Abstract
The question of compensation of loss of a chance is relatively rarely debated in the Polish doctrine of the law of tort. One reason for such a state of affairs may be the virtually unanimous opinion of both courts and academic comment-ators with regard to the permissibility of granting damages for loss of a chance of obtaining a benefit – loss of a chance, traditionally defined as potential harm, does not give rise to damages and falls beyond the scope of Article 361 § 2 of the Polish Civil Code. The paper attempts to show, by reference to the latest experiences of common law jurisdictions, that there exist rational bases for an extension of the notion of harm so that it encompasses loss of a chance where a potential acquisition of a benefit is contingent upon an action of a third party or force majeure, on which the victim has no bearing, subject to the caveat that the victim put an effort into generating the chance in question. In the course of the analysis an attempt will be made to demonstrate, with reference to a selec-tion of factual scenarios considered by Polish courts, that it would be possible to achieve fairer results (whilst avoiding placing unfair compensatory burdens upon the other party) to recognize liability for loss of a chance where the victim put a significant effort into making the chance viable, material, and where, based on ordinary life experience, materialization of such a chance may be considered a natural course of events.
Highlights
It is a classic exposition of the Polish rule on harm that a person obliged to pay damages shall only be liable for ordinary effects of an action or omission which the damage resulted from (Article 361 § 1 of the Polish Civil Code)
The courts have provided some elucidation as to the exact scope of the provision on lucrum cessans, i.e. harm in the form of lost benefits – the broad consensus is that a loss of benefits must be substantiated to a very high degree of probability, showing that certain benefits would have certainly accrued had it not been for an intervening event that inflicted harm2
The difference between the two lies in the fact that where lucrum cessans is concerned, the hypothesis regarding the loss of a benefit is almost certain, whilst potential harm implies that the probability of losing a benefit is markedly lower
Summary
It is a classic exposition of the Polish rule on harm that a person obliged to pay damages shall only be liable for ordinary effects of an action or omission which the damage resulted from (Article 361 § 1 of the Polish Civil Code). The courts have provided some elucidation as to the exact scope of the provision on lucrum cessans, i.e. harm in the form of lost benefits – the broad consensus is that a loss of benefits must be substantiated to a very high degree of probability, showing that certain benefits would have certainly accrued had it not been for an intervening event that inflicted harm. Harm in the form of lucrum cessans must be distinguished from potential harm, understood as “loss of a chance to obtain a certain material benefit”. The difference between the two lies in the fact that where lucrum cessans is concerned, the hypothesis regarding the loss of a benefit is almost certain, whilst potential harm implies that the probability of losing a benefit is markedly lower. Within the bounds of conceptual and doctrinal reasonableness, to allow for the recognition in Polish law of at least one of the following rules: (1) damages for loss of a chance shall be granted where the chance is real and viable, and the claimant put a substantial effort into bringing the chance into existence; (2) damages should be granted in a related scenario, i.e. where the defendant created a significant risk of injury for the claimant which eventually materialized, subsequently taking away a viable chance from the claimant
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