Gregg v Scott and Loss of a Chance

Abstract

In Gregg v Scott, the House of Lords confronted the issue of recovery for the loss of a chance in cases of medical negligence. Their Lordships, by a majority of 3-2, refused to recognise loss of a chance as a recoverable head of damages.

I propose to examine Gregg v Scott through the lens of the first two judgments: those of Lords Nicholls and Hoffmann. This is because they present the most compelling cases for, respectively, the dissent and the majority. But they also each contain a crucial ambivalence that lies at the heart of this issue and that causes judges and commentators to struggle with the concept of loss of a chance. I explore this ambivalence by distinguishing between their Lordships “main” and “secondary arguments”. I end by suggesting that this ambivalence should be resolved in favour of the position taken by the majority of the Court, though not quite for the reasons given by Lord Hoffmann.

Keywords: torts, loss of a chance