Date: Tue, 24 Feb 2004 20:43:13

From: Ken Oliphant

Subject: Fairchild considered

[Tried this earlier -twice - apparently with no success. Apols if you get this twice or thrice.]

In response to Harold Luntz's query, Gregg v Scott is listed for hearing before the House of Lords on 24-25 May. (Another med. neg./causation case, Chester v Afshar [2002] EWCA Civ 724, [2003] QB 356, is listed for 26-28 July.)

Question: if the doctor's failure to treat allowed the claimant's condition to deteriorate, hasn't the latter suffered 'threshold' injury which establishes the cause of action and leaves the allegedly consequential injury (diminution of chances of survival in Gregg, loss of the leg in Cottrelle) to be considered as a question of quantification, with the award reflecting the chance that the injury might have occurred anyway? This was the minority reasoning of Latham LJ in Gregg and to me it looks absolutely irrefutable.

In a summary of the case in the European Tort Law Yearbook for 2002, I suggested (p. 151) that the Court in Gregg might have fallen into error because "the claim was apparently formulated as one for diminution in life expectancy, which is not in itself an actionable injury though it may be the consequence of an actionable injury, and the medical evidence (no doubt for good reasons) was presented in terms of chances of survival, with no effort to identify the claimant’s pre-and post-negligence life expectancies. If the doctors had said, ‘This man could have expected to live five years, but now he can only expect to live three’, I cannot imagine the case would have caused the same difficulty." I'd be interested if others agree.

Ken Oliphant

Ken Oliphant, Cardiff Law School, PO Box 427, Cardiff CF10 3XJ

Tel: 029 2087 5365. Web page: http://www.cf.ac.uk/claws/staff/oliphant.html.

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