Compensation for loss of a chance
The great majority of claims which are made are for damages to compensate for a loss which has occurred. They will be based on the principle of restoring the person who has suffered a loss through the wrong of another to the position they would have been in if the wrong not happened. There is a basic principle of UK law that a person may not benefit as a result of a wrong suffered and a claimant is only entitled to compensation for the loss that can be proved. Therefore if a lorry knocks down my garden wall, I am only entitled to claim for the cost of repairing the wall to its original condition and not for building a new wall over and above the specification of the old.
There is however another type of claim where the loss suffered is not immediately apparent. Say for example that I instructed a firm of solicitors to bring an action for damages in respect of a road traffic accident where I was hurt. They negligently miss the limitation period for bringing the claim, as a result of which I lost the chance of recovering damages from the driver of the car which hit me. The solicitors were negligent and if this is proved the amount of damages to which I will be entitled to from them will be based on the value of the gain I would have obtained had it not been for their negligence. In other words my claim will be for the amount of damages which I would have received had I been able to proceed with my accident claim.
The claim against the negligent solicitors is a claim for loss of chance. That is the loss of the chance to recover damages from the driver of the car. It will first be necessary to calculate how much I would have been likely to receive. Say it would have been £100,000. The next question would be my likelihood of succeeding. If liability for the accident could have been disputed and there was say, a 25% chance of me losing my claim, this amount would be deducted from my claim and I would only be entitled to damages of £75,000 from the solicitors. Similarly if a defendant was not insured and might not have been able to pay the damages awarded, a discount from my claim would have to be allowed to account for this.
Compensation awarded for the loss of a chance is based on the probability of the sum that would have been received. Where some monies have been received in respect of a claim these must be taken into consideration and the claim for loss of chance will be based on the probability of having received the larger sum.
