1989 PLP 2103 (MLD)

The case closest on its facts to the present from the United Kingdom; cited at the hearing before your Lordships, is Kenyon v. Bell 1953 SC

125. In that case the lower lid of a ‑child's eye was cut as a result of an accident and subsequently the eye had to be removed by operation. An action for damages was raised against the medical practitioner who had first treated the injury, alleging that he had failed to exercise reasonable care and ordinary professional skill in carrying out his examination and treatment of the injury and that as a result the child had not been given certain treatment which `would have made the saving of the eye a certainty or alternatively would have materially increased the chance of saving the eye.' The medical practitioner contended that since all that was being offered to be proved was the weaker of the two alternative statements the case should not be allowed to proceed to proof since the weaker alternative alleging that the treatment would materially have increased the chance of saving the eye did not justify a claim for damages. Lord Guthrie held that the loss of a chance of saving the eye was not of itself a matter which would entitle the claim to succeed but founding particularly on .the use of the word `material' in the pleadings to qualify the chance of saving the eye by proper treatment Lord Guthrie held that on the evidence the chance of saving the eye by proper treatment might be proved to be so material that the natural and reasonable inference to draw from the evidence would be that the loss of the eye was due to the absence of such treatment. In that event, the claim would succeed. Accordingly he allowed it to go to proof. This illustrates that where what is at issue is a patient's condition on being presented to a medical practitioner the question whether the condition was such that proper treatment could effect a particular is to be determined on the balance of probabilities and that one way of describing that balance is to say that there was at that time a sufficient chance that the particular result could be attained to justify holding that the loss of that result was caused by the absence of proper treatment. On the other hand, Lord Guthrie made it clear that, in his opinion, while the fault could be charged against the doctor as being failure to give the child the opportunity of having an eye preserved by proper treatment, unless the eye would have been saved by such treatment no loss would have been established and no claim for damages justified in respect thereof. After the proof, Lord Strachan in a decision (9 April 1954, unreported) held that the defender had established that the boy's eye was irreparably injured on 15 March 1951 and that no treatment could have made any difference because the initial injury involved a perforating wound of the sclera with consequent haemorhaging into the interior of the eye. In my opinion, it is perfectly correct to apply the same approach in the present case: what was the plaintiff's condition on being first presented al the hospital? Did he have intact sufficient blood vessels to keep the affected ephiphysis alive? The Judge had evidence from the authority's expert which amounted to an assertion that the probability was 100% that the fall had not left intact sufficient vessels to keep the epiphysis alive while he had evidence from Mr. Bucknill, for the plaintiff, which although not entirely consistently suggested that the probability was perhaps between 40% and 60%, say 50%, that sufficient vessels were left intact to keep the epiphysis alive. The concluding sentence in the Judge's fourth finding in fact makes it plain, in my opinion, that he took the view, weighing that testimony alongwith all the other matters before him, that it was more probable than not that insufficient vessels had been left intact by the fall to maintain an adequate blood supply to the epiphysis and he expressed this balance by saying that it was 75% to 25%, a result reached perhaps as counsel for the plaintiff suggested `by going for a figure midway between the competing estimates given by the parties' experts in evidence. Although various statistics were given in evidence I do not read any of them as dealing with the particular probability which the Judge assessed at 75% to 25%. In the circumstances of this case the probable effect of delay in treatment was determined by the state of facts existing when the plaintiff was first presented to the hospital. It is not, in my opinion, correct to say that on arrival at the hospital he had a 25% chance of recovery. If insufficient blood vessels were left intact by the fall he had no prospect of avoiding complete avascular necrosis whereas if sufficient blood vessels were left intact on the judge's findings no further damage to the blood supply would have resulted if he had been given immediate treatment, and he would not have suffered the avascular necrosis. As I have said, the fundamental question of fact to be answered in this case related to a point in time before the negligent failure to treat began. It must, therefore, be a matter of past fact. It did not raise any question of what might have been the situation in a hypothetical state of Ewis. To this problem the words of Lord Diplock in Mallett v. McMonagle [1969] 2 All ER 178 at 191, [1970] AC 166 at 176 apply: "In determining what did happen in the past a Court decides on the balance of probabilities. Anything that is more probable than not it treats as certain:" In this respect this case is the same, in principle, as any other in which the state of facts existing before alleged negligence came into play has to be example, if a claimant alleges that he sustained a certain fracture in a fall at work and there is evidence that he had indeed fallen at work, but that shortly before he had fallen at home and sustained the fracture, the Court would have to determine where the truth lay. If the claimant denied the previous fall, there would be evidence, both for and against the allegation that he had so fallen. The issue would be resolved on the balance of probabilities. If the court held on that balance that the fracture was sustained at home, there could be, no question of saying that since all that had been established was that it was more probable than not that the injury was not work‑related, there was a possibility that it was work‑related and that this possibility or chance was a, proper subject of compensation. I should add in this context that where on disputed evidence a judge reaches a conclusion on the balance of probabilities it will not usually be easy to assess a specific measure of probability for the conclusion at which he has arrived. As my noble and learned friend Lord Bridge observed in the course of the hearing, a judge deciding disputed questions of fact will not ordinarily do it by use of a calculator. On the other hand, I consider that it would be unwise in the present case to lay it down as a rule that a plaintiff could never succeed by proving loss of a chance in a medical negligence case. In McGhee v. National Coal Board (19721 3 All ER 1008, [1973] 1 WLR 1 this House held that where it was proved that the failure to provide washing facilities for the pursuer at the end of his shift had materially increased the risk that he would contract dermatitis it was proper to hold that the failure to provide such facilities was a cause to a material extent of his contracting dermatitis and thus entitled him to damages from his employers for their negligent failure measured by his loss resulting from dermatitis. Material increase of the risk of contraction of dermatitis is equivalent to material decrease in the chance of escaping dermatitis. Although no precise figures could be given in that case for the purpose of illustration and comparison with this case one might, for example, say that it was established that of 100. people working under the same conditions as the pursuer and without facilities for washing at the end of their shift 70 contracted dermatitis of 100 people working in the same conditions as the pursuer when washing facilities were provided for them at the end of the shift 30 contracted dermatitis. Assuming nothing more were known about the matter than that, the decision of this House may be taken as holding that in the circumstances of that case it was reasonable to infer that there was a relationship between contraction of dermatitis in these conditions and the absence of washing facilities and therefore it was reasonable to hold that absence of washing facilities was likely to have made a material contribution to the causation of the dermatitis. Although neither party in the present appeal placed particular reliance on the decision in McGhee since it was recognised that McGhee is far removed on its fact from the circumstances of the present' appeal your Lordships were also informed that cases are likely soon to' come before the House in which the decision in McGhee will be subjected to close analysis. Obviously in approaching the matter on the basis adopted in McGhee much will depend on what is known of the reasons for the differences in the figures, which I have used to illustrate the position. In these circumstances I think it unwise to do more than say that unless and until this House departs from the decision in McGhee your Lordships cannot affirm the proposition that in no circumstances can evidence of loss of a chance resulting from the breach of a duty of care found a successful claim of damages, 'although there was no suggestion that the House regarded such a chance as an asset in any sense. By agreement of the parties we were supplied with a list of American authorities relevant to the questions arising in this appeal, although they were not examined in detail. Of the cases referred to, the one that I have found most interesting and instructive is Herskovits v. Group Health Cooperative of Puget Sound (1983) 664 P 2d 474, a decision of the Supreme Court of Washington en banc. In this case the claim arose in respect of Mr. Hewrskovilis's death. He was seen at Group Health Hospital at a time when he was suffering from a turmour but this was not diagnosed on first examination. The medical evidence available suggested that at that stage, assuming the tumour was a stage I tumour, the chance of survival for more than five years was 39%. When he was treated later the tumour was stage 2 tumour and the chance of surviving more than five years was 25 %. The defendant moved for summary judgment on the basis that, taking the most favourable view of the evidence that was possible, the case could not succeed. The Superior Court of King County granted the motion. This decision was reversed by a majority on appeal to the Supreme Curt. The first judgment for the majority in the Supreme Court was delivered by Dore J. Early in his judgment he read from the American Law Institute's Restatement of the Law, Second, torts 2d‑ (1965) Vol. 2, Art. 323, which is in these terms: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increase the risk of such harm..." After noting that the Supreme Court of Washington had not faced the issue of whether, under this paragraph, proof that the defendant's conduct had increased the risk of death by decreasing the chances of survival was sufficient to take the issue of proximate cause to the injury he said (664 P 2d 474 at 476): "Some courts in other jurisdiction have allowed the proximate cause issue to go to the jury on this type of proof ....These courts emphasized the fact that defendants' conduct deprived the decedents of a significant "chance to survive or recover, rather than requiring proof that with absolute certainty the defendants' conduct caused the physical injury. The underlying reason is that it is not for the wrongdoer, who put the possibility of recovery beyond realization to say afterward that the result was inevitable ....Other jurisdictions have rejected this approach, generally holding that unless the plaintiff is able to show that it was more likely than not that the harm was caused by the defendant's negligence, proof of a decreased chance of survival is not enough to take the proximate cause question to the jury???These courts have concluded that the defendant should not be liable where the decedent more than likely would have died anyway." (Dore J's emphasis.) To the question whether the plaintiff should be allowed, in the case before him, to proceed to a jury he returned an affirmative answer, and gave as the reason (at 477): "To decide otherwise would be a blanket release from liability for doctors arid hospitals any time there was less than a 50 per cent chance of survival, regardless of how flagrant the negligence." In support of this reasoning he referred to Hamil v. Bashline (1978) 481 Pa 256, a decision of the Pennsylvania Supreme Court, and said: "The Hamil Court distinguished the facts of that case from the general tort case in which a plaintiff alleges that a defendant's act or omission set in motion a force which resulted in harm. In the typical tort case, the `but for' test, requiring proof that damages or death probably would not have occurred "but for" the negligent conduct of the defendant, is appropriate. In Hamil and the instant case, however, the defendant's act or omission failed in a duty to protect against harm from another source. Thus, as the Hamil Court noted, the fact finder is put in the position of having to consider not only what did occur, but also what might have occurred." (Dore J's emphasis). He goes on to quote from Hamil's case 481 Pa 256 at 271: "Such cases by their very mature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequence of his negligent conduct, Section 323(a) [of the Restatement of the Law, Second, Torts 2d] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof." He goes on to refer to another decision, namely Hicks v. US (1966) 368 F 2d 626 at 632, as‑containing a succinct statement of the relevant doctrine, which he quotes (664 P 2d 474 at 478): "Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly." (Judge Sobelofs emphasis.) He refers also to a general observation in the Supreme Court of the United States dealing with a contention similar to that argued before him by the doctors and the hospital. In Lavender v. Kurn (1946) 327 US 645 at 653 the Supreme Court said: "It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are indispute, or the evidence is such that fair‑minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference: He, therefore, concluded that the evidence available which showed at maximum a reduction in the 39% chance of five years' survival to a 25% chance of five years' survival was sufficient to allow the case to go to the jury on the basis that the jury would be entitled to infer from that evidence that the delay in treatment was a proximate cause of decedent's death (see 664 P.2d 474 at 479) He pointed out, however, that causing reduction of the opportunity to recover (also described as a loss of chance) by one's. negligence did not necessitate a 'total recovery against the negligent party for all damages caused by the victim's death. He held that damages should be awarded to the injured party and his family based only on damages caused directly by premature death, such‑as‑lost earnings and additional medical expenses and the like. The approach of Dore J. bears some resemblance to the approach taken by some members of this House in McGhee v. National Coal Board [1972] 3 All ER 1008, [1973] 1 WLR 1 and by Lord Guthrie in Kenyon v. Bell 1953 SC ;125, Brachtenbach, J. dissented. He warned against the danger of using statistics as a basis on which to prove proximate cause and indicated that it was necessary at the minimum to produce evidence connecting the statistics to the facts of the case. He gave an interesting illustration of a town in which there were only two cab companies, one with three blue cabs and the other with one yellow cab. If a person was knocked down by a cab whose colour had not been observed it would be wrong to suggest that there was a 75% chance that the victim was run down by a blue cab and that accordingly it was more probable than not that the cab that ran him down was blue and therefore, that the company running the blue cabs would be responsible for negligence in the running down. He pointed out that before any inference that it was a blue cab would be appropriate further facts would be required as, for example, that a blue cab had been seen in the immediate vicinity at the time of the accident or that. a blue cab had been found with a large dent in the very part of the cab which had struck the victim. He concluded that the evidence available was not sufficient to justify the case going to the jury and noted (664 P. 2d 474 at 491): "The apparent harshness of this conclusion cannot be overlooked. The combination of the loss of a loved one to cancer and a doctor's negligence in diagnosis seems to compel a finding of liability. Nonetheless, justice must be dealt with an even hand. To hold a defendant liable without proof that his actions caused plaintiff harm would open up untold abuses of the litigation system." (Brachtenbach, J's emphasis). Pearson, J. agreed that the appeal should be allowed but did not agree with the reasoning by which that result was supported by Dore, J. Pearson, J. after examining the authorities and an academic article, stated that he was persuaded that a middle course between the reasoning of Dore and Brachtenbach, JJ was correct and concluded `that the best resolution of the issue before us is to recognize the loss of a less than even chance as an actionable injury' (at 487). He recognised that this also required that the damage payable be determined by the application of that chance expressed as a percentage to the damages that would be payable on establishing full liability. I have selected references to the view expressed by the Judges who took part in this decision to illustrate the variety of views open m this difficult area of the law. These confirm me in the view that it would not be right in the present case to affirm the general proposition for which counsel for the authority contended. On the other hand, none of the views canvassed in Harskovits's case would lead to the plaintiff succeeding in the present case since the Judge's findings in fact mean that the sole cause of the plaintiff's avascular necrosis was the injury he sustained in the original fall, and that implies, as I have said, that when he arrived at the authority's hospital for the first time he had no chance of avoiding it. Accordingly, the subsequent negligence of the authority did not cause him the loss of such a chance. I have the impression from reading the judgments of the Court of appeal that this aspect of the facts in the present case may not have been in the forefront of the discussion there. Much of the judgment of the Court of Appeal will remain for consideration in the future. LORD ACKNER.‑‑ My Lords, this appeal, as counsel for the plaintiff submitted, raises a short point of classification. Adopting, although somewhat adapting, the words of Dillon L. J. in his short judgment, the fundamental question is: what does the law regard as the damage which the plaintiff has suffered? Was it the onset of avascular necrosis or was it the loss of the chance of avoiding that condition? (See [1987) 1 All ER 210 at 219 [1987] 2 WLR 287 at 298). The claim, as pleaded, is a simple one for damages for personal injuries suffered as 'a result of negligent treatment. Paragraph 9 of the amended statement of claim alleges:‑ "The plaintiff now suffers from a permanent deformity of the left hip and a loss of movement therein and wasting of the left leg with a resultant limp, none of which injuries the plaintiff would have suffered save for the aforesaid negligence of the defendants (East Berkshire Health Authority) which is hereinafter set out." To establish his cause of action, the plaintiff had to prove that the authority were under the duty alleged, that they broke that duty and that as a result of that breach of duty he suffered the injuries alleged. It is, of course, axiomatic that the facts on which liability is based must be proved on the balance of probabilities. It is common ground that the authority, in breach of its duty, failed to treat the plaintiff for five days and that as a consequence of that breach of duty he suffered pain during that period for which he was properly compensated by the award made by the trial Judge of h

150. The permanent deformity of the hip and other injuries described in the statement of claim were in an entirely separate and unrelated category and were due to the avascular necrosis of the left femoral epiphysis. Simon Brown, J. explained most helpfully the mechanism by which the avascular necrosis with the resultant distortion and collapse of the epiphysis can occur [198513 All. E R 167 at 169 ‑ 170 1198511 WLR 1036 at 1038 ‑ 10391: "The femoral epiphysis (the epiphysis as I shall refer to it henceforth) is the spongy extremity of the upper femur, its surface being covered with cartilage, which slots into the cavity of the acetabulum to form the hip joint. In a child the epiphysis is connected to the neck of the femur by an epiphysial plate (Sometimes called a growth plate), which is essentially a sandwhich filling of cartilage between, on the upper side, the epiphysis and on the lower side the bony femoral neck. The plate exists only in a growing skelton and indeed it enables the bone to grow; in maturity it forms bone across the gap. The major threat created by an injury such as the plaintiffs is that it will so interfere with the blood supply to the epiphysis that avascular necrosis will develop. This is a. condition whereby through lack of sufficient blood the epiphysis becomes demineralised, weakened and softened and thus denser, distorted and deformed. When that occurs, not only does it cause mishapeness of the joint with associated pain, restriction in mobility and general disability, but it also carries with it the virtual certainty that osteo‑arthritis will develop within the joint." At the trial it was contended on the plaintiff's behalf, thereby departing from para. 9 of the amended statement of claim, to which I have already made reference, that the authority's failure to diagnose and treat the injury immediately when he first attended hospital rather than when he returned five days later substantially increased the risk that avascular necrosis would develop and thus give rise to the long‑term disability which resulted. The authority contended, relying on the expert evidence of their surgeon Mr. Bonney, that the initial injury when the plaintiff fell and thereby sustained the fracture separation of the left femoral epiphysis, was so severe that the avascular, necrosis of the epiphysis was, thereafter and in any event, inevitable. It was thus argued that the delay would not have increased the risk of avascular necrosis. The vital issue of fact which the Judge had to determine was whether or not the fall left intact sufficient blood vessels to keep the epiphysis alive. If it did not, then the subsequent failure to diagnose and treat the injuries for a period of five days could not be responsible for the avascular necrosis. The Judge, again most helpfully, gave a simple and short explanation of the system of blood supply to the epiphysis and the likely effect on that supply of the injury sustained by the plaintiff when he fell. He said [1985] 3 All ER 167 at 171, [1985] 1 `VLR 1036 at 1041 ]: "There are in a child three sets of blood vessels to the epiphysis, those running along the back of the femoral neck, those running along the front, and those which run through the round ligament. It was common ground between the experts (a) that the blood supply along the front of femoral neck (some 20% of the total supply) would have been ruptured by the fall when the femoral shaft rotated and (b) that the supply through the round ligament (something less than 30% of the total) would not have been ruptured." Thus the essential question to determine was; what was the effect of the fall on the remaining 50% of the blood supply which was to be found in the blood vessels running along the back of the femoral neck? Mr. Bonney took the view that these blood vessels must have been ruptured by the fall. The plaintiff's surgeon, Mr. Bucknill, disagreed, contending that the effect of the fall was to rotate the femur extermally so as to lessen the tension on the rear vessels: He could see no good reason to conclude that these would have been severed. The Judge was unable to accept either of the competing extreme views. His conclusions were [19851 3 All ER 167 at 171, 11985] 1 WLR 1030 at 1040 ‑10411: "(1)????? Even had the defendants correctly diagnosed and treated the plaintiff on 26th April there is a high probability, which I assess as a 75% risk, that the plaintiff's injury would have followed the same course as it in fact has, i.e. he would have developed avascular necrosis of the whole femoral head with all the same adverse consequences as have already ensued and with all the same adverse future prospects...

4. The reason why the delay scaled the, plaintiff's fate was because it allowed the pressure caused by haemathrosis (the bleeding of ruptured blood vessels into the joint) to compress and thus block the intact but distorted remaining vessels with the result that even had the fall left intact sufficient vessels to keep the, epiphysis alive (which, as finding no I makes plain, I think possible but improbable) such vessels would have become occluded and ineffective for this purpose." (My emphasis). The Judge was thus making clear that he accepted Mr. Bonney's opinion to this extent viz. that the blood vessels running along the back of the femoral neck containing approximately one‑half of the total blood supply must have been, on the balance of probabilities, ruptured by the fall. He thus found that immediately after the fall, that is before admission to hospital and therefore, before the duty was imposed on the authority properly to diagnose and treat, the epiphysis was doomed. Accordingly the Judge had determined as a matter of fact, on the balance of probabilities, that the compression and blocking of the blood vessels had had no effect on the plaintiff's ultimate condition. 1n determining what happened in the past the Court decides on the balance of probabilities. Anything that is more probable that not is treated as certainty (see Mallett v. McMonagle [1969] 2 All ER 178 at 191, [1970] AC 166 et 1716 per Lord Diplock]. In the result the Judge had by his clear findings decided that the negligence of the authority in failing to diagnose and treat for a period of five days, had not caused the deformed left hip. The Judge, in agreement with the submission made to your Lordships by counsel for the authority, said in terms that in the end the problem came down to one of classification [19851 3 All ER 167 at 175, [1985] 1 WLR.1036 at 1043.‑ 1044: "is this on, true analysis a case where the plaintiff is concerned to establish causative negligence or is it rather a case where the real question is the proper quantum of damage?" The learned Judge thought that the case `hovers near the border'. To my mind, the first issue which the Judge had to determine was an issue of causation: did the breach of duty cause the damage alleged? If it did not, as the Judge so held, then no question of quantifying damage arises. The debate on the loss of a chance cannot arise where there has been a positive finding that before the duty arose the damage complained of had already been sustained .or had become inevitable. Kitchen v. Royal Air Forces Association [1958] 2 All ER 241, [1958] I WLR 563 has no relevance to this appeal. In that case there was an undoubted breach of contract which caused the plaintiff to suffer more than nominal damages. By reason of the solicitor's negligence, she had lost a worthwhile action. What the Court there had to do was to value that action. It is, of course, obvious that it is not only actions that are bound to succeed that have a value. Every action with a prospect of success has a value and it is a familiar task for the Court to assess that value where negligence has prevented such an action being brought. Again, Chaplin v. Hicks [1911] 2 KB 786, [1911‑13] All ER Rep 224 strongly relied on by the plaintiff, provides no assistance. In that case a young lady actress‑to‑be had made a contract with the defendant under which she had an opportunity of appearing in a competition in which, if successful, she would have obtained a remunerative engagement as an actress. In the words of Fletcher Moulton LJ [19111 2 KB 786 at 797, [1911‑131 All ER Rep 224 at 231: "The contract gave the plaintiff a right of considerable value, one for which many people would give money; therefore to hold that the plaintiff was entitled‑to no damages for being deprived of such a right because the final result depended on a contingency or chance would have been a misdirection." In a sentence, the plaintiff was not entitled to any damages in respect of the deformed hip because the Judge had decided that this was not caused by the admitted breach by the authority of their duty of care but was caused by the separation of the left femoral epiphysis when he fell some 12 feet from a rope on which he had been swinging. On this simple basis I would allow this appeal. I have sought to stress that this case was a relatively simple case concerned with the proof of causation, on which the plaintiff failed, because he was unable to prove, on the balance of probabilities, that his deformed hip was caused by the authority's breach of duty in delaying, over a period of five days a proper diagnosis and treatment. Where causation is in issue, the Judge decides that issue on the balance of the probabilities. Unless there is some special situation, e.g. joint defendants where the apportionment of liability between them is required, there is no point or purpose in expressing in percentage terms the certainty or near certainty which the plaintiff has achieved in establishing his cause of action. 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% certainty. The decision by Simon Brown, J. in the subsequent case of Bagley v. North Herts Health Authority (1986) 136 NLJ 1014, in which he discounted an award for a still birth because there was a 5% 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 plaintiffs 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 classic case for evaluation, inter alia, of the chance of epilepsy occurring and discounting, to the extent that the chance 'of that happening fell below 100%, what would have been the sum o 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. LORD GOFF OF CHIEVELEY.‑‑, My Lord, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Bridge, Lord Mackay and Lord Ackner. For the reason's they give, I too would allow the appeal. SOLICITORS.‑‑Hempsons (for the authority); Penningtons Ward ????? Bowie, agents for Lloyd Howarth, Maidenhead (for the plaintiff). M.B.A./7‑F.C. Appeal allowed.