• In the case of Hotson v East Berkshire HA 1987 ac 750, it was found that a loss of chance to avoid injury is not compensable in negligence.

Facts of the Case

  • (H) aged thirteen, fell from a tree and suffered an acute traumatic fracture of the left femoral epiphysis.
  • He did not get correctly treated for five days and suffered avascular necrosis, involving disability of the hip joint and the virtual certainty of osteoarthritis.
  • The health authority admitted negligence.
  • The trial judge assessed at 75% the chance the avascular necrosis would have developed anyway form the fall and awarded damages based on the loss of a 25% chance of full recovery.
  • The Health Authority appealed.

Issues in Hotson v East Berkshire HA 1987 ac 750

  • Did H satisfy the burden of proof in establishing that the Health Authority actions had been the cause of his injuries.

Held by House of Lords

  • Appeal allowed

Lord Bridge

  • The House of Lords allowed the appeal as it was for H to establish on a balance of probabilities that the delay had materially contributed to the development of avascular necrosis and that the judge’s findings of fact were contrary to this and accordingly the claimant failed on the issue of causation.
  • “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 (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 epilepsy, then it would have been a 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.” Pg.793-794

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