Back to the future: claimant unsuccessful in their claim for loss of chance

Fecha de publicación

18/10/2017

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Ubicaciones

When quantifying future losses, the court is often required to speculate what position a claimant would be in but for the accident and injuries due to the negligence of the defendant. This is particularly true where a claimant seeks damages for the loss of their chance to pursue more lucrative occupations.

In a recent decision where we acted for the defendant NHS Trust, the claimant sought damages for having lost the chance to become a clinical psychologist following an assault by a patient. The claimant was unsuccessful in her claim as the court found that she failed to prove that there was a real or substantial chance of this happening.

The standard of proof

When a court evaluates a claimant’s claim for loss of chance, they depart from their normal application when assessing damages in civil cases where the balance of probabilities is applied. Instead, in loss of chance claims, the court is required to evaluate whether there was a ‘real or substantial chance’ of what will happen in the future or would have happened in the future if something had not happened in the past.

Authority

The leading authority on the principle is Allied Maples Group Ltd v Simmons & Simmons [1995] where the Court of Appeal set out what falls within the realm of loss of a chance and what requires proof on the balance of probabilities.

Where a court is considering what a claimant would have done if there had been no negligence, this is subject to proof on the balance of probabilities. Where a claimant’s loss is dependent upon the hypothetical action of a third party, the claimant is required to prove, on the balance of probabilities, that they had a real or substantial chance —rather than a speculative chance — of a third party acting in a way as to benefit them. If the court decides that this chance is established, then they have to evaluate that chance and assess it by a percentage.

In McGill v The Sports and Entertainment Media Group [2016], the Court of Appeal confirmed that there cannot be a speculative chance — the chance must be real or substantial.

In our case, the issue the court determined was whether the claimant had a real or substantial chance that — but for the accident and her injuries — she would have been accepted onto a doctorate of clinical psychology course, go on to become a clinical psychologist then a consultant.

The court accepted the claimant would — on the balance of probabilities — have:

  • Applied for the doctorate course
  • Completed the course
  • Subsequently applied for a clinical psychologist position.

However, it did not accept the claimant would have obtained a place on the doctorate course or secure a position as a clinical psychologist. These were both loss of chance claims requiring the hypothetical action of a third party.

Comment

The claimant failed to produce any evidence which could lead the court to conclude that she had a substantial chance of obtaining a place on a clinical psychology doctoral course, or a substantial chance of becoming a clinical psychologist.

To make this finding, the Judge would have had to speculate, which the court is unable to do. The claimant’s loss of chance claim therefore failed.

Whilst loss of chance cases do not require evidence to prove what a third party would have done, the absence of such evidence would require the court to speculate, which it is unable to do.

Read other items in the Healthcare Brief - November 2017