Recognising lost chances in tort law

• Main Authors: LIANG, Jeremy Shi Wei, LOW, Kee Yang
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2014
• Subjects: Torts; Common law; negligence; Singapore; Asian Studies
• Online Access: https://ink.library.smu.edu.sg/sol_research/1409; https://ink.library.smu.edu.sg/context/sol_research/article/3361/viewcontent/2151_2014_sjls_jul_98_pvoa.pdf
• Institution: Singapore Management University

This paper proposes the way forward in dealing with the unsatisfactory case law involving loss of chance in negligence, particularly medical negligence. It seeks to show that the current approach in England and in Singapore of applying traditional causation rules is arbitrary and inadequate, and fails to meet a deserving loss of chance claim. The authors seek to examine whether loss of chance is better understood as a theory of injury instead of a theory of causation. Inspecting major common law jurisdictions and the key controversies in reconciling the case law, it will be advanced that the best method (in terms of justice and doctrinal fit) for the development in tort jurisprudence lies in recognising and valuing lost chances as a new category of damage. A lost chance should be recognised if it fulfils a twofold precondition, namely that: (i) there was a significant chance about the outcome at the time of the alleged negligence; and (ii) the injury which affected the claimant's prospects lay in the future at the time of the alleged negligence. Once this is met, damages may be awarded accordingly in proportion to the chance lost based on a weighted mean.