Causation, Loss and Damage: The Challenge of Chance

The Honorable Mr Justice Akenhead

December 2010

A paper based on a talk given to a meeting of the Society of Construction Law in London on 7th December 2010

This paper considers how the courts go about dealing with proof, possibilities and chances. Mr Justice Akenhead considers first proof on the balance of probabilities and the way in which the tribunal must look at the evidence and decide not what is most or more probable but what probably happened or was said. He considers a series of cases including Fosse Motors (2008 - TCC), Rhesus Shipping (1985 - HL), Linklaters vMcAlpine (2010 - TCC), Ide v ATB Sales (2008 - CA), Galoo v Bright Grahame (1993 - CA), The Sivand (1998 - CA) and AXA Insurance v Cunningham Lindsey (2007 - TCC). He goes on to consider the problem of assessing damages in cases of lost chance or opportunity.

Proof on the balance of probabilities - The lost chance or opportunity - Practical approaches - Conclusion.

The author: The Honourable Mr Justice Akenhead is the judge in charge of the Technology and Construction Court.

Text 11 pages.