Loss of a chance

Haithwaite v Thomson Snell & Passmore [2009] EWHC 635; SJ 19 May p26

The defendant’s solicitors admitted their negligence in the conduct of the claimant’s clinical negligence claim. The court’s task was to assess the value of the lost claim, not to determine definitively how the litigation would have been decided. On the evidence, the claimant’s chances of establishing negligence was estimated at 40%. There was the further question of causation. For the purpose of identifying what would have been the claimant’s prospects of establishing a cause of action against the NHS trust, the claimant needed only to show some harm that was more than de minimis or insignificant. In the circumstances, there was a 75% chance that he would be able to prove that the negligence had caused him some loss that was more than minimal. The claimant’s overall prospects of success should therefore be reduced by a further 10% to 30% to reflect the litigation risks of not being able to establish that some harm was caused by the negligence. Accordingly, the overall value of what the claimant lost by the solicitor’s negligence was 30% of the notional damages figure.