A Lost Chance for Compensation in the Tort of Negligence by the House of Lords

Date01 July 1991
Published date01 July 1991
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb00903.x
AuthorTimothy Hill
A
Lost Chance
for
Compensation in
the
Tort
of
Negligence
by
the
House
of Lords
Timothy
Hill
*
For
all
the sad words
of
tongue
or
pen
The saddest are these:
‘it
might have been!’
J.G.
Whittier
(1807-1892)
Introduction
Recently, the doctrine of compensation for a ‘lost chance’ has been subjected
to
detailed judicial and academic attention. Although the House of Lords in Hotson
v
East
Berkshire
AHA
I
denied recovery in the instant case, reversing the adoption
of such a doctrine by the Court of Appeal, their Lordships unfortunately left open
the question of whether, when
a
lost
chance
of
recovery or
of
avoiding
loss
could
be proved
to
result from a breach of duty, compensation for that
‘lost
chance’ was
recoverable in tort.
The term ‘lost chance’ is an ambiguous one.
It
is the aim of this article
to
show
that there are in fact two types of chance, namely personal chances and statistical
chances, and any claim based upon a ‘lost chance’ involves either a question of
past fact or a future hypothetical question. Only
in
cases involving a future
hypothetical question can there be a
lost
chance of any value. That is a lost ‘personal’
chance.
An
appreciation of these two points is vital to an analysis of a
loss
of chance
doctrine, and such an analysis shows that a
loss
of
chance argument has no real
substance in the way it has been hitherto applied. The
loss
of a statistical chance,
standing alone, should not be considered a compensatable
loss.
Damage Defined
The traditional approach, simply put, is as follows. The damage which forms the
‘gist of
the
negligence action’*
is
the physical injury suffered by a plaintiff. Once
it
has been decided that the defendant has breached the required duty of care, the
courts focus on determining whether there is a causative link between the breach
of duty and the physical injury suffered, the traditional test being the ‘but-for’ test.
The traditional effect has been that any physical injury, ‘more likely than not’ caused
by the defendant’s breach, will be recoverable.
But
what
if
the physical injury suffered by a plaintiff is not, on the balance of
probabilities, likely
to
have been caused by the defendant’s brea~h?~ Can one
reformulate the damage suffered, not
as
the physical injury, but rather as the
‘lost
chance’ of avoiding the physical injury? Dr Stapleton argues
in
‘The Gist of Negli-
*Exeter College, Oxford. The author would
like
to
thank Andrew Grubb and John Spencer for their advice.
I
2
3
[
19871 2 All
ER
908.
Stapleton, ‘Gist of Negligence’ (1988)
104
LQR
213.
For example,
Hotsoti.
op
cit.
nit
Modem
Law Review
54:4
July 1991 0026-7961
51
1

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