Loss of opportunity although it is certainly an

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Unformatted text preview: f probabilities. It has come to be recognized that a chance that an event will occur which is beneficial to the plaintiff is a right which has value.56 Sometimes this is termed 'loss a chance'. Closely connected are the cases where there is a 'loss of opportunity'. Loss of opportunity, although it is certainly an opportunity cost, it is not to be confused with opportunity cost in general. All losses of a commercial opportunity can be considered opportunity costs, but not all opportunity costs are losses of a commercial opportunity.57 U n d e r the "balance of probability" test, cases where the plaintiff lost a chance which itself had less than 50% probability of a successful outcome would be treated as having nothing of value, incurring no loss, and thus failing to prove a cause of action. Starting 1911, though, the common law began to attribute value where the loss was a chance to gain a benefit. In Chaplin v Hicks (1911) the House of Lords recognised that a loss of a chance to win in a contest, or to gain a valuable right, was a chance for which some people would pay money and was valuable in itself. This has led to courts addressing a number of related issues including the valuation of chances where there are lost CO c ommercial opportunities, where the chance is a chance to recover from an injury misdiagnosed by a physician,59 or the chance is the chance to recover damages in 54 Hamer,D. 1999, p. 3. The terminology in the courts is unfortunate, for courts in the past have not used "probability" in a mathematical sense, making discourse on this subject difficult between economics and the c ommon law. 56 The value of a chance can be explained through option theory. A n option upon a benefit gained through a contingent event is the basis for option theory, but the courts have not analysed common law disputes in this way. This will be discussed further in Chapter Ten. 57 This depends, of course, on whether one defines "commercial" in the wide sense as any profitable undertaking, whether personal, business related or otherwise. 58 Sellars v Adelaide Petroleum NL. and Others; Poseidon Ltd. v Adelaide Petroleum N.L. and O (1994) 179 C.L.R. 332, (1994) A.T.P.R. 41-301; Nexus Minerals v Brutus Constructions Pty. Ltd. & A (unreported) [1997] F C A 926 59 Naxakis v Western and General Hospital and Anor. [1999] 73 A.L.J.R.782; Hotson v Fitzgerald [198 W.L.R. 1036; Hotson v East Berkshire Area Health Authority [ 1987] 2 All E.R. 908. 55 215 litigation, which w a s prevented by the professional negligence of firms of solicitors. These issues are hypothetical, for the court must assess what the position of the plaintif would have been if the defendant had not committed the act, for which s/he is being held responsible by the plaintiff. The losses claimed by the plaintiff normally divide into pre trial losses, and post-trial losses. The future-oriented post trial losses, and hypotheti pre-trial losses are normally assessed differently than the pre-trial losses which actua occurred. The hypothetical past, and future losses incorporate probabilistic thinking and raise a number of controversial issues. Pre-trial and Post-trial Loss Assessment "The past has already happened and is, in principle, knowable. The future, on the other hand, is a matter of chance, and is a far less certain object of knowledge".61 The past events occurring prior to trial are either proven to the requisite standard or they are the court is satisfied that their occurrence was "more probable than not" then they are treated as certainly having occurred. If it is considered "more probable than not" that th losses were caused by the defendant, the defendant is treated as having caused the whole loss. When losses include future elements, the common law fails to elucidate a consistent framework of principle which is both workable and applicable in wider curial application. The cases reveal that the courts resort to a proportional assessment of the future damages If it is concluded that a plaintiff will need, say, an operation in the future which costs 50 Johnson vPerez; Creedv Perez [1988-1989] 166 C.L.R. 351. Hamer, D. 1999, p. 2. There is, as Hamer points out, an asymmetry in the knowledge of time between the knowable past and the unknowable future. This asymmetry is too often overlooked and presumed rather than addressed openly in case judgments. 61 216 today's terms, $30,000, but only on a 4 0 % probability, then it is likely that only 4 0 % of the entire amount will be awarded. T he role of the court in making an assessment of damages which depends upon its v iew as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what w as. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its v iew as to what will happen in the fu...
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