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Hotson v East Berkshire Area Health Authority
Factual and Procedural Background
The Respondent (“Plaintiff”), then a 13-year-old schoolboy, fell approximately 12 feet from a tree on 26 April 1977, sustaining an acute traumatic fracture of the left femoral epiphysis. He was taken the same day to The Hospital operated by the Appellant (“Defendant”/“Health Authority”) but the injury was not diagnosed. Five days later, after severe pain, he returned, X-rays revealed the fracture and emergency treatment followed. The Plaintiff nevertheless developed avascular necrosis of the femoral epiphysis, a condition leading to long-term hip deformity.
The Plaintiff sued for negligence. The Defendant admitted negligence for the five-day diagnostic delay. At first instance, Judge [Brown] awarded £150 for the pain during the delay and, adopting a “loss-of-chance” analysis, an additional £11,500 (25 % of £46,000) for the lost opportunity of avoiding necrosis. The Court of Appeal upheld that award. The Defendant obtained leave to appeal to the House of Lords, which heard argument in March 1987 and delivered judgment on 30 July 1987.
Legal Issues Presented
- Whether, on the balance of probabilities, the Defendant’s negligent delay in diagnosis and treatment was a material cause of the Plaintiff’s avascular necrosis.
- Whether damages are recoverable in tort for the mere “loss of a chance” (here, a 25 % chance of recovery) when causation of the underlying physical injury cannot be proved on the balance of probabilities.
Arguments of the Parties
Appellant’s Arguments
- The Plaintiff failed to prove that delayed treatment caused or materially contributed to the necrosis; expert evidence showed it was inevitable from the initial trauma.
- Damages for “loss of chance” are not recoverable in personal injury claims; causation must be proved on the balance of probabilities.
- Accordingly, the £11,500 awarded for the lost chance should be set aside.
Respondent’s Arguments
- Prompt treatment would have preserved a 25 % chance of avoiding necrosis; the negligent delay extinguished that chance.
- Following authorities such as Chaplin v. Hicks and Kitchen v. Royal Air Force Association, damages should reflect the lost chance even if it falls below 50 %.
- The trial judge correctly treated the matter as one of quantification, not causation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chaplin v. Hicks [1911] 2 K.B. 786 | Damages may be assessed for the loss of a commercial opportunity. | Court distinguished it, noting that contractual “chance” cases are not analogous to personal-injury causation. |
| Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563 | Solicitors’ negligence—valuation of a lost civil action. | Treated as inapplicable; there the underlying cause of action was certain, whereas here causation of injury was disputed. |
| Bonnington Castings Ltd v. Wardlaw [1956] A.C. 613 | Defendant liable where negligence materially contributes to injury. | Cited to show that, had causation been proved, full damages would be payable without discount for statistical chances. |
| McGhee v. National Coal Board [1973] 1 W.L.R. 1 | Material increase in risk can satisfy causation. | Recognised but distinguished; Court noted the case was factually remote and left open whether “risk” reasoning could apply in future. |
| Mallett v. McMonagle [1970] A.C. 166 | Past facts are decided on balance of probabilities—“more probable than not” is treated as certain. | Applied as the governing standard for resolving conflicting medical evidence on causation. |
| Kenyon v. Bell 1953 S.C. 125 | Medical negligence—loss of chance may evidence causation if the chance is “material”. | Discussed by Judge [Mackay] but treated as consistent with requiring proof of causation on balance of probabilities. |
Court’s Reasoning and Analysis
Judge [Bridge], delivering the leading opinion, emphasised that the Plaintiff’s claim was for physical injury, not for the loss of an abstract chance. The Court began by analysing the conflicting expert testimony: the Defendant’s expert asserted that the original fall severed a critical proportion of blood vessels, making necrosis certain, whereas the Plaintiff’s expert allowed only a “small chance” of avoiding necrosis even with immediate treatment.
The trial judge’s own findings (accepted by the House) were that:
- Even with prompt treatment there was a 75 % probability that necrosis would still have developed.
- The compression caused by haemarthrosis during the five-day delay might have occluded any surviving vessels, but the existence of such vessels was “possible but improbable.”
From these findings the House concluded that, on the balance of probabilities, the fall itself was the sole cause of necrosis; the Defendant’s negligence did not materially contribute to that outcome. Therefore, causation failed, and any inquiry into “quantification” or “loss of chance” was unnecessary.
The Court declined to give a definitive ruling on whether “loss of chance” damages could ever be available in personal injury cases, but indicated that formidable difficulties exist and that established principles (Bonnington, McGhee) require full damages once causation is proved, not partial damages where it is not.
Holding and Implications
HELD: The appeal is allowed. The awards for “loss of chance” (£11,500 + interest) are set aside; only the £150 for five days’ pain and suffering remains. The matter is remitted to the Queen’s Bench Division for any consequential orders consistent with this judgment.
Implications: The decision reinforces the requirement that a claimant in negligence must establish causation of physical injury on the balance of probabilities; statistical chances below that threshold do not suffice. While the House left open whether “loss-of-chance” damages might ever be recoverable, it signalled that such an approach is inconsistent with orthodox principles unless causation is first proved. No new legal test was created; the ruling primarily affects the parties by eliminating the additional damages and clarifying cost liabilities.
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