The Loss of Chance Doctrine: Comparative Legal Review of the Theory Application
Table of contents
Share
QR
Metrics
The Loss of Chance Doctrine: Comparative Legal Review of the Theory Application
Abstract
PII
S1991-32220000622-3-1
Publication type
Article
Status
Published
Authors
Ilya Kozlov 
Occupation: Advisor of the Department for Corporate Regulation, Ministry of Economic Development of the Russian Federation; Postgraduate Student, ILCL
Affiliation: Institute of Legislation and Comparative Law under the Government of the Russian Federation
Address: Moscow, Russia
Edition
Pages
142-149
Abstract

The article provides an analysis used abroad to solve problems associated with the complicated causality theory. This theory is known as the “loss of chance doctrine” and is one of the cases of complicated causation. In Russia, scientific publications on this topic have only recently begun to appear, besides, isolated glimpses of the use of this doctrine have begun to appear in judicial practice. In general, the this theory is considered applicable to situations where both the actions of the defendant and the risk under the control of the victim can equally possibly act as a possible cause of harm. The reason for this uncertainty is the limited possibilities of human cognition, since it is objectively impossible to establish whether or not the victim would have realized his chance if he had not been deprived of it. The compensation awarded to the victim in such a case is calculated in proportion to the quantitative reduction of chances. According to the author, it is extremely useful to consider the potential of applying the doctrine of loss of chance in the domestic legal order based on the study of international experience in its use.

The study used the dialectical method of cognition, as well as linguistic and comparative legal methods.

The article demonstrates how various legal systems relate to the loss of chance doctrine and in what form it is reflected in judicial practice. In some legal systems (France, USA, Great Britain), the theory is recognized and actively applied by the courts, since it is believed that only with its help it is possible to fairly resolve situations in the development of which chances interfere. In other legal systems (Germany, Austria, Switzerland), this theory is sharply rejected, and the search for solutions takes place within the framework of traditional views on causality in law.

Keywords
loss of chance, tort, harm, complicated causality, proportional compensation
Date of publication
26.02.2024
Number of purchasers
8
Views
124
Readers community rating
0.0 (0 votes)
Cite Download pdf
1

References



Additional sources and materials

1. Cardona Ferreira R. The Loss of Chance in Civil Law Countries: A Comparative and Critical Analysis. Maastricht Journal of European and Comparative Law, 2013, vol. 20, iss. 1. 
2. Cartwright J., Vogenauer S., Whittaker S. Reforming the French Law of Obligations: Comparative Reflections on the Avantprojet de réforme du droit des obligations et de la prescription (“the Avant-projet Catala”). Oxford; Portland, 2009. 
3. Frasca R. Loss of Chance Rules and the Valuation of Loss of Chance Damages. Journal of Legal Economics, 2009, vol. 15, iss. 2. 
4. Jansen N. The Idea of a Lost Chance. Oxford Journal of Legal Studies, 1999, vol. 19, iss. 2. 
5. Kadner Graziano T. Loss of a Chance in European Private Law — All or Nothing or Partial Liability in Cases of Uncertain Causation. European Review of Private Law, 2008, vol. 16, iss. 6. 
6. King J. H. Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences. Yale Law Journal, 1981, vol. 90, no. 6. 
7. Mikhailov V. S. Concept of factual causation and several issues of its practical application. Civil Law Review, 2018, no. 3, pp. 103—161. (In Russ.)

Comments

No posts found

Write a review
Translate