Property, Chancery & Commercial, Other Areas of Law

The discount for loss of a chance is not confined to future losses.  It also applies to the hypothetical past.

Many injured claimants had plans to start work or resume work only for such plans to be delayed or obliterated by an injury. Defendants shouldn’t assume that claimants who were unemployed at the time of the accident would have obtained employment, just because they say so.  The question whether they would have sought that employment is decided on a balance of probabilities, and it is usually a slam-dunk for claimants.  Whether they would have found that employment depends on the decision of a third party, so loss of a chance principles apply even though the loss claimed is a past loss.

Indeed, apart from Doyle v Wallace type cases where a fancy promotion or a fancy increase in earnings is being projected, loss of a chance has little application to future claims for loss of earnings.  Ogden Tables A, B, C and D effectively contain the discount for the uncertainty of finding work.

Example:  A claimant who has taken 8 years off work to bear and raise children, decides to resume employment in January 2008.  In November 2008, she is injured and falls within the definition of disabled, although she does have a small residual earning capacity.  The trial is set to take place in July 2012.

Unless it is a certainty that she would have obtained employment in January 2008, her past losses fail to be discounted for loss of a chance.  But her future losses will be simply calculated by reference to Ogden Tables C and D.

Additional Fact: The claimant did obtain some work in line with her residual earning capacity in 2011, but resigned after 8 months because of a personality clash with her boss.  In the Schedule of Loss, counsel for the claimant uses the substantial reduction factors found in the “unemployed at trial” section of Table D.  In my opinion that is worth disputing.  The “unemployed at trial” disability factors in Tables B and D should apply to those who cannot find work despite looking for it, not those who are voluntarily unemployed. 



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