4.7.2 Notion of loss of chance

The courts initially developed the notion of loss of chance to solve the problem for patients who claim that as a result of a doctor's medical wrongdoing they were deprived of the opportunity to survive (in case of death) or to recover from their illnesses.1 The courts use the notion of loss of a chance so as to `mask' the uncertainty whether the causation required is fulfilled.2 According to some French legal scholars, the proper use of this notion is limited to situations where the tortfeasor interferes tortiously in an already existing favourable development to the victim.3 In their view, the doctor does not interfere in an already existing favourable development; quite the contrary. The real losses incurred are death or illness, while the courts substitute these for lost opportunities (survival and recovery).4 Furthermore, there is no direct and certain causal link between the medical wrongdoing and the lost opportunities; the patient could have survived or recovered without the doctor's interference.

Some French scholars deem this application of the notion of loss of a chance too restrictively.5 In section 4.7.3, arguments will be given for the application of this doctrine in matters of causation as well. Besides its usefulness in cases of medical wrongdoing, I will also provide arguments for the application of this doctrine in cases where investors need to provide evidence for causation in cases where they claim that the information falsely and misleadingly influenced their securities investment decision.

Now, I will return to the function of this notion with respect to the element of loss in cases of claims regarding misinformation about securities.6 Investors claim that they lost the opportunity to make an informed decision with respect to the acquisition or retention of the company's securities as a result of the publication of misinformation regarding the issuing company. Notice that they do not claim compensation for the unrealised gains they expected from their investment in those securities. The notion of loss of chance does not regard the promises laid down in the prospectus on the future profitability of the company and consequently of its shares are not taken into regard in the notion of loss of chance because investors base their claim on the fact that as a result of the misinformation they were deprived of the possibility to invest their money in another investment project.

The realisation of a chance or opportunity is never certain. However, this does not mean that the losses caused by the lost opportunity, i.e. the missing of a favourable possibility, are not directly and certainly related to the tortious behaviour.7 In order to assume a loss of chance, the courts require that there was a realistic and serious opportunity so as to exclude pure hypothetical opportunities.8Furthermore, it is only the chance to make a profit from the lost alternative transaction that can be compensated;9 only the value of this chance is awarded.10 The claimant cannot be awarded the (full) benefit that the alternative investment could have realised, because the realisation of an opportunity is subject to the factor chance (aléa).11