Hotson v East Berkshire Area Health Authority [1987] AC 750 (HL)

Facts

The claimant, a 13-year-old boy, fell from a tree and injured his hip. He was taken to hospital, where medical staff negligently failed to diagnose a serious condition known as avascular necrosis (loss of blood supply to the femoral head). There was a delay in proper diagnosis and treatment.

Medical evidence showed that at the time he arrived at hospital there was already a 75% chance that the injury had irreversibly disrupted the blood supply. Even with non-negligent treatment, there was only a 25% chance that proper care would have prevented the necrosis.

The claimant argued that he had lost a 25% chance of a better outcome due to the hospital’s negligence.

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Issue

Can a claimant recover damages in negligence for the loss of a chance of recovery where that chance was below 50%?

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Decision

The House of Lords held that the claimant could not recover damages. On the balance of probabilities, the injury would have occurred in any event. Since the chance of avoiding necrosis was only 25%, it could not be said that negligence probably caused the damage.

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Legal Principle

In personal injury cases, causation is determined on the balance of probabilities. If a claimant cannot show that it was more likely than not (over 50%) that the defendant’s breach caused the injury, the claim fails. English law does not generally recognise recovery for a mere loss of a chance in medical negligence cases.

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Importance

• Establishes that loss of chance is generally not recoverable in medical negligence where the chance was below 50%.

• Reinforces the strict application of the “balance of probabilities” test in causation.

• Often contrasted with commercial loss of chance cases.