> The cases holding that courts

> will award damages by estimating lost financial opportunities do so in

> cases where there has been an actual proven loss of some sort- often

> best expressed as a lost opportunity for adjudication or a lost

> opportunity in the marketplace. It seems to muddy the waters to leave

> open the suggestion that in general "economic loss" claims there can

> be a claim based on no more than the loss of a generic chance of some

> sort.

It has always seemed to me that the loss of the opportunity not to be

paralysed from the neck down is as much of a loss as the loss of the

opportunity to make a profit in the marketplace. More so, if anything. Of

course these are losses, but that doesn't mean we have any general right

to such things. We constantly lose sight of this distinction between

rights and loss, iniuria and damunum, by use of that slipperiest of words

"damages" which (frequently) elides the two.

Do you have private healthcare in Australia? What if the claim brought had

been one for breach of a contractual duty to provide careful healthcare?

What would the result have been then (according to Gummow J at least?)?

I am sorry to say that the result was inevitable when counsel tried to

argue that this was a standard personal injury action and didn't try to

ring-fence the result to those cases where the defendant has assumed

responsibility towards the plaintiff. The usage by the court of Gregg v

Scott (which isn't a lost chance case properly understood) was also rather

unfortunate. it is the result i would have predicted but I cannot help but

be rather saddened by it.

Rob

--

Robert Stevens

Professor of Commercial Law

University College London