger of using statistics as a basis on which
to prove proximate cause and indicated that it was necessary at
the minimum to produce evidence connecting the statistics to the
facts of the case. He gave an interesting illustration of a town in
which there were only two cab companies, one with three blue
cabs and the other with one yellow cab. If a person was knocked
down by a cab whose colour had not been observed it would be
wrong to suggest that there was a 75 per cent. chance that the
victim was run down by a blue cab and that accordingly it was
more probable than not that the cab that ran him down was blue
and therefore that the company running the blue cabs would be
responsible for negligence in the running down. He pointed out
that before any inference that it was a blue cab would be

– 11 –

appropriate further facts would be required as, for example, that a
blue cab had been seen in the immediate vicinity at the time of
the accident or that a blue cab had been found with a large dent
in the very part of the cab which had struck the victim. He
concluded that the evidence available was not sufficient to justify
the case going to the jury and noted, at p. 491:

“The apparent harshness of this conclusion cannot be
overlooked. The combination of the loss of a loved one to
cancer and a doctor’s negligence in diagnosis seems to
compel a finding of liability. Nonetheless, justice must be
dealt with an even hand. To hold a defendant liable
without proof that his actions caused plaintiff harm would
open up untold abuses of the litigation system.”

Pearson J. agreed that the appeal should be allowed but did
not agree with the reasoning by which that result was supported
by Dore J. Pearson J., after examining the authorities and an
academic article, stated that he was persuaded that a middle
course between the reasoning of Dore J. and Brachtenbach J. was
correct and concluded, at p. 487:

“that the best resolution of the issue before us is to
recognise the loss of a less than even chance as an
actionable injury.”

He recognised that this also required that the damage payable be
determined by the application of that chance expressed as a
percentage to the damages that would be payable on establishing
full liability.

I have selected references to the view expressed by the
judges who took part in this decision to illustrate the variety of
views open in this difficult area of the law. These confirm me in
the view that it would not be right in the present case to affirm
the general proposition for which Mr. Whitfield contended. On the
other hand, none of the views canvassed in Herskovits’ case would
lead to the plaintiff succeeding in the present case since the
judge’s findings in fact mean that the sole cause of the plaintiff’s
avascular necrosis was the injury he sustained in the original fall,
and that implies, as I have said, that when he arrived at the
authority’s hospital for the first time he had no chance of avoiding
it. Accordingly, the subsequent negligence of the authority did not
cause him the loss of such a chance.

I have the impression from reading the judgments of the
Court of Appeal that this aspect of the facts in the present case
may not have been in the forefront of the discussion there. Much
of the judgment of the Court of Appeal will remain for
consideration in the future.

LORD ACKNER

My Lords,

– 12 –

This appeal, as Mr. Graham Williams Q.C. for the
respondent (the plaintiff in the action) submitted, raises a short
point of classification. Adopting, although somewhat adapting, the
words of Dillon L.J. in his short judgment [1978] 2 W.L.R. 287,
298, the fundamental question is “What does the law regard as the
damage which the plaintiff has suffered? Was it the onset of
avascular necrosis or was it the loss of the chance of avoiding
that condition?”

The claim, as pleaded, is a simple one for damages for
personal injuries suffered as a result of negligent treatment.
Paragraph 9 of the amended statement of claim alleges:

“The plaintiff now suffers from a permanent deformity of
the left hip and a loss of movement therein and wasting of
the left leg with a resultant limp, none of which injuries
the plaintiff would have suffered save for the aforesaid
negligence of the defendants [East Berkshire Health
Authority] which is hereinafter set out.”

To establish his cause of action, the plaintiff had to prove
that the defendants (the appellants) were under the duty alleged,
that they broke that duty and that as a result of that breach of
duty he suffered the injuries alleged. It is, of course, axiomatic
that the facts upon which liability is based must be proved on the
balance of probabilities.

It is common ground that the defendant, in breach of its
duty, failed to treat the plaintiff for five days and that as a
consequence of that breach of duty he suffered pain during that
period for which he was properly compensated by the award made
by the trial judge of £150. The permanent deformity of the hip
and other injuries described in the statement of claim were in an
entirely separate and unrelated category and were due to the
avascular necrosis of the left femoral epiphysis.

The judge [1985] 1 W.L.R. 1036, 1038-1039 explained most
helpfully the mechanism by which the avascular necrosis with the
resultant distortion and collapse of the epiphysis can occur:

“The femoral epiphysis (the epiphysis as I shall refer to it
henceforth) is the spongy extremity of the upper femur, its
surface being covered with cartilage, which slots into the
cavity of the acetabulum to form the hip joint. In a child
the epiphysis is connected to the neck of the femur by an
epiphysial plate (sometimes called a growth plate) which is
essentially a sandwich filling of cartilage between, on the
upper side, the epiphysis and on the lower side the bony
femoral neck. The plate exists only in a growing skeleton
and indeed it enables the bone to grow; in maturity it forms
bone across the gap. The major threat created by an injury
such as the plaintiff’s is that it will so interfere with the
blood supply to the epiphysis that avascular necrosis will
develop. This is a condition whereby through lack of
sufficient blood the epiphysis becomes de-mineralised,
weakened and softened and thus denser, distorted and
deformed. When that occurs, not only does it cause
misshapenness of the joint with associated pain, restriction
in mobility and general disability, but it also carries with it

– 13 –

the virtual certainty that osteo-arthritis will develop within
the joint.”

At the trial it was contended on the plaintiff’s behalf,
thereby departing from paragraph 9 of the amended statement of
claim, to which I have already made reference, that the
defendants’ failure to diagnose and treat the injury immediately
when he first attended hospital rather than when he returned five
days later substantially increased the risk that avascular necrosis
would develop and thus give rise to the long-term disability which
resulted. The defendants contended, relying upon the expert
evidence of their surgeon Mr. Bonney, that the initial injury when
the plaintiff fell and thereby sustained the fracture separation of
the left femoral epiphysis, was so severe that the avascular
necrosis of the epiphysis was, thereafter and in any event,
inevitable. It was thus argued that the delay would not have
increased the risk of avascular necrosis.

The vital issue of fact which the judge had to determine
was whether or not the fall left intact sufficient blood vessels to
keep the epiphysis alive. If it did not, then the subsequent failure
to diagnose and treat the injuries for a period of five days could
not be responsible for the avascular necrosis. The judge, again
most helpfully, gave a simple and short explanation of the system
of blood supply to the epiphysis and the likely effect upon that
supply of the injury sustained by the plaintiff when he fell. He
said, at p. 1041:

“There are in a child three sets of blood vessels to the
epiphysis: those running along the back of the femoral neck,
those running along the front, and those which run through
the round ligament. It was common ground between the
experts (a) that the blood supply along the front of the
femoral neck (some 20 per cent. of the total supply) would
have been ruptured by the fall when the femoral shaft
rotated; and (b) that the supply through the round ligament
(something less than 30 per cent. of the total) would not
have been ruptured.”

Thus the essential question to determine was – what was the
effect of the fall upon the remaining 50 per cent. of the blood
supply which was to be found in the blood vessels running along
the back of the femoral neck? Mr. Bonney took the view that
these blood vessels must have been ruptured by the fall. The
respondent’s surgeon, Mr. Bucknill, disagreed, contending that the
effect of the fall was to rotate the femur externally so as to
lessen the tension upon the rear vessels. He could see no good
reason to conclude that these would have been severed.

The judge was unable to accept either of the competing
extreme views. His conclusions were, at pp. 1040-1041:

“(1) Even had the health authority correctly diagnosed and
treated the plaintiff on 26 April there is a high probability,
which I assess as a 75 per cent. risk, that the plaintiff’s
injury would have followed the same course as it in fact
has, that is he would have developed avascular necrosis of
the whole femoral head with all the same adverse
consequences as have already ensued and with all the same

– 14 –

adverse future prospects. . . . (4) The reason why the
delay sealed the plaintiff’s fate was because it allowed the
pressure caused by haemarthrosis – the bleeding of ruptured
blood vessels into the joint – to compress and thus block the
intact but distorted remaining vessels with the result that
even had the fall left intact sufficient vessels to keep the
epiphysis alive (which, as finding (i) makes plain, I think
possible but improbable)
 such vessels would have become
occluded and ineffective for this purpose.” (Emphasis
added.)

The judge was thus making clear that he accepted Mr.
Bonney’s opinion to this extent, viz. that the blood vessels running
along the back of the femoral neck containing approximately one-
half of the total blood supply must have been, on the balance of
probabilities,
 ruptured by the fall.

He thus found that immediately after the fall, that is
before admission to hospital and therefore before the duty was
imposed upon the defendants properly to diagnose and treat, the
epiphysis was doomed. Accordingly the judge had determined as a
matter of fact, on the balance of probabilities, that the
compression and blocking of the blood vessels had had no effect on
the respondent’s ultimate condition. In determining what happened
in the past the court decides on the balance of probabilities.
Anything that is more probable than not is treated as certainty
(Mallet v. McMonagle [1970] A.C. 166, 176, per Lord Diplock).

In the result the judge had by his clear findings decided
that the negligence of the defendants in failing to diagnose and
treat for a period of five days, had not caused the deformed left
hip. The judge, in agreement with the submission made to your
Lordships by counsel for the defendants, said in terms [1985] 1
W.L.R. 1036, 1043-1044 that in the end the problem came down to
one of classification.

“Is this on true analysis a case where the plaintiff is
concerned to establish causative negligence or is it rather a
case where the real question is the proper quantum of
damage?”

The learned judge thought, at p. 1044, that the case “hovers near
the border.” To my mind, the first issue which the judge had to
determine was an issue of causation – did the breach of duty
cause the damage alleged. If it did not, as the judge so held,
then no question of quantifying damage arises. The debate on the
loss of a chance cannot arise where there has been a positive
finding that before the duty arose the damage complained of had
already been sustained or had become inevitable.

Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563 has no
relevance to this appeal. In that case there was an undoubted
breach of contract which caused the plaintiff to suffer more than
nominal damages. By reason of the solicitor’s negligence, she had
lost a worthwhile action. What the court there had to do was to
value that action. It is, of course, obvious that it is not only
actions that are bound to succeed that have a value. Every action
with a prospect of success has a value and it is a familiar task
for the court to assess that value where negligence has prevented

– 15 –

such an action being brought. Again, Chaplin v. Hicks [1911] 2
K.B. 786, strongly relied upon by the plaintiff, provides no
assistance. In that case a young lady actress-to-be had made a
contract with the defendant under which she had an opportunity of
appearing in a competition in which, if successful, she would have
obtained a remunerative engagement as an actress. In the words
of Fletcher Moulton L.J., at p. 797:

“The contract gave the plaintiff a right of considerable
value, one for which many people would give money;
therefore to hold that the plaintiff was entitled to no
damages for being deprived of such a right because the final
result depended on a contingency or chance would have been

a misdirection.”

In a sentence, the plaintiff was not entitled to any damages
in respect of the deformed hip because the judge had decided that
this was not caused by the admitted breach by the defendants of
their duty of care but was caused by the separation of the left
femoral epiphysis when he fell some 12 feet from a rope on which
he had been swinging.

On this simple basis I would allow this appeal. I have
sought to stress that this case was a relatively simple case
concerned with the proof of causation, upon which the plaintiff
failed, because he was unable to prove, on the balance of
probabilities, that his deformed hip was caused by the defendants’
breach of duty in delaying over a period of five days a proper
diagnosis and treatment. Where causation is in issue, the judge
decides that issue on the balance of the probabilities. Unless
there is some special situation, e.g. joint defendants where the
apportionment of liability between them is required, there is no
point or purpose in expressing in percentage terms the certainty or
near certainty which the plaintiff has achieved in establishing his
cause of action.

Once liability is established, on the balance of probabilities,
the loss which the plaintiff has sustained is payable in full. It is
not discounted by reducing his claim by the extent to which he
has failed to prove his case with 100 per cent. certainty. The
decision by Simon Brown J. in the subsequent case of Bagley v.
North Herts Health Authority,
 reported only in the (1986) 136
N.L.J. 1014, in which he discounted an award for a stillbirth,
because there was a five per cent. risk that the plaintiff would
have had a stillborn child even if the hospital had not been
negligent, was clearly wrong. In that case, the plaintiff had
established on a balance of probabilities, indeed with near
certainty, that the hospital’s negligence had caused the stillbirth.
Causation was thus fully established. Such a finding does not
permit any discounting – to do so would be to propound a wholly
new doctrine which has no support in principle or authority and
would give rise to many complications in the search for
mathematical or statistical exactitude.

Of course, where the cause of action has been established,
the assessment of that part of the plaintiff’s loss where the future
is uncertain, involves the evaluation of that uncertainty. In
Bagley, if the child had, by reason of the hospital’s breach of
duty, been born with brain injury, which could lead in later life to

– 16 –

epilepsy, then it would have been a classic case for the evaluation,
inter alia, of the chance of epilepsy occurring and discounting, to
the extent that the chance of that happening fell below 100 per
cent., what would have been the sum of damages appropriate if
epilepsy was a certain consequence.

I would accordingly allow the appeal by reducing the
damages awarded to the plaintiff by £11,500, being the amount
awarded by the trial judge for the “lost chance of recovery,”
together with the amount of any interest on that sum which is
included in the award.

LORD GOFF OF CHIEVELEY

My Lords,

I have had the advantage of reading in draft the speeches
prepared by my noble and learned friends Lord Bridge of Harwich,
Lord Mackay of Clashfern and Lord Ackner. For the reasons they
give, I too would allow the appeal.

– 17 –

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