Chances as Legally Protected Assets

Abstract

The doctrine of loss of a chance has been deployed by courts jurisdictions in cases presenting causal uncertainty for over a century. In both the civil and common law jurisdictions where it is applied, however, there is debate as to the precise rationale and scope of application of the doctrine. In this working paper we compare theories, cases and practices from four Western European jurisdictions: France, Belgium, the Netherlands and England & Wales. Our methodology departs from a more traditional institutional comparison. We move towards an argument for a version of the theory of loss of chance that could work across jurisdictions. First, we briefly outline the application of the doctrine in the four jurisdictions. Subsequently, we present a typology of current practical application across jurisdictions. Finally, we present a theory of loss of a chance that reduces it to its (logical) core: for a chance to be lost, itmust have been possible for the claimant to ‘possess’ thechanceandthedefendant must have made him lose this chance. Hence, we argue that mere ex post uncertainty on the existence of causation is not sufficient to justify application of the doctrine of loss of chance.