What might have been

"Winning doesn't matter – it's the taking part that counts." Our headmistress would open every sports day with the same old cheery words, which fooled nobody. We all knew perfectly well that losing tasted lousy and winning was the only thing that mattered – by fair means or foul. But having spent one sports day on the sidelines with a badly bruised leg (fruits of a foul), I realised the old hen might have something after all. The loss of a chance to win tastes even worse.

Moving on outside the school gates, what if you lose a chance in life and it is someone else's fault? It might be the loss of a chance of gain or the chance of avoiding a loss. How can a loss of a chance be proven before the loss has ever been established?

Sharpe vs Addison (2003) well illustrates the principles that apply in such "loss of chance" cases. Mr Sharpe was knocked down by a taxi and commenced proceedings against the driver. However, his solicitors failed to give the requisite Road Traffic Act notice of proceedings to the driver's insurers. Consequentially, Mr Sharpe could no longer claim against the taxi driver's insurers, and the taxi driver himself, rather untypically of those swarming into the green belt, was impecunious. Mr Sharpe claimed for a "loss of a chance" against his solicitors.

His solicitors responded that the claim had been doomed from the start and so was worthless. Funnily enough, those same solicitors had assured Mr Sharpe at the outset that his claim was not hopeless at all. Not surprisingly, the court found that they had rather shot themselves in the foot on that one. The court proceeded to try to predict the outcome of the original action had it gone to court. It estimated that Mr Sharpe would have been found contributorily negligent to the tune of some 75%. Of the remaining 25%, the court felt there would have been something less than a half chance of him recovering anything at all, as the case was not clear cut, and so awarded only 10% of the value of the claim.

The court also took the opportunity to confirm certain previously established principles, namely that the claimant must prove that it would have had a "real and substantial chance" of success in the original action, but that difficulties of proof caused by the passing of time or difficulty in valuing the original claim may be construed against the interests of the negligent party.

The same solicitors that had told him his case was not at all hopeless, now said that it had been doomed from the start

Now in certain cases, it can be a little tricky to predict whether the court will indeed treat a matter as a "loss of chance" at all. The issue was highlighted by the case of J Sainsbury vs Broadway Malyan and Ernest Green Partnership. Here, Sainsbury's supermarket was destroyed by an arsonist. As if being targeted by an arsonist were not bad enough, Sainsbury's alleged that its architect had made a bad situation a whole lot worse by having failed to design an adequate firebreak wall between the storage area, where the fire commenced, and the sales floor, to which the fire proceeded. The architect settled the claim at a painful £7.12m, but there was more pain to come. In the course of subsequent contribution proceedings between the architect and the engineer, the judge had to consider whether the architect's original settlement with Sainsbury's was a reasonable one. The judge stated that the architect's negligent design of the fire wall had merely caused Sainsbury's the loss of a chance of saving the sales area – a chance of some 35% that the fire brigade might have been able to confine the fire to the store area. The architect, he concluded, should have settled at just 35% of the actual settlement figure of £7.12m.

A sobering thought.

It is certainly worth considering, as a defendant, whether the claim brought against you should be construed as just the loss of a chance. If that is the case, you could find yourself liable for just a fraction of the actual loss being claimed.