umraniye escort pendik escort
maderba.com
implant
olabahis
canli poker siteleri meritslot oleybet giris adresi betgaranti
escort antalya
istanbul escort
sirinevler escort
antalya eskort bayan
brazzers
sikis
bodrum escort
Short Reads

Liability for loss of chance: a low hurdle

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 Stibbeblog.nl

Team

Related news

25.02.2021 NL law
The Dutch scheme – highlights of the 10 judgments rendered to date

Short Reads - On 1 January 2021, the Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord, the "Dutch Scheme") came into effect. At time of writing (25 February 2021), the Dutch courts have rendered 10 judgments in connection with the Dutch Scheme. This blog provides you with the highlights of this case law.

Read more

29.01.2021 NL law
Publicatie en inwerkingtreding Wet ongewenste zeggenschap telecommunicatie

Short Reads - Op 12 juni 2020 is een wet gepubliceerd om ongewenste overnames in de telecommunicatiesector tegen te gaan: de Wet ongewenste zeggenschap telecommunicatie. Deze wet (die de vorm heeft van een nieuw hoofdstuk in de Telecommunicatiewet) moet volgens de memorie van toelichting voorkomen dat een op basis van geopolitieke motieven handelende partij een te grote invloed krijgt op Nederlandse telecommunicatiepartijen.

Read more

28.01.2021 NL law
Negotiating a contract under conditions; subject to approval

Short Reads - In Dutch legal practice, one of the most common conditions is the reservation of approval or the “subject to approval” clause. A “subject to approval” clause provides a condition under which an agreement will be concluded (totstandkomingsvoorwaarde), a suspensive condition (opschortende voorwaarde) or a resolutive condition (ontbindende voorwaarde). This depends on the wording of the clause and the circumstances of the case.

Read more

27.01.2021 NL law
Overzichtsuitspraak ABRvS: overmacht en de wettelijke dwangsommen wegens niet tijdig beslissen. Hoe werkt dat?

Short Reads - Overmacht bij een bestuursorgaan schort beslistermijnen en wettelijke dwangsomtermijnen zelfstandig op. Ook als een bestuursorgaan daarvan geen mededeling stuurt. Dat oordeelt de Afdeling bestuursrechtspraak van de Raad van State (de Afdeling) in een overzichtsuitspraak van 16 december 2020. In dit blogbericht gaan wij nader in op de achtergrond van die uitspraak en duiden wij wat dit betekent voor de praktijk.

Read more