Proof of causation: A new approach in cancer cases

Abstract

This paper considers the judgments in JD v MELANIE MATHER [2012] EWHC 3063 (QB) and LORETTA OLIVER v GARY WILLIAMS [2013] EWHC 600 (QB) and how new prognostic models for breast cancer survival can be used by litigants to overcome the perceived injustices created by common law principles of causation established in Gregg v Scott [2005] UKHL 2. We consider how the use of epidemiological data in breast cancer cases permits the lawyer to pose the question of how a delay in diagnosis reduces life expectancy and how, in an increasingly high number of cases, that is preferable to the traditional approach of addressing only survival. By applying new statistical data to establish the effect of delay upon life expectancy, the court will be able to avoid apparent injustice without straining yet further established principles of common law causation. More importantly, in many cases for which redress is currently not available, it will better reflect the duty of the treating doctor and the expectations of the patient, something the common law should strive to achieve. This approach was applied in JD v MELANIE MATHER [2012] EWHC 3063 (QB) and considered in LORETTA OLIVER v GARY WILLIAMS [2013] EWHC 600 (QB).