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

Abstract

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 ' 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.