> In those cases where the estimated chance of the financial benefit are

> less than 50% this statement is not true - there is no "actual proven loss

> of some sort" (on the balance of probabilities) unless you decide to

> characterise the damage/loss as the lost opportunity itself.

A loss is (in my view) the factual state of being worse off. Losing the

chance to win £20 is not the same thing as losing £20 but they are both

losses. As to that there can be no doubt, it isn't a matter of

characterisation. If you negligently injure me so that I lose the chance

to win a beauty contest, if that loss is not too remote it is recoverable.

That is because loss consequent upon a wrong is recoverable.

>

> The problem is that once you decide to characterise the damage as the lost

> opportunity in cases of financial loss you need some explanation as to why

> you cannot do this in the case of physical harm.  I have not yet seen a

> convincing explanation for the difference.  Baroness Hale adverts to the

> problem in Gregg v Scott, but offers no rationale for why she can sue her

> solicitor for loss of an opportunity to benefit but cannot sue her doctor

> on the same basis.

>

Well, we have no general right not to suffer lost chances of any kind,

financial, physical or otherwise. I don't myself think we could and also

have rights not to be physically injured too. One of the members of the

HCofA says that too (can't remember which one) as did Baroness Hale in

Gregg. Put another way, my negligently causing you to lose an opportunity,

of any kind, is not in itself a wrong.

> Lord Nicholls made the point in Gregg v Scott [2005] UKHL 2 at [25]: "Of

> course, losing a chance of saving a leg is not the same as losing a leg:

> see Tony Weir, 'Tort Law' (2002), p 76. But that is not a reason for

> declining to value the chance for whose loss the doctor was directly

> responsible. The law would rightly be open to reproach were it to provide

> a remedy if what is lost by a professional adviser's negligence is a

> financial opportunity or chance but refuse a remedy where what is lost by

> a doctor's negligence is the chance of health or even life itself. Justice

> requires that in the latter case as much as the former the loss of a

> chance should constitute actionable damage."

>

The problem with Gregg v Scott was that it was not a lost chance case. The

claimant was (and is I hope) alive and well. What he suffered was an

increased risk of being physically injured. I know of no claims, whether

for breach of contract, a torts or anything else, where that has been

recoverable. The claim rightly failed even if you take the view (as I do)

that a lost chance should be recoverable where it is suffered as loss

consequent upon a wrong.

> It seems to me that if you think claims for lost opportunities should not

> be permitted in medical negligence cases you should also take the view

> that they should not be permitted in other cases of professional

> negligence.  They stand or fall together.

>

Now that I agree with, but the right in play is one created by the

assumption of responsibility by the professional, whether the medic or the

advisor. Where consideration is provided, this is contractual, but it is a

mistake to think that without consideration there is no right in play. If

you like talking in ye oldie fashioned language, it is assumpsit. They are

neither examples of Donoghue v S sorts of cases, which itself was not

assumpsit. The High court of Oz treats the claim as being a personal

injury action, like Donoghue. Seen like that, it was bound to fail.

The problem, as so often, is that people see the duty in negligence as

being one which exists in the ether, and not as one owed to anyone

specifically with any correlative right, and they then progress from the

fact of negligence to trying to work out what consequential loss has been

suffered as a result, causing the right (iniuria) to drop out of the

analysis altogether.

Rob

--

Robert Stevens

Professor of Commercial Law

University College London