DAMAGES ASSESSED ON A LOSS OF CHANCE BASIS: INTERESTING COURT OF APPEAL OBSERVATIONS AND A ROUND UP OF THE RELEVANT CASES

In Lillington -v- Ministry of Defence [2015] EWCA Civ 775 the Court of Appeal made some interesting observations in relation to damages for loss of chance of career promotion.  The court was somewhat sceptical about the (joint) submissions that damages for future loss of earnings could not be considered on a “loss of chance” basis and pointed to several cases where the courts have done exactly that. Here we look at those observations and review several of the key cases relating to loss of chance.

THE CASE

The defendant was appealing a factual decision that the claimant was entitled to additional damages of £62,559 on the basis that he would have been promoted to Corporal. The judge found that, on the balance of probabilities, the claimant would ahve been promoted and awarded that additional sum on the basis of this finding.

THE OBSERVATIONS IN RELATION TO LOSS OF CHANCE

Lord Justice Vos made some preliminary observations.
  1. At the beginning of the argument, Moore-Bick LJ asked Mr Yaqub Rahman, counsel for the MoD, whether the judge ought, instead of considering the matter on an “all or nothing” basis, to have considered awarding damages for the loss of the chance that the respondent would have passed the 2009 JCC and been promoted to Corporal. Mr Rahman dismissed this suggestion with great certainty and was supported in his approach by Mr Christopher Barnes, counsel for the respondent. They relied on the House of Lords’ majority decision in Gregg v. Scott [2005] 2 AC 176, where a patient had recovered no damages for the negligent delayed diagnosis of his cancer, because the delay had only reduced his survival chances from 42% to 25%, so he had not been able to show on a balance of probability that he would have been cured but for the negligence. That was a case where liability for medical negligence was in issue and in order to establish a cause of action the claimant had to prove (on a balance of probabilities) that he had in fact suffered harm as a result of the defendant’s negligence. It was not a case relating to the assessment of financial loss flowing from that harm which depended on the court’s view of whether or not a future event would have occurred. As it seems to me, there would have been grounds for thinking, in this case, that the judge ought to have awarded damages for loss of a chance (see Lord Diplock at page 176 inMallett v. McMonagle [1970] AC 166, Lord Reid at page 213 in Davies v. Taylor [1972] 3 All ER 836; Langford v. Hebran [2001] EWCA Civ 361, and Brown v. MOD [2006] EWCA Civ 546). Since neither party asked us to consider this question, we can only proceed on the agreed basis, namely that the judge asked himself the correct question when determining whether special damages should be awarded for the loss of the respondent’s promotion to Corporal. I should not, however, be taken as accepting that the parties’ agreed approach was correct in law.

DAMAGES FOR LOSS OF CHANCE OF FUTURE ADVANCEMENT

The Court of Appeal’s surprise is understandable.  There are numerous cases where the courts have decided issues such as this on a “loss of chance” basis.

The approach taken is even more surprising when the decision of the House of Lords in

Gregg v. Scott [2005] 2 AC 176,

is read.  In that judgment the House of Lords approved claims for loss of chance in relation to future prospects but stated that this approach could not be taken in relation to causation in clinical negligence cases.  The judgment of Lord Nicholls of Birkenhead.

“Loss of an opportunity or chance as actionable damage
  1. It is perhaps not surprising therefore that it is principally in the field of hypothetical past events that difficulties have arisen in practice. Sometimes, whether a claimant has suffered actionable damage cannot fairly be decided on an all-or-nothing basis by reference to what, on balance of probability, would have happened but for the defendant’s negligence. Sometimes this would be too crude an approach. What would have happened in the absence of the defendant’s negligence is altogether too uncertain for the all-or-nothing approach to be satisfactory. In some cases what the claimant lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain. The defendant’s wrong consisted of depriving the claimant of a chance he would otherwise have had to achieve a desired outcome.
  2. Then, the greater the uncertainty surrounding the desired future outcome, the less attractive it becomes to define the claimant’s loss by whether or not, on balance of probability, he would have achieved the desired outcome but for the defendant’s negligence. This definition of the claimant’s loss becomes increasingly unattractive because, as the uncertainty of outcome increases, this way of defining the claimant’s loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant’s negligence.
  3. In order to achieve a just result in such cases the law defines the claimant’s actionable damage more narrowly by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcome which was never within his control. In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms. The law treats the claimant’s loss of his opportunity or chance as itself actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may. The chance is to be ignored if it was merely speculative, but evaluated if it was substantial: see Davies v Taylor [1974] AC 207, 212, per Lord Reid.
  4. Some familiar examples will suffice. A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have happened if the claimant had been duly notified of her interview: Chaplin v Hicks [1911] 2 KB 786. When a solicitor’s failure to issue a writ in time deprived a claimant of the opportunity to pursue court proceedings damages were not assessed on an all-or-nothing basis by reference to what probably would have been the outcome if the proceedings had been commenced in time. The court assessed what would have been the claimant’s prospects of success in the proceedings which the solicitor’s negligence prevented him from pursuing: Kitchen v Royal Air Force Association [1958] 1 WLR 563. When an employer negligently supplied an inaccurate character reference, the employee did not need to prove that, but for the negligence, he would probably have been given the new job. The employee only had to prove he lost a reasonable chance of employment, which the court would evaluate: Spring v Guardian Assurance Plc [1995] 2 AC 296, 327.
  5. In Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 a solicitor’s negligence deprived the claimant of an opportunity to negotiate a better bargain. The Court of Appeal applied the ‘loss of chance’ approach. Stuart-Smith LJ, at page 1611, regarded the case as one of those where ‘the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff … or independently of it.’ It is clear that Stuart-Smith LJ did not intend this to be a precise or exhaustive statement of the circumstances where loss of a chance may constitute actionable damage and his observation should not be so understood.”

SOME EXAMPLES

 HERRING

In Herring v Ministry of Defence [2003] EWCA Civ 528, [2004] 1 All ER 44 the Court of Appeal stated loss of chance claims do not replace the conventional means of assessing future loss of earnings but are more appropriate in cases where the chance to be assessed is where the chance is that the career of the claimant would take a particular course leading to significantly higher overall earnings than those which it is otherwise reasonable to take as the baseline for calculation.

MOORES

For example, in Moores v Co-operative Wholesale Society Ltd (1955) Times, 9 May, CA, the plaintiff, a police officer, had been injured in a previous accident, and as a result his prospects of continuing in the police force were very slight. The second accident rendered him unfit for police duty. The Court of Appeal held that the effect of the second accident was to deprive the plaintiff of a ‘poor chance’ of continuing in the police force, and they reduced the damages substantially from £3,000 to £1,000.

 CHAPLIN

In Chaplin v Hicks [1911] 2 KB 786, 80 LJKB 1292, CA – which was not a case of personal injuries – damages were given for the loss of an opportunity to be considered (on a competitive basis) for a theatrical engagement.

AN APPROPRIATE MEANS OF ASSESSING DAMAGES

The loss of an opportunity is certainly a valid head of damages, and cases may be conceived where a claimant is injured on the way to an interview where he has good prospects of being selected for an important post. Loss of an opportunity of starting or continuing an apprenticeship, or a career in the armed forces, may also be caused by an accident at the critical time; or an examination may be missed. Such opportunities may be lost if not taken promptly, and the damages might be substantial, for example, Comer v Bolton [1987] CLY 1159, CA where a girl lost the chance of attending a high-class secretarial course.

Doyle v Wallace – loss of chance to train as a teacher

In  Doyle v Wallace [1998] 30 LS Gaz R 25, [1998] PIQR Q146, CA the claimant was a student when injured. Her case what if she had not been injured she would have qualified as a teacher. The Court of Appeal upheld the judge’s decision to base damages on the basis that she had a 50% chance of qualifying as a teacher.

Langford v Hebran – sporting career

In Langford v Hebran [2001] PIQR Q160, the claimant was a trainee bricklayer who had also just begun a promising career as a professional kickboxer. He suffered whiplash injuries and an injury to his shoulder in a road accident, which were sufficient to put an end to his professional kickboxing career.

In his claim for loss of earnings the claimant claimed loss of earnings and also presented four alternative scenarios reflecting various degrees of success in the fighting career, each more successful than the last.

The trial judge accepted the claimant’s argument that he should receive the basic claim, his kickboxing career to these levels. The Court of Appeal rejected the defendant’s argument for the defendant appellant that a Doyle-type approach was inappropriate where there were a number of different options to choose from. The claimant was entitled to a percentage of the increased earnings he could have expected in each of the predicted scenarios, had he had the chance to progress as a professional kickboxer, with a discount to take account of the possibility that his success may have been short

lived, and that he may not have realised any of the hypothetical scenarios suggested.

Professional Footballer: Appleton –v- Medhat Mohammed El Safty

In Appleton –v- Medhat Mohammed El Safty [2007] EWHC 631 (QB) the court considered the loss of chance of a professional footballer on the basis that he had  75 chance of playing at championship level and 25% chance of playing in division one.

Clarke –v- Maltby – loss of chance of advancement as a solicitor

In Clarke-v- Malty [2010] EWHC 1201 (QB) the claimant was a solicitor in private practice whose injuries meant she had a reduced earning capacity.  She had lost the chance of partnership in large practices. Damages were assessed on the basis that she had a 100% chance of a fixed share equity in a regional law firm; an 85% chance of she would be a partner in a middle sized City firm and 30% chance of joining a city or central London firm as a partner.

XYZ –v- PORTSMOUTH HOSPITALS NHS TRUST – Loss of chance of running successful business

In XYZ –v- Portsmouth Hospitals NHS Trust [2011] EWHC 243 (QB) damages were awarded on the basis that the claimant would have set up and run a substantial business, there was a 50% chance that the business would reach £5 million and a 20% chance that his business would achieve a turnover of more than £10 million. The total award of damages was £6,740.646.

Chance of remaining in the army

The courts have also considered the issue of the “chance” of a soldier remaining in the army in order to properly assess the claim for loss of pension,see Brown –v- Ministry of Defence [2006] EWCA Civ 546.

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