When it comes to tort or contract litigation in the aim of obtaining damages, the most important aspect to take into account is the issue of causation. Indeed, without proving a causal link between the defendant's action and the claimant's harm, no liability can be held. This rigor is a means of safeguarding an equitable attribution of damages and of ensuring the fairness of liability regimes. However, is equitable really guaranteed when a client cannot litigate against his lawyer for missing a deadline and therefore not permitting him to have access to an Appeal Court? Is it fair not to hold liable a doctor for misdiagnosing his patient and thus depriving him of a chance of survival? The main common point between the two examples given is the question mark inherent to the situation. Indeed, there are no guarantees that the appeal would have succeeded and that the client would have therefore obtained an important amount of money, or that the patient would have survived had his condition been detected before. Nevertheless, there was a loss, the loss of a chance of bettering a situation, or of avoiding harm. In that sense, the action of the lawyer or the doctor, tortuous it may not have caused the final situation, but it did harm the client or the patient. Classic causation does not account for this type of situations; In order to palliate for these omissions, the doctrine of loss of chance has developed since the end of the nineteenth century, offering a new conceptualization of the classic issues in order to allow for more equity. The doctrine of loss of chance has mostly been used in contexts of medical malpractice, where traditional causation could not offer powerful tools for award of damages. However, it is also useful in economic litigations, such as for example the loss of a chance to invest caused by a wrongful piece of information .
[...] For some authors, this risk implies that the loss of chance doctrine undermines the basic principles of tort law[24] by allowing uncertainty into the causation link. This mistrust was expressed by the Court of Appeals of California when it stated that “redefining lost chance as a new form of injury simply does not diminish that the theory radically alters the meaning of causation”[25]. It has previously been seen that the appearance of the loss of chance doctrine, although presented in its origins as a means of overcoming the deficiencies existing in the traditional conceptions of causation, has been at the centre of a theoretical and practical debate. [...]
[...] The question of the connection between traditional forms of causation and the loss of chance doctrine emerges at this point. How may these two different conceptions coexist? Could the loss of chance doctrine weaken or compromise the very foundations of causation, and subsequently challenge the main principles of civil responsibility? Or, on the other hand, could the loss of chance theory appear as an improvement of traditional causation which would not challenge its core concepts, but fill the gaps left by them? [...]
[...] For this reason, courts have had a much mitigated relation to the loss of chance doctrine, which is illustrated by the heterogeneous application if comparing the jurisdictions of France, England and the United States. III. A heterogeneous application of the loss of chance concept This section will attempt at assessing the different applications of the loss of chance doctrine which have been made in different legal cultures, comparing the cases of France, England and the United States as all having an individual an particular relation to the doctrine itself and a particular reasoning whether in its application or in its limitation. [...]
[...] Smith, Ugo Colella, “Lost chance recovery and the folly of expanding medical malpractice liability”, Torts and Insurance Law Journali 27, 1991-1992 Frédéric Descorps Declère, La cohérence de la jurisprudence de la Cour de Cassation sur la perte de chance consécutive à une faute du médecin Recueil Dalloz p Paul Speaker, application of the loss of chance doctrine in class actions”, Revue of litigation Frédéric Descorps Declère, La cohérence de la jurisprudence de la Cour de Cassation sur la perte de chance consécutive à une faute du médecin Recueil Dalloz p Quoted in Frédéric Descorps Declère, La cohérence de la jurisprudence de la Cour de Cassation sur la perte de chance consécutive à une faute du médecin Recueil Dalloz p Lisa Perrochet, Sandra J. [...]
[...] This second section will aim at presenting the main controversy raised by the loss of chance doctrine: the question whether its appearance and application would constitute a consolidation or a weakening of the causation link. In order to do so, the theory of loss of chance will itself be explained. Then, the ways in which this theory palliated the or nothing” risk of traditional causation will be exposed; and finally the uncertainties which it raises will be analyzed. The theory of loss of chance The loss of chance theory has the particularity of not having been developed out of case law or statutes, but out of doctrine work which has been applied by courts for the sake of more equity in damages attribution[4]. [...]
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