The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to effect reconciliation with her but she refused. Shortly before his death, he had instructed his solicitor to institute divorce proceedings. The plaintiff claimed as widow and administratrix of the husband’s estate.
Held: Her claim for dependency failed because the court of first instance found that she had not proved that reconciliation with her husband was more probable than not. While the plaintiff could arguably make a claim for loss of chance, she had not shown any significant chance or probability of reconciliation with her husband before his death. To obtain anything under a head of substantial losses of future chance, the plaintiff must establish that that chance: ‘was substantial. If it was, it must be evaluated. If it was a mere possibility, it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than ‘substantial’, on the one hand, or ‘speculative’ on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective.’
Lord Reid said: ‘When the question is whether a certain thing is or is not true – whether a certain event did or did not happen – then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent . . If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent. and a 40 per cent. probability. The 40 per cent. case will get nothing but what about the 60 per cent. case. Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent. case fails altogether but the 60 per cent. case gets 100 per cent. But it would be almost absurd to say that the 40 per cent. case gets nothing while the 60 per cent. case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.’
Lord Cross of Chelsea said that ‘The word ‘likely’ which occurs in the last two of the three passages from the judgment which I have quoted above, may be used in different senses. Sometimes it may be used to mean ‘more likely than not’ at other times to mean ‘quite likely’ or ‘not improbably’ though less likely than not.’
Lord Reid, Lord Cross of Chelsea
[1974] AC 207
Fatal Accidents Act 1959
England and Wales
Citing:
See Also – Davies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .
Cited by:
See Also – Davies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Cited – Collett v Smith and Another QBD 11-Aug-2008
The claimant had been an eighteen year old playing football for Manchester United reserves when he was injured by a foul tackle which ended his football career. The defendant admitted liability, but denied that he would have gone on to be a premier . .
Applied – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Damages
Leading Case
Updated: 10 November 2021; Ref: scu.219084
