Date: Fri, 23 Jun 2006 15:56:20 -0400

From: Lionel Smith

Subject: Loss of a chance for fiduciary breach

Even before Barker, the NZCA calculated damages on the basis of loss of a chance for breach of fiduciary obligation: loss of a chance of sharing in a profitable partnership that never went ahead: Chirnside v Fay (No 2) [2005] 3 NZLR 689. (On nzlii the link to this case is broken, or at least bent, since it leads to a criminal law case. However it is on lexis.)

So much for specially strict rules about causation etc. in equity. This followed on from an earlier decision as to liability ([2004] 3 NZLR 637. There the Court said that if the parties could not agree on damages it would be done on a loss of chance basis, New Zealand being a system "where the distinction between law and equity has effectively lost its force" [66].

Lionel

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