Loss of chance damages
Produced in partnership with Anneliese Day QC and Christopher Knowles of Fountain Court Chambers
Loss of chance damages

The following Dispute Resolution practice note Produced in partnership with Anneliese Day QC and Christopher Knowles of Fountain Court Chambers provides comprehensive and up to date legal information covering:

  • Loss of chance damages
  • What is the loss of a chance approach?
  • When loss of chance applies—future or hypothetical third party acts
  • Who counts as a third party, and does it matter if they give evidence?
  • If the loss of a chance approach can apply, then it does apply—is it mandatory?
  • Loss of a chance approach can apply to a wide range of causes of action, in a wide range of factual circumstances
  • Personal injury cases
  • When the loss of chance approach does not apply
  • Quantification cases where causation does not turn on a third party’s hypothetical acts
  • Cases where causation does not turn on the specific acts of one or more particular third parties
  • More...

This Practice Note considers in detail when damages for loss of a chance (loss of an opportunity damages) may be recoverable, with reference to the test in Allied Maples v Simmons & Simmons, its further consideration in Wellesley v Withers and the Supreme Court’s clarification in Perry v Raleys.

For a summary of the key points in the approach, see Q&A: How, in summary, does the loss of a chance approach work?

This Practice Note should be read in conjunction with related content on recovering damages in contract and tort claims, see Practice Notes:

  1. Contractual damages—general principles

  2. Causation and remoteness in contractual breach claims

  3. Damages in tort claims—recovery and assessment

  4. Tort claims—causation as a matter of fact

  5. Tort claims—causation in law

  6. Causation and remoteness in professional negligence claims

What is the loss of a chance approach?

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 narrowest of margins: 51% to 49% is enough. If they do, then the court will proceed on the basis that the claimant has proved that what they say happened did happen, or that what they say would have happened would indeed have happened.

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