4.1 The direct influence of the rule

Damages are calculated by comparing the world as it is (i.e. with the tort) with a hypothetical world in which the tort never occurred. In simple cases, this is easy enough. If I hit you with my car, we simply compare your health and financial situation with the accident (i.e. the world as it is) with a situation in which you would not have been hit (i.e. the hypothetical scenario).1 This exercise is a way to establish ‘causality’, though that term may be a little confusing. When a lawyer seeks to establish causality, she does not really care what, scientifically speaking, qualifies as ‘the’ cause. If I push you in front of a bus, my push is as much a cause of your death as the presence and speed of the bus is, yet I would obviously be liable for all the consequences. Rather, the lawyer is interested in whether the behaviour of one party (i.e. the tort committed by the defendant) makes her responsible for the negative consequences the action has had for another party.

That approach, however, is not always diligently followed. The best example is the retinopathy-judgment of the Supreme Court.2 In this case, a premature child came in the care of a doctor who was under an obligation to quickly check for signs of a detaching retina. For the sake of simplicity, let’s say he was under an obligation to perform this check on day 1. He did not perform the check on day 1, but instead performed it on day 3. He then sees some early signs of retinopathy and operates on day 4. The operation is unsuccessful. He admits that if he had checked at day 1 – as he should have – he would probably have operated on day 2, thus increasing the patient’s chances of avoiding blindness. The issue is, however, that although the check was performed too late, the operation on day 4 was well on time. Because this doctor was extraordinarily competent, he detected early signs of retinopathy on day 4 that a reasonably competent and reasonably diligent medical professional might not even have spotted. So if we compare the patient’s current situation with the hypothetical situation in which she would have received the care of a reasonably competent and reasonably diligent medical professional, she would not have been worse off.

The Supreme Court held that her claim for damages should nonetheless succeed. The standard of a reasonably competent and reasonably diligent medical professional is important to establish a wrong, but it had – according to the Supreme Court – no role to play in establishing causation. It is submitted that this decision is misguided. Because of this approach, the doctor becomes financially responsible for circumstances that the law does not make him responsible for. The rule is that each medical professional is held to the standards of a reasonably competent and reasonably diligent medical professional, not to their own high standards. So long as that is the rule, it is inappropriate to use remedial law to expand that responsibility. And there are good reasons not to. Under this approach doctors – or indeed professionals in general – would do well to avoid offering above average services. After all, that could come at a cost in a potential liability case. Matching the remedy more explicitly and more closely with the underlying duty enhances substantive legal certainty, in that each party can rely on her rights to actually be given effect in the courts.

Placing a stronger emphasis on the fact that damages are merely an expression of the continuation of the responsibility that is enclosed in the substantive norm, also helps structure the doctrine of loss of a chance. This doctrine was introduced in the 80s and 90s and allows a claimant who cannot prove that the defendant’s tort actually made her worse off, to claim proportional damages for at least losing the chance of something better.3 The most obvious example is the situation where a lawyer fails to file for appeal and it is not clear what the appeal would have resulted in.4 The argument then goes that the client may not definitely have suffered a loss as a result of the failure to apply for appeal, but at least lost a chance of winning her case. This doctrine is analytically limited to cases where the claimant had a chance or had a right to be given a chance and the defendant illegally took that chance away from her before she had a chance to ‘test’ her chances. If you can claim damages for losing a chance, you must have had it or have been entitled to it. Under the scope of the rule doctrine (relativiteitsleer) the next limitation lies in the purpose of the rule. This doctrine should only come into play where the rule actually protected the claimant’s chances. Only where the chance itself qualifies as a legally protected asset can the claim have any effect at all.