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 litigation, such as for example the loss of a chance to invest caused by a wrongful piece of information .
[...] When it comes to the former, causation is relevant for the establishment of civil fault based liability as defined by article 1382 of the French Civil Code, in which it is stated that act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate Here, the fundamental notion is the one of fault. There must be a certain causal connection between the fault of the defendant and the damage of the clamant. There are therefore three major elements that need to be identified: a fault, a damage and a causal link between them[3]. In order to determine this causation link, there are two different tools which may be used. [...]
[...] The reasoning here is a finalist one, which follows the objective of allowing the plaintiffs, usually in medical malpractice cases, to be guaranteed that they will be compensated for their harm even though the causation link might not be possible to establish[27]. This application was justified in cases where there was an inadmissible fault leading to abnormally serious consequences, and it is this extraordinary aspect of the case which allows the causation link to be hidden by the application of the loss of chance[28]. The administrative jurisprudence held to this conception of the loss of a chance as autonomous and therefore not compensable in itself until December 21st 2007. [...]
[...] Concretely, this compensation is made through the award of proportional damages. This is the position defended by both Joseph King and John Makdisi[14], who argue that even in cases where traditional causation is proven, and therefore integral damages are awarded, it is not fair to recover 100% of the damages if the harm was caused with a 99% certainty. What they advocate for, especially in the case of Makdisi, is the abandonment of the traditional causation rules and the establishment of proportional awards based on the probability rate that the defendant was in fact the cause of the harm. [...]
[...] For this reason, courts have had a much mitigated relation to the loss of chance doctrine, which is illustrated by the heterogeneous application if comparing the jurisdictions of France, England and the United States. III. A heterogeneous application of the loss of chance concept This section will attempt at assessing the different applications of the loss of chance doctrine which have been made in different legal cultures, comparing the cases of France, England and the United States as all having an individual an particular relation to the doctrine itself and a particular reasoning whether in its application or in its limitation. [...]
[...] In order to do so, the theory of loss of chance will itself be explained. Then, the ways in which this theory palliated the or nothing” risk of traditional causation will be exposed; and finally the uncertainties which it raises will be analyzed. The theory of loss of chance The loss of chance theory has the particularity of not having been developed out of case law or statutes, but out of doctrine work which has been applied by courts for the sake of more equity in damages attribution[4]. [...]
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