1. [1987) AC 750.

2. (1991) 78 DLR (4th) 609. In 1971, the defendant physician diagnosed cancer but failed to advise the plaintiff that the lump he removed from her breast was cancerous. Further symptoms appeared in 1975 when she was informed of the earlier diagnosis, and in 1978 she died. An action by the plaintiff and on the plaintiff's behalf failed as the Supreme Court held that damages for loss of a chance should not be adopted in the medical context.

3. (1994) 68 ALJR 313.

4. Ibid at 319–23.

5. (1990) 169 CLR 638.

6. (1991) 174 CLR 64.

7. (1994) 68 ALJR 313 at 323.

8. Ibid at 327.

9. Ibid at 330.

10. Although see Stapleton ‘The Gist of Negligence’ (1988) 104 LQR 389.

11. (1994) 68 ALJR 313 at 321.

12. [1911) 2 KB 786.

13. [1958) 1 WLR 563.

14. Battley v Faulkner (1820) 3 B & Ald 288, Shutford and Borough's Case (1629) Godbolt 502, although even in 1820 is was still arguable that, as a breach of contract was brought under assumpsit (a case action), damage was still necessary. Despite the unconvincing arguments of the judges of King's Bench, it would be virtually impossible to challenge this proposition today. See also Simpson A History of the Common Law of Contract (London: Oxford University Press, 1975) pp 580–2.

15. It is not clear whether the claim was in tort or in contract, but as Lord Evershed made a specific finding that the plaintiff was a client of the solicitor it is probable the action was conceived as being contractual.

16. However, it is admitted that the distinction drawn between (1) deciding whether a past event occured and; (2) deciding whether a past hypothetical event would have occurred or a future event would occur, is not an easy one.

17. For convenience, the remainder of the article will refer to ‘lost chance’ even though it is argued above that they are not ‘true’ lost chance cases.

18. King ‘Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences’ (1981) 90 YLJ 1353 at 1373.

19. As is accepted by Brennwald ‘Proving Causation in “Loss of a Chance” Cases: A Proportional Approach’ (1985) 34 Catholic University LR 747 at 789. However, as the rest of the article discusses loss of chance where the outcome has already occured the implications of this admission are left unexplored.

20. For example Hill ‘A Lost Chance for Compensation in the Tort of Negligence by the House of Lords’ (1991) 54 MLR, 511.

21. Almost all proponents of loss of chance damage use as examples cases where the undesirable outcome has occured see King, op cit, Brennwald, op cit, Robinson ‘Probabalistic Causation and Compensation for Tortious Risk’ (1985) 14 Journal of Legal Studies 779, Mandell & Carlin ‘The Value of a Chance: the Evolution and Direction of Chance in Tort Law’ (1986) 20 Suffolk University LR 203.

22. Robinson, op cit, p 797.

23. King, op cit, p 1381.

24. Robinson, op cit, pp 783–791, makes an interesting argument in support of loss of chance damage on these grounds. The only policy grounds mentioned by the majority are (at 323) that their approach results in fair compensation and conforms to the approach of taking account in the assessment of damages.

25. Hill, op cit, p 518. This probability theory of valuation put forward by King still fails to explain why the value of the chance should be linked to the outcome. The other suggested method of valuation (the hypothetical market) is only applicable to true loss of chance cases because in ‘false’ loss of chance cases only a statistical chance has been lost-see below.

26. Poseidon at 323 (Majority), 330 (Brennan J).

27. [1988) AC 1074.

28. [1956) AC 613.

29. [1973) 1 WLR 1.

30. Stapleton, op cit, p 407.

31. Lord Reid at 622.

32. Only Lord Reid considered this question (at 622) and he held there was no evidence to show that the innocent dust was produced so frequently or in such concentration in the general atmosphere that it could be said to be the sole cause of the disease. Given that the pursuer recoveredcompletely for the injury, Lord Reid must have attributed factual causation to the guilty dust, a surprising result given that there was also no evidence of frequency or concentration with which to attribute the guilty dust as the sole cause.

33. Stapleton, op cit, p 404.

34. The gist of the above argument is accepted by Stapleton, op cit, pp 404–7.

35. Although some commentators in favour of loss of chance damage acknowledge this possibility, the implications of the view are not explored For example, Stapleton, op cit, gives two paragraphs out of a 20 page article to this issue, King, op cit, three paragraphs out of a 44 page article, and Brennwald, op cit, has only two sentences out of a 43 page article.

36. (1994) 68 ALJR 313 at 323.

37. Ibid.

38. Supreme Court of New South Wales, Common Law Division, 6 May 1994, Smart J.

39. O'Shea, transcript p 45.

40. Ibid, pp 28–9.

41. New South Wales Court of Appeal, Mahoney AP, Powell JA, Clarke JA. Judgment delivered 16 August 1994. While there were other aspects of the appeal on which the Court divided, it was unanimous on this issue.

42. O'Shea, transcript, p 7 per Mahoney AP.

43. Ibid. Mahoney AP expressly stated that he refrained from detailing observations by the High Court on loss of a chance and their application to this case.

44. Ibid.

45. Hill, op cit.

46. Ibid, p 513.

47. It might be possible to argue, for example, that in 20% of cases road condition was responsible for the collision, in which case a loss of chance analysis would lead to only an 80% recovery. For difficulties in deciding what causes should be considered as legally relevant see Cane Atiyah's Accidents, Compensation and the Law (London: Butterworths, 5th edn), pp 162–3. If recovery for loss of chance damage is said to be a more efficient method of risk allocation, this would seem an argument in favour of considering a greater variety of causes as each risk would compensate in accordance to its causative potence.

48. Stapleton, op cit, p 398.

49. Stapleton suggests that it would not, looking at cases like Smith v Leech Brain. However, Smith did not involve a question of what was sufficient damage to found a negligence action.

50. In Spring v Guardian Assurance Plc. (1994) 3 WLR 354, the plaintiff successfully sued in respect of a negligently prepared reference, claiming that it had prevented him from obtaining employment. Whilst this issue is not expressly considered in the House of Lords, Lord Lowry suggests that to recover, the plaintiff did not need to show that he would have obtained employment but for the reference, but could succeed by showing he lost a chance of employment, although the passage of the trial judge cited by Lord Lowry (at 377–8) appears to support a traditional view of causation.