Q&As

How, in summary, does the loss of a chance approach work?

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Published on LexisPSL on 04/09/2019

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • How, in summary, does the loss of a chance approach work?
  • What is the loss of a chance approach?
  • When does the loss of chance approach apply?
  • How is the loss of chance approach applied?

This Q&A should be read in conjunction with Practice Note: Loss of chance damages.

Loss of chance claims can be complex. For a summary of practical considerations when pursuing or faced with a claim in which loss of chance damages are sought, see Practice Note: Loss of chance damages—Loss of chance damages—practical considerations.

What is the loss of a chance approach?

The loss of chance approach is relevant to claims for damages (whether arising in contract or tort) where the future or hypothetical actions of a third party impact on causation.

When claiming compensatory damages, generally the claimant must establish causation, ie that on the balance of probabilities, the defendant’s wrong caused the claimant’s loss. Ordinarily, the traditional ‘but for’ test applies, and essentially the question is: whether the damage would have accrued but for the defendant’s action. If the court finds that, as a matter of fact, the defendant’s wrong caused the loss complained of, the court will then examine how far removed the damage suffered is from the contemplation of the defendant (this is the concept of remoteness).

Ordinarily, claimants must prove their case on causation on the balance of probabilities. That is so whether causation turns purely on matters of historical fact, or on what the claimant would have done in future or in hypothetical circumstances. But the claimant need only overcome that hurdle by the

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