Hotson v East Berkshire Area Health Authority [1988] UKHL 1

House of Lords
Between
HotsonAppellantEast Berkshire Area Health AuthorityRespondent
Before
Lord Bridge of HarwichDate 14 November 1986
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:

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"(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

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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.

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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

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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

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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

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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

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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

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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 contracteddermatitis. 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, . . ."

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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.

(a) [of the Restatement, Second, Torts] tacitly

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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 J . bears 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

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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,

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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

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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

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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

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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

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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.

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