Date: Thu, 15 Feb 2007 09:45:08 -0600

From: Richard Wright

Subject: Loss of chance

The continuing discussion has finally prodded me to tear myself away from mountains of undone and overdue work to note, as I have in prior work, that in my opinion it is a fundamental error to view "preponderance of the evidence" or "balance of probabilities" as satisfied by a mere 50+% naked statistic or ex ante probability, rather than requiring the formation of a minimal belief in the truth of the matters asserted based on particularistic evidence that establishes the instantiation or non-instantiation on the particular occasion of the causal generalization(s) at issue. Once this is recognized, there is no problem with holding more than two possible tortfeasors liable (who will be unable to exonerate themselves by using naked statistics to prove lack of causation under the shifted burden of proof) in a situation like Cook v. Lewis or Summers v. Tice, and, conversely, no way to hold a single defendant liable in such a situation merely because he fired more shots than the other possible tortfeasor. Similarly, no way to unjustly hold a DES manufacturer who had more than half the market (as Eli Lilly apparently did) liable for every DES injury. Similarly, as I think Harold Luntz agrees, no way to improperly hold someone fully liable in a "lost chance" case, rather than limiting liability in proportion to the lost chance, merely because the lost chance exceeded 50%. Viewing "preponderance of the evidence" or "balance of probabilities" as satisfied by a mere 50+% statistical probability causes all sorts of bad results, especially when satisfaction of such leads the court to then view causation or its lack as having been proved as certain (!!), as the House of Lords has done while overlooking actual causal contribution (by denying causation merely because the 'but for' test wasn't satisfied) in cases such as Hotson.

-----Original Message-----
From: Robert Stevens
Sent: Thursday, February 15, 2007 2:54 AM
To: Harold Luntz
Subject: Re: ODG: Loss of chance

While Gregg v Scott was under consideration by the House of Lords, the NSW CA recognised loss of chance in a medical negligence case, Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 (CA), which achieved only passing mention in Lord Hoffmann's speech in Gregg. When Rufo was officially reported, the headnote writer categorised the statements as to loss of chance as obiter and added a footnote reference to Gregg v Scott (to my mind going beyond the function of a reporter).

Thanks for the cases Harold. I didn't know them, and have now quickly done so. Rufo v Hosking seems to me to be right in principle. For those who have not read it, it is a re-run of Hotson v East Berkshire with the NSWCA allowing the claim for the lost chance. So, unlike Gregg this is a lost chance case, not a case of suffering a diminished chance of being able to avoid a loss which has not yet occurred.

If there had been a contract between patient and hospital, I remain of the view that the claim for damages for the lost chance of avoiding injury (here spinal fractures) as a result of breach is, doctrinally, irresistible. Just asserting that losing the chance to win a beauty contest is different from the lost chance of avoiding injury is no help. Of course, factually they are, but why should they be treated differently as a matter of legal doctrine?

Now, in the UK at least, most patients are treated by the NHS, rather than under private contracts, so a claim for breach of contract is unavailable. But, my rights as against a hospital which admits me for treatment are, observably, different from my rights good against the whole world. If I am admitted to hospital, the hospital is under a positive duty to take care to cure me. If reasonable care would result in cure, and I am not cured, I have a claim. Third parties are not under any such positive duty towards me. The hospital's position is different because it has put up a big sign saying "Public Hospital" and admitted me. Put another way, it has assumed responsibility towards me and the only reason there is not a contract is the absence of consideration. This assumed duty is non-delegable.

I should be able to claim for all of the loss flowing from the breach of this assumed duty that care will be taken of me, including the lost chance of avoiding injury. The absence of consideration should not be decisive. This is what the NSWCA have done.

Put in archaic language, this is a claim in assumpsit and it should not matter that no consideration has been provided (cf Hedley Byrne v Heller, Wilkinson v Downtown in relation to consequential economic loss).

The NSW CA, however, went on fulfil the fears of Baroness Hale and to recognise loss of chance in a non-medical negligence case, New South Wales v Burton [2006] NSWCA 12 (10 February 2006); (2006) Aust Torts Reports 81-826. (Again, for what it is worth, in my opinion the dissenting judgment of Basten JA in this case makes more sense.)

NSW v Burton does seem wrong. It is a claim for PTSD, a condition worsened by the defendant. As the injury is divisible, unlike a spinal fracture, the defendant should have been held liable to the extent that the condition was worsened by his negligence. It is not a lost chance case.

Now two first instance judges in NSW have held in medical negligence cases that Rufo v Hosking is binding on them. In Halverson v Dobler [2006] NSWSC 1307 (1 December 2006), the judge, who clearly didn't agree with Rufo, distinguished it on the basis that it applied only where the chance was 50% or less, a view once taken by Callinan J in the High Court of Australia (which I have described elsewhere as "insupportable"), and awarded full damages on the basis that causation was satisfied on the balance of probabilities.

If I can show on the balance of probabilities that you have carelessly injured me I should be able to recover in full. Again, it is necessary to distinguish between the infringement of the right (here the right to bodily safety), and the loss consequential upon the infringement.

The piece Harold is coyly referring to is, I think, H Luntz, Causation in Law and Medicine edited by Ian Freckelton and Danuta Mendelson (1992). It is well worth reading, having discovered it in the Bodleian a few months back.

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