The House of Lords has given a controversial judgment on establishing proof of defendant negligence in personal injury claims that will benefit insurers...for now. Clare Jaycock reports

' Last week the House of Lords delivered the long-awaited judgment in Gregg v Scott. This is the third case in recent years in which the Lords has addressed the question of causation in personal injury litigation.

Gregg undoubtedly represents an important victory for defendants and their insurers. But the stark division of opinion among the Lords means that the issue will need to be revisited.

For a valid claim, the injured party must prove that the defendant's negligence caused the harm. This test is called causation.

In preceding cases, Fairchild v Glenhaven Funeral Services Ltd [2002] and Chester v Afshar [2004], the House of Lords created exceptions to the normal rules on causation.

It allowed the claims to succeed for policy reasons, on the basis that these would only be applicable in limited circumstances.

In Gregg, the core issue was of potentially much wider significance, namely whether damages should be recoverable for the 'lost chance' of better prospects of recovery where there had been medical negligence.

Changes to this area of law would be of fundamental significance to professionals and their insurers.

In the end, the Lords was split three to two, with the majority determining that damages for such a lost chance should not be recoverable.

The decision in Gregg will be broadly welcomed by medical practitioners and their insurers as the alternative outcome raised the prospect of more frequent, complex, expensive and unpredictable claims.

Uncertainty remains
But a significant degree of uncertainty remains, leaving the door open for courts to widen the scope of the law.

Mr Gregg had sued his former GP, who was found to have negligently failed to recognise that he might have cancer. The cancer was discovered a year later, by which time it had spread.

Gregg underwent painful and aggressive treatment and suffered a relapse, but lived. At first instance, the judge dismissed the claim on the basis of expert evidence that the delay in commencing treatment had reduced Gregg's prospects of surviving for 10 years (the definition of "cure") from 42% to 25%.

A majority in the Court of Appeal upheld this judgment, applying the decision of the House of Lords in Hotson that damages could not be awarded for a lost chance, at least in clinical negligence. The conventional approach to causation should be applied.

To succeed, Gregg needed to establish that he would have had a greater than 50% chance of survival had it not been for the delay in treatment. As his prospect of surviving would only have been 42%, his claim could not succeed.

Medical reality
Lord Nicholls, who was in the minority in the House of Lords judgment said the law was failing to reflect medical reality, where prospects can generally be assessed to a satisfactory degree via statistical analysis.

He said: "A patient should have an appropriate remedy when he loses the very thing it was the doctor's duty to protect."

He added that the difference between good and poor prospects was a matter going to the amount of compensation fairly payable, not to liability to make payment at all.

Lord Hoffman and Baroness Hale took the opposing view. Hoffmann, who had given a vigorous dissenting judgment in Chester, said: "The wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act."

He emphasised that such a change would have enormous consequences for insurers and the NHS and, as such, it should be for Parliament rather than the judiciary to decide.

Baroness Hale focused on the practical consequences if claimants were allowed to recover for the lost chance of a better outcome. She envisaged circumstances where a claimant could seek to recover in full on a balance of probabilities, but would have the alternative prospect of lesser recovery for the loss of a chance - what she described rather pithily as a "heads you lose everything, tails I win something" approach.

However, the third member of the majority, Lord Phillips said Gregg was simply the wrong type of case on which fundamentally to change the law.

' Clare Jaycock is a solicitor with the health group at Reynolds Porter Chamberlain