3.2.5.5 Loss of a chance in Dutch law

93. In Angonese the Italian courts concluded that Angonese clearly suffered damage as a result of the Bank’s unlawful refusal to allow him to participate in the recruitment competition. This damage concerns the loss of the chance to have been hired(perdita di chance). In Dutch law, the loss of a chance to get hired qualifies as damage in the sense of Article 6:162BW.1 In the phase in which the liability of the Bank is established, the concept of loss of a chance (kansschade or verlies van een kans2) plays only a modest role: it primarily qualifies the type of damage.3 The Hoge Raad has stated that the concept of loss of a chance (kansverlies or verlies van een kans) applies in cases in which there is an uncertainty as to what would have happened if the tortious act would not have taken place.4 Usually such uncertainty forms an obstacle to the causality (condicio sine qua non) between the tortious act and the damages suffered, because it is not possible to determine the situation of the plaintiff if the tortious act would not have taken place. The concept of the loss of a chance serves as a safety net because the condicio sine qua non between the tortious act and the loss of a chance can be proven.5 Applied to the case of Angonese: without the Bank’s discriminatory refusal Angonese would not have been deprived of the chance to be hired.

However, obviously, in the case of loss of a chance, the damage suffered is not directly reflected in concrete financial value.6 To calculate an amount of damages payable for the loss of a chance, first the percentage of the likeliness that the victim of discrimination would have been hired if he was allowed to participate in the recruitment competition should be determined – or estimated.7 This percentage serves as the starting point for the further calculation. One of the options is to multiply the concrete amount of damage suffered – e.g. the sum of monthly payments that the victim would have received would he have been hired – with the percentage of the lost chance, applied to a reasonable period of time, considering the chance that the victim would have found another job and taking into account the possibility that the victim has generated income during this period.

Lastly, it must be emphasised that the doctrine of the loss of a chance can be applied only if there is uncertainty as to what would have happened without the conduct for which a party is held liable. Therefore, when it is certain or plausible that something would have happened – for example that an candidate would have been hired – the concept of loss of a chance does not apply. Let me illustrate this through a judgment of Rechtbank Assen delivered in 2004. The case concerned a woman who applied for a position of chauffeur of a dump truck and who was not hired because she was a woman.8 Referring to Draehmpaehl the Rechtbank considers that the woman has suffered damages as a result of the discriminatory conduct and that the amount of damages payable depends on the likelihood that the woman would have been hired if she would not have been discriminated against.9 The district court states that it is plausible that the woman would have been hired, because the employer did not contend her capacities and the woman indeed met the requirements for the job.10 In other words, the chance that she would have been hired if she would not have been discriminated against was 100%. Consequently, because there is no uncertainty whether she would have been hired, the court can calculate the amount of compensation for damages on the basis of the concrete damages suffered by the woman as a result of the discriminatory refusal.11 As a result, the court calculates the amount on the basis of the regular monthly wage for the job as dump truck driver, the period for which she would have been hired minus the income she has actually generated in the period during which she would have been hired.12

Although no examples were found in which the concept of loss of a chance was applied to discriminatory conduct, it cannot be excluded that this concept could be useful in relation to infringements of Article 45 TFEU. In any case, in theory the concept of loss of a chance seems to provide for an effective, proportionate and real remedy of an infringement of the free movement of workers and the right to non-discrimination on account of nationality.