Hotson v East Berkshire Health Authority

In a personal injury negligence claim, the claimant must prove on the balance of probabilities that the breach caused or materially contributed to the injury. A statistical possibility below 50 per cent does not convert a failure to prove causation into a compensable loss of a chance.

Where the claimant’s condition probably made the adverse outcome inevitable before the defendant’s breach, the breach causes neither that outcome nor the loss of an opportunity to avoid it. Once causation of an indivisible injury is established, damages are awarded in full rather than discounted for evidential uncertainty. Future consequences may, however, be valued according to their chances. The House left open whether loss of a less-than-even chance could ever found recovery in medical negligence.

Hotson v East Berkshire Health Authority concerned a schoolboy who fractured his hip. Hospital staff negligently failed to diagnose and treat the injury for five days. He subsequently developed avascular necrosis and permanent deformity.

Simon Brown J held that prompt treatment would probably have failed but would have preserved a 25 per cent chance of avoiding necrosis. He awarded £150 for additional pain and £11,500 for the lost chance: [1985] 1 W.L.R. 1036. The Court of Appeal dismissed the health authority’s appeal: [1987] 2 W.L.R. 287.

The central issue before the House was whether the findings established a compensable loss of a chance or instead demonstrated that the claimant had failed to prove that the negligent delay caused the necrosis.

1. Disposition. The House unanimously allowed the appeal. Lord Bridge of Harwich delivered the leading speech. Lord Brandon of Oakbrook, Lord Mackay of Clashfern and Lord Goff of Chieveley expressly agreed with his reasons, while Lord Ackner gave concurring reasons. The £11,500 award for loss of a chance, together with related interest, was removed.

2. Causation. Per Lord Bridge, Lord Mackay and Lord Ackner, the claimant had to prove on the balance of probabilities that the negligent delay caused or materially contributed to the avascular necrosis. The trial judge’s findings meant that the fall had probably left too few intact blood vessels to preserve the epiphysis. The necrosis was therefore already inevitable before the hospital’s breach. The claim failed on causation, so no question of quantifying a lost chance arose.

3. Past facts and statistical chances. Per Lord Mackay and Lord Ackner, a court determines disputed past facts on the balance of probabilities. Applying Mallett v McMonagle [1970] A.C. 166, an event which was more probable than not was treated as having occurred. The judge’s 75:25 assessment did not mean that the claimant possessed a 25 per cent asset or opportunity. He either had sufficient surviving vessels or he did not; the findings established the latter.

4. Damages after causation. Lord Bridge and Lord Ackner explained that, once negligence is proved to have caused or materially contributed to an indivisible physical injury, the resulting loss is recoverable in full. It is not discounted according to the residual possibility that the injury might have occurred without negligence. Lord Ackner accordingly disapproved the discount adopted in Bagley v North Herts Health Authority (1986) 136 N.L.J. 1014. By contrast, uncertainty about a future consequence of an established injury is properly reflected in the assessment of damages.

5. Question left open. Lord Bridge and Lord Mackay declined to decide whether a less-than-even lost chance could ever support recovery in medical negligence where causation was genuinely unascertainable. Lord Mackay considered that McGhee v National Coal Board [1973] 1 W.L.R. 1 prevented adoption of an absolute rule against such recovery. The contractual and solicitors’ negligence decisions concerning lost valuable opportunities were distinguishable because actionable loss had already been caused in those cases.

6. The Court of Appeal’s order was set aside, save as to costs. The trial order was varied by reducing the award by £11,500 and associated interest, and the cause was remitted to the Queen’s Bench Division.

1. House of Lords: In Hotson v East Berkshire Health Authority [1987] AC 750, the House unanimously allowed the health authority’s appeal. It set aside the Court of Appeal’s order save as to costs, varied the trial order by removing £11,500 and associated interest, and remitted the cause to the Queen’s Bench Division.
2. Court of Appeal: The court dismissed the health authority’s appeal against the award for loss of a chance: [1987] 2 W.L.R. 287.
3. High Court, Queen’s Bench Division: Simon Brown J awarded £150 for additional pain and £11,500 for the lost 25 per cent chance of avoiding avascular necrosis: [1985] 1 W.L.R. 1036.