In most cases of claims to the civil courts for compensation in respect of a loss which has occurred the damages claim will already have been suffered
. An amount of money will be awarded to restore the person making the claim to the position they would have been in had the wrong not happened.
There is a basic principle of UK law that a person may not benefit financially as a result of a wrong they have suffered. A claimant is only entitled to damages to compensate them for the loss that they can show has been incurred. Should a car crash in to my garden wall I will only be entitled to the cost of repairing the wall to its original condition. I cannot claim for the cost of building a new wall over and above the specification of the old.
There is however another type of claim where the loss suffered is not immediately apparent. Were I to instruct a firm of solicitors to act for me in bringing a claim over a traffic accident where I was hurt. They negligently miss the limitation period for bringing the claim, as a result of which I lost the chance of recovering damages from the driver of the car which hit me. The solicitors were negligent and if this is proved the amount of damages to which I will be entitled to will be based on the value of the gain I would have obtained had it not been for their negligence. My Claim can only be for the amount I would have received in my accident claim had I been able to proceed with it.
The claim against the negligent solicitors is a claim for loss of chance. That is the loss of the chance to recover damages from the driver of the car. It will first therefore be necessary to calculate how much I would have been likely to recover from my accident claim.
Say it would have been 100,000. The likelihood of succeeding in the claim will then have to be considered. If liability for the accident could not have been disputed and there was say,only a small 10% chance of me losing my claim, this amount would be deducted from my claim and I would only be entitled to damages of 90,000 from the solicitors.
Similarly if a defendant was not insured and might not have been able to pay the damages awarded, a discount from my claim would have to be allowed to account for this.
When compensation is awarded for the loss of chance it will be based on the probability of recovering the sum which was being claimed. Where some monies have been received in respect of a claim these must be taken into consideration and the claim for loss of chance will be based on the probability of having received the larger sum.