Short Reads

Liability for loss of chance: a low hurdle

Liability for loss of chance: a low hurdle

07.10.2015 NL law

In a recent judgment, the Dutch Supreme Court rendered an important decision on the way courts should deal with liability for loss of chance. The judgment shows that once it is established that the loss of chance was caused by a breach of contract or an act in tort, the hurdle to overcome for a claim for damages resulting from loss of a chance is rather low. In this case, the Supreme Court stated that, unless it becomes immediately clear that the lost chance would have been nil or very small, a lower court is obliged to determine the damages if necessary by means of an estimate.

Mr. O, the owner of a building, claimed damages from a local municipality. He allegedly incurred these damages because the local municipality breached a promise to take measures to allow the use of the building as a house under the applicable zoning plan. More specifically, the municipality had promised to include the building as a house in a draft zoning plan but it forgot to do so.

The municipality defended itself by stating that it did not have the final say in the zoning plan: even if it had included the building as a house in the draft zoning plan, the city council as well as the province could have refused to approve it. Had this occurred Mr O would not have been allowed to use his building as a house. Given that this was a possible outcome, the municipality maintained that there were insufficient grounds to establish a causal link between its conduct and the damages incurred by Mr O, which he strongly rejected.

The Court of Appeal followed the arguments advanced by the municipality and  ruled that there was no causal link between the damages of Mr O and the conduct of the municipality.

The Supreme Court overruled the Court of Appeal’s decision. It pointed out that the damages claimed by Mr O amounted to a loss of the chance for his building to obtain a zoning permit as a house. The Supreme Court ruled that there was clearly a causal link between the loss of this chance and the conduct of the municipality. If the municipality had included the building as a house in the draft zoning plan, there would have been a chance, at in least in theory, for the municipality and province to grant its approval thereto.

In the Netherlands, like many other jurisdictions, damages are calculated by comparing the actual situation of the claimant Mr O with the hypothetical situation that he would have been in had the breach not occurred.

The Supreme Court held that Mr O’s damages should equate to the value of the chance that a draft zoning plan including the building as a house had been approved by the province and the local municipality. This “loss of  chance” theory has been applied before by the  Supreme Court and is especially relevant in cases in which it is uncertain what would have happened had the event creating liability – either a breach of contract or an act in tort –  not occurred. In other words: it is applied in cases in which the hypothetical situation is uncertain. The text book example of such a case is the situation in which a lawyer forgets to file an appeal against an unfavourable judgment. Even though one cannot be sure how the appeal judge would have ruled in such a matter, the client has certainly lost the opportunity, big or small, to have the unfavourable judgment overruled.

As stated, the Supreme Court upheld that, unless it becomes immediately clear that the lost chance would have been nil or very small, a lower court is obliged to determine the damages if necessary by means of an estimate.

There are several ways to determine the damages in the current case. The court could try to determine whether the chance had a specific market value, e.g. by determining the difference in price of the building with the promise of the municipality to include the building as a house in a draft zoning plan and the consequent chance that it would obtain housing zoning compared to the situation in which there was no such chance afforded. Alternatively, the court could take a three step approach to assessing the damages: (1) determine the difference in value between the house with housing permit and without housing permit; (2) determine the chance had the city council and the province approved the housing permit; and (3) multiply (1) by (2).

The post Liability for loss of chance: a low hurdle is a post of


Related news

19.10.2017 NL law
Annotatie onder Gerechtshof Arnhem-Leeuwarden - 14-02-2017

Articles - Nu de verkoop van de inventaris meer dan een jaar voor het faillissement heeft plaatsgevonden, is het bewijsvermoeden van art. 43 Fw niet van toepassing. De stelplicht en de bewijslast ten aanzien van het paulianeus handelen rusten dan ook op de curator. De enkele omstandigheid dat het niet goed ging met de onderneming, betekent nog niet dat op dat moment te voorzien was dat een faillissement onafwendbaar was.

Read more

15.11.2017 BE law
Hof van Cassatie trekt streep door eerste schadevergoeding toegekend door Raad van State

Articles - Opdat aan de Raad van State een ontvankelijk verzoek tot schadevergoeding zou kunnen worden gericht, is onder meer vereist dat er een arrest voorligt waarin de Raad van State de onwettigheid van een handeling vaststelt. Het Hof van Cassatie verduidelijkt in een arrest van 15 september 2017 wat moet worden begrepen als een "arrest waarbij de onwettigheid wordt vastgesteld". Een arrest dat de intrekking vaststelt, valt er volgens het Hof niet onder.

Read more

02.10.2017 NL law
Judgement beyond the ambit of the legal dispute

Short Reads - In its judgment of 14 July 2017, ECLI:NL:HR:2017:1357 the Supreme Court decided that the pleadings did not provide sufficient basis for the decision of the Court of Appeal that the contractor's claim was also based on joint and several liability of the alleged client. Moreover, the pleadings provided no evidence that the alleged client acknowledged that the contractor considered the alleged client jointly and severally liable.

Read more

26.09.2017 BE law
Belgian act on security interests in movable property - Rules for operation and fees for users of the National Pledge Register

Articles - In 2013 Belgian Parliament enacted the Belgian Act on security rights in movable property of 11 July 2013 (the “Act”). This new legislation envisaged the creation of an electronic, online National Pledge Register so that a pledge on movable assets can be created between pledgor and pledgee and perfected by registering the pledge and without dispossession or loss of control of the pledged assets. 

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy and Cookie Policy