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Beever, Allan --- "Gregg v Scott and Loss of a Chance" [2005] UQLawJl 10; (2005) 24(1) University of Queensland Law Journal 201

GREGG V SCOTT AND LOSS OF A CHANCE

ALLAN BEEVER[∗]

In Gregg v Scott,[1] the House of Lords confronted the issue of recovery for the loss of a chance in cases of medical negligence. Their Lordships, by a majority of 3-2, refused to recognise loss of a chance as a recoverable head of damages.

I propose to examine Gregg v Scott through the lens of the first two judgments: those of Lords Nicholls and Hoffmann. This is because they present the most compelling cases for, respectively, the dissent and the majority. But they also each contain a crucial ambivalence that lies at the heart of this issue and that causes judges and commentators to struggle with the concept of loss of a chance. I explore this ambivalence by distinguishing between their Lordships’ ‘main’ and ‘secondary’ arguments. I end by suggesting that this ambivalence should be resolved in favour of the position taken by the majority of the Court, though not quite for the reasons given by Lord Hoffmann.

I. The Facts

The facts as accepted by the majority of the House of Lords were as follows.[2] The defendant negligently misdiagnosed the plaintiff’s malignant cancer as benign. As a result, the plaintiff’s treatment was delayed for nine months. This delay reduced the plaintiff’s chances of being ‘cured’ of the cancer from roughly 42% to 25%.[3]

The problem facing the plaintiff was that, before the defendant’s negligence, his chance of being cured was only 42%. This meant that, on the balance of probabilities, the defendant did not deprive the plaintiff of a cure. According to the normal understanding of the general principles of the law of negligence, and in line with cases such as Barnet v Chelsea and Kensington Hospital Management Committee[4] and, most importantly, Hotson v East Berkshire Area Health Authority,[5] the plaintiff could not establish that the defendant was the factual cause of any loss suffered, and so the plaintiff had to fail. This was the conclusion reached both at first instance and by the Court of Appeal. Therefore, the plaintiff argued, inter alia, that although he could not recover for the failure to be cured per se, he ought to be entitled to recover for the loss of the chance of a cure that he suffered because of the defendant’s negligence. Consequently, he argued that he should have been able to recover for 17% of the value of a cure.

II. Lord Nicholls

A. The Main Argument

Lord Nicholls’ main argument is in fact very simple and compelling: loss of a chance is a genuine loss and therefore, if it is reasonably foreseeable etc, it should be recoverable in negligence. Lord Nicholls accepted that the law has traditionally focused on outcomes rather than chances, and so recovery has usually been denied in such cases because the courts have insisted that the plaintiff prove on the balance of probabilities that the defendant’s negligence deprived him of a certain valuable outcome. But, Lord Nicholls argued, there is no justification for that focus. As Lord Nicholls pointed out, in simple cases the distinction between outcome and opportunity may not be important — if I saw your leg off with a chainsaw, the chance that I deprived you of your leg and the chance that I deprived you of the opportunity to retain your leg come to much the same thing — but when dealing with cases in which the outcome is uncertain, such as Gregg v Scott, the distinction between outcome and opportunity comes to the fore. Moreover:

the greater the uncertainty surrounding the desired future outcome, the less attractive it becomes to define the claimant’s loss by whether or not, on balance of probability, he would have achieved the desired outcome but for the defendant’s negligence. This definition of the claimant’s loss becomes increasingly unattractive because, as the uncertainty of outcome increases, this way of defining the claimant’s loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant’s negligence.[6]

That is, focusing solely on outcomes blinds courts to the real loss suffered by the plaintiff, i.e. the loss of the chance of a cure, and, without good reason, courts should not so blind themselves. As Lord Nicholls concluded this argument:

In order to achieve a just result in such cases the law defines the claimant’s actionable damage … by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcome … In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms.[7]

One might also add, in support of this argument, that the distinction between outcome and opportunity is theoretically unstable. This is because an opportunity can always be described as an outcome. In Gregg v Scott, for instance, there appears to be nothing preventing the plaintiff from claiming that the defendant’s negligence did deprive him of a desirable outcome, namely of being in the position of having a 42% chance of being cured. Simply, if loss of a chance is a real loss, then it should be compensable.

B. The Secondary Argument

However, despite the powerful argument examined above, Lord Nicholls then appeared to accept that, at least in this kind of case, the loss of a chance was no loss at all. For Lord Nicholls, this was because of the need for the plaintiff to rely on statistical evidence.

The trial judge had come to the conclusion that the defendant’s negligence had reduced the plaintiff’s chances of a cure largely because of statistical evidence relating to persons with similar conditions to the plaintiff’s. Hence, with respect to the plaintiff’s chances of survival given prompt treatment, Lord Nicholls said:

Take as an example the statistical evidence that 42% of the patients suffering from the same disease as Mr Gregg achieved ten year survival if treated at the stage when, but for the negligence, Mr Gregg would have been treated, this figure dropping to 25% when the treatment was not given until the disease had reached the more advanced stage at which Mr Gregg was actually treated. Who can know whether Mr Gregg was in the 58% non-survivor category or the 42% survivor category? There was no evidence, peculiar to him or his circumstances, enabling anyone to say whether on balance of probability he was in the former group or the latter group. The response Mr Gregg would have made if treated promptly is not known and never can be known. This difficulty was the foundation of a submission based on the proposition that a ‘statistical chance’ has no value, so its ‘loss’ cannot attract an award of compensation.[8]

Crucially, Lord Nicholls accepted the first conclusion of this argument: that the plaintiff had only a statistical chance and that the loss of that chance had no value. Hence his Lordship rejected the second conclusion, not by arguing that the statistical chance had value, but by maintaining that ‘[i]n suitable cases courts are prepared to adapt their process so as to leap an evidentiary gap when overall fairness plainly so requires’.[9]

This argument is curious, because it is inconsistent with Lord Nicholls’ main argument. Recall that Lord Nicholls maintained that the plaintiff ought to be able to recover his lost chance because that was a real loss. If that is so, then what prompts the conclusion that the plaintiff possessed only a statistical chance of a cure and that that chance had no value?

In the passage quoted above, Lord Nicholls maintained that it was impossible to know whether the plaintiff belonged to the non-survivor group (which contained 58% of the persons sampled) or the survivor group (which contained 42% of the persons sampled). But this assumes that the plaintiff did in fact belong to one of those groups and, if that were so, then the plaintiff had no chance at all. He either would have or would not have survived.

On this view, then, there are two relevant possibilities. First, the plaintiff belonged to the non-survivor group and would not have been cured even if he had been treated promptly. In that case, the defendant’s negligence did not deprive the plaintiff of anything. Second, the plaintiff belonged to the survivor group and would have been cured had he been treated promptly, in which case the defendant’s negligence did deprive the plaintiff of the cure. But it is more likely, ie 58%, that the plaintiff belonged to the former group. Hence, on the balance of probabilities the defendant’s negligence did not cause any loss to the plaintiff.

Moreover, and this is an important question to remember when considering the House of Lords’ other recent jurisprudence dealing with causation in cases of uncertainty,[10] when an evidentiary gap of this kind exists, how can it be justified to conclude that it is proper to leap it in the name of justice? In this case, if it was not clear that the plaintiff suffered a loss as a result of the defendant’s negligence, why is it plain that fairness demands recovery? Fairness demands recovery only if the defendant did cause the plaintiff’s loss, but that is just the evidentiary gap that exists — ie we do not know whether the defendant caused the plaintiff’s loss. To argue for leaping this gap on the ground that justice so requires is entirely circular, as it assumes precisely what is at issue, namely that the defendant did cause the plaintiff’s loss. Of course, Lord Nicholls was prepared to make this assumption because he believed that the plaintiff did indeed suffer a loss, namely the loss of a chance. But if that is a real loss, as his Lordship claimed in his primary argument, then there was no need to leap any evidentiary gaps in order to recognise and compensate for it. We are back with the question: Is loss of a chance a real loss or not? If it is, then the plaintiff deserves to be compensated; if it is not, then the plaintiff does not deserve to be compensated. Lord Nicholls said that the loss of a chance both was and was not a genuine loss.

This inconsistency is not unique to Lord Nicholls’ judgment; it is also contained, to a greater or lesser extent, in the other judgments of their Lordships, including that of Lord Hoffmann.

III. Lord Hoffmann

A. The Main Argument

Lord Hoffmann’s main argument is also very simple: the plaintiff was not entitled to damages for the loss of his chance of a cure, because, at least in the eyes of the law, loss of a chance is not a genuine loss. This is because:

the law regards the world as in principle bound by laws of causality. Everything has a determinate cause, even if we do not know what it is. … The fact that proof is rendered difficult or impossible … makes no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something which happened in the past will cause something to happen in the future. Everything is determined by causality. What we lack is knowledgeand the law deals with lack of knowledge by the concept of the burden of proof.[11]

In other words, Lord Hoffmann accepted the premise of Lord Nicholls’ secondary argument: that the plaintiff belonged either to the survivor or non-survivor class, that he either would have or would not have been cured had he been treated promptly. On this understanding, the plaintiff never had a 42% chance of recovery. He either had a 100% chance or a 0% chance, though we do not know which. We say that there was a 42% chance of recovery, not because there was one, but because we do not know whether the plaintiff would have recovered or not. That is, the figure 42% relates, not to the plaintiff’s condition but to our knowledge or lack thereof: we say that there was a 42% chance of a cure because we do not know whether the plaintiff would have been cured or not but, in general, 42% of persons in a similar position to the plaintiff are cured. Hence, the defendant either did deprive the plaintiff of a cure or he did not, the chance of the former being 58% and of the latter being 42%. It was more likely than not, then, that the defendant did not cause any injury (of the relevant kind) to the plaintiff. Moreover, on this view, the plaintiff’s case in Gregg v Scott was no different to an ordinary case involving factual uncertainty and, the odds being as they were, the plaintiff had to fail.

B. The Secondary Argument

Interestingly, however, later in his judgment Lord Hoffmann also accepted the first of Lord Nicholls’ claims: that the plaintiff’s ‘loss of a chance’ was a real loss. He said:

Academic writers have suggested that in cases of clinical negligence, the need to prove causation is too restrictive of liability. … In the present case it is urged that Mr Gregg has suffered a wrong and ought to have a remedy. Living for more than 10 years is something of great value to him and he should be compensated for the possibility that the delay in diagnosis may have reduced his chances of doing so.[12]

Crucially, his Lordship’s response to this point was not, as the above would have suggested, to reassert that there was no loss. Instead his Lordship argued that allowing recovery would be inconsistent with authority and would result in too much litigation that would be impossible to constrain through the adoption of sensible ‘control mechanisms’.[13] Neither of those replies would be necessary if, as Lord Hoffmann had earlier suggested, the plaintiff had suffered no loss as the result of the defendant’s negligence. In fact, such replies would be extremely odd. If the defendant did not cause the plaintiff’s loss, then what is the point of appealing to such authority and floodgates arguments when a result in favour of the defendant would be axiomatic? Accordingly, replying in this fashion implicitly admits that the plaintiff did suffer such a loss.

1. What does it mean to say that there was a chance?

Obviously, the crucial question here is: Is loss of a chance a real loss or not? If it is, then it seems to follow that recovery for such loss ought to be permitted. If loss of a chance is not a real loss, however, then clearly it should not be compensable.

The question turns on the distinction between objective and epistemological probability. Objective probability is a feature of the world. An event has an objective probability (of greater than 0 and less than 1) if there really is a chance that it will or will not happen. Perhaps the paradigm example of such is the decay of a Uranium atom. According to quantum theory, Uranium atoms decay in an indeterminate fashion, in the sense that the moment of decay is to a degree random. Even given complete knowledge of the world and its laws, it would be impossible to say with certainty when an atom will decay. Accordingly, there is an objective chance that a Uranium atom will decay at any point in time. Epistemological probability, on the other hand, is not a feature of the world but reflects only our understanding of the world. On this level, probability is concerned with practical predictability. Imagine that we are playing a game with a die. I roll the die and it falls off the table and out of sight. We are inclined to say that the chance it landed on a 6, say, is 0.16. But we say this knowing that the die either has or has not landed on a 6. In that sense, we do not believe that there is any chance that it has landed on a 6: it either has or it has not. But we say that there is a 0.16 chance that it has landed on 6, because we would predict that (over time) the die would land on 6 16% of the time.

According to Lord Nicholls’ main and Lord Hoffmann’s secondary argument, the plaintiff in Gregg v Scott possessed an objective chance of a cure and that chance was reduced by the defendant’s negligence.[14] However, according to Lord Hoffmann’s primary and Lord Nicholls’ secondary argument, the plaintiff possessed only an epistemological chance of a cure. The reason for this difference is that their Lordships assumed that the contraction and development of cancer is both a deterministic and indeterministic process. It is necessary briefly to examine these notions.

Causation is deterministic if effects are uniquely determined by causes. Determinists hold that for every event there exists a pre-existing state of affairs — the cause — that is related to the event in such a way that it would violate a law of nature for that state to exist but the event not to happen. Indeterminists deny this claim. It is important to realise that only indeterminism allows for the existence of objective probabilities. According to determinism, there are no objective chances, as the world is completely and deterministically governed by natural laws.

It is this scientific and philosophical question that lies at the heart of Gregg v Scott, and the case cannot adequately be settled without confronting it. A full discussion of the issue lies well beyond the scope of this case note, of course. However, it is clear that the law has traditionally adopted the view that the world is deterministic.[15] In the following, I explore two important arguments that suggest that this position should be abandoned.

(a) The Argument from Quantum Physics: It is sometimes said that quantum physics has put and end to the notion of universal determinism and that it follows from this that courts should also adopt an indeterministic understanding of causation and recognise, at least in some cases, the existence of objective chances.[16] But this argument almost certainly commits a fallacy of composition. Though it does follow from the truth of quantum physics, if indeed the theory is true, that the world is to an extent indeterministic, it does not follow that ‘real’ chances — in a sense of ‘real’ to be explained in the following — exist with respect to the kind of situations that face courts.

In particular, it is important to remember that quantum physics is a theory about the behaviour of sub-atomic particles. It would involve an enormous leap to apply the conclusions of quantum physics directly to events such as automobile accidents, house fires, and the contagion and development of cancer. The reason for this is succinctly summarised by Roy Weatherford:

the randomness and uncertainty taken as implied by quantum mechanics operates primarily at the micro-particle level. As more and more particles enter the calculations, a statistical smoothing occurs. Thus, while the theory implies that there is some chance that all the particles in a table will simultaneously and randomly happen to move upwards, so that the table will levitate, the odds against such an occurrence are so astronomical that it is not reasonable to expect an event of this sort even once in the entire history of the universe.[17]

Accordingly, even if indeterminism were true, the chances that exist with regard to phenomena relevant for courts are so low as to be negligible. Indeed, it would be irrational for courts to take them into account. It is right, then, for courts to ignore such chances. With respect to Gregg v Scott, while there may have been an objective chance that the plaintiff either would or would not have been cured, this chance is so low, so astronomically low, that courts can and must ignore it. The plaintiff belonged to the survivor group or to the non-survivor group simpliciter, or he belonged prima facie to the survivor or non-survivor group but had an objective chance of not being or of being cured, respectively, so low that ‘the odds against such an occurrence [ie not being or being cured] are so astronomical that it is not reasonable to expect an event of this sort even once in the entire history of the universe’. For all practical purposes, then, the plaintiff belonged either to the survivor or non-survivor group and had no real chance of a cure.[18]

It is important to stress the implications of this point. Consider the following passage from Baroness Hale’s judgment which explores Hotson v East Berkshire Area Health Authority.[19] In that case, the plaintiff suffered a fall which injured his hip. He was then taken to the defendant’s hospital where, due to the defendant’s employees’ negligence, his knee but not his hip was X-rayed. He was then told to go home and return in 10 days if necessary. The plaintiff developed pain and returned to the hospital. His hip was then X-rayed and a risk of avascular necrosis was discovered. This risk existed because of inadequate blood supply to the region. The plaintiff was operated on, but the operation did not prevent the development of avascular necrosis. The trial judge found that it was 75% likely that, at the time the plaintiff first presented in hospital that the plaintiff’s blood vessels were so damaged that avascular necrosis would have occurred even had prompt treatment been carried out. In Gregg v Scott, Baroness Hale remarked:

The House of Lords [in Hotson] treated this as a case in which the die was already cast by the time the claimant got to the hospital (or at least the claimant could not prove otherwise). The defendant had not even caused the loss of the chance of saving the situation, because by the time the claimant got to them there was no chance. The coin had already been tossed, and had come down heads or tails. But there must be many cases in which that is not so. The coin is in the air. The claimant does have a chance of a favourable outcome which chance is wiped out or significantly reduced by the negligence. The coin is whipped out of the air before it has been able to land.[20]

The talk of the coin is, of course, metaphorical; but it is perhaps the central metaphor in this context, most often relied on by courts and commentators. And the metaphor is revealing. It is assumed by Baroness Hale that after a coin has landed there is a fact of the matter about whether it landed on heads or tails, but after it has been tossed but before it has landed there is no such fact. But that is wrong. When the coin is in the air there is a fact of the matter as to which side it will land on, and it would be possible for persons with sufficiently sensitive equipment to determine which side that is. There is, then, no objective chance here whatsoever.[21] Nor does it matter whether interference occurs. If the coin is ‘whipped out of the air’ before it lands, it remains true that it would have landed on heads or on tails, and again sufficiently sensitive equipment would enable us to determine which result would have occurred.

Nevertheless, we say that there is a 50% chance that a tossed coin will land either on heads or on tails. We mean that when we toss a coin, under usual circumstances, it is impossible to predict which side it will land on and that all we are able to say is that we can be no more certain that it will land on heads than on tails. The ‘chance’, then, refers not to the coin but to our knowledge. It is an epistemological but not objective chance.

Similarly, when we say that smoking raises the chance of cancer, we do not mean that smoking sets off a random process within the body that may result in cancer. We mean that smoking produces many causally determined processes to begin in the body that may or may not produce cancer. Because we do not know enough about these processes, and because the processes are largely impossible to observe, we say that smoking increases the chance of cancer. Again, the ‘chance’ has nothing to do with what goes on inside the smoker’s body, but with our knowledge.[22]

With respect to Gregg v Scott, then, the 42% chance of a cure that the plaintiff was said to have had had he been treated promptly refers, not to the plaintiff’s condition, but to our lack of knowledge. What this figure meant was that, though we are sure that the plaintiff belonged either to the survivor or non-survivor group, we do not know which group. And we know that 42% of persons in the position that the plaintiff was in, as we understand that position, are cured. Therefore, we say that there was a 42% chance of a cure. But that ‘42% chance’ was never something that the plaintiff actually had. It was an epistemological and not an objective chance. The plaintiff either would have been cured or he would not have been. Therefore, he did not lose any chance when the defendant failed to treat him promptly. There should be no recovery for loss of a chance, because it is not a real loss. It is simply a form of factual uncertainty.

(b) Free will: In Gregg v Scott, Lord Hoffmann claimed that:

One striking exception to the assumption that everything is determined by impersonal laws of causality is the actions of human beings. The law treats human beings as having free will and the ability to choose between different courses of action, however strong may be the reasons for them to choose one course rather than another.[23]

This claim is strongly to be resisted. On its face, it is obviously wrong. Imagine that a court is faced with the odd claim that the defendant flew merely by flapping his arms. Of course, courts would reject such testimony, but why? The answer is that flying by flapping one’s arms is physically impossible — that is, inconsistent with the laws of nature. It would be ridiculous for courts (or anyone else) to even entertain the possibility. But that argument applies to all actions. Courts (and others) should never accept that persons violate the laws of nature. And that means that the behaviour of persons is determined by natural laws. The alternative is to believe that, in effect, human action is literally miraculous. Whatever freedom of the will entails, it does not imply independence of the laws of nature.

Moreover, it would be wrong to think that the distinction between causal determinism and causal indeterminism is directly related to the issue of freedom of the will. First, in line with the argument above, quantum physics tells us nothing significant about the predictability of human behaviour; it is a theory about sub-atomic particles, not about brains, for instance.

In terms of the number of particles involved, the brain, and even an individual neuron, is an enormous object for which no such deviation from ‘expected’ behaviour is likely to occur. Thus even if quantum mechanics as interpreted is true, the bodies of human beings are so near to deterministic as makes no difference.[24]

Second, as indeterminism posits randomness, it has nothing to do with freedom.[25] If human behaviour is to an extent random, that does not imply that human beings are free, only that they are to some extent random.

Freedom of the will is, of course, far too complex to be examined here. Suffice it to say, however, that the consensus of opinion amongst the philosophers who research in this area is that some form of compatiblism is the preferred account of free will. Compatiblists hold that freedom is consistent with causal determination.[26] At the very least, courts should not adopt the bizarre position that human beings are somehow independent of natural laws.

IV. Conclusion

In conclusion, Gregg v Scott was rightly decided. In appropriately to deal with this and similar cases, we have to grapple not merely with the legal context, but also with scientific and philosophical understandings of causation. Though the conclusion is no doubt unintuitive at first, when we have come to terms with the nature of causation it will become clear that the world contains no real chances of the relevant kind. Accordingly, it cannot be right for the law to compensate for the loss of a chance, as that would be compensation for the ‘loss’ of something that does not exist.[27]


[∗] von Humboldt Research Fellow, Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg; Senior Lecturer, University of Auckland.

[1] [2005] UKHL 2.

[2] Lord Hope interpreted the facts in an importantly different way. However, I propose to ignore this in order to focus on the issue of loss of a chance.

[3] Here, ‘cure’ is used in its medical sense to imply survival for 10 years. This technical definition of ‘cure’ is not important for our purposes.

[4] [1969] 1 QB 428.

[5] [1988] UKHL 1; [1987] AC 750. See also Lawson v Laferriere [1991] 1 SCR 541.

[6] Gregg v Scott [2005] UKHL 2, [16] (emphasis added).

[7] Ibid [17].

[8] Ibid [29-30].

[9] Ibid [31]. His Lordship cited Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 as evidence of this claim.

[10] Most importantly Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32.

[11] Gregg v Scott [2005] UKHL 2, [79].

[12] Ibid [84].

[13] Ibid [85]-[90].

[14] Of course, according to this view the plaintiff also possessed an epistemological chance of a cure, but that is not significant for our purposes.

[15] Helen Reece, ‘Losses of Chances in the Law’ (1996) 59 Modern Law Review 188, 205 suggests that this may be because the legal rules were largely developed in the nineteenth century, when universal determinism was at its most fashionable in the sciences and/or because a belief in determinism is encouraged by retrospective investigation of events.

[16] See, in particular, ibid 193f.

[17] Roy C Weatherford, ‘Determinism’ in Ted Honderich (ed), The Oxford Companion to Philosophy (1995).

[18] Note that this point has nothing to do with the de minimis rule. It is not only courts that should ignore such small possibilities, but scientists working on the relevant phenomenon as well.

[19] [1988] UKHL 1; [1987] AC 750.

[20] Gregg v Scott [2005] UKHL 2, [211].

[21] Or, rather, no objective chance that makes any practical difference.

[22] Incidentally, the philosophical debate that occurs in this context is largely over the following kind of question: if smokers do not always develop cancer, can it be right to say that smoking causes cancer? Many wish to answer this question in the affirmative, and so develop accounts of causation that are in some sense probabilistic. But none of this is to suggest that the underlying processes in producing cancer are in any way random or indeterminate. It is quite mistaken to take these debates over probabilistic causation has having anything to do with the debate between determinism and indeterminism of the kind we are discussing here.

[23] Gregg v Scott [2005] UKHL 2, [82].

[24] Weatherford, above n 17.

[25] Reece, above n 15, 197f; Gregg v Scott [2005] UKHL 2 appears to equate indeterminism with freedom.

[26] I do not mean to imply that this view is universally held, however I mean to use the term ‘compatiblism’ widely to include all views that hold that human beings do not violate the laws of nature. In this sense, then, “compatiblism” is consistent with views such as the one Henry Allison attributes to Kant in Henry E Allison, Kant's Theory of Freedom (1990), which Allison takes to be anti-compatiblist.

[27] This does not imply that cases such as Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 were wrongly decided. In my opinion that case was rightly decided, though this is not the place to explore the reasons for that conclusion.