ABSTRACT
‘Lost chance’ claims in the law of negligence have been the subject of much judicial disagreement and academic debate. Regrettably, issues of consistency and principle in the law’s treatment of chance have been chronically overlooked in this context. In both Australia and England, this has led to decisions compelling even the most optimistic proponents to conclude that there is little hope for the recognition of non-financial lost chances as actionable damage. The following article asserts that this is an unsatisfactory state of affairs and proposes a means of rectifying the deficiency. It explains that, far from representing a radical shift, the recognition of such lost chances as actionable damage would produce just and principled results by extending a powerful logic already present in the existing case law.
Norton, James, Treating Chance Consistently: Recasting the Approach to Causation and Damage in Negligence (2019) 42(3) Melbourne University Law Review 954.
First posted 2020-02-25 09:42:05
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