Damage Compensation Of Loss Of Chance In The Law Of Tort

In the case of loss of chance, although the victim will suffer no interest because of loss of chance, but he still often loses a lawsuit because of inability to prove a causal relationship, this is clearly contrary to the fair. To this end, the French Supreme Court put forward the far-reaching loss of chance theory, a solution for solving the problem. The judicial practice of our country but also by the positive impact of the theory. This paper is composed of the following six parts:The first part: Putting forward the question. In our country, the traditional theory of tort law requires the victim that claim compensation for damage to prove the existence of ultimately harm suffered by the victim and the causal relationship, but that is precisely difficult for the victims to prove. Even if the victim experienced hardship to the success of proof, the court will also face the problem of how to determine the amount of damages. Therefore, it is difficult for the victims to win. But if only because of the rigid rules and declined to provide relief to the victims, it is obviously unfair. In this case, we urgently need to explore whether and how victims should be compensated.The second part: The loss of chance doctrine and the application of this doctrine in the two legal system countries. The theory is that all the lost chances are of equal value,loss of chance is in itself a compensation damages, whether the loss is 1% or 99% chance, should the victim get compensation according to the proportion, degree of responsibility of the offender rather worsen the damage. What the victim to prove, is not a causal relationship between the harm behavior and ultimately harm suffered by the victim, but a causal relationship between harm behavior and the loss of chance. However, this theory has been acknowledged and implemented only in some parts of the country in case. The opposition believes, loss of chance does not constitute a damage, not all chances are worth and the same size of the chance is not necessarily with the same value for different individuals, statistics provided by the victim may not be reliable, the application of the theory will likely lead to more unfair and will aggravate the burden of the court.The third part: The definition of damage In the case of loss of chance. In the case of loss of chance, the definition of damage is controversial: In the traditional tort law theory,that the damage means ultimately harm suffered by the victim, loss of chance theory holds that loss of chance may be a compensation; British scholar Todd S. Aagarrd, defined the damage in the case as the damage due to the loss of chance.Ultimately damage is the damage that definition from the narrow sense, does not include the damage due to loss of chance.The fourth part: Causality in the case of loss of chance. For the relief of victims, common law proposed three criteria for judging causality established: First, loose the causal relationship; Second, do not change the traditional standard of causation, redefining the damage(the loss of chance as a damage) is an alternative way to prove causation; In third, taking will eventually damage as damage, at the same time, adopting the proportional causation. The said that although logically relatively satisfactory, but it has completely changed the traditional causality theory of all or nothing, causing inconsistent application of the theory of causality.The fifth part: Calculation of lost chance damages. Scholars have put forward three ways of calculation of damages, full compensation, the proportion of compensation and the discretion of judge. All compensation protection for the accuser is too extreme; Proportional compensation to adapt to reflect the fault and liability principles, but if the final damage did not occur, the lost opportunity evaluation will be difficult because of the lack of reference, and it may lead to partial compensation in practice; The judge’s discretion that is easy to apply, but people may worry that judges may be abuse of power.The sixth part: The path selection and institutional framework of damage compensation for loss of chance in our country. Our country can draw lessons from the theory of loss of chance to solve the problem. In our country, the scope of application of the theory should be restricted, the main purpose of the theory is to protect the legitimate rights and interests of the victim, therefore the application of the theory to the victim shall be favorable. If the specific content of a right that included the chance, there is no need for us to apply theory of loss of chance. The plaintiff still need to prove the defendant’s behavior comply damages elements. The final damage is not a necessary when claims for damage compensation, the amount of compensation for damages should be based on the theory of proportion of compensation, supplemented by the theory of judge discretion.