(i) I agree that "a loss of a chance represents

 essentially an epistemic uncertainty regarding some state of the world."

(ii) Sandy wrote: "Thus any justification of allowing recovery for loss of

 chances must show why a type of evidential uncertainty is recoverable. As

a result a distinction between wrongs per se and consequential losses

won't do the job."

True, but I don't think I was trying to do that. I was trying, more

modestly, to explain why the law sometimes does and sometimes does not

allow for recovery of lost chances. My claim was that we find precisely

the same pattern as we do in the context of economic loss. So, where the

lost chance or economic loss is consequent upon violation of a right

(whether personal injury, property damage, breach of contract, breach of

statutory duty etc) it is recoverable, but not otherwise. That means that

I don't agree that

"what is essentially the same problem for a claimant in the standard

Donoghue duty position and the doctor case: both can prove negligence;

neither can meet the civil standard of proof on causation."

Negligence "in the air" isn't enough to prove a wrong. You need to be able

to show that it was your rights which were violated, which the patient can

do as against the doctor who has assumed responsibility towards her, but

those who live in the vicinity of the chemical factory cannot.

I am not, I think, drawing a distinction between 'wrongs per se and

consequential loss' but one between wrongs and not-wrongs.

Whether allowing recovery for consequential lost chances in Chaplin v

Hicks, Girvan v Inverness v Farmers Dairy, Sellars v Adelaide Petroleum

NL, Glenmont Investments Pty v O'Loughjlin (no 2) etc etc is in principle

justifiable is a different, and more difficult, question. I think that if

you have suffered a lost chance you are worse off. It is a loss like any

other and is quantifiable in money. Being worse off is not the same as

having been wronged of course.

The Smith v Leach Brain point is a difficult one. In principle where the

plaintiff can show that the defendant on the balance of probabilities

injured him, he should recover in full. There should be no reduction for

the possibility that the defendant did not wrong him. By contrast at the

next stage of quantifying consequential loss, it should not suffice that

the consequential loss would not otherwise have been suffered on the

balance of probabilities: see Blue Circle Industries v MoD [2001] EWCA Civ

1721.

(iii) Sandy also wrote: "is it not the formal position in US contract, in

so far as one can generalize, that consequential damages are recoverable

only where "reasonably probable", interpreted as "likely" to occur?"

The last point is an issue of remoteness and is the same in England. Where

you seek recovery for consequential loss you have to satisfy Hadley v

Baxendale. I had thought the Chaplin v Hicks rule was good law in the US,

but I haven't checked.

(iii) "In principle, increasing a risk of harm is the mirror image of

causing a loss of chance of a benefit. (All that would change had C in

Gregg suffered the harm would be the accuracy of the probability that D

had caused it). In so far as the liability is based on an increased risk,

the actual occurrence of the outcome is a contingency. All that shows is

that the liability really isn't based on an increased risk, even if that

measures the damages. Rather, I would argue, it shows (and this

justification is too wide, I admit) that where a C has suffered damage,

certain evidential uncertainties are better distributed proportionately."

I am not sure what you mean by "mirror image". The plaintiff in Gregg had

suffered an increased risk of cancer, but he may never lose the chance of

avoiding it. He may, and I hope he does, live a long and blameless life

and die in a sky-diving accident at the age of 107.

Put another way, in the example of the chemical leak, all 100,000 peope

have suffered an increased risk of cancer at the time of the leak (on the

original figures an increased risk of 1/2,000). Only the 150 people who

develop the disease suffer a lost chance (1/3) of avoiding the cancer they

have.

In Barker v Corus the HL awarded the plaintidd's their lost chance post

the injury, which was not the same at all as their increased risk assessed

ex ante.

(iv)Sandy also wrote "In short, I think something more like Porat &

Stein's evidential damage doctrine will be a more explanatory tack than a

division between wrongs per se and consequential damages."

There are a few problems with this which I have briefly talked about

elsewhere, but in particular I don't think there is (or ought to be) any

general right not to suffer evidential damage. If a hospital or the police

negligently lose a file on you so that you can no longer establish a claim

I doubt you could, without more, sue (see J Stapleton, (2003) MLR 308,

309). No doubt you have suffered a loss, but that is not the same thing.

Rob