Contracts and tort law - Causation and loss of chance

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? [...]

[...] Palliating the or nothing” risk The loss of chance doctrine appears therefore as a way of completing the traditional causation by providing compensation through proportional damages in cases in which damages would not have been awarded, by maintaining the rigor of the causation link and by opening the gate to new reasoning, such as in the case of class actions. The first advantage of the loss of chance doctrine is that in cases where the claimant would not have been able to prove the causality link, this link is transferred to the loss of a chance, which makes compensation possible[12]. [...]