Comparative Reflections on the Doctrine of Loss of a Chance in Europe

The doctrine of loss of a chance has been deployed by courts of European Member States in cases presenting causal uncertainty for over a century. In both the civil and common law jurisdictions where it is applied, however, there is debate as to the precise rationale and scope of application of the doctrine. In this working paper we compare theories, cases and practices from four Western European jurisdictions: France, Belgium, the Netherlands and England & Wales. Our methodology departs from a more traditional institutional comparison. We move towards an argument for a version of the theory of loss of chance that could work across jurisdictions. First, we briefly outline the application of the doctrine in the four jurisdictions. Subsequently, we present a typology of current practical application across jurisdictions. Finally, we present a theory of loss of a chance that reduces it to its (logical) core: for a chance to be lost, it must have been possible for the claimant to ‘possess’ the chance and, for the loss of the chance to result in compensation, the claimant must have had a right to that chance. Hence, we argue that mere ex post uncertainty on the existence of causation is not sufficient to justify application of the doctrine of loss of chance.

If you are interested in reading the paper which accompanies this talk, please contact Professor Häcker.

A sandwich lunch will available from 12.30. The meeting will begin at 1pm.